• Case 5:04-cv-00873-XR

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IN THE UNITED STATES DISTRICT COUR,Jp ') FOR THE WESTERN DISTRICT OF TEXAS" ,~

SAN ANTONIO DIVISION

WCt:~'r

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,

BY_
§
§
XR SA04CA0873

v.
MOTHERS WORK, INC., Defendant.

§ Civil Action No. § § COMPLAINT AND § JURY TRIAL DEMAND § §

NATURE OF THE ACTION

This is an action under Title I ofthe Americans with Disabilities Act of 1990 and Title I of

the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of disability and

to provide appropriate reliefto Defendant's former employee, Monica E. Sarfaty, who was adversely

affected by such practices. The Equal Employment Opportunity Commission, (the "Commission"),

alleges that Defendant, Mothers Work, Inc., discharged Monica E. Sarfaty, a qualified individual

with a disability, from her employment because of her disability.

JURISDICTION AND VENUE

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

and 1345. This action is authorized and instituted pursuant to Section 107(a) ofthe Americans with

Disabilities Act of 1990 ("ADA"), 42 U.S.C. §12117(a), which incorporates by reference Sections

706(0(1) and (3) of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e-

5(f)(l) and (3), and pursuant to Section 102 of the Civil Rights Act of 1991,42 U.S.C. §1981a.

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

jurisdiction of the United States District Court for the Western District of Texas, San Antonio

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Division. PARTIES
3. Plaintiff, the Commission, is the agency ofthe United States ofAmerica charged with the administration, interpretation and enforcement ofTitle I ofthe ADA, and is expressly authorized to bring this action by Section 107(a) of the ADA, 42 U.S.c. § 12117(a), which incorporates by reference Sections 706(f)(1) and (3) of Title VII, 42 U.s.c. § 2000ew 5(f)(1).
4. At all relevant times, Defendant, Mothers Work, Inc. has continuously been a Delaware Corporation doing business in the State of Texas and the City of San Antonio, and has continuously had at least fifteen (15) employees.
5. At all relevant times, Defendant, Mothers Work, Inc., has continuously been an employer engaged in an industry affecting commerce under Section 101(5) ofthe ADA, 42 U.S.C.§ 12111(5), and Section 101(7) of the ADA, 42 U.S.c. § 12111(7), which incorporates by reference Sections 701(g) and (h) of Title VII, 42 U.S.C. §§ 2000e(g) and (h).
6. At all relevant times, Defendant, Mothers Work, Inc., has been a covered entity under Section 101(2) of the ADA, 42 U.S.c. § 12111(2).
STATEMENT OF CLAIMS 7. More than thirty days prior to the institution of this lawsuit, Monica E. Sarfaty filed a charge with the Commission alleging violations of Title I of the ADA by Defendant, Mothers Work, Inc. All conditions precedent to the institution of this lawsuit have been fulfilled. 8. At all relevant times, Monica E. Sarfaty has been and is a qualified person with a disability and is covered by Title I ofthe ADA, 42 U.S.c. §§ 12101 et seq. 9. On or about October 31, 2003 Defendant, Mothers Work, Inc., engaged in unlawful

PlainfflTs Ongll1al Complaint

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employment practices at its San Antonio, Texas location, in violation of Title I of the ADA, 42 U.S.C. §§ 12101 et seq. More specifically, on or about October 31,2003:
(a) Defendant discharged Monica Sarfaty from her position as a Regional Manager because she was a qualified individual with a disability as defined by the ADA; and
(b) Defendants discharged Monica Sarfaty from her position of Regional Manager while out on an approved medical leave of absence.
10. The effect ofthe practices complained of in paragraph 9 above has been to deprive Ms. Sarfaty of equal employment opportunities and to otherwise adversely affect her status as an employee because of her disability.
11. The unlawful employment practices complained of in paragraph 9 above were intentional.
12. The unlawful employment practices complained of in paragraph 9 above were done with malice or with reckless indifference to the federally protected rights of Monica E. Sarfaty.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant, Mothers Work, Inc., its officers, successors, assigns, and all persons in active concert or participation with it, from discriminating against any qualified employees, because of their disabilities, by failing to provide reasonable accommodations; by terminating qualified individuals because oftheir disability; and/or engaging in any other employment practice which discriminates on the basis of disability; B. Order Defendant, Mothers Work, Inc., to institute and carry out policies, practices,

Plaintif}'s Onginal Complaint

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and programs which provide equal employment opportunities for qualified individuals with

disabilities, and which eradicate the effects of its past and present unlawful employment practices, including but not limited to posting notices regarding its compliance with the ADA;

C. Order Defendant, Mothers Work, Inc., to make whole Monica E. Sarfaty by providing

appropriate back pay with prejudgment interest, in amounts to be determined at trial, and other

affirmative relief necessary to eradicate the effects of its unlawful employment practices, including

but not limited to reinstatement of Monica E. Sarfaty, or front pay in lieu thereof; D. Order Defendant, Mothers Work, Inc., to make whole Monica E. Sarfaty by providing

compensation for past and future pecuniary losses resulting from the unlawful employment practices

described in paragraph 9, including, but not limited to, relocation expenses,job search expenses, and

medical expenses, in amounts to be determined at trial;

E. Order Defendant, Mothers Work, Inc., to make whole Monica E. Sarfaty by providing

compensation for past and future non-pecuniary losses resulting from the unlawful practices

complained of in paragraph 9 above, including, but not limited to, emotional pain, suffering,

inconvenience, loss of enjoyment oflife, and humiliation, in amounts to be determined at trial;

F. Order Defendant, Mothers Work, Inc., to pay Monica E. Sarfaty punitive damages for its malicious and reckless conduct, as described in paragraph 9 above, in amounts to be determined at trial;

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

H. Award the Commission its costs.

JURY TRIAL DEMAND

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

Plaintiff's Original Complamt

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Respectfully submitted,
ERIC S. DREIBAND General Counsel
JAMES 1. LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel

ROBERT B. HARWIN Regional Attorney District of Columbia Bar No. 076083

Plaintifrs Ongmal Complamt

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION San Antonio District Office 5410 Fredericksburg Rd., Ste 200 San Antonio, TX 78229-3555 Telephone: (210) 281-7619 Telecopier: (210) 281-7669
ATTORNEYS FOR PLAINTIFF
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FILED

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

OCT 14 Z005
IV -~~IIIRm~"'FEm'-

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,
v.

CIVIL NO. SA·04·CA·873·XR

MOTHERS WORK, INC., OF AMERICA d/b/a LAB CORP.

Defendant.

ORDER Came on to be considered: plaintiff the Equal Employment Opportunity Commission's ("EEOC") motion to compel discovery filed September 7,2005;1 defendant Mothers Work, Inc.'s ("Mothers Work") response filed September 20,2005;2 the EEOC's reply filed September 21, 2005;3 and Mothers Work's advisory filed October 4,2005.4 Procedural History The EEOC initiated this lawsuit on September 28, 2004, by filing its complaint, with inc1udedjury demand, alleging that Mothers Work engaged in unlawful employment practices on the basis of disability in violation of Title I of the Americans with Disabilities Act ("ADA"), and

I Docket no. 24. 2 Docket no. 29. 3 Docket no. 30. 4 Docket no. 31.

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seeking relief for one of Mothers Work's fonner employees, Monica E. Safarty ("Safarty,,).5 In
brief, the EEOC alleges that Mothers Work wrongfully discharged Safarty on October 31,2003
from her position as a regional manager because she was a qualified person with a disability as defined by the ADA and was on an approved medical leave of absence.6 The EEOC
characterizes the ADA claim as "seeking relief for a disabled employee who was tenninated when she requested a reasonable accommodation of medical leave. ,,7 As relief, the EEOC seeks:
(a) a permanent injunction enjoining Mothers Work "from discriminating against any qualified employees because of their disabilities by failing to provide reasonable accommodations,
terminating qualified individuals because of their disability, and/or engaging in any other
employment practice which discriminates on the basis of disability;" (b) a pennanent injunction
requiring Mothers Work to "institute and carry out policies, practices, and programs which
provide equal employment opportunities for qualified individuals with disabilities, and which
eradicate the effects of its past and present unlawful employment practices, including ... posting
notices regarding its compliance with the ADA;" (c) an order requiring Mothers Work to "make
5 42 U.S.c. §§ 12101 et seg.; docket nos. 1 and 2. 6 Docket no. 1 at 3. The complaint alleges: On or about October 31,2003 defendant, Mothers Work, Inc., engaged in unlawful employment practices at its San Antonio, Texas location, in violation of Title I of the ADA, 42 U.S.C. §§ 12101 et seg. More specifically, on or about October 31,2003:
(a) defendant discharged Monica Sarfaty from her position as a Regional Manager because she was a qualified individual with a disability as defined by the ADA; and (b) defendants discharged Monica Sarfaty from her position of Regional Manager while out on approved medical leave of absence. Id. at 2-3. 7 Docket no. 30 at 3.
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whole Safarty" by providing back pay and pre-judgment interest as well as reinstatement or front pay; compensation for past and future pecuniary (such as, relocation, job search and medical expenses) and non-pecuniary losses (such as for emotional pain, suffering, inconvenience, loss of enjoyment of life, and humiliation); and punitive damages; and (d) an award of such further relief "as the Court deems necessary and proper in the public interest," including the award of costs to the EEOC.8
On January 24,2005, Mothers Work filed its answer which raises four affirmative defenses: failure to mitigate; failure to satisfy statutory and jurisdictional prerequisites to filing a law suit in a timely manner; punitive damages are barred by Mothers Work's good faith efforts to comply with anti-discrimination laws; and, with respect to the merits, "all actions in the complaint were taken in good faith and without discriminatory, harassing, or retaliatory motive and for legitimate, non-discriminatory reasons.,,9
On AprilS, 2005, the District Court entered a scheduling Order which, among other things, established a discovery deadline of December 16, 2005 and a disposi tive motion deadline of January 17,2006.10 On August 16,2005, the District Judge approved the parties' agreed protective Order. 11 Motion to Compel
On September 7, 2005, the EEOC filed a motion to compel discovery and memorandum
8 Id. at' 3-4. 9 Docket no. 6 at 2-3. 10 Docket no. 18. 11 Docket no. 21.
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in supp011.12 In brief, the motion seeks an Order compelling Mothers Work to: (a) answer interrogatories 2, 4, 5, and 16 of plaintiff's first set of written interrogatories; (b) produce all documents responsive to requests for production 1,2,3,4,6, 13, 17, 18, 19,20 and 28 of the EEOC's first request for production of documents; and (c) produce a privilege log for any information or documents withheld on a claim of privilege. 13 On September 20, 2005, Mothers Work filed its response which, in addition to arguments on the scope of discovery, presents substantive arguments challenging discovery regarding requests for production 1, 17, and 19 as well as each of the challenged interrogatories. 14 In brief, Mothers Work argues certain of the discovery requests are over-broad, perhaps relating to an FMLA cause of action, not alleged in the complaint, but not the single ADA claim included in the complaint.15 Mothers Work further represents that certain information, withheld until the agreed protective order was filed, has since been or will b~ produced, and other information was withheld under a claim of attorney-client or work product privileges. 16 On September 21,2005, the EEOC filed its reply, re-urging arguments in support for the scope of information sought in the interrogatories and requests for production at issue as well as arguing Mothers Work has not been forthcoming with discovery
12 Docket no. 24. 13 Id. at 18. 14 Docket no. 29. 15 Docket no. 29 at 1. 16 Id. at 2.
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promised in its response. 17 On October 4,2005, Mothers Work filed an advisory listing documents produced to the EEOC the previous day. IS Discussion
Standards Rule 26 of the Federal Rules of Ci vii Procedure specifies certain types of information that must be initially disclosed without a discovery request and also provides methods for the discovery of additional matters. 19 With respect to the scope of discovery, Rule 26 states: Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.2o Discovery must not be "unreasonably cumulative or duplicative.,,21 Rule 26 provides that the parties may obtain additional discovery through written interrogatories or requests for production of documents and other items.22
17 Docket no. 30. The EEOC argues that "[b]ecause Mothers Work continues to violate the letter and spirit of the discovery rules by refusing to produce even the most basic employment documents relevant to this case," an award of sanctions and costs is appropriate. Id. at 4.
18 Docket no. 31. 19 FED. R. CIv. P. 26. 20 FED. R. CIV. P. 26(b)(1) (emphasis added). 21 FED. R. CIV. P. 26(b)(2). 22 FED. R. CIV. P. 26(a)(5).
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Federal Rule of Civil Procedure 33 provides that a party may serve upon any other party written interrogatories in order to discover any information relevant under Rule 26(b)(1).23 Interrogatories are not to exceed twenty-five (25) in number including discrete sub-parts, without first obtaining leave of court.24 Federal Rule of Civil Procedure 34 permits discovery of documents "which are in the possession, custody, or control of the party upon whom the request is served.,,25 Rule 37(a)(2)(B) provides that if a party fails to answer an interrogatory or produce requested documents, the discovering party may move for an order compelling an answer.26 An "evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer, or respond.'>27
Scope of Discovery As a threshold matter, the Court addresses the scope of discovery, an issue pertinent to many of the disputed requests. The complaint asserts a cause of action for disability discrimination in violation of the ADA. A plaintiff makes a prima facie showing of disability discrimination in violation of the ADA discrimination by establishing that she: (1) was disabled or regarded as disabled; (2) qualified for the job; (3) was subjected to an adverse employment action on acco~nt of her disability; and (4) was replaced by or treated less favorably than a
23 FED. R. CIV. P. 33(a) & (c). 24 FED. R. CIv. P. 33(a). 25 FED. R. CIV. P. 34(a). 26 FED. R. CIY. P. 37(a)(2)(B). 27 FED. R. CIV. P. 37(a)(3).
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non-disabled employee.28 A "qualified person with a disability" is a person who, "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires."29 A "reasonable accommodation," according to statutory and case law, "may include job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, or other similar accommodations for individuals with disabilities.,,30
A cent~al theme of Mothers Work's objections is the scope of discovery sought in the disputed interrogatories and document requests. In essence, Mothers Work might concede that certain of the information requested relates to the "subject matter" of discrimination, but argues it is not relevant to the asserted "claim" of wrongful discharge of Safarty in violation of the ADA or any "defense" asserted by Mothers Work's to the ADA claim. Accordingly, Mothers Work opposes several requests on the grounds of relevance, over-breadth, and burdensomeness. The EEOC's motion and reply do not expressly ask the Court to enter a finding of "good cause" to
28 McInnis v. Alamo Cmty. ColI. Dist., 207 FJd 276, 279-80 (5th Cir.2000). 29 42 U.S.C. § 12111(8). 30 42 U.S.c. § 12111(9). The ADA prohibits discrimination based on disability regarding leave, including leave of absence, sick leave or other leave, 29 C.F.R. § 1630.4. The EEOC cites the Ninth Circuit's decision in Humphrey v. Memorial Hosp. Ass'n, 239 FJd 1128,
1135-36 (9th Cir. 1999), cert. denied, 535 u.s. 1011, 122 S.Ct. 1592 (2002), which held:"A
leave of absence for medical treatment may be a reasonable accommodation under the ADA." Docket no. 30 a 4 n.9. Title 29, C.F.R. § 1630.2(0), also cited by plaintiff, defines "reasonable accommodation" and provides a non-exhaustive list of reasonable accommodations which does not, it should be noted, include a request for a medical leave of absence or medical leave.
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allow expanded "subject matter" discovery, but assert that the challenged requests, for example for information on any manager nationwide who requested FMLA or medical leave for any reason, are appropriate, on several grounds, including:31
• the information '''appears reasonably calculated to lead to the discovery of admissible evidence;' ,,32
• "[t]he scope of discovery is never limited to issues raised by the pleadings, for discovery itself is designed to help define and clarify the issues;,,33
• "it is appropriate to allow the EEOC to inquire as to whether other persons complained that medical leave was being unlawfully denied to them because they are major sources of relevant information concerning Mothers Work Inc.'s employment practices;,,34
• Mothers Work allegedly terminated Safarty's employment after she requested medical leave;
• Mothers Work's termination of Safarty's employment was tantamount to a denial of a request for an accommodation, an element of an ADA claim, because "the accommodation sought by Ms. Safarty to accommodate her disability was medicalleave,,35 through the
31 Many of the cases cited by the EEOC in support of its arguments on relevance and scope pre-date the amendment to Rule 26 which limited the initial scope of discovery to claims and defenses, without a finding of good cause. See docket no. 24 at 5 nn. 8, 9, 10; and at 8 n.l9.
32 Docket no. 24 at 5 (citation omitted). 33 Id. (citation to a 1995 Tenth Circuit case quoting a 1978 United States Supreme Court case omitted). 34 Id. at 6; docket no. 30 at 3 ("The medical leave information sought by the EEOC is relevant to this lawsuit because Ms. Safarty sought an accommodation of medical leave."). 35 Id. at 6.; docket no. 30 at 3.
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submission of an FMLA leave act fonn;36 • "[w]hether other employees complained to Mothers Work, Inc. that they were being
denied medical leave under similar circumstances as Ms. Safarty, even if the employees were not disabled as defined under the ADA, should be considered by a jury in detennining whether the company was aware of its legal responsibilities to grant medical leave to eligible employees;,,37 and
• the request is not burdensome as "Mothers Work's Human Resources Department already maintains detailed Excel spreadsheets identifying those employees who have taken medicalleave.,,38
Although the contested discovery requests well-illustrate that decisions on relevance are tied to the facts and arguments presented, decisions that can be re-evaluated as facts are developed, the Court does not agree that this record justifies the entry of a finding of "good cause" allowing discovery of certain of the contested requests, for example, all employees or managers who. were denied medical leave for any reason39 or that such a request seeks infonnation relevant to plaintiff's ADA claim. The EEOC's contention that it expects the information could show a "pattern and practice of discriminating against those employees requesting medical leave" which would be "evidence of pretext,,40 is, on this record, genuinely
36 Docket no. 24 at 7. 37 Id. (emphasis added). 38 Docket no. 30 at 3. 39 See discussion of interrogatory 4 below. 40 Id. at 4.
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debatable. If the manager in question was not requesting medical leave as an accommodation for
a disability within the purview of the ADA, arguably the company's response to that leave
request would be irrelevant to whether Mothers Work violated the ADA when it terminated
Safarty's employment after asking for an accommodation or determining whether has a "pattern
and practice" of discriminating based on a disability.41 To the extent a disputed discovery request
seeks "subject matter" discovery without providing "good cause," the request must be
disallowed. The Court's rulings on the EEOC's motion to compel limit discovery to non-
privileged information relevant to a "claim or defense."
Requests for Production Nos. 1, 2, 3, 4, 6, 13, 18, 19, 20, and 28
Mothers Work, with the protective order in place, has represented in its response that it
has or will produce all responsive non-privileged documents in its possession, custody, and
41 The EEOC argues a March 2004, affidavit produced by the former head of Human Resources of Mothers Work produced in a lawsuit in the United States District Court for the District of Massachusetts apparently involving FMLA leave for pregnancy-- not an ADA cause of action - de~onstrates the relevance of its requests for information about other employees' requests for medical leave (docket no. 24 at 5-6 and its exhibit 8). Although the EEOC argues it is aware that "various members of management" have sued Mothers Work for violations of Title VII, FMLA, and ADA after being terminated "for requesting medical leave," and asserts the circumstances were "similar" to Safarty's, the EEOC does not expressly represent that the "various" employees requested medical leave as an accommodation under the ADA, the claim
asserted by Sarfarty ful. at 6 n.12). That the U. S. Department of Labor may have concluded
Mothers Work violated the FMLA when terminating Safarty's employment while she was on
"approved medical leave" ful. at 7 n.14) does not change the result, as Safarty asserts an ADA
claim, not an FMLA claim, in this case. Such arguments are not sufficient to show that any Mothers Work employee or manager's request for medical leave - every doctor's appointment and sick day nationwide - is relevant to plaintiff's ADA claim asserted in this case. To conclude otherwise, would construe "relevance" so broadly to nullify the need for particularized inquiry and "good cause" to pursue "subject matter," as opposed to "claim or defense," discovery.
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control responsive to requests for production 1,2,3,4,6, 13, and 19,42 and will continue to search for documents responsive to requests 18,20, and 28 and produce any non-privileged responsive documents it locates.43 But, the EEOC maintains that Mothers Work "continues to violate the letter and spirit of the discovery rules by refusing to produce even the most basic employment documents relevant to this case," such as Mothers Work's hiring, leave, and disciplinary policies, its entire "reference manual" in effect in October 2003, as well as Safarty's personnel file.44 On October 4, Mothers Work filed an advisory to indicate it had disclosed the personnel files of Safarty and her manager and the relevant policies from its policy and procedure manual. 45
In sum, based on Mothers Work's representation that it will produce all responsive nonprivileged documents, subject to its continuing duty to disclose, and based on its advisory, the EEOC's motion to compel all responsive non-privileged documents in response to requests for production 1,2, 3,4,6, 13, 18,20, and 28 is denied as moot, subject further to the rulings below, as appropriate, including the production of a privilege log.46
42 Mothers Work continues to assert a privilege objection to request for production 19 which is addressed further below.
43 Docket no. 29 at 3-4. 44 Docket no. 30 at 2, 4. 45 Docket no. 31 at 1 and its exhibit A. 46 For clarity, the Court notes Mother's Work's representation it will produce all nonprivileged information responsive to request 19, but, for clarity, reserves its ruling on the motion to compel further response to request 19, to a discussion of attorney client and work product privileges below. Mothers Work's attorney work product, including attorney's notes, is exempt from discovery pursuant to FED. R. CIV. P. 26(b)(3). Opinion work product, consisting of the mental impressions, conclusions, opinions, or legal theories of an attorney or other legal
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Interrogatory 2 Interrogatory 2 asks for the identification of "all specific legal or factual contentions which form the basis for your defense in this lawsuit.,,47 Mothers Work objected on the basis of work-product and acknowledged a continuing duty to disclose. Mothers Work further responded: Mothers Work contends it terminated Ms. Safarty for legitimate, non-discriminatory reasons and that it made good faith efforts to comply with anti-discrimination laws at all times and has adopted, publicized, and enforced against the type of discrimination alleged in the Complaint.48 No further factual or legal contentions were disclosed. The information requested in interrogatory 2 falls well within the scope of permitted discovery. The EEOC's motion to compel all non-privileged information in response to interrogatory 2 is granted, subject to the production of a privilege log and Mothers Work's continuing duty to disclose, Mothers Work must serve a supplementary response to interrogatory 2 within ten (10) days of the date of this Order. Request for Production 19 Request for Production 19 seeks "[a]ll documents of Mothers Work, Inc. addressing the reasons for terminating Monica Sarfaty for the month of October 2003.49 Mothers Work responded:
representative of Mothers Work also is not discoverable. FED. R. CIV. P. 26(b)(3). 47 Docket no. 24, exhibit 1 at 10. 48 Id., exhibit 3 at 2. 49 Docket no. 24, exhibit B. 12

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Mothers Work objects to producing information or documents privileged from disclosure under the attorney-client privilege, the attorney work-product doctrine and/or other applicable privilege or protection from discovery, including, but not limited to, information or documents gathered by counsel from persons other than defendants in defense of this litigation. Subject to and without waiver of this objection, Mothers Work has already produced to plaintiff documents addressing the reasons for terminating Ms. Sarfaty. As discovery in this matter is ongoing, Mothers Work reserves the right to supplement its response with additional responsive documents identified during the course of its investigation.50 The parties appear to agree that documents relating to Sarfaty's termination are relevant to the EEOC's claim. In the post-reply advisory, Mothers Work indicates that certain information responsive to request 19, as well as request 1 discussed above, has been produced. The parties disagree over whether and to what extend Mothers Work may be entitled to assert the attorney-client or work product privileges to resist disclosure of certain documents. Mothers Work represents that in-house counsel Craig Swartz ("Swartz") was involved in communications with Mothers Work employees concerning the decision to terminate Sarfaty and even though he signed the termination letter, Mothers Work did not waive its attorney-client privilege regarding "all communications that were necessary to create the document.,,51 Mothers Work also invokes the work product privilege regarding legal advice Swartz provided from "approximately October of 2003 until the present," as Swartz considered such advice to be "in anticipation of litigation."s2 On the other hand, the EEOC argues that "[b]y writing and signing the termination letter, Swartz made himself a fact witness subject to discovery," and the EEOC should be permitted to delve into the facts leading to the termination, regardless of whether they
50 Id., exhibit 4 at 8-9. 51 Docket no. 29 at 8-9. 52 Id. at 9.
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involve Swartz.53 The attorney-client privilege generally protects confidential communications made by a
client to his lawyer for the purpose of obtaining legal advice. A corporate client has a privilege to refuse to disclose, and prevent its attorneys from disclosing, confidential communications between its representatives and its attorneys when the communications were made to obtain legal services. 54 Inquiry into the substance of the client's and attorney's discussions implicates the privilege and an assertion of the privilege is required to preserve it.55 Meanwhile, the attorney work-product privilege first established in Hickman v. Taylor,56 and codified in FED. R.Crv. P. 26(b)(3) for civil discovery, protects from disclosure materials prepared by or for an attorney in anticipation of litigation.57 Since Hickman, courts have reaffirmed the strong public policy on which the work-product privilege is grounded. The Supreme Court in UQjohn found that "it is essential that a lawyer work with a certain degree of privacy" and further observed that if discovery of work product were permitted "much of what is not put down in writing would remain unwritten" and that "the interests of clients and the cause of justice would be poorly served.,,58
53 Docket no. 24 at 16-17. 54 Nguyen v. Excel COlJ?oration, 197 FJd 200,206 (5th Cir. 1999) (citing UQjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677 (1981)). 55 Id. 56 329 U.S. 495, 67 S.Ct. 385 (1947). 57 Hickman, 329 U.S. at 510-511,67 S.Ct. at 393-94. 58 UQjohn, 449 U.S. at 397-398, 101 S.Ct. at 686-87.
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The EEOC has cited no authority in support of its contention that Swartz's act of signing the letter terminating Safarty's employment waives the attorney client privilege regarding all communications between Swartz and Mothers Work employees and representatives regarding the termination decision. Similarly, the EEOC has not demonstrated that it is not reasonable for Swartz to have concluded that documents he created from October, 2003, through December 15, 2003, to the present pertaining to Safarty were in anticipation of litigation. 59 For purposes of the motion to compel, the EEOC has not overcome Mothers Work's asserted privileges.
In sum, the EEOC's motion to compel all responsive non-privileged documents in response to request for production 19 is granted; to the extent not already accomplished, Mothers' Work must produce non-privileged responsive documents within ten (10) days of the date of this Order, subject to the production of a privilege log pursuant to FED. R. CIV. P. 26(b)(5), as further discussed below, as well as Mothers Work's continuing duty to disclose subsequently discovered non-privileged responsive documents.
Interrogatories 4, 5 and 16 and Request for Production 17 Interrogatories 4, 5 and 16 and request for production 17 share the common themes of seeking information related to either past or present employees of Mothers Work and medical leave. Interrogatory 4 asks Mothers Work to "[i]dentify all employees who have complained to Mothers Work) Inc. that they have been denied a request for medicalleave."60 Interrogatory 5 asks Mothers Work to "[i]dentify former employees of Mothers Work, Inc., including members
59 Mothers Work terminated Safarty's employment in October 2003 and Safarty filed her EEOC charge on December 15,2003.
60 Docket no. 24, exhibit 1 at 10. 15

Case 5:04-cv-00873-XR Document 32 Filed 10/14/2005 Page 16 of 19
of management, who were terminated by Mothers Work, Inc. while on approved medical leave.,,61 Interrogatory 16 asks Mothers Work to "[i]dentify all members of management of Mothers Work, Inc. including District Managers, who have requested medical leave as an accommodation for a disability ... [and] for each person identified, state date and basis of the request whether the leave was granted and the employee's current employee status."62 Finally, request for production 17 seeks "[a]ll complaints of discrimination alleging that Mothers Work, Inc. denied medical leave to employees.,,63 Mothers Work has objected to producing the requested information on the following grounds: the information is not relevant to the ADA claim or any defense, the requests are not reasonably limited in time and scope, the information is private or personal or confidential, and production is overly burdensome.64
At this .stage of the case, the Court accepts as true the allegations in the complaint. Further, the Court assumes that a request for medical leave, under appropriate circumstances, might be a reasonable accommodation for a qualified disability.65 But, the specific factual allegations regarding Safarty' s specific situation are almost nonexistent. For example, it is unknown at this time the nature and characteristics of Safarty' s alleged disability or whether leave to seek medical treatment or an extended leave of absence might enable Safarty to perform the essential functions of her job. Presumably, such matters would inform a determination of
61 Id. 62 Id., exhibit 1 at 12-l3. 63 Id., exhibit 2 at 9. 64 Id., exhibit 3 at 5-6, 8-9; Id., exhibit 4 at 8. 65 See note 30, above.
16

Case 5:04-cv-00873-XR Document 32 Filed 10/14/2005 Page 17 of 19
relevance. On the record here developed, the EEOC's motion to compel a response to interrogatories
4 and 5 and request for production 17 are denied on the ground that the EEOC has not demonstrated such information is relevant to a claim or defense; the EEOC's motion to compel a further response to interrogatory 16 is granted, limited to the four-year period of October 1, 2001 through October 31,2005, on the ground that information about other managers who expressly requested medical leave as an accommodation for a disability is relevant to the EEOC's ADA claim and, to the extent not already accomplished, Mothers' Work must serve a supplementary response to interrogatory 16 to provide non-privileged responsive information within ten (10) days of the date of this Order, subject to the production of a privilege log pursuant to FED. R. Cry. P. 26(b)(5), as further discussed below, as well as Mothers Work's continuing duty to disclose. Conclusion
Based on the foregoing analysis, IT IS ORDERED that the EEOC's motion to compel66 is GRANTED in part and DENIED in part as provided in this Order, namely: the motion to compel further response to requests for production 1,2,3,4,6, 13, 18,20 and 28 are denied as moot, subject to the requirement that Mothers Work serve a privilege log regarding any information or document withheld on a claim of privilege and subject to the continuing duty to disclose; the motion to compel further response to interrogatory 2 is granted, subject to the
66 Docket no. 24. 17

Case 5:04-cv-00873-XR Document 32 Filed 10/14/2005 Page 18 of 19
production of a privilege log and Mothers Work's continuing duty to disclose, Mothers Work must serve a supplementary response to interrogatory 2 within ten (10) days of the date of this Order;
the motion to compel further response to request for production 19 is granted; to the extent not already accomplished, Mothers' Work must produce non.privileged responsive documents within ten (10) days of the date of this Order, subject to the production of a privilege log as well as Mothers Work's continuing duty to disclose subsequently discovered non· privileged responsive documents;
the motion to compel a further response to interrogatories 4 and 5 and request for production 17 are denied; and
the motion to compel a further response to interrogatory 16 is granted; to the extent not already accomplished, Mothers' Work must serve a supplementary response to interrogatory 16 to provide non-privileged responsive information limited to the period of October 1, 2001 through October 31,2005, within ten (10) days of the date of this Order, subject to the production of a privilege log as well as Mothers Work's continuing duty to disclose.
IT IS ALSO ORDERED that, if not already accomplished, within ten (10) days of the date of this Order, Mothers Work must serve on the EEOC a privilege log pertaining to responsive information not disclosed subject to a claim of attorney~client or attorney work product privilege pursuant to FED.R.CIv.P. 26(b).
IT IS ALSO ORDERED that the EEOC's request for fees and costs67 is DENIED.
67 Docket no. 30 at 4. 18

Case 5:04-cv-00873-XR Document 32 Filed 10/14/2005 Page 19 of 19

IT IS ALSO ORDERED that any other relief requested in the motion to compel not

expressly granted is DENIED.

IT IS ALSO ORDERED that this case is RETURNED to the District Court.

NOTICE OF RIGHT OF REVIEW AND APPEAL Pursuant to Fed.R.Civ.P. 72, Rule 4 in Appendix C of the Local Rules of this Court68 and

28 U.S.c. § 636(b)(I) , unless otherwise ordered by the District Judge, any party objecting to any

portion of this Order must file and serve a written objection within ten (10) days of the date of

this Order.

1!f- ORDERED, SIGNED AND ENTERED this

day of October, 2005.

United States Magistrate Judge

68 With respect to non-dispositive rulings, Rule 4 provides, in pertinent part, "[a]ny party may appeal from a magistrate judge's order determining a motion or matter under subsection l(c) of these rules, supra, [a non-dispositive ruling] within 10 days after issuance of the magistrate judge's order ..." The District Judge will "set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law. The judge may also reconsider sua sponte any matter determined by a magistrate judge under this rule."
19

 
 Case 5:04-cv-00873-XR Document 80

Filed 08/21/2006 Page 1 of 7
FILED

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Plaintiff, VS. MOTHERS WORK, INC.
Defendant.

) ) ) ) )
) Civil Action No: SA-04-CA-S73-XR
) ) ) )

ORDER

On this date, the Court considered Defendant Mothers Work, Inc. 's ("Mothers Work")

motion for attorney's fees and costs (docket no. 68), Plaintiff Equal Employment Opportunity

Commission's ("EEOC") response in opposition (docket no. 72), and Mothers Work's rep ly thereto

(docket no. 75). After careful consideration, the Mothers Work's motion is GRANTED in part, and

DENIED in part (docket no. 68).

I. Factual and Procedural Background

On September 28, 2004, the EEOC brought suit against Mothers Work for disability

discrimination under the Americans with Disabilities Act of 1990. Specifically, the EEOC alleged

that Mothers Work discharged Monica Sarfaty from her position as a regional sales manager because

she was disabled. On January 17, 2006, Mothers Work filed a motion for summary judgment

arguing that Sarfaty was not disabled as that term is defined under the ADA, or alternatively, that

Sarfaty was discharged for legitimate, non-discriminatory reasons and the decision makers were not

aware of Sarfaty' s condition at the time they decided to terminate her employment.

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Case 5:04-cv-00873-XR Document 80 Filed 08/21/2006 Page 2 of 7
On May 8, 2006, the Court granted summary judgment in favor of the Mothers Work. Docket no. 65. The Court held that:
The EEOC has failed to adduce evidence that, when taken in a light most favorable to it, shows that Sarfaty's bipolar disorder has substantially limited one or more major life activities. Alternatively, the EEOC fails to present any evidence that at the time of her discharge, Mothers Work was aware that Sarfaty suffered from any bi-polar condition. Finally, the EEOC has failed to adduce any evidence to support a reasonable finding that Mothers Work regarded Sarfaty as disabled.
Docket no. 65, at 14. Mothers Work, as the prevailing party, moves for an award of attorney's fees and costs.
II. Analysis A. Attorney's Fees. In Christian burg Garment Co. v. Equal Employment Opportunity Commission, the United States Supreme Court held that "a district court may in its discretion award attorney's fees to a prevailing defendant in a Title VII case upon a finding that the plaintiffs action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." 434 U.S. 412, 421 (1978); see also Vitale v. Ga. Gulf Co., 82 Fed. Appx. 873, 876 (5th Cir. 2003) ("In contrast to prevailing plaintiffs in civil rights actions ... prevailing defendants may receive fees under the Christianburg standard." (emphasis in original)). District courts must "resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation." Id. at 421-422. The frivolity ofaplaintiffs claims is reviewed "by asking whether the case was so lacking in merit that is was groundless, rather than whether the claim was ultimately successful." United States v. MiSSissippi, 921 F.2d 604, 609 (5th Cir. 1991). The Fifth Circuit has found the Christian burg standard to be equally applicable to claims for attorney's fees brought by a prevailing
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Case 5:04-cv-00873-XR Document 80 Filed 08/21/2006 Page 3 of 7
defendant in an ADA case. No Barriers, Inc. v. Brinker Chili's Tex., Inc., 262 FJd 496, 498 (5th Cir. 2001).
Sarfaty suffers from bipolar disorder, which the ADA recognizes as a disability with the capability ofimpairing major life activities. Docket no. 65, at lO~ee also 42 U.S.C. § 12102(2)(A). Consequently, when afflicted with uncontrolled depression, Sarfaty was unable to substantially perform normal life functions, even requiring hospitalization. Docket no. 65, at 5. Sarfaty sought medical leave based on her condition and provided Mothers Work with evidence of her diagnosed condition. Docket no. 65, at 5 & 12. Sarfaty's requested leave coincided with the busy holiday retail season. Mothers Work proceeded to terminate Sarfaty after her medical leave commenced. Docket no. 65, at 3. The extent of Mothers Work's knowledge of Sarfaty's disability and whether the company regarded her as disabled was unknown prior to the EEOC filing this case because Mothers Work failed to explain its reasons for terminating Sarfaty during the EEOC's administrative investigation. Resp., at Appx. B, Ex. 4. Based on these facts, it was conceivable for the EEOC to conclude Sarfaty was terminated in retaliation for taking medical leave or upon discovery that she had a disability that required her absence during the busiest retail season of the fiscal year.
In reviewing the EEOC's claims, the Court cannot conclude that the case was groundless or frivolous. While Mothers Work is correct that the Court ultimately determined the EEOC had failed to establish aprima facie case ofdisability discrimination, the EEOC's case did have arguable merit at the onset oflitigation. Accordingly, Mothers Work's motion for attorney's fees is DENIED.
B. Costs. Federal Rule ofCivil Procedure 54(d)(l) allows the prevailing party in a civil suit to recover costs, other than attorney's fees, as authorized by 28 U.S.C. § 1920. Mothers Work moves for an
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Case 5:04-cv-00873-XR Document 80 Filed 08/21/2006 Page 4 of 7
award ofcosts totaling $24,349.44, including $145.00 for fees paid to the Clerk ofCourt, $60.00 for fees associated with serving a subpoena, $4,362.07 in court reporter fees, $360.00 for witness fees, $18,468.73 in other costs, and $953.64 in exemplification and copying costs. The EEOC opposes Mothers Work's requested costs on various grounds.
1. Clerk of Court fees. Mothers Work's $145.00 Clerk of Court fees are comprised of $120.00 in fees for good standing certificates and a $25.00 pro hac vice fee. Neither of these fees are recoverable under § 1920. See Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437,441-42 (1987) (explaining that the district court does not have the discretion pursuant to Rule 54(d) to award costs other than those specifically listed in § 1920); Romero v. United States, 865 F. Supp. 585, 594 (E.D. Mo. 1994) (finding that pro hoc vice fees are an expense of counsel and not a cost of litigation).
2. Fees for service of subpoena. Mothers Work claims it incurred a $60.00 fee for the service of a subpoena on December 5, 2005. This fee is allowable and will be taxed against the EEOC. Card v. State Farm Fire & Cas. Co., 126 F.R.D.658, 662 (N.D. Miss. 1989), aff'd, 902 F.2d 957 (5th Cir. 1990) ("The expense of serving subpoenas upon witnesses is a recoverable cost.").
3. Court reporter fees. Mothers Work claims it incurred $4,362.07 in court reporter fees. A review of the records submitted by Mothers Work, however, identifies only $4,186030 in court reporter fees. Court reporter fees are recoverable costs as long as there is a reasonable expectation that the deposition or hearing transcript may be used for trial preparation. See Stearns Airport Equip. Co. v. FMC Corp., 170 Fo3d 518, 536 (5th Cir. 1999). Mothers Work's court reporter fees are recoverable with the
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Case 5:04-cv-00873-XR Document 80 Filed 08/21/2006 Page 5 of 7
exception of fees associated with the second deposition ofPhillip Williams. The Court allowed the EEOC to redepose Williams with the express understanding that Mothers Work would bear the cost. Resp., at Appx. B, Ex. 7. Accordingly, Mothers Work's requested court reporter fees are reduced by $238.95, the amount associated with Williams' second deposition on February 9,2006.
4. Witnesses fees. Mothers Work claims it incurred $360.00 in witness fees. Although witness fees are generally recoverable under § 1920(4), there is no evidence that the witnesses identified by Mothers Work were actually deposed. Because Mothers Work has failed to demonstrate that these witness fees were actually incurred, the fees may not be taxed against the EEOC.
5. Other Costs. Mothers Work requests recovery of $18,468.73 in "other costs." Included in these "other costs" are: (1) Westlaw and Lexis online research fees ($9876.04); (2) telephone charges ($62.07); (3) facsimile charges ($124.65); (4) postage and courier fees ($252.59); (5) parking and transportation costs ($527.17); (6) airfare ($4992.83); (7) word processing fees ($147.60); (8) meals and lodging ($780.07); (9) internal messenger fee ($5.00); (10) video deposition fees ($555.00); (11) witness fee for Williams ($45.20); and (12) duplicating fees ($999.36). This Court finds Mothers Work's submitted "other costs" total $18,367.58.
Mothers Work is not entitled to recover as costs any expenses or fees related to online research, telephone and facsimile charges, postage, courier, word processing, and internal messenger services, parking and transportation, airfare, or meals and lodging. See Lewis v. Hurst Orthodontics, PA, 292 F. Supp. 2d 908,914 n.ll (W.D. Tex. 2003) (finding that on-line research, courier fees, overnight delivery charges, hotel expenses, transportation and parking, postage, and fax charges are
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Case 5:04-cv-00873-XR Document 80 Filed 08/21/2006 Page 6 of 7
representative of out ofpocket expenses and not as costs recoverable under the plain language of § 1920).
Costs associated with videotaped depositions are not necessary costs recoverable under § 1920. See Mota v. The Univ. o/Tex. Houston Health Sci. Ctr .,261 Fo3d 512, 529-30 (5th Cir. 2001) (finding an abuse ofthe trial court's discretion for awarding costs for avideotaped deposition); see also Westv. Nabors Drilling USA, Inc., 330 Fo3d 379, 396 (5th Cir. 2003) ("[V]ideographer fees are not recoverable as costs under § 1920."); Coats v. Penrod Drilling Corp., 5 Fo3d 877,891 (5th Cir. 1993) (disallowing recovery ofcosts for video technician fees incurred in taking depositions by videotaping). Mothers Work is not entitled to recover the $555.00 it incurred with regard to videotaped depositions.
The $45.20 witness fee Mothers Work allegedly incurred for Williams' second deposition is not recoverable. As previously noted, the Court ordered Mothers Work to be pay all costs associated with the EEOC's second deposition of Williams.
Mothers Work also seeks reimbursement for $999036 in expenses associated with duplicating services. The Court must initially determine if costs are necessary expenses. Coats v. Penrod Drilling Corp., 5 Fo3d 877,892 (5th Cir. 1993). To be necessary, the duplicating expenses must be sufficiently explained and linked to a need in the litigation. See Holmes v. Cessna Aircraft Co., 11 FJd 63, 64 (5th Cir. 1994) ("Before the district court can tax costs for photocopies, it must find that the copies for which costs are sought were necessarily obtained for use in the litigation. "). The Court finds Mothers Work's copying expenses, while sufficiently detailed, are duplicative of its request for fees for exemplification and copies ofpapers necessarily obtained for use in trial. Accordingly, Mothers Work's is not entitled to recover the $999036 duplicative copying expenses.
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Case 5:04-cv-00873-XR Document 80 Filed 08/21/2006 Page 7 of 7
6. Fees for exemplification and copies. Mothers Work also requests it be reimbursed $953.64 for fees associated with exemplification and copies of papers necessarily obtained for use in the trial. As discussed above~ Mothers Work provided sufficient evidence to support an award for duplication costs. Mothers Work is entitled to recover $953.64 for copying expenses necessarily obtained for use in the litigation. III. Conclusion For the reasons stated herein, Defendant Mothers Work~ Inc.' s motion for attorney's fees and court costs (docket no. 68) is GRANTED in part, and DENIED in part. Mothers Work is entitled to receive court costs totaling $4,960.99, including $60.00 for fees associated with the service of a subpoena, $3,947.35 for court reporter fees, and $953.64 for copying expenses. SIGNED this 18th day of August, 2006.
XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE
-7-

 
 E.E.O.C. v. Mothers Work, Inc., Not Reported in F.Supp.2d (2005)

2005 WL 465400 Only the Westlaw citation is currently available.
United States District Court, W.D. Texas, San Antonio Division.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
MOTHERS WORK, INC., Defendant.
No. Civ.A.SA04CA0873-XR. | Feb. 28, 2005.
Attorneys and Law Firms
Judith G. Taylor, Robert B. Harwin, David C. Rivela, San Antonio, TX, for Plaintiff.
Randolph P. Tower, Clemens & Spencer, for Defendant.
Opinion
ORDER
RODRIGUEZ, J.
*1 On this date the Court considered Defendant’s motion to set aside the entry of default (docket no. 6) and Plaintiff’s motion for default judgment (docket no. 7). Entry of default was entered against Defendant on January 3, 2005 by the United States District Clerk. On January 24, each party filed their present motions. The decision to set aside the entry of default is left to the discretion of the district court. Lacy v. Sitel Corp., 227 F.3d 290, 291-92 (5th Cir.2000). The standard for set asiding an entry of default is “good cause.” FED. R. CIV. P. 55(c). When determining whether good cause has been shown by the defendant, the Court looks to three factors: (1) whether the default was willful; (2) whether setting aside the default would prejudice the adversary; and (3) whether a meritorious defense is presented. Dierschke v. O’Cheskey, 975 F.2d 181, 183 (5th Cir.1992). Other factors may also considered, including whether “the defendant acted expeditiously to correct the default.” Id. at 184. Default judgment “should not be granted on the claim, without more, that the defendant had failed to meet a procedural time requirement.” Mason & Hanger-Silas Mason Co. v. Metal Trades Council, 726 F.2d 166, 168 (5th Cir.1984).
The failure of Defendant to answer, while ill-advised, was not willful. Defendant asserts that it believed the parties had agreed to extend the time for filing of the answer indefinitely while settlement discussions were ongoing.

Plaintiff disputes that there ever was such an agreement. In fact, Plaintiff disputes that there was much discussion at all between the parties. Both sides do agree that, when Defendant’s General Counsel was notified of the motion by Plaintiff for entry of default, Plaintiff’s attorney erroneously advised Defendant’s General Counsel that the Court had not acted upon the motion. At that time, however, default had already been entered. Defendant’s General Counsel was also apparently told Plaintiff intended to file a motion for default judgment on January 24, 2005. Defendant’s General Counsel thus believed that he had until January 24, 2005 to file its answer.
Defendant’s failure to file its answer within the twenty days after service of summons as required by Rule 12(a) was clearly in error. Parties may not agree to extend the deadline for a defendant to file its answer without approval by the Court pursuant to FED. R. CIV. P. 6(b). See Orange Theatre Corp. V. Rayhertstz Amusement Corp., 139 F.2d 871 (3rd Cir.1944). This is especially true as to agreements between the parties to extend the deadline indefinitely. Failure to file an answer within the required timeframe will result in the entry of default unless an extension has been ordered by the Court. However, the failure to file an answer under circumstances such as these, where it appears that the defendant has a genuine belief that the deadline for filing the answer has been extended by agreement, is likely to be excusable. There is no evidence that Defendant was “cho[osing] to play games” with the Court in failing to file its answer. As such, Defendant’s actions cannot be said to be willful.
*2 Nor is there prejudice to Plaintiff in setting aside the default. There is no prejudice where “the setting aside of the default has done no harm to the Plaintiff except to require it to prove its case .” Gen. Tel. Corp. v. Gen. Tel. Answering Serv., 277 F.2d 919, 921 (5th Cir.1960). The fact that Defendant’s answer was filed one month after it was due will not prejudice Plaintiff in attempting to find witnesses or relying on witnesses memories. In addition, Defendant has put forward a meritorious defense to Plaintiff’s claim which, if proven, would likely be dispositive-the legitimate, nondiscriminatory reason of fraud as justification for Plaintiff’s termination. Lacy, 227 F.3d at 294.
Defendant has satisfied the three factors the Court looks to in determining good cause to set aside an entry of default. Defendant’s motion to set aside the default, which the Court implied in the filing of Defendant’s answer subsequent to the entry of default, is GRANTED (docket no. 6). Because the entry of default has been set aside, Plaintiff’s motion for default judgment is DENIED (docket no. 7).
1

E.E.O.C. v. Mothers Work, Inc., Not Reported in F.Supp.2d (2005)
	  
2

 
 E.E.O.C. v. Mothers Work, Inc., Not Reported in F.Supp.2d (2006)

2006 WL 1280940 United States District Court,
W.D. Texas, San Antonio Division.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
MOTHERS WORK, INC., Defendant.
Civil Action No. SA-04-CA-0873-XR. | May 8, 2006.
Attorneys and Law Firms
David C. Rivela, Robert B. Harwin, Judith G. Taylor, EEOC, San Antonio District Office, San Antonio, TX, for Plaintiff.
Sarah E. Pontoski, Edward S. Mazurek, Morgan, Lewis & Bockius LLP, Philadelphia, PA, Randolph P. Tower, Clemens & Spencer, San Antonio, TX, for Defendant.
Opinion
ORDER
XAVIER RODRIGUEZ, District Judge.
*1 On this date, the Court considered Defendant’s motion for summary judgment (docket no. 45).
I. Background
The Equal Employment Opportunity Commission (EEOC) brings suit against Mothers Work, Inc. for disability discrimination. See Americans with Disabilities Act of 1990(ADA). Specifically, the EEOC alleges that Mothers Work discharged Monica Sarfaty from her position as a regional manager because she was disabled. Mothers Work argues that it is entitled to summary judgment because Sarfaty was not disabled as that term is defined under the ADA. Alternatively, it argues that it discharged Sarfaty for legitimate, non-discriminatory reasons and that the decision makers were not aware of Sarfaty’s condition at the time they decided to terminate her employment.
Sarfaty became employed with Mothers Work in October 1997. She was promoted to regional sales manager in September 1999. As a regional sales manager she was

responsible for 113 stores and eight district managers. In 2003, she assumed additional responsibilities which resulted in increased work-related travel. In July 2003, Sarfaty interviewed for a Director of Stores position in Mothers Work’s Pea in the Pod division.
On or about August 7, 2003, Sarfaty’s supervisor, Sharon Gottlieb, questioned Sarfaty regarding various expense reimbursements she submitted. On or about September 29, 2003, Sarfaty called in sick. Sometime prior to September 29, 2003, Sarfaty informed two of her subordinates, Mary Lisa Wise and Nicole Leddy, that she did not like working for Gottlieb, she had been interviewing for another job with other retail stores, and she intended to take a medical leave of absence that would coincide with the holiday season. Sometime in October 2003, Wise and Leddy informed Gottlieb of the above. In addition, Wise and Leddy complained to Gottlieb that Sarfaty was rude to her managers and had taken bath products purchased with company funds and intended as employee rewards.
On October 8, 2003, Sarfaty completed a disability claim form. In that form her physician diagnosed her as suffering from a major depressive disorder with extreme anxiety and panic attacks. The form contains contradictory information. In one paragraph the form states that Sarfaty has been suffering from this condition for several years. In another sentence the physician states that her symptoms first appeared on September 24, 2003. The physician opined that she believed that Sarfaty would be able to return to work on November 17, 2003.

On October 13, 2003, Mothers Work notified Sarfaty that her request for a leave of absence had been approved and that her 12-week Family and Medical Leave would expire on December 23, 2003.
While on medical leave, the company continued its investigation regarding possible reimbursement irregularities by Sarfaty, verbal abuse complaints lodged by Sarfaty’s subordinates, claims that Sarfaty interviewed for positions with other retail companies while on company time, and claims that Sarfaty sent disparaging emails about the company. Mothers Work contends that it attempted to contact Sarfaty on a number of occasions about its concerns, however, Sarfaty refused to return any of its telephone calls. After it concluded that Sarfaty was refusing to cooperate with their investigation, Mothers Work terminated Sarfaty’s employment either on October 171 or October 31, 2003 for job abandonment.

1

The actual date that Sarfaty was discharged is

uncertain. Mothers Work sent a letter dated October 17

by overnight mail to Sarfaty stating: “Having been

unable to reach you after several attempts, we are

forced to conclude that you have voluntarily abandoned

1

E.E.O.C. v. Mothers Work, Inc., Not Reported in F.Supp.2d (2006)

your position....” However, personnel records reflect an October 31 discharge date.

required to believe. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 152 (2000).

*2 In early 2004, Sarfaty applied for various managerial positions with other retailers. Sarfaty’s psychiatrist established a medication protocol for her and deemed that Sarfaty was able to return to work in April 2004. Sarfaty began working for Victoria’s Secret in April 2004 as a district manager. Sarfaty testified that with her medication regimen she is able to concentrate, focus on analyzing business statistics and sales figures, take care of herself, engage in correct eating habits, speak intelligently, and enjoy gardening and reading.
II. Summary Judgment Standard
A summary judgment movant must show by affidavit or other evidence that there is no genuine issue regarding any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). To establish that there is no genuine issue as to any material fact, the movant must either submit evidence that negates the existence of some material element of the nonmoving party’s claim or defense, or, if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidence in the record is insufficient to support an essential element of the nonmovant’s claim or defense. Lavespere v. Niagra Machine & Tool Works, Inc., 910 F.2d 167, 178 (5th Cir.1990), cert. denied, 510 U.S. 859 (1993). Once the movant carries its initial burden, the burden shifts to the nonmovant to show that summary judgment is inappropriate. See Fields v. City of South Houston, 922 F.2d 1183, 1187 (5th Cir.1991).
Summary judgment is required if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp., 477 U.S. at 322. In order for a court to conclude that there are no genuine issues of material fact, the court must be satisfied that no reasonable trier of fact could have found for the nonmovant, or, in other words, that the evidence favoring the nonmovant is insufficient to enable a reasonable jury to return a verdict for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 4 (1986). In making this determination, the court should review all the evidence in the record, giving credence to the evidence favoring the nonmovant as well as the “evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that evidence comes from disinterested witnesses” and disregarding the evidence favorable to the nonmovant that the jury is not

III. Analysis
A. Does Plaintiff suffer from a disability? A plaintiff makes a prima facie showing of ADA discrimination by establishing that she 1) is disabled or is regarded as disabled; 2) is qualified for the job; 3) was subjected to an adverse employment action on account of her disability; and 4) was replaced by or treated less favorably than non-disabled employees. McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 279-80 (5th Cir.2000).
*3 The EEOC argues that Sarfaty is disabled, because she is “substantially limited in the major life activities of interacting with others, thinking, caring for oneself, concentrating, sleeping, eating, as well as working, based on her diagnosed illness Bipolar Disorder, which was initially diagnosed as Severe Recurrent Major Depressive Disorder.”
There is evidence that from September 29, 2003 to April 2004, Sarfaty was unable to care for herself, required hospitalization, and was unable to work. Since April 2004, Sarfaty alleges that she sometimes spends an entire weekend in her pajamas because of lethargy, which she claims stems from her bipolar disorder. She further alleges that on occasion she has difficulty concentrating and that requires changing the dosage on her medications. She admits that she is able to perform her job, interact with her fellow employees and perform the reduced travel demands that she now faces. Sarfaty also admits that she has not requested any accommodations from her new employer regarding performance of her job-a job that she describes as very similar to the one performed at Mothers Work. Sarfaty admits that prior to giving notice of her request for FMLA leave, she never requested any accommodations from Mothers Work.
The essence of the EEOC’s claim is that Mothers Work was aware of Sarfaty’s condition in October 2003, when Sarfaty notified the company’s benefits manager, Donna Dougherty. As a result of that notification, the company was aware that Sarfaty was diagnosed as suffering from major depression and thus was precluded, as a matter of law, from discharging Sarfaty.
Nowhere in the EEOC’s complaint does it argue that Mothers Work regarded (or perceived) Sarfaty as disabled.2 In addition, although the EEOC argues strenuously that Mothers Work has a history of retaliating against employees who seek a medical leave of absence, the EEOC does not bring a claim for retaliation under
2

E.E.O.C. v. Mothers Work, Inc., Not Reported in F.Supp.2d (2006)

either the ADA or the FMLA.

2

Despite the absence of any “regarded as” allegation, the

EEOC argues that a fact issue exists on this claim. Pl.’s

Resp., at 16. Mothers Work responds to this issue in its

reply brief and apparently is trying this issue by

consent. Def.’s Reply, at 12. Accordingly, the Court

will address the claim in paragraph III. D. of this order.

“A plaintiff cannot survive summary judgment by showing that an impairment like his own could substantially limit a major life activity of another person or in his own future; rather, he must show that his impairment has actually and substantially limited the major life activity on which he relies.” Waldrip v. General Elec. Co., 325 F.3d 652, 655 (5th Cir.2003). The effects of an impairment, even some serious ones, may not rise to a substantial limit. Id. at 656. “[N]either the Supreme Court nor [the Fifth Circuit] has recognized the concept of a per se disability under the ADA, no matter how serious the impairment; the plaintiff still must adduce evidence of an impairment that has actually and substantially limited the major life activity on which he relies.” Id.
This Court agrees with Defendant’s arguments and finds that Plaintiff has not rebutted Defendant’s summary judgment evidence with significant probative evidence to raise a genuine issue of material fact regarding whether Sarfaty’s impairments or condition substantially limits her major life activities. In addition, any impairment suffered by Sarfaty was corrected by the medication protocol established for her. “Plaintiff’s assertion that [she] fits a textbook definition of bipolar disorder as well as suffers from some of the common symptoms ... is insufficient. ‘The determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual.’ Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 164 (5th Cir.1996). Plaintiff has failed to adduce evidence that, when taken in a light most favorable to [her], shows that [her] bipolar disorder has substantially limited one or more major life activities.” Curl v. United Supermarkets, Ltd., 2005 WL 221227 (N.D.Tex.2005). See also Collins v. Prudential Inv. & Retirement Services, 119 Fed. Appx. 371 (3d Cir.2005)(“It is clear that ‘[m]erely having an impairment does not make one disabled for purposes of the ADA.’ “[W]hether a person has a disability under the ADA is an individualized inquiry.’ An ADA plaintiff ‘need[s] to demonstrate that the impairment limits a major life activity.’.... A person whose physical or mental impairment is corrected by medication or other measures does not have an impairment that presently ‘substantially limits’ a major life activity. To be sure, a person whose physical or mental impairment is corrected by mitigating measures still has an impairment, but if the impairment is

corrected it does not ‘substantially limi[t]’ a major life activity.” Accordingly, the court found that ADHD/ADD impairment corrected with medication is not a disability under the ADA.); Krause v. Merck-Medco Rx Services of Texas LLC, 198 F.3d 241 (5th Cir.1999)(plaintiff’s bipolar disorder did not substantially limit a major life activity); Kronner v. McDowell & Assocs., Inc., 2005 WL 3478358 (E.D.Mich.2005)(bipolar disorder did not substantially limit plaintiff’s activities); Price v. Facility Management Group, Inc., 403 F.Supp.2d 1246 (N.D.Ga.2005)(same); Velez v. Janssen Ortho LLC, 389 F.Supp.2d 253 (D. Puerto Rico 2005)(same); Olynyk v. CRA Occupational Health, Inc., 2005 WL 1459547 (N.D.Ohio 2005)(same); Berardi v. Delaware River Port Authority, 2005 WL 1366526 (D.N.J.2005)(“Because the record shows that Berardi has been able to work without restriction after receiving treatment, and because the record contains no evidence that Berardi’s depression and diabetes affected any of his major life activities other than work, a reasonable jury could not find that Berardi has a record of substantial limitation in a major life activity.”).
B. EEOC’s position. *4 The EEOC argues that Sarfaty is disabled because her physician opined that from October 2 through November 17, 2003 she required psychiatric care. That evidence, however, only shows that she was incapacitated for a definite period of time. See Winters v. Pasadena Ind. Sch. Dist., 124 Fed. Appx. 822 (5th Cir.2005)(“Specifically, Winters asserts that the fact that she went on medical leave for depression and was hospitalized in a mental institution during this time is evidence that she has a record of disability. Simply being hospitalized does not establish a record of a mental disability. The ADA requires an individualized inquiry beyond the mere existence of a hospital stay.... To accept [the proposition that a hospital stay establishes that an impairment substantially limits major life activities] would work a presumption that any condition requiring temporary hospitalization is disabling-a presumption that runs counter to the very goal of the ADA.”) (citations omitted).
The EEOC also argues that Sarfaty will continue to suffer from her bipolar disorder for the unforeseeable future. When Sarfaty was discharged from the psychiatric hospital on November 12, 2003, she was advised to continue medication management and obtain depression support group therapy on a weekly basis. The EEOC also argues that Sarfaty continues to be substantially limited in the following major life activities: interacting with others, thinking, concentrating, caring for oneself, eating, sleeping and working. Sarfaty’s own affidavit, however, establishes that she believed she could return to work at Mothers Work in December 2003. Further, the mere fact that Sarfaty states that she has been taking psychiatric medications since 2002 does not establish that she is per
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E.E.O.C. v. Mothers Work, Inc., Not Reported in F.Supp.2d (2006)

se disabled. The EEOC provides no evidence that Sarfaty’s ingestion of psychiatric medications prevents her from successfully performing her current job at Victoria’s Secret. Indeed, Sarfaty’s testimony contradicts the EEOC’s position.
Further, Sarfaty’s statements that she is obsessed with sales numbers, gets frustrated with employees if her sales numbers are lower than desired, experiences occasional memory lapses, has on occasion had difficulty speaking before co-workers and has a limited social life does not evidence a substantially limitation in the major life activity of interacting with others. See Jacobs v. Georgia-Pacific West Inc., 144 Fed. Appx. 608 (9th Cir.2005)(Mere trouble getting along with coworkers is not sufficient to show substantial limitation on major life activity of interacting with others under ADA); Rohan v. Networks Presentations LLC, 375 F.3d 266 (4th Cir.2004)(same).
Sarfaty’s statements that on occasions she becomes obsessed with french fries, candy or chocolate or that on other occasions she loses her appetite and has to force herself to eat does not evidence a substantial limitation in the major life activity of eating. See Waldrip v. General Elec. Co., 325 F.3d 652 (5th Cir.2003)(Plaintiff produced no evidence that chronic pancreatitis “substantially limits” the major life activity of eating. “The substantial-limit requirement is the linchpin of § 12102(2)(A). Without it, the ADA would cover any minor impairment that might tangentially affect major life activities such as breathing, eating, and walking. For this reason, an impairment must not just limit or affect, but must substantially limit a major life activity.”).
*5 Likewise, the EEOC presents no evidence to support the claim that Sarfaty is substantially limited in the major life activity of sleeping. Although the EEOC makes references to problems sleeping in 2003, no evidence was tendered of any such problems post-2003. See Hollon v. Louisiana Pacific Corp., 2005 WL 1398711 (E.D.Tex .2005)(“Even construing sleeping as a major life activity, the evidence simply does not support Mr. Hollon’s contention that his sleeping is substantially limited. The only evidence he presents is his own testimony that no matter how much he sleeps, he is always tired; that he never feels rested, and he has to nap.... At the same time, Mr. Hollon acknowledged that he can engage in regular activities, such as driving a car, cooking, dressing and functioning “like a normal person.” ... Plaintiff simply has not shown that there is any issue of material fact with regard to the life activity of sleeping. By his own testimony he is able to carry on daily life. Despite his condition and the alleged difficulties with his sleep, he engages in “normal” activities and has been able to work for several employers both before and after Louisiana Pacific. The Court therefore cannot conclude that his ability to sleep is so

severely and significantly restricted that it rises to the level of “substantially limited” as defined by law.).

Of greater concern is Sarfaty’s allegation that she suffers, and continues to suffer from panic attacks, even with her new medication regimen. During these panic attacks, Sarfaty feels that she loses her composure and wants to avoid contact with others. She testifies that she experiences these attacks at least once per week. She states that the panic attacks affect her work, her relationships with people, and her ability “to get around in the world.” Sarfaty, however, fails to explain her contradictory deposition testimony that she is successfully employed in a mid-level management position in the demanding retail industry.

Further, the EEOC presents no evidence to support the claim that Sarfaty is substantially limited in the major life activities of thinking, concentrating, or caring for oneself.

The Court recognizes that bipolar disorder is a mental

impairment under the ADA. Further, the Court agrees that

Sarfaty’s condition is chronic. The question, however, is

whether Sarfaty’s continuing impairment remains a

disability as that term is defined by the ADA. Chronic,

episodic conditions could possibly impact “how well a

person performs an activity as compared with the rest of

the population.” Parker v. City of Williamsport, 406

F.Supp.2d 534 (M.D.Pa.2005)(recognizing that a chronic,

episodic condition could qualify as a disability under the

ADA, but finding that plaintiff’s depression, anxiety

disorder and panic attacks did not qualify). However, as

in Parker, the condition expressed here, controlled by

medication, allows Sarfaty to resume her managerial work.

Given the facts in this case, the EEOC has not adduced

sufficient evidence so that a reasonable factfinder could

find that Sarfaty has a persistent serious condition that

qualifies as a disability under the ADA. See Jacques v.

DiMarzio, Inc., 386 F.3d 192 (2nd Cir.2004)(affirming

summary judgment regarding bipolar claim); Kourianos v.

Smith’s Food & Drug Centers, Inc., 65 Fed. Appx. 238

(10th Cir.2003)(affirming summary judgment regarding

depression and anxiety claims); Huge v. General Motors

Corp., 62 Fed. Appx. 77 (6th Cir.2003)(depression did

not qualify as an ADA disability); Boshaw v. Spartan

Stores,

Inc.,

2005

WL

3277986

(W.D.Mich.2005)(depression, obsessive compulsive

disorder and panic attacks did not qualify); Kramer v.

Hickey-Freeman, Inc., 142 F.Supp.2d 555

(S.D.N.Y.2001)(bipolar disorder did not substantially

limit him in major life activity of working); Horwitz v. L

& J.G. Stickley, Inc., 122 F.Supp.2d 350

(N.D.N.Y.2000)(employee’s brief hospitalization for

bipolar disorder and six weeks of psychiatric center care

was insufficient to constitute record of disability).

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E.E.O.C. v. Mothers Work, Inc., Not Reported in F.Supp.2d (2006)

C. Defendant’s articulated non-discriminatory reasons for discharge. *6 Alternatively, Mothers Work argues that it had a legitimate, non-discriminatory reason for discharging Sarfaty, namely job abandonment after she failed to respond to its telephone messages. As stated above, the ADA claim fails because Sarfaty’s condition was temporary, corrected by medication, and Plaintiff fails to present evidence that the condition affects any major life activities. However, in the event the Court has erred in reaching that decision, we shall proceed to address Defendant’s alternative arguments.
Mothers Work advances three arguments. First, it believed, based on information supplied from Sarfaty’s subordinates, that Sarfaty intended to leave her employment. Second, despite the fact that it granted a leave of absence to Sarfaty it had the right to pursue the investigation it began prior to her calling in sick. Third, the decision makers involved in the termination decision were not aware of Sarfaty’s medical condition.
As to it’s first argument, a fact issue exists in this regard. Despite other employee statements that Sarfaty was intending to quit, Sarfaty has testified that she intended to return to her former position when medically able. As to the second argument, Mothers Work was entitled to continue its investigation during Sarfaty’s leave, however, given that it approved a leave of absence until December 23, 2003, it’s discharge of Sarfaty on October 17 or October 31 raises suspicion. However, the reality here is that no claim of ADA or FMLA retaliation has been alleged in this case. As to Defendant’s third argument-that neither Gottlieb, Neil Cohen, or Craig Swartz was aware of the extent of Sarfaty’s medical condition-this argument requires a more detailed discussion.
The EEOC argues that Sarfaty’s application for disability benefits provided notice to Mothers Work of her medical condition. On or about October 8, 2003, Sarfaty transmitted her disability claim form to the company’s benefits manager. The form indicated that Sarfaty became disabled on September 25, 2003. The form also indicated that she was receiving outpatient hospital treatment and that she was being treated by a psychiatrist and psychologist. Her physician noted that she was suffering from “major depression, severe, recurrent.” The physician noted that she expected Sarfaty to be able to return to work on November 17, 2003.
The benefits manager, Donna Dougherty, testified that the company approved Sarfaty for FMLA leave and that she did not contest Sarfaty’s disability claim with their disability insurance carrier. Accordingly, at the time it discharged Sarfaty, Mothers Work was aware that Sarfaty had been hospitalized, required continuing treatment, was suffering from major depression, but was expected to recuperate and return to work in December. The EEOC

fails to present any evidence that at the time of her discharge, Mothers Work was aware that Sarfaty suffered from any bipolar condition.
D. The EEOC fails to produce evidence that Mothers Work regarded Sarfaty as disabled. *7 There are two apparent ways in which a person may be regarded as having a physical or mental impairment that substantially limits one or more major life activities: an employer mistakenly believes that a person has a physical or mental impairment that substantially limits one or more major life activities, or the employer mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities. Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999). However, the EEOC has failed to adduce any evidence to support a reasonable finding that Mothers Work regarded Sarfaty as disabled. The evidence submitted would only permit the finding that Mothers Work viewed Sarfaty as having undergone psychiatric treatment and that she was expected to be medically released to return to work in November 2003. The EEOC’s argument that Mothers Work did not contest Sarfaty’s long-term disability claim is evidence that it considered Sarfaty disabled is somewhat novel, but unpersuasive. A similar claim was advanced, and rejected, in Gordon v. MCG Health, Inc., 301 F.Supp.2d 1333 (S.D.Ga.2003). In Gordon, a staffing director called the plaintiff “disabled,” and told her that she was “a liability” and should look into getting long term disability insurance. The court noted that referring to the plaintiff as “disabled” and suggesting she look into getting disability insurance is not synonymous with regarding the plaintiff as substantially limited in one or more major life activities. Id. at 1342. “Further, courts have held that a plaintiff’s receipt of disability leave or disability insurance was insufficient to show that an impairment substantially limited a major life activity, or that the plaintiff had a record of a disability. Therefore, it is reasonable to conclude that a supervisor’s suggestion that an employee seek disability insurance also fails to show that the employer regarded a plaintiff as disabled.” Id. (citations omitted). Mothers Work did not contest Sarfaty’s long-term disability claim because it believed Sarfaty was unable to “do anything that was related to her position with the company.” That statement is not synonymous with regarding her as substantially limited in one or more major life activities.
Conclusion
The EEOC has failed to adduce evidence that, when taken in a light most favorable to it, shows that Sarfaty’s bipolar disorder has substantially limited one or more major life
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activities. Alternatively, the EEOC fails to present any evidence that at the time of her discharge, Mothers Work was aware that Sarfaty suffered from any bi-polar condition. Finally, the EEOC has failed to adduce any evidence to support a reasonable finding that Mothers Work regarded Sarfaty as disabled. Defendant’s motion for summary judgment (docket no. 45) is GRANTED.

Parallel Citations
17 A.D. Cases 1806, 32 NDLR P 193
	  

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U.S. District Court [LIVE] Western District of Texas (San Antonio) CIVIL DOCKET FOR CASE #: 5:04-cv-00873-XR

CLOSED, PMA

Equal Employment v. Mothers Work, Inc. Assigned to: Honorable Xavier Rodriguez Demand: $0 Case in other court: USCA, 06-50840
Fifth Circuit Court of Appeals, 06-50840 Fifth Circuit Court of Appeals, 06-51149 USCA, 06-51149 Cause: 42:1983 Civil Rights Act

Date Filed: 09/28/2004 Date Terminated: 05/08/2006 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by David C. Rivela EEOC San Antonio District Office 5410 Fredericksburg Rd. Suite 200 San Antonio, TX 78229 (210) 281-7619 Email: david.rivela@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judith G. Taylor U.S. EEOC San Antonio District Office 5410 Fredricksburg Rd. Suite 200 San Antonio, TX 78229-3555 (210) 281-7637 Fax: 210/281-7669 Email: judith.taylor@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert B. Harwin Equal Employment Opportunity Commission San Antonio District Office 5410 Fredericksburg Road Suite 200 San Antonio, TX 78229-3555 (210) 281-7643 Fax: (210) 281-7669

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V. Defendant Mothers Work, Inc.

Email: robert.harwin@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Edward S. Mazurek Morgan, Lewis & Bockius, LLP 1701 Market Street Philadelphia, PA 19103-2921 (215) 963-5019 Fax: 215/963-5001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randolph P. Tower Clemens & Spencer 112 East Pecan St. Suite 1300 San Antonio, TX 78205 (210) 227-7121 Fax: 210/227-0732 Email: towerr@clemens-spencer.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sarah E. Pontoski Morgan, Lewis & Bockius LLP 1701 Market Street Philadelphia, PA 19103-2921 (215) 963-5019 Fax: 215/963-5001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed
09/28/2004 09/28/2004
09/28/2004 09/28/2004 09/28/2004 11/18/2004

#

Docket Text

Case assigned to Judge Xavier Rodriguez (ep) (Entered: 09/28/2004) If ordered by the court, all referrals will be assigned to Magistrate Judge Mathy (ep) (Entered: 09/28/2004) 1 Complaint filed. (Pages: 5) (ep) (Entered: 09/29/2004) 2 Demand for jury trial by Equal Employment (ep) (Entered: 09/29/2004) summons not issued (ep) (Entered: 09/29/2004) Summons issued for Mothers Work, Inc. (ep) (Entered: 11/22/2004)

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12/13/2004 01/03/2005 01/03/2005 01/24/2005 01/24/2005 01/24/2005 01/25/2005 01/26/2005
02/07/2005
02/08/2005 02/28/2005
03/09/2005
03/18/2005 03/24/2005 03/24/2005 04/05/2005

3 Return of service executed as to Mothers Work, Inc. on 11/30/04 (tm) (Entered: 12/14/2004)
4 Motion by Equal Employment for clerk to enter default as to Mothers Work, Inc. (tm) (Entered: 01/04/2005)
5 Clerk's entry of default as to Mothers Work, Inc. granting motion for clerk to enter default as to Mothers Work, Inc. [4-1] (tm) (Entered: 01/04/2005)
6 Answer by Mothers Work, Inc. (tm) (Entered: 01/24/2005)
7 Motion by Equal Employment for default judgment against Mothers Work, Inc. (tm) (Entered: 01/25/2005)
8 Appendix for motion for default judgment against Mothers Work, Inc. [7-1] by Equal Employment (sj) (Entered: 01/25/2005)
9 Appendix for motion for default judgment against Mothers Work, Inc. [7-1] by Equal Employment (tm) (Entered: 01/26/2005)
10 Order directing defendant to show cause within 10 days why the Clerk's entry of default should be set aside signed by Judge Xavier Rodriguez (tm) (Entered: 01/27/2005)
11 Memorandum of law by Mothers Work, Inc. in opposition to motion for default judgment against Mothers Work, Inc. [7-1] and showing cause why default should be set aside (tm) (Entered: 02/08/2005)
12 Reply by Equal Employment to response in opposition to motion for default judgment against Mothers Work, Inc. [7-1] (tm) (Entered: 02/09/2005)
13 Order GRANTING defendant's motion to set aside the default, which the Court implied in the filing of defendant's answer. Court denies motion for default judgment against Mothers Work, Inc. [7-1] signed by Judge Xavier Rodriguez (tm) (Entered: 03/01/2005)
14 Order and Advisory: parties are to submit a proposed scheduling order by 4/15/05 and whether or not they consent to a Magistrate Judge jurisdiction within 30 days signed by Judge Xavier Rodriguez (tm) (Entered: 03/10/2005)
15 Non-consent to proceed before a U.S. Magistrate by Equal Employment (tm) (Entered: 03/21/2005)
16 Joint recommendations for scheduling order by Equal Employment, Mothers Work, Inc. (tm) (Entered: 03/25/2005)
17 Report of parties' rule 26(f) joint discovery/case management plan by Equal Employment, Mothers Work, Inc. (tm) (Entered: 03/25/2005)
18 Scheduling order setting: Alternate Dispute Resolution Report due by 5/2/05; Joining of parties, amending of pleadings on 6/8/05; Discovery cutoff 12/16/05; Deadline for filing of all dispositive motions 1/17/06; Pretrial conference of attorneys by 9:30 3/9/06; Jury Selection set for 9:30 3/20/06; Jury trial set for 9:30 3/20/06; Pretrial order to be submitted on or before 2/27/06 signed by Judge Xavier Rodriguez (tm) (Entered: 04/06/2005)

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05/02/2005 05/02/2005 08/16/2005 08/26/2005
09/07/2005 09/07/2005 09/08/2005 09/09/2005 09/09/2005 09/09/2005 09/12/2005 09/20/2005 09/21/2005 10/04/2005 10/14/2005
10/14/2005 10/26/2005 10/27/2005 10/27/2005

19 Alternate Dispute Resolution Report filed by Mothers Work, Inc., Party(s) do not agree to Alternate Dispute Resolution (tm) (Entered: 05/03/2005)
20 Alternate Dispute Resolution Report filed by Equal Employment, Party(s) agree to Alternate Dispute Resolution (tm) (Entered: 05/03/2005)
21 Agreed Protective Order signed by Judge Xavier Rodriguez (tm) (Entered: 08/17/2005)
22 Motion by Equal Employment for leave to file motion to compel discovery out of page limits (motion to compel and memorandum in support receive stamped) (ct) (Entered: 08/29/2005)
23 Order granting motion for leave to file motion to compel discovery out of page limits [22-1] signed by Judge Xavier Rodriguez (tm) (Entered: 09/08/2005)
24 Motion by Equal Employment with memorandum in support to compel discovery (tm) (Entered: 09/08/2005)
25 Combined Witness, Exhibit and Expert List by Equal Employment (tm) (Entered: 09/09/2005)
26 Order referring motion : referred motion to compel discovery [24-1] to Judge Pamela A. Mathy signed by Judge Xavier Rodriguez (tm) (Entered: 09/12/2005)
27 Motion by Mothers Work, Inc. for (Edward S. Mazurek) to appear pro hac vice (tm) (Entered: 09/12/2005)
(Court only) Added for Mothers Work, Inc. attorney Edward S. Mazurek (tm) (Entered: 09/12/2005)
28 Order granting motion for (Edward S. Mazurek) to appear pro hac vice [27-1] signed by Judge Xavier Rodriguez (tm) (Entered: 09/13/2005)
29 Response (Memorandum of Law) by Mothers Work, Inc. in opposition to motion to compel discovery [24-1] (ga) (Entered: 09/21/2005)
30 Response by Equal Employment to Defendant's response in opposition to motin to compel discovery [29-1] (ga) (Entered: 09/22/2005)
31 Advisory to the court filed by Mothers Work, Inc. (tm) (Entered: 10/05/2005)
32 Order granting in part, denying in part motion to compel discovery [24-1] It is also ORDERED that this case is RETURNED to the District Court. signed by Judge Pamela A. Mathy (rg) (Entered: 10/17/2005)
(Court only) Motion no longer referred: : motion to compel discovery [24-1] (rg) (Entered: 10/17/2005)
Telephonic status conference held. (tm) Modified on 10/28/2005 (Entered: 10/28/2005)
33 Advisory to the Court and motion by Equal Employment to continue deposition of Mr. Phillip Williams (tm) (Entered: 10/28/2005)
34 Minutes of proceedings for Status Conference conducted on 10/26/05 by Judge Rodriguez. Court Reporter: Roden (tm) (Entered: 10/28/2005)

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11/01/2005 11/07/2005 11/10/2005 11/10/2005 11/14/2005
11/16/2005 11/22/2005 11/23/2005
12/15/2005
12/21/2005
01/12/2006
01/13/2006 01/17/2006 01/17/2006 01/17/2006 01/19/2006
01/19/2006

35 Memorandum by Equal Employment in support of motion to continue deposition of Mr. Phillip Williams [33-1] (ga) (Entered: 11/02/2005)
36 Motion by Mothers Work, Inc. for (Sarah E. Pontoski) to appear pro hac vice (ga) (Entered: 11/08/2005)
(Court only) Added for Mothers Work, Inc. attorney Sarah E. Pontoski (tm) (Entered: 11/14/2005)
37 Order granting motion for (Sarah E. Pontoski) to appear pro hac vice [36-1] signed by Judge Xavier Rodriguez (tm) (Entered: 11/14/2005)
38 Brief by Mothers Work, Inc. in opposition to the EEOC's advisory to the court and motion to take second day of deposition of Mr. Phillip Williams [33-1] (tm) (Entered: 11/15/2005)
39 Transcript filed for dates of 10/26/05 (Proceedings Transcribed: Telephonic Hearing) (Court Reporter: Myers) (tm) (Entered: 11/17/2005)
Pro hac vice fee paid by Sarah E. Pontoski with Amount: $ 25.00 Receipt # 198335 (pjr) (Entered: 11/22/2005)
40 Reply by Equal Employment to defendant Mothers Work, Inc.'s brief in opposition to the EEOC's advisory to the court and motion to take second day of deposition of Phillip Williams [38-1] (ga) (Entered: 11/28/2005)
41 Order setting hearing motion to continue deposition of Mr. Phillip Williams [33-1] for 1:30 1/6/06 signed by Judge Xavier Rodriguez (tm) (Entered: 12/16/2005)
42 Order resetting hearing on motion to continue deposition of Mr. Phillip Williams [33-1] for 2:30 1/12/06 signed by Judge Xavier Rodriguez (tm) (Entered: 12/22/2005)
Motion hearing held for Plaintiff's motion to take second deposition of Phillip Williams [33-1]. Counsel may file any case law/exhibits/memorandums regarding this issue no later than 1/20/06 (tm) (Entered: 01/17/2006)
43 Minutes of proceedings for Motion hearing conducted on 1/12/06 by Judge Rodriguez. Court Reporter: Myers (tm) (Entered: 01/17/2006)
44 Transcript filed for dates of 1/12/06 (Proceedings Transcribed: Pretrial Hearing) (Court Reporter: Karl Myers (rg) (Entered: 01/18/2006)
45 Motion by Mothers Work, Inc. for summary judgment (rg) (Entered: 01/18/2006)
46 Appendix for motion for summary judgment [45-1] by Mothers Work, Inc. (rg) (Entered: 01/18/2006)
47 Unopposed Motion by Equal Employment for continuance in response to defendant Mothers Work, Inc.'s motion for summary judgment (rg) (Entered: 01/20/2006)
48 Unopposed Motion by Equal Employment for leave to file supplemental brief in support of the EEOC's motion to take second day of deposition of Phillip Williams in excess of the page limit (rg) (Entered: 01/20/2006)

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01/19/2006 01/23/2006
01/23/2006
01/23/2006 01/26/2006
01/26/2006
01/26/2006 01/26/2006 01/30/2006 02/09/2006 02/22/2006 03/01/2006 03/01/2006 03/02/2006 03/03/2006

Received EEOC's supplemental brief (rg) (Entered: 01/20/2006)
49 Order granting motion for leave to file supplemental brief in support of the EEOC's motion to take second day of deposition of Phillip Williams in excess of the page limit [48-1] signed by Judge Xavier Rodriguez (rg) (Entered: 01/24/2006)
50 Advisory to the court regarding EEOC motion to take second day of deposition of Phillip Williams and motion for continuance in response to defendant Mothers Work, Inc.'s motion for summary judgment filed by Mothers Work, Inc. (rg) Modified on 01/24/2006 (Entered: 01/24/2006)
51 Supplemental Memorandum by Equal Employment in support of motion to continue deposition of Mr. Phillip Williams [33-1] (rg) (Entered: 01/25/2006)
Tele-conference (in chambers) regarding defendant's advisory to the Court regarding EEOC's motion to take second day of desposition of Phillip Williams and motion for continuance held. Plaintiff's motion to continue deposition is granted. Plaintiff's motion for continuance in response to defendant's motion for summary judgment is granted. Plaintiff's response is due two weeks from receipt of transcript of desposition of Mr. Williams. The Court continues the pretrial conference and jury selection/trial for 4-6 months. No further discovery will be granted. The 3/9/06 pretrial cnf. and 3/20/06 jury selection/trial settings are vacated. (rg) (Entered: 01/31/2006)
Oral order by Judge Xavier Rodriguez granting motion for continuance in response to defendant Mothers Work, Inc.'s motion for summary judgment [47-1], granting motion to continue deposition of Mr. Phillip Williams [33-1] (rg) (Entered: 01/31/2006)
(Court only) Terminated pretrial conferencd; jury selection and trial deadlines per telephonic conference. (rg) (Entered: 01/31/2006)
52 Minutes of proceedings for Telephone Cnf. conducted on 1/26/06 by Judge Rodriguez. Court Reporter: Karl Myers (rg) (Entered: 01/31/2006)
53 ORDER set pretrial conference for 9:30 8/17/06 , set Jury trial for 9:30 8/28/06 , set Jury selection for 9:30 8/28/06 signed by Judge Xavier Rodriguez (rg) (Entered: 01/31/2006)
54 Transcript filed for dates of 1/25/06 (Proceedings Transcribed: Telephonic hearing) (Court Reporter: Myers) (tm) (Entered: 02/10/2006)
55 Notice to the court filed by Equal Employment (tm) (Entered: 02/23/2006)
56 Unopposed Motion by Equal Employment for leave to file response in excess of the page limit (rg) (Entered: 03/02/2006)
Received plaintiff's response (rg) (Entered: 03/02/2006)
57 Advisory to the court filed by Equal Employment (rg) (Entered: 03/03/2006)
58 Order granting motion for leave to file response in excess of the page limit [56-1] signed by Judge Xavier Rodriguez (rg) (Entered: 03/06/2006)

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03/03/2006 03/15/2006 03/17/2006 03/20/2006
03/20/2006 04/03/2006 05/08/2006 05/08/2006 05/22/2006 05/22/2006 05/22/2006 06/02/2006
06/05/2006 06/05/2006 06/16/2006 06/19/2006

59 Response by Equal Employment to defendant's motion for summary judgment [45-1] (rg) (Entered: 03/06/2006)
60 Unopposed Motion by Mothers Work, Inc. to enlarge page limitation for its reply brief (Reply Brief and Exhibits in further support of defendant's motion for summary judgment marked RECEIVED) (rg1) (Entered: 03/16/2006)
61 Motion by Equal Employment to take leave to substitute exhibits C,D,G,I,J,M and N to plaintiff's response to defendants motion for summary judgment (rg) (Entered: 03/20/2006)
62 Order granting motion to enlarge page limitation for its reply brief (Reply Brief and Exhibits in further support of defendant's motion for summary judgment marked RECEIVED) [60-1] signed by Judge Xavier Rodriguez (rg) (Entered: 03/21/2006)
63 Reply Brief by Mothers Work, Inc. in support of motion for summary judgment [45-1] (rg) (Entered: 03/21/2006)
64 Order granting motion to take leave to substitute exhibits C,D,G,I,J,M and N to plaintiff's response to defendants motion for summary judgment [61-1] signed by Judge Xavier Rodriguez (rf) (Entered: 04/04/2006)
65 ORDER granting 45 Defendant's Motion for Summary Judgment Signed by Judge Xavier Rodriguez. (rg, ) (Entered: 05/09/2006)
66 CLERK'S JUDGMENT in favor of Mothers Work, Inc. against EEOC (rg, ) (Entered: 05/09/2006)
67 Certificate of Non-Concurrence by Mothers Work, Inc. (rg1, ) (Entered: 05/24/2006)
68 MOTION for Attorney Fees by Mothers Work, Inc.. (tm, ) (Entered: 05/24/2006)
69 Memorandum in Support of 68 MOTION for Attorney Fees by Mothers Work, Inc.. (tm, ) (Entered: 05/24/2006)
70 MOTION for Leave to Enlarge Page Limitation for its Response to Defendant's Motion for Attorneys' Fees and Costs. by Equal Employment Opportunity Commission. (Attachments: # 1 Response# 2 exhibits# 3 exhibits)(rf) (Entered: 06/05/2006)
71 ORDER granting 70 Plaintiff's Motion for Leave to File Excess Pages Signed by Judge Xavier Rodriguez. (rg, ) (Entered: 06/06/2006)
72 RESPONSE to Motion re 68 MOTION for Attorney Fees , filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit # 2 Exhibit)(rg, ) (Entered: 06/06/2006)
73 Unopposed MOTION for Extension of Time to File Response to defendant's motion for attorney's fees and costs by Mothers Work, Inc. (Attachments: # 1 Reply to plaintiff's response)(rg, ) (Entered: 06/19/2006)
74 ORDER granting 73 Unopposed Motion for Extension of Time to File Reply brief Signed by Judge Xavier Rodriguez. (rg, ) (Entered: 06/20/2006)

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06/19/2006 06/20/2006
06/21/2006
07/06/2006 07/06/2006 07/25/2006
08/21/2006
08/30/2006 08/31/2006 08/31/2006 09/06/2006
09/07/2006 09/08/2006 09/18/2006
09/19/2006 09/20/2006

75 REPLY to Response to Motion re 68 MOTION for Attorney Fees , filed by Mothers Work, Inc. (Attachments: # 1 Exhibit)(rg, ) (Entered: 06/21/2006)
76 OPPOSED MOTION for Leave to File surreply to defendant's motion for attorney's fees and costs by Equal Employment Opportunity Commission. (rg, ) (Entered: 06/21/2006)
77 ORDER denying 76 Plaintiff's Motion for Leave to File a surreply to defendant's motion for attorney's fees and costs. Signed by Judge Xavier Rodriguez. (rg, ) (Entered: 06/22/2006)
78 NOTICE OF APPEAL by Equal Employment Opportunity Commission. (bn, ) (Entered: 07/12/2006)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 78 Notice of Appeal (bn, ) (Entered: 07/12/2006)
79 USCA Appeal Info Sheet received. USCA Case Number USCA case number 06-50840 for 78 Notice of Appeal filed by Equal Employment Opportunity Commission,. (bn, ) (Entered: 07/25/2006)
80 ORDER granting in part and denying in part 68 Motion for Attorney Fees Mothers Work is entitled to receive court costs totaling $4,960.99, including $60.00 for fees associated with the service of a subpoena, $3,947.35 for court reporter fees, and $953.64 for copying expenses. Signed by Judge Xavier Rodriguez. (rg, ) (Entered: 08/22/2006)
81 NOTICE OF APPEAL by Mothers Work, Inc.. (bn, ) (Entered: 08/31/2006)
82 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 81 Notice of Appeal (bn, ) (Entered: 08/31/2006)
83 UNOPPOSED MOTION to Stay the Court's Order awarding costs by Equal Employment Opportunity Commission. (rg, ) (Entered: 08/31/2006)
84 ORDER granting 83 Plaintiff's Unopposed Motion to Stay the Court's order awarding costs to defendant. Signed by Judge Xavier Rodriguez. (rg, ) (Entered: 09/06/2006)
85 USCA Appeal Fees received $ 455 receipt number 202848 re 81 Notice of Appeal filed by Mothers Work, Inc., (bn, ) (Entered: 09/07/2006)
86 Remark : No hearings- no transcript required (bn, ) (Entered: 09/11/2006)
87 Certified Original Record-E-Mailed on 9/18/06 to US Court of Appeals re 81 Notice of Appeal (Appeal record held for pickup per 5th circuit instructions) (bn, ) (Entered: 09/18/2006)
Notification from USCA. USCA case number 06-51149 for 81 Notice of Appeal filed by Mothers Work, Inc.,. (bn, ) (Entered: 09/19/2006)
88 USCA Appeal Info Sheet received. USCA Case Number USCA case number 06-51149 for 81 Notice of Appeal filed by Mothers Work, Inc.,. (lp, ) (Entered: 09/20/2006)

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10/04/2006 10/13/2006 08/16/2007 08/16/2007

89 Certified and Transmitted Record on Appeal to G. Coleman, U.S. EEOC - Office of General Counsel, Washington D.C., Via FEDEX on 10/5/06 re 78 Notice of Appeal (bn, ) (Entered: 10/05/2006)
90 Acknowledgement Receipt for Record on Appeal by G. Colman, U.S. EEOC Office of General Counsel. re 89 Appeal Record Transmitted (bn, ) (Entered: 10/17/2006)
91 Certified copy of USCA JUDGMENT/MANDATE Affirming 81 Notice of Appeal filed by Mothers Work, Inc., 78 Notice of Appeal filed by Equal Employment Opportunity Commission. (rg) (Entered: 08/16/2007)
92 Appeal Record Returned/Disposed by USCA: Terminated appeal: Transmission of Notice of Appeal and Docket Sheet to USCA, 82 Transmission of Notice of Appeal and Docket Sheet to USCA, 91 USCA Judgment/Mandate, 90 Receipt for Transmitted Appeal Record, 88 USCA Info Sheet, 89 Appeal Record Transmitted, 85 USCA Appeal Fees, 79 USCA Info Sheet, USCA Info Sheet, 87 Appeal Record Sent to USCA. 13 Volumes returned. (rg) (Entered: 08/16/2007)

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 E.E.O.C. v. Mother’s Work Inc., 233 Fed.Appx. 395 (2007)-

233 Fed.Appx. 395 This case was not selected for publication in the
Federal Reporter. Not for Publication in West’s Federal Reporter See
Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Fifth Circuit Rules 28.7, 47.5.3, 47.5.4. (Find CTA5 Rule 28 and Find CTA5
Rule 47) United States Court of Appeals,
Fifth Circuit.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant v.
MOTHER’S WORK INC., Defendant-Appellee. Equal Employment Opportunity Commission,
Plaintiff-Appellee v.
Mother’s Work Inc., Defendant-Appellant.
Nos. 06-50840, 06-51149. | June 21, 2007.

Attorneys and Law Firms

David C. Rivela, Equal Employment Opportunity Commission, San Antonio, TX, for Plaintiff-Appellant.

*396 Randolph P. Tower, Clemens & Spencer, San Antonio, TX, Edward S. Mazurek, Morgan, Lewis & Bockius, Philadelphia, PA, for Defendant-Appellee.

Appeals from the United States District Court for the Western District of Texas, San Antonio, (04-CV-873).

Before JOLLY, STEWART, and PRADO, Circuit Judges.

Opinion PER CURIAM:*

*

Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not

precedent except under the limited circumstances set

forth in 5TH CIR. R. 47.5.4.

These appeals arise from a disability discrimination suit brought by the Equal Employment Opportunity Commission (“EEOC”) against Mothers Work, Inc. (“Mothers Work”), in which the EEOC alleges that Mothers Work terminated Monica Sarfaty (“Sarfaty”) from her position as a regional manager because of her bipolar disorder, in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. The district court granted summary judgment for Mothers

Work, concluding that the EEOC failed to raise a genuine issue of material fact that Sarfaty’s bipolar disorder substantially limited a major life activity. In addition, the district court found that any impairment suffered by Sarfaty was corrected by the medication protocol established for her by her doctors. Alternatively, the district court held that the EEOC failed to present any evidence that at the time of Sarfaty’s discharge, Mothers Work was aware that Sarfaty suffered from bipolar disorder. In a subsequent order, the district court denied Mothers Work’s motion for attorneys’ fees and most of the requested costs.
The EEOC now appeals the district court’s adverse summary judgment ruling, arguing that a reasonable jury could find (1) that Sarfaty is disabled within the meaning of the ADA, (2) that Sarfaty’s disability was a motivating factor in Mothers Work’s decision to terminate her, and (3) that Mothers Work’s stated reason for terminating Sarfaty was a pretext for discrimination. Mothers Work cross-appeals the district court’s order on attorneys’ fees and costs. These actions have been consolidated on appeal, and this court has jurisdiction pursuant to 28 U.S.C. § 1291.
We review the district court’s grant of summary judgment de novo, applying the same standard as the district court. See Cutrera v. Bd. of Supervisors of La. State Univ., 429 F.3d 108, 110 (5th Cir.2005). We review the district court’s decision on attorneys’ fees and costs for an abuse of discretion. See Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 527, 529 (5th Cir.2001).
Having reviewed the briefs, the district court’s orders, and the pertinent portions of the record, we find no error of law or fact warranting reversal. Essentially for the reasons stated by the district court, we agree that the EEOC has failed to create a genuine issue of material fact that Sarfaty is a qualified individual with a disability within the meaning of the ADA because there is no evidence that she is substantially limited in one or more major life activities. Because the EEOC has failed to establish a prima facie case of discrimination under the ADA, we affirm the district court’s grant of summary judgment in favor of Mothers Work. See Mason v. United Air Lines, Inc., 274 F.3d 314, 316 (5th Cir.2001).
In addition, we affirm the district court’s order denying attorneys’ fees and certain costs to Mothers Work. For the reasons given by the district court, we cannot conclude *397 that the EEOC’s action was “frivolous, unreasonable, or groundless,” entitling the prevailing defendant to attorneys’ fees. See No Barriers, Inc. v. Brinker Chili’s Tex., Inc., 262 F.3d 496, 498 (5th Cir.2001). We also find no abuse of discretion in the district court’s refusal to award costs associated with
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E.E.O.C. v. Mother’s Work Inc., 233 Fed.Appx. 395 (2007)-

video depositions, the second deposition of Phillip Williams, and other miscellaneous items, as these costs are either not authorized under 28 U.S.C. § 1920 or, in the case of the Williams deposition, precluded by a previous agreement between the district court and Mothers Work. See 28 U.S.C. § 1920; see also Mota, 261 F.3d at 529-30.
Accordingly, for the reasons stated above, we AFFIRM the judgment of the district court.

AFFIRMED.
Parallel Citations 2007 WL 1814212 (C.A.5 (Tex.))
	  

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