Case 1:03-cv-02796-RBK-AMD Document 23 Filed 04/26/2004 Page 1 of 29

IN THE UNITED STATES DISTRICT COURT FOR THE, . DISTRICT OF NEW JERSEY

Renee C. Vidal (RCV-7259 ) Tara M. Mosier (TAM-4343) H. Thomas Hunt, III (HTH-4343) CUru:TON CAPLAN, P.c. 950B Chester Ave. Delran, New Jersey 08075 (856) 824-1001 If ax-(856) 824-1008 Attorneys for Eileen Horner, Danelle Horner, Dayna Horner,
Lei hanne He 'nolds and Paula Bobo EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

CIVIL ACTION NO. 1:03CV02796(RBK)

v.

FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., and LITTLE BROWNIE PROPERTIES, INC.
Defendants,

and

EILEEN HORNER, DANELLE HORNER (n/k/a Danelle Morgan), DAYNA HORNER, LEIGH ANNE REYNOLDS and PAULA BOBO
P lain tiffs,

AMENDED COMPLAINT AND JURY DEMAND

v.

FOODCRAFTERS DISTRIBUTING COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIE PROPERTIES, INC., STRATEGIC OUTSOURCING, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO; ABC Corporations 2-\0 being fictitious business entities yet unidentified; JANE/JOHN DOES 1-10 being fictitious individuals not yet identified.
Defendants.

Case 1:03-cv-02796-RBK-AMD Document 23 Filed 04/26/2004 Page 2 of 29
Plaintiffs, Eileen Honler, Danelle Homer, nJk/a Danelle Morgan, Dayna Homer, Leighanne Reynolds and Paula Bobo, by their altomeys Cureton Caplan, P.C., hereby file this complaint alleging unequal pay, sexual harassment, discrimination, retaliation and related causes of action against Foodcrafters Distributing Company ("Foodcrafters"), Tropical Plant Carners, Inc. ("TPC"), Little Brown Properties, TnL ("LBP"), Transystoms, Inc. ("Transystems"), Strategic Outsourcing, Inc. ("SOl") and ABC Corporations being fictitious busincss cntities yet unidentified (Foodc.rafters, TPC, LBP and Transyslems are collectively refcrred to as the "Entity Defendants") and against John P. Brown, Robert Roche, Peler Wood, Al Avila, Michael Alfano and Jane/Jobn Does 1-10, being fictitious individuals not yet identified as aidcrs and abettors of the discriminatory actions of the Entity Defendants and SOT; Plainliff Dayna Horner's discrimination claim also constitutes a violation ofthe Equal Pay Act. All oflhe Plaintiffs allege that they were subjected to a sexually and racially hostile work environment which included repeated crude, indecent sexual comments, sex jokes, sexual advances and unwanted touching, racially charged comments and thai defendants created such a sexually and racially hostile work environment that they were forced to resign.
PARTIES 1. Plaintiff Eileen Homer is a female individual who resides at 303 North Arthur Drive, Edgcwatcr Park, New Jersey 08010. She was employed by F(lodcrafters, TPC, alid/or LBP, as well as SOl as ali OJ1iee/Customer Service Manager hetween Septemher 2000 through March 2002. 2. Plaintiff Danelle Homer nJk/a Danelle Morgan ("Danelle Homer") is a female individual who resides at 303 North Arthur Drive, Edgewater Park, New Jersey 08010. She was employed by Foodcrai'ters, TPC, and/or LBP as well as SOT in the ClL~I()mer service office between October 2000 through April 2002.
2

Case 1:03-cv-02796-RBK-AMD Document 23 Filed 04/26/2004 Page 3 of 29
3. Plaintill' Dayna Homer is a female individual who resides at 303 N(lrth Arthur Drive, Edgewater Park, New Jersey 08010. She was employed by Fooderafters, TPC, and/or LBP as well as SOT in the customer service office between September 2001 through April 2002.
4. Plaintiff Lcighanne Reynolds ("Reynolds") is a female individual who resides at 1611 Albert Street, Hainesport, New Jersey, 08036. She was employed by Fooderafters, TPC, and/or LBP as well as SOT in the customer service orlice hetween February 2002 through May 2002.
5. Plaintiff Paula Boho ("Bobo") is a female individual who resides at 171 Washington Street, Mount Holly, New .Tersey 08060. She was employed by Fooderaftcrs, TPC, and/or LI3P as wel1 as SOl in the customer service o111ee between February 2001 through May 2002.
6. Defendant Fooderal1ers Distributing Company ("Foodcrallers") is a for-profit company with its principal place of business located at 1350 Sheeler Road, Apopka, Florida 32703.
7. Defendant Foodcrafter~ also has offices and operates a location at 8192 National Highway, Pennsauken, New Jersey 08110.
8. Defendant Tropical Plant Carriers, Tnc. ("IPC") is a for-profit company with its principal place of business located at 1350 Sheeler Road, Apopka, Florida 32703.
9. Defendant Little Brown Properties, Inc. ("LBP") is a for-profit company with its principal place of business is located at 1350 Sheeler Road, Apopka, Florida 32703.
10. Defendant Tr'l11systems, Tnc. ("Transystems") is a for-profit company that is a suhsidiary of LBP and a related entity to IPC with a principal place of business located at 1350 Sheeler Road, Apopka, Florida 32703.
11. Defendant Strategic Outsourcing, Inc. ("SOl") is a for-profit company with a principal place of business .Iocated at 5260 Parkway Plaza Blvd., Suite 140, Charlotte, North Carolinil 28217. SOT, pursuant to a wri(ten contract dated September 24, 2000 with one Or more of the Entity Defendants, acted as the employer/lessor ofthe employees of the Entity Defendants.
3

Case 1:03-cv-02796-RBK-AMD Document 23 Filed 04/26/2004 Page 4 of 29
12. SOl is an employer within the meaning of the New Jersey Law Against Discrimination, N..T.S.A. 10:5·1 et seq. and Title Vll of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, as amended by 42 U.S.C. § 1981a.
13_ Defendants ABC Corporations 2 through 10 are yet unidentified business entities that arc responsible lor thc discrimination against plaintiffs and/or the sexually and racially hostile work cnvironment to which plaintifis were submitted.
14. Defendant Robert Roche ("Roche") is a shareholder and the Presidcnt of Foodcrafters and the general manager of TPC and was fonnerly the vice-president of sales for TPC and maintains a business ofi1ce at 1350 Sheeler Road, Apopka, Florida.
15. Defendant Peter Wood ("Wood") is a shareholder and vice-president of Foodcrafters, the vice-president and chief financial ofi1cer of LBP, the chief executive ofi1cer of Transystems and maintains a business ofi1ce at 1350 Sheeler Road, A]lopka, Florida.
16. Defendant John P. Brown ("Brown") is a shareholder and assistant secretary or Foodcrafters, the vice-presidcnt and chief executive ofi1ccr of LBP and maintains a business ofi1ec at 1350 Sheeler Road, Apopka, Florida.
17. Defendant Michael Alfano ("Alra11O") was the General Manager of Fooderafters and maintains a business oft1ce at 1350 Sheeler Road, Apopka, Florida.
18, Defendant Al Avila ("Avila") was thc Teffilinal Manager of Foodcrafters' Pennsauken location ,md maintained a business office at 8192 National Highway, Pennsauken, New Jersey 08110.
I<), Defendants Jane/John Docs 1·10 arc Hctitious namcs of individuals who are liable for the discriminatory conduct and hostile work environment that remain yet u11identified.
4

Case 1:03-cv-02796-RBK-AMD Document 23 Filed 04/26/2004 Page 5 of 29
20, Foodcrafters, TPC, Transystems and LBP, collectively operate as a single integrated
enterprise, Accordingly, the Entity Defendants are all liahle for the aels of discrimination
committed hy anyone of them,
21, Entity Defendants have common ownership and common management as evidenced by
the fact that many ofthe same individuals comprise the management tcam of each company:
a, John E, Brown is the Chief Executive Officer of Foodcraitcrs, the President and sale owner ofLBP, and the secretary and treasurer ofTPC,
b. John p, Brown, the son of John B. Brown, is one of three owners of Foodcrafiers, He is currently the assistant secretary of Fooderafiers, In 2000, he was the President ofLBP, in 2001 and currently he is the Vice-President and chief executive officer ofthat company, He is also an officer ofTrm1systems.
c, Diane Ludwig, the daughter of Jolm E. Brown, is President or LBP and President of TPC.
d. Linda Roche, also a daughter of John E. Brown, is the secretary and treasurer of LBP, She is also the comptroller of Lillle Brownie Brokcrs, another related entity. She is also an officer of Transystems.
c, Robert Roche, Linda Roche's husband, is ali OWl1cr and the President of Foodcrafiers and the General Manager ofTPC. He was also the vice president of sales ofTPCuntil1999.
f Peter Wood is a shareholder and Vice President of Foodcrafters, the Vice President and Chief Financial Officer of LBP and the Chief Financial Officer or Transyslems,
22. Entity Derendants' operations are intelTelated:
(I, Entity Defendants' share a common address at 1350 Sheeler Road, Apopka, Florida 32703,
b, Entity Defendants share common management.
c, Entity Defendants are commonly owned.
d, The paychecks issued to (he employees of Fooderallers arc labeled "F(lodcrafiers Distributing Co/TPC, 1350 Sheeler Road, Apopka, Florida 32703."
e, Entity Defendants have one centralized human relations department located at its Apopka, Florida location,
5

Case 1:03-cv-02796-RBK-AMD Document 23 Filed 04/26/2004 Page 6 of 29
f. For all human relations issues, the employees a( Fooderallers' New Jersey offices are directed to contact Entity Defendants' Apopka, Florida location. 23. As Office/Customer Service Manager at Foodcrafters' Pennsauken l(lca(ion, Eileen Horner was the direct supervisor of eaeh of the other Plaintiffs as weU as a number of other employees fi'om time to time. 24. Eileen Homer's immediate supervisor was Alfano; Homer was required ((l report directly to Alfano. 25. Eileen Homer also reported to and was required to work closely with Avila. 26. Throughout the course of Plaintiffs' employment with Fooderafters, contrary to law, Defendants had no employee handbook or discrimination policy. Nor did any of the Defendants provide Plaintiffs any information or training related to harassment or discrimination. Thus, Defendants arc strictly liable lor any sexual harassment occurring in their workplace, and have no defense to Plaintiffs' claims.
JURISDICTION AND VENUE
27. Jurisdiction of this Court is invokcd pursuant to 28 U.S.C. §§ 1331,1343 and 1367,29 u.s.C. § 206(d)(l) and 42 U.S.C. §§2000e-5(f)(I) and (3) and supplemental jurisdictio11 over Plaintiffs statc law claims pursuant (0 28 U.S.C. §1367. Jurisdiction is also invoked pursuant to 28 U.S.c. § 1332(a), as the Plaintiffs and Defendants are citizens of different states and the am()llnt ill controversy for each Plaintiff exceeds $75,000.00, exclusive of interest and costs.
28. AU jurisdictional prerequisites to the Hling of a claim pursuant to Title V11 of the Civil Rights Aet of 1964 havc been met, to wit:
29. Plaintiffs filed a ChaTge of Discrimination alleging hostile environment hased On sex, and discrimination based upon sex.
6

Case 1:03-cv-02796-RBK-AMD Document 23 Filed 04/26/2004 Page 7 of 29
30. On March 26, 2003, the EEOC issued a tinding of probable cause and tiled an action against Foodcrafters, TPC and LBP on June 11, 2003 in the United States District Court for the District of New Jersey.
31. Venue lies in this Court pursuant to 28 U.S.c. § l39l(b) ,md 42 U.S.C. §2000e-5(/)(1) and (3).
INTRODUCTORY STATEMENT :'\2. Defendants employed each Plaintiff in tbe cllstoliler service office at Foodcraf'ters' Pennsauken operation. Defendants subjected each Plaintiff while employed there to a discriminatory elwironmcnt because of their sex. With respect to one or more of the Plaintiffs, Defendants paid lower wages than male employees, required Plaintiffs to work longer hours, gave them less favorable methods of compensation, and gave them less desirah Ie positions and
duties. In addition, Defendants condoned and tolerated a workplace plagued with unwauted
sexual advances and touching, aud derogatory, degrading and intimidating sexual comments aud jokes. One high-ranking officer of Entity Delendants went so far as to describe Defendants as "just a man's company." Defend:mts also subjected Plaintiffs to a racially hostile envirollment rampant with epithets designed to degrade ami intimidate because of race, color and/or national origin. This continuous pattern of discriminatory treatmcnt to which Plaintiffs were subjected forced Eileel111omer, Danelle Homer, Dayna Horner, Reynolds and 13obo to resign.
GENERAL ALLEGATIONS 33. Plaintiffs incorporate the averments of all preceding allegations of this Complaint as though fully set forth herein.
7

Case 1:03-cv-02796-RBK-AMD Document 23 Filed 04/26/2004 Page 8 of 29
Defendants Created a Sexually IIostile Work Environment 34. As TemJinal Manager of Foodcrafters, Avila held a supervisory position at Foodcrafters' Pennsauken location. Avila engaged in unlawJhl conduct which lcd directly to the creation of a sexually charged and hostile working environment for Plaintiffs. Examples of Avjla's sexually charged and sexually offensive conduct and commcnts include:
a. Regularly commenting Ihal Reynolds was wearing tight jeans and staring at her buttocks as she walked by him. On one occasion, he put the telephone down in the middle of a conversation to stare at her buttocks.
b. Telling Danelle Horner that she looked sexy in shorts and that it was going to be a long hot summer if she kept wearing shorts.
c. Frequently making sexually charged comments aboul women in general. d. Subjecting the Plaintiffs and other employees to his sexually offensive conduct by
repeatedly making sexual advances and physically touching another female employee, including staring at her breasts, commenling on her hreasts and caressing her shoulders. c. Regularly commenting that women uSlllllly deserve gelling smacked around because they have a way of pushing men's buttons and aJ1Uouncing that women needed to be kept in their place. On one occasion, a driver bad beaten and thrown urine on his girlfriend in the Foodcrafter's parking lot. Avila laughed at the situation, saying, thai the woman had go\\en a "golden shower," but "not the right way," that she prohahly deserved Ihe heating because "she was trash anyway," ami thai she probably beat herself up to blame her boyfrieJ1d.
8

Case 1:03-cv-02796-RBK-AMD Document 23 Filed 04/26/2004 Page 9 of 29
r, Criticizing Reynolds, referring to her as a "waste," a "dumb blonde," and a
"moron," He also told her that she "looked trashy" when discussing paperwork prepared the prinr day, g, Regularly commenting that women are only good for one thing - sex. h. Commcnting that because his wife was older than him and went to bed at 9:00 p.m., he had to release his tension with other womcn, often commenting that he did not "get it anymore" 35, The dock manager, Kcn Brandt ("Brandt"), also subjected each of the Plaintiff's to repeated unwelcome sexual comments and propositions. Examples of Brandt's sexist remarks and hostile behavior towards the Plaintiffs include: a. Repeatedly telling Eileen Homer that she looked sexy, (hat her jeans looked good, and that she had a great hody for a 45 year-old woman. h. Slaring at Ei\e(;lll Homer's bu(tocks while making sexually otIensive comments. c. Proudly telling Eileen Homer, in response to her inquiry about whether he ever spoke about non-sexual things, "no, I live for sex." He constantly talked about getting "laid" by both his wife and girlfriends. d. Propositioning Reynolds to go home with him, dance on the pool tablc lor him, and strip for him. e. Telling Reynolds and Bobo that if he had $200,00 in his pockct, he would give it all to Reynolds to see her dance. f. Repeatedly commenting on his sex life to the Plaintiffs and others. g. Telling Danelle Homer that he wanted Danelle to pull down hcr pants and sit on his face,
9

Case 1:03-cv-02796-RBK-AMD Document 23 Filed 04/26/2004 Page 10 of 29
h. Commenting to Dayna Homer after she made a c()mmenl Ihat she would "hit" Brandt if he continued bringing her additional work, "Ooh bahy, you're getting me aroused, don't make any promises you can't keep. Don'l leave me hangiJ1g like that." Dayna Homer was 16 years old at the time.
i. Telling Danelle and Dayna Homer that he did not care whether hugging them was sexual harassment, and hugged them both tightly, pressing his body into theirs. 36. William Walker, a dock worker, also contributed to the hostile work environment. On one occasion, he grabbed Dayna Homer, who was only 16 years old at the time, hugged her, kissed her hand, and told her that she looked good. 37. Upper management actively participated in the creation of a hostile work environment with inappropriate sex-based comments. Examples of sexually charged comments and conduct of management include:
a. AlJano telling a female co-worker that he would "talk to [her] in 28 days" becaLlse she was "on the same cycle as [his] wife."
h. Alfano repeatedly commenting to Danelle Homer and others that she needed breast implants and stating that he would start a collection to raise money for her to have the procedure.
c. AInmo caressing Danelle Horner's feet despite her protests for him to stop. d. Alfano making a sports bet with Danelle Homer, telling her (hat if he won, she
had (0 wear the jersey of the learn for whom he rooted -- and nothing else. c. Ammo responding to Danelle Horner's request lor a raise by telling her that she
could get anything she wanted if she slept with "JOrulllY" Brown, one of Defendants' owners, because he "liked his women."
10

Case 1:03-cv-02796-RBK-AMD Document 23 Filed 04/26/2004 Page 11 of 29
f. Failure of all upper management to set in place appropriate policies and procedures tor preventing or remedia(ing sexual harassment in the workplace, and failing (0 consider Plaintiffs' complaints of harassment.
3g. Defendants also engaged in discriminatory employment practices that created a hostile working environment. Examples of such conduct includes:
a. Avila instructing Eileen Homer that she was to hire female employees based Oll their breast size, hair color and I1gure.
h. Avila advising Eileen Homer (0 hire an attractive Italian woman with large breasts and large lips because the woman's large lips would be good for oral sex.
e. Hiring a woman with 110 trucking experience for an assistant dispatcher position hecause she had large hreasts and "made for great scenery."
39. Plaintiffs Danelle Horner, Dayna Horner, Boho and Reynolds regularly complained to Eileen Homer, Avila and Alfano about the unwanted sexual auvances and sex-based comments.
40. Eileen HOllwr regularly complained to Alfano about Avila's sexual advances and scxbased jokes and comments directed at Plaintiffs and towards his discriminatllry and degrading comments about women in general. Eileen Horner also complained to Avila and Alfano about the sexually charged conduct and comments of other male employees. Alfano generally responded by laughing or with statements such as "boys will be boys." He onen said nothing. Avila once responued thai because she was employed at a trucking company, she should accept the sexually charged atmosphere.
!I

Case 1:03-cv-02796-RBK-AMD Document 23 Filed 04/26/2004 Page 12 of 29
Defendants Discriminated Against Eileen Horner Based on Sex 41. Defendants required Eileen Homer to work longer homs than her male counterparts and paid her on less favorable tenns than her male counterparts. 42. Alfano consistently required Eileen Homer, a salaried manager, to work 50 or more hours per week without overtime pay. Yet, Defendants only required that a male salaried manager work less hours per week. Eileen Homer complained to Alfano about the disparity in working hours between herself and the male manager on several (lccasio1lS to no avail. 43. Eileen Homer then requested from Defendants that she be paid hourly. Defendants denied her request because she was a manager, which, according to Alfano, was a salaried position. 44. Defendants then paid another male manager at ali hourly ratc. 45. Eileen Homer complained to Alfano and Avila about her hours and pay in relation to these male managers. AI fano and Avila responded that it was not her concern and took no remedial a<;.\ion. Avila also responded that "this is a man's company," a statement that he repeatedly made to Eileen llorner. 46. An upper level female employee reiterated the phrase "this i.5 a man's company" and similar phrases to Eileen Horner, stating that she was treated differenlly (han her male colleagues "hecause Tdon't have a d--- between my legs. This is a man's company", "if you are a woman, you will always get blamed" and "you can't get anywhere in this company as a woman"
Defendants Discriminated Against Danelle HOMIer Based on Sex 47. Tn September 2001, Entity Defendants and SOT employed Danelle Horner as a part-time employee. Tn Novemher 2001, a full-time customer service position became available. Despite Danelltl HOnitlr's inlerest in the full-time position, Alfano told her that she could not apply for the position because her mother, Eileen Horner, was the customer service manager. Alfano took
12

Case 1:03-cv-02796-RBK-AMD Document 23 Filed 04/26/2004 Page 13 of 29
this position even though the company previously pennitted Danelle Homer to work as a fulltime customer representative from October 2000 through August 2001.
4R. At that time, there was 110 company policy regarding the hiring of family members as evidenced by the lact that other family members worked together for Defendants.
49. In December 200 I, a full-time dispatch position became available. Danelle Homer asked to apply for the position. Avila told ber that she could not apply because she was a woman and women are not "geographically inclined."
50. Immediately after, another female employee asked Avila if she could apply for the position. Avila told her that she could not have the position because she was a woman and he put his hand up saying "I a!llnot getting into this."
51. Danelle Homer complained to AHlmo, who agreed with Avila, and added that the drivcrs would not like taking orders from a woman.
52. Defendants hired a male (0 rill the full-time dispatch position. 53. When the mule who had been hired for the full-tinle dispatch position quit a few weeks later, Danelle Homer again asked Delendants if she could apply for the position; Defendant denied her the opportunity tor a second time, Del'endants hired another male for the position. 54. Danclle Horner complained to shareholders of the company, Robcrt Roche and Peter \Vood. Roche told Danelle Homer (hat he would train her for the position ifshe was willing to "cross the fence." Roche never trained Danelle Homer lor the position and no further investigation or action was taken.
OayDa Horner was Paid Less Thnn Similarly Situated Mnle Employees 55. Dayna Homer was hired by the entity defendants in 2001 as a part time customer service representative earning $7.00 pcr hour. 56. In March 2002, Dayna Homer received a pay raise to $8.25 per hour.
13

Case 1:03-cv-02796-RBK-AMD Document 23 Filed 04/26/2004 Page 14 of 29
57. Dayna Homer was told lhal beca\Lse she was a high school student, $8.25 was the highest hourly rate that Enlity Defendants would pay even though the established part-time rate was
$9.50 per hour.
58. The Entity Defendants also employed a male employee, Donald Kennedy, in the cu~t()mer service office part-time. Kennedy performed substantially the same work as Dayn.a Homer. Kennedy was also a high-school student. The Entity Defendants paid Kennedy $9.50 per hour from the commencement of his employment with the customer service office.
59. Dayna 110rner complained to Avila and Alfano about the disparity in pay. Avila ignored Dayna Homer's complaints on two separate occasions. Alfano responded (hat Kennedy's rate of pay was Ll11relaled to her rate of pay and changed the subject.
Defendants Discriminated and Created a Hostile Work Environment Based on Race, Color and/or National Origin
60. Defendants' employees and supervisors contanlinated the Foodcrafters' office with racially offensive jokes and comments. Defendants condoned this illegal behavior. Rxalnples of oCibnsive i.:ll1TImen(s based on race, color and/or national origin include:
a. Avila and Brandt repeatedly making race-based jokes in the presence of Reynolds, a Caucasian woman who has a son who is part African-Amcrican and part America.n- Indian alter discovering thc race/color of her son.
h. Avila and Brandt repeatedly stating that Reynolds would become romanlically involved only with black men.
i.:. Brandt c0111111enting that they needed to keep Re)'1101ds off the dock and away from an African American employcc because she would be salivating. Avila made similar comments.
14

Case 1:03-cv-02796-RBK-AMD Document 23 Filed 04/26/2004 Page 15 of 29
d. Brandt commenting "How do you stop a black man from raping a woman'! Throw him a basketball."
e. A driver asking for a female AIHean-Ameriean employee, by referring to her as the "hig assed black mama," and then commel1ting to Bobo that she had "a black woman's ass that would be good [or t:--ing doggie style" while making an obscene hand gesture to indicate sexual movements.
f. Avila commenting that "all of the black peoplc look alike, so you can just piece together any body parts," relerring to the Septemher 11,200'1 terrorist attacks.
g. Avila commenting that the September 11 tragedy was "no big loss" because mostly foreigners were killed and that the evcnt will teach "those foreigners" not to come over hcre.
h. Avila stating that the September 11 tragedy was a "good thing" because foreigners can1e to the United States and "wiped out their own people."
61. Eileen Horner and Reynolds complained about the racially offensive comments, but no remedial action was taken.
62. 111 addition to the racially charged comments, Defendants' employment practices contributed to the racially-charged work environment. Examples of race-based employmcnt practICes include:
a. Avila instructing Eileen Homer that she could not hire African-American women because.they "slink" and he did not want to work with "them" or train "them."
h. Avila refusing to hire an African-American woman even though she was qualified for a position. When Eileen Homer complained to Alfano ahout the situation, Alfano laughed and responded "he said that?"
15

Case 1:03-cv-02796-RBK-AMD Document 23 Filed 04/26/2004 Page 16 of 29
63. Prior to learning that Reynolds' son was part African-American, Avila doted over her. He offered her help with her work and assured her thai if she needed anything else, to let him know.
64. After learning of her son's race, Avila's treatment of and altitude towards Reynolds changed. Avila intentionally gave Reynolds wrong answers to her questions or refused to answer her questions altogether.
65. Avila told Eileen Homer that Reynolds was "dumher than dirt and to "shitcan" her. 66. When Eileen Homer questioned Avila about his statement, he simply laughed in response. Avila was unable to provide Eileen Homer with any specific complaint regarding Reynolds' work performance. 67. Eileen Homer complained to Alfano about Avila's racist altitude. Alfano responded that he did not realize tbat Avila was prejudiced.
COUNT I Hostile Work Environment Based on Sex in Violation of tbe New Jersex Law Against Discrimination: N.J. S.A. 10;5-1 et. seq. 68. Plaintiffs incorporate the avemlents of all preceding allegations of (bis Complaint as (hough fully set forth herein. 69. Defendants subjected each Plaintiff to a hostile work cnvironment plagued by otfensive and unwanted touching and derogatory, degrading and sexist remarks. 70. The cumulative effect of the repeated, crude, and indecent comments, coupled with the unwimted touching and sexual advances directcd at Plaintiffs were so severe and pervasive as to make reasonable womcn in the PlaintifTs' position believc that the conditions of employment were altered and the work cnvironment was hostile and/or abusive. 71, The work environment consisted of frequent sexually charged comments imd conduct, much of which was directed at Plaintiffs and caused a sexually hostile work ellvironment that
Hi

Case 1:03-cv-02796-RBK-AMD Document 23 Filed 04/26/2004 Page 17 of 29
was unreasonable and unhealthy for the Plaintiffs. PlaintiLTs were torced to resign from their employment hetween March 2002 through May 2002.
72. As a result of the aforesaid sexually hostile work environment and other discriminatory
conduct, Plaintiffs have suffered emotional distress, inconvenience, loss of cqjoymcnt of life and other emotional damages.
n. Defendants have responsihility for the discriminatory conduct that occurred in the
workplace. 74. Defendants knew or should have known about the discriminatory conduct, yet failed to
take prompt and cncetive remedial actions. 75. Delendants conduct was intentional and maliciolls and in wanton and willful disregard of
the rights of (lthers. 76. Defendants discriminated against Plaintiffs in the tenns and conditions of their
employment in violation of(he New Jersey Law Against Discrimination, N.J. S.A. lO:5-1 et. seq. WHEREFORE, Plaintiffs demand judgment against all Entity Defendants and SOl for lost
wageR and benefits, front pay, compensatory and punitive damages, plus costs, interest, a(tomey's and such other relief as the Court deems just and proper.
COUNT II Discrimination on thc Basis of Sex Against Eileen Horner in Viohttion of the New Jersey Law Against Iliscriminlltion, N.J. S.A. 10:5-1 et. seg. 77. Plaintiffs incorporate the avcnncnts or all preccding allegations of this Complaint as though fully set forth herein. 78. Defendants discriminated against Eileen Homer because arhor sex. 79. Defendants treated Eileen Homer less favorably in her terms and conditions of enJployment than similarly situated male employees by paying her on less favorahle terms and requiling her to work more hours.
17

Case 1:03-cv-02796-RBK-AMD Document 23 Filed 04/26/2004 Page 18 of 29
80. Defendants have responsibility for the discriminatory C011duct that occurred in the workplace.
81. Defendal1ts knew or should have known about the discriminatory conduct, yet failed to take prompt and ei1cctive remedial actions.
82. Defendants conduct was intentional and malicious and in wanton and willful disregard of the rights of others.
83. The disparate treatmcnt to whidl Defendants have subjected Eileen Homer is in violation of the New Jersey Law Against Discrimination, N.J. g.A. 10:5-1 eL seq.
WHEREFORE, Plaintiff, Eileen Homer, demands judgment against all Entity Defendants and SOT for lost wages and benefits, front pay, compensatory and punitivc damages, plus costs, interest, attomcy's fees and such other relief as the Court deems just and proper.
COUNTTTT Discrimination on the Basis of Sex Against Danelle l!orner in Violation of tile New .Jersey Law Against Discrimination, N.J. S.A. 10:5-1 et. seq. 84. Plaintiffs incorporate the avel1nenls of all preceding allegations of this Complaint as though fully set forth herein. 85. Defendants discriminated against Danelle Homer because of her sex. 86. Defendants treated Dandle Horner less favorably in the temlS and conditions of her employment by refusing to consider her qualifications for a position and filling the position with men. 87. Defendants have responsibility [or thc discriminatory conduct that occurred in the workplace. 88. Defendants kncw or should have known ahout the discriminatory conduct, yet (hiled to lake prompt and cilective remedial actions.
18

Case 1:03-cv-02796-RBK-AMD Document 23 Filed 04/26/2004 Page 19 of 29
S9. Defendants c(lndLlCt was intentional and malicious and in wanton and willful disregard of the rights of others.
90. The disparate treatment to which Defendants have subjected Danelle Horner is 111
violation of the New Jersey Law Against Discrimination, N.J. S.A. 10:5-1 et. seq.
WHEREl'-ORE, Plaintiff, Danelle Horner, demands judgment against all Entity Defendants and SOl for lost wages and benelits, front pay, compensatory and punitive damages, plus costs, interest, attorney's fees and sLlch other relief as the Court deems just and proper.
COUNT IV Discrimination on the Basis of Sex Against Dayna Horner ill Violation of thc New Jersey Law Against Discrimination, N.J. S.A. 10:5-1 et. seq. 91. Plaintiffs incorporate the avorments of all preceding allegations of this Complaint as though fully set forth herein. 92. Defendants discriminated against Dayna Horner on the haHis of sex. 93. Defendants treated Dayna Horner !css favorably in the lenns and conditions of employment in that Defendants paid Dayna Horm'f less favorably than similarly situated male employees. 94. Defendants have responsibility for the discriminatory conduct that occurred in the workplace. 95. Defendants knew or should have known about the discriminatory conduct, yet failed to take prompt and effective remedial actions. 96. Defendants conduct was intentional and malicious and in wanton and willful disregard of the rights of others. 97. The disparate treatment to which Defendants have subjected Dayna Homer is in violation of the New Jersey Law Against Discrimination, N.J. S.A. 10:5-1 et. seq.
19

Case 1:03-cv-02796-RBK-AMD Document 23 Filed 04/26/2004 Page 20 of 29

WHEREFORE, Plaintiff, Dayna Homer, demands judgment against all Entity Defendants

and SOT for lost wages and benetlts, front pay, c.onJpensalory and puniliv~ damages, plus costs,

interest, attorney's fees and such other relief as the Court deems just and proper.

COUNT V

Ho~tiIe Work Rnvirnnment Based on Race, Color, and/or National Origin as to Leighanne Revnolds in Violation of the New .Jersey Law Against
Discrimination, N.J. S.A. 10:5-1 et. seq.

98. Plaintiffs incorporate the averments of all preceding allegations of this Complaint as

though fully set forth herein.

99. Defendants subjected Reynolds to a hostile environment based on race, color, andlor

national (lligin.

100.

The cumulative effect of the discriminatory and hostile environment created and

condoned hy Defendants created a racially hostile work environment that was so severe and

pervasive as to make reasonable women in the Plaintitls' position believe that the conditions of

cmployment were altered and the working environment was hostile andlor abusive.

10 1.

The work envir0111nent consisted of frequ.ent racially charged cOlllments and

conduct, much of which was directed at PlaintiIT Reynolds and caused a racially hostile work

environment (hat was unreasonable and unhealthy for Plaintiff Reynolds. Plaintiff Reynolds was

forced to resign from her employment between March 2002 through May 2002.

102.

Defendan(s have responsibility for the discriminatory conduct that occurred in (he

workplace.

103.

Defendants knew or should havc known about the discriminatory conduct, yet

flli I~d to take prompt and effective remedial actions.

104.

Defendants discriminated against Plaintiffs in the temlS and conditions of their

employment.

20

Case 1:03-cv-02796-RBK-AMD Document 23 Filed 04/26/2004 Page 21 of 29

105.

Defendants conduct was intentional and malicious and in wanton and willful

disregard of the rights of others.

106.

The hostile work environment to which Defendants have subjected Reynolds is in

violation of the New Jersey Law Against Discrimination, N.J. S.A. 10:5-1 ct. seq.

WHEREFORE, Plaintiff, Reynolds, demands judgment against all Entity Defendants and

SOT for lost wages and benefits, front pay, compensatory and punitive damages, plus costs,

interest, attorney's fees and such other relief as tho Court deems just and proper.

COUNT VI

Discrimination on the Basis of Race, Color, and/or National Origin Against Leighanne Reynolds in Violation of the New Jersey Law Against Discrimination, N.J. S.A. 10:5-1 et.
seq.

107.

Plaintiffs incorporate the averments of all prcccding allegations of this Complaint

as though fully set forth herein,

108.

Defendants discriminated against Reynolds beeausc of race, color and/or national

origin.

109,

Defel1danls treated Reynolds less favorably in the terms and conditions of her

cmpIO)~llen( after discovering that her son was of African American and American Indian

descent by reprimanding her, refusi11g (0 answer her questions and treating her less favorahly

than other employees.

110.

Defendants have responsibility for thc discriminatory conduct that occurred in the

workplace.

11 J.

Defendants knew or should have known about thc discriminatory conduct, yet

nailed to lake prompt and effective remedial actions.

112.

Defendants conduct was intentional and malicious and in wanton and willful

disregard ofthe rights of others.

21

Case 1:03-cv-02796-RBK-AMD Document 23 Filed 04/26/2004 Page 22 of 29

113.

The disparate treatment to which Defendants have subjected Reynolds is in

violation of the New Jersey Law Against Discrimination, N.J. S.A. 10:5-1 et. seq.

WHEREFORE, Plaintin; Reynolds, demands judgment against all Entity Defendants and

SOl for lost wages and benefits, front pay, compensatory and punitive damages, plus costs,

interest, attorney's fees and such other relief as the Court deems just and proper.

COUNT VII

Constructive I>ischarge ill Violation ofthc New Jersey La~' Against Discrimination, N.J. S.A. 10;5-1 ct. seq.

114.

Plaintiffs incorporate the averments of all preceding allegations of this Complaint

as though fully sct forth herein.

115.

Defendants knowingly pemlitted an intimidating, hostile and offensive workplace.

116.

1110 continuous pattern of discriminatory treatment to which Defendants subjected

Plaintiffs was so intolerable that Eileen Homer, Danelle llorner, Dayua Homer, Reynolds and

Bobo were forced to resign.

117.

Defendants forced resignation of Plaintiffs is in violation of the New Jersey Law

Against Discrimination, N.J. S.A. 10:5-1 eL seq.

WHEREFORE, Plaintiffs demands judgment against all Entity Defendants and SOT for lost

wagcs and henefits, front pay, compensatory and punitive damages, plus costs, interest,

alt\l11ley's fees and such other relief as the Court dcems just and propcr.

22

Case 1:03-cv-02796-RBK-AMD Document 23 Filed 04/26/2004 Page 23 of 29

COUNTVIIl

Aiding and Abetting by Richard Roche, John P. Brown, Peter Wood, AI Avila and Michael Alfano in Violation of the New Jer§ey Law Against Discrimination,
N.J. S.A. 10:5-1 et. seq.

118.

Plaintiffs incorporate the avemlents of all preceding allegations of this Complaint

as though fully set forth herein.

119.

Defendants Roche, Brown, Wood, Avila and Alfano aided and abetted the entity

defendants in discriminating against Plaintiffs because of sex, race, color andlor national origin

and in the creation of a work environment that was hostile on the basis of sex, race, color and/or

national origin.

120.

Defendants Roche, Brown, Wood, Avila and Alfano knew or should have known

of the discriminatory environment that was permitted to exisl.

121.

Defendants Roche, Brown, Wood, Avila and Alfm10 knew or should havc known

aboLL( Plaintiffs complaints of discrimination and the hostile work environment, but failed to take

prompt, eHective remedial action.

122.

Defendants Avila and Alfano participated in direct acts of discrimination and

participated in the creation of a hostile \vork environment.

123.

Defendants Roche, Brown, Wood, Avila and Alfano subs(antially assisted the

entity defendants in discriminating against PlaintitIs and creating a hostile work environment.

124.

Defendants have responsibility for the discriminatory conduct (ha( occurred il1 the

workplace as aiders and abettors.

125.

Defendants conduct was intentional and malicious and in wanton and willful

disregard of the rights of others.

23

Case 1:03-cv-02796-RBK-AMD Document 23 Filed 04/26/2004 Page 24 of 29

126.

Defendants Roche, Brown, Wood, Avila and Alfano's conduct in aiding and

abetting the discriminatory conduct of the Entity Defendants is in violation of the New Jersey

Law Against Discrimination, N.J. S.A. 10:5·1 et. seq.

WHEREFORE, Plaintiffs demand judgment against Defendants Roche, Brown, Wood, Avila

and Alfano for lost wages and benefits, front pay, compensatory and punitive damages, plus

costs, interest, attorney's fees and such other relief as the Court deems just and proper.

COUNT IX

Violation of the Equal Pay Act. 29 U.S.C. §206(d)(l)

127.

Plaintift:~ incOlporate the avennents of all preceding allegations of this Complaint

as though lhlly set forth herein.

128.

Entity Defendants paid male employees more than Dayna Homer for substantially

equal work.

129.

Entity Defendants' conduct of paying Donald Kennedy the $9.50 per hour for

part-time empl()~llen( while refusing to do so for Da~la Homer is in violation of the Equal Pay

Act, 29 U.S.c. §206(d)(1).

WHEREliORE, Plaintift~ Dayna Horner, demands judgment against all Entity Detendants

and SOl for lost wages and benefits, and liquidated damages, plus costs, interest, attorney's fecs

and such other relief as the Court deems just and propcr.

COUNT X

Discrimination on the Basis of Sex in Violation of Title VII of the Civil Rights Act of 1964, as Amended

130.

Plaintiffs incorporate thc avcmlcnts of all prcceding allegations of this Complaint

as though I'ully set forth herein.

131.

As set fcnth above, Plaintiffs suffered severc and pervasive discrimination on the

basis of their sex that detrimentally affected the terms and conditions of their emplo~nent, 24

Case 1:03-cv-02796-RBK-AMD Document 23 Filed 04/26/2004 Page 25 of 29
•

including repeated, cnlde, and indecent comments, coupled with the unwanted touching and

sexual advances directed at Plaintiffs,

132,

Plaintiffs were subjected to a hostile work environment. Entity Defendants had

responsibility for the discriminatory actions taken in the workplace by Plaintiffs' supervisors and

co-workers,

133,

The discrimination to which Plaintiffs were subjected was so severe and pervasive

as t(J detrimentally alTeet reasonable womcn in Plaintiffs' positions,

134,

Entity Defel1dants discriminatory conduct is in violation of Tille VIT or the Civil

Rights Act of 1964,42 U,S,c, §2000c, as amcndcd by 42 U,S,c' §1981 a,

135,

Entity Defendants discriminated against PlaintilTs with malice and reckless

indifference to their rights,

WHEREFORE, Plaintiffs demand judgment against all Entity Defendants and SOT lor lost

wages and benefits, front pay, compensatory and punitivc damages, plus costs, interest,

attorney's fees and such other relief as the Court deems just and proper,

COUNT Xl

Discrimination on the Basis of Sex Against Eileen Horner in Violation of Title VII of the Civil Rights Act of 1964. as Amended,

136,

PlaintiIIl; incorporatc the avermcnts or all preceding allegations of this Complaint

as though fully sct forth hcrein,

137,

Entity Defendants treated Eileen Homer less favorably in hcr tcrms and

conditions of cmployment than similarly situated male empl(Jyees by paying her on less

favorable tcrms and requiring her to work more hours,

138,

Entity Dcfcndants have rcsponsibility for the discriminatory conduct that occurred

in the workplace,

25

Case 1:03-cv-02796-RBK-AMD Document 23 Filed 04/26/2004 Page 26 of 29

139.

Entity Defendants knew or should have known about the discriminatory conduct,

yet failed to take prompt and ctl'cctive remedial actions.

140.

Entity Defendants discriminated against Plaintiff Eileen Homer with malice and

reckless inditTcrcncc to thcir rights.

141.

Entity Defendants discrimination on the basis of sex is in violation of Title VII or

the Civil Rights Act of 1964,42 U.S.c. §2000e, as amended by 42 U.S.C. §198Ia.

WllEREfORE, Plaintiff, Eileen Horner, demands judgment against Entity Defendants ami

SOl for lost wages and benents, Iront pay, compensatory and punitive damages, plus costs,

interest, attorney's fees and such other relief as the COLLrt deems just and proper.

COUNTXlT

Discrimination on the Basis of Sex Against Danelle Horner in Violation of Title VTT or the Civil Rights Act of 1964, as Amended.

142.

Plaintiffs incorporate the averment~ of all preceding allegations orthis Complaint

as though fully set forth herein.

143.

Entity Delcndants treated Danelle Homer less favorably in the terms and

conditions of her employment by refusing to cl)nsider her qualifications for a position and Iming

the position with men.

144.

Entity Defendants have responsibility for the discriminatory conduct that OCCUlTed

in the workplace.

145.

Entity Dc1cndants knew or should have known about the discriminatory conduct,

yet failed to take prompt and etTective remedial actions.

146.

Entity Defendants discriminated against Plain(iffDanelle Hornor with malice and

reckless inditIerclice to their rights.

26

Case 1:03-cv-02796-RBK-AMD Document 23 Filed 04/26/2004 Page 27 of 29 •

147.

Entity Defendants discrimina!i(ln on the basis of sex is in violation of Title Vll or

the Civil Rights Act of 1964,42 U.S.C. §2000e, as amended by 42 U.S.C. § 1981a.

WHEREFORE, Plaintiff, Danelle Homer, demands judgment against Entity Defendants and

SOT ror lost wages and benefits, front pay, comp<;msatory and punitive damages, plus costs,

interest, attorney's fees and such other relief as the Court deems just and proper.

COUNT XlII

Discrimination 011 the Basis of Sex Agaillst DaYlla Homer in Violation of Title VII of the Civil Rights Act of 1964, as Amellded.

148.

Plaintiffs incorporate the avennenls of all preceding allegaticlns of this Complaint

as though fully set forth hereill.

149.

Entity Defendants discriminated against Dayna Homer on the basis of sex.

150.

Entity Defendants treated Dayna Horner less favorably in the tern1S and

conditions of in that Defendants paid Dayna Homer less favorably than similarly situated male

employees.

151.

Entity Defendants have responsibility for the discriminatory conduct that occulTed

ill the workplace.

152.

Entity Defendants knew or should have known about the discriminatory conduct,

yet failed (0 take prompt and effective remedial actions.

153.

Entity Defendants discriminated against Plaintiff Dayna Homer with ma.lice and

reckless indifference to their rights.

154.

Entity Defendants discrimination on the basis of sex is in violation of Title VII or

the Civil Rights Act of 1964,42 U.S.C. §2000e, as amended by 42 U.S.C. §1981a.

27

Case 1:03-cv-02796-RBK-AMD Document 23 Filed 04/26/2004 Page 28 of 29
>, ; \ ,

WHEREFORE, Plaintiff, Dayna Homer, demands judgment against Entity Defendants and

SOl for lost wages and benefits, il'ont pay, compensatory and punitive damages, plus costs,

interest, attomey's fees and such other relief as the Court deems just and proper,

COUNT XlV

Discrimination Against Reynolds on the Basis of Race, Color and/or National Origin in
vn Violation of Title ofthe Civil Rights Act of 1964, as Amended

155,

Plaintiffs incorporate the averments of all preceding allegations of this Complaint

as though fully set forth herein,

156,

As set forth above, Plaintiff Reynolds suffered severe and pervasive

discrimination on the hasis of race, color and/or national Oligin that detrimentally affected the

terms and conditions or her employ1llent, including repeated, race based comments, h(lslile

treatment and refusal by supervisors to assist her,

157,

PlaintitT was subjected to a hostile work environment and disparate treatment

because of ber association with her son, a part African American, part American Tndian

individual.

158,

Entity Defendants had responsibility for the discriminatory actions taken in the

workplace by Plaintiffs supervisors and co-workers,

159,

The discrimination to which Plaintiff Reynolds was subjected was so severe and

pervasive as to detrimentally affect reasonable women in Plaintiffs positions.

160,

Entity Defendants discriminatory conduct is in violation of Title VII or the Civil

Rights Act of 1964, 42 U,S,c, §2000e, as amended by 42 U,S.C. §1981a,

161.

Entity Defendants discriminated against Plaintiff Witil malice and reckless

indi fference to Hleir rights,

28

Case 1:03-cv-02796-RBK-AMD Document 23 Filed 04/26/2004 Page 29 of 29
, 'I' II

162.

WHEREFORE, Plaintiff, Reynolds, demands judgment against Entity Defendants

and SOl for lost wages and benefits, front pay, compensatory and punitive damages, plus costs,

interest, attomey's fees and such other relief as the Court deems' t and proper.

Dated: March 25, 2004

RENE" C. VIDAL TARA A. MOSTER CURETON CAPLAN, P.C. 950B Chester Aven~le Delran, NJ 08075

,JURY DEMAND Plaintiff.s demand a trial by jury with respect to all issues rsed in

Dated: March 25,2004

RE 'E C. VIDAL
TARA A. MOSlER CURETON CAPLAN, P.C. 950B Chester Avenue Delran, NJ 0~075

29

 
 Case 1:03-cv-02796-RMB-AMD Document 1 Filed 06/11/2003 Page 1 of 8

\

u.s. Equal Employment Opportunity Commi!'ll'>ion
21 S, 5111 Street, Suite 400
Philadelphia, PA 19106

fILE,D

Looal Uffice:

Om: Newark Cente!", ]'l~l Floor

., Newark, NJ 07102
Cynthia. A. Locke

.'

CAL-4752

Attorney for Plaintiff

(lI5) 440·2683

ttUN '1 1 2003

ZUD) JU~ I I ;...\ 10: 0 1
<"f:Tr-n ST'·,Tr."""'

•• <-.,." ... - - - - _ .._ - - - - - - - - -

IN THE UNITED STATES DISTRICT COURT

,....

FOR THE DISTRICT OF NEW JERSEY

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

FOODCRAFTERS DISTRIBUTION COMPANY, )

TROPICAL PLANT CARRIERS, INC., and

)

LITTLE BROWNIES PROPERTIES,INC. )

)

Defendant.

)

)

CIVIL ACTION NO.

A2 ev
p--"

,;;J7<9I (,r;,~ ''''\

COMPLAINT

JURY TRIAL DEMAND

NATURE OF THE ACTION

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

Rights Act of 1991 to correct unlawful employment practices on the basis of sex. female, and to

provide appropriate reliefto Eileen Homer, Danelle Homer, Dayna Homer, Lcighanne Reynolds,

and Paula Bobo (the"Charging Patties") atId a class of female employees who were adversely

affected by such practices. The Commission alleges that during their employment, the Charging

Parties and class members were subjected to sexual harassment in the form of repeated, unwanted

sexually offensive remarks and behaviors, sexually derogatory comments, and sexual advances

from both managers and co-workers. Repor(s of the pervasive sexually offensive atmosphere to

several levels of management did not result in prompt effective correction ofthe hostile work

, , Case 1:03-cv-02796-RMB-AMD Document 1 Filed 06/11/2003 Page 2 of 8
environment. The Commission also alleges that Defendants did not post a sexual harassment policy or provide class members or other employees with instruction or training on the topic. Duc to the hostile work environment experienced by the Charging Parties, they were forced to resign from their employment with Defendants. As a result of the harassment and their constructive discharges, the class members suffered emotional distress and wage loss damages.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343, and 1345. This action is authorized and instituted pursuant to 706 (1)(1) and (3) of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e-5(f)(I) and (3), and Section 102 of the Civil Rights Act of1991, 42 U.S.C. § 1981A.
2. The employment practices alleged to be unlawful were commilted within the jUrisdiction of the United States District Court for the District of New Jersey.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency ofthe United States of America charged with the administration, interpretation, and enforcement of Title VII, and is expressly authorized to bring action by Section 706(f)(I) and (3)
ofTitie VII, 42 U.S-c. § 2000e-5(f)(1) and (3).
4. At all relevan( times, Foodcrafters Distribution Company, Tropical Plant CarTiers, Inc., and Little Brownies Properties, Inc. (Defendant Employers) have continuously been doing business in the State of New Jersey and the City of Pennsauken as an integrated enterprise, and have continuously had at least fifteen (15) eTlJployees.
5. At all relevant times, Defendant Employers have continuously engaged in an industry affecting commerce within the meaning of Seclion 701(b), (g), and (h) of Title Vll, 42
Page -2-

Case 1:03-cv-02796-RMB-AMD Document 1 Filed 06/11/2003 Page 3 of 8

U.S.C. §§ 2000e-(b), (g), and (h).

STATEMENT OF CLAIMS

6. More than thirty days prior to the initiation of the lawsuit, Eileen Horner, Danelle

Homer, Dayna Homer, Leighanne Reynolds, and Paula Bobo (the "Charging Parties") filed

charges with the Commission alleging violations of Title VII by Defendant Employers. All

conditions precedent to the institution ofthi~ lawsuit have been fulfilled.

7.

Since at least December 2000, Defendant Employers have engaged in unlawful

employment practices at their Pennsauken, New Jersey facility in violation of Sections 703(a)(I)

and 704(a) of TitIe VII, 42 U.S.C. § 2000e-2(a)(I) and § 2000e-3(a). These unlawful practices

include, but are not limited to the following:

(a) From at least December 2000 uutil the Charging Parties were forced to resign fi'om

their employment during the period of March to May 2002, Terminal Manager Al Avila regularly

made sexually offensive, degrading and unwelcome remarks to the Charging Parties and failed to

take prompt effective action when the offensive remarks and behaviors ofDock Manager Ken

Brandt and other employees were reported to him. Exanlples of the sexually offensive and

degrading remarks made by Terminal Manager Al Avila and the remarks and behaviors reported

to him which he failed to correct include:

(1) Advising Eileen Horner that women need to be "smacked around" and are

good for only one thing - sex;

(2) Regularly commenting Oil the size of womens' breasts and telling Eileen

Homer that he wanted to hire female employees based on their breast sizes;

(3) Laughing after a dispatcher beat his girlfriend in the parking lot, and

commenting that the dispatcher's girlfriend probably deserved the beating;

Page -3-

Case 1:03-cv-02796-RMB-AMD Document 1 Filed 06/11/2003 Page 4 of 8
(4) Making sexual comments about Leighanne Reynolds' body in the presence of the other Charging Parties and other employees, and staring at her buttocks, to tile point of actually dropping the telephone on one occasion to stare at her buttocks;
(b) From at least November 2001 until the Charging Parties were forced to resign from their employment during the period of March to May 2002, Dock Manager Ken Brandt repeatedly made sexually offensive and unwelcome remarks to all of the Charging Parties and specifically made sexual advances to Eileen Homer and Danelle Homer. Examples of the offensive remarks and advances made by Dock Manager Ken Brandt includcd the following:
(1) Telling Danelle Homer that he wanted her to pull down her pants and sit on his face;
(2) Asking Leighanne Reynolds to strip for him on the top of the pool table and offering her $20.00 to dance for him;
(3) Asking Eileen Homer to "hook up" with him and "party on the dock" with him, telling her that he lived for sex and commenting on her body in jeans;
(c) From at least April 2001 until the Charging Parties were forced to resign from their employment during the period of March to May 2002, General Manager Michael Alfano made sexually offensive and unwelcome remarks to Eileen Homer, Danelle Homer and Paula Bobo, and failed to take prompt, effective corrective action when the offensive remarks, behavior, and sexual advances ofTerrninal Manager Al Avila, Dock Manager Ken Brandt, and other employees were reported to him. Examples of the offimsive remarks and advances made by General Manager Michael Alfano and the sexually offensive behaviors and comments reported to him that he failed to correct include:
(I) Advising Eileen Homer and DaneI1e Homer, when they requested more Page -4-

Case 1:03-cv-02796-RMB-AMD Document 1 Filed 06/11/2003 Page 5 of 8
working hours, that he would get back to them in 28 days since they are on the "same cycle" as his wife;
(2) Laughing in response to complaints of sexual harassment and failing to take effective action to discipline Ken Brandt and correct his behavior after Charging Parties Eileen and Danelle Homer reported to him that Brandt had asked Ms. Homer to take off her pants and sit on his facc;
(3) Failing to take prompt effective steps to resolve the repeated complaints made (0 him concerning the sexually offensive comments, behaviors and advances of Al Avila, Ken Brandt and Customer Service Representative Steve Scal'ani.
(d) Defendant Employers did not post a sexual harassment policy during the employment of the Charging Parties and did not provide any training, instruction or handbook section on any sexual harassment policy to Charging Parties.
(e) As a result of the sexually hostile, offensive and degrading work environment at the Pennsauken, New Jersey facility, Charging Parties were forced to resign from their employment during the time period from March - May 2002.
8. The effect ofthe practices complained of in paragraph 7(a)-(e) above has been to deprive Eileen Homer, Danelle Homer, Dayna Homer, Lcighanne Reynolds, Paula Bobo and a class of female employees of equal employment opportunities and otherwise adversely effect their status as employees because of their sex, female.
9. The effect ofthc practices complained of in paragraph 7(a)-(e) has been to deprive Eileen Homer, Danielle Homer, Dayna Homer, Leighanne Reynolds, Paula Bobo and a class of female employees of equal employment opportunities and otherwise adversely effeet their status as employees because ofthcir gender.
Page -5-

Case 1:03-cv-02796-RMB-AMD Document 1 Filed 06/11/2003 Page 6 of 8

10. intentional.

The unlawful employment practices complained of in paragraph 7(a)-(e) were

11. The unlawful employment practices complained of in paragraph 7(a)-(e) were

done with malice or with reckless indifference to the federally protected rights of Eileen Homer,
Danelle Homer, Dayna Homer, Leighanne Reynolds, Paula Bobo and a class of female
employees.

PRAYER FOR RELIRF

Wherefore, the Commission respectfully requests that this Court:

A. Grant a permanent injunction enjoining Defendant Employers, their officers,

successors, assigns, and all persons in active participation with them, from engaging in any

employment practice which discriminates on the basis of sex.

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

programs which provide equal employment opportunities for women and which eradicate the

effects of its past and present unlawful employment practices.

C. Order Defendant Employers to make whole Eilccn Horner, Danielle Homer, Dayna

Horner, Leighanne Reynolds, Paula Bobo and a class of female employees by providing

appropriate backpay with prejudgement interest, in amounts to be determined at trial, and other

reliefnccessary to eradicate the effects of its unlawful employment practices.

D. Order Defendant Employers to make whole Eileen Horner, Danelle Homer, Dayna

Homer, Leighanne Reynolds, Paula Bobo and a class of female employees by providing

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

practices described in paragTaph 7(a)-(e) above, in amounts to be determined at trial.

E.

Order Defendant Employers to make whole Eileen Homer, Danelle Homer,

Page -6-

Case 1:03-cv-02796-RMB-AMD Document 1 Filed 06/11/2003 Page 7 of 8

Dayna Homer, Leighanne Reynolds, Paula Bobo and a class of female employees by providing

compensation for past and future nonpecuniary losses resulting from the unlawful practices

complained of in paragraph 7(a)-(e) above, including physical and emotional pain and suffering,

depression, anxiety, loss of enjoyment oflife, and hUmiliation, in amounts to be determ.ined a( trial.

F.

Order Defendant Employers to pay Eileen Homer, Danelle Homer, Dayna

Homer, Leighanue Reynolds, Paula Bobo and a class of female employees punitive damages for

their malicious and reckless conduct described in paragraph 7(a)-(e) above, in amounts to be

determined at trial.

G. interest.

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

H.

Award the Commission its costs of (his action.

Page -7-

Case 1:03-cv-02796-RMB-AMD Document 1 Filed 06/11/2003 Page 8 of 8

JURY TRIAL DEMAND
The Commission requests ajury trial on all questions of fact raised by its complaint.

Gwendolyn Young Reams
Associate General Counsel
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, D.C.

~u/tv.-·c cyJ. /f-tJv.~ byt:..AV1.S

Juline H. McNair

(j {I

Regional Attorney

~ia'\f t; . {ll/h'l-I'(...

JUdith A. O'Boyle

'

Supervisory Trial Attorney

21 S. 5th Street, Suite 400 Philadelphia, PA 19106 (215) 440-2683 PA ill NO. 37637

Page ·8-

 
 Case 1:03-cv-02796-RMB-AMD Document 10 Filed 08/22/2003 Page 1 of 28

I[)

IN THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW JERSEY

",.. "'"~:J'P""" ,'''''

Renee C. Vidal (RCV-7259) Tara M. Mosier (TAM-4343) H. Thomas HUllt, 1Il (HTH-4343) CURETON CAPLAN, P.C.

FILED I
.f
AUG 222003

950B Chester Ave.

Delran, New .Jersey 08075 (856) 824-1001 Fax-(856) 824-1008

AT 8:30;'1"1"1":'I"'::""':'l':'l:-r-:r.:-:- M WILLIAM T. WALSH CLERK

Attorneys for Eileen Homer, Danelle Homer, Dayna Horner,

Lei hanne Reynolds and Paula Bobo

EQlJAI, EMPLOYMENT OPPORTUNITY

COMMISSION,

c' , ,
".,'
'''"u
<,,'J
'. ,.' ,

Plaintiff,

CIVIL ACTION NO. 1;03CV02796(RBlq

v.

FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., and LITTLE BROWNIE PROPERTIES, INC.
Defendants,

and

EILEEN HORNER, DANELLE HORNER (n/k/a Danelle Morgan), DAYNA HORNER, LEIGHANNE R1WNQI,DS and PAULA BOBO
Plaintiffs,

COMI'LAINT AND JORY DEMAND

v.

FOODCRAFTERS DISTRIBUTING COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIE PROPERTIES, INC., JOHN P. BROWN, .ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALl<'ANO; ABC Corporations 1-10 being fictitious business entities yet unidentified; JANE/JOHN DOES 1-10 being fictitious individuals 1I0t yet identified.

Defendants.

Case 1:03-cv-02796-RMB-AMD Document 10 Filed 08/22/2003 Page 2 of 28
Plaintin~~, Eileen Homer, Danelle Homer, n/k/a Danelle Morgan, Dayna Homer, Leighannc Reynolds and Paula Boho, hy their attorneys Cureton Caplan, P.C., herehy !lie this complaint alleging unequal pay, sexual harassment, discrimination, retaliation and related causes of action against Foodcrafters Distributing Company ("Foodcrafters"), Tmpieal Plant CalTicrs, Inc. ("TPC"), Little Brown Properties, Inc. ("LBP"), Transystems, Inc. ("Transystems") and ABC Corporations being fictitious business entities yet unidentified (colledively referred to as the "Entity Defendants") and against John P. Brown, Robert Roche, Peter Wood, Al Avila, Michael Alfilno and Jane/John Does 1-10, being fictitious individuals not yet identified as aiders and abeltolO of the discriminatory actions of the Entity Defendants; Plaintiff Dayna Borner's disL'Timination claim also constitutes a violation of the Equal Pay Act. All of the Plaintiffs allege that they were subjectcd to a sexually and racially hostile work environment which included repeated crude, indecent scxual commerlts, sex jokes, sexual advances and unwanted touching, racially charged comments and that defendants created such a sexually and racially hostile work environment that they were forced to resign.
PARTIES 1. Plaintiff Eileen Horner is a female individual who resides at 303 North Arthur Drive, Edgewater Park, New Jersey 08010. She was employed by Foodcrafters, TPC, and/or LEI' as an Office/Customer Service Manager hetween September 2000 through March 2002. 2. Plaintiff Danelle Horner n/kla Danelle Morgan ("Danelle Homer") is a female individual who Ttlsides at 303 North Arthur Drive, Edgewater Park, New Jersey 08010. She was employed by Foodcrafters, TPC, and/Or LBP in the ellstomer service office between October 2000 thTOugh April 2002.
2

Case 1:03-cv-02796-RMB-AMD Document 10 Filed 08/22/2003 Page 3 of 28
3. Plaintiff Dayna Homer is a ji,'Illale individual who reside~ at 303 North Arthur Drive, Edgewater Park, New Jer~ey 08010. She was employed by Foodcrafter~, TPC, and/or LBP in the customer service office bctween September 2001 through April 2002.
4. Plaintiff Leighanne Reynolds ("Reynolds") is a female individual who resides at lull Albert Street, Hainesport, New Jersey, 08036. She was employed by Foodcrafters, TPC, and/or LBP in the customer service officc bctwecn February 2002 through May 2002.
5. Plaintiff Paula Hobo ("Bobo") is a female individual who resides at 171 Washington Street, Mount Holly, New Jersey 08060. She was employed by Foodcrafters, TPC, and/or LBP in the customer service office between February 2001 through May 2002.
6. Defendant F(Xld(:rafl.ers Distributing Company ("Foodcrafte~") is a tor-profit company with its principal place of business located at 1350 Sheeler Road, Apopka, Florida 32703.
7. Defendant Foodcrafters also has ofllces and operates a location at 8192 National Highway, Pennsauken, New Jersey 08110.
8. Defendant Tropical Plant Carriers, Inc. (''TPC'') is a for-profit company with its principal place of business located at 1350 Sheeler Road, Apopka, Florida 32703.
9. Defendant Little l3rown PropcJ1ies, Inc. ("LBP") is a tor-profit company with its principal place of business is located at 1350 Sheeler Road, Apopka, Florida 32703.
IO. Defendant Transystems, Inc. (,Transystems") is a fOl'-proiit company that is a subsidiary of LBP and a related entity to TPC with a principal place of business located at 1350 Sheeler Road, Apopka, Florida 32703.
II. Defendants ABC Corporations are yet unidentified business entities that are responsible for the discrimination against plaintiffs and/or the sexually and racially hostile work environment to which plaintiffs were submitted.
3

Case 1:03-cv-02796-RMB-AMD Document 10 Filed 08/22/2003 Page 4 of 28
12. Defendant Robert Rochtl ("Roche") is a shareholder and the President of Foodcrafters and the general manager of TPe and was formerly the vice-president of sales for TPC and maintains a business office at J 350 Sheeler Road, Apopka, Florida.
13. Defendant Peter Wood ("Wood") is a shareholder and vice-president of Foodcrafters, the vice-president and chief financial omcer (>f LBP, the chief executive officer of Transystcms and maintains a business oHiee at 1350 Sheeler Road, Apopka, Florida.
14. Defendant John P. Brown ("Brown") is a shareholder and assistant secretary of Foodcraftcrs, the vice-president and chicI' executive oHicer of LBP and maintains a business oHicc at 1350 Sheeler Road, Apopka, Florida.
15. Defendant Michael Alfano ("Alfano") was the General Manager of Foodcrafters and maintains a business ofllce at 1350 Sheeler Road, Apopka, Florida.
16. Defendant Al Avila ("Avila") was the Terminal Manager of Foodcrafters' Pennsauken location and maintained a business ollice at 8192 National Highway, Pennsauken, New Jersey OSIIO.
17. Delillldants Jane/John Does 1-10 are fictitious namcs of individuals who are liable for the discriminatory conduct and hostile work environment that remain yet unidcntified.
J8. Foodcrafters, TPC, Transystems and LBP, collectively operate as a single integrated enterprise. Accordingly, the Entity Defendants are all liable for the acts of discrimination committed by anyone of them.
19. Defendants have cOmmon ownership and common management as evidenced by the fac! that many of the same individuals comprise the management team of each company:
a. John E. Bmwn is the Chief Executive OHicer of Foodcratters, the President and sole owner ofLBP, and the secrctary and treasurer of 'fpc.
4

Case 1:03-cv-02796-RMB-AMD Document 10 Filed 08/22/2003 Page 5 of 28
b. John P. Brown, the son of John E. Brown, is one of t1m:e owners of Foodcraflen;. He is currcntly thc assistant secretary of Foodcrafiers. In 2000, he was the President ofLBP, in 2001 and currently he is the Vice-President and chief executive officer of tha.t company. Hc is also an officer ofTmnsystems.
c. Diane Ludwig, the daughter of John E. Brown, is President of LBP and President ofTPC.
d. Linda Roche, also a daughter of J01m E. Brown, is the secretary and
treasurer of LI3P. She is also the comptroller of Little Brownie Broken;, another
related entity. She is also an officer of Transystems.
e. Robert Roehc, Linda Roche's husband, is an owner and the President of Foodc"Tafters and the General Manager of TPC. He was also the vice president of sales ofTPC until 1999.
f. Pcter Wood is a shareholder and Vice President of Foodcrafters, the Vice President and Chief Financial Officer of LAP and the Chief Financial Officer of Transysterns.
20. Dcfcndants' operations are interrelated:
a. Defendants' share a common address at 1350 Sheeler Road, Apopka, Florida 32703.
h. Defendanls share common management.
C. Defendants are commonly owned.
d. The paychecks issued to the employees or Foodcrafiers are laheled "Foodcrallers Distributing Co/TPe, 1350 Sheeler Roa.d, Apopka, Florida 32703."
e. Defendants have onc centralized human relations department located at its Apopka, Florida location.
f. For all human relations issues, lhe employces at Foodcrafters' New Jersey offiees are directed to contact Defendants' Apopka, Florida location.
2 J. As Office/Customer Service Manager at Foodcrafters' Pennsauken location, Eileen
Homer was the direct supervisor of each of the other Plainti il'S as well as a number of other
employees from time to time.
22. Eilecn Homcr's imlllcdiate supervisor was Altimo; Homer was required to report dircctly
to Alfano.
5

Case 1:03-cv-02796-RMB-AMD Document 10 Filed 08/22/2003 Page 6 of 28
2J. Eileen Homer also reported to and was required to work closely with Avila.
24. TIlfoughout the course of Plaintiffs' employment with Foodcraftcrs, contrary to law, Defendants had no employee handbook or discrimination policy. Nor did any of the Defendants provide Plaintifll> any int()mlation or training related to harassment or discrimination. Thus, Defendants are strictly liable for any sexual harassment occurring in their workplace, and have no defense to Plaintilli;' claims.
JURISDICTION AND VENUE 25. Jurisdiction of this Court is invoked pursuant to 28 V.S.c. §§ 1331, 1343 and 1367,29 U.S.C. § 206(d)(l) and 42 V.S.C. §§2000e-5(t)(l) and (3) and sup~llemental jurisdiction over Plaintiffs state law claims pursuant to 28 U.S.C. §I367. Jurisdiction is also invoked pursuallt to 28 U.S.c. § 1332(a), as the Plaintiffs and Detendants are citizens of different states and the amount in controversy for each Plaintiff exceeds $75,000.00, exclusive of interest and costs. 26. All jurisdictional prerequisites to the filing of a claim pursuant to Title VJI of the Civil Rights Act of 1964 have been met, to wit: 27. Plaintiffs filed a Charge of Discrimination alleging ho~tile environment based on sex, and discrimination based upon sex. 2!!. On Mareh 26, 2003, the EEOC is~ucd a finding of probable cause and filed an action against Foodcraftcrs, TPC and LBP on June 11, 2003 in the United States District Court for the District of New Jersey. 29. Venue lies in this Court pursuant to 28 U.S.C. § 139J(b) and 42 U.S.C. §2000e-S(t)(I) and (3).
6

. -_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ' 0 _ _ _ _ • _ _ • •
Case 1:03-cv-02796-RMB-AMD Document 10

Filed 08/22/2003 Page 7 of 28

INTRODUCTORY STATEMENT 30. Defendants employed cach Plaintiff in the customer serviee office at Foodcrafters' Pennsauken operation. Defendants subjected each Plaintiff while employed there to a discriminatory environment because of their sex. With respect to one or more of the Plaintiffs, Defendants paid lower wages than male employees, required Plaintiffs to work longer hours, gave them less favorable methods of compensation, and gave them less desirable positions and duties. In addition, Defendants condoned and tolerated a workplace plagued with unwanted sexual advances and touching, and derogatory, degrading and intimidating sexual comments and jokes. One high-ranking officer of Entity Defendants went so far as to describe Defendants as "just a man's company." Defendants also subjected Plaintitl;, to a racially hostile environment rampant with epithets designed to degrade and intimidate because of race, color andlor national origin. This continuous pattern of discriminatory treatment to which Plaintiffs were subjected forced Eileen Homer, Danelle Homer, Dayna Horner, Reynolds and Sobo to resign.
GENERAL ALLEGATIONS 31. Plaintiffs incorporate the averments of all preceding allegations of this Complaint as though full y sct forth herein.
Defendants Created a Sexually Hostile Work Environment 32. As Tenninal Manager of F(Jodcraiters, Avila held a supcrvisory position at Foodcraftcrs' Pennsauken location. Avila engaged in unlawful conduct which led directly to the creation of a sexually charged and hostile working environment for Plaintiil);. Exanlples of Avila's sexually charged and sexually offensive conduct and comments include:
a. Regularly e()mmenting that Reynolds was wearing tight jeans and staring at her buttocks as she walked by him. On one occasion, he put the telephone down in the middle of a COllversation to stare at her buttocks.
7

Case 1:03-cv-02796-RMB-AMD Document 10 Filed 08/22/2003 Page 8 of 28
b. Telling Danelle Homer that she looked sexy in shorts und that it was going to be II long hot summer if she kept wearing short~.
c. Frequently making sexually charged comments about women in general. d. Subjecting the PJaintift'~ and other employees to his sexually offensive conduct by
repeatedly making sexual advances and phySically touching another female employee, including staring at her breasts, commenting on her breasts and caressing her shoulders. e. Regularly commenting that women usually deserve getting smacked around because they have a way of pushing men's buttons and announcing that women needed to be kept in their place. On one occasion, a driver had beaten and thrown urine on his girlfriend in the Foodcrafter's parking lot. Avila laughed at the situation, saying, that the woman had gotten a "golden shower," but "not the right way," that she probably deserved the beating because "she was trash anyway," and that she probably beat herselCup to blame her boyfriend. [ Criticizing Reynolds, referring to her as a "waste," a "dumb blonde," and a "moron," He also told her that she "looked trashy" whcn discussing paperwork prepared the prior day. g, Regularly commenting that women are only good for one thing sex. h. Commenting that because his wife was older than him and went to bed at 9:00 p.m., he had to release his tension with other women, often commenting that he did not "get it anymore_" .D. The dock manager, Ken Brandt ("Brandt"), also subjected each of the Plaintiffs to repeated unwelcome sexual comments and propositions. Examples of Brandt's sexist remarks and hostile behavior towards the Plaintiffs include:
8

Case 1:03-cv-02796-RMB-AMD Document 10 Filed 08/22/2003 Page 9 of 28
a. Repeatedly telling Eileen Horner that she lookcd sexy, that her jeans lookcd good, and that she had a great body for a 45 year-old woman
b. Staring at Eileen Horner's buttocks while making scxually offensive commcnts.
c. Proudly telling Eileen Homer, in response to her inquiry about whether he ever spoke about non-sexual things, "no, J live fot sex" He constantly talked about getting "laid" by both his wife and girlfricnds.
d. Propositiooing Reynolds to go home with him, dance on the pool table filr him, and strip for him.
e. Telling Reynolds and Bobo that ifhe had $200.00 in his pocket, he would give it all to Reynolds to see her dance.
f. Repeatedly commenting on his sex. life to the Plaintiffs and others. g. Telling Danelle Horner that he wanted DanelIe to pull duwn her pants and sit on his face. h. Commenting to Dayna Horner after she made a comment that she would "hit" Brandt if he continucd bringing her additional work, "Ooh bahy, you're getting me aroused, don't make any promises you can't keep. Doo't leave me hanging like that." Dayna Homer was 16 years old at the time. i. Telling Danelle and Dayna Horner that he did not care whether hugging them was sex.ual harassment, and hugged them both tightly, pressing his body into theirs. 34. William Walker, a dock worker, also contributcd to the hostile work environment. On one occasion, he grabbed Dayna Homer, who was only 16 years old at the time, hugged ber, kissed her hand, and told her lhat she looked good.
<)

Case 1:03-cv-02796-RMB-AMD Document 10 Filed 08/22/2003 Page 10 of 28
35. Upper managelllent actively participated in the creation of a hostile work envirollment with il)<Jppwpli3te sex-ha~ed comments. Examples of sexually charged eOlllmcnts and conduct of management include:
a. Allimo telling a female co-worker that he would "talk to Iher] in 28 days" because she was "(1) the same eycle as [his] wife."
h. Alfano repeatedly commenting to Danelle Homer and others that she needed breast implants and stating that he would start a collection to raisc money for her to have the procedure.
c. Alfano caressing Danelle Homer's feet de~pite her protests for him to stop. d. Aliano making a sports bet with Danelle Homer, telling her that if he won, she
had to wear the jersey of the team for whom he rooted .. and nothing else. e. Alfimo responding to Danelle Horner's request for a raise by telling her that she
could get anything she wanted if she slept with "10hnllY" Brown, (lne of Defendants' owncrs, because he "liked his women." f. Failure of all upper management to set in place appropriate policies and procedures for preventing or remediating sexual harassment in the workplace, and failing to consider Plaintiffs' complaints of harassment. 36. Defendants also engaged in discriminatory employment practices that created a hostile working environment. Examples of such conduct includes: a. Avila instructing Eileen Homer thai she was to hire female employees based on their breast size, hair color and figurc. b. Avila advising Eileen Homer to hire an attractive Italian woman with large breasts and large lips because the womlU1's large lips would be good for oral sex.
10

Case 1:03-cv-02796-RMB-AMD Document 10 Filed 08/22/2003 Page 11 of 28
c. Hiring a woman with no tmcking experience for an assistant dispatcher po~ition heeause she had large breasts and "made for great scenery."
37. Plaintiffs Danelle Homer, Dayna Homer, Bobo and Reynolds regularly complained to Eileen Homer, Avila and Alfilllo about the unwanted sexual advances and sex-hascd comments.
38. Eileen Homer regularly complained to Alfano about Avila's sexual advances and sexbased jokes and commcnts dirccted at Pla.intiffs and towards his disL'timinatory and degrading comments ahout women in general. Eileen Horner also complained to Avila and Alfano about the sexually charged conduct and comments of other male employees. Alfano generally responded by laughing or with statements such as "boys will be hoys." He often said nothing. Avila once responded that because she was employed at a trucking company, she should accept the sexually chargcd atmosphere.
Defendants Discriminated Against Eileen Homer Based on Sex 39. Defendants required Eileen Homer to work longer hours than her male counterparts and paid her on less favorable tenns than her male counterparts. 40. Alfano consistently required Eileen Homer, a salaried manager, to work 50 or more hours per week without overtime pay. Yet, Detendants only required that a male salaried manager work less hours per week. Eileen Horner complained to Alfano about the disparity in working hours hetween herself and the male manager on several occasions to no avail. 4 I. Eileen Homer then requested from Defendants that she be paid hourly. Defendants denied her request because she was a manager, which, according to Alfano, was a salaried position. 42. Detl;lIldants then paid another male manager at an hourly rate. 43. Eileen Horner complained to Alfano and Avila about her hours and pay in relation to these male managers. Altlll1() and Avila responded that it was not her concern and took no
II

Case 1:03-cv-02796-RMB-AMD Document 10 Filed 08/22/2003 Page 12 of 28
remedial action. Avila ul~() responded lhal "this is a man's company," a stutement that hc repe~tedly made to Eileen Horner.
44. An upper level /t~male employee reiterated the phrase "this is a man's company" and similar phrases to Eilee1l Homer, stating that she was treated different! y than her male colleagues "because I don'! have a d--- between my legs. This is a man's company", "if you are a woman, you will always get blamed" and "you can't get anywhere in this company as a woman."
Defendants Discriminated Against Danelle Horner Based on Sex 45. In September 2001, Foodcralters employed Danelle Homer as a part-time employee. In November 2001, a full-time customer service positi(m became available. Despite DaneHe Homer's interest in the full-time position, Alfano told her thut she could not apply for the position because her mother, Eileen Horner, was the customer service manager. Alfano took this position even though the company previously permitted Danelle Homer to work as a full-time customer representative from October 2000 through August 2001. 46. At that time, there was no company policy regarding the hiring of family members as evidenced by the fact that other family members worked together for Defendants. 47. In December 2001, a full-time dispatch position became available. Punelle Homer asked to apply for the position. Avila told her that she could not apply because she was a woman and women are not "geographically inclined." 48. Immediutely after, another femule employee asked Avila if she could apply for the position. Avila told her that she could not have the position because she was a woman and he put his hand up saying "I am not getting into this." 49. Danelle Homer complained to Alfano, who agreed with Avila, and added that the drivers would not like taking orders frolll a woman. 50. Defendants hired a male to fill the rull-time dispatch position.
12

Case 1:03-cv-02796-RMB-AMD Document 10 Filed 08/22/2003 Page 13 of 28
51. When the male who had heen hired for the full-time di~palch position quit a few weeks later, Danelle Horner again asked Deltmdants if she could apply (()r the position; DclC,ndant denied her the opportunity for a second time. Defendants hired another male for the position.
52. Danelle Horner complained to shareholders of the company, Robert Roche and Peter Wood. Roche told Danelle Homer that he would train her for the position if she was willing to "cro~s the fence" Roche never trained Danelle Homer for the position and no fulther investigation or action was taken.
Dayna Horner was Paid Less Than Similarly Situated Male Employees 53. Dayna Homer was hired by the entity defendants in 2001 as a part time customer service representative earning $7.00 per hour. 54. In March 2002, Dayna Homer received a pay raise to $8.25 per hour. 55. Dayna Homer was told that because she was a high school student, $8.25 was the highest hourly rate that Entity Defendants would pay even though the established part-time ratc was $9.50 per hour. 56. The Entity Defimdants also employed a male employee, Donald Kennedy, in the customer service otlice pari-time. Kennedy perfOlmed substantially the same work as Dayna Horner. Kennedy was also a high-school student. The Entity Defendants paid Kennedy $9.50 per hour from the commcncement of his employment with the customer service ontec. 57. Dayna Homer complained to Avila and Alfano ahoullhc disparity In pay. Avila ignored Dayna Homer's complaints on two separate occasions. Aliano responded that Kennedy's rate of pay was unrelated to her rate of pay and changed the subject.
13

Case 1:03-cv-02796-RMB-AMD Document 10 Filed 08/22/2003 Page 14 of 28
Defendants Discriminated and Created a Hostile Work Environment Based on Race. Color and/or National Origin
58. Defendants' employees and supervisors contaminated the Foodcrafters' office with raciaJJy offensive jokes and comments. Defendants condoned this illegal behavior. Examples of (lHensive comments based on race, color and/or national origin include:
a. Avila and Brandt repeatedly making race-based jokes in the presence of Reynolds, a Caucasian woman who has a son who is part AFrican·American and part American· Indian aller discovering the race/color of her son.
b. Avila and Brandt repeatedly stating that Reynolds would become romant.ically involved only with blaek mcn.
e. Brandt commenting that they needed to kcep Reynolds off the dock and away from an African American employec because she would be salivating. Avila made similar comments.
d. Brandt commenting "How do you stop a black man from raping a woman? TIlrow him a basketbalL"
e. A driver asking jilr a fe'male African·American employee, by reftming to her as the "big assed black mama," and then commenting to ilobo that she had "a black woman's ass that would be good for f~--ing doggie stylc" while making an obsccne hand gesture to indicate sexual movements.
f. Avila commcnting that "all of the black people look alike, so you can just piece together any body parts," referring to the September II, 200J terrorist attacks.
g. Avila commenting that tbe September J1 tragedy was "no big loss" because mostly foreigncrs were killed and that the event will teach "those foreigners" not to come over h"re.
14

Case 1:03-cv-02796-RMB-AMD Document 10 Filed 08/22/2003 Page 15 of 28
h. Avila stating that the St:ptember 11 tragedy was a "good thing" because /ill-eigners came to theUniterl St~tes and '"wiped out their own people."
59. Eileen Horner and Reynolds complained about the racially offensive comments, but no remedial action was taken.
60_ In addition to the racially charged comments, Defendants' employment practices contributed to the racially-charged work environment. Examples of race-based employment practices include:
a. Avila instructing Eileen Horner that she could not hire African-American women because they "stink" and he did not want to work with "them" or train "them."
b. Avila refusing to hire an African-American woman even though shc was qualified for a position. When Eileen Homer complained to Alfano about the situation, Alfimo laughed and responded "he said that?"
61. Prior to learning that Reynolds' SOn was part African-American, Avila dotcd over her. He offered her help with her work and assured her that if she needed anything else, to let him know.
62. After learning of her son's race, Avila's treatment of and attitude towards Reynolds changed. Avila intentionally gave Reynolds wrong answers to h~r questions nr refused to answer her questions altogether.
63. Avila told Eileen Ilorner that Reynolds was "dumber than dirt and to "shitcan" her. 64. When Eilecn Homer questioncd Avila ahout his statemcnt, he simply laughed 1Il response. Avila was unahle tn provide Eileen Homer with any specilic complaint regarding Reynolds' work perfonnance. 65. Eileen Homer complained to Altimo ahout Avila's racist attitude_ Alfano responded that he did not realize that Avila was prejudiced.
15

Case 1:03-cv-02796-RMB-AMD Document 10 Filed 08/22/2003 Page 16 of 28
COUNT I Hostile Work Environment Based on Sex in
Violation ofthe New Jersey Law Against Discrimination. N.J. S.A. 10:5-1 ct. seq. 66. Plaintiffs incorporate the averments of all preceding allegations of this Complaint as though tully set forth herein. 67. Defendants subjected each Plaintiff to a hostile work environment plagued by offensive and UJ1wanted touching and derogatory, degrading and sexist remarks. 6~. The cumulative effect of Defendants' repeated. crude, and indecent comments, coupled with the unwanted touching and sexual advances directed at Plaintif1l; were so severe and pervasive as to make reasonable women in the Plaintiffs' position believe that the conditions of employment were altered and thc work cnvirorllncnt was hostile and/or abusive. 69. The work cnvirorUllCllt consisted of frequent sexually charged comments and conduct, much of which was directed at Plaintiffs and caused a sexually hostile work environment that was unreasonable and unhealthy for the Plaintiffs. Plaintiffs were forced to resign from their employment between March 2002 through May 2002. 70. As a result of the aforesaid sexually hostile work environment and other discriminatory eOndU1.1, Plaintiffs have sutTered emotional distress, inconvenience, loss of enjoyment of life and other emotional damages. 71. Defendants have responsibility for the discriminatory conduct that occurred m the workplace. 72. Defendants knew or should have known about the discriminatory conduct, yet failed to take prompt and etlcctive remedial actions. 73. Defendants conduct was intentional and malicious and in wanton and willful disregard of the rights of others.
16

Case 1:03-cv-02796-RMB-AMD Document 10 Filed 08/22/2003 Page 17 of 28
74. Defendal)t~ discriminat.ed against Plaintiffs in the terms and condit.ions or their employment in violation of the New Jersey Law Against Discrimination, NJ. S.I\. 1O:5~ 1 et. seq,
WHER EFORE, Plaintiffs demand judgment against all Defendants for lost wages and benefits, front pay, compensatory and punitive damages, plus costs, interest, atlnmey's fees and such other relief as the Court deems just and proper.
COlJNT II Discrimination on the Basis of Sex Against Eileen Horner in Violation of the New Jersey Law Against Discrimination. N.J. S.A. 10:5-1 et. seq. 75. Plaintiffs incorporate the averments of all preceding allegations of this Complaint as though full y set forth herein. 76. Defendants discriminated against Eileen Homer because of her sex. 77. Defendants treated Eileen Homer less favorably in her terms and conditions of employment than similarly situated male employees by paying her on less favorable terms and requiring her to work more hours. 78. Defendants have responsibility for the discriminatory conduct that occurred in the workplace. 79. Defendants knew Or should have knowlJ about the discriminatory conduct, yet failed to take prompt and eHective remedial actions. 80. Defendants conduct was intentional and malicious and in wanton and willful disregard of the rights of otJlers. 8 J. The disparate treatment to which Defendants have subjected Eileen HOOler is in violation ofthe New Jerscy Law Against Discrimination, N.J. S.A. 10:5-1 et. seq. WHEREFORE, Plaintiff, Eileen !lamer, demands judgment against all Defendants for lost wages and bcncilts, front pay, compensatory and punitive damages, plus costs, interest, attomey's fees and such other relief as the COUli deems just and proper.
17

Case 1:03-cv-02796-RMB-AMD Document 10 Filed 08/22/2003 Page 18 of 28
COUNT III Uiscdmination on the Basis of Sex Against llanelle Horner in Violation ofthe New Jersey Law Against lliscrimination, N.J. S.A. lO;5~1 ct. scq. 82. Plaintiffs incorporate the avcnncnts of all preceding allegations of this Complaint as though fully set t(nth herein. 83. Defendants discriminated against Danelle Homer because of her sex. 84. Defendants treated Danelle Homer less favorably in the terms and conditions of her
employment by refusing to consider her qualifications for a position and filling the position with men.
85. Defendants have responsibility for the discriminatory conduct that occurred ill the workplace.
86. Detendants kncw or should have known about the discriminatory conduct, yct failed to take prompt and etlective remedial actions.
87. Defendants conduct was intentional and malicious and in wanton and willful disregard of the rights of others.
88. The disparate treatment to which Defendants have suhjeeted Danelle Homer is in violation of the New Jersey Law Against Discliminatioll, N.J. S.A. 10:5-1 et. ~eq.
WHEREFORE, Plaintiff, Danelle Homer, demands judgment against all Defendants for los! wages and benefits, front pay, compensatory and punitive damages, plus costs, interest, attorney's fees and such other relief as the Court deems just and proper.
COUNT IV Discrimination on the Basis of Sex Against llayna Horner in Violation of the New Jersey Law Against Discrimination, N.J. S.A. 10:5-1 ct. seq. 89. Plaintiffs incorporate the avemlCnls of all preceding allegations of this Complaint as though fully set tbrlIJ herein.
18

Case 1:03-cv-02796-RMB-AMD Document 10 Filed 08/22/2003 Page 19 of 28
90. Defendants discriminated against Daynu Horner on the basis of sex. 91. Defendants treated Dayna Homer less favorably in the terms and conditions of employment in that Defendants paid Uayn3 Horner less favorably than similarly situated male employees. 92. Defendants have responsibility for the discriminatory conduct that occurred in the workplacc. 93. Defendants knew or should have known about the discriminatory conduct, yet failed to take prompt and effective remedial actions. 94. Defcndanb conduct was intcntional and malicious and in wanton and willful disregard of the rights of others. 95. The disparate trealment 10 which Defendants have subjected Dayna Homer is in violation of the New Jersey Law Against Discrimination, N.J. S.A. 10:5-1 eL seq. WHEREFORE, Plaintifl: Dayna Horner, demands judgment against all Defendants tor lost wagcs and benefits, front pay, compensatory and punitive damages, plus costs, interest, attorney's fees and such other relief as the Court deems just and proper.
COUNTY Hostile Work Environment Based on Race, Color. and/or National Oriein as to Leiehanne Revnolds in Violation of the New Jersev Law A1!.ainst
Discrimination, N.J. S.A. 10:5-1 ft. seq. <)6. Plaintiffs incorporate the averments of all preceding allegations of this Complaint as though fully set forth herein. 97. Detendants subjected Reynolds to a hostile environment based on race, color, and/or national origin. 91::. The cumulative effect of the discriminatory and hostile Ctlvironment created and condoned by Defendants created a racially hostile work environment that W,IS so severe and
19

Case 1:03-cv-02796-RMB-AMD Document 10 Filed 08/22/2003 Page 20 of 28

pervasive a~ to make reasonable women in the Plaintiffs' position bclicvc that the conditions vf

employment were altered and the working environment was hostile al)d!"r abusive.

99. The work cnvironment consisted of frequent racially charged comments and conduct,

much of which was directed at PlaintitfReynolds and caused a racially hostile work environment

that was unreasonable and unhealthy for Plaintiff Reynolds. Plaintiff Reynolds was forced to

resign from her employment between March 2002 through May 2002.

100.

Defendants have responsibility for the discriminatory conduct that occuned in the

workplace.

101.

Defendants knew or should havc known about the discriminatory conduct, yet

tailed to take prompt and effective remedial actions.

102.

Defendants discriminated against Plaintifls in the (erms and conditions of their

employment.

103.

Defendants conduct was intentional and malicious and m wanton and willful

disregard of the rights of others.

104.

The hostile work environment to which Defendants have subjected Reynolds is )n

violation ofthe New Jersey Law Against Disclimination, N.J. S.A. 10:5-1 et. seq.

WHEREFORE, Plaintiff, Reynolds, demands judgment against all Defendants for lost wages

and benefits, front pay, compensatory and punitive damages, plus costs, interest, attorney's fees

and such other relief as the Court deems just and proper.

COUNT V}

Discrimination on the Basis of Race, Color, and/or National Origin Against Lcighanne Reynolds in Violation of the New Jersey Law Against Discrimination, N.J. S.A. 10:5-1 et.
seg.

I 05,

Plaintin:~ incorporate the '-\vernlents of all preceding allegations of this Compi;lint

as though fully set forth herein.

20

Case 1:03-cv-02796-RMB-AMD Document 10 Filed 08/22/2003 Page 21 of 28

106.

Defendants discriminated against Reynolds because of race, color and/or national

origin.

107.

Defimdants treated Reynolds le~s favorably in the tenns and conditions of her

employment after discovering that her son was of Afbcan American and American Indian

descent by reprimanding her, refusing to answer her questions and treating her less favorably

than other employees.

108.

Defcndants have responsibility for the discriminatory conduct that occurred in the

workplace.

109.

Defendants knew or should have known about the discriminatory conduct, yct

failed to take prompt and effective remedial actions.

110.

Defendants conduct was intentional and malicious and in wanton and willful

disregard of the rights of others.

111.

The disparate treatment to which Defendants have subjected Reynold, IS 111

violation of the New Jersey Law Against Discrimination, N.J. S.A. 10:5-1 et. seq.

WHEREFORE, Plaintiff, Reynolds, demands judgment against all Defendants for lost wages

and benefits, front pay, compensatory and punitive damages, plus costs, interest, attorney's fees

and such other relief as the Court deems just and proper.

COUNT VII

Constructive Discharge in Violation oftbe New Jersey Law Against Discrimination. N.J. S.A. 10:5-1 et. seq.

112.

Plaintiffs incorporate the avennents of all preceding allegations of this Complaint

as though full y set forth herein.

I 13.

Deltmdan!s knowingly pemlit!ed an intimidating, hostile amI offensive workplace.

21

Case 1:03-cv-02796-RMB-AMD Document 10 Filed 08/22/2003 Page 22 of 28

I) 4,

The continuous pattern of discriminatory treatment to which Defendants subjected

Plainti n~ was so intolerable that Eileen Homer, Danelle Homer, Dayna Homer, Reynolds and

Hobo were forced to resign.

)) 5,

Defendants forced resignation of Plaintiffs is in violation of the New Jersey Law

Against Discrimination, N.J. S.A. 10:5·1 eL seq.

WHEREFORE, Plaintiffs demands judgment against all Defendants for lost wages and

benefits, front pay, compensatory and punitive damages, plus costs, interest, attorney's fees and

such other relief as the Court deems just and proper.

COUNT VIII

Aiding and Abetting by Richard Roche, .John P. Brown, Peter Wood, AI Av.ila and Michael Alfano in Violation of.he New .Jersey Law Against Discrimination,
N..J. S.A. 10:5·1 et. seq.

116.

Plaintiffs incorporate the averments of all preceding allegations of this Complaint

as though fully set forth herein.

117.

Defendants Roche, Drown, Wood, Avila and Alfano aided and abetted the entity

defendants in discriminating against Plaintiffs because of sex, race, color and/or national origin

and in the creation of a work environment that was hostile on the hasis of sex, race, color and/or

national origin.

118.

Defendants Roche, Brown, Wood, Avila and Alfano knew or should have known

ofthe discriminatory environment that was pennitted to exist.

119.

Defendants Roche, Brown, Wood, Avila and Alfano knew or should have Imown

about Plaintiffs complaints of discrimination and the hostile work environment, but failed to take

prompt, effective remedial action.

120.

Defendants Avila and Alfano participated in direct acts of discrimination and

participated in the creation of a hostile w()rk environment.

22

Case 1:03-cv-02796-RMB-AMD Document 10 Filed 08/22/2003 Page 23 of 28

121.

Ddendants Roch<:, Brown, Wood, Avila lllld Alfano substantially a~si~ted the

entity defendants in discriminating against Plaintiffs and creating a h051il<: work environment.

122.

Ddendunts have responsibility for the discriminatory conduct that occurred in the

workplace as aiders and ab<:ttors.

123.

Ddendants conduct was intentional and malicious and in wanton and willful

disregard of the rights of others.

124.

Defendants Roche, Brown, Wood, Avila and Alfano's conduct in aiding and

abetting the discriminatory conduct of the Entity Defendants is in violation or tbe New Jersey

Law Against Discrimination, N.J. S.A. 10:5-1 eL seq.

WHEREFORE, Plaintiffs demand judgment against all Delendants for lost wages and

benefits, front pay, compensatory and punitive damages, plus costs, interest, attorney's fees and such other relief as the Court deems just and proper.

COLJNTIX

Violation of the Equal Pay Act, 29 U.S.C. §206(d)(1)

125.

Plaintitl'S incOlporate the averments of all preceding allegations of this Complaint

as though fully set forth herein.

126.

Entity Defendants paid male employees more than Dayna Homer f()r substantially

equal work.

127.

Entity Defendants' conduct of paying Donald Kcrmcdy the $9.50 per hour for

part-time cmployment while refusing to do so f(l[ Dayna Homer is in violation of the Equal Pay Act, 29 U.S.C. §206(d)(l).

WHEREFORE, Plaintifj: Dayna Horner, demands judgment against all Defendants for lost

wages and benefits, and liquidated damages, plus costs, interest, aUomey's fees and such other relief as the Court deems just and proper.

Case 1:03-cv-02796-RMB-AMD Document 10 Filed 08/22/2003 Page 24 of 28

COUNT X

Discrimination on the Basis of Sex in Violation of Title Vll of the Civil Rights Act of 1964, as Amended

128.

Plaintiffs incorporate the avemlents of all preceding allegations of this Complaint

as though fhlly set fOlth herein.

129.

As sel /ilfth above, Plaintiffs suffered severc and pervasive discrimination on the

basis of their sex that detrimentally affectcd the terms and conditions of their employment, including repeated, crude, and indecent comments, coupled with the unwanted touching and sexual advances directed at Plaintiffs.

130.

Plaintiffs were subjected to a hostile work environment. Entity Defendants had

responsibility f()r the discriminatory actions taken in the workplace by Plaintiff);' supervisors and

co~workers.

131.

The discrimination to which Plaintiffs were subjected was so severe and pervasive

as to detrimentally affect reasonable women in Plaintiffs' positions.

132.

Entity Detendants discriminatory conduct is in violation of Title V11 or the Civil

Rights Act of 1964,42 U.S.c. §2000e, as amended by 42 U.S.C. §1981 a.

133.

Entity Dcfcndants discriminated against Plaintiffs with malice and reckless

indifference to their rights.

WHEREFORE, Plaintiffs demand judgment against all Entity Defendants for lost wages and benefits, Iront pay, compensatory and punitive damages, plus costs, interest, attorney's fees and such other relief as the Court deems just and proper.

24

Case 1:03-cv-02796-RMB-AMD Document 10 Filed 08/22/2003 Page 25 of 28

COUNT XI
Discrimination on the Basis of Se~ Against Eileen Homer in Violation of Title VII of the Civil Rights Act of 1964. as Amended.

134.

Plaintills incorporate the avennents of all preceding allegations of thiR Complaint

as though fully set forth herein.

135.

Entity Defendants treated Eileen Horner less favorably in hcr tenJ1S and

conditions of employment than similarly situated male employees by paying her on less

favorable terms and requiring bel' to work marc hours.

136.

Entity Defendants have responsibility for the discriminatory conduct that oCCUlTed

in the workplace.

137.

Entity Defendants knew or should have known about the discriminatory conduct,

yet failed to take prompt and effective remedial actions.

13il.

Entity Defendants discriminated against Plaintiff Eileen Homer with malice and

reckless indifference to their rights.

139.

Entity Defendants discrimination on the basis of sex is in violation of Title VII or

the Civil Rights Act of 1964, 42 U.S.C §2000e, as amended by 42 U.S.C §1981 'I.

WHEREFORE, Plaintiff, Eileen Homer, demands judgmcnt against Entity Defendants It)r

lost wages and benefits, front p'ly, compensatory and punitive damages, plus costs, interest, attorney's fces and such other relief as the Court deems just and proper.

COUNTxn

Discrimination on the Basis of Sex Aeainst Danelle Horner in Violation of Title VII o!'the Civil Rights Act of 1964, as Amended.

140.

Plaintifis incorporate the avennents of all preceding allegations of this Complaint

as though fully set f(.lrth herein.

25

Case 1:03-cv-02796-RMB-AMD Document 10 Filed 08/22/2003 Page 26 of 28

141.

Entity DctL'I1dants treated DanelJe Homer I~ss favorably in the ttlmlS and

conditions of her employment by rcnlsing to consider hm qualifications lor a position and filling the position with men.

142.

Entity Dcfendants have responsibility for the discriminatory conduct that occurred

in the workplace.

143.

Entity DefClldants knew or should have known about the discriminatory conduct,

yet failed to take prompt and effecti ve remedial actions.

144.

Entity Defendants discriminated i.lgainst PlaintifT Danelle lIomer with malice and

reckless indifference to their rights.

145.

Entity Defendants discrimination on the basis of sex is in violation of Title Vll or

the Civil Rights Act of 1964,42 O.S.c. §2000e, as amended by 42 U.S.C. §1981a.

WHEREFORE, Plaintiff, Danelle Homer, demands judgment against Entity Defendants for

lost wages and benefits, fhmt pay, compensatory and punitive damages, plus costs, interest, attorney'S fecs and such other relief as the Court decms just i.lnd proper.

COUNT XIII

Discrimination on the Basis of Sex Against DaynaHorner in Violation of Title VII of the Civil Rights Act of 1964, as Amended.

146.

Plaintifts incorporate the avenncnts ofal! preceding allegations of this Complaint

as though ful!y sct tillih herein.

147.

Entity Defendants discriminated against Dayna Homer on the hasis of sex.

148.

Entity Defendants treated Dayna Horner less favorably in the terms and

conditions of in that Defendants paid Dayna Homer less favorably than similarly situated male employees.

26

Case 1:03-cv-02796-RMB-AMD Document 10 Filed 08/22/2003 Page 27 of 28

J 49.

Entity Defendants havc responsibility It)r the discriminatory conduct that occurred

in the workplace.

J 50.

Entity Defcndants knew or should have known about thc discriminatory conduct,

yet failcd 10 take prompt and effcctive remedial actions.

151.

Entity Dcfendants discriminated against Plaintiff Dayna Homer with malice and

reckless indill"erence to their rights.

152.

Entity Defendants discrimination on the basis of sex is in violation of Title Vll or

the Civil Rights Act of1964, 42 U.S.c. §2000e, as amended by 42 U.S.c. §1981a.

WHEREFORE, Plaintiff, Dayna Homer, demands judgment against Entity Dcllmdants tor lost wagcs and bcnelits, front pay, compensatory and punitive damages, plus costs, interest, al!omey's fees and such other rclicf as (he COUtt deems just and proper.

COUNT XIV

Disc."illlination Against Reynolds on the Basis of Race, Color and/or National Origin in Violation of Title Vll of the Civil .Rights Act of 1964, as Amended

J 53.

Plainliff.~ incorporate the averments of all preceding allegations of thi~ Complaint

as though Jully set forth herein.

154.

As set forth ahove, Plaintiff Reynolds ~uffered severe and pervasivc

discrimination on the basis of race, color and/or national origin that detrimentally affected the

tenns and conditions of her employmcnt, induding repeated, racc based comments, hostile treatment and refusal by supervisors to assi~t her.

J 55.

Plaintiff was subjected to a hostile work cnvironment and disparate treatment

because of her association with her son, a palt A/ncan American, part American Indian individuaI.

J 56.

Entity Defendants had responsibility tor the di~criminatory adi(m~ tilken in the

workplace by Plaintiff's supervisors and co-workers. 27

Case 1:03-cv-02796-RMB-AMD Document 10 Filed 08/22/2003 Page 28 of 28

157.

'1 'he discrimination to which Plaintiff Reynolds was subjected was so severe and

pervasive as to detrimentally affect reasonahle WOmen in Plaintiff's positions.

158.

Entity Defendants discriminatory conduct is in violation of Title VI! or the Civil

Rights Act of 1964, 42 U.S.C. §2000e, as amended by 42 U.S.c. §1981 a.

159.

Entity Defendants discriminated against Plaintiff with malice and reckless

inditIerence to their rights.

160.

WHEREFORE, Plaintiff, Reynolds, demands judgment against Entity Defendants

t'Or lost wages and benet!!s, front pay, compensatory and punitive damages, plus costs, interest,

attomey's fces and such other relief as the Court deems - sl and

Dated: August 21, 2003

R EE C. VIDAL TARA A. MOSIER CURETON CAPLAN, P.C. 950B Chester Avenue Delran, NJ 08075

JURY DEMAND Plaintiffs demand a trial by jury with respect to all issues r .

Dated: August 21, 2003

R NEE C. VIDAL
TARA A. MOSIER CURETON CAPLAN, P.c. 950B Chester Avenue Delran, NJ 08075

28

 
 Case 1:03-cv-02796-RMB-AMD Document 55 Filed 01/28/2005 Page 1 of 8

NOT FOR PUBLICATION

(Docket Entry No. 27)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE

______________________________

:

EQUAL EMPLOYMENT OPPORTUNITY :

COMMISSION, et al.,

:

:

Plaintiffs, :

:

v.

:

:

FOODCRAFTERS DISTRIBUTION

:

COMPANY, et al.,

:

:

Defendants. :

_____________________________ :

Civil No. 03-2796 (RBK) OPINION

KUGLER, United States District Judge: This matter comes before the Court upon defendants'
motion for summary judgment on the claims of intervenor-plaintiff Eileen Horner ("Horner"). Defendants argue that Horner's claims, which arise out of her former employment, are barred by judicial estoppel because Horner failed to disclose these claims in her voluntary October 2002 petition for Chapter 13 bankruptcy. Horner opposes summary judgment, arguing that she disclosed her claims to the Chapter 13 Trustee during a November 2002 meeting of creditors, and that the bankruptcy court was aware of her claims at the time her Chapter 13 plan was confirmed.
For the reasons expressed below, defendants' motion for summary judgment will be denied.

Case 1:03-cv-02796-RMB-AMD Document 55 Filed 01/28/2005 Page 2 of 8

I.

SUMMARY JUDGMENT STANDARD

Summary judgment is only appropriate where the Court is

satisfied "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). An issue of material fact

exists only if "the evidence is such that a reasonable jury could

find for the nonmoving party." Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986).

II.

ANALYSIS

Judicial estoppel "should only be applied to avoid a

miscarriage of justice," and is "not intended to eliminate all

inconsistencies no matter how slight or inadvertent they might

be." Krystal Cadillac-Oldsmobile GMC Truck, Inc. v. General

Motors Corp., 337 F.3d 314, 319 (3d Cir. 2003). "Asserting

inconsistent positions does not trigger the application of

judicial estoppel unless 'intentional self-contradiction is . . .

used as a means of obtaining unfair advantage.' Thus, the

doctrine of judicial estoppel does not apply 'when the prior

position was taken because of a good faith mistake rather than as

part of a scheme to mislead the court.'" Ryan Operations G.P. v.

Santiam-Midwest Lumber Co., 81 F.3d 355, 362 (3d Cir. 1996)

(alteration in original) (citations omitted).

The Third Circuit has "identified certain criteria for

2

Case 1:03-cv-02796-RMB-AMD Document 55 Filed 01/28/2005 Page 3 of 8
determining when seemingly inconsistent litigation stances justify application of [judicial estoppel]." Krystal, 337 F.3d at 319.
First, the party to be estopped must have taken two positions that are irreconcilably inconsistent. Second, judicial estoppel is unwarranted unless the party changed his or her position "in bad faith - i.e., with intent to play fast and loose with the court." Finally, a district court may not employ judicial estoppel unless it is "tailored to address the harm identified" and no lesser sanction would adequately remedy the damage done by the litigant's misconduct. Id. at 319-20 (alteration in original) (quoting Montrose Med. Group Participating Sav. Plan v. Bulger, 243 F.3d 773, 779-80 (3d Cir. 2001)). Horner filed a Charge of Discrimination against the defendants with the EEOC on September 20, 2002. However, in her voluntary petition for Chapter 13 bankruptcy, signed October 10, 2002 and filed October 15, 2002, Horner declared under penalty of perjury that she had no "contingent or unliquidated claims of [any] nature." Horner did not file an amended disclosure in the bankruptcy court until June 11, 2004, after defendants' motion for summary judgment in the present case revealed her original omission. Defendants argue that these facts support application of judicial estoppel to the present case. Horner, however, certifies that she did verbally inform the Standing Chapter 13 Trustee of her potential lawsuit against
3

Case 1:03-cv-02796-RMB-AMD Document 55 Filed 01/28/2005 Page 4 of 8
the defendants during a meeting of the creditors on November 21, 2002. Further, Horner argues, the bankruptcy court was also made aware of her claims, as the order dated March 27, 2003 confirming her Chapter 13 plan makes reference to the "non-exempt proceeds of sexual harassment award, if any." That order, says Horner, is consistent with her understanding that "her claims in this case are part of the bankruptcy estate," and that the proceeds "would be used to pay any remaining debt of the bankruptcy in the event those proceeds were received prior to the completion of the bankruptcy plan."
A. Irreconcilably Inconsistent Positions It is unclear whether "nondisclosure, standing alone, can support a finding that a plaintiff has asserted inconsistent positions within the meaning of the judicial-estoppel doctrine." See Ryan, 81 F.3d at 362 (expressly leaving question open); but see Krystal, 337 F.3d at 320-21 ("Krystal's Inconsistent Representations"). However, this Court need not reach the issue, because there is insufficient evidence in this case that Horner acted in bad faith. B. Bad Faith The Third Circuit has expressly declined to adopt "a rule that the requisite intent for judicial estoppel can be inferred from the mere fact of nondisclosure in a bankruptcy proceeding." See Ryan, 81 F.3d at 364-65. However, "a
4

Case 1:03-cv-02796-RMB-AMD Document 55 Filed 01/28/2005 Page 5 of 8
rebuttable presumption of bad faith arises when averments in the pleadings demonstrate both knowledge of a claim and a motive to conceal that claim in the face of an affirmative duty to disclose." Krystal, 337 F.3d at 321 (citing Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 416-18 (3d Cir. 1988)).
Defendants contend that the facts of this case establish "knowledge of [the] claim and a motive to conceal that claim," as in Krystal and Oneida, such that bad faith may be inferred. Horner does not dispute defendants' assertion that she had enough information prior to confirmation to suggest that she might have a possible cause of action, and therefore that she had "knowledge" of the present claims under Krystal. However, Horner disputes the assertion that she had a motive to conceal those claims.
According to the defendants, the facts of the present case are analogous to those in Krystal, in which the Third Circuit found that the plaintiff had a motive to conceal its claims. Defendants argue that just as Krystal "had every reason to minimize its assets so that creditors would conclude they had no choice but to significantly compromise their claims and approve Krystal's reorganization," Krystal, 337 F.3d at 323, "Horner had every reason to attempt to conceal her claims against Defendants from her creditors and minimize her assets so that
5

Case 1:03-cv-02796-RMB-AMD Document 55 Filed 01/28/2005 Page 6 of 8
creditors might be persuaded to allow her and her husband to settle debts for less than the unpaid balances." Defendants add that "Horner had every reason to keep the potential windfall from a verdict against Defendants in this case for herself." Finally, defendants argue, "there is no evidence in the record to suggest a good faith mistake by Horner."
Defendants are incorrect in their assertion that there is no evidence of good faith in the record. The record contains Horner's certification that she revealed the existence of a potential lawsuit to the Chapter 13 Trustee during the November 21, 2002 meeting of the creditors. Although defendants cite cases from other circuits in which disclosure to the bankruptcy trustee was held insufficient to escape judicial estoppel, see In re Superior Crewboats, Inc., 374 F.3d 330 (5th Cir. 2004); Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778 (9th Cir. 2001), those cases are distinguishable. In Superior Crewboats, there was evidence that the plaintiff lied to the trustee about the nature and value of her claims. See Superior Crewboats, 374 F.3d at 335. In Hamilton, the trustee refuted plaintiff's statement that he had informed the trustee of his claims. See Hamilton, 270 F.3d at 784. Further, the Ninth Circuit appears to apply a judicial estoppel rule that does not take a nondisclosing plaintiff's intent into account. See id. at 783 (stating that judicial estoppel applies where the claim was not raised in the
6

Case 1:03-cv-02796-RMB-AMD Document 55 Filed 01/28/2005 Page 7 of 8
reorganization plan, debtor schedule, or disclosure statement, and where the bankruptcy court "accepted" the nondisclosure). Thus, Horner's disclosure to the Trustee is evidence of her good faith despite the cases cited by the defendants.
Further, the bankruptcy court's order of March 27, 2003, which accounts for the "non-exempt proceeds of sexual harassment award, if any," reveals that the bankruptcy court was also aware of Horner's claims at the time her Chapter 13 plan was confirmed. Evidence that a plaintiff disclosed potential claims outside the context of her debtor schedule or disclosure statement weighs against a finding that the plaintiff deliberately concealed those claims from the bankruptcy court, particularly where (as here) defendants have provided no evidence that the plaintiff actually derived any appreciable benefit from the nondisclosure. See Ryan, 81 F.3d at 363-64.
Because there is evidence here that both the Trustee and the bankruptcy court were aware of Horner's claims, there is evidence on the record of Horner's good faith. Therefore, this case is distinguishable from Krystal, in which no evidence of good faith was identified by the Third Circuit.
Even if the theoretical incentives identified by defendants——to settle debts for less than their unpaid balances and to keep a potential windfall verdict for oneself——are
7

Case 1:03-cv-02796-RMB-AMD Document 55 Filed 01/28/2005 Page 8 of 8

somewhat probative of a motive to conceal, any rebuttable presumption of bad faith raised thereby, see Krystal, 337 F.3d at 321, is overcome in this case by Horner's evidence of good faith. Horner's failure to raise her claims at the confirmation hearing is likewise insufficient evidence of bad faith, where the record shows that both the bankruptcy court and the Trustee already knew about the claims at that time. Cf. Ryan, 81 F.3d at 357, 365 (holding that district court erred in finding bad faith, though plaintiff failed to file an amended disclosure statement even after filing the lawsuit at issue).
Because the record contains insufficient evidence of Horner's bad faith, defendants have not met the second element of judicial estoppel, and their motion for summary judgment must be denied.

III.

CONCLUSION

For the reasons expressed above, defendants' motion for

summary judgment will be denied. The accompanying Order shall

enter today.

Dated: January 28, 2005

/s/ Robert B. Kugler

__

ROBERT B. KUGLER

United States District Judge

8

 
 Case 1:03-cv-02796-RMB-AMD Document 59 Filed 02/28/2005 Page 1 of 5 t

William J. Leahy, Esquire WJL-8514 Shari B. Schneider, Esquire SBS - 6487 Littler Mendelson, P.e. Three Parkway, 1601 Cherry Street, Suite 1400 Philadelphia, PA 19102-1321 267.402.3020

Attorneys for Defendant Strategic Outsourcing, Inc.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Plaintiff,
v.

CIVIL ACTION NO. 1:03CV02796(RBK)

FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., and LITTLE BROWNIE PROPERTIES, INC.
Defendants,
and
EILEEN HORNER, DANELLE HORNER (nlk/a Danelle Morgan), DAYNA HORNER, LEIGHANNE REYNOLDS and PAULA BOBO

STIPULATION OF DISMISSAL WITH PREJUDICE OF ALL CLAIMS ASSERTED AGAINST AND BY
DEFENDANT STRATEGIC
OUTSOURCING, INC.

Plaintiffs, ,

v.

FOODCRAFTERS DISTRIBUTING COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIE PROPERTIES, INC., STRATEGIC OUTSOURCING, INC. JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, ABC Corporations 2-10 being fictitious business entities yet unidentified; JANE/JOHN DOES 1-10 being fictitious individuals not yet identified

Defendants.

Case 1:03-cv-02796-RMB-AMD Document 59 Filed 02/28/2005 Page 2 of 5
f

IT IS HEREBY STIPULATED AND AGREED by and among the parties, by and through their respective undersigned counsel, that any and all claims filed against Defendant Strategic Outsourcing, Inc. ("SOl") and allY and all claims filed by SOl in connection with the above matter shall be and hereby are dismissed with prejudice, and without costs to any party.

'l)A:~LAN, P.C. laintiffs Eileen Homer, Danelle Homer n/kIa Danelle Morgan, Dayna
nne Reynolds and Paula Bobo

Renee Vidal, Esquire

-E-, Dated: February

2005

THOMAS J. SWEET, ESQUIRE and RICHARD E. WHITAKER, ESQUIRE Attorneys for Defendants Foodcrafters Distributing Company, Tropical Plant Carriers, Inc., Transystems, Inc., Little Brownie Properties, Inc., John P. Brown, Robert Roche,
Peter Wood, Al Avila and Michael Alfano

Thomas W. Sweet, Esquire

Dated: February _ _ _, 2005

Richard E. Whitaker, Esquire

Dated; February _ _ _, 2005

LITTLER MENDELSON, P.C. Attorneys for Defendant Strategic Outsourcing, Inc-

Shari B. Schneider, Esquire

Dated: February _ _ _, 2005

Philadclphi"S071L1 047103.1008

·1' '.

Case 1:03-cv-02796-RMB-AMD Document 59 Filed 02/28/2005 Page 3 of 5

IT IS HEREBY STIPULATED AND AGREED by and among the parties, by and through their respective undersigned counsel, that any and all claims filed against Defendant Strategic Outsourcing, Inc, ("SOl") and any and all claims filed by SOl in connection with the above matter shall be and hereby are dismissed with prejudice, and without costs to any party.

1~"..rLAN, P.C, laintiffs Eileen Horner, Danelle Horner n/kla Danelle Morgan, Dayna
ne Reynolds and Paula Bobo

;:;---+''';';':'f:7'';;---"'''-''==~---

~ Dated: February

Z005

THOMAS J. SWEET, ESQUIRE and RICHARD E. WHITAKER, ESQUIRE Attorneys for Defendants Foodcrafters Distrib\lting Company, Tropical Plant Carriers, Inc" Tr ystems, I , tttle BroV'!11ie Properties, Inc., John P. Brown, Robert Roche,
Peter 0 d, A Ila and Michael Alfano

~ Dated: February

2005

Richard E. Whitaker, Esquire

Dated: February _ _ _"2005

LITTLER MENDELSON, P.C. Attorneys for Defen<j.ant Strategic Outsourcing, Inc.

Shari B. Schneider, Esquire

Dated: February _ _ _,2005

Phil.d.lphia:S077Ll Q471 03.1 008

Case 1:03-cv-02796-RMB-AMD Document 59 Filed 02/28/2005 Page 4 of 5

IT IS HEREBY STIPULATED AND AGREED by and among the parties, by and through their respective Wldersigned counse~ that any and all claims filed against Defendant Strategic Outsourcing, Inc. ("SOl") and any and all claims filed by SOl in connection with the above matter shall be and hereby are dismissed with prejudice, and without costs to any party.
CURETON CAPLAN, P.C. Attorneys for Plaintiffs Eileen Homer, Danelle Homer nIkIa Danelle Morgan, Dayna Horner, Leighanne Reynolds and Paula Bobo

Renee Vidal, Esquire

Dated: February _ _ _, 2005

THOMAS J. SWEET, ESQUIRE and RICHARD E. WHITAKER, ESQUIRE Attorneys for Defendants Foodcrafters Distributing Company, Tropical Plant Carriers, Inc., Transystems, Inc., Little Brownie Properties, Inc., John P. Brown, Robert Roche, Peter Wood, Al Avila and Michael Alfano

Dated: February _~-.-', 2005

t,I Dated: February

2005

LITTLER MENDELSON, P.C. Attorneys for Defendant Strategic Outsourcing, Inc.

Shari B. Schneider, Esquire

Dated: February _ _-" 200S

Phil,dolpbia;S077L1 (4710),1008

. .
. '

Case 1:03-cv-02796-RMB-AMD Document 59 Filed 02/28/2005 Page 5 of 5 IT IS HEREBY STIPULATED AND AGREED by and among the parties, by and

through their respective undersigned counsel, that any and all claims filed against Defendant

Strategic Outsourcing, Inc. ("SOl") and any and all claims filed by SOl in connection with the

above matter shall be and hereby are dismissed with prejudice, and without costs to any party.

CURETON CAPLAN, P.C. Attorneys for Plaintiffs Eileen Homer, Danelle Homer nlkJa Danelle Morgan, Dayna
Homer, Leighanne Reynolds and Paula Bobo

Renee Vidal, Esquire

Dated: February _ _ _, 2005

THOMAS J. SWEET, ESQUIRE and RICHARD E. WHITAKER, ESQUIRE Attorneys for Defendants Foodcrafters Distributing Company, Tropical Plant Carriers, Inc., Transystems, Inc., Little Brownie Properties, Inc., John P. Brown, Robert Roche, Peter Wood, Al Avila and Michael Alfano

Thomas W. Sweet, Esquire

Dated: February _ _ _, 2005

Richard E. Whitaker, Esquire

Dated: February _ _ _, 2005

LITTLER MENDELSON, P.c. Attorneys for Defendant Strategic Outsourcing, Inc.

~~o..&>= SlB. Sc der, Esquire '

'Dated: February

;1.~, 2005

Phiiadelphia:S0771.1 0471031008

 
 Case 1:03-cv-02796-RMB-AMD Document 60 Filed 03/03/2005 Page 1 of 11

[Doc. No. 48]
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE HONORABLE ROBERT B. KUGLER

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v. FOODCRAFTERS DISTRIBUTION COMPANY, et al.,
Defendants, and EILEEN HORNER, et al.,
Intervenor Plaintiffs, v. FOODCRAFTERS DISTRIBUTION COMPANY, et al.,
Intervenor Defendants.

Civil No. 03-2796 (RBK)

ORDER This matter having come before the Court upon the motion of Plaintiff Equal Employment Opportunity Commission (“EEOC”), seeking a Protective Order to prevent Defendants from taking the deposition of EEOC investigator Karen McDonough, and the Court having reviewed the moving papers and the opposition thereto; and for the reasons set forth below and for good cause shown, the Court will deny the

1

Case 1:03-cv-02796-RMB-AMD Document 60 Filed 03/03/2005 Page 2 of 11
motion for a blanket protective order. However, the deposition of the EEOC investigator will be limited as set forth herein.
I. Background and Procedural History On June 11, 2003, the EEOC brought this sexual harassment suit on behalf of Eileen Horner, Danelle Horner, Dayna Horner, Leighanne Reynolds and Paula Bobo, all of whom have also filed complaints in intervention against Defendants and several individual employees of Defendants. See Memorandum in Support of EEOC’s Motion for a Protective Order (hereafter “Pl. Brief”), at 2. In the Complaint, the EEOC alleges that Defendants Foodcrafters Distribution Company, Tropical Plant Carriers, Inc., and Little Brownies Properties, Inc. (collectively “Foodcrafters”) violated Title VII by subjecting Intervenor Plaintiffs and a class of female employees to a sexually hostile work environment which resulted in their discharge. Id. Prior to filing suit, EEOC Investigator Karen McDonough conducted an investigation into the allegations of discrimination and found that reasonable cause existed to believe Foodcrafters had committed violations of Title VII. Id. at 3. Foodcrafters allegedly challenges the sufficiency of the EEOC’s investigation into this case and thus seeks to depose Ms. McDonough. Id. at 2-3. Discovery has been ongoing, and the EEOC filed the instant motion for a protective order to prevent the deposition of Ms. McDonough. Id. Specifically, the EEOC contends that it is entitled to a
2

Case 1:03-cv-02796-RMB-AMD Document 60 Filed 03/03/2005 Page 3 of 11
protective order because the sufficiency of its investigation is within its sole discretion. Id. at 4. In support of this assertion, the EEOC relies on EEOC v. Keco Industries, 748 F.2d 1097, 1101 (6th Cir. 1984), wherein the Court noted that other courts have not considered an objection to the sufficiency of the investigation as a ground for dismissing the charges of discrimination. Keco Industries, 748 F.2d at 1100. The EEOC further states that because its investigation and determination of reasonable cause is “not an adjudication of rights and liabilities,” the sufficiency of its investigation is not relevant to the merits of the underlying dispute. Pl. Brief at 4. Finally, the EEOC asserts that the governmental deliberative process privilege prevents any inquiry into Ms. McDonough’s analyses, opinions and recommendations concerning her investigation. Id.
In opposition to the EEOC’s motion, Foodcrafters asserts that the EEOC is not entitled to a protective order because Foodcrafters seeks to explore factual information during the proposed deposition and such information is not within the protection of the deliberative process privilege. See Defendants’ Memorandum in Opposition to EEOC’s Motion for a Protective Order (hereafter “Def. Brief”), at 6. With respect to the EEOC’s assertion that Ms. McDonough has no personal knowledge of the matters she investigated, Foodcrafters asserts that such claim is untenable because Ms. McDonough was “the investigator involved in a process
3

Case 1:03-cv-02796-RMB-AMD Document 60 Filed 03/03/2005 Page 4 of 11
that is a condition precedent to EEOC’s right to file suit.” Id. at 5. Foodcrafters further contends that in the event a question is posed at the deposition which calls for privileged information or information beyond the knowledge of the witness, counsel may note an appropriate objection to the question at that time. Id. at 7. However, Foodcrafters contends, preventing the deposition entirely would be unfair and prejudicial and without support in fact or law. Id.
II. Discussion The Federal Rules of Civil Procedure provide the Court with broad authority to prevent discovery or restrict its scope. See generally Fed.R.Civ.P. 26. As an initial matter, parties may only obtain discovery regarding matters that are "relevant to the claim or defense of any party" and are "not privileged." Fed.R.Civ.P. 26(b)(1). The Court may also permit "for good cause" discovery of matters that are "relevant to the subject matter involved in the action." Id. Here, Foodcrafters seeks to depose Ms. McDonough to determine facts she learned during the underlying investigation. See Def. Brief at 5. Although the parties have not specifically addressed the subjects of inquiry for the deposition, the EEOC investigator may have relevant information regarding the discrimination charges, including what she was told by the Intervenor Plaintiffs or other Foodcrafters employees that may corroborate their stories or fill in gaps in the event those who
4

Case 1:03-cv-02796-RMB-AMD Document 60 Filed 03/03/2005 Page 5 of 11
have been deposed are unable to recall basic information. Cf. EEOC v. Airborne Express, No. Civ. A. 98-1471, 1999 WL 124380, at *1-2 (E.D. Pa. Feb. 23, 1999).
Evidence that is relevant under Rule 26(b)(1) still may not be discoverable under the Federal Rules. Rule 26(c) provides the Court with authority to enter a protective order "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]" Fed.R.Civ.P. 26(c). Under the standard set forth in Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994), the moving party must demonstrate "good cause" to justify a protective order. The Third Circuit has defined "good cause" as follows:
'Good cause is established on a showing that disclosure will work a clearly defined and serious injury to the party seeking closure. The injury must be shown with specificity.' 'Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning,' do not support a good cause showing. Pansy, 23 F.3d at 786 (citations omitted). Whether good cause for such an order exists depends upon a "balancing of the harm to the party seeking protection (or third persons) and the importance of disclosure to the public." Id. at 787 (quoting Arthur R. Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 Harv. L. Rev. 427, 433-35 (1991)). In the present case, the EEOC has not met its burden of demonstrating good cause under Pansy for entry of the protective order it seeks. The Court notes that in Keco Industries, relied on
5

Case 1:03-cv-02796-RMB-AMD Document 60 Filed 03/03/2005 Page 6 of 11
by the EEOC, the Sixth Circuit held that it was error for the district court to examine the adequacy of the EEOC’s investigation on a motion for summary judgment because doing so would encourage a two-phase litigation in which the Court first inquires into whether the EEOC had a reasonable basis for its initial finding and then turns to the merits of the case. Keco Industries, 748 F.2d at 1100-01. However, the reasoning set forth in Keco Industries does not support precluding the deposition of an EEOC investigator in cases where the EEOC is a named party. See Airborne Express, 1999 WL 124380, at *2. Therefore, to the extent the EEOC investigator has knowledge of relevant facts, Foodcrafters is entitled to obtain such discovery. In this regard, the Court does not find that the EEOC has articulated good cause to warrant a protective order precluding the deposition of the EEOC investigator.
Furthermore, neither of the contentions raised in the EEOC’s supplemental brief constitute good cause justifying a protective order at this time. The Court notes the EEOC’s assertion that it has fully complied with the conciliation requirements of Title VII. See Supplemental Letter Brief in Support of Motion for a Protective Order dated January 10, 2005, at 2-3. This argument, however, does not support preclusion of the deposition of the EEOC investigator. The EEOC further contends in its supplemental brief that Foodcrafters has waived its right to challenge the sufficiency of the EEOC’s conciliation efforts. Id. at 4-5. Specifically, the
6

Case 1:03-cv-02796-RMB-AMD Document 60 Filed 03/03/2005 Page 7 of 11
EEOC asserts that under Fed.R.Civ.P. 9(c) it must only aver generally that all conditions precedent have been performed, yet Foodcrafters must raise any challenge to the performance of conditions precedent with a specific denial. Id. (citing Brooks v. Monroe Systems for Business, Inc., 873 F.2d 202, 205 (8th Cir. 1989)). The EEOC states that Foodcrafters failed to specifically deny the general allegation that all conditions precedent were performed. Id. at 4-5. The Court notes that several courts have precluded discovery concerning the substantive aspects of conciliation negotiations, reasoning that allowing such discovery would destroy the openness and informality of the conciliation process and would thereby frustrate the congressional intent behind the conciliation requirement of Title VII. See, e.g., Frazier v. Southeastern Pennsylvania Transportation Authority, Civ. A. No. 843004, 1988 WL 117869, at *4 (E.D. Pa. Nov. 1, 1988); Haykel v. G.F.L. Furniture Leasing Co., 76 F.R.D. 386, 392 (N.D. Ga. 1976). Thus, to the extent Foodcrafters seeks discovery on the substantive aspects of conciliation, such discovery is precluded. Moreover, while Foodcrafters may challenge whether the EEOC engaged in conciliation negotiations, the Court notes that the Foodcrafters Defendants did not raise a specific objection in their answers to the complaint as required by Fed.R.Civ.P. 9(c). Therefore, discovery into the procedural aspects of conciliation does not fall within the scope of discovery under Fed.R.Civ.P. 26(b)(1) because
7

Case 1:03-cv-02796-RMB-AMD Document 60 Filed 03/03/2005 Page 8 of 11
it does not appear to be "relevant to the claim or defense of any party[.]" Nevertheless, this rationale does not support precluding Foodcrafters from taking the deposition of the EEOC investigator as to her knowledge of other information that is relevant to the claims and defenses in this case.
Finally, the Court notes the EEOC’s assertion that Foodcrafters’ inquiry into the sufficiency of the investigation will purportedly create delay and diversion. Id. However, as set forth above, the EEOC investigator may have knowledge of relevant factual information which Foodcrafters may seek through a deposition. To the extent the EEOC believes that questions posed at the deposition are beyond the scope of discovery permitted by the Federal Rules, it may raise an appropriate objection at that time. The EEOC’s contention, however, does not justify entirely precluding the deposition of Ms. McDonough. In addition, the Court rejects the EEOC’s assertion that it would be “unduly burdensome to require the EEOC investigators to be subjected to depositions concerning their investigations.” Id. at 8. The Court notes that in Leyh v. Modicon, Inc., 881 F. Supp. 420, 425 (S.D. Ind. 1995), the district court granted a protective order preventing the deposition of an EEOC investigator because “[t]he EEOC has plenty of work to do investigating new complaints, and its principal responsibility is to serve the public as a whole, not to work for the benefit of particular litigants.” However, in finding that the
8

Case 1:03-cv-02796-RMB-AMD Document 60 Filed 03/03/2005 Page 9 of 11
litigants’ need for information did not justify imposing the burden of discovery on the EEOC, the court in Leyh distinguished those cases in which the EEOC was a party to the action from the case before the Court in which the EEOC was a non-party. Leyh, 881 F. Supp. at 425 n.3. Here, the EEOC is a party and Leyh is distinguishable on that ground. See Airborne Express, 1999 WL 124380, at *2. Consequently, the Court finds that a blanket protective order preventing Foodcrafters from deposing Ms. McDonough is not warranted here.
The Court further finds that the EEOC has not demonstrated that the deliberative process privilege applies to preclude the deposition. The government may invoke the deliberative process privilege to withhold communications regarding confidential deliberations of law or policymaking, reflecting opinions, recommendations or advice, based on the concern that “were [government] agencies forced to operate in a fish bowl, the frank exchange of ideas and opinions would cease and the quality of administrative decisions would consequently suffer.” See Redland Soccer Club, Inc. v. Dept. of the Army, 55 F.3d 827, 853-54 (3rd Cir. 1995), cert. denied, 516 U.S. 1071 (1996). The privilege, however, does not apply to factual information or to “communications made subsequent to an agency decision.” American Express, 1999 WL 124380, at *1 (citing Redland, 55 F.3d at 854). The Third Circuit has held that the governmental agency seeking to
9

Case 1:03-cv-02796-RMB-AMD Document 60 Filed 03/03/2005 Page 10 of 11
invoke the privilege must demonstrate its applicability and, in so doing, must present more than a general conclusion that the documents are privileged. See Redland, 55 F.3d at 854 (citing Schreiber v. Society for Savings Bancorp., 11 F.3d 217, 221 (D.C. Cir. 1993)). Moreover, only the head of the governmental agency may properly invoke the privilege, and may only do so after personally considering the material allegedly protected by the privilege. American Express, 1999 WL 124380, at *1 (citing United States v. Ernstoff, 183 F.R.D. 148, 152 (D.N.J. 1998)).
In invoking the deliberative process privilege, the EEOC states that “[a]ny inquiry into the EEOC investigator’s rationale, opinion of the evidence or any other activity that reflects her analyses, opinions or recommendations with respect to her investigation or the EEOC’s reasonable cause determination would be protected from disclosure by the governmental deliberative process privilege.” Pl. Brief at 6. However, the EEOC asserts the privilege without any supporting documentation, such as an affidavit identifying specific information to be shielded. See, e.g., Redland, 55 F.3d at 854 (discussing the government’s affidavits about internal, pre-decisional memoranda recommending courses of agency activity); see also Airborne Express, 1999 WL 124380, at *1; Rupert v. U.S., 1:CV-03-0421, 2004 WL 2110383, at *2 (M.D. Pa. Aug. 11, 2004). In addition, the EEOC has not indicated that the agency head personally asserted such privilege. The Court notes that an
10

Case 1:03-cv-02796-RMB-AMD Document 60 Filed 03/03/2005 Page 11 of 11
“indiscriminate claim of privilege” and a “‘generalized interest in confidentiality’” are insufficient bases to protect communications from disclosure. Torres v. Kuzniasz, 936 F. Supp. 1201, 1213 (D.N.J. 1996)(Kugler, J.). Furthermore, "[t]he privilege does not protect factual information . . . [or] apply to communications made subsequent to an agency decision. Moreover, even when the privilege applies, it is not absolute. The courts must balance on an ad hoc basis a number of factors." Airborne Express, 1999 WL 124380 at *1 (citing Redland, 55 F.3d at 1071). The Court therefore finds that the EEOC’s blanket invocation of privilege does not provide a sufficient basis for precluding the deposition.
CONSEQUENTLY, for the reasons set forth above and for good cause shown:
IT IS this 3rd day of March, 2005, ORDERED that the EEOC’s motion for a blanket protective order is DENIED; and it is further ORDERED that Foodcrafters shall limit the scope of inquiry during the deposition of the EEOC investigator consistent with this Order and the EEOC may assert any applicable privilege or objection in response to particular deposition questions in accordance with this Order.
s/ Ann Marie Donio ANN MARIE DONIO United States Magistrate Judge
cc: Hon. Robert B. Kugler 11

 
 Case 1:03-cv-02796-RMB-AMD Document 128 Filed 07/11/2006 Page 1 of 17

[Doc. No. 120]
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v. FOODCRAFTERS DISTRIBUTION COMPANY, et al.,
Defendants.
EILEEN HORNER, et al., Intervenor Plaintiffs, v.
FOODCRAFTERS DISTRIBUTION COMPANY, et al.,
Intervenor Defendants.
MONIQUE LOVENDUSKI, Plaintiff,
v. FOODCRAFTERS DISTRIBUTION COMPANY, et al.,
Defendants.

Civil No. 03-2796 (RBK)

ORDER This matter comes before the Court upon the motion of Plaintiffs, Eileen Horner, Danelle Horner, Dayna Horner, Leighanne

Case 1:03-cv-02796-RMB-AMD Document 128 Filed 07/11/2006 Page 2 of 17
Reynolds, and Paula Bobo, pursuant to FED. R. CIV. P. 37 to bar Charles A. Dackis, M.D. (hereinafter "Dackis") and Tracy Steen, Ph.D. (hereinafter "Steen") from serving as Defendants' FED. R. CIV. P. 35 examiners, strike the FED. R. CIV. P. 35 examination reports regarding Paula Bobo and Danelle Horner, and bar the trial testimony of Dr. Dackis and Dr. Steen. Plaintiffs also seek a protective order requiring that: (1) the examinations of the remaining plaintiffs be digitally recorded; (2) the FED. R. CIV. P. 35 examiner be permitted to have only one female staff level person present during the examination, who may not participate in the examination or preparation of the report; and (3) the FED. R. CIV. P. 35 examiner be prohibited from questioning Plaintiffs about sexual relationships, conduct, or activity unrelated to the matter of the lawsuit. The Court has considered Plaintiffs' moving papers, as well as Defendants' opposition thereto, and for the reasons set forth below, Plaintiffs' motion shall be denied.
The facts of the underlying dispute have been set forth in the District Court's Opinion dated February 24, 2006. Therefore, the Court shall only recount those facts relevant to the instant motion. On September 27, 2005, Defendants identified Dr. Dackis as their expert witness and requested that Plaintiffs schedule their independent medical examinations. See Intervening Plaintiffs' Memorandum of Law in Support of Motion to Bar Defendants' F.R.C.P. 35 Examiner, Strike his Report as to Paula Bobo and Danelle Horner and Bar Trial Testimony, and For a Protective Order [hereinafter "Pl. Br."] at 2. Plaintiffs Paula Bobo (hereinafter "Bobo") and
2

Case 1:03-cv-02796-RMB-AMD Document 128 Filed 07/11/2006 Page 3 of 17
Danelle Horner (hereinafter "Horner") attended their examinations on October 13, 2005 and October 14, 2005, respectively. See id.
Plaintiffs allege that the examinations of Ms. Bobo and Ms. Horner "were conducted in an inappropriate fashion," and that Defendants failed to identify Dr. Steen as one of the examiners. Id. at 1. Specifically, both Ms. Bobo and Ms. Horner assert that during their examinations they were subjected to "tag team" questioning by Dr. Dackis and Dr. Steen, and that their responses were cut off in order to ask additional questions. See id. at 2-3. Both Ms. Bobo and Ms. Horner also assert that the manner in which their examinations were conducted by Dr. Dackis and Dr. Steen made them feel uncomfortable, pressured, and intimidated. See id. Further, Ms. Bobo asserts that she was questioned about her relationship with her ex-husband, which ended over ten years before, and their "marital discord," see Affidavit of Paula Bobo at ¶ 6, and Ms. Horner asserts that she was questioned about prior relationships and whether she has any eating disorders, see Affidavit of Danelle Horner at ¶¶ 12-14. Additionally, Ms. Horner asserts that when she arrived for her examination she overheard Dr. Dackis engaged in a telephone conversation with a person she later learned to be Dr. Steen. See id. at ¶¶ 3-8. During this conversation, Horner asserts that Dr. Dackis stated: (1) "we need to build up the sexual relation between them"; (2) "we need to get to the bottom of the Michael Alfano thing. I don't know what kind of questions to ask her, so you have to help me."; and (3) that he wanted to "press the panic attacks," and "definitely want[s] to get
3

Case 1:03-cv-02796-RMB-AMD Document 128 Filed 07/11/2006 Page 4 of 17
into her being paralyzed and in the hospital for a week." Id. Based upon these assertions, Plaintiffs seek to bar Dr. Dackis and Dr. Steen from serving as Rule 35 examiners or testifying as expert witnesses and strike Dr. Dackis' report on Ms. Bobo and Ms. Horner, because of their alleged bias. See Pl. Br. at 1. Plaintiffs also seek a protective order governing the examinations of the remaining plaintiffs that requires recording of the examinations, limits attendance of the examinations to one female clerical staff member who cannot participate in the examination or preparation of the report, and prohibits the examiner from inquiring about the sexual relationships, conduct, or activity of remaining plaintiffs unrelated to the subject matter of the case. See id.
In opposition to Plaintiffs' motion, Defendants argue that the reports prepared by Dr. Dackis are "not improper or prejudicial in any respect," and that there is no basis to suppress them, or exclude Dr. Dackis as an expert witness, or prevent Dr. Dackis from performing the remaining independent medical examinations with Dr. Steen as an observer. Memorandum of Law in Opposition to Plaintiffs' Motion to Bar Defendants' F.R.C.P. 35 Examiner, His Report and Testimony at Trial and For a Protective Order For the F.R.C.P. 35 Examinations of Intervening Plaintiffs, Dayna Horner, Eileen Horner and Leighanne Reynolds [hereinafter "Def. Opp."] at 4. There is no evidence, Defendants assert, that Dr. Dackis is or has acted with bias or that he lacks the requisite impartiality to properly conduct independent medical examinations of the remaining plaintiffs. See id. at 10. Additionally, Defendants argue that
4

Case 1:03-cv-02796-RMB-AMD Document 128 Filed 07/11/2006 Page 5 of 17
the protective order sought by Plaintiffs is inappropriate in light of the fact that Plaintiffs' expert has already conducted his examinations, because imposing conditions on Defendants' examinations that were not imposed on Plaintiffs' examination would "create an unlevel playing field." Id. at 16. Further, Defendants assert that excluding Dr. Dackis at this time would be financially prejudicial to them given the extensive amount of work already done by Dr. Dackis. See id. at 4-5.
In an affidavit submitted along with Defendants' opposition to Plaintiffs' motion, Dr. Dackis contradicts the assertions of Horner and Bobo with respect to how their examinations were conducted. See Affidavit of Charles A. Dackis, M.D [hereinafter "Dackis Aff."]. Specifically, Dr. Dackis states that "he did not say 'we need to build up the sexual relation between them,'" or that he wanted to "press the panic attacks," as alleged by Ms. Horner. Id. at 3, ¶ 4. Dr. Dackis also denies that he and Dr. Steen engaged in "tag team" questioning. See id. at 4, ¶ 10. Rather, Dr. Dackis asserts that Dr. Steen only asked approximately 10-15 questions during the entire 2 ½ hour examination and that Ms. Horner "was in no way treated inappropriately." Id. at ¶ 10. Dr. Dackis further denies that Ms. Horner was ever cut off, asserting instead that she was allowed to talk freely throughout the examination. Id. at ¶ 11. With respect to the topics of inquiry, Dr. Dackis asserts that "[i]n order to properly evaluate Ms. Horner, it was necessary to take a sexual history, which was largely obtained by Dr. Steen in a professional manner," and that questions regarding possible
5

Case 1:03-cv-02796-RMB-AMD Document 128 Filed 07/11/2006 Page 6 of 17
eating disorders were "important in connection with her evaluation." Id. at ¶¶ 12, 14. Dr. Dackis asserts that Ms. Horner "gave no evidence of being intimidated," and that "[a]t no time did I or Dr. Steen intimidate or harass Ms. Horner." Id. at 5, ¶¶ 1617. The interview, Dr. Dackis asserts, was "professionally done and was conducted pursuant to normal protocol." Id. at ¶¶ 4-5. During his examination of Ms. Bobo, Dr. Dackis asserts that she "was never cut off in attempting to answer a question," nor was she "'tag teamed' by Dr. Steen and myself." Id. at ¶¶ 4-5. Dr. Dackis asserts that Ms. Bobo was questioned with respect to her ex-husband and their relationship because "[t]hat was important information to obtain in discharging the undertaking to prepare a report addressing Dr. Toborowsky's report." Id. at ¶ 6.
In reply to Defendants' opposition, Plaintiffs assert that the affidavit submitted by Dr. Dackis is "internally inconsistent," and fails to address both the fact that Dr. Steen was not authorized to participate in the examinations and the "inappropriate probing into irrelevant sexual history material and tag team questioning." Intervening Plaintiffs' Memorandum of Law in Reply to Defendants' Opposition to Motion to Bar Defendants' F.R.C.P. 35 Examiner, Strike His Report as to Paula Bobo and Danelle Horner and Bar Trial Testimony, and For A Protective Order [hereinafter "Pl. Rep."] at 1. Plaintiffs argue that Dr. Dackis has not disputed several of the statements attributed to him by Ms. Horner dealing with what type of questions he wanted to get into and how he was going to involve Dr. Steen in the examinations. See id. at 2.
6

Case 1:03-cv-02796-RMB-AMD Document 128 Filed 07/11/2006 Page 7 of 17
Additionally, Plaintiffs challenge Dr. Dackis' assertion that Dr. Steen only asked 10 to 15 questions, given Dr. Dackis' other assertion that the sexual history was primarily conducted by Dr. Steen. See id. Specifically, Plaintiffs assert that "[i]t is inconsistent to state that her participation was limited, but then attribute an important part of the examination that lasted for an extended period of time to questioning by Dr. Steen." Id. Plaintiffs also assert that Dr. Dackis never provided a medical or scientific rationale for taking the information to which Plaintiffs object. See id.
Federal Rule of Civil Procedure 35 allows the Court to order the physical or mental examination of a party for good cause when the mental or physical condition of that party is in controversy. See Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964). In this case, Plaintiffs Eileen Horner, Danelle Horner, Dayna Horner, Leighann Renolds and Paula Bobo do not dispute that their mental condition is in controversy or that Defendants have good cause for conducting examinations pursuant to FED. R. CIV. P. 35. See Pl. Br. at 4-5.1 Rather, Plaintiffs contest the impartiality of the psychiatrist chosen by Defendants to perform the mental examination, asserting that he is biased, and assert that he must be disqualified. See id. at 5. Accordingly, the issue is not whether a mental examination may be conducted, but (1) whether Dr.
1. Plaintiff Monique Lovenduski does assert that her mental condition is not in controversy and has filed a separate motion to preclude a Rule 35 examination. That motion will be addressed separately.
7

Case 1:03-cv-02796-RMB-AMD Document 128 Filed 07/11/2006 Page 8 of 17
Dackis can serve as the examiner and (2) if so, under what circumstances he may conduct the remaining examinations.
"Rule 35 confers on the moving party no absolute right to choose the examiner," and "the Court has the authority to reject an examiner proposed by a party upon a showing of bias or prejudice." McKitis v. DeFazio, 187 F.R.D. 225, 227 (D. Md. 1999) (citing 8A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2234.2, at 486 (2d ed. 1994)); see also Lahr v. Fulbright & Jaworski, LLP, 164 F.R.D. 196, 203 (N.D. Tex. 1995). In the instant case, as noted above, Plaintiffs assert that Dr. Dackis is biased because of the comments he allegedly made prior to his examination of Ms. Horner. See Pl. Br. at 6. Plaintiffs assert that Ms. Horner overheard Dr. Dackis state that "we need to build up the sexual relation between them," and "press the panic attacks" among other things. See id. However, Dr. Dackis has denied ever having made such comments. See Dr. Dackis Aff. at 3.
Clearly, there is a factual dispute concerning whether Dr. Dackis made certain statements to Dr. Steen. However, having reviewed the submissions, the Court finds that these statements, if accepted by the factfinder, do not demonstrate sufficient bias so as to warrant disqualification of Dr. Dackis from serving as Defendants' expert. As noted by one court, "bias or prejudice usually relates to external factors which would make it difficult for an examiner to render an independent opinion, such as financial ties to a party." Shinn v. Greeness, 2003 WL 22937732, at *1 (M.D.N.C. Dec. 9, 2003) (citing Duncan v. Upjohn Co., 155 F.R.D.
8

Case 1:03-cv-02796-RMB-AMD Document 128 Filed 07/11/2006 Page 9 of 17
23, 26 (D. Conn. 1994)). In Duncan, the Court cited examples of bias that would be sufficient to warrant rejection of the proposed expert, such as where a physician was a client of defendant's attorney, see 155 F.R.D. at 26 (citing Main v. Tony L. ShestonLuxor Cab Co., 89 N.W.2d 865 (Iowa 1958)), or where an attorney refused to answer questions about his business relationship with the proposed expert, see id. (citing Adkins v. Eitel, 206 N.E.2d 573 (Ohio 1965)). Here, however, the alleged bias relates to comments allegedly made, which Plaintiffs believe demonstrate that Dr. Dackis "was planning how he could create something out of his examination that was intended to assist the Defendants' case." Pl. Br. at 6. However, "[t]he mere fact that the examiner may have formed a preliminary opinion prior to the examination is not a ground for disqualification." Shinn, 2003 WL 22937732, at *1. To the extent that Plaintiffs assert that these statements were indeed made and demonstrate bias or demonstrate an unsupported opinion, they may attempt to impeach the witness at trial. See McKitis, 187 F.R.D. at 227 ("The issues raised by the defendant speak to the credibility of [the doctor's] opinions, not his qualifications to render them."). Moreover, Plaintiffs will be able to cross-examine Dr. Dackis with respect to issues of bias or prejudice during a deposition and in the event that he is called to testify at trial. See id. at 228; Lahr, 164 F.R.D. at 203. Therefore, the Court does not find a basis to bar the expert on bias grounds.
Plaintiffs also argue that Dr. Dackis should be barred from testifying with respect to Ms. Bobo and Ms. Horner because the
9

Case 1:03-cv-02796-RMB-AMD Document 128 Filed 07/11/2006 Page 10 of 17
examinations were inappropriately conducted in violation of Rule 35. See Pl. Br. at 7. Plaintiffs allege that the examinations were inappropriate because of the participation of Dr. Steen. See id. Plaintiffs assert that they were only given notice that Dr. Dackis would conduct the examinations, and "[h]ad Defendants requested that two doctors simultaneously examine the Intervening Plaintiffs, Intervening Plaintiffs' counsel would not have agreed." Id. at 8. While Defendants acknowledge that Dr. Steen "sat in at the first two interviews," they assert that she "asked no more than 10 to 15 questions in an aggregate of 4 ½ hours of interviewing," and that she "in no way engaged in any misconduct." Def. Opp. at 13. Plaintiffs, however, assert that "[i]t is inconsistent to state that [Steen's] participation was limited, but then attribute an important part of the examination that lasted for an extended period of time to questioning by Dr. Steen." Pl. Rep. at 2. Having reviewed the submissions, the Court finds that Defendant did not advise Plaintiffs prior to the examination that Dr. Steen would be participating in the examination. The question then is whether such failure to provide notice warrants the remedy Plaintiffs seek here - exclusion of the report and barring of Dr. Dackis' trial testimony. The scope of Dr. Steen's participation is factually disputed. The parties also dispute the effect of Dr. Steen's participation, with Plaintiffs stating in their affidavits that being questioned by both doctors made them feel intimidated. However, the Court finds that the fact that another doctor participated in the examination is not sufficient on its face to
10

Case 1:03-cv-02796-RMB-AMD Document 128 Filed 07/11/2006 Page 11 of 17
warrant exclusion of the report or to bar the expert. Cf. Romano v. II Morrow, Inc., 173 F.R.D. 271 (D. Ore. 1997) (permitting doctor and physical therapist on his staff to question the plaintiff). The Court does not find that the presence of Dr. Steen at the examinations of Ms. Bobo and Ms. Horner or the fact that Dr. Steen asked questions during the examinations warrant barring Dr. Dackis from testifying with respect to Ms. Bobo and Ms. Horner. Cf. id. Moreover, Plaintiffs shall be permitted to inquire of Dr. Dackis at his deposition as to Dr. Steen's role.
Plaintiffs also assert that the examinations of Ms. Bobo and Ms. Horner were inappropriate because of the "tag team" style of questioning allegedly employed, and because alleged inappropriate questions were asked. See Pl. Br. at 7-8. Plaintiffs assert that "[t]here is no medical purpose served by conducting a psychiatric examination in this manner," see id. at 7. As set forth above, Dr. Dackis has denied that a "tag team" style of questioning was employed, and has asserted both that the information solicited from the women was necessary in order to properly evaluate them and that the interviews were "professionally done and conducted pursuant to normal protocol." Dackis Aff. at 4-5.
Since the independent medical examination provides "the only opportunity for a defendant to have a plaintiff examined by defendant's expert, some preference should be given in allowing the examiner to exercise discretion in the manner and means by which the examination is conducted, provided it is not an improper examination." Ragge v. MCA/Universal Studios, 165 F.R.D. 605, 609
11

Case 1:03-cv-02796-RMB-AMD Document 128 Filed 07/11/2006 Page 12 of 17
(C.D. Cal. 1995); see also Hertenstein v. Kimberly Home Health
Case, Inc., 189 F.R.D. 620, 627 (D. Kan. 1999) (allowing inquiries
into the plaintiff's private sexual activity if the examining
physician "in his professional discretion has a need" for that
information). Discovery regarding the past sexual experiences of
a plaintiff in sexual harassment cases is governed by FED. R. CIV.
P. 26, although the Court must also consider FED. R. EVID. 412 "'in
order to not undermine [its] rationale.'" See Hertenstein, 189
F.R.D. at 627 (quoting Burger v. Litton Indus., No. 91-0918, 1995
WL 476712, at *2 (S.D.N.Y. Aug. 10, 1995)). Although Plaintiffs do
not cite to Hertenstein, they use the express language of that
opinion to support their argument that questions regarding
Plaintiffs' prior sexual relationships should be precluded. See
Pl. Br. at 12-13. However, the Hertenstein Court, in a suit
brought by an employee against an employer for sexual harassment
and retaliation, noted that
[t]o validly assess [a plaintiff's] mental state, the examiner must have leave to make relevant inquiries. To prohibit inquiry into private sexual activities may unreasonably restrict exploring the history of plaintiff relevant to this case. "To restrict a physician from questioning a patient during a physical [or mental] examination unduly restricts the physician's ability to obtain the information necessary to reach medical conclusions." See Romano, 173 F.R.D. at 273 (addressing the issue in the context of a physical examination). The court assumes the examiner will exercise sound professional discretion and will not pursue private information unrelated to the purpose for the examination. An examining physician under Rule 35(a) may ask the examinee such questions as are necessary to form an opinion about her condition and the cause of the alleged injury.
Hertenstein, 189 F.R.D. at 626. Thus, after considering both FED.
12

Case 1:03-cv-02796-RMB-AMD Document 128 Filed 07/11/2006 Page 13 of 17
R. CIV. P. 26 and FED. R. EVID. 412, the Court in Hertenstein found that "[i]nquiries about private, non-work-related sexual activity appear relevant to evaluate the cause and extent of psychological injuries alleged by plaintiff." 189 F.R.D. at 627. Here too, as stated above, Dr. Dackis has set forth by way of affidavit that the subject matter inquired about the past relationships of Ms. Bobo and Ms. Horner was necessary. Moreover, Plaintiffs have not produced any affidavits from their medical expert to dispute Dr. Dackis' assertions that the information he solicited was necessary for him to properly evaluate Ms. Horner and Ms. Bobo. Thus, the Court will not bar Defendants' report on this basis.
Having concluded that barring Dr. Dackis from serving as Defendants' FED. R. CIV. P. 35 examiner or prohibiting him from testifying with respect to Ms. Bobo and Ms. Horner is not warranted, the Court now considers under what circumstances he may conduct the remaining examinations. Plaintiffs seek a protective order requiring that: (1) the examinations of the remaining plaintiffs be digitally recorded; (2) the FED. R. CIV. P. 35 examiner be permitted to have only one female staff level person present during the examination, who may not participate in the examination or preparation of the report; and (3) the FED. R. CIV. P. 35 examiner be prohibited from questioning Plaintiffs about sexual relationships, conduct, or activity unrelated to the matter of the lawsuit. See Pl. Br. at 9-10.
Federal Rule of Civil Procedure 26(c) provides that a court "may make any order which justice requires to protect a party or
13

Case 1:03-cv-02796-RMB-AMD Document 128 Filed 07/11/2006 Page 14 of 17
person from annoyance, embarrassment, oppression, or undue burden or expense." In determining whether to make such an order, "'[t]he appropriate inquiry is whether special conditions are present which call for a protective order tailored to the specific problems presented.'" Bethel v. Dixie Homecrafters, Inc., 192 F.R.D. 320, 324 (N.D. Ga. 2000) (quoting Tirado v. Erosa, 158 F.R.D. 294, 299 (S.D.N.Y. 1994)). "It is the burden of the party seeking the special conditions to establish their existence." Id.
First, Plaintiffs seek to have the remaining examinations recorded. See Pl. Br. at 11. Plaintiffs assert that "[t]he mechanical recording of the remaining Intervening Plaintiffs' examinations would ensure that the examinations were conducted in a manner that is consistent with that to which the Plaintiff, Intervening Plaintiffs and Defendants agreed, and in a manner that is appropriate and professional." Id. Defendants oppose Plaintiffs' request that the remaining examinations be recorded, asserting that "[a]llowing plaintiffs to audio-record Dr. Dackis' examinations of plaintiffs while defendants are deprived of the benefit of an audio-recording of Dr. Toborowsky's examinations would create an unlevel playing field." Def. Opp. at 16.
"There does not appear to be any well-settled law either requiring or prohibiting the recording of such examinations." Gavenda v. Orleans County, 174 F.R.D. 272, 274 (W.D.N.Y. 1996); see also Shirsat v. Mutual Pharmaceutical Co., Inc., 169 F.R.D. 68, 71 n.2 (E.D. Pa. 1996) (describing three different approaches employed by courts in determining whether to permit observers or recording
14

Case 1:03-cv-02796-RMB-AMD Document 128 Filed 07/11/2006 Page 15 of 17
devices in psychological examinations). However, "[a]s a general rule, the safeguards in Rule 35(b) and the general discovery rules are sufficient to protect a party's rights." Gavenda, 174 F.R.D. at 274. In denying a plaintiff's request for an independent observer to be present during a psychological examination, the court in Shirsat found "that an observer, court reporter, or recording device, would constitute a distraction during the examination and work to diminish the accuracy of the process." 169 F.R.D. at 70; see also Bethel, 192 F.R.D. at 324 (agreeing with the reasoning of the Shirsat court and denying a plaintiff's request to have her attorney present during an examination); Hertenstein, 189 F.R.D. at 629 (finding that a plaintiff had "no right to the presence of any third person or mechanical recording device at the examination"); Tomlin v. Holecek, 150 F.R.D. 628, 631-32 (D. Minn. 1993) ("[T]he presence of a third person, physically or by tape[]recording, is inimical to the conduct of a valid psychiatric examination."). The Shirsat court also noted that the plaintiff there did not establish that any "unorthodox or potentially harmful techniques" would be employed by the examiner. 169 F.R.D. at 71.
Although Plaintiffs assert that a recording of the remaining examinations is necessary because the examiner has allegedly "cut off" the answers given by Plaintiffs, see Pl. Br. at 2-3, the Court notes that Defendants' expert disputes that assertion, see Dackis Aff. at 4. Moreover, as noted by Defendants, Plaintiffs' expert did not provide them with a recording of Plaintiffs' expert's examinations. The Court thus finds that the circumstances here do
15

Case 1:03-cv-02796-RMB-AMD Document 128 Filed 07/11/2006 Page 16 of 17
not warrant that the remaining examinations be recorded. Second, Plaintiffs request that only one female staff level
person be permitted to attend the remaining examinations, and that she not participate in the examination or preparation of the report. See Pl. Br. at 11. Plaintiffs argue that "the use of a PhD [sic] level 'female observer' who participates in the examination" is inappropriate. Id. In response to Plaintiffs' request, Defendants assert that "Dr. Steen's presence at future examinations will be in the capacity of a passive observer, nothing more." Def. Opp. at 16. The Court finds that barring Dr. Steen is not warranted and Defendants' agreement that Dr. Steen will solely observe and not participate in the remaining examinations addresses Plaintiffs' concern about alleged "tag team" questions.
Finally, Plaintiffs request that Dr. Dackis be prohibited from questioning Plaintiffs about sexual relationships, conduct, or activity unrelated to the matter of the lawsuit. See Pl. Br. at 12. Plaintiffs assert that such questioning "would serve no purpose other than to harass," and that FED. R. EVID. 412 excludes such information from evidence. Id. However, as noted above, Plaintiffs do not provide any expert affidavit to support their assertion in this regard. Therefore, for the same reasons that the Court rejected Plaintiffs' argument on this issue with respect to Defendants' expert report regarding Ms. Bobo and Ms. Horner, the Court will not issue a protective order precluding such inquiry. Rather, the Defendants' expert shall be permitted to ask such questions if, in his professional opinion, there is a need for such
16

Case 1:03-cv-02796-RMB-AMD Document 128 Filed 07/11/2006 Page 17 of 17
inquiry in order to form an opinion as to a plaintiff's condition and any cause thereof. See Hernstein, 189 F.R.D. at 627. However, nothing in this Order shall preclude Plaintiffs from challenging the admissibility of such evidence at trial on evidentiary grounds.
CONSEQUENTLY, for the reasons set forth above and for good cause shown,
IT IS on this 11th day of July 2006, ORDERED that Plaintiffs' motion to disqualify Defendants' FED. R. CIV. P. 35 examiner and for a protective order shall be, and hereby is, DENIED; and it is further ORDERED that Dr. Steen is prohibited from asking any questions during any future examinations conducted by Dr. Dackis.
s/ Ann Marie Donio ANN MARIE DONIO UNITED STATES MAGISTRATE JUDGE cc: Hon. Robert B. Kugler
17

 
 Case 1:03-cv-02796-RMB-AMD Document 132 Filed 09/08/2006 Page 1 of 17

U.S. Equal Employment
Opportunity Commission 2l South 5th Street Philadelphia, PA 19106 (215) 440-2688 Terrence R. Cook, Senior Trial Attorney Attorneys for Plaintiff Equal Employment Opportunity Commission

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION, et al.,)

)

Plaintiff;

)

)

v.

) CIVIL ACTION NO. 03-CV-2796

)

)

FOODCRAFTERS DISTRIBUTION )

COMPANY, et aI.,

)

Defendants. )

CONSENT DECREE Introduction
A. This action was instituted by the U.S. Equal Employmcnt Opportunity Commission ("the EEOC" or "the Commission") on June 11, 2003, against Foodcrafters Distributing Company, misnamed in the caption as Foodcrafters Distribution Company ("Foodcrafters"), Tropical Plant Carriers, Inc., and Little Brownie Propertics, Inc., (collectively, "Defendants") to enforce provisions of Title
VII of the Civil Rights of 1964, as amended, 42 U.s.C. § 2000c 9t seq. ("Title VII").
The Commission alleged that Defendants discriminatcd against Eileen Horner, Danelle Horner, Dayna Horner, Leighanne Reynolds and Paula Bobo and a class of female employees when it subjected them to a sexually hostile work environment in

Case 1:03-cv-02796-RMB-AMD Document 132 Filed 09/08/2006 Page 2 of 17
the form of unwanted sexually offensive l'emarks and behaviors from male managers and co-workers at Foodcrafters' Pennsauken, New Jersey facility. The Commi~~ion also alleged that as a result of the sexually hostile work environment and the failure to remedy the harassment, despite the complaints of these Foodcrafters' female employees, Eileen Horner, Danelle Horner, Dayna Horner, Leighanne Reynolds and Paula Bobo were constructively discharged during the time period of March 2002 through May 2002. Defendants deny all of these allegations.
B. This Consent Decree is entered into by and shall be final and binding between the EEOC and Defendants, their directors, officers, agents, successors and
assIgns.
C. The EEOC and Defendants agree to entry of this Consent Decree, which shall f,llly and f1nally resolve all claims the EEOC raised in its Complaint in Civil Action No. 03-cv-2796 (RBK). This Consent Decree shall not constitute either an adjudication of or f1nding on the merits of the Complaint and shall not be construed as an admission by Foodcrafters 01' any of the Defendants of any viola tion of Title VII.
D. The Consent Decree shall be in effect for an initial period of four (4) years from the date it is entered by the Court.
2

Case 1:03-cv-02796-RMB-AMD Document 132 Filed 09/08/2006 Page 3 of 17
Findings K Having carefully examined the terms and provisions ofthis Consent Decree, and based on the pleadings, record and stipulations of the parties, the COllt(, finds: (1) it has jurisdiction of t,he parties and ~ubject matter jurisdiction of thi~ action; and (2) the terms of this Decree are fair, reasonable, equitable and just, and adequately protect the rights of the parties, class members and the public interest. NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED THAT:
Non-Discrimination and Non-Retaliation 1. Foodcrafters is enjoined from harassment of any employee on the basis of sex in violation of Title VII. 2. Foodcrafters is enjoined from engaging in any employment practices which retaliate in any manner against any person, including but not limited to Eileen Horner, Danelle Horner, Dayna Horner, Leighanne Reynolds and Paula Bobo, because of that person's opposition to any practice made an unlawful employment practice under Title VII or because that person has made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under Title VII. 3. Foodcrafters shall not divulge, directly or indirectly, to any identifiable employer or potential employer of Eileen Horner, Danelle Horner, Dayna Horner, Leighanne Reynolds and Paula Bobo any of the facts or circumstances related to the claims of discrimination against Fooderafters in this case or any of the events
3

Case 1:03-cv-02796-RMB-AMD Document 132 Filed 09/08/2006 Page 4 of 17
relating to the participation of these identified persons in the litigation ofthls action, unless requited to do so by law.
4, Nothing in this Consent Decree, either by inclusion 01' exclusion, shall be construed to limit the obligations of Foodcrafters under Title VII or the EEOC's authority to proce8S or litigate any charge of discrimination now pending or filed in the future against Foodcraftel's.
Monetary Relief
5. Foodcrafters agrees to pay Eileen Horner, Danelle Horner, Dayna Horner, Leighanne Reynolds and Paula Bobo the sum total of Three Hundred Eighty Foul' Thousand Five Hundred dollars ($384,500.00), minus all lawful deductions and attorney's feeB. This sum was agreed upon by the parties in order to resolve this matter without need for further litigation. The settlement funds will be allocated between Eileen Horner, Danelle Horner, Dayna Horner, Leighanne Reynolds and Paula Bobo as set forth in Exhibit 1 (attached), and paid in accordance with a Release agreement with Defendants. The check(s) will be wailed to Renee Vidal, Esquire, Cureton Caplan, 3000 Midlantic Drive, Suite 200, Mt. Laurel, New .Tersey 08054, and a copy within five business days thereafter to the attention of Terrence R. Cook, Senior Trial Attorney, EEOC, 21 South Fifth Street, Suite 400, Philadelphia, PA 19106-2515,...1n order to receive the wonetary relief set forth above, Eileen Horner, Danelle Horner, Dayna Horner, Leighanne Reynolds
4

Case 1:03-cv-02796-RMB-AMD Document 132 Filed 09/08/2006 Page 5 of 17
and Paula Bobo will each be required to execute a Release as presented by FoodcraHers.
Posting of Notice 6. Within 20 business days after entry ofthis Decree, Foodcrafter....hall post at it!; facilities located in New Jersey and in its corporate headquarters in Apopka, Florida, on all bulletin boards regularly used by Foodcrafters for communieating with employees, same-sized copies of the Notice attached as Exhibit 2 to this Decree. The Notice shall remain posted for four years from the date of entry of this Decree. Foodcrafters shall provide to the attention of Terrence R. Cook, Senior Trial Attorney, EEOC, 21 South Fifth Street Suite 400, Philadelphia, PA 19106-2515, a list of the locations and the date of posting in each location within 40 days after entry of this Decree. If posted copies become defaced, removed, marred or otherwise illegible, Foodcl'afi,ers agrees to post a readable copy in the Ilame manner as heretofore specified.
Non-Discrimination and Anti-Harassment Policies and Complaint Procedures
7. Foodcl'afters' policy or policies against discrimination, harassment and retaliation and eomplaint procedures shall be draftod in plain and simple language. Foodcra rterll shall ensure that its policy or policies against discrimination, harassment and retaliation and related complaint procedures meet the following minimum criteria:
5

Case 1:03-cv-02796-RMB-AMD Document 132 Filed 09/08/2006 Page 6 of 17
(a) Foodcrafters' policy against discrimination and harassment shall state that Foodcraftcrs prohibits:: (i) discrimination against employees on the basis of national origin, sex, race, religion and color, and prohibits retaliation in violation of Title VII; (ii) retaliation against employees for opposing employment practices they reasonably believe arc discriminat.ory or for participating in an investigation by the EEOC or a state or local governmental agency of a charge of discrimination under Title VII; (iii) any act, policy or practice that has the effect of harassing or intimidating any employee on the basis of national origin, sex, race, religion or color in violation of Title VII; and (iv) any act, policy or practice that has the effect of creating, facilitating or permitting the existence of a work environment that is hostile to employees through acts such as physical/verbal abuse and derogatory comments based on national origin, Flex, race, religion or color in violation of Title VII;
(b) Foodcrafters' policy against discrimination and harassment shall include a complaint procedure designed to encourage employees to come forward with complaints regarding violations of its policy or policies against discrimination, harassment and retaliation, which shall meet the following minimum criteria: (.i) provide effective mechanism(s) for reporting.. incidents of discrimination, haraAsment and retaliation; (H) provide that the complaints of discrimination, harassment and/or retaliation can be made either in writing or verbally; (iii) identify employees in the Human Resources Department to whom an
6

Case 1:03-cv-02796-RMB-AMD Document 132 Filed 09/08/2006 Page 7 of 17
employee can make a complaint; (iv) provide a 24-hour toll·free message center with instructions that an employee may call to make a complaint of discrimination, harassment or retaliation; (v) provide t~hat, upon an employee's request to the Human Resources Department, Foodcrafters will offer assistance for filing a written complaint otherwise communicating during the investigation of a complaint; (vi) encourage prompt reporting hy employees; and (vii) provide assurances that complainants shall not be subjected to retaliation;
(c) provide for prompt investigation of complaints of harassment and/or retaliation;
(d) provide for prompt communication to the complaining party of the results of the investigation and any remedial actions taken or proposed; and
(e) provide for discipline up to and including discharge of an employee or supervisor who violateI'; Foodcrafter's policy or policies against discrimination, harassment and retaliation, and for increasingly severe discipline of repeat offenders.
8. Foodcrafters shall distribute to all of its employees and newly-hired employees in its New Jersey and Florida facilities, its policy or policies against discrimination, harassment and retaliation within 90 days after entry of this Consent Decree.
H. Within HO days after entry of this Consent Decree, Foodcrafters shall advise Terrence R. Cook, Senior Trial Attorney, EEOC's Philadelphia District
7

Case 1:03-cv-02796-RMB-AMD Document 132 Filed 09/08/2006 Page 8 of 17

Office, that its policy or policies against discrimination, harassment and retaliation

have been distributed to current employees and that new employees will receive

these policies and an opportunity to acknowledge receipt. Acknowledgment of

receipt forms will be made available. Foodcrafters will retain copies of any

acknowledgment of receipt form for an employee in both the employee's personnel

file and in a centralized file in the corporate Human Resources Department.

10. F'oodcrafters shall twice annually for the duration of the Consent

Decree send a copy of its policy or policies against discrimination, harassment and

retaliation to each employee.

Supervisor Accountability

11.

Foodcraftel's shall promote supervisor accountability by the

following conduct:

(a) providing annual anti-discrimination training to all of its

supervisory and managerial personnel;

(b) disciplining, up to and including discharge of any supervisor or

manager who violates Foodcrafters' policy or policies against discrimination,

harassment and retaliation;

(c) imposing on all managers and supervisory personnel a duty to

administer their work areas to ensure compliance with Foodcrafters' policy or

policies against discrimination, harassment and retaliation; and

8

Case 1:03-cv-02796-RMB-AMD Document 132 Filed 09/08/2006 Page 9 of 17

(d) requiring all managers and supervisors to report any incidents

and/ol' complaints of harassment and/or retaliation of which they become aware to

the Human Resources Department.

Training

12.

Foodcl'aftel's shall provide trailling 011 the requirements of Title

VII as followfl:

(a) Foodcrafters agrees to provide annual training sessions for all of

its managers and supervisors in New .Jersey and Florida, and to all Human

Resources Department employees by a trainer or vendor approved by the EEOC to

provide training on employee rights and employer obligations under both Title VII

and relevant state or local anti-discrimination laws, which training will emphasize

what constitutes unlawful harassment and discrimination in the workplace, how to

keep the company free from such discrimination, what constitutes unlawful

retaliation and will summarize how to conduct a prompt and effective investigation

into allegations, complaints or charges of discrimination;

(b) each training session will include a videotaped presentation by a

high-ranking official of Foodcrafters, emphasizing Foodcrafters' commitment to

prevent discrimination and harassment;

(c) Foodcrafters shall first provide training in accordance with

Paragraph 12 by no later than 120 calendar days after entry of this Consent Decree.

(d) In addition to the training described in Paragraph 12 within 120

9

Case 1:03-cv-02796-RMB-AMD Document 132 Filed 09/08/2006 Page 10 of 17
calendar days of thc entry of the Consent Decree, Foodcrafters shall provide training to all employees and supervisors in its Human Resources Department: regarding how to conduct a prompt and effective investigation into allegations, complaints or charges of employment discrimination,
(e) Foodcrafters shall obtaht the EEOC's approval of its proposed trainer prior to each yem"s training sessions.
(f) Foodcrafters agrees at its expense to provide the EEOC with copies of all pamphlets, brochures, outlines or other written materials provided to attendees of tl'aining sessions. Even though the EEOC has approved of or designated a trainer to provid., training for one year, it is not required to approve of or d.,o;ignat., the same trainer for future training sessions.
(g) Foodcrafters shall certify to the EEOC in writing within 10 business days after the training sessions required by Paragraph 12 has occurred that the training has taken place and the personnel who attended. Such certification shall include: (i) the dates, location and duration ofthe training session; (ii) a copy of the registry of at.tendance, including the name and position of each person in attendance; and (iii) a listing of all managers and supervisors in New Jersey and Florida and all employees and supervisors in it.s Human Resourcos Department as of the date of the training.
10

Case 1:03-cv-02796-RMB-AMD Document 132 Filed 09/08/2006 Page 11 of 17

Recordkeeping

13.

For a period of four years following entry of this Decree,

Foodcrafters shall document and retain in a centralized file in Corporate Human

Resources records of each complaint of an incident of discrimination or harassment,

based on sex and/or retaliation by any employee in Foodcrafters' New ,Jersey or

Florida facilities, reflecting the date the complaint was made, who made it, what

was alleged and the actions, if any, Foodcrafters took to resolve the matter, and

shall, at its expense, make such record" available for inspection and copying by the

EEOC. Foodcrafters also shall maintain records of all actions it takes to prevent

discrimination and harassment at all of its facilities, work sites and contract sites in

New Jersey and Florida during the term of this Consent Decree.

14. Foodcrafters shall make all documents or records referred to in

Paragraph 13 available for inspection and copying within 10 business days after the

EEOC so requests. In addition, Foodcrafters shall make available for interview all

persons in its employ whom the EEOC reasonably requests for purposes ofveriJYing

compliance with this Decree and shall permit a representative of the EEOC to enter

Foodcrafters' premises for such purposes on five business days' advance notice by

the EEOC.

15. Nothing in this Decree shall be construed to limit any obligation

Foodcraftets otherwi~e may have to maintain records under Title VII or any other

11

_-_ _-_ -- ._.... ..._ - - - - - _.... _---_... .._ . _ - - - - - - _..__ ........-
Case 1:03-cv-02796-RMB-AMD Document 132 Filed 09/08/2006 Page 12 of 17

law or regulation. After expiration of this Consent Decree, records will be

maintained by Foodcrafters as requil'ed by law and Commission regulations.

Reporting

16.

Foodcl'afters shall furnish to the EEOC the following written

reports semi-annually for a period offour years following entry ofthis Decree with

the firBt. report due six monthtl aft.er ent.ry of the Decree and the final report due 48

months after entry ofthe Decree. Each such report shall contain:

(a) for any complaint made by an employee of Foodcrafters, a

summary of the information recorded by Foodcrafters, including the name of the

complainant, the allegation of the complaint and any action taken by Foodcrafters

m response;

(b) a certification by Foodcrafters that the Notice required to be

posted by Paragraph 6 was posted during the six months preceding the report;

(c) a certification by Foodcrafters that it has or will distribute the

policy or policies against discrimination, harassment and retaliation twice annually

to employees, and that Foodcrafters has disseminated the policy or policies against

discrimination, harasBment and retaliation to all new employees hired within the

six-month period preceding the report;

(d) a certification that Foodcrafters has complied with training

requirements of this Consent Decree;

12

Case 1:03-cv-02796-RMB-AMD Document 132 Filed 09/08/2006 Page 13 of 17
(e) a summary of any additional actions Foodcrafters took to prevent discrimination, harassment and retaliation at all of its facilities, work sites and contract sites, in their New Jerlley and Florida locations, during the six-month period preceding the report.
Dispute Resolution 17. In the event either party to this Decree believes the other party has failed to comply with any provision(s) of the Decree, the complaining party shall notify the other party of the alleged non-compliance within 20 days of the alleged non-compliance and afford the alleged non-complying party 20 business days to remedy the non-compliance or l3atisfy the complaining party that the alleged noncomplying party has complied. If the alleged non-complying party has not remedied the alleged non-compliance or satisfied the complaining party that it has complied within 20 business days, the complaining party may apply to the Court for appropriate relief. Except for claims involving the Title VII rights of Eileen Horner, Danelle Horner, Dayna Horner, Leighanne Reynolds and Paula Bobo, this Decree shall not be deemed as a waiver by Foodcrafters of any defenses, procedural or otherwise, to any claim1hat Foodcrafters violated Title VII.
Miscellaneous Provisions
18. Each party to this Decree shall bear its own expenses, costs and attol'l1eys' fees.
13

Case 1:03-cv-02796-RMB-AMD Document 132 Filed 09/08/2006 Page 14 of 17
19. The terms ofthis Decree are and shall be binding upon the present and future representatives, agents, directors, officers, successors and assigns of Foodcrafters in their capacities as representatives, agents, directors and officers of Foodcrafters and not in their individual capacities. This paragraph 8ha11 not be construed as placing any limit on remedies available to the Court in the event any individual is found in contempt for a violation of this Decree.
20. This Consent Decree shall fully and finally resolve all claims which were raised by the EEOC in its Complaint in Civil Action No. 03·CV·2796 (RBK).
21. This Consent Decree shall be filed in the United States District Court for the District of New Jersey and shall continue in effect for four years. During this time, this Court shall retain jurisdiction over this matter and the parties for purposes of enforcing compliance with the Decree, including issuing such orders as may be required to effectuate its purposes. Any application by any party to modify or vacate this Consent Decree during such period shall be made by motion to the Court on no less than 30 days' notice to the other party. Should any material disputes under this Decree remain unresolved after this four.year period, the term of the Decree ~hall be automatically extended (and the Court will retain jurisdiction of t.his matter to enforce the Consent Decree) until such time as all disputes have been resolved.
22. The Clerk of the District Court is hereby directed to send a file· stamped copy of this Consent Decree to counsel of record.
14

88/29/C20a0s6e 11:023:5-8cv-024709768-3R94M9B75-AMD Document 1R3.E2. WHFITilAeKdE0R,9/P0.8A/2. 006 Page 15 oPfA1G7E 17/19

Gwendolyn Y01.Ulg R,eams Associate General Counsel W ington, D.C.

J cq line H. McNair
egional Attorney
Q;/L)L:tA c,. l}!1J..71-1 (,,--

Richard Whitaker, Esquire 301 East Pine Street, Suite 150
Orlando, FL 32801 Attorneys for Defendants

JUdith A. OBoyle
·, %~1.n~~o~J(E1-~t~

Terrence R. Cook Trial Attorney Philadelphia District Office

21 S. 5th Street, Suite 400

Philadelphia, PA 19106 (215) 440-2683

SO ORDERED:

By the Court:

E 'E MARIE BUMB UNITED STATES DISTRICT JUDGE

15

Case 1:03-cv-02796-RMB-AMD Document 132 Filed 09/08/2006 Page 16 of 17

Exhibit 1

EEOC, ct al., v. Foodcrafters, et al., C.A No. 03-2976 (RBK)

Allocation of Settlement ProceQds

Eileen HOI'nel'

$47,500.00

Danelle Horner

$37,500,00

Leighanne Reynolds

$33,500.00

Dayna Horner

$27,500.00

Paula Bobo

$27,500.00

Total

$173,500.00

16

00/311C21a31s3e6 1:0El3a:-.c~v~ -02796-RMB-AMD Document 1R3.2E. WFHiIlTeAdKE0R9,/0P8.A/2.006 Page 17 ofP1A7GE 1!!2/1!l2
:Exhibit 2
NQJlCE TQ ALL EMPLQYEES QF FOQDCWTERS
This Notice is post~d pursuant to a Consent Decrelll entered by the federal court for the District of New Jersey in J:;liiOC v. FOQdcrafters Distribution Company, Tropical Plant Carriers. Jnc" and !Attl!! Brownjo Properties, Inc., Civil Action Number 03-CV-2796 (RBK). resolving a lawsuit tiled by the Equal Employtnent Opportunity Commission ("EEOC") against Foodcrafters (IIFoodcrafters").
Title Vir of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ~ a, as amended (''Title VII"),
prohibits discrimination against emploYNS and applicants for employment based upon national origin, sex, race, color or religion. Title VII further prohibits retaliation against employees or applicants who avail themselves ofthc rights un<kr Title VII by engaging in protecl:A!d a.c;tivities, iuch as filing a charge of disorimination and/or testifying or participating in a Commission investigatioll. The EEOC is the federal agency which investigatos charges of unlawful employment discrimil)l!ltion. The BEOC blLS the authority to bring lawsuits in fedlmt! court to enforce Title VIT.
In its lawsuit, the EEOC alleged that Food~rs subjeoted a cllLSs of &male employees to harassment based on sex, and oonstructively discharged the cJass of female employees in violation of Title VII of the Civil Rights Act of 1964 ("Titllil VIl"). FQodcraiters denies these allegations.
To resolve the cue, Foodcrafters and the EEOC have entered into a Consent Decree which provided, among other things, that: (1) Foodcrafters remunerate the e1ass offemele employees; (2) Foodcratters not dlsoriminate On the basis of 5C~, ill the f\ltufli\j (3) Foodoraftefs not rCltaliat@ ag!lin~t any ponon beoause he or she opposed lIlY practice lOad" unlawful by Title VIT, filed a Title VII charge of discrimination, partioipated in any Title VII proceeding, or asserted any rights under the Consent Decree;
md (4) Foodcrafters will train all managers and supervisors in New Jersey and Florida and all employees and supervisors in its HIIl1lIIl1 Resources Department regarding discrimination,
hB.\"assment and retaliation, and regarding its policy prohibiting discrimination, harassmoot aod rlltaliation. If you believe you have beel} discriminated again~ you may contact the. EEOC at (215) 440-
2600. The EEOC chB.\"/!es no fees and has employees who speak languages other than English.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
This Notice must remain posted for four yeus from the dat~ below and must not be ail¢red, defaced or covered by My other matt!rial. Any questions about this Notice or compliance with its terms may be direoted to the: Regional Attorney, EEOC Philadelphia District Office, 21 South Sth Street, Philadelphia, PA 19106.
DATED: __~-r~_____
17

 
 Case 1:03-cv-02796-RMB-AMD Document 33 Filed 06/23/2004 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v. FOODCRAFTERS DISTRIBUTION COMPANY, et al.,
Defendants.
MONIQUE LOVENDUSKI, Plaintiff,
v. FOODCRAFTERS DISTRIBUTION COMPANY, et al.,
Defendants.

Civil No. 03-2796 (RBK) Civil No. 04-2394 (JEI)

ORDER FOR CONSOLIDATION FOR DISCOVERY PURPOSES ONLY
This matter having comes before the Court upon its own motion, pursuant to Federal Rule of Civil Procedure 42(a), and it appearing that the above-captioned matters involve common or similar allegations, having a common factual legal basis, and that the matters in Civil No. 04-2394 should be consolidated for disposition in one proceeding with Civil No. 03-2796;
IT IS this 23rd day of June 2004, hereby

Case 1:03-cv-02796-RMB-AMD Document 33 Filed 06/23/2004 Page 2 of 2 ORDERED that the matter docketed at Civil No. 04-2394
shall be, and it hereby is, CONSOLIDATED with the action filed in Civil No. 03-2796, for discovery purposes only.
s/ Ann Marie Donio ANN MARIE DONIO, UNITED STATES MAGISTRATE JUDGE cc: Hon. Robert B. Kugler Barbara Fisher-Arthur, Courtroom Deputy Hon. Joseph E. Irenas Denise Howard, Courtroom Deputy
2

 
 E.E.O.C. v. Foodcrafters Distribution Co., Not Reported in F.Supp.2d (2006)

2006 WL 489718 Only the Westlaw citation is currently available.
NOT FOR PUBLICATION United States District Court,
D. New Jersey.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
FOODCRAFTERS DISTRIBUTION COMPANY, et al., Defendants.
Eileen Horner, et al., Intervenor Plaintiffs, v.
Foodcrafters Distribution Company, et al., Intervenor Defendants.
Monique Lovenduski, Plaintiff, v.
Foodcrafters Distribution Company, et al., Defendants.
No. Civ. 03-2796(RBK), Civ. 04-2394(JEI). | Feb. 24, 2006.
Attorneys and Law Firms
Terrence R. Cook, US Equal Employment Opportunity Commission Philadelphia District Office, Philadelphia, PA, Katherine D. Hartman, Attorneys Hartman, Chartered, Moorestown, NJ, for Plaintiffs.
Renee C. Vidal, Cureton Caplan, Delran, NJ, for Intervenor Plaintiffs/Defendants.
Thomas W. Sweet, Attorney at Law, Far Hills, NJ, Sara D.Sheinkin, Littler Mendelson, New York, NY, for Defendants.
Opinion

(JEI). For the reasons set forth below, Defendants’ motion for summary judgment will be granted in part and denied in part, Plaintiffs’ motion to amend the complaint will be denied, and Plaintiffs’ motion to consolidate will be granted.

I. Background These motions address the sexual harassment and race and sex discrimination claims of several female employees of Foodcrafters Distribution, Co. (“Foodcrafters”), a trucking company with terminals in Cinnaminson and Pennsauken, New Jersey.1 Because Plaintiffs’ ability to surmount summary judgment of their claims depends in part on their subjective experiences at Foodcrafters, Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), the allegations of each Plaintiff are provided separately below.2

1

Although Defendants state that “Leighanne Reynolds’

claims of sexual and racial harassment should be

dismissed,” (Mot. at 38), they neither discuss

Reynolds’ claim of racial harassment, nor provide a

legal basis for summary judgment of this claim.

Accordingly, Defendants’ motion for summary

judgment of Reynolds’ allegations of racial harassment

will be denied.

2

The following facts are taken from Defendants’

statement of undisputed fact, filed pursuant to Local

Rule 56.1, and Plaintiffs’ response to Defendants’

statement of fact and counterstatement of disputed and

undisputed material fact. Defendants did not respond to

or oppose Plaintiffs’ statement and counterstatement of

undisputed fact.

OPINION
KUGLER, United States District Judge:
*1 This matter comes before the court upon motion by Defendants Foodcrafters Distribution, Co., et al., (“Defendants”) for summary judgment of the claims of Plaintiff Equal Opportunity Commission (“EEOC”) and Intervenor Plaintiffs Eileen Horner, Danelle Horner (n/k/a Danelle Morgan), Dayna Horner, Leighanne Reynolds, and Paula Bobo (collectively, “Intervenor Plaintiffs”), and cross motions by the Intervenor Plaintiffs to amend the complaint and to consolidate this case with Lovenduski v. Foodcrafters Distributing Company, et al., 04-CV-2394

A. Eileen Horner Eileen Horner began her career with Foodcrafters when it purchased the assets of her previous employer, Sunland Distributors, Inc. (“Sunland”), in December 1999. After the purchase, Foodcrafters hired Eileen Horner along with several other former Sunland employees, including Steve Scarani (“Scarani”) and Al Avila (“Avila”), to continue working in the trucking terminals. In April 2001, Eileen Horner threatened to resign from her position, allegedly because she found the work environment to be hostile. She remained at Foodcrafters because Michael Alfano (“Alfano”), a manager ordinarily stationed at the Florida office, gave her a raise and promised her that the conditions would be remedied. (Mot. at 9.) The working environment allegedly did not improve, and Eileen
1

E.E.O.C. v. Foodcrafters Distribution Co., Not Reported in F.Supp.2d (2006)

Horner left Foodcrafters in April 2002.
Eileen Horner describes numerous incidents of harassment involving several Foodcrafters employees, in particular Avila, Ken Brandt (“Brandt”), and Scarani. She claims that Avila made repeated sexual and derogatory comments towards women, including the statement that “women are only good for one thing: sex.” (Mot at 7, 8.) Avila also publicly discussed the breast size of a sales woman in the office, made comments about “what [he] would do with a woman like that,” and announced that he did not “get any anymore.” (Mot. at 10.)
In discussing the hiring process with Eileen Horner, Avila informed her that “he hired women according to their breast size, hair color (he preferred blondes) and their figures,” and he made comments such as “[d]on’t hire her, she’s too big,” “she’s a size 4,” and “I didn’t know you hired the hot blonde one.” (Pls.’ Facts at 22-23.) Avila allegedly hired a woman with no trucking experience, explaining his decision to Eileen Horner on the grounds that the new hire had large breasts and “made for great scenery,” and that “he would train her every day, as long as he kept on getting to look at her.” (Pls.’ Facts at 23.) Eileen Horner also claims he refused to hire a black female applicant, stating that “black women ‘stink” ’ and that he would not train or work with her. (Pls.’ Facts at 24.)
*2 Eileen Horner claims that Brandt made numerous comments about her appearance, including that she looked “sexy,” “looked good in jeans,” and had “a great body for a 45 year old woman.” (Mot. at 10.) On one occasion, he allegedly told her that they should purchase a case of beer and “party on the dock, all night long.” (Pls.’ Facts at 30.) Other employees told her that Brandt stared at her buttocks and made comments “in a low tone in a perverted nature .” (Mot. at 10.) Eileen Horner claims also that dock workers under Brandt’s supervision referred to Eileen Horner as a “MILF,” which stood for “Mother I Would-Like to F* *k.” (Pls.’ Facts at 30.) In addition, Brandt continuously made “sexually charged comments generally directed to office staff,” (Mot. at 10), and when Eileen Horner asked if he ever said anything clean Brandt replied, “No, I live for sex.” (Pls.’ Facts at 31.)
Eileen Horner also recounts a specific incident involving Foodcrafters employee William Walker (“Walker”). Evidently Walker entered the office while intoxicated and told Eileen Horner that she was “sexy,” his type of woman, and that he wanted to hug her. (Mot. at 10.) He then tried to grab Eileen Horner’s daughter and fellow employee, Dayna Horner, told her she looked “hot” and “sexy,” and hugged her and kissed her hand. (Mot at 10.) Foodcrafters terminated Walker’s employment, approximately a week after the incident, though it is disputed whether he was terminated because of his harassment or because he was intoxicated while at work.

Eileen Horner also alleges that Scarani openly discussed his sex life and made “sexual perverted comments” over the phone in the main office where Eileen Horner worked. She claims he ignored her requests that he have his conversations elsewhere. (Mot. at 8.)
Eileen Horner testifies that she brought the conduct to the attention of supervisors and made various other attempts to stop the alleged harassment, to no avail. She contends that Brandt was never reprimanded for his conduct, even though she complained about him on a regular basis to Avila and Alfano. (Pls.’ Facts at 41.) She claims further that Alfano responded to her complaints by saying that the girls had to be thick skinned because they were in the trucking industry. (Pls.’ Facts at 41.)
The record suggests that Eileen Horner herself was not entirely innocent of inappropriate workplace behavior. While at Sunland, Eileen Horner participated in procuring a private striptease dancer for her boss Guy Wortleman’s birthday. The extent of her participation in the incident is disputed, and she asserts that her sole involvement was that she “may have made a call to local birthday people that provide this, but I did not make the arrangements.” (Pls.’ Facts at 2.) It is undisputed, however, that Eileen Horner sent a birthday card to Alfano while she was working for Foodcrafters. The front of the card displays a photograph of a scantily clad woman and the text: “Happy Birthday, Big Boy! If you want a night of lust and debauchery, I can come over ...” The text on the inside of the card reads: “... and help you inflate your date.” Eileen Horner altered the word “I” on the front of the card to read “We,” and the card was signed by Eileen and Danelle Horner and another employee.
B. Danelle Horner *3 Foodcrafters hired Danelle Horner, the daughter of Plaintiff Eileen Horner, as a customer service representative in October 2000. She initially resigned from her position in August 2001 and later resumed employment on a part-time basis, resigning again by letter dated April 26, 2002.
Danelle Horner states that sexual jokes and comments were a daily occurrence in the office. (Pls.’ Facts at 20.) In particular, she alleges that Alfano once took off her shoe and tried to rub her foot until she yelled “stop” and started crying, and that he told her both in person and over the phone that she needed to “get laid” and that “getting a piece of ass would be the solution to all [her] problems.” (Mot. at 8, 12; Pls.’ Facts at 4, 7.) On another occasion, Alfano told her that her breasts were not big enough and that he would take up a collection for her to get breast implants, as long as he would be allowed to feel them. (Mot. at 13.)
2

E.E.O.C. v. Foodcrafters Distribution Co., Not Reported in F.Supp.2d (2006)

Danelle Horner also describes a bet made with Alfano during the basketball playoffs requiring the loser of the bet to wear the opposing team’s basketball jersey to work. Alfano allegedly asked her to wear the jersey with nothing on underneath and said he would buy it from the childrens’ department so it would be extra small. (Mot. At 12; Pls.’ at 7.) She protested that she would not wear the jersey, and Alfano responded by reminding her that he does payroll. (Pls.’ Facts at 27.)
Danelle Horner lists several incidents of misconduct by Avila including one occasion when he made gestures about a woman with big lips, “intimating that she would be good at giving ‘blow jobs,’ a reference to oral sex.” (Pls. Facts at 9.) She claims that when she would wear skirts, “Avila would comment on how her legs were, how nice she looked, how she got dressed up for him and how she looked sexy,” and also stated that it was going to be a “long hot summer with her.” (Pls.’ at 20.) Danelle describes a particular incident when a woman who was beaten up by a truck driver entered the office asking for assistance. (Mot. At 13.) She claims that Avila responded to the situation by commenting that: the woman got a golden shower, but not the right way, a reference to a perverted sexual act ... In response to the woman’s plea for help, Al Avila commented that she ‘probably beat herself up,’ ‘she’s nothing but trash,’ ‘women need to be smacked around,’ ‘they need to be put in their place,’ and that ‘they [women] are only good for one thing.’
(Pls.’ Facts at 8.)
Danelle Horner alleges that she reported some of the incidents to managers, but her complaints were unsuccessful. For example, she claims that Brandt made a comment in German, which was translated by coworker Lovenduski, who could also speak German, to mean “pull down my pants and sit on his face.” (Mot. at 14.) She reported the comment to Alfano, but Alfano “thought the comment was absolutely hysterical.” (Pls.’ Facts at 32.) She also told Alfano about Scarani’s lewd phone conversations, but the conversations continued. (Pls.’ Facts at 28.)
*4 In addition to her harassment claims, Danelle Horner alleges disparate treatment on the grounds that she was barred from applying for a dispatcher position at Foodcrafters in December 2001. Allegedly Avila and Alfano both told her that she could not apply for the position because, as a woman, she was “not geographically inclined” and because the drivers would not like taking orders from a woman. (Mot. at 14; Pls.’ Facts at 38.) Alfano also told her that she could nevertheless get the position by sleeping with the owner of the company. (Pls.’ Facts at 39.) Foodcrafters hired a

man for the position. The new hiree quit after three weeks, and Danelle Horner again asked if she could apply, and was again denied. Roche told Danelle at a meeting that “if she was willing to ‘cross the fence’ he would teach her the position,” but Foodcrafters again hired a man to fill the position. (Pls.’ Facts at 38.)
C. Dayna Horner Foodcrafters hired Plaintiff Dayna Horner, the daughter of Plaintiff Eileen Horner and the sister of Plaintiff Danelle Horner, in September 2001, to perform data entry and filing tasks. (Mot. at 16.) At the time, Dayna Horner was a sixteen year old high school student. She resigned in April 2002, at the same time as her sister.
Dayna Horner alleges specific incidents by various employees, including the previously-described situation involving Walker; however, most of Dayna Horner’s allegations relate to behavior by Brandt. In particular, she contends that Brandt made sexually inappropriate comments and jokes daily, and she states that “Ken Brandt, day-to-day, every day, every second, every time you saw him, every word that came out of his mouth was sexual.” (Pls.’ Facts at 12, 32.) She also alleges that Brandt made comments about what she was wearing and said she looked “sexy” and “hot today.” (Mot. at 17.) Dayna Horner describes a specific incident when she told Brandt that she would hit him if he continued to bring her stacks of weight tickets to work on, and Brandt responded, “Oh, baby, you’re getting me aroused, don’t leave me hanging like that, don’t make promises that you can’t keep.” (Pls.’ Facts at 31.) She claims that Brandt’s conduct continued, even after she asked him to stop his inappropriate behavior, (Pls.’ at 12.), and she alleges that Brandt hugged her and her sister in a suggestive and inappropriate manner after they quit their jobs.
D. Leighanne Reynolds Foodcrafters hired Leighanne Reynolds (“Reynolds”) as an office assistant on February 27, 2002. After Eileen Horner resigned, Foodcrafters hired nighttime manager Sadie Robertson to take her place, but Reynolds did not get along with Robertson. (Mot at 20.) Reynolds ultimately resigned on or around May 13, 2002.
The record suggests that Reynolds’ time at Foodcrafters was suffused with harassment, much of which was related to her side work as a private dancer. Although Reynolds’ disputes the extent of her dancing, (Pls.’ Facts at 14), Avila allegedly told the dock workers and drivers that Reynolds was a part-time private dancer, resulting in a number of harassing and suggestive comments directed towards Reynolds. (Pls.’ Facts at 21.) Reynolds recalls that Brandt once asked her if she would go to his house
3

E.E.O.C. v. Foodcrafters Distribution Co., Not Reported in F.Supp.2d (2006)

and dance on his pool table. (Mot. at 19.) On another occasion, Brandt told her that if he had $200.00 in his pocket he would love to see her take off her clothes. (Mot. at 19.)
*5 Reynolds also recounts statements made after her coworkers discovered that she has a biracial son. In particular, she alleges that Brandt told a joke about a black man raping a white woman, and called Reynolds a “waste of a good white woman.” (Mot at 19; Pls.’ Facts at 34.) After Foodcrafters hired a black dock worker, Brandt “commented that they had to keep Reynolds off the dock because he [the new employee] was black,” and Reynolds would be “salivating.” (Pls.’ Facts at 34.) Avila also reacted negatively upon learning that Reynolds’ son was bi-racial, and admitted that his attitude toward her changed. (Pls.’ Facts at 25, 26.) He also made a number of comments that he (Avila) was “the wrong color,” (Mot at 19; Pls.’ at 25), and referred to Reynolds as “a waste of a blonde.” (Pls.’ Facts at 26.)
Reynolds also alleges harassment aside from the incidents related to her dancing and her son. In particular, she claims that Avila would “gawk” at her, stare at her buttocks, comment on her tight jeans, and touch her toes. (Mot. at 19, 20; Pls.’ Facts at 21.) Avila allegedly referred to her as a “dumb blonde” and “trashy,” and stated that he did not want her employed at Foodcrafters. (Pls.’ Facts at 15.) Reynolds claims that she often overheard Brandt discussing his sex life, that Brandt made sex comments every day, and that “that’s all you heard all day.” (Mot. at 19; Pls.’ Facts at 14, 33.)
E. Paula Bobo Foodcrafters hired Paula Bobo (“Bobo”) on February 23, 2001, to fill a part-time data entry position on Friday nights. She also worked Tuesday evenings for a period during her employment. She resigned May 10, 2002.
Bobo claims Avila and Alfano made comments about how good she looked and would “laugh and giggle while staring at her body.” (Mot. at 22; Pls.’ Facts at 17.) Upon “learning that Paula Bobo was engaged, Avila told her that she must be ‘putting out’ pretty good to get the diamond that she did.” (Pls.’ Facts at 21.) She recounts a conversation with Brandt on one occasion where Brandt told her that his girlfriend was not upset that he did not have money because “as long as I bring a bottle of wine and my dick works, she’s fine.” (Pls.’ Facts at 33.)
Bobo also describes two separate encounters with Foodcrafters truck drivers. In the first incident, she claims that driver Jerry Jobe grabbed and tickled her neck and told her that he remembered the first time she “turned him on.” (Mot. at 22; Pls.’ Facts at 17 .) In the second incident, driver Robert Tull referred to Sadie Robertson as the “big

ass black mama.” (Mot. at 23.) He then looked at Bobo and said she had a “black woman’s ass that was good for fucking doggy style,” and pantomimed the act. (Mot. at 23; Pls.’ Facts at 18.)
Bobo also claims that she was offended by harassment directed towards other employees, for example when she overheard the basketball jersey bet between Danelle Horner and Alfano, and when Alfano teased Danelle Horner about her breast size. (Mot. at 12, 22, 23.) Bobo claims that this kind of discussion “was a constant.” (Pls.’ at 27.) Bobo also alleges that there was a drawing of a penis on the wall near the time clock in the Pennsauken terminal. (Pls.’ at 23.)
F. Procedural History *6 The Intervener Plaintiffs filed charges of discrimination with the EEOC on September 20, 2002. The EEOC filed a lawsuit before this court on Jule 11, 2003, against Foodcrafters, Tropical Plant Carriers, Inc., and Little Brownie Properties, Inc. Upon receiving permission to intervene, the Intervener Plaintiffs filed a Complaint on August 21, 2003, adding as Individual Defendants Foodcrafters President Robert Roche (“Roche”), Little Brownie Properties President John P. Brown (“Brown”), and TSI President Peter Wood (“Wood”), Alfano, and Avila, (collectively, “Individual Defendants”). Defendants now move for summary judgment of all claims. Plaintiffs cross move to amend their Complaint and to consolidate their claim with that of Monique Lovenduski, currently pending before the Honorable Joseph E. Irenas.
II. Standard Summary judgment is appropriate where the Court is satisfied 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. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists when “the evidence is such that a reasonable jury could find for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The burden of establishing the nonexistence of a “genuine issue” is on the party moving for summary judgment. Celotex, 477 U.S. at 330. The moving party may satisfy this burden by either (1) submitting affirmative evidence that negates an essential element of the nonmoving party’s claim; or (2) demonstrating to the Court that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s case. Id. at 331. If the moving party has not fully discharged its initial
4

E.E.O.C. v. Foodcrafters Distribution Co., Not Reported in F.Supp.2d (2006)

burden, its motion for summary judgment must be denied. Id . at 332. If the moving party satisfies its initial burden, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e).

III. Analysis
A. Aiding and Abetting Although individuals in supervisory positions are not personally accountable as employers under the New Jersey Law Against Discrimination (“NJLAD”), they can be individually liable for aiding and abetting discriminatory or harassing conduct pursuant to N.J.S.A. 10:5-12e. Tarr v. Ciasulli, 181 N.J. 70, 82-83, 853 A.2d 921 (2004).3 The Intervener Plaintiffs contend that the Individual Defendants’ failure “to take any action in response to the Intervener Plaintiffs’ repeated pleas for assistance” is cognizable as aiding and abetting under the statute. (Inter. Pls.’ Opp’n. at 9.)

3

N.J.S.A. 10:5-12e makes it unlawful “[f]or any person,

whether an employer or an employee or not, to aid,

abet, incite, compel or coerce the doing of any of the

acts forbidden [under the LAD].”

To establish aider and abetter liability, the plaintiff must show that (1) the party defendant aided performed a wrongful act that caused an injury; (2) the defendant was “generally aware of his role” as part of the tortious activity “at the time that he provides the assistance”; and (3) the defendant knowingly and substantially assisted the violation. Tarr, 181 N.J. at 84, 853 A.2d 921 (quoting Hurley v. Atlantic City Police Dept., 174 F.3d 95, 127 (3d Cir.1999) (citations omitted)). Consistent with Restatement (Second) of Torts § 76(b) (1979), courts look to five factors to determine whether a defendant provides “substantial assistance”:
*7 (1) the nature of the act encouraged, (2) the amount of assistance given by the supervisor, (3) whether the supervisor was present at the time of the asserted harassment, (4) the supervisor’s relations to the others, and (5) the state of mind of the supervisor.
Id. at 84-85 (citing Rest.2d Torts, supra, § 876(b) comment d).
Courts have yet to clarify the extent to which a supervisor is personally liable for his failure to prevent harassment and discrimination in the workplace. On the one hand, the

New Jersey Supreme Court has established conclusively that aiding and abetting requires some “active and purposeful conduct.” Tarr v. Ciasulli, 181 N.J. at 82-83, 853 A.2d 921 (reasoning that dictionary definitions and the juxtaposition of “aid” and “abet” with “incite,” “compel,” and “coerce” requires some form of active assistance). Consequently, the plaintiff must show that the defendant “knowingly and substantially” assisted the wrongdoer; mere negligent supervision is not enough. Id. at 85, 853 A.2d 921 (holding that defendant could not be liable for lack of evidence that he “encouraged any of the wrongful conduct against plaintiff, that he assisted the wrongdoers, or that he was even present when the wrongful conduct occurred”).
On the other hand, inaction can be sufficient to establish liability where “it rises to the level of providing substantial assistance or encouragement.” Hurley, 174 F.3d at 126 (quoting Failla v. City of Passaic, 146 F.3d 149, 158 (3d Cir.1998)) (holding that supervisor could only be liable for failure to accommodate disabled employee if he knew the failure to accommodate was a breach of his employer’s duty and “if his inaction actually assisted or encouraged the unlawful act”). Because a supervisor has “a duty to act against harassment” under New Jersey law, deliberate indifference to harassment can rise to the level of aiding and abetting. Hurley, 174 F.3d at 126. Thus, in Hurley, the Third Circuit held that the supervisor could be liable as an aider and abetter in part because “[a]s part of the chain of command that [plaintiff] was expected to follow, he controlled her access to the most effective potential solutions to the harassment,” but “laughed” at her complaints and personally participated in the harassment. Hurley, 174 F.3d at 127.
Consistent with the evidentiary record, the Court will grant summary judgment as to Defendants Wood and Brown and will deny summary judgment as to Defendant Roche.4 Plaintiffs’ allegations against Wood and Brown are limited to single incidents: Plaintiffs claim that Brown was present when employee Michael Crull informed Roche of the harassment problems in the Foodcrafters terminals, (Pls .’ Facts ¶ 146), and that Wood attended the meeting where Danelle Horner complained that she was not permitted to apply for the dispatcher position. (Inter. Pls.’ Opp’n. at 9.) These facts alone do not amount to a claim that Wood and Brown substantially assisted or encouraged the harassing conduct. Furthermore, Plaintiffs provide no evidence that Wood, as president of Transystems, Inc., bore any responsibility to address personnel conflicts in the trucking terminals or otherwise neglected a duty to personally intervene.

4

Defendants do not request summary judgment of

Plaintiffs’ claims against Avila or Alfano, and are

therefore not entitled to summary judgment of those

claims.

5

E.E.O.C. v. Foodcrafters Distribution Co., Not Reported in F.Supp.2d (2006)

*8 Plaintiffs’ allegations against Roche are somewhat more substantial. In particular, Plaintiffs provide evidence that Roche knew of the harassment in the Foodcrafters terminals, and knew that Danelle Horner was told she could not apply for a dispatcher position because of her gender. The record suggests further that Roche was often unresponsive to Plaintiffs’ direct appeals to remedy the harassing environment. (Pls.’ Facts at ¶ 145, 147.) Like the defendant police captain in Hurley, Roche held a supervisory position that imposed on him a duty to respond to Plaintiffs’ complaints and address workplace abuses. Also as in Hurley, the record suggests that Roche himself participated in the abusive conduct. (Pls.’ Facts at ¶ 148.) Although aider and abetter liability cannot attach for one’s own harassing conduct. See Harmon v. Bemis Co., Inc., 2005 WL 1389174, *10 (N.J.Super.L.2005) (noting that one “cannot aid and abet his own wrongful conduct”) (citing Newsome v. Administrative Office of the Cts., 103 F.Supp.2d 807, 823 (D.N.J.2000)), Roche’s treatment of the female employees could easily have encouraged the harassing conduct of his subordinates, establishing that “harassing women was part of” the trucking environment. See Hurley, 174 F.3d at 127.
Although the evidence against Roche is by no means conclusive, Plaintiffs have presented a material question of fact as to whether Roche substantially assisted and encouraged the harassment. Accordingly, summary judgment will be granted as to Plaintiffs’ claims against Wood and Brown, and will be denied as to Plaintiffs’ claims against Roche.

B. Hostile Work Environment Claims To establish a claim for “hostile work environment sexual harassment” under Title VII,5 the plaintiff must demonstrate that she (1) “suffered intentional discrimination because of [her] sex;” (2) the discrimination was “severe or pervasive”;6 “(3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) the existence of respondeat superior liability.” Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir.1990). Defendants argue that the alleged conduct is not sufficiently severe or pervasive to constitute a Title VII or NJLAD violation, particularly in the context of a workplace environment such as a trucking terminal.

5

Under Title VII, it is unlawful for an employer “to

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of

employment because of such individual’s race, color,

religion, sex, or national origin.” 42 U.S.C. §

2000e-2(a)(1).

6

In Jensen v. Potter, Slip Op. filed January 31, 2006, at

n. 3, the Third Circuit definitively adopted the Supreme

Court’s “severe or pervasive standard.” Id. (emphasis in

original) (citing Pa. State Police v. Suders, 542 U.S.

129, 133, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004)).

Prior to Jensen, the Third Circuit oscillated between a

“severe or pervasive” and a “pervasive and regular

standard.” Abramson, 260 F.3d at 277; Bouton v. BMW

of N. Am., Inc., 29 F.3d 103, 106 n. 2 (3d Cir.1994);

Spain v. Gallegos, 26 F.3d 439, 449 n. 14 (3d

Cir.1994); but see Walton v. Mental Health Ass’n of

Southeastern Pa., 168 F.3d 661, 667 (3d Cir.1999)

(articulating a “pervasive or severe” standard).

1. Objective Factor Defendants argue correctly that merely offensive conduct does not constitute unlawful harassment. As the Supreme Court cautions in Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), courts must take care to avoid applying Title VII as a “general civility code” to address “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.” Id. at 788. Thus, the “mere utterance of an ethnic or racial epithet,” “[d]iscourtesy or rudeness,” and “simple teasing, offhand comments, and isolated incidents (unless extremely serious)” typically do not rise to the level of a Title VII or NJLAD violation because they do not “alter the terms and conditions of employment.” Id. at 787, 788; see also Kidd v. MBNA Am. Bank, N.A., 93 Fed. Appx. 399 (3d Cir.2004) (holding isolated incidents by single co-worker insufficient to establish hostile work environment).
*9 However, summary judgment is inappropriate in the face of evidence that the “workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Abramson v. William Paterson College of New Jersey, 260 F.3d 265 278-79 (3d Cir.2001) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); see also Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081 (3d Cir.1996) (reversing entry of summary judgment for defendant); Faragher, 524 U.S. at 775 (holding that episodes of uninvited touching, lewd remarks, and offensive comments about women could constitute sexual harassment).
Taking the evidence in the light most favorable to Plaintiffs, the record presents an image of the Foodcrafters trucking terminal as a workplace regularly
6

E.E.O.C. v. Foodcrafters Distribution Co., Not Reported in F.Supp.2d (2006)

permeated with sexual comments by employees and supervisors. Plaintiffs’ testimony suggests that harassing and demeaning statements and sexually inappropriate incidents were a daily occurrence, unaddressed by Foodcrafters supervisors, and each Plaintiff has provided evidence that she personally experienced severe or pervasive misconduct. Bobo alleges that sexual discussion “was a constant,” (Pls.’ Facts at 27), and Dayna Horner and Reynolds both stated, respectively, that Brandt made sexual comments “day-to-day, every day,” (Pls.’ Facts at 12), and that “that’s all you heard all day.” (Mot. at 19; Pls.’ Facts at 14, 33.)
Defendants march through the alleged incidents one by one to conclude that the conduct was mere “boorish,” “crass,” or “obnoxious horseplay” that could not rise to the level of harassment. (Mot. at 33-34.) Courts have consistently rejected such an approach. See e.g., Hurley v. Atlantic City Police Dept., 933 F.Supp. 396, 402 (D.N.J.1996) (referring to behavior as “childish” “ignored the misogyny that pervaded [plaintiff’s] working environment [and] underestimated its hurtfulness”). Such a piecemeal analysis fails to consider the behavior in the context of the sliding scale of pervasive or severe conduct. While a single incident may be sufficiently severe to state a claim, Taylor v. Metzger, 152 N.J. 490, 706 A.2d 685 (N.J.1998) (holding single uttered racial epithet sufficient to survive summary judgment of NJLAD harassment claim), several incidents of less egregious circumstances may be sufficiently pervasive to surmount the threshold, Aman, 85 F.3d at 1082 (holding that frequent racist remarks, such as referring to black plaintiffs as “another one,” “one of them,” “that one in there,” and “all of you” is adequate to survive summary judgment).
Defendants contend that Plaintiffs’ allegations were based on what they overheard rather than comments made directly to them, and that incidents were dealt with “swiftly and conclusively.” (Opp’n. at 31.) However, Defendants provide no grounds for concluding as a matter of law that an overheard statement cannot constitute harassment. Similarly, while there are indications that Defendants did respond to some of the incidents, by terminating Walker and demoting Scarani, for example, the weight of the record suggests that most complaints went unaddressed.
*10 Defendants are also correct that the alleged harassment must be evaluated with regard to “the social context in which particular behavior occurs and is experienced by its target.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81-82, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). Thus, as the Supreme Court has explained, “A professional football player’s working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field-even if the same behavior would reasonably be experienced as abusive by the coach’s

secretary (male or female) back at the office.” Id. Courts should look to the “constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed,” and employ “common sense” to distinguish between “simple teasing or roughhousing” and “conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.” Id. at 82.
Defendants argue that the severity of the alleged misconduct was mitigated by the fact that it transpired in a trucking terminal, an environment plaintiffs knew to be “rough talking.” Defendants emphasize that Plaintiffs often engaged in friendly and sometimes personal conversation with the alleged harassers, providing a context for the allegedly inappropriate conduct. However, because these arguments present questions of fact, and because the evidentiary record would nevertheless permit a jury to find that the conduct would detrimentally affect a reasonable woman, even in the context of a trucking terminal, Defendants are not entitled to summary judgment.
2. Subjective Factor Defendants argue that Plaintiffs did not establish that they subjectively perceived the environment to be hostile or abusive. See Faragher, 524 U.S. at 787 (noting that harassment must be “both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so”) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). Although the victim need not suffer any damage to her psychological well-being, the plaintiff must provide evidence that she was detrimentally affected by the conduct. Spain v. Gallegos, 26 F.3d 439, 449-50 (3d Cir.1994).
In support of their motion, Defendants emphasize that at least some Plaintiffs had also behaved inappropriately, suggesting that they did not consider the environment abusive. In particular, Defendants point to Eileen Horner’s participation in the acquisition of a “private dancer” for Guy Wortleman’s birthday and the card Eileen Horner and Danelle Horner signed and sent to Alfano. Defendants also note that Eileen Horner hired her two daughters and other acquaintances to work at Foodcrafters, implying that she did not feel harassed.
Despite the evidence of Plaintiffs’ own misbehavior, a reasonable jury could nevertheless find that Plaintiffs felt abused and upset by Defendants’ conduct. In addition to their own statements in deposition, Plaintiffs provided medical reports from Robert M. Toborowsky, M.D., P.C., and Michele Paludi, Ph.D., indicating that the alleged
7

E.E.O.C. v. Foodcrafters Distribution Co., Not Reported in F.Supp.2d (2006)

harassment detrimentally affected them. Because Plaintiffs present a material question of fact, Defendants are not entitled to summary judgment of Plaintiffs’ hostile work environment claims.

Facts at ¶ 105-06.) Danelle Horner allegedly asked if she could apply for the position not once, but twice, after the man hired to fill the job quit after three weeks. (Pls.’ Facts at ¶ 103-04.)

C. Disparate Treatment Claim *11 In addition to her claim of harassment, Plaintiff Danelle Horner alleges that Defendants prevented her from applying for a dispatcher position because of her gender.7 Defendants contend that she was not qualified and did not actually apply for the position, precluding her claim for relief.

7

Dayna Horner also claims disparate treatment, alleging

that she was paid less than a similarly situated male

coworker of the same age. Because Defendants do not

address Dayna Horner’s allegations in their motion,

Defendants are not entitled to summary judgment of

Dayna Horner’s disparate treatment claim.

Analysis of a disparate treatment claim mirrors the framework for claims of racial discrimination articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See, e.g., Abramson v. William Paterson College of New Jersey, 260 F.3d 265, 281-82 (3d Cir.2001). To establish a prima facie case, the plaintiff must demonstrate: (1) she is a member of a protected class; (2) she was qualified for the job and nonetheless suffered an adverse employment action; and (3) nonmembers of the protected class were treated more favorably. Id. (citing Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 318-19 (3d Cir.2000). If the plaintiff establishes the three factors, the burden shifts to the employer to proffer a legitimate, non-discriminatory reason for the adverse employment decision. Abramson, 260 F.3d at 281-82. The plaintiff must then demonstrate that the proffered reason was “merely a pretext for unlawful discrimination.” Goosby, 228 F.3d at 319. To overcome Defendants’ motion for summary judgment, Plaintiffs need only demonstrate that a material question of fact exists as to the presence of each factor. Abramson, 260 F.3d 265.
Danelle Horner claims that she did not apply for an open dispatcher position because Alfano and Avila told her that her gender rendered her unsuitable for the job. In particular they stated that because she was a woman she was “not geographically inclined” and that the drivers would not like taking orders from a woman. (Pls.’ Facts at ¶ 102-04.) After the issue of discrimination was raised at a meeting, Roche said that she was not qualified for the position because she did not know how to drive a tractor, though Plaintiffs claim this was not a necessary prerequisite to the position. He also stated that he would train her if she was willing to “cross the fence.” (Pls.’

Defendants contend that Danelle Horner never applied for the dispatcher position and therefore did not experience an “adverse employment action.” Defendants also provide a legitimate non-discriminatory reason for their action on the basis that Danelle Horner was not qualified for the position since was not a full time employee, had never worked alone in dispatch, and had no actual experience.
The United States Supreme Court has held that there are some situations where an actual application is unnecessary to sustain a disparate treatment claim. In particular, an application may be unnecessary “when it would simply constitute a ‘futile gesture’ or a ‘vain gesture’ in light of employer discrimination.” Brown v. Coach Stores, Inc., 163 F.3d 706, 711 (2d Cir.1998) (quoting International Bd. of Teamsters v. United States, 431 U.S. 324, 365, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)). To succeed, however, the “plaintiff carries the ‘not always easy burden’ of showing that he or she would have applied for a job had it not been for the company’s deeply entrenched discriminatory practices.” Id. (quoting Teamsters, 431 U.S. at 368).
*12 Plaintiff has provided sufficient evidence to suggest that she actually would have applied for the position had it not been a vain gesture. Moreover, the facts surrounding Danelle Horner’s qualifications are in dispute: Plaintiffs claim that her request for a full-time position was denied under suspicious circumstances and that she was learning the dispatch system by assisting Avila when there was no dispatcher. (Pls.’ Facts at 9-10, ¶ 99.) Because there exist factual disputes as to whether Danelle Horner was qualified for the dispatch position and whether an application would have been futile, summary judgment must be denied.
4. Constructive Discharge A claim for constructive discharge may exist where an “employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign.” Goss v. Exxon Office Sys. Co., 747 F.2d 885, 888 (3d Cir.1984); Nolan v. Cleland, 686 F.2d 806, 813 (9th Cir.1982) (permitting constructive discharge claim for continuous pattern of discriminatory treatment over a number of years). To survive summary judgment, the plaintiff must “set forth sufficient facts so that a reasonable jury could conclude that her decision to leave was reasonable based upon the history of discriminatory treatment.” Aman, 85 F.3d at 1084. Because the test is objective, the plaintiff must further establish that “ ‘the conduct complained of
8

E.E.O.C. v. Foodcrafters Distribution Co., Not Reported in F.Supp.2d (2006)

would have the foreseeable result that ... a reasonable person in the employee’s shoes would resign.” ’ Clowes v. Allegheny Valley Hosp., 991 F.2d 1159, 1161 (3d Cir.1993) (quoting Gray v. York Newspapers, Inc., 957 F.2d 1070, 1079 (3d Cir.1992)).
Defendants argue that the Plaintiffs quit their jobs for reasons other than the alleged harassment. In particular, they contend that Eileen Horner resigned to operate her own business, Danelle Horner quit to take a vacation, Reynolds resigned because of conflicts with a new office manager, and Bobo resigned because Reynolds left. (Mot. at 1, 8, 23.) While there is some evidence supporting these arguments, Plaintiffs have also presented evidence that they did indeed resign because of the hostile work environment. (Pls.’ Facts at 5, 6, 13, 18.) Because there is a material factual dispute as to Plaintiffs’ motives for leaving Foodcrafters, Defendants’ motion for summary judgment must be denied.
Defendants also argue that some Plaintiffs continued working even after professing that the conditions were intolerable. However, continuing to work in a hostile environment does not preclude a constructive discharge claim since a “jury could conclude that the conditions of her employment were intolerable, and that while she had the fortitude to stay, her strength finally failed.” Aman v. Cort Furniture Rental Corp., 85 F.3d at 1084-85 (noting that Third Circuit has rejected an “aggravated circumstances” requirement and a history of discrimination would permit a plaintiff to conclude “that she simply had had enough”).
*13 Accordingly, summary judgment of Plaintiffs’ constructive discharge claims will be denied.
5. Punitive Damages Defendants move for summary judgment of Plaintiffs’ demand for punitive damages on the grounds that the alleged conduct does not rise to the level of egregiousness necessary to justify an award of punitive damages.
As Defendants contend, a claim for punitive damages must meet “a greater threshold than mere negligence.” Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 624-25, 626 A.2d 445 (1993). Victims of workplace discrimination are entitled to punitive damages under the NJLAD only when they can demonstrate (1) “actual participation in or willful indifference to the wrongful conduct on the part of upper management” and (2) “proof that the offending conduct [is] ‘especially egregious.” ’ Cavuoti v. New Jersey Transit Corp., 161 N.J. 107, 113, 735 A.2d 548 (1999) (quoting Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 626 A.2d 445 (1993)). Conduct that is “intentional, malicious, and ‘evil-minded,” ’ Hurley, 174 F.3d at 124 (quoting Gares v. Willingboro Twp., 90 F.3d 720, 728 (3d

Cir.1996)), or done “with knowledge of a high degree of probability of harm and reckless indifference to consequences,” Rendine, 661 A.2d at 1215, meets the egregiousness standard.
Plaintiffs have provided sufficient evidence such that a jury could find that upper management was willfully indifferent to the pervasive atmosphere of discriminatory and harassing conduct at the Foodcrafters terminals. The record indicates that members of upper management, such as Roche, actively participated in the sexual harassment, and that management was well-aware of the misconduct and nevertheless failed to take any action to remedy the abuse. (Pls.’ Facts at ¶ 145-148.) Accordingly, Defendants’ motion for summary judgment must be denied.
IV. Motion to Amend Plaintiffs request permission to amend their Complaint to add as new Defendants Little Brownie Brokers and Flying Angels, Inc., on the basis that they are intertwined with Defendants Foodcrafters, Tropical Plant Carriers, Inc., Transsystems, Inc., and Little Brownie Properties, Inc., as a single employer.
After a responsive pleading has been filed, “a party may amend the party’s pleading only by leave of court.” Fed.R.Civ.P. 15. Such leave “shall be freely given when justice so requires,” but is subject to the sound discretion of the district court. Id.; Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971); Cureton v. National Collegiate Athletic Ass’n, 252 F.3d 267, 272-73 (3d Cir.2001). In determining whether to grant leave to amend, the court should consider any “bad faith, repeated failure to cure deficiencies by amendment previously allowed, undue prejudice to the opposing party by virtue of the allowance of the amendment, and futility of the amendment.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).
Although “[t]he passage of time, without more, does not require that a motion to amend a complaint be denied ... at some point, the delay will become ‘undue,’ placing an unwarranted burden on the court, or will become ‘prejudicial,’ placing an unfair burden on the opposing party.” Adams v. Gould, Inc., 739 F.2d 858, 868 (3d Cir.1984). Thus, a motion to amend may be reasonably denied if the case is approaching trial, Lindguist v. Buckingham Twp., 2004 U.S.App. LEXIS 14922, 17-19 (3d Cir.2004), where the amended complaint would raise new facts and require additional discovery, Richardson v. Frank, 1989 U.S. Dist. LEXIS 13355 (E.D.Pa.1989), and on the eve of the close of discovery and the filing of motions for summary judgment, The Development Group, LLC v. Franklin Tp. Bd. of Sup’rs, WL 1773720, *2 -3 (E.
9

E.E.O.C. v. Foodcrafters Distribution Co., Not Reported in F.Supp.2d (2006)

D.Pa.2004). Furthermore, courts should deny motions to amend where the amendment would be futile, meaning that it would be unable to “withstand a motion to dismiss.” Williams v. Philadelphia Housing Authority, 826 F.Supp. 952, 954 (E.D.Pa.1993) (noting that it is proper to “consider the proposed amendment’s merits before determining whether to grant leave to amend”).
*14 Here Plaintiffs have waited until their opposition to Defendants’ motion for summary judgment to request permission to amend their complaint. Although they claim that they only recently discovered the existence of Little Brownie Brokers and Flying Angels, Inc., it would be reasonable to deny the motion to amend on the grounds of untimeliness. Moreover, as discussed below, such an amendment would be futile, as Plaintiffs have failed to state a claim against either of the entities Plaintiffs wish to add as new Defendants.
Plaintiffs argue that Little Brownie Brokers and Flying Angels, Inc., are liable under the “single employer theory,” which authorizes courts to consolidate entities to “treat the assets and liabilities of each as belonging to a single entity” and to aggregate employees to reach the fifteen employee minimum required by Title VII. Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 85-86 (3d Cir.2003). In the Third Circuit, single employer treatment is appropriate (1) when a company has split itself into separate entities for the purpose of evading Title VII; (2) when a parent company directed a subsidary’s discriminatory acts; and (3) where “two or more entities’ affairs are so interconnected that they collectively caused the alleged discriminatory employment practice.” Id. at 86 (noting that “the question is whether the ‘eggs’-consisting of the ostensibly separate companies-are so scrambled that we decline to unscramble them”).
Although courts should consider financial entanglement since it will “bolster the case,” the focus of the single employer inquiry typically rests on “the degree of operational entanglement-whether operations of the companies are so united that nominal employees of one company are treated interchangeably with those of another.” Nesbit, 347 F.3d at 87-88. To ascertain the degree of “operational entanglement,” courts look to:
(1) the degree of unity between the entities with respect to ownership, management (both directors and officers), and business functions (e.g., hiring and personnel matters), (2) whether they present themselves as a single company such that third parties dealt with them as one unit, (3) whether a parent company covers the salaries, expenses, or losses of its subsidiary, and (4) whether one entity does business exclusively with the

other.
Id.
Plaintiffs claim that the Entity Defendants, including Little Brownie Brokers and Flying Angels, Inc., are interrelated because: (1) they share a common address; (2) they share common management; (3) they are commonly owned; (4) Foodcrafters paychecks are labeled “Foodcrafters Distributing Co/TPC”; (5) there is one centralized human relations department in Apopka, Florida; and (6) all human relations issues are addressed by the Apopka, Florida location. In Plaintiffs’ motion to amend, they also claim intercompany transactions between Defendant Little Brownie Properties, Inc., and Little Brownie Brokers, and between Flying Angels and Defendant Foodcrafters. (Opp’n at 28.)
*15 Plaintiffs have not alleged any of the three grounds that would support treating the entities as a single employer. Plaintiffs have not suggested that the entities are split for the purposes of evading liability, nor have they alleged a parent-subsidiary relationship. Although Plaintiffs appear to be claiming operational entanglement, they have not alleged anything beyond common management and ownership and have not addressed any of the other “operational entanglement” factors or the interchangeability of employees. See Nesbit, 347 F.3d at 88 (denying single employer status because plaintiff “sets out no evidence-other than [the companies’] common ownership-suggesting that substantive consolidation would make sense under the factors discussed”). Accordingly, because Plaintiffs’ requested amendments do not allege a claim against Little Brownie Brokers and Flying Angels, Inc., their motion to amend their complaint will be denied as futile and untimely.
V. Motion to Consolidate Plaintiffs move to consolidate this case with Lovenduski v. Foodcrafters Distributing Company, et al., 04-CV-2394 (JEI), on the basis that discovery has already been consolidated and because the witnesses and legal and factual issues will be substantially similar. Defendants do not oppose Plaintiffs’ motion. (Reply at n. 5 .)
Rule 42(a) gives the court authority to consolidate “actions involving a common question of law or fact ... to avoid unnecessary costs or delay.” Courts have “broad discretion” to consolidate cases, Malcolm v. National Gypsum Co., 995 F.2d 346, 350 (2d Cir.1993), particularly where judicial economy outweighs the “potential for new delays, expense, confusion or prejudice.” Easton & Co. v. Mut. Benefit Life Ins. Co., Nos. Civ. 91-4012, 92-2095, 1992 WL 448794, at *4 (D.N.J. Nov.4, 1992); see also Wachtel v. Guardian Life
10

E.E.O.C. v. Foodcrafters Distribution Co., Not Reported in F.Supp.2d (2006)

Ins. Co., 223 F.R.D. 196, 199 (D.N.J.2004) (consolidating two actions to avoid “confusion, unnecessary costs, and delay by promoting judicial economy”) (citing Ellerman Lines Ltd., v. Atl. & Gulf Stevedores, Inc., 339 F.2d 673, 675 (3d Cir.1964).
Because both cases involve the same allegations against the same Defendants, and because the cases are already consolidated for discovery purposes, Plaintiffs’ motion to consolidate will be granted. Lovenduski v. Foodcrafters Distributing Company, et al., 04-CV-2394 (JEI), and

Equal Employment Opportunity Commission, et al. v. Foodcrafters Distribution Company, et al., 03-CV-2796(RBK), shall be consolidated for all purposes under Equal Employment Opportunity Commission, et al. v. Foodcrafters Distribution Company, et al., 03-CV-2796 (RBK).
The accompanying Order shall issue today.
	  

11

 
 5/23/2017

CM/ECF LIVE - U.S. District Court for the District of New Jersey

12BP,CLOSED,SCHEDO

U.S. District Court District of New Jersey [LIVE] (Camden) CIVIL DOCKET FOR CASE #: 1:03-cv-02796-RMB-AMD

EQUAL EMPLOYMENT OPP v. FOODCRAFTERS DIST, et al Assigned to: Judge Renee Marie Bumb Referred to: Magistrate Judge Ann Marie Donio Demand: $0 Cause: 42:1983 Civil Rights Act

Date Filed: 06/11/2003 Date Terminated: 09/08/2006 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
EQUAL EMPOYMENT OPPORTUNITY COMMISSION

represented by CYNTHIA A. LOCKE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION PHILADELPHIA DISTRICT'S OFFICE THE BOURSE 21 S. 5TH STREET SUITE 400 PHILADELPHIA, PA 19106 (215) 451-5787 TERMINATED: 07/26/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Consolidated MONIQUE LOVENDUSKI

TERRENCE R. COOK US EQUAL EMPLOYMENT OPPORTUNITY COMMISSION PHILADELPHIA DISTRICT OFFICE 21 SOUTH 5TH STREET SUITE 400 PHILADELPHIA, PA 19106 (215) 440-2688 Email: terrence.cook@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by KATHERINE D. HARTMAN ATTORNEYS HARTMAN, CHARTERED 505 S. LENOLA ROAD SUITE 121 MOORESTOWN, NJ 08057-1590 (856) 235-0220 Email: kdhesq@attorneyshartman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.

Defendant

https://ecf.njd.uscourts.gov/cgi-bin/DktRpt.pl?115256069743178-L_1_0-1

1/25

5/2D3/e20f1e7ndant

CM/ECF LIVE - U.S. District Court for the District of New Jersey

FOODCRAFTERS DISTRIBUTION COMPANY

represented by LOUIS L. CHODOFF BALLARD SPAHR LLP 210 LAKE DRIVE EAST SUITE 200 CHERRY HILL, NJ 08002 (856) 761-3436 Email: chodofﬂ@ballardspahr.com TERMINATED: 09/09/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant TROPICAL PLANT CARRIERS, INC.

THOMAS W. SWEET ATTORNEY AT LAW LUDLOW SQUARE 49 ROUTE 202 P.O. BOX 835 FAR HILLS, NJ 07931 (908) 658-3111 Email: tom@tomsweetlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by LOUIS L. CHODOFF (See above for address) TERMINATED: 09/09/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
LITTLE BROWNIES PROPERTIES, INC.

THOMAS W. SWEET (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by LOUIS L. CHODOFF (See above for address) TERMINATED: 09/30/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

THOMAS W. SWEET (See above for address)

Defendant
STRATEGIC OUTSOURCING, INC. TERMINATED: 03/03/2005

represented by SHARI B. SCHNEIDER LITTLER MENDELSON, P.C. THREE PARKWAY 1601 CHERRY STREET PHILADELPHIA, PA 19102-1321 267-402-3020 Email: sschneider@littler.com LEAD ATTORNEY

https://ecf.njd.uscourts.gov/cgi-bin/DktRpt.pl?115256069743178-L_1_0-1

2/25

5/23/2017

CM/ECF LIVE - U.S. District Court for the District of New Jersey
ATTORNEY TO BE NOTICED
WILLIAM J. LEAHY LITTLER MENDELSON, PC THREE PARKWAY 1601 CHERRY STREET SUITE 1400 PHILADELPHIA, PA 19102 (267) 402-3012 Email: wleahy@littler.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Intervenor Defendant
FOODCRAFTERS DISTRIBUTION COMPANY

represented by LOUIS L. CHODOFF (See above for address) TERMINATED: 09/09/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant TROPICAL PLANT CARRIERS, INC.

THOMAS W. SWEET (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by LOUIS L. CHODOFF (See above for address) TERMINATED: 09/09/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant TRANSYSTEMS, INC.

THOMAS W. SWEET (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by LOUIS L. CHODOFF (See above for address) TERMINATED: 09/09/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

THOMAS W. SWEET (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant

LITTLE BROWNIES PROPERTIES,

represented by LOUIS L. CHODOFF

https://ecf.njd.uscourts.gov/cgi-bin/DktRpt.pl?115256069743178-L_1_0-1

3/25

5/23/2017
INC.
Intervenor Defendant JOHN P. BROWN TERMINATED: 02/24/2006

CM/ECF LIVE - U.S. District Court for the District of New Jersey
(See above for address) TERMINATED: 09/30/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by LOUIS L. CHODOFF (See above for address) TERMINATED: 09/09/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant ROBERT ROCHE

THOMAS W. SWEET (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by LOUIS L. CHODOFF (See above for address) TERMINATED: 09/09/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant
PETER WOOD TERMINATED: 02/24/2006

THOMAS W. SWEET (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by LOUIS L. CHODOFF (See above for address) TERMINATED: 09/09/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant AL AVILA

THOMAS W. SWEET (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by LOUIS L. CHODOFF (See above for address) TERMINATED: 09/09/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant
https://ecf.njd.uscourts.gov/cgi-bin/DktRpt.pl?115256069743178-L_1_0-1

THOMAS W. SWEET (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
4/25

5/2I3n/2t0e1r7venor Defendant
ABC CORP. 2-10 being ﬁctitious business entities yet unidentiﬁed

CM/ECF LIVE - U.S. District Court for the District of New Jersey

Intervenor Defendant
JANE/JOHN DOE 1-10 being ﬁctitious individuals not yet identiﬁed

Intervenor Defendant MICHAEL ALFANO

represented by LOUIS L. CHODOFF (See above for address) TERMINATED: 09/09/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cross Defendant
PETER WOOD TERMINATED: 02/24/2006

THOMAS W. SWEET (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by THOMAS W. SWEET (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Plaintiff EILEEN HORNER

SARA D. SHEINKIN LITTLER MENDELSON 885 THIRD AVENUE NEW YORK, NY 10022 212-583-2689 Email: ssheinkin@littler.com ATTORNEY TO BE NOTICED
represented by KRISTOFER CHIESA Sherman Silverstein Kohl Rose & Podolsky 308 Harper Drive SUITE 200 Moorestown, NJ 08057 (856) 662-0700 Fax: (856) 488-4744 Email: kchiesa@shermansilverstein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.njd.uscourts.gov/cgi-bin/DktRpt.pl?115256069743178-L_1_0-1

RENEE C. VIDAL CURETON CAPLAN, PC 300 MIDLANTIC DRIVE SUITE 200 MT. LAUREL, NJ 08054 (856) 824-1001
5/25

5/23/2017
Intervenor Plaintiff DANELLE HORNER (N/K/A DANELLE MORGAN)

CM/ECF LIVE - U.S. District Court for the District of New Jersey
Email: rvidal@curetoncaplan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by KRISTOFER CHIESA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Plaintiff DAYNA HORNER

RENEE C. VIDAL (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by KRISTOFER CHIESA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Plaintiff LEIGHANNE REYNOLDS

RENEE C. VIDAL (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by KRISTOFER CHIESA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Plaintiff PAULA BOBO

RENEE C. VIDAL (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by KRISTOFER CHIESA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cross Claimant
STRATEGIC OUTSOURCING, INC. TERMINATED: 03/03/2005

RENEE C. VIDAL (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.njd.uscourts.gov/cgi-bin/DktRpt.pl?115256069743178-L_1_0-1

6/25

5/23/2017

CM/ECF LIVE - U.S. District Court for the District of New Jersey

V.

Cross Defendant

FOODCRAFTERS DISTRIBUTION COMPANY TERMINATED: 03/03/2005

represented by THOMAS W. SWEET (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cross Defendant
LITTLE BROWNIES PROPERTIES, INC. TERMINATED: 03/03/2005
Cross Defendant
TRANSYSTEMS, INC. TERMINATED: 03/03/2005

SARA D. SHEINKIN (See above for address) ATTORNEY TO BE NOTICED
represented by SARA D. SHEINKIN (See above for address) ATTORNEY TO BE NOTICED
represented by THOMAS W. SWEET (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cross Defendant
TROPICAL PLANT CARRIERS, INC. TERMINATED: 03/03/2005

SARA D. SHEINKIN (See above for address) ATTORNEY TO BE NOTICED
represented by THOMAS W. SWEET (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

SARA D. SHEINKIN (See above for address) ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

06/11/2003

1 COMPLAINT ﬁled; Filing Fee waived, jury demand (gg) Additional attachment(s) added on 5/8/2006 (ln, ). (Entered: 06/12/2003)

06/12/2003

SUMMONS issued for FOODCRAFTERS DIST (20 Days) (Mailed to Counsel) (gg) (Entered: 06/12/2003)

06/12/2003

2 NOTICE of Allocation and Assignment ﬁled. ( Camden - Judge Robert B. Kugler Magistrate Judge Ann Marie Donio) (NM) (gg) Additional attachment(s) added on 5/8/2006 (ln, ). (Entered: 06/12/2003)

07/18/2003

3 Notice of MOTION to intervene by movants EILEEN HORNER, DANELLE HORNER, DAYNA HORNER, LEIGHANNE REYNOLDS & PAULA BOBO [3-1] motion referred to Magistrate Judge Ann Marie Donio, Motion set for 8/15/03 on [3-1] motion . (Brief/PO Subm)(Cert.Ser.annexed) (js) Additional attachment(s) added on 5/8/2006 (ln, ). (Entered: 07/21/2003)

https://ecf.njd.uscourts.gov/cgi-bin/DktRpt.pl?115256069743178-L_1_0-1

7/25

5/23/2017
07/22/2003

CM/ECF LIVE - U.S. District Court for the District of New Jersey
4 APPLICATION by deft. FOODCRAFTERS DIST and Clerk's Order extending time to answer. Answer due 8/6/03 . (js) Additional attachment(s) added on 5/8/2006 (ln, ). (Entered: 07/24/2003)

07/28/2003

5 RETURN OF SERVICE executed personally as to FOODCRAFTERS DIST 7/9/03 Answer due on 7/29/03 for FOODCRAFTERS DIST (er) Additional attachment(s) added on 5/8/2006 (ln, ). (Entered: 08/05/2003)

08/06/2003

6 ANSWER to Complaint by deft. FOODCRAFTERS DIST (Cert.Ser.annexed) (js) Additional attachment(s) added on 5/8/2006 (ln, ). (Entered: 08/07/2003)

08/07/2003

7 ORDER, setting scheduling conf. for 2:30pm on 10/21/03 . (signed by Magistrate Judge Ann Marie Donio)(NM) (js) Additional attachment(s) added on 5/8/2006 (ln, ). (Entered: 08/07/2003)

08/13/2003

8 Minute entry: Proceedings recorded by Ct-Reporter: none; Minutes of: 8/13/03; The following actions were taken: granting [3-1] motion to intervene by movants EILEEN HORNER, DANELLE HORNER, DAYNA HORNER, LEIGHANNE REYNOLDS & PAULA BOBO. By Magistrate Judge Ann Marie Donio (js) Additional attachment(s) added on 5/8/2006 (ln, ). (Entered: 08/14/2003)

08/13/2003

9 ORDER granting [3-1] motion to intervene by movants EILEEN HORNER, DANELLE HORNER, DAYNA HORNER, LEIGHANNE REYNOLDS & PAULA BOBO; complaint in intervention shall be ﬁled within ten days of this order. (signed by Magistrate Judge Ann Marie Donio) (NM) (js) Additional attachment(s) added on 5/8/2006 (ln, ). (Entered: 08/14/2003)

08/22/2003

10 Intervenor's COMPLAINT by EILEEN HORNER, DANELLE HORNER, DAYNA HORNER, LEIGHANNE REYNOLDS & PAULA BOBO against FOODCRAFTERS DIST, TROPICAL PLANT, TRANSYSTEMS, INC., BROWNIES, JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, ABC CORP. 1-10, JANE/JOHN DOE & MICHAEL ALFANO (js) Additional attachment(s) added on 5/8/2006 (ln, ). (Entered: 08/25/2003)

08/25/2003

SUMMONS(ES) issued for FOODCRAFTERS DIST, TROPICAL PLANT, TRANSYSTEMS, INC., LITTLE BROWNIES, JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO ( 20 Days) (Mailed to Counsel) (js) (Entered: 08/25/2003)

10/07/2003

11 LETTER By pltf. EQUAL EMPLOYMENT OPP, Re: issuance of summons. (js) Additional attachment(s) added on 5/8/2006 (ln, ). (Entered: 10/07/2003)

10/07/2003

SUMMONS(ES) issued for TROPICAL PLANT, LITTLE BROWNIES ( 20 Days) (Issued to Counsel) (js) (Entered: 10/07/2003)

10/21/2003

Scheduling conference held before Magistrate Judge Ann Marie Donio on October 21, 2003. (jm1) (Entered: 10/22/2003)

10/22/2003

12 SCHEDULING ORDER setting Amending of pleadings on 1/9/04; Discovery cutoff 4/30/04; Status conference at 10:00am on 2/2/04; Dispositive Motion due on or before 9/27/04. (signed by Magistrate Judge Ann Marie Donio)(NM) (js) Additional attachment(s) added on 5/8/2006 (ln, ). (Entered: 10/23/2003)

10/24/2003

13 ANSWER by FOODCRAFTERS DIST, TROPICAL PLANT, TRANSYSTEMS, INC., LITTLE BROWNIES, JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO to [10-1] intervenor complaint (Cert.Ser.annexed) (js) Additional attachment(s) added on 5/8/2006 (ln, ). (Entered: 10/29/2003)

10/27/2003 14 ANSWER to Complaint by deft. LITTLE BROWNIES (Cert.Ser.annexed) (js) Additional

https://ecf.njd.uscourts.gov/cgi-bin/DktRpt.pl?115256069743178-L_1_0-1

8/25

5/23/2017
10/27/2003 11/24/2003 11/24/2003 01/30/2004
02/18/2004 02/18/2004 02/26/2004 03/01/2004 03/26/2004 03/31/2004
04/23/2004 04/23/2004
04/23/2004 04/26/2004

CM/ECF LIVE - U.S. District Court for the District of New Jersey
attachment(s) added on 5/8/2006 (ln, ). (Entered: 10/29/2003)
15 ANSWER to Complaint by deft. TROPICAL PLANT (Cert.Ser.annexed) (js) Additional attachment(s) added on 5/8/2006 (ln, ). (Entered: 10/29/2003)
16 RETURN OF SERVICE/AFFIDAVIT executed as to TROPICAL PLANT 10/7/03 Answer due on 10/27/03. (db) Additional attachment(s) added on 5/8/2006 (ln, ). (Entered: 12/11/2003)
17 RETURN OF SERVICE executed as to LITTLE BROWNIES 10/7/03 Answer due on 10/27/03. (db) Additional attachment(s) added on 5/8/2006 (ln, ). (Entered: 12/11/2003)
Upon letter application dated 1/30/04 by Renee C. Vidal, Esq., counsel for plaintiffs, requesting a postponement of the 2/2/04 conference, and opposing counsel having consented, the Court hereby amends the scheduling order dated 10/22/03 as follows: Status Conference reset for 2/18/2004 10:00 AM before Magistrate Judge Ann Marie Donio; Signed by Judge Ann Marie Donio on 1/30/04. (jm1, ) (Entered: 01/30/2004)
Minute Entry for proceedings held before Judge Ann Marie Donio : Status Conference held on 2/18/2004. (jm1, ) Modiﬁed on 2/19/2004 (jm1, ). Modiﬁed on 2/19/2004 (jm1, ). (Entered: 02/19/2004)
18 SCHEDULING ORDER: Settlement Conference set for 2/26/2004 at 03:30 PM before Magistrate Judge Ann Marie Donio. Signed by Judge Ann Marie Donio on 02/18/04. (db) (Entered: 02/19/2004)
Minute Entry for proceedings held before Judge Ann Marie Donio : Status Conference held on 2/26/2004. (jm1, ) (Entered: 02/27/2004)
19 SCHEDULING ORDER: Status Conference set for 4/22/2004 10:00 AM before Magistrate Judge Ann Marie Donio. Discovery due by 6/30/2004. Motions due by 10/15/2004.Signed by Judge Ann Marie Donio on 3/1/04. (sb) (Entered: 03/02/2004)
20 MOTION to Amend 10 Intervenor Complaint, (Afﬁdavit, Cert. of Svc., Proposed Order annexed) by PAULA BOBO, DANELLE HORNER, DAYNA HORNER, LEIGHANNE REYNOLDS. (db) (Entered: 03/31/2004)
Setting Deadlines as to 20 MOTION to Amend 10 Intervenor Complaint,. Motion Hearing set for 5/7/2004 before Magistrate Judge Ann Marie Donio. PLEASE BE ADVISED THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (db) (Entered: 03/31/2004)
Minute Entry for proceedings held before Judge Ann Marie Donio : Status Conference held on 4/23/2004. (jm1, ) (Entered: 04/23/2004)
21 AMENDED SCHEDULING ORDER: Telephone Status Conference set for 6/4/2004 02:00 PM before Magistrate Judge Ann Marie Donio. Discovery due by 9/30/2004. Motions due by 12/17/2004.Signed by Judge Ann Marie Donio on 4/23/04. (sb) (Entered: 04/26/2004)
22 ORDER granting Plaintiff-Intervenors 20 Motion to Amend . Signed by Judge Ann Marie Donio on 04/23/04. (db) (Entered: 04/27/2004)
23 AMENDED COMPLAINT against ABC CORP., MICHAEL ALFANO, AL AVILA, JOHN P. BROWN, FOODCRAFTERS DISTRIBUTION COMPANY, JANE/JOHN DOE, LITTLE BROWNIES PROPERTIES, INC., ROBERT ROCHE, TRANSYSTEMS, INC. AND TROPICAL PLANT CARRIERS, INC. , ﬁled by PAULA BOBO, DANELLE HORNER, DAYNA HORNER, EILEEN HORNER AND LEIGHANNE REYNOLDS. (ar1, ) (Entered: 04/27/2004)

https://ecf.njd.uscourts.gov/cgi-bin/DktRpt.pl?115256069743178-L_1_0-1

9/25

5/23/2017
04/29/2004 04/29/2004 05/07/2004 06/03/2004 06/04/2004
06/04/2004 06/10/2004 06/14/2004 06/18/2004 06/18/2004
06/18/2004 06/23/2004
06/23/2004

CM/ECF LIVE - U.S. District Court for the District of New Jersey
Summons Issued (Amended Complaint) as to STRATEGIC OUTSOURCING, INC. Days Due - 20. (db) (Entered: 04/29/2004)
24 Letter from Plaintiff. Re: Summons (db) (Entered: 04/29/2004)
25 ANSWER to Amended Complaint by MICHAEL ALFANO, AL AVILA, JOHN P. BROWN, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., ROBERT ROCHE, TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD.(db) (Entered: 05/10/2004)
26 Application and Clerk's Order to extend time to answer as to STRATEGIC OUTSOURCING, INC. Attorney WILLIAM J. LEAHY for STRATEGIC OUTSOURCING, INC. added.. (db) (Entered: 06/03/2004)
27 MOTION for Summary Judgment by MICHAEL ALFANO, AL AVILA, JOHN P. BROWN, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., ROBERT ROCHE, TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD. (Attachments: # 1 Statement # 2 Brief # 3 Certiﬁcation # 4 Text of Proposed Order # 5 Cert of Serv# 6 Exhibit A# 7 Exhibit B# 8 Exhibit C# 9 Exhibit D# 10 Exhibit E# 11 Exhibit F# 12 Exhibit G# 13 Exhibit H# 14 Exhibit I# 15 Exhibit J# 16 Exhibit K)(sb, ) (Entered: 06/08/2004)
Setting return date as to 27 MOTION for Summary Judgment for 7/2/2004 before Judge Robert B. Kugler. PLEASE BE ADVISED THAT THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (sb) (Entered: 06/08/2004)
Minute Entry for proceedings held before Judge Ann Marie Donio : Status Conference held on 6/10/2004. (jm1, ) (Entered: 06/14/2004)
28 THIRD AMENDED SCHEDULING ORDER: Telephone Conference set for 8/2/2004 11:30 AM before Magistrate Judge Ann Marie Donio. Discovery due by 11/30/2004.Signed by Judge Ann Marie Donio on 6/14/04. (sb) (Entered: 06/14/2004)
29 BRIEF in Opposition re 27 MOTION for Summary Judgment Certiﬁcation of Eileen Horner, with Exhibits A-E, Statement of Disputed and Undisputed Facts, Certiﬁcation of Service, cover letter to clerk ﬁled by EILEEN HORNER. (VIDAL, RENEE) (Entered: 06/18/2004)
30 BRIEF in Opposition re 27 MOTION for Summary Judgment ﬁled by EILEEN HORNER. (Attachments: # 1 Certiﬁcation of Eileen Horner in Opposition to Defendants' Motion for Summary Judgment with Exhibits# 2 Certiﬁcation of Service# 3 Letter to Clerk# 4 Eileen Horner's Statement of Disputed and Undisputed Facts)(VIDAL, RENEE) (Entered: 06/18/2004)
32 ANSWER to Amended Complaint, CROSSCLAIM against FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC. by STRATEGIC OUTSOURCING, INC..(db) (Entered: 06/24/2004)
31 REPLY to Response to Motion re 27 MOTION for Summary Judgment ﬁled by MICHAEL ALFANO, AL AVILA, JOHN P. BROWN, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., ROBERT ROCHE, TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD. (SEIDENFRAU, MYLES) (Entered: 06/23/2004)
33 ORDER consolidating this matter with 04-2394 for discovery purposes only. . Signed by Judge Ann Marie Donio on 06/23/04. (db, ) (Entered: 06/25/2004)

https://ecf.njd.uscourts.gov/cgi-bin/DktRpt.pl?115256069743178-L_1_0-1

10/25

5/23/2017
06/25/2004 06/25/2004 07/12/2004
07/13/2004
07/20/2004 07/20/2004
08/02/2004 08/03/2004
08/16/2004 08/17/2004 08/19/2004
08/19/2004
09/09/2004
09/15/2004

CM/ECF LIVE - U.S. District Court for the District of New Jersey
34 NOTICE of Appearance by SHARI B. SCHNEIDER on behalf of STRATEGIC OUTSOURCING, INC. (db) (Entered: 06/28/2004)
35 DISCLOSURE STATEMENT by STRATEGIC OUTSOURCING, INC.. (db) (Entered: 06/28/2004)
36 CLAIM Cross by MICHAEL ALFANO, AL AVILA, JOHN P. BROWN, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., ROBERT ROCHE, TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD. (SEIDENFRAU, MYLES) (Entered: 07/12/2004)
CLERK'S OFFICE QUALITY CONTROL MESSAGE: The claim ﬁled on 7/12/2004 by M. eidenfrau did not contain the proper event code. PLEASE RESUBMIT THIS DOCUMENT by 7/15/2004 using the proper event code; for example answer to counterclaim. (sa, ) (Entered: 07/13/2004)
37 STIPULATION of Consent for Strategic Outsourcing, Inc. to File its Answer to Amended Complaint and Amended Cross Claims Without Leave of Court by STRATEGIC OUTSOURCING, INC.. (SCHNEIDER, SHARI) (Entered: 07/20/2004)
38 AMENDED DOCUMENT by STRATEGIC OUTSOURCING, INC.. Amendment to 32 Answer to Amended Complaint, Crossclaim Answer to Amended Complaint and Amended Cross Claims of Defendant Strategic Outsourcing, Inc.. (SCHNEIDER, SHARI) (Entered: 07/20/2004)
Minute Entry for proceedings held before Judge Ann Marie Donio : Status Conference held on 8/2/2004. (jm1, ) (Entered: 08/03/2004)
39 FOURTH AMENDED SCHEDULING ORDER: Telephone Status Conference set for 8/12/2004 at 02:30 PM, 11/18/2004 at 2:00 PM, before Magistrate Judge Ann Marie Donio. Final Pretrial Conference set for 4/21/2005 at 11:00 AM before Magistrate Judge Ann Marie Donio. Discovery due by 12/20/2004. Dispositive Motions due by 2/28/2005.. Signed by Judge Ann Marie Donio on 08/03/04. (db, ) (Entered: 08/03/2004)
Minute Entry for proceedings held before Judge Ann Marie Donio : Status Conference held on 8/16/2004. (jm1, ) (Entered: 08/17/2004)
40 SCHEDULING ORDER. Signed by Judge Ann Marie Donio on 08/17/04. (db, ) (Entered: 08/18/2004)
41 Amended ANSWER to Crossclaim by PETER WOOD, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC..(SHEINKIN, SARA) (Entered: 08/19/2004)
42 Second Amended ANSWER to Crossclaim by FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD.(SHEINKIN, SARA) (Entered: 08/19/2004)
43 Substitution of Attorney - Attorney THOMAS W. SWEET for JOHN P. BROWN; FOODCRAFTERS DISTRIBUTION COMPANY; ROBERT ROCHE; TRANSYSTEMS, INC.; TROPICAL PLANT CARRIERS, INC.; PETER WOOD; MICHAEL ALFANO and AL AVILA added. Attorney LOUIS L. CHODOFF terminated.. (db, ) (Entered: 09/13/2004)
44 PROTECTIVE ORDER. Signed by Judge Ann Marie Donio on 09/15/04. (db, ) (Entered: 09/16/2004)

https://ecf.njd.uscourts.gov/cgi-bin/DktRpt.pl?115256069743178-L_1_0-1

11/25

5/23/2017
09/30/2004
09/30/2004 10/07/2004 10/25/2004 10/29/2004 11/16/2004 11/17/2004 11/26/2004 11/26/2004
11/30/2004
12/01/2004
12/03/2004
12/16/2004 01/05/2005 01/10/2005

CM/ECF LIVE - U.S. District Court for the District of New Jersey
45 MOTION for Leave to Appear pro hac vice by MICHAEL ALFANO, AL AVILA, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., ROBERT ROCHE, TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD. (Attachments: # 1 Certiﬁcation of Thomas W. Sweet# 2 Afﬁdavit of Richard E. Whitaker# 3 Text of Proposed Order)(db, ) (Entered: 10/01/2004)
Setting Deadlines as to 45 MOTION for Leave to Appear pro hac vice. Motion Hearing set for 11/5/2004 before Magistrate Judge Ann Marie Donio. (db, ) (Entered: 10/01/2004)
Minute Entry for proceedings held before Judge Ann Marie Donio : Discovery/Status Conference held on 10/7/2004. (jm1, ) (Entered: 10/08/2004)
46 ORDER granting 45 Motion for Richard E. Whitaker Leave to Appear Pro Hac Vice . Signed by Judge Ann Marie Donio on 10/25/04. (db, ) (Entered: 10/26/2004)
47 ORDER, Re: Compelling Discovery . Signed by Judge Ann Marie Donio on 10/29/04. (db, ) (Entered: 11/01/2004)
Minute Entry for proceedings held before Judge Ann Marie Donio : Discovery/Status Conference held on 11/16/2004. (jm1, ) (Entered: 11/17/2004)
Minute Entry for proceedings held before Judge Ann Marie Donio : Discovery/Status Conference held on 11/17/2004. (jm1, ) (Entered: 11/17/2004)
48 MOTION for Protective Order by EQUAL EMPOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Afﬁdavit # 2 Brief # 3 Text of Proposed Order)(db, ) (Entered: 11/30/2004)
Setting Deadlines as to 48 MOTION for Protective Order. Motion Hearing set for 1/7/2005 before Magistrate Judge Ann Marie Donio. PLEASE BE ADVISED THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (db, ) (Entered: 11/30/2004)
49 MOTION to Amend thier answer to assert a counterclaim against the plaintiff, Elieen Horner by MICHAEL ALFANO, AL AVILA, JOHN P. BROWN, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., ROBERT ROCHE, TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD. (Attachments: # 1 Statement of Thomas W. Sweet, Esq.# 2 Proposed Counterclaim# 3 Text of Proposed Order)(db, ) (Entered: 12/01/2004)
Setting Deadlines as to 49 MOTION to Amend answer. Motion Hearing set for 1/7/2005 Magistrate Judge Ann Marie Donio. PLEASE BE ADVISED THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (db, ) (Entered: 12/01/2004)
50 BRIEF in Opposition re 48 MOTION for Protective Order ﬁled by MICHAEL ALFANO, AL AVILA, JOHN P. BROWN, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., ROBERT ROCHE, TROPICAL PLANT CARRIERS, INC., PETER WOOD. (sb) (Entered: 12/06/2004)
51 ORDER withdrawing 49 Motion to Amend their answer to assert a counterclaim . Signed by Judge Ann Marie Donio on 12/16/04. (db, ) (Entered: 12/20/2004)
Minute Entry for proceedings held before Judge Ann Marie Donio : Discovery/Status Conference held on 1/5/2005. (jm1, ) (Entered: 01/07/2005)
52 FIFTH AMENDED SCHEDULING ORDER: Intervenor Plaintiffs are granted leave to ﬁle a motion to compel no later than January 14, 2005 Final Pretrial Conference set for 7/7/2005 at 11:00 AM before Magistrate Judge Ann Marie Donio. Discovery due by

https://ecf.njd.uscourts.gov/cgi-bin/DktRpt.pl?115256069743178-L_1_0-1

12/25

5/23/2017
01/10/2005 01/14/2005
01/18/2005 01/28/2005
01/28/2005 02/07/2005
02/11/2005 02/28/2005 03/03/2005 03/09/2005
03/10/2005 04/14/2005

CM/ECF LIVE - U.S. District Court for the District of New Jersey
1/14/2005. Dispositive Motions due by 4/29/2005.. Signed by Judge Ann Marie Donio on 01/10/05. (db, ) (Entered: 01/10/2005)
53 BRIEF in Support re 48 MOTION for Protective Order Supplemental ﬁled by EQUAL EMPOYMENT OPPORTUNITY COMMISSION. (EDGE, DAWN) (Entered: 01/10/2005)
54 MOTION for Sanctions by PAULA BOBO. (Attachments: # 1 # 2 Brief Memorandum of Law in Support of Motions for Sanctions# 3 Certiﬁcation Declaration of Renee C. Vidal in Support of Motion for Sanctions# 4 Exhibit Exhibits 1-12# 5 Exhibit Exhibits 13-17# 6 Exhibit Exhibits 18-20D# 7 Exhibit Exhibits 21-27# 8 Certiﬁcation Declaration of Services of Renee C. Vidal# 9 Text of Proposed Order # 10 Certiﬁcate of Service) (VIDAL, RENEE) (Entered: 01/14/2005)
Setting Deadlines as to 54 MOTION for Sanctions. Motion Hearing set for 2/18/2005 before Magistrate Judge Ann Marie Donio. PLEASE BE ADVISED THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT (db, ) (Entered: 01/18/2005)
55 OPINION re 27 MOTION for Summary Judgment ﬁled by JOHN P. BROWN,, FOODCRAFTERS DISTRIBUTION COMPANY,, TROPICAL PLANT CARRIERS, INC.,, LITTLE BROWNIES PROPERTIES, INC.,, TRANSYSTEMS, INC.,, ROBERT ROCHE,, PETER WOOD,, AL AVILA,, MICHAEL ALFANO, . Signed by Judge Robert B. Kugler on 01/28/05. (db, ) (Entered: 01/28/2005)
56 ORDER denying 27 Motion for Summary Judgment . Signed by Judge Robert B. Kugler on 01/28/05. (db, ) (Entered: 01/28/2005)
57 RESPONSE in Opposition re 54 MOTION for Sanctions ﬁled by TRANSYSTEMS, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (Attachments: # 1 Part 2# 2 Declaration# 3 Certiﬁcation # 4 Certiﬁcate of Service # 5 Atty. Service list)(db, ) (Entered: 02/07/2005)
58 REPLY to Response to Motion re 54 MOTION for Sanctions ﬁled by PAULA BOBO. (Attachments: # 1 Certiﬁcate of Service # 2 Certiﬁcation Second Declaration of Renee C. Vidal in Support of Motion for Sanctions# 3 Exhibit 1 through 3)(VIDAL, RENEE) (Entered: 02/11/2005)
59 STIPULATION AND ORDER of dismissal with prejudice of all claims asserted against and by deft. STRATEGIC OUTSOURCING, INC. Signed by Judge Robert B. Kugler on 2/28/05. (db, ) (Entered: 03/03/2005)
60 ORDER denying 48 Motion for Protective Order . Signed by Judge Ann Marie Donio on 03/03/05. (db, ) (Entered: 03/03/2005)
61 SIXTH AMENDED SCHEDULING ORDER: Status Conference set for 7/28/2005 at 02:00 PM before Magistrate Judge Ann Marie Donio. Dispositive Motions due by 6/8/2005. Final Pretrial Conference rescheduled to 07/28/05 at 2:00 PM before Magistrate Judge Ann Marie Donio. Signed by Judge Ann Marie Donio on 03/09/05. (db, ) (Entered: 03/10/2005)
Minute Entry for proceedings held before Judge Ann Marie Donio : Status Conference held on 3/9/2005. (jm1, ) (Entered: 03/10/2005)
ORDER on oral application to extenbd time to take deposition of witness, Kenneth Brand and Steve Scarini. Ordered application GRANTED as to Steve Scarini. Scheduling Order

https://ecf.njd.uscourts.gov/cgi-bin/DktRpt.pl?115256069743178-L_1_0-1

13/25

5/23/2017

CM/ECF LIVE - U.S. District Court for the District of New Jersey
to be entered. Signed by Judge Ann Marie Donio on 4/14/05. (jm1, ) (Entered: 04/14/2005)

04/14/2005

62 SEVENTH AMENDED SCHEDULING ORDER: The Court will conduct oral argument on the pending motion for sanctions on May 3, 2005 at 10:00 am. Signed by Judge Ann Marie Donio on 4/14/05. (db, ) (Entered: 04/15/2005)

04/27/2005

63 SCHEDULING ORDER: Rescheduling Oral argument on pending motions for sanctions to May 3, 2005 at 1:30 pm. Signed by Judge Ann Marie Donio on 04/27/05. (db, ) (Entered: 04/29/2005)

05/03/2005

68 Minute Entry for proceedings held before Judge Ann Marie Donio : Motion Hearing held on 5/3/2005 re 54 MOTION for Sanctions ﬁled by PAULA BOBO,. Ordered motion Granted in Part and Denied in Part. Order to be entered and ﬁled. (Tape #Disk #2.) (th, ) (Entered: 06/01/2005)

05/06/2005

64 ORDER granting in part and denying in part 54 Motion for Sanctions, etc.. Signed by Judge Ann Marie Donio on 5/6/05. (MB, ) (Entered: 05/06/2005)

05/10/2005

Minute Entry for proceedings held before Judge Ann Marie Donio : Status Conference held on 5/10/2005. (jm1, ) (Entered: 05/11/2005)

05/11/2005

65 SEVENTH AMENDED SCHEDULING ORDER: Telephone Conference set for 6/15/2005 at 03:30 PM before Magistrate Judge Ann Marie Donio. Final Pretrial Conference set for 9/15/2005 at 02:00 PM before Magistrate Judge Ann Marie Donio. Dispositive Motions due by 7/15/2005.. Signed by Judge Ann Marie Donio on 05/11/05. (db, ) (Entered: 05/11/2005)

05/11/2005

66 ORDER AMENDING ORDER 64 Order on Motion for Sanctions. Signed by Judge Ann Marie Donio on 05/11/05. (db, ) (Entered: 05/12/2005)

05/25/2005

67 DECLARATION of Supplemental Declaration in Support of Application for Fees re Set Motion and R&R Deadlines/Hearings re: Motion for Sanctions by PAULA BOBO. (VIDAL, RENEE) (Entered: 05/25/2005)

05/26/2005

Minute Entry for proceedings held before Judge Ann Marie Donio : Status Conference held on 5/26/2005. (jm1, ) (Entered: 05/31/2005)

06/02/2005

69 AFFIDAVIT of Peter Wood re 67 Declaration (Amended) of Rene Vidal, Esq. by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (SWEET, THOMAS) (Entered: 06/02/2005)

06/02/2005

70 BRIEF In Opposition To Application For Fees ﬁled by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (Attachments: # 1 Certiﬁcate of Service)(SWEET, THOMAS) (Entered: 06/02/2005)

06/06/2005 71 MOTION for Leave to Appear Pro Hac Vice Ronald W. Fraley, Esq. by

https://ecf.njd.uscourts.gov/cgi-bin/DktRpt.pl?115256069743178-L_1_0-1

14/25

5/23/2017
06/06/2005
06/06/2005 06/06/2005 06/06/2005 06/07/2005 06/15/2005 06/23/2005 06/30/2005

CM/ECF LIVE - U.S. District Court for the District of New Jersey
FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (SWEET, THOMAS) (Entered: 06/06/2005)
72 AFFIDAVIT re 71 MOTION for Leave to Appear Pro Hac Vice Ronald W. Fraley, Esq. of Ronald W. Fraley, Esq. by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (SWEET, THOMAS) (Entered: 06/06/2005)
73 Certiﬁcation on behalf of FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC. Re 71 Motion for Leave to Appear,,, 72 Afﬁdavit,,. (SWEET, THOMAS) (Entered: 06/06/2005)
74 Certiﬁcation of Thomas W. Sweet, Esq. regarding service of motion papers on behalf of FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC. Re 71 Motion for Leave to Appear,,, 72 Afﬁdavit,,, 73 Certiﬁcation,. (SWEET, THOMAS) (Entered: 06/06/2005)
75 Proposed Pretrial Order Granting Motion for Admission of Ronald W. Fraley, Esq. pro haec vice by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (SWEET, THOMAS) (Entered: 06/06/2005)
Setting Deadlines as to 71 MOTION for Leave to Appear Pro Hac Vice Ronald W. Fraley, Esq. Motion Hearing set for 7/1/2005 before Magistrate Judge Ann Marie Donio. PLEASE BE ADVISED THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (db, ) (Entered: 06/07/2005)
Minute Entry for proceedings held before Judge Ann Marie Donio : Status Conference held on 6/15/2005. (jm1, ) (Entered: 06/17/2005)
76 ORDER granting 71 Motion for Ronald W. Fraley Leave to Appear Pro Hac Vice . Signed by Judge Ann Marie Donio on 06/23/05. (db, ) (Entered: 06/23/2005)
77 EIGHTH AMENDED SCHEDULING ORDER: Final Pretrial Conference set for 9/15/2005 at 02:00 PM before Magistrate Judge Ann Marie Donio. Dispositive Motions

https://ecf.njd.uscourts.gov/cgi-bin/DktRpt.pl?115256069743178-L_1_0-1

15/25

5/23/2017
07/05/2005 07/07/2005
07/07/2005
07/07/2005
07/07/2005 07/08/2005 07/13/2005 07/15/2005 07/19/2005

CM/ECF LIVE - U.S. District Court for the District of New Jersey
due by 7/15/2005. Signed by Judge Ann Marie Donio on 06/30/05. (db, ) (Entered: 06/30/2005)
Pro Hac Vice fee: $ 150, receipt number 303091 received from Ronald W. Fraley, Esq. (db, ) (Entered: 07/06/2005)
78 MOTION for Discovery Deadline Extension by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (SWEET, THOMAS) (Entered: 07/07/2005)
79 BRIEF Supporting Motion for Discovery Deadline Extension ﬁled by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (SWEET, THOMAS) (Entered: 07/07/2005)
80 Proposed Pretrial Order Granting Motion for Discovery Deadline Extension by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (SWEET, THOMAS) (Entered: 07/07/2005)
81 Certiﬁcation on behalf of FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (SWEET, THOMAS) (Entered: 07/07/2005)
Setting Deadlines as to 78 MOTION for Discovery Deadline Extension. Motion Hearing set for 8/5/2005 before Magistrate Judge Ann Marie Donio. PLEASE BE ADVISED THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (db, ) (Entered: 07/08/2005)
ORDER on letter application dated 7/7/05 by Thomas Street, Esq., counsel for defendants, requesting a 21 day extension to ﬁle dispositive motion and requesting a 25 page extension on the length of brief in support of dispositive motion; Ordered application GRANTED. Ordered by Judge Ann Marie Donio on 7/13/05. (jm1, ) (Entered: 07/13/2005)
82 SCHEDULING ORDER: Status Conference set for 8/2/2005 at 03:00 PM before Judge Robert B. Kugler. Signed by Judge Ann Marie Donio on 07/15/05. (db, ) (Entered: 07/18/2005)
83 BRIEF in Opposition re 78 MOTION for Discovery Deadline Extension ﬁled by PAULA BOBO. (Attachments: # 1 Certiﬁcate of Service Certiﬁcate of Service)(VIDAL, RENEE)

https://ecf.njd.uscourts.gov/cgi-bin/DktRpt.pl?115256069743178-L_1_0-1

16/25

5/23/2017

CM/ECF LIVE - U.S. District Court for the District of New Jersey
(Entered: 07/19/2005)

07/26/2005

84 Substitution of Attorney - Attorney TERRENCE R. COOK for EQUAL EMPOYMENT OPPORTUNITY COMMISSION added. Attorney CYNTHIA A. LOCKE terminated. (js) (Entered: 07/26/2005)

08/04/2005

85 MOTION for Summary Judgment by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. Responses due by 9/2/2005 (SWEET, THOMAS) (Entered: 08/04/2005)

08/04/2005

86 BRIEF in Support re 85 MOTION for Summary Judgment (Part 1 of 2 Parts of Brief) ﬁled by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (SWEET, THOMAS) (Entered: 08/04/2005)

08/04/2005

87 BRIEF in Support re 85 MOTION for Summary Judgment (Part 2 of 2 Parts of Brief) ﬁled by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (SWEET, THOMAS) (Entered: 08/04/2005)

08/04/2005

88 AFFIDAVIT in Support re 85 MOTION for Summary Judgment (Part 1 of 11 Parts of Certiﬁcation of Thomas W. Sweet, which includes certiﬁcation and Exhibits A and B) ﬁled by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (SWEET, THOMAS) (Entered: 08/04/2005)

08/04/2005

89 AFFIDAVIT in Support re 85 MOTION for Summary Judgment (Part 2 (a) of 11 Parts, which includes Exhibit C, Pages 1-93) ﬁled by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (SWEET, THOMAS) (Entered: 08/04/2005)

08/04/2005 90 AFFIDAVIT in Support re 85 MOTION for Summary Judgment (Part 2 (b) of 11 Parts,

https://ecf.njd.uscourts.gov/cgi-bin/DktRpt.pl?115256069743178-L_1_0-1

17/25

5/23/2017

CM/ECF LIVE - U.S. District Court for the District of New Jersey
which includes Exhibit C, Pages 94-193) ﬁled by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (SWEET, THOMAS) (Entered: 08/04/2005)

08/04/2005

91 AFFIDAVIT in Support re 85 MOTION for Summary Judgment (Part 3 (a) of 11 Parts, which includes Exhibit C, Pages 194-289) ﬁled by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (SWEET, THOMAS) (Entered: 08/04/2005)

08/04/2005

92 AFFIDAVIT in Support re 85 MOTION for Summary Judgment (Part 3 (b) of 11 Parts, Exhibit C, Pages 290-385) ﬁled by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (SWEET, THOMAS) (Entered: 08/04/2005)

08/04/2005

93 AFFIDAVIT in Support re 85 MOTION for Summary Judgment (Part 4 of 11 Parts, which includes Exhibit C, Pages 386-404 and Exhibit D) ﬁled by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (SWEET, THOMAS) (Entered: 08/04/2005)

08/04/2005

94 AFFIDAVIT in Support re 85 MOTION for Summary Judgment (Part 5 (a) of 11 Parts, which includes Exhibit E, Pages 1-89) ﬁled by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (SWEET, THOMAS) (Entered: 08/04/2005)

08/04/2005

95 AFFIDAVIT in Support re 85 MOTION for Summary Judgment (Part 5 (b) of 11 Parts, which includes Exhibit E, Pages 90-185) ﬁled by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES

https://ecf.njd.uscourts.gov/cgi-bin/DktRpt.pl?115256069743178-L_1_0-1

18/25

5/23/2017
08/04/2005 08/04/2005 08/04/2005 08/04/2005 08/04/2005

CM/ECF LIVE - U.S. District Court for the District of New Jersey
PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (SWEET, THOMAS) (Entered: 08/04/2005)
96 AFFIDAVIT in Support re 85 MOTION for Summary Judgment (Part 6 (a) of 11 Parts, which includes Exhibit E, Pages 186-281) ﬁled by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (SWEET, THOMAS) (Entered: 08/04/2005)
97 AFFIDAVIT in Support re 85 MOTION for Summary Judgment (Part 6 (b) of 11 Parts, Exhibit E, Pages 282-372) ﬁled by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (SWEET, THOMAS) (Entered: 08/04/2005)
98 AFFIDAVIT in Support re 85 MOTION for Summary Judgment (Part 7 (a) of 11 Parts, which includes Exhibit E, Pages 373-384 and Exhibit F, Pages 1-77) ﬁled by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (SWEET, THOMAS) (Entered: 08/04/2005)
99 AFFIDAVIT in Support re 85 MOTION for Summary Judgment (Part 7 (b) of 11 Parts, which includes Exhibit F, Pages 78-173) ﬁled by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (SWEET, THOMAS) (Entered: 08/04/2005)
100 AFFIDAVIT in Support re 85 MOTION for Summary Judgment (Part 8 (a) of 11 Parts, which includes Exhibit F, Pages 174-189, Exhibit G and Exhibit H, Pages 1-41) ﬁled by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (SWEET, THOMAS) (Entered: 08/04/2005)

https://ecf.njd.uscourts.gov/cgi-bin/DktRpt.pl?115256069743178-L_1_0-1

19/25

5/23/2017
08/04/2005

CM/ECF LIVE - U.S. District Court for the District of New Jersey
101 AFFIDAVIT in Support re 85 MOTION for Summary Judgment (Part 8 (b) of 11 Parts, which includes Exhibit H, Pages 42-137) ﬁled by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (SWEET, THOMAS) (Entered: 08/04/2005)

08/04/2005

102 AFFIDAVIT in Support re 85 MOTION for Summary Judgment (Part 9 (a) of 11 Parts, which includes Exhibit H, Pages 138-229) ﬁled by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (SWEET, THOMAS) (Entered: 08/04/2005)

08/04/2005

103 AFFIDAVIT in Support re 85 MOTION for Summary Judgment (Part 9 (b) of 11 Parts, which includes Exhibit H, Pages 230-281 and Exhibit I, Pages 1-41) ﬁled by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (SWEET, THOMAS) (Entered: 08/04/2005)

08/04/2005

104 AFFIDAVIT in Support re 85 MOTION for Summary Judgment (Part 10 of 11 Parts, which includes Exhibit I, Pages 42-169) ﬁled by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (SWEET, THOMAS) (Entered: 08/04/2005)

08/04/2005

105 AFFIDAVIT in Support re 85 MOTION for Summary Judgment (Part 11 of 11 Parts, which includes Exhibit I, Pages 170-275) ﬁled by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (SWEET, THOMAS) (Entered: 08/04/2005)

08/04/2005

106 Certiﬁcation of Thomas W. Sweet, Esq. regarding service of motion papers on behalf of FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, PETER WOOD, TROPICAL PLANT

https://ecf.njd.uscourts.gov/cgi-bin/DktRpt.pl?115256069743178-L_1_0-1

20/25

5/23/2017
08/05/2005 08/09/2005 08/09/2005 08/11/2005 08/24/2005 09/23/2005 09/23/2005 09/26/2005 09/26/2005
09/26/2005 09/26/2005

CM/ECF LIVE - U.S. District Court for the District of New Jersey
CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC. Re 91 Afﬁdavit in Support of Motion,,, 92 Afﬁdavit in Support of Motion,,, 93 Afﬁdavit in Support of Motion,,, 104 Afﬁdavit in Support of Motion,,, 105 Afﬁdavit in Support of Motion,,, 94 Afﬁdavit in Support of Motion,,, 95 Afﬁdavit in Support of Motion,,, 96 Afﬁdavit in Support of Motion,,, 85 Motion for Summary Judgment,, 86 Brief in Support of Motion,,, 97 Afﬁdavit in Support of Motion,,, 98 Afﬁdavit in Support of Motion,,, 99 Afﬁdavit in Support of Motion,,, 100 Afﬁdavit in Support of Motion,,, 87 Brief in Support of Motion,,, 88 Afﬁdavit in Support of Motion,,, 89 Afﬁdavit in Support of Motion,,, 90 Afﬁdavit in Support of Motion,,, 101 Afﬁdavit in Support of Motion,,, 102 Afﬁdavit in Support of Motion,,, 103 Afﬁdavit in Support of Motion,,. (SWEET, THOMAS) (Entered: 08/04/2005)
Setting Deadlines as to 85 MOTION for Summary Judgment. Motion Hearing set for 9/2/2005 before Judge Robert B. Kugler. PLEASE BE ADVISED THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (db, ) (Entered: 08/05/2005)
Minute Entry for proceedings held before Judge Ann Marie Donio : Status Conference held on 8/9/2005. (jm1, ) (Entered: 08/10/2005)
ORDER on joint application to adjourn Final Pretrial Conference pending resolution of summary judgment motion. Final Pretrial Conference adjourned without date.Ordered by Judge Ann Marie Donio on 8/9/05. (jm1, ) (Entered: 08/10/2005)
107 ORDER denying 78 Motion for Discovery . Signed by Judge Ann Marie Donio on 08/11/05. (db, ) (Entered: 08/12/2005)
108 Rule 7.1 Letter for extension of return date re 85 MOTION for Summary Judgment ﬁled by EQUAL EMPOYMENT OPPORTUNITY COMMISSION. (db, ) (Entered: 08/26/2005)
109 BRIEF in Opposition re 85 MOTION for Summary Judgment ﬁled by PAULA BOBO. (Attachments: # 1 Notice of Cross-Motion# 2 Afﬁdavit Renee Vidal# 3 Exhibit A-E# 4 Exhibit F# 5 Exhibit G-H# 6 Exhibit I-J# 7 Exhibit K-M# 8 Exhibit N-R# 9 Exhibit S-X# 10 Exhibit Y-Z# 11 Exhibit AA-AG# 12 Statement Statement of Facts# 13 Proposed Order# 14 Certiﬁcate of Service)(VIDAL, RENEE) (Entered: 09/23/2005)
110 BRIEF in Opposition re 85 MOTION for Summary Judgment ﬁled by EQUAL EMPOYMENT OPPORTUNITY COMMISSION. (COOK, TERRENCE) (Entered: 09/23/2005)
111 Cross MOTION to Amend/Correct Complaint (Brief ﬁled as document 109) by PAULA BOBO. (VIDAL, RENEE) (Entered: 09/26/2005)
CLERKS OFFICE QUALITY CONTROL MESSAGE - The (CROSS NOTICE OF MOTION TO AMEND THE COMPLAINT AND CONSOLIDATE, 109 ) ﬁled by (R. VIDAL) on (09/23/05) was submitted incorrectly with a (BRIEF IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT). PLEASE RESUBMIT THE (CROSS MOTION ONLY) BY (09/29/05) USING (MOTION TO AMEND, CONSOLIDATE). This submission will remain on the docket unless otherwise ordered by the court. This message is for informational purposes only. (db, ) (Entered: 09/26/2005)
Motions No Longer Referred: 111 Cross MOTION to Amend/Correct Complaint (Brief ﬁled as document 109) (db, ) (Entered: 09/26/2005)
Setting Deadlines as to 111 Cross MOTION to Amend/Correct Complaint (Brief ﬁled as document 109). Motion Hearing set for 10/21/2005 before Judge Robert B. Kugler.

https://ecf.njd.uscourts.gov/cgi-bin/DktRpt.pl?115256069743178-L_1_0-1

21/25

5/23/2017
09/28/2005 09/28/2005 09/29/2005 09/29/2005 10/20/2005 10/20/2005
10/20/2005
10/20/2005
10/21/2005 10/27/2005 01/03/2006

CM/ECF LIVE - U.S. District Court for the District of New Jersey
PLEASE BE ADVISED THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT (db, ) (Entered: 09/26/2005)
112 BRIEF in Opposition re 85 MOTION for Summary Judgment ﬁled by EQUAL EMPOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 # 2)(COOK, TERRENCE) (Entered: 09/28/2005)
113 Letter from Terrence R. Cook re 85 MOTION for Summary Judgment. (COOK, TERRENCE) (Entered: 09/28/2005)
ORDER on defendant's letter application dated 9/27/05 by Thomas W. Sweet, Esq. requesting an extension of time to obtain an Independent Medical Exam; No objections; Ordered application GRANTED. Defendant's shall have until 11/1/05 to obtain an Independent Medical Exam and serve a rebuttal to the Expert Damages report. Ordered by Judge Ann Marie Donio on 9/29/05. (jm1, ) (Entered: 09/29/2005)
114 Letter from Thomas W. Sweet, Esq.. (SWEET, THOMAS) (Entered: 09/29/2005)
115 Letter from Renee C. Vidal and Co Counsel. (Attachments: # 1 Afﬁdavit of Danelle Horner)(VIDAL, RENEE) (Entered: 10/20/2005)
116 REPLY to Response to Motion re 85 MOTION for Summary Judgment, 111 Cross MOTION to Amend/Correct Complaint (Brief ﬁled as document 109) Part 1 of 2 Parts of REPLY ﬁled by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (SWEET, THOMAS) (Entered: 10/20/2005)
117 REPLY to Response to Motion re 85 MOTION for Summary Judgment, 111 Cross MOTION to Amend/Correct Complaint (Brief ﬁled as document 109) Part 2 of 2 Parts of REPLY ﬁled by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (SWEET, THOMAS) (Entered: 10/20/2005)
118 Certiﬁcation of Thomas W. Sweet, Esq. on behalf of FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC. Re 116 Reply to Response to Motion,,, 117 Reply to Response to Motion,,. (SWEET, THOMAS) (Entered: 10/20/2005)
119 Letter from Thomas W. Sweet, Esq.. (SWEET, THOMAS) (Entered: 10/21/2005)
Minute Entry for proceedings held before Judge Ann Marie Donio : Status Conference held on 10/27/2005. (jm1, ) (Entered: 10/31/2005)
120 MOTION to Strike Expert Report by PAULA BOBO. (Attachments: # 1 Brief

https://ecf.njd.uscourts.gov/cgi-bin/DktRpt.pl?115256069743178-L_1_0-1

22/25

5/23/2017
01/03/2006 01/19/2006
01/23/2006 01/27/2006 02/24/2006 02/24/2006
03/24/2006
07/07/2006 07/11/2006

CM/ECF LIVE - U.S. District Court for the District of New Jersey
Memorandum of Law in Support of Motion# 2 Afﬁdavit of Danelle Horner# 3 Afﬁdavit of Paula Bobo# 4 Afﬁdavit of Renee Vidal# 5 Certiﬁcate of Service # 6 Text of Proposed Order)(VIDAL, RENEE) (Entered: 01/03/2006)
Setting Deadlines as to 120 MOTION to Strike Expert Report. Motion Hearing set for 2/3/2006 before Magistrate Judge Ann Marie Donio. PLEASE BE ADVISED THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (db, ) (Entered: 01/04/2006)
121 BRIEF in Opposition re 120 MOTION to Strike Expert Report of Charles A. Dackis, M.D. ﬁled by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (Attachments: # 1 Afﬁdavit of Charles A. Dackis, M.D.# 2 Certiﬁcation of thomas W. Sweet, Esq.# 3 Certiﬁcate of Service # 4 Text of Proposed Order)(SWEET, THOMAS) (Entered: 01/19/2006)
122 Letter from Terrence R. Cook attorney for the EEOC, re 120 MOTION to Strike Expert Report. (db, ) (Entered: 01/23/2006)
123 REPLY to Response to Motion re 120 MOTION to Strike Expert Report ﬁled by EILEEN HORNER, DANELLE HORNER, DAYNA HORNER, LEIGHANNE REYNOLDS, PAULA BOBO. (Attachments: # 1 Certiﬁcate of Service)(VIDAL, RENEE) (Entered: 01/27/2006)
124 OPINION re 111 Cross MOTION to Amend/Correct Complaint (Brief ﬁled as document 109) ﬁled by PAULA BOBO,, 85 MOTION for Summary Judgment ﬁled by JOHN P. BROWN,, FOODCRAFTERS DISTRIBUTION COMPANY,, TROPICAL PLANT CARRIERS, INC.,, LITTLE BROWNIES PROPERTIES, INC.,, TRANSYSTEMS, INC.,, ROBERT ROCHE,, PETER WOOD,, AL AVILA,, MICHAEL ALFANO, . Signed by Judge Robert B. Kugler on 2/24/06. (db, ) (Entered: 02/28/2006)
125 ORDER that defendants' 85 Motion for Summary Judgment is GRANTED as to the claims against individual defendants PETER WOOD and JOHN P. BROWN and DENIED as to all other claims; further ORDERED that plaintiffs' 111 Motion to consolidate is GRANTED and this case is consolidated with 04-cv-2394 (JEI) for all purposes; further ORDERED that plaintiffs Motion to Amend the complaint (Docket No. 111) is DENIED . Signed by Judge Robert B. Kugler on 2/24/06. (db, ) (Entered: 02/28/2006)
126 BRIEF of Defendants ﬁled by FOODCRAFTERS DISTRIBUTION COMPANY, TROPICAL PLANT CARRIERS, INC., TRANSYSTEMS, INC., LITTLE BROWNIES PROPERTIES, INC., JOHN P. BROWN, ROBERT ROCHE, PETER WOOD, AL AVILA, MICHAEL ALFANO, FOODCRAFTERS DISTRIBUTION COMPANY, FOODCRAFTERS DISTRIBUTION COMPANY, LITTLE BROWNIES PROPERTIES, INC., TRANSYSTEMS, INC., TROPICAL PLANT CARRIERS, INC., PETER WOOD, TROPICAL PLANT CARRIERS, INC., LITTLE BROWNIES PROPERTIES, INC.. (Attachments: # 1 Certiﬁcate of Service)(SWEET, THOMAS) (Entered: 03/24/2006)
Minute Entry for proceedings held before Judge Ann Marie Donio : Status Conference held on 7/7/2006. (jm1, ) (Entered: 07/10/2006)
127 SCHEDULING ORDER: Settlement Conference set for 7/18/2006 10:00 AM before

https://ecf.njd.uscourts.gov/cgi-bin/DktRpt.pl?115256069743178-L_1_0-1

23/25

5/23/2017
07/11/2006 07/11/2006 07/28/2006 08/17/2006 09/06/2006 09/08/2006 09/08/2006 09/29/2006 10/20/2006 10/16/2008
10/16/2008
11/14/2008 11/19/2008 01/20/2009
02/25/2009

CM/ECF LIVE - U.S. District Court for the District of New Jersey
Magistrate Judge Ann Marie Donio. Final Pretrial Conference set for 8/17/2006 10:00 AM before Magistrate Judge Ann Marie Donio. Signed by Judge Ann Marie Donio on 7/11/06. (sb) (Entered: 07/12/2006)
128 ORDER denying 120 Motion to disqualify defendants' examiner and for a protective order. Signed by Judge Ann Marie Donio on 7/11/06. (sb) (Entered: 07/12/2006)
129 ORDERED that plaintiff's motion (doc. no. 26 on 04cv2394) seeking an order to prevent defendants from conducting an examination of plaintiff is GRANTED.Signed by Judge Ann Marie Donio on 7/11/06. (sb) (Entered: 07/12/2006)
130 ORDER REASSIGNING CASE. Case reassigned to Judge Renee Marie Bumb for all further proceedings. Judge Robert B. Kugler no longer assigned to case. Signed by Judge Garrett E. Brown, Jr. on 07/28/06. (db, ) (Entered: 07/31/2006)
Minute Entry for proceedings held before Judge Ann Marie Donio : Status Conference held on 8/17/2006. (jm1, ) (Entered: 08/18/2006)
131 SETTLEMENT AGREEMENT Consent Decree by EQUAL EMPOYMENT OPPORTUNITY COMMISSION. (COOK, TERRENCE) (Entered: 09/06/2006)
132 CONSENT DECREE ORDER . Signed by Judge Renee Marie Bumb on 9/8/06. (js) (Entered: 09/08/2006)
***Civil Case Terminated. (js) (Entered: 09/08/2006)
133 STIPULATION of Dismissal With Prejudice by MONIQUE LOVENDUSKI. (HARTMAN, KATHERINE) (Entered: 09/29/2006)
134 STIPULATION of Dismissal with Prejudice by PAULA BOBO. (VIDAL, RENEE) (Entered: 10/20/2006)
135 MOTION for Settlement by EILEEN HORNER, DANELLE HORNER, DAYNA HORNER, LEIGHANNE REYNOLDS, PAULA BOBO. (Attachments: # 1 Brief, # 2 Certiﬁcation of Legal Services Rendered, # 3 Certiﬁcation of Counsel, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Text of Proposed Order, # 8 Certiﬁcate of Service)(CHIESA, KRISTOFER) (Entered: 10/16/2008)
Setting Deadlines as to 135 MOTION for Settlement. Motion Hearing set for 11/17/2008 before Magistrate Judge Ann Marie Donio. PLEASE BE ADVISED THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT. (js) (Entered: 10/16/2008)
136 Letter from Katherine Hartman re Set/Reset Motion and R&R Deadlines/Hearings. (HARTMAN, KATHERINE) (Entered: 11/14/2008)
AMENDED JUDGE as to 135 MOTION for Settlement. Motion set before Judge Renee Marie Bumb. The motion will be decided on the papers. No appearances required unless notiﬁed by the court. (th, ) (Entered: 11/19/2008)
137 ORDER granting 135 Motion for Enforcement of the Settlement Agreement. Final Judgment in the amount of $162,500 is entered against defts Foodcrafters Distribution Company, Tropical Plant Carriers, Inc., Transystems, Inc. and Little Brownie Properties, Inc. jointly and severally and shall pay attorney's fees in the amount of $1072.50, etc. Signed by Judge Renee Marie Bumb on 1/20/09. (th, ) (Entered: 01/20/2009)
138 Writ of Execution Returned Unexecuted. (CHIESA, KRISTOFER) (Entered: 02/25/2009)

https://ecf.njd.uscourts.gov/cgi-bin/DktRpt.pl?115256069743178-L_1_0-1

24/25

5/23/2017

CM/ECF LIVE - U.S. District Court for the District of New Jersey
PACER Service Center
Transaction Receipt

05/23/2017 17:44:26

PACER Login:

hs0328:2563377:0

Client Code:

Description: Docket Report

Search Criteria:

1:03-cv-02796-RMB-AMD Start date: 1/1/1970 End date: 5/23/2017

Billable Pages:

20

Cost: 2.00

https://ecf.njd.uscourts.gov/cgi-bin/DktRpt.pl?115256069743178-L_1_0-1

25/25