A. LUIS LUCERO, JR., REGIONAL ATTORNEY CLAIRE CORDON, SUPERVISORY TRIAL ATTORNEY LISA GUARNERO, SENIOR TRIAL ATTORNEY EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 909 FIRST AVENUE, SUITE 400 SEATTLE, WA 98104 TEL: (206) 220-6892
ATTORNEYS FOR PLAINTIFF

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

)

EQUAL EMPLOYMENT OPPORTUNITY

)

elva 0- 5? a- E- BLW

COMMISSION,

) CIVIL ACTION NO.

)

Plaintiff,

) COMPLAINT

)

v.

) JURY TRIAL DEMAND

)

J. C. PENNEY COMPANY, INC.,

)

)

)

Defendant.

)

)

NATURE OF THE ACTION

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

Rights Act of 1991 to correct unlawful employment practices on the basis of sex and retaliation

and to provide appropriate relief to Becky Turner, Merribeth Parris Hicks, and a group of

similarly situated employees. The Equal Employment Opportunity Commission alleges that

defendant J. C. Penney Company, Inc. subjected Ms. Turner and Ms. Parris Hicks and a group

of similarly situated employees to sex discrimination and retaliation. Plaintiff seeks monetary

COMPLAINT - Page I

U.S. eQUAL EMPLOYMENT OPPORTUNITY COMMISSION Seattle District Office
909 First Avenue, Suite 400 Seattle, Washington 98104·1061
Telephone: (206~ 220-6883 Facsimile: (206) 220-6911 TOO: (206) 220-6882
\ '

and injunctive relief, including pecuniary and nonpecuniary compensatory damages and punitive damages, on behalf of Ms. Turner, Ms. Parris Hicks and a group of similarly situated employees.
JURISDICTION AND VENUE I. 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 sections 706(£)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. sections 2000e-5(£)(l) and (3) ("Title VII"), and Section 102 of the Civil Rights Act of 1991, 42 u.s.c. §198Ia. 2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the District ofIdaho.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Section 706(£)(1) of Title VII, 42 U.S.C. §2000e-5(f)(l). 4. At all relevant times, defendant, J. C. Penney Company, Inc. ("1. C. Penney") has been a corporation continuously doing business in the State ofIdaho and has continuously had at least 15 employees. 5. At all relevant times, defendant J. C. Penney has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701(b), (g) and (h) of Title VII, 42 U.S.c. §§2000e-(b), (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Becky Turner and

COMPLAINT - Page 2

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Seattle District Office 909 First Avenue, Suite 400 Seattle, Washington 98104-1061 Telephone: (206) 220-6883
Facsimile: (206) 220-6911 TDD: (206) 220·6882

Merribeth Parris Hicks filed charges with the Commission alleging violations of Title VII by defendant J. C. Penney. All conditions precedent to the institution of this lawsuit have been fulfilled.
7. On or before Marchi 992, defendant J. C. Penney engaged in unlawful employment practices at its Idaho Falls, Idaho facility in violation of §§ 703(a) and 704(a) of Title VII, 42 U.S.C. §§ 2000e-2(a) and -3(a). Defendant 1. C. Penney affected the terms and conditions of employment of Ms. Turner, Ms. Parris Hicks, and a group of similarly situated employees by subjecting them to ongoing harassment based on sex and retaliation for their complaints of discrimination.
8. The effect of the practices complained of in paragraph 7 above has been to deprive Ms. Turner, Ms. Parris Hicks and a group of similarly situated employees of equal employment opportunities and otherwise adversely affect their status as employees because of sex and retaliation.
9. The unlawful employment practices complained of in paragraph 7 above were intentional.
10. The unlawful employment practices complained of in paragraph 7 above were done with malice or with reckless indifference to the federally protected rights of Ms. Turner, Ms. Parris Hicks and a group of similarly situated employees.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining defendant, its officers, successors, agents, assigns, and all persons in active concert or participation with it, from engaging in any

COMPLAINT - Page 3

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Seattle District Office
909 First Avenue, Suite 400 Seattle, Washington 98104·' 061
Telephone: (206) 220-6883 Facsimile: 1206) 220·6911 TOO: (206) 220-6882

employment practices which discriminate on the bases of sex and retaliation.

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

provide equal employment opportunities for all employees, and which eradicate the effects of its

past and present unlawful employment practices.

C. Order defendant to make whole Ms. Turner, Ms. Parris Hicks, and a group of

similarly situated employees by providing appropriate back pay with prejudgment interest, in

amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of

its unlawful employment practices.

D. Order defendant to make whole Ms. Turner, Ms. Parris Hicks, and a group of

similarly situated employees by providing compensation for past and future pecuniary losses

resulting from the unlawful employment practices described in paragraph 7 above, including past

and future out-of-pocket expenses, in amounts to be determined at trial.

E. Order defendant to make whole Ms. Turner, Ms. Parris Hicks, and a group of

similarly situated employees by providing compensation for past and future nonpecuniary losses

resulting from the unlawful practices complained of in paragraph 7 above, including without

limitation emotional pain, suffering, and loss of enjoyment of life, in amounts to be determined

at trial. F.

Order defendant to pay Ms. Turner, Ms. Parris Hicks, and a group of similarly

situated employees punitive damages for its malicious and reckless conduct described in

paragraph 7 above, in amounts to be determined at trial.

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

interest.

COMPLAINT - Page 4

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Seattle District Office
909 First Avenue, Suite 400 Seattle, Washington 98104-1061
Telephone: (206l 220-6883 Facsimile: (206) 220-6911 TOO: (206) 220·6882

H. Award the Commission its costs of this action. JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its complaint.

,2000.

A. LUIS LUCERO, JR. Regional Attorney
CLAIRE CORDON Supervisory Trial Attorney

C. GREGORY STEWART General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel

LISA MORELLI GUARNERO Senior Trial Attorney

EQUAL EMPLOYMENT 0 COMMISSION Seattle District Office 909 First Avenue, Suite 400 Seattle, Washington 98104 Telephone (206) 220-6917

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

COMPLAINT - Page 5

u.s. EaUAL EMPLOYMENT OPPORTUNITY COMMISSION
Seattle District Office 909 First Avenue. Suite 400 Seattle, Washington 98104·1061 Telephone: (206) 220·6883
Facsimile: (2061 220-6911 TOO: (2061 220-6882

 
 • •

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

I . FEB? B '.-'(,:l' ),.j

--)'-'-!~. '~-..., ,e"GED

;,SGF'DilE~ D~,/J

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER,

CASE NO, CIVOO-570-E-BLW
ENTRY OF DEFAULT-CHRISTOPHER GEE

Plaintiffs,

v,
J, C. PENNEY COMPANY, INC., CHRISTOPHER GEE, PAT BOYCE and JOHN AND JANE DOE NOS,
1-5
Defendants,

IN THIS ACTION, the Defendant, Christopher Gee, having been regularly

serviced with process, and failed to appear and answer the Consolidated Complaint and Demand

for Jury Trial by (intervening) Plaintiffs Becky Turner, Merribeth Parris Hicks, Troy Hurley,

Sarah Johnson and Carol Mayer on file herein, and the time allowed by law for answering

having expired, upon application of said intervening Plaintiffs, the default of said Defendant,

Christopher Gee, is hereby duly entered according to law, CLERK OF THE COURT

By ~6 ~~~ Deputy

ENTRY OF DEFAULT - 1

~nited cou~ States District

19

for the

District of Idaho

February 28, 2001

* * CLERK'S CERTIFICATE OF MAILING * *

Re: 4:00-cv-00570

I certify that a copy of the attached document was mailed to the following named persons:
A Luis Lucero Jr, Esq. US EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Seattle District Office 909 First Ave #400 Seattle, WA 98104-1061
Claire Cordon, Esq. US EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Seattle District Office 909 First Ave #400 Seattle, WA 98104-1061
Lisa Guarnero, Esq. US EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Seattle District Office 909 First Ave #400 Seattle, WA 98104-1061
Bradley J Williams, Esq. MOFFATT THOMAS BARRETT ROCK & FIELDS PO Box 1367 Idaho Falls, ID 83403-1367
Chrys Meador, Esq. JC Penney Co., Inc. PO Box 10001 Dallas, TX 75301-0001
Lary S Larson, Esq. HOPKINS RODEN CROCKETT HANSEN & HOOPES PO Box 51219 Idaho Falls, ID 83405-1219

Date:

Cameron S. Burke, Clerk
~ BY: (D6j:5uty erk)

 
 • •

)

EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION, et aI., )

)

Plainti tIs,

)

)

v.

)

)

)

J.e. PENNEY CO., INC., et al.

)

)

Defendants.

)

)

CASE NO. CVOO-0570-E-BLW ORDER

INTRODUCTION

Currently pending before (he Court for its consideration are the following motions:

(1) Defendants' Motion to Compel Examination of Plaintiffs (Dk( /123), filed July 18,2001; (2)

Intervenor-Plaintiffs' Malian for Protective Order (Dkt #33), filed August 7, 2001; and (3)

Intervenor-Plaintiffs' MOlionto Amend Complaint (Dkt #27), filed July 31,2001. On October 3,

2001, the Court conducted a hearing on the above motions with counsel for all parties present.

During the course of the hearing, Defendants' Motion to Compel was granted in part and denied

in part, with certain specified limitations. Consistent with that .ruling, Plaintiffs' Motion for

Protective Order was granted in part and denied in part. This Order memorializes those .rulings.

Additi(l11ally, for the reasons stated herein, (he Court will grant Plaintiffs' Motion to Amend.

Order - rage 1

• •
I. BACKGROUND. This lawsuit involves claims by EEOC and several former employees at lC. Penney Company's ("J.e. Penney") Idaho Falls store (the "store"). The majority ofthese Cormer employees worked in the beauty salon ("Salon") at the store and were supervised by fonner Salon Manager Christopher Gee. From a time prior to 1997 until at least August of 1999, Defendant Gee was the Salon Manager and acted as the immediate supervisor for intervening PlaintiCfs Turner, Hicks, HLLrley and Johnson. Gee continued to work in the Salon until late September of 1999, at which timc he resigned. Defendant Pat Boyce was the Store Manager and Gee's supervisor. Boyce also exercised supervisory authority over intervening Plaintiff Mayer. Defendant Boyce continues to work as the Store Manager. Intervening Plaintiffs Turner, Hieks,Hurley, Jolmson and Mayer maintain that during the course of their employment with J.C. Penney, Defendants Gee and le. Pelmey subjected them am! several of their co~workers in the Salon to a continuing course of obscene, offensive, degrading, and intimidating comments and physical acts of a sexual nature. Thcse comments and acts included, inter alia, Gee's telling graphic sexual stories, requesting sexual favors, and making other sexually oriented comments toward the intervening Plaintiffs and their coworkers. Defendant Gee's comments included remarks about intervening Plaintiffs Turner, Hicks, Johnson, Hurley, and others giving him oral sex Or having sex with him, or about various of the intervening Plaintiffs' children or spouses doing those things. Specifically, among numerous other incidents, the intervening Plainti [Is maintain that
Order - Page 2

• •
Gee engaged in the following: (1) repeatedly told Turner that he wanted to see her minor daughter wearing lingerie or a bikini; (2) repeatedly invited Turner, Hicks and Johnson to have sex with him; (3) falsely told other employees that Turner had engaged in sexual relations with him; (4) talked on repeated occasions in the presence of various of the intervening Plaintiffs about his sexual activities with various other employees at the Salon; (5) repeatedly commentcd in the presence of variolls of the intervening Plainti ffs about his desire to have oral and anal intercollrse; (6) in the presence ofvariolls of the intervening Plaintiffs, described in graphic detail his sexual activities with his ex-wife, his subordinates and others; (7) told Hicks that he wanted to have anal intercourse with her son; (8) spoke on repeated occasions about having sexual and anal intercourse with Hicks' daughter; (9) made statements ahout getting oral sex from Hicks, her dallghter and her son; (10) threatened Hurley that he was going to take Hurley's wife out and have sexual intercourse with her; (11) repeatedly expressed to Hurley his desire to have intercourse with Hurley; (12) made repeated comments in Mayer's presence about the breasts or buttocks of female subordinates, customers and others; (13) made repeated comments in Mayer's presence about women, such as "I wish I could get her into bed," as well as statements about his homosexual and heterosexual relationships; (14) falsely told other employees that he had engaged in group sexual activity with Johnson and her husband; and (15) subjected Johnson (0 repeated unwelcome touching and other behavior of a sexual nature.
The intervening Plaintiffs also maintain that Gee's sexual comments and requests were frequently tied to requests for time off; scheduling accommodations, or other job benefits. To the observation of the intervening Plaintiffs, Gee (reated favorably those employees who submitted to his sexual propositions andlor tolerated his offcnsive language. The intcrvcning Plaintiffs
Order - Page 3

• •
specifically maintain that Gee gave beUer working hours, better job assigllllents, and more referral business to employees who consented to his behavior.
The intervening Plaintiff's contend that they and several other employees complained about Gee's behavior and the work environment in the Salon to lc' Penney management. Numerous reports were made to intervening Plaintiff Mayer, who was then Loss Prevention Manager at J.C. Penney's Idaho Falls store. Mayer maintains that she passed along these repOlts to Pat Boyce. Several other reports about Gee and the Salon work environment were made to Boyce, her predecessor, Stove Aller, and other members of lC. Pellley management.
J.c' Pellley's own documentation demonstrates that wtiUen complaints of sexual harassment in the Salon date back to at least March of 1997. See Aff. of Counsel in Support of Mo. to Amend ("Aff. of Counsel"), Ex. K, letter dated March 13, 1997 from J.c' Penney's then Personnel Supervisor Kim Bales to Steve Aller (reporting that somo orthe salon associates were complaining about Gee's inappropriate touching and sexual comments). F(lrther, Aller admits that Mayer and Bales came to him on separate occasions during the period he served as Store Manager to report the bad language and off-color jokes being told in the Salon by Gee. See Afr. of Connsel, Ex. CC, letter from Aller to J.C. Penney's in-house attorney, Ron Winkler.
Among other complaints were oral and written complaints from Rebecca Ord-Page. Altho(lgh Ord-Page alleges that she complained to management about foul sex(lallanguage, demands and threats from Gee, she maintains that she was told, "Oh, thai'sj(lst Chris," OrdPage further alleges that shortly after reporting Gee's cond(lct, she was in the back room ofthe Salon when Gee sex(lally assaulted here and threatened that he wO(lld kill her if she rep(lfted his eond(lct. Ord-Page reported the matter to Storc Manager Aller hut nothing was done to remedy
On..ler ~ Page 4

• •
the problem. Ord-Page subsequently left .I.e. Penney. Shortly thereafter, Gee was promoted to the Salon Manager position.
Multiple reports were made to .I.e. Penney management regarding Gee and the work environment in the Salon even arrer Aller left and was replaced by Boyce in early 1998. For example. Plaintiff Hicks complained to Boyce about Gee's "inappropriate discussions" in 1998. AIso, in a letter dated December 6, 1998 from Troy Hurley, see Aff. of Counsel Exs. M and X, Hurley complained about Gee playing favorites and discriminating against him. Further, Becky Turner reported Gec's harassment oCher herselfand her daughter to Natalee Madsen, the then Merchandise Manager at the store, and requested that her complaint be relayed along to Boyce. When Madsen reported to Boyce, Boyce allegedly responded: "Don't tell anyone. I am not worried. Forget you heard anything."
In February of 1999, Gee exposed his penis to at least one female subordinate in the Salon. This exhibition occurred during work hours in the salon dispensary and was reported by
several persons to .I.C. Penney management. Among other reports made to J.e. Penney
management regarding that incident and Gee's other inappropriate conduct was a written report
from Mayer. According to J.e. Penney, Boyce received that report on February 18, 1999. See
Aff. of Counsel, Ex. L. Boyce claims that she initially interviewed five selected stylists in the salon regarding
Gee's penis exhibition. See Afr of Counsel, Ex. N. She claims that even those selected employees reported favoritism in the Salon and fear of retaliation if they reported any problems to management. Her written report regarding the incident indicates that the selected stylists confimled that Gee had exposed his penis in the Salon and lhat Gee admitted exposing himself to
Order ~ Page 5

• •
his female suhordinates. See iii.
Concerning the penis exposure incident, Boyce admitted (ha( Gee's conduct was "outrageous" and that Gee's dismissal was appropriate. Sec Aff. ofCounscl, Exs. Fat 139-40 and O. Nevertheless, Gee was pernlitted to retain his Salon Manager position and continued to exercise supervisory and managerial authority over various of the intervening Plaintiffs and other similarly situated employees.
During the remainder of the spring and into the summer of 1999, complaints about Gee
and the work environment in the Salon continued to be made to J.c. Penney. In addition to those
made to Mayer, Boyce's own notes reflect that several of the stylists reported Gee's favoritism and others reported Gee making unwanted remarks. See Afr. of Counsel, Ex. X.
Multiple complaints to lC. Pelllley management about Gee and the workplace in the Salon continued during Augus( and September of 1999. These included several complaints 10
Boyce herself. Notwithstanding these complaints, .I.e. Penney's own documents relleet the fact
that Gee was never terminated. Rather, he resigned and lell J~c. Penney in la(e September of 1999.
In its Complaint, the EEOC alleges (hal J.C. Penney subjected Tumer, Hicks, and a group of similarly situated employees to sex discrimination and retaliation in violation ol'Title VI! of the Civil Rights Act of 1964 and Title 1 of the Civil Rights Act of 1991. The EEOC's Complaint seeks monetary and inj unctive relief, including pecuniary and nonpecuniary compensatory damages on behalf of Tuner, Hicks and similarly situated employees. FlLrther, the EEOC's
Complaint prays that J.c. Penney be ordered to pay to Turner, Hicks and similarly situated
employees punitive damages ior its malicious and reckless c(mducL
Order - Page 6

• •
Intervening Plaintiffs Turner, Hicks, Hurley, Johnson and Mayer sought and obtained leave (0 intervene and (heir consolidated Complaint was filed on January 17, 2001. In addition to claims based upon sexual harassment, ongoing hos(ile work environment, gender discrimination and retaliation of Title Vll of the Civil Rights Act of 1964 and the Idaho Human Rights Act, the intervening Plainti ffs' Consolidated Complaint included claims for infliction of emotional
distress and negligence under Idaho law. The intervening Plain(i rrs' Consolidated Complaint
also indicated leave would be sought to amend and add a claim and prayer for punitive damages. II.
DEFENDANTS' MOTION TO COMPEL EXAMINATION OF PLAINTIFFS (DKT #23) AND PLAINTIFFS' MOTION FOR PROTECTIVE ORDER (DKT #33).
Defendants move the Court for an Order compelling the Plaintiffs to submit to independent medical examinations and (hal sLlch Order oulline the following: (l) that the scope of (he examinations include inquiry into the Plaintiffs' non-work related sexual activities; (2) that the Plaintiffs may not have a third party present during the examinations; and (3) lhat (he examinations arc to occur a( the offices of Dr. Holt in Boise, Idaho with Defendants to bear the costs of Plaintiffs' travel, lodging and meals.
The Court I1nds that Defendants must be granted the opportunity to examine interveningPlaintiffs in order to formulate the necessary defenses for Plaintiffs' claims ofintentional inlliction of emotional distress. Accordingly, Defendants' Motion to Compel is granted in part
and denied in part. Consistent with this mling, Plain(i rrs' Mo(ion for Prolective Order is granled
in part and denied in part. In order to balance the needs of each party, any inquiries pertaining to Plaintiffs' sexual
history shall be limited to a three-year period oftime. Examination questions relating to family
Order - Pa~e 7

• •
history shall be limited to where Plaintiffs were bom and raised. Additionally, Defendants shall give Plainti rrs a minimum of three weeks notice prior to such examinations. Further, the
examinations shall occur at the offices of Dr. Holt in Boise, Idaho. Plaintiffs may have a third party accompany them to the examinations; however, that individual would remain in the waiting
area and not be physically present during the examination and interview. Lastly, Defendants
shall bear the cost of$533.97 for Plaintiffs' lost time at work rullI/or child care expenses, travel, lodging, and meals.
Ill.
PLAINTIFFS' MOTION TO AMEND. A. Standard of Review.
Motions to amend a pleading are governed by Federal Rule of Civil Procedure 15(a). That rule provides that a party may amend a pleading:
[O]nce as a matter of course at any time before a responsive pleading is served or, if the pleading is one of which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party. Fed. R. Civ. P. 15(a). Pursuant to tbis rule, leave to runend is to be given freely "whenjustiee so requires." Jd. The decision to allow a party to anlend a pleading lies within the sound discretion of the trial court. Campbell v. Board of Trustees ofthe Leland Stanford Junior Universi~y, 817
F.2d 499,506 (9th Cir. 1987); United States v. Wehh, 655 F.2d 977,979 (9th Cir.1981). However, as the Ninth Circuit stated in Hum v. Retirement Fund ofPlumbing, Etc., 648 F.2d 1252 (')th Cir. 1981):
[t]he Supreme Court has instructed the lower federal courts to heed carefully the command of Rule 15(a), Fed. R. Civ. P., by freely granting leave to amend when
Ordcr - Page 8

• •
justice so requires. The purpose of pleadings is "to facilitate a proper disposition on the merits."' 1d. at 1253 (citations omil\ed). See also, Webb, 655 at 979 ("In exercising this discretion, a court must be guided by the underlying pnrpose of Rnle 15 to facilitate decision on the merits rather than on the pleadings or technicalities."). In keeping with the notion that Rule J5(a) is to be interpreted with extreme liberality, the Ninth Circuit has directed courts to consider a variety of factors when ruling on a motion to amend, including: "(1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment, and (5) whether the [defendant] has previously amended his [answer]." Allen v. Bever~y Hills, 911 F.2d 367, 373 (9th Cir. 1990). However, these factors are not of equal weight. See Webb, 655 F.2d at 980. Rather, it is "[0]nly where prejudice is shown or the movant acts in bad faith [that) courts [are] protecting the judicial system or other litigants when they deny leave to amend a pleading." Howey v. Uniled Siales, 481 F.2d 1187, 1191 (9th Cir. 1973), cited in Wehh, 655 F.2d at 980. B. Discussion. intervening Plaintiffs move the Court for an Order granting their Motion for Leave to Amend their Consolidated Complaint and Demand for Jury Trial to Include a prayer for punitive damages under the Human Rights Act and Idaho common law pursuant to Idaho Code § 6-604, with such amendment to relate hack to the filing date of their original Consolidated Complaint. In response, Defendants contend that Plaintiffs cannot recover punitive damages under both Title Vll and Idaho common law for the same underlying allegedly wrongful conduct. Based on the present record before the Court, most notably the facts outlined supra, the Court finds that Plaintiffs have established a reasonahle likelihood of presenting facts at trial
Order - Page 9

• •
sufficient to support a claim for punitive damages. The Court is particularly concerned about the
fact that Boyce's own documents relleet that she discussed Gee's conduct and the penis
exhibition incident with her superiors and those superiors required her to retain Geo. See Aff. of
Counsel, Exs. 0 and F pp. 138. Such superiors included I.e. Penney's Senior Human Resource
Attomey Ronald Winkler and its District Manager, Paul Lemmon. Accordingly, Plaintiffs'
Motion to Amend will be granted.
With respect to Defendants' concerns about a double recovery for the same injury,
Defendants have not demonstrated that they will necessarily incur duplicate penalties for
identical wrongful acts if intervcning Plaintiffs' motion is granted. If a risk of a double penalty
for the same wrongful act is ultimately shown to exist at trial, the Court can provide the jury witb
an appropriate special verdict fornl, appropriate jury instmctions, or address thc issue through a
post-verdict action, if necessary. As in all cases in which claims for punitive damages are
asserted before this Court:
The parties are advised that this court sees the threshold for amending a complaint to add a claim lor punitive damages to be significantly lower than the threshold for allowing a punitive damages claim to ultimately reach ajury. At trial, until the court finds that the record is sufficient to allow the jury to consider the issue of punitive damages, the court will exclude evidence about the defendants' wealth and financial condition. Moreover, should the evidence presented at trial fail to establish a sumeient factual hasis to support an award of punitive damages, the court will not allow the claim tor punitive damages to go to tbe jury.
Doe v. Cutter Biological, 844 F. Supp. 602, 610 (D. IdallO 1994) (emphasis added). At the time
of trial, the same reasoning will be applied in the case at bar and a decision will be made as to
whether (he Plain(iffhas sustained the proof necessary to allow the punitive damages claims to
reach the jury. Even still, if Plaintiff is fOlll1d to have met his burden, the Court would
recommend (bat the punitive damages determination be bifurcated from the liability portion of Order - Page 10

• •
the jury's detell11ination process. Under this procedure, thejury would initially detennine liahility and general and special damages. After that verdict is returned, the parties can then offer additional evidence and present their positions on punitive damages to the same jury. The jury would then deliberate on the punitive damages and return an additional verdict.
Order - Page 11

• •
ORDER Based on tbe foregoing, the Court being otherwise fuHy advised in the premises, IT IS HEREBY ORDERED that (I) Defendants' Motion to Compel Examination of Plaintiffs (Dkt #23), I11cd July 18, 2001, is GRANTED TN PART AND DENIED IN PART; (2) Intervenor-Plaintiffs' Motion for Protective Order (Ok! #33), filed August 7, 2001, is GRANTED IN PART AND DENIED IN PART; and (3) Intervenor-Plaintiffs' Motion to Amend Complaint (Ok! 11-27), filed July 31,2001, is GRANTED.

DATED:

October , <>t ,2001.
~ ~ ~<___ y.J~~~ooe:==____
MlKEL H. WILLIAMS UNITED STATES MAGISTRATE JUDGE

Order - Page 12

• •

MAILING CERTIFICATE

I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed this .s:2f1-tlaay of

IJd .

,2001, to the following:

A Luis Lucero, Jr Claire Cordon Lisa Guarnero US EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION 90'1 First Ave #400 Seattle, WA 981 04~ I061

Richard II GI'eener Daniel Loras Glynn COSHO HUMPHREY GREENER & WELSH 815 W Washington Hoise, ID 83702

Bradley J Williams MOFFATT THOMAS BARRETT ROCK & FIELDS PO Box 1367 Idaho Falls, ID 83403-1367

Chrys Meador JC Penney Co., Inc. PO Box 10001 Dallas, TX 75301-0001

Nicholas A O'Kelly lC. PENNEY CO., INC. 6501 Legacy Dr MS-1122 Piano, TX 75024

Steven K. Brown Reed E. Andrus Katherine Steele Moriarty HOPKINS RODEN CROCKETT
HANSEN & HOOPES PO Box 51219 Idaho Falls, ID 83405-121'1

HONORABLE B. LYNN WTNMTLL CHIEF UNITED STATES DISTRICT JUDGE
BOiSE ID 83724 (hand delivered)
Cameron S. Burke, Clerk United States District Court

P ~--'-4JL!-,-",.w=---
by Deputy Clerk

Order - Page 13

 
 • •

\ I r-...
~ \ \ ').

r-", ,.-.... 1 I"." -1-"/"""'

'

, L

'; ,:")

,'1'l1 IN THE UNJTED STATES DlSTRICT Cq.l,f:1 \ 0. P \1" 33

FOR THE DlSTRICT OF IDAHO,-:> "',.jQ,-

)

EQUAL EMPLOYMENT

)

OPPORTUNJTY COMMISSION, et ai., )

)

Plaintiffs,

)

)

v.

)

)

)

J.e. PENNEY CO., INC., et al.

)

)

Defendants.

)

)

CASE NO. CVOO-0570-E-BLW REPORT AND RECOMMENDATION

INTRODUCTION

Currently pending before the Court for its consideration are the following motions:

(1) Defendant Gee's Motion f<)r Leavc to File Counterclaim (Dkt #49), filed September 14, 2001;

(2) Defendant Gee's Motion to Set Aside Defaull Judgment (Dkt #51), filed September 17, 2001;

(3) Defendants' Motion to Sever Claims (Dkt #71), filed October 16, 2001; (4) Plaintiffs' Motion

for Partial Summary Judgment (Dkt #75), filed November 7, 2001; (5) Defendants' Motion for

Summary Judgment (Dkt 1182), filed November 7,2001; and (6) Defendants' Motion to Strike

(Dkt #102), filed December 13, 2001. On April I, 2002, the Court conducted a hearing in this

matter with counsel for all parties present. Having considered the parties' oral arguments, as

well as the briefing on the above motions, the Court is now prepared to issue its Report and

Recommendation.

Report and Recommendation - Page 1

• •
REPORT
T.
BACKGROUND. The parties are quite lamiliar with the facts of this case. However, given the nature of the motions presently helorc the Court, it is necessary to set forth a cursory recitation of the events underlying this action.
This lawsuit involves claims by EEOC and several former employees at J.e. Penney
Company's ("lC. Penney") Idaho Falls store (the "store"). The majority of these former employees wurked in the heauty salon ("Salon") at the store and were supervised by former Salon Manager Clu'istopher Gee. From a time prior to 1997 until at least August of 1999, Defendant Gee was the Salon Manager and aeted as the immediate supervisor for intervening Plainti ffs Becky Turner, Mcrribeth Parris Hicks, Troy Hurley, and Sarah Johnson. Gee continued to work in the Salon until late September of 1999, at which time he resigned.
Defendant Pat Boyce was the Store Manager and Gee's supervisor. Boyce also exercised supervisory authurity over intervening Plaintiff Carol Mayer, the store's former Loss Prevention Manager. Derendant Boyce continues to work as the Store Manager.
Intervening Plaintiffs Turner, Hicks, Hurley, Johnson and Mayer maintain that during the course of their employment with J.C. Penney, Defendants Gee and lC. Penney subjected them and several of their co·workers in the Salon to a continuing course of obscene, offensive, degrading, and intimidating cumments and physical acts of a sexual nature. These comments and acts included, inler alia, Gee's telling graphic sexual stories, requesting sexual ravors, and making other sexually oriented comments toward the intervening Plaintiffs and their co-
Report and Recommendation - Page 2

• •
workers. Defendant Gee's comments included remarks about intervening Plaintiffs Turner,
Hicks, Johnson, Hurley, and others giving him oral sex or having sex with him, or about various
of the intervening Plaintill's' children or spouses doing those things.'
The intervening Plaintiffs also maintain that Gee's sexual comments and requests were
frequently tied to requests for time off, scheduling accommodations, or other job benefits. To the
observation of the intervening Plaintiffs, Gee treated lavorablythose employees who submitted
to his sexual propositions andlor tolerated his offensive language. The intervening Plaintiffs
specifically maintain that Gee gave better working hours, better job assignments, and more
referral business to employees who consented to his behavior.
The intervening Plaintiff~ contend that they and several other employees complained
about Gee's behavior and the work environment in the Salon to J.C. Penney management.
Numerous reports were made to Loss Prevention Manager Mayer. Mayer maintains that she
passed along these reports to Pat Boyce. Several other reports about Gee and the Salon work
Specifically, among numerous other incidents, the intervening Plaintiffs maintain that Gee engaged in the following: (I) repeatedly told Turncr that he wanted to see her minor daughter wearing lingerie or a bikini; (2) repeatedly invited Turner, Hicks and Johnson to have sex with him; (3) falsely told other employees that Turner had engaged in sexual relations with him; (4) talked on repeated occasions in the prcs~'IlCC or various of the intervening Plaintiffs about his sexual activities with various other employees at the Salon; (5) repeatedly commented in the presence of various of the intervening Plaintiffs about his desire to have oral and anal intercourse; (6) in the presence of various of the intervening Plaintiffs, described in graphic detail his sexual activities with his ex-wife, his subordinates and others; (7) told Ilicks that he wanted to have anal intercourse with her son; (8) spoke on repeatcd occasions about having sexual and anal intercourse with Hicks' daughter; (9) made statements about getting oral scx from Hicks, her daughter and her son; (10) threatened Hurley that he was going to take Hurley's wife out and have sexual intercourse with her; (11) repeatedly expressed to Hurley his desire to have intercourse with Hurley; (12) made repeated comments in Mayer's presence about the breasts or buttocks of female subordinates, cllstomers and others; (13) made repeated comments in Mayer's presence about won1en, such as "1 wish Tcould get her into bed," as well as statements about his homosexual and heterosexual relationships; (14) falsely told other employees that he had engaged in group sexual activity with Johnson and her husband; and (15) subjected Johnson to repeated unwelcome touching and other behavior of a sexual nature.
Report and Recommendation - Page 3

• •
environment were made to Boyce, her predecessor, Steve Aller, and other members of J.C. Penney management.
J.C. Penney's OWl) documentation demonstrates that written complaints of sexual harassment in the Salon date back to at least March of 1997. Further, Aller admits that Mayer came to him during the period he served as Store Manager to report the bad language and off" color jokes being told in the Salon by Gee.
Among other complaints were oral and written complaints from J.C. Penney employee Rebecca Ord-Page. Ord-Page alleges that although she complained to management about foul sexual language, demands and threats from Gee, she was told, "Oh, that's just Chris." Ord-Page further alleges that shortly aftor reporting Gee's conduct, she was in the back room of the Salon
when Gee sexlllllly assaulted her and threatened that he would kill her if she reported his conduct.
Ord-Page reported the matter to Store Manager Aller but nothing was done to remedy the
problem. Ord-Page subsequently left J.e. Penney. Shortly thereafter, Gee was promoted to the
Salon Manager position. Multiple reports were made to J.C. Penney management regarding Gee and the work
environment in the Salon even after Aller left and was replaced by Boyce in early 1998. For example, Plainti fT Hicks complained to Boyce about Gee's "inappropriate discussions" in 1998. Also, in a letter dated December 6, 1998, Troy Hurley complained about Gee playing favorites and discriminating against him. Further, Becky Turner reported Gee's harassment of her herself and her daughkr to Nata1cc Madsen, the then Merchandise Manager at the store, and requested that her complaint be relayed along to Boyce. When Madsen reported to Boyce, Boyce allegedly responded: "Don't tell anyone. 1 am not worried. Forget you heard anything."
Report and Recommendation - Page 4

• •
In February of 1999, Gee exposed his penis to at least one female subordinate in the Salon. This exhibition occulTed during work hours in the salon dispensary and was reported by
several persons to J.e. Perlllcy management. Among other reports made to J.C. Penney
management reg,mling that incident and Gee's other inappropriate conduct was a written report
from Mayer. According to J.e. Penney, Boyce received that report on February 18, 1999.
Boyce claims that she initially interviewed five selected stylists in the salon regarding Gee's penis exhibition. She claims that even those selected employees reported favoritism in the Salon and fear ofretaliation if they reported any problems to management. Her written report regarding the incident indicates that the selected stylists eonfilTned that Gee had exposed his penis in the Salon and that Gee admitted exposing himself to his female subordinates.
Concerning the penis exposure incident, Boyce admitted that Gee's conduct was "outrageous" and that Gee's dismissal was appropriate. Nevertheless, Gee was permitted to retain his Salon Manager position and continued to exercise snpervisory and managerial authority over various of the intervening Plaintiffs and other similarly situated employees.
During the remainder of the Spring and into the Summer of 1999, complaints about Gee and the work environment in the Salon continued to be made (0 J.C. Penney. Tn addition to those made to Mayer, Boyce's own notes reflect that several ofthe stylists reported Gee's favoritism and others reported Gee making unwanted remarks.
Multiple complaints to J.e. Penney management about Gee and the work environment in
the Salon continued during August and September of 1999. These included several complaints
to Boyce herself. Notwithstanding these complaints, J.e. Penney's own documents reflect the
fact that Gee was never terminated. Rather, he resigned and left J.C. Penney in late September of
Report a.nd Recommendation - Page 5

• •
1999. This action originated with discrimination charges filed by Turner and Hieks with the
Idaho Human Rights Commission (IHRC) on June 9, 1999, and July 28,1999, respectively. Hurley, Joimson and Mayer filed additional discrimination charges with the IHRC on January 31, 2000, May II, 2000, and July 20,2000, respectively. With regard to the Turner and Hicks charges of discrimination, the lHRC issued probable cause determinations on January 12,2000, and January 24,2000, respectively_ The Turner and Hicks charges were transferred to EEOC for further proce~sing and, on May 4 and 5, 2000, EEOC sent J.C. Penney Letters of Determination, finding reasonable cause that ,I.e. Penney violated Title VII.
On September 29,2000, EEOC filed a lawsuit against J.C. Penney in the United States District Court for the DistJict ofTdaho_ Tn its Complaint, EEOC alleges that J.e. Penney subjected TUlller, Hicks, and a group of similarly situated employees to sex discrimination and retaliation in violation ofTitle VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991_ The EEOC's Complaint seeks monetary and injunctive relief, including pecuniary and nonpecuniary compensalory damages on behalf of Tuner, Hicks and similarly situated employees. Further, the EEOC's Complaint prays that .I.e. Penney be ordered to pay to Turner, Hicks and similarly situated employees punitive damages for its malicious and reckless conduct.
Intervening Plaintiffs Tumer, Hicks, Hurlcy, Johnson and Mayer sought and obtained leave to intervene lind their consolidated Complaint was filed on January 17, 2001. In addition to claims based upon sexual harassment, ongoing hostile work envirolllllent, gender discrimination and retaliation orTitlc VII of the Civil Rights Act of 1964 and the Idaho Human Rights Act, the intervening Plaintiffs' Consolidated Complaint included claims for infliction of emotional
Report and Recommendatiun -"0 Page 6

• •
distress ami negligence under Idaho law. The intervening Plaintiffs' Consolidated Complaint also indicated leave would be sought to amend and add a claim and prayer for punitive damages.
On July 31, 2001, the intervening Plaintiffs sought leave to amend the Consolidated Complaint to add a claim lor punitive damages. This Court issued an Order dated October 29, 2001, granting the intervening Plaintiffs' Motion to Amend the Consolidated Complaint.
Ill.
DEFENDANT GEE'S MOTION TO SET ASIDE DEFAULT JUDGMENT. At the timc the Complaint was served upon Defendant Gee, he was an inmate in maximum security at the Idaho State Penitentiary. Gee contends that he was unable to obtain legal counsel to take action on his behalf. In July of2001, Gee was able to secure counsel by
accepting Defendanl .I.e. Penney's offer ofreprcscntation. Now that Gee has obtained legal
counsel, he requests that this Court set aside the entry of default against him to allow him to fully participate in this action on the merits. In response, intervening Plaintiffs argue that Defendant Gee has not established the prerequisites for setting a default aside.
A default entered pursuant to Rule 55(a) may only he set aside for "good cause shown." Fed. R. Civ. P. Rule 55(c). In dctcnnining whether to set a default aside, a trial court should consider three factors: (l) whether the plaintiff will nol suffer any prejudice if the default is set aside; (2) whether the defendant has a meritorious defense; and (3) whether the defendant's culpable conduct led to the cntry of default. See 0 'Connor v. State ofNevada, 27 F.3d 357,364 (9th Cir. 1994). A defendant mllst make a sufficient showing on each of these factors before a default may he sct aside. See Benny v. Pipes, 799 F.2d 489, 494 (9th Cir. 1986) (stating that defendants' conduct in allowing default was culpable; thus, factors of whether the plaintiffwill
Report and RecomrmmdaHuII - Page 7

• •
not surfer any prejudice if the default is set aside and whether the Defendant has a meritorious defense need not be considered).
The procedural history of this case establishes that the intervening Plaintiffs' Complaint was filed on January 17,2001, muning Chris Gee and Pay Boyce as individual defendants and naming J.C. Pcnncy as a corporate defendant. The retum or service establishes that Defendant Gee was personally served at the prison on January 30, 200l. On February 21, 2001, counsel appeared and answercd on bchalf of J.e. Penney and Boyce, but not on behalf of Gee.
Default was entered against Gee on February 28, 200 l. On April 10, 2001, counsel for intervening Plaintiffs met with Gee at the prison and advised him that he had been defaulted. See Affidavit or Counsel in Opposition to Motion to Set Aside Entry of Default at'14. On June 5, 2001, after learning of Plaintiffs' counsel's contact with Gee, counsel for Boyce and J.e. Penney advised counsel for Plaintiffs (hat (hey were in the process of retaining separate counsel for Gee and objected to Plaintiffs' contact with him. See Arr. of Counsel in Opposition to Motion to Set Aside Entry oI'Dclfmlt, Exh. A. On Junc 15,2001, counsel for Plaintiffs responded regarding Gee's unrcprcscnted status, noting that J.e. Penney had consciously elected not to defend Gee. Later, counsel ror lC. Penney met with Gee at the prison and expressed a willingness to defend Gee. See Gee Aff. at '1'116 and 7. On July 10, 200 I, counsel currently representing Gee appeared on behalf of J.C. PClmey. On July 27,2001, counsel filed an additional notice of appearance on behalf of Derendant Gec.
In light of the above procedural history, the Court finds that Defendants have failed to establish that the defaul! entered against Gee was not the result of Defendants' culpable conduct. See 0 'Colinor, 27 F.3d at 364; see also Benny, 799 F.2d a( 494 (holding that culpable conduct
Report and Recommendation - Page 8

• •
exists when a defendant receives actual or constn1ctivc notice of the pending suit and does nothing in a timely manner in response). At thc time of the motion to set aside default, both Defendant Gee and J.e. Penney had actual notice ofthe claims against Gee and the entry of default for several months. Further, as the Court pointed out during the course of the April 1, 2002, hearing, Gee could have represented his own interests. Like many other irunates who file civil rights claims in thi~ Court, Gee could have utilized the prison legal resources appeared pro se ifhe so desired.
Given the Court's detemlination that Defendants' conduct in allowing the entry of default against Gee was culpable, the Court need not determine whether Plaintiffs will not suffer any prejudice if the defau.lt is set aside' or whether Gee has a meritorious defense. See Benny, 799 F.2d at 494. Accordingly, the COUlt will recommend that Defendant Gee's Motion to Set Aside Entry of Default be denied.
II. DEl'ENDANT GEE'S MOTION TO FILE COUNTERCLAIM.
me Defendant Gee requests leave of this Court to a Counterclaim against intervening
Plaintiffs Johnson and Hurley. Intervening Plaintiffs have asserted that, as a result of certain conduct by Gee, they were forced to endure a hostile work environment such that they ultimately
were compelled to resign their positions at J.c. Pernley Company, Inc. Gee denies these
allegations and asserts that two orthe intervening Plaintiffs, 10lmson and Hurley, conspired to publish such false and slanderous comments for 1he purpose or causing Gee to be terminated

2

It ,hould be noted that Plaintiffs have strmuously argued that actual prejudice would

occur if 1hc default was set aside and Gee was pCffilittcd to file a counterclaim in vicw of the fact that

discovery has closed and the trial is within sixty (60) days.

Report and Recommendation "", Page 9

• •
from his employment at J.C. fernley. Gee maintains that his counterclaim stems from the same faels and (lccun-ences as those alleged by intervening Plaintiffs, and thus his counterclaim could be considered compulsory in nature and could be asserted to have been waived if not presented in these proccedings. Accordingly, pursuant to Fed. R. Civ. P. Rule 13(f), Gee requests that he be allowed to filc his counterclaim.
lntervening Plaintiffs point (lutthat Defendant Gec filed the present motion for leave to file a counterclaim prior to filing the pending motion to set aside the default which was entered against him in this case. hltervening Plaintiffs also argue that Gce has not established that he is entitled to have the default set aside. Further, intervening Plaintiffs argue that the counterclaim Gee seeks to bring is time-han-ed and otherwise without merit.
As noted supra, the Court finds that Defendant Gee has not shown good cause for setting the entry of default aside. Absent the setting aside oflhe dcfault, Gee does not have standing to bring the counterclaim. According, the Court will recommend that Gee's Motion for Leave to File Counterclaim he de11ied.l
III III
Assuming arguendu that this Court was to tlnd that Gee's default ought to be set aside, his requested counterclaim would be time-barred. Idaho's statute oflimitations for claims relying upon defamatory and slanderous conduct is two years. See Idaho Code § 5-219(5). The statute hegins to run when there is some Objectively ascertainahle damage. See Bonner v. Ruman Catholic Diocese ofBoise, 128 Idaho 351, 352, 913 P.2d 567, 568 (1996). Tn Gee's proposed counterclaim, he aUeges that he was damaged when he was forced to leave his employment at .J.e. Penney on September 15, 1999. Therefore, the two-year statute oflimitations ran on September 15, 2001. Accordingly, it would be futile for Gee to bring said counterclaim.
Report and Recommendation - Pa~e 10

• •
IV. DEFENDANTS' MOTION TO SEVER CLAIMS. In December of 2000, counsel for all parties participated in a scheduling conference with the Hon. B. Lynn Willrnill. Based upon the parties' agreements, Judge Winmill issued a Scheduling Order dated December 12, 2000, specifying that this case was to have a single jury trial commencing in February of20024 Further, on January 11,2001, Judge Winmill issued an Order allowing intervening PlaintiHl; to join in this case. Defendanls now move this Court for an Order (i) severing the claims orthe five individual intervening PlaintitTs for purposes of trial in accordance with Fed. R. Civ. P. Rule 42(b); (ii) designating which Plaintifrs claims will commence trial as currenlly scheduled; and (iii) setting the other individual Plaintirrs' claims for trial on dates mutually convenient to this Court and all counsel. Intervening Plaintiffs responded to Defendants' Motion to Sever by pointing out that the claims set forth in the MotiOll to Intervene and the proposed Complaints by each of the intervening Plaintif1S are essentially identical to the claims set forth in the intervening Plaintiffs' Amended Consolidated Complaint. Plaintiff EEOC responded to Defendants' Motion to Sever by noting that the parties have proceeded from the beginning of this case on the basis that this case is a single lawsuit involving multiple employees of Defendant lC. Penney. As a prcliminary mattcr, this Court notes that the EEOC has a statutory right under Title
vrr to institute a single lawsuit and pursue class·widc relief in cases similar to the present one

4

JlIdgc Winmill i,,"cd an Amended Scheduling Order on January 28, 2002, vacating the

February 2002 trial dale and selling forth a new trial datc of J'l11e 17,2002.

Report and Recommendation - Page 11

• •
without seeking ccrtifieation as a elass representative. See General Telephone Co. ofthe Northwest v. EEOC, 446 U.S. 318, 324-25, 100 S.Ct. 1698,64 L.Ed.2d 319 (1980); EEOCv. Dinuba Medical Clinic, 222 F.3d 580, 588 (9th Cir. 2(00). The intervening Plaintiffs in this case also have a statutory right under 42 U.S.C. § 2000e-5(f)(1) to intervene in the EEOC's lawsuit; a right which they appropriately exercised by filing a Motion to Intervene. Said Motion to Intervene was granted on January 10,2001, without any objection from Defendants.
As to Defendants' contention that "the differing eircrunstances of each [intervening plaintiffs] claims" will result in "an extreme likelihood of confusion to the jury" and "prejudice to defendants' fundamental right to defend themselves," the Court finds that snch arguments are without ba~i~. Tjke the EEOC, each intervening Plaintiff seeks damages based upon sexual harassment, ongoing hostile work environment, gender discrimination and retaliation in violation of Title VII. Intervening Plaintiffs also seek relief under parallel provisions of the Idaho Human Rights Act and Il)r Dd",ndant~' related negligence and inlliction of emotion distress. The only other claim made hy any of the intervening Plaintiffs is the defamation/false light/public disclosure claim arising from comments Gee allegedly made in the Salon at the Idaho Falls Store during the same time period. Therefore, Defendants' request to hold at least five separate trials is unwarranted.
Under the above-stated circumstances, this Court finds no compelling reason (0 distnrh Judge Winmill's Scheduling Order, dated December 12, 2000, specifying that this ease is to have a single jury trial. Defendants have also failed to convince this Court as to why intervening PlaintitTs' claims ShOltld he severed from the EEOC's lawsuit. Accordingly, the Court will recommend that Defendants' Motion to Sever Claims be denied.
Report and Recommendation - rage 12

• •
V. MOTIONS FOR SUMMARY JUDGMENT. A. Standard of Review. When reviewing a motion for summary judgment, the proper inquiry is whether "the pleadings, depositions, answ~rs to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter oflaw." Fed. R. Civ. P. 56(e)(1993). A moving party who does not bear the burden of proof at trial may show that no genuine issue ormaterial fact remains by denlOnstrating that "there is an absence of evidence to support the non-moving party's case." Celolex Corp. v. Carel/,477 U.S. 317, 325, 106 S. Ct. 2548,91 L.Ed.2d 265 (1986). Once the moving party m~ets th~ requirement of Rule 56 by either showing that no genuine issue of material fact remains or that there is an absence of evidence to support the non-moving party's case, the burden shi Ils to the party resisting the motion who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. CL 2505, 91 L.Ed.2d 202 (1986). It is not enough for the [non-moving] party to "rest on mere allegations of denials of his pleadings." Id. Genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." !d. at 250. "When determining if a genuine factual issue ... exists, ... a trial judge must bear in
mind the actual quantum and quality of proof necessary to support liability." rd. at 249-50. "The
mere existcnee of a scintilla of cvidence in snpport of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving
Report and Recommendation -~ Page 13

• •
party]." ld. The Ninth Circuil has consistently applied the standard for granting summary judgment.
Musick v. Burke. 913 F.2d 1390 (9th Cir. 1990); Pelletier v. Federalfiome Loan Bank, 968 F.2d 865 (9th CiL 1992); Bieghler v. Kleppe, 633 F.2d 531 (9th Cir. 1980).
In determining whether a malerial facl exists,facts and inferences must be viewed most favorably to the non-moving party. To deny the motion, the Court need only conclude that a resuit other than that proposed by the moving party is possible under the facts and applicable law. Aronsen v. Crown Zellerbach, 662 F.2d 584, 591 (9th Cir. 1981).
The Ninth Circuit has emphasized that summary judgment may not be avoided merely because there is some purported factual dispute, but only when there is a "genuine issue of material fact." fianon v. Dalaproducts Corp., 976 F.2d 497 (9th Cir. 1992).
In order to withstand a motion for summary jLldgl11ent, the non-moving party (1) must make a showing sufficient to establish a genuine issue of fact with respect to any element for which it bears the burden of proof; (2) must show that there is an issue that may reasonably be resolved in favor of either party; and (3) must come forward with more persuasive evidence than would otherwise be necessary when the Caetual context makes the non-moving party's claim implausible. British Molar Car Dislrib. Ltd. v. San Francisco Automotive Indus. Welfare Fund, 882 F.2d 371, 374 (9th Cir. 1989). B. Plaintiffs' Motion for Partial Summary Judgment and Defendants' Motion for
Summary Judgment. PlainliffEEOC and intervening Plaintiffs (collectively "PlaintiITs") request that the Court grant pattial summalyjudgment on Defendants' assertion of the FaragherlEllerth affirmative defense to Plaintiffs' claims of sexual harassment. Plaintiffs argue that it is incumbent on
Report and Recommendation - Page 14

• •
Defendants, as the patty with the burden of proof on the Faragher/Rllerth amnnativc defense, to come forward with sped fie, probative facts to establish eaeh clement of such affirmative defense.
In response, Defendants argue that the facts in the record do not support Plaintiffs'
assertion that the Faragher/Rilerih defense is not available as a matter of law to J.c. Penney, Rather, Defendants insist that the record demonstrates that J.c. Penney had in place clear and
prominent policies and procedures regarding the reporting of atly perceived sexual harassment and discrimination by its employees. Additionally, Defendatlts maintain that in those instances when sueh procedures were utilized, lC. Penney responded promptly and took reasonable action to prevent ally further lUllawful behavior. Accordingly, Defendants move for summary judgment on all of the claims set forth in the intervening Plaintiffs' Amended Consolidated Complaint.
In Burlington Industries v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) and Faragher v. City o{Boca Raton, 524 U.S. 775,118 S.C!. 2275,141 L.Ed. 662 (1998), the United States Supreme COllrt held that employers are subject to vicarious liability for unlawful harassment by supervisors. When harassment by a supervisor creates an unlawful hostile environment which culminates in a tangible employment action, the employer's presumption of liability i~ conclusive - no affinnative defense is available in such cases. See Ellerlh, 118 S.C!. at 2269; Faragher, 118 S.C!. at 2284·85. Where issues of fact exist regarding tangible job action, "a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence .... The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any [unlawful] hat'assing behavior, and (b) that the plailltiffemployee unreasonably failed to take advalltage of any preventive or corrective opportunities provided by the employer
Report and Recommendation - Page 15

• •
or to avoid harm otherwise," Faragher, 118 S,Ct at 2293; Ellerth, 118 S.Ct. at 2270. In sum, if the employer failed to exercise reasonable care to prevent harassment, it will be liable even if the employee unreasonably failed to complain to management or even iflhe employer took prompt and appropriate corrective action onee it received notice of the harassment.
In the present case, Defendants point out that le. Penney's policies and procedures were clearly explained in written documents such as the J.C. Penney Associate Handbook ("Handbook") and postings throughout the store. Defendants also maintain that the Idaho Falls store manager, Defendant Boyce, made herself available with respect to any employee complaints. Defendants insist that intervening Plaintiffs either wholly failed to utilize said procedures or unreasonahly delayed in utilizing these procedures. Lastly, Defendants note that each Plainti Ifresigned his/her employment voluntarily without mention of any conduct by Mr. Gee.
Despite Defendants' assertions to the contrary, the record reflects that the intervening Plaintiffs and their co~workers repeatedly complained about Gee's sexual language and actions to members of J.e. Penney management. Such complaints included multiple reports to Store Manager Pat Boyce, Ilm11er Store Manager Steve Aller, and Loss Prevention Manager Carol Mayer. These reports commenced as early as 1995 and continued until Gee resigned from J.e. Pernley in September of 1997.
Notwithstanding J.c. Penney's sexual harassment policy and the repeated complaints
regarding Gee's behavior, J.C. Pelilley management decided to hire, promote and retain Gee as its Salon Manager and to allow his direct supervisory control over the intervening Plaintiffs.
In the record that is presently before the Court, it is clear that this dispute presents several
Report and Recommendation - Page 16

• •
genuine iSSlles of material fact. If Plaintiffs' evidence is believed, there is ample evidence from which a jury could find that Defendants failed to exercise reasonable care to prevenl and promptly con-eel any sex ually harassing behavior. Likewise, a j ury could conclude that the intervening Plaintiffs failed to take advantage of preventive or corrective opportunities provided by J.C. Penney. On the one hand, .I.C. Penney points to ils policies and procedures regarding the reporting of any perceived sexual harassment and discrimination by its employees. However, the record also reflects multiple repl)rts to J.e. Penney management concerning Gee, Gee's sexual language and actions, and the work enviromnent in the Salon. All of these contentions are matters that need to be sorted out in tile trial itself.
For the above-listed reasons, this Court finds that genuine factual issues exist that "can be resolved only by a IIndcr of fact because they may reasonably be resolved in favor of either party." Anderson v. Libertv Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986). Accordingly, the Court will recommend thai Defendants' Motion for Summary Judgment and Plainliff< Motion ror Partial Summary Judgment be denied.
VI. DEl"ENDANTS' MOTION TO STRIKE. Defendants move the Court to strike certain paragraphs contained in the affidavits of intervening Plaintiffs, offered in opposition to Defendants' Motion for Summary Judgment. Specifically, Defendants move to strike Paragraph 2 from the Hurley, lohnson, Hicks and Turner affidavits on the basis that those paragraphs constitute inadmissible hearsay and arc eonc1usory with inadequate foundation. Further, Defendants move to slrike Paragraphs 17, 14, and 11, respectively, of the Hurley, Johnson, and Hicks affidavits on the basis that those paragraphs
Report und Recommendatinn - Page 17

• •
contradict each Plaintiffs prior deposition testimony. The Court has reviewed the subject affidavits and has dctermined that the challenged
testimony does not include any statement by a non-testifying declarant offered to prove the truth of the matters asserted. Rather, Paragraph 2 from the Hurley, Johnson, Hicks and Tumey affidavits merely illustrates thc knowledge, understanding and state of mind of the intervening
Plaintiffs during the period each was employed hy J.c. Pcnncy with respect to past complaints.
Furthcr, Defendants' objections go to the weight the testimony should be accorded rather than to its absolute admissibility.
As to Defendants' assertions that certain paragraphs contained in the Hurley, Johnson, and Hicks affidavits contradict each Plaintiff"s prior deposition testimony, the Court has reviewed Paragraphs 17, 14, and II ofthe subject aftidavits and notes that they do not contradict earlier testimony. Accordingly, the Court will recommend that Defendants' Motion to Strike be dcnied.
Report and Recommend.tion - Page 18

• •

RECOMMENDATION

Based upon the foregoing, the Court being otberwise fully advised in the premises, the

Court hereby RECOMMENDS that

(1) Defendant Gee's Motion to Set Aside Default Judgment (Dkt #51), filed

Seplember 17, 2001, be DENTED;

(2) Defendanl Gee's Motion for Leave to File Connterclaim (Dkt #49), filed

Septemher 14, 2001, be DENTED;

(3) Defendants' Motion to Sever Claims (Dkt #71), filed October 16, 2001, be

DENTED;

(4) Plaintirts' Motion for Partial Summary Judgment (Dkt #75), filed November 7,

2001, be DENIED;

(5) Defendants' Motion for Sunnnary Judgment (Dkt #82), filed November 7, 2001,

be DENTED; and

(6) Derendants' Motion to Strike (Dkt #1(2), filed December 13,2001, be DENIED.

Written objections to this Report and Recommendation must be filed witbin ten (10) days

pursuant to 28 U.S.c. § 636(b)(I) and Local Rule 72.1(b), or as a result of failing to do so, that

party may waive the right to raise factual and/or legal objections to the United States Court of

Appeals for the Ninth CireLli!.

DATED:

April j l , 2002.

,

~'~ 1:\ , \-U ~:" 7

MEL H. WILLIAMS

..

UNITED STATES MAGISTRATE JUDGE

Report and Rccollllllcndation- Page 19

• • United States District Court

dkh

for the

District of Idaho

April 19, 2002

* * CLERK'S CERTIFICATE OF MAILING * *

Re: 4:00-cv-00570

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

A Luis Lucero Jr, Esq. US EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Seattle District Office 909 Fj,rst Ave #400
Seattle, WA 98104"1061

Claire Cordon, Esq. US EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Seattle District Office 909 First Ave #400 Seattle, WA 98104-1061

Lisa Guarnero, Esq.
US EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Seattle District Office 909 First Ave #400 Seattle, WA 98104-1061

Bradley J Williams, Esq.
MOFFATT THOMAS BARRETT ROCK & FIELDS
PO Box 1367 Idaho Falls, ID 83403~1367
Chrys Meador, Esq. JC Penney Co., Inc. PO Box 10001 Dallas, TX 75301-0001

~ : (zoe) :; n - 5: (1/
~~

Nicholas A O'Kelly, Esq. JC PENNEY CO., INC.
6501 Legacy Dr MS-1122 Plano, TX 75024

Richard H Greener, Esq. 1-208-338-3290 COSHO HUMPHREY GREENER & WELSH 815 W Washington Boise, ID 83702

Daniel Loras Glynn, Esq.

1-208-338-3290

COBHO HUMPHREY GREENER & WELSH

815 W Washington

f: ~ 'I

Boise, 1D 83702 ~ Daniel L Glynn, Esq.

1-208-338-3290

•

COSHO HUMPHREY GREENER & WELSH

815 W Washington

.B.stoeiis~e~,f·t1:D;l !c8;3~70~2l~~}

HOPKINS RODEN CROCKETT HANSEN & HOOPES

PO Box 51219 Idaho Falls, ID 83405-1219

....-/ Chief Judge B. Lynn Winmill
Judge Edward J. Lodge --;·Chief Magistrate Judge I,arry M. Boyle ~~Magistrate Judge Mikel H. Williams

Date:

Cameron S. Burke, Clerk
Ird BY: (Depty Clerk)

 
 • •

HONORABLE B. LYNN WINMILL

2

ORIGINAL

3

4

UNITED STATES DlSTRlCT COURT

FOR THE DISTRICT OF IDAHO

5

6 EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION, 7

)

CIVIL CASE NO. 00-0570-E-BLW

)

Plaintiff,

)

v.
9
J. C. PENNEY COMPANY, INC.,
10

)

CONSENT DECREE AND

)

(PROPOSED, ORDER OF

)

DISMISSAL

)

)

Defendant.

)

11

)

BECKY TURNER, MERRlBETH PARRIS

)

12 HICKS, TROY HURLEY, SARAH JOHNSON, )

AND CAROL MAYER,

)

13

)

Plaintiff-Intervenors, )

14

)

v.

)

15

)

J. C. PENNEY COMPANY, INC.,

)

16

)

____________________ _ ~D~e~re~n~d~an~t~. _____)

17

I. INTROPUCTION 18

19

J. This action originated with discrimination charges filed by Becky Turner and

20 Menibeth Panis Hicks with the Idaho Human Rights Commission ("lHRC") on June 9, 1999 and

21 July 28, 1999, respectively. Troy Hurley, Sarah Johnson and Carol Mayer filed additional

22 discrimination charges with the Idaho Human Rights Commission on January 31, 2000, May II,

23
24
25 CONSENT DECREE - PAGE 1
26

EQUAe EMPLOYMENT OPPORTUNITY COMMISSION Seattle Dlatrlel Office
Federal OffiCt!l Building 909 FittI;l A-..I1UEI, Suite 400 S!!.lIttICi. Washington 98104.1061
Tel&pl'iont:t (206) 220-6883 F.ax (200) 220·6911 TOO (206) 220-6B82

• •

2000, and July 20, 2000, respectively. Turner, Parris Hicks, Hurley, Johnson and Mayer alleged that

I le. Penney Company, Inc. ("J.e. Penney" or "the Defendant") discriminated against them on the

2 bases of sex and retaliation, in violation of Title VII of the Civil Rights Aet of 1964, as amended

3 ("Title VII"), 42 U.S.C. § 2000e tl..Kq,. Copies oftha charges are attached to this Consent Decree as

4 Exhibit I.

5

2. With regard to the Parris Hicks and Turner charges of discrimination, the IHRC

6 issued probable cause determinations on January 12,2000 and January 24, 2000, respectively. The

7 Parris Hicks and Turner charges were transferred to the Equal Employment Opportunity

8 Commission ("EEOC") for further processing. On May 4 and 5, 2000, EEOC sent J.C. Penney

9 Letters of Determination finding reasonable cause that J.e. Penney violated Title VII. Copies of the

10 Letters of Determination are attached to this Consent Decree as Exhibit 2. The EEOC issued

II Notices of"Right to Sue to Hurley, Johnson and Mayer on November 1,2000.

12

3. The Commission filed this lawsuit on September 29,2000 in the United States

13 District Court for the District of Idaho. The complaint alleges sexual harassment and retaliation.

14

4. Becky Turner, Mcrribeth Parris Hicks, Troy Hurley, Sarah Johnson and Carol Mayer

15 ("Plaintiff-Intervenors") filed a motion to intervene in the lawsuit filed by EEOC and the court

16 entered an order granting intervention on January 10,2001.

17

5. The EEOC, Plaintiff-Intervenors and J.e. Penney want to conclude all claims arising

18 out of the above charges without expending further resources in contested litigation.

19

II. SEITI.EMENT SCOPE

20

6. This consent decree is the final and complete resolution of aU Title VII allegations of

21 unlawful employment practices contained in: (I) Becky Turner, Merribeth Parris Hicks, Troy

22 Hurley, Sarah Johnson and Carol Mayer's discrimination charges; (2) the THRC's and EEOC's

23
24
25 CONSENT DECREE - PAGE 2
26

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Seanle District OffIee
Federal omCEI Building 909 Fi~t Avenue. $l,Ii\o 400 Seattle, Washington 98104-1061 Telephur'\e (206) 220.8883
FOIx (206) 220-6911 TDD (206) 220.8882

77

• •

administrative determinations; and (3) the complaint llIed herein, including all claims by the parties

for attorney fees and costs.

2

Ill. JURJSDICTION AND YENUE

3

7.

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

4 and 1345. Plaintiff EEOC's action is authorized pursuant to Sections 705(g)(6), 706(1)( I) and (3)

5 and Section 707 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.c. §§2000e-

6 4(1)(6), 2000e-5(1)(I) and (3) and 2000e-6 ("Title VII") and Section 102 of the Civil Rights Act of

7 1991,42 U.S.c. §1981a. The employment practices alleged to be unlawful in the EEOC's and

8 Intervenors' Complaints filed herein occurred within the jurisdiction ofthe United States District

9 Court for the District orIdaho.

10

IV. NON ADMISSION OF LIABILITY

II

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

12 shall not be construed as an admission by the Defendant of a violation of Title VII or any other law.

13

14

V. PURPOSE OF THE AGREEMENT

15

9. The parties arc entering into this Consent Decree in order to achieve the following

16 purposes:

17

a. To assure the implementation of policies and procedures which prohibit

18

discrimination or retaliation against employees on the basis of sex, and from

19

retaliation against employees who complain ahout sex discrimination or

20

participate in the investigation of a complaint.

21

b. To assure that J.c. Penney enforces its policy and enforcement program to

22

effectively prevent sex discrimination and sex harassment and whenever

23
24
25 CONSENT DECREE - PAGE 3
26

EQUAL EMPLOYMENT OpPORTUNITY COMMISSION Se.p.ttlEi PI~Urlet Office
Federal orrlce Building 909 Fir~1 AVlI:nI,JIII, SI,J~O 400 Seattle, Washington 98104-1061
TI:!It:!phcnt:t (2013) 22o.l3sa~ Fax (206) .220-6911 TDO (20S) 220-Sa82

• •

appropriate to address and correct situations in which such discrimination or

harassment is alleged.

2

c. To assurc that the Plaintiff-Intervenors are fully compensated for the alJeged

3

damages they claim to have suffered in connection with their employment by J.C.

4

Penney.

5

d. To avoid the time, expense and uncertainty of further litigation.

6

VI. GENERAL PROVISIONS

7

10. This Consent Decree is intended to and does effectuate the full, final, and complete

8 resolution of all allegations of unlawful employment practices and discrimination encompassed by

9 the original discrimination charges and the Complaints filed in EEOC and Tyrner Parris Hicks. et
10 al. y. J.e. Penney Company. Inc, Civil No. 00-0570-E-BLW.

11

11. This Consent Decree constitutes thc complete understanding between the EEOC and

12 J.e. Pelliey with respect to matters herein. No waiver, modification or amendment to any

13 provisions of this Consent Decree will be effective unless it is agreed to in accordance with

14 provisions of Section XI, Conscnt Decree Amendment Procedures.

15

12. This Consent Decree in no way affects EEOC's right to process, in accordance with

16 standard Commission procedures, charges filed by individuals against J.C. Penney alleging

17 violations of Title Vll. Charges include those pending as of the effective date of the Agreement and

18 filed in the future. Processing includes the administrative investigation and conciliation and

19 commencement of civil actions on the basis of such charges.

20

13. Tt is expressly agreed that if EEOC concludes that J.e. Penney has failed to comply

21 with this Consent Decree, the Commission may bring an action in the United States District Court

22 for the District of Idaho to enforce the Agreement after compliance with the terms in Section X,

23
24
25
CONSENT DECREE - PAGE 4 26

eQUAL. EMPL.OYMENT OPPORTUNITY COMMISSION
SI.,tlll Dls.rlel Offlee
F~l!If.B1 ornefl Building gOO F"lffit AllElnue, SUItIili 400 SeattlE!, Wa~hlr'lglon 98104-1051 Telephool3l (206) 220-60983
Filx (20B) 220-6911 TOD (20G) 220-6882

• •

Dispute Resolution Procedures.

1

VII. DEFINITION OF TERMS

2 For the purposes of this Consent Decree, the following dennitions shall apply:

3

14. "The Effective Date of the Consent Decrec" is the date the United States District

4

Court for the District ofIdaho enters the Consent Decree and (Proposed) Order of

5

Dismissal.

6

15. The scope of this Decree shall limited to the state of Idaho.

7

16. Unless otherwisc indicated, the word "days" refers to calendar days

8

17. "Fonnal or Tnfonnal Complaints" includes any complaint alleging sex

9 discrimination, sexual harassment or retaliation Whether written or oral, made to a supervisory

\0 employee of J. C. Penney.

11

VIll. MONETARY RELIEF

12

18.

Defendant and Plaintiff-Intervenors have agreed to a settlement of undisclosed terms in

13 satisfaction of all claims in this action. In return, each Plaintiff-Intervenor will release Defendant [rom all

14 claims arising out of this lawsuit.

15

IX. TERMS OF SPECIFIC COMPLIANCE

16

A. COMPLIANCE WITH TITLE VII

17

19. Defendant reaffirms its commitment to comply with Title VII. In furtherance of this

18 commitment, J.c. Penney will monitor the affirmative obligations of this Consent Decree. J. C.

19 Penney specifically agrees that it will not discriminate against employees on the basis of sex in any

20 employment decisions, including decisions regarding the tenns and conditions of employment.

21

20. Defendant will not retaliate against any employee for making a charge of

22 discrimination or for testitying, assisting, or participating in any investigation, proceeding, or

23
24
25 CONSENT DECREE - PAGE 5
26

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION SeaHI", District Offle. Fed91"i11 Offi!;. EllJilding
909 First Avenue, Suite 400 SeaUle, W.. ~hin!ilIDn 98104.1061
TEilephooe (2061220-6863 Pax (206) 220-6911 TDO (20B) 220.6882

')7

• •

hearing associated with this lawsuit.

21. In recognition of its obligations under Title VII, J.e. Penney will institute the policies

2 and practices set forth below.

3

22. J.e. Penney will collect and share Witll the EEOC data concerning tlle impact of its

4 current policy and procedures as set forth in Section IX, Reporting, Record Keeping and Compliance

5 Review. 6

B. POLICY AGAINST SEXUAL HARASSMENT

7

23. Defendant shall institute and carry out anti~discrimination policies, procedures and

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

9 and will continue to provide equal employment opportunities for all employees. Specifically, in its
10 Idaho Falls store, Defendant will institute policies and conduct training consistent with the J.e.

I I Penney Human Resource Programs previously provided to the EEOC.

12

24. Wifuin sixty (60) days of the date ofthe effective date of this Consent Decree,

13 Defendant will distribute a written copy of its policy regarding discrimination, sexual harassment

14 and retaliation to all employees at fue le.Penney Store, 2320 E.l7'" St. Idaho Falls, Idaho 83404

IS and to the management in all stores covered by this Decree (the state of Idaho) Defendant will

16 provide EEOC with a written copy of this policy as part of its first semi-annual report as provided in

17 paragraph 35 below.

18

C. EXPUNGiNG RECORDS

19

25. Defendant will not disclose any information or make references to any charge of

20 discrimination or fuis lawsuit in responding to employment reference requests for information about

21 the Plaintiff-Intervenors.

22

26. Defendant will expunge from fue personnel files ofthe Plaintiff-Intervenors, and any

23
24
25 CONSENT DECREE" PAGE 6
26

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
SeaUls District Office FedlMal Office Building
809 Fll'ilt Avenue, Suite 400 SeQt~e, W9silin9loo 00104-1061
Telepoor'u;, (206) 220..aSS3
F.3x (200) 220-6911 TOO (206) 220-6882

'17

• •

other records where such infonnation is kept by J.e. Penney, any references to a charge of

1 discrimination against J.e. Penney and this lawsuit. If any of the five named plaintiffs wish to do

2

3 so, J.e. Penney will pennit eaeh to review his/her personnel file within thirty (30) days after the

4 entry of this Consent Deeree to ensure that all such references have been expunged. J.e. Penncy

5 will not add any information or references to the personnel files of the five named plaintiffs or

6 records regarding their charges of discrimination and this lawsuit after such references have been

7 expunged. Files containing information about the Plaintiff-Intervenors that have been developed

8 during the subject litigation will be maintained at the offices of defendant's counsel, Nicholas

9 O'Kelly.

10

D. TRAINING AND AWARENESS PROGRAM

1 1

27. To further the purposes and requirements of this Consent Decree, J.e. Penney will

12 provide training to managers in all of its Idaho stores, and to managers, supervisory employees, and

13 hourly employees at its Idaho Falls store, regarding J.C. Penney policies and procedures regarding

14 sexual harassment and retaliation.

15

28. The objectives of this training will be to (I) convey to employees J.C. Penney's

16 commitment to its policy prohibiting sexual harassment and non-retaliation, and (2) provide clear

17 direction on how to utilize the complaint procedure set forth in the policy. In addition, managers

18 and/or supervisors will be given infonnation and guidance on how to carry out the policy.

19

29. For the duration ofthis Decree, the training will be conducted pursuant to the

20 schedule set forth in Paragraph 34 infra: (I) within six (6) months ofthe date of execution of this

21 Consent Decree for all current employees; (2) at the orientation program for all new hires thereafter;

22 and (3) training shall be conducted at least annually.

23
24
25
CONSENT DECREE - PAGE 7
26

EQUAL EMPLOYMENT OppORTUNITY COMMISSION SIl;l~ttJ9 District Office
Federal Office Building 909 Firs~ Av!!nu!!, Suill! 400 Seattle, WSBhlngton 9al04-1061 Tel1t:tplxln!! (2D8) 22D.6B8J
rsx (206) 220-6911 TOO (206) 220-6882

11

• •

30. The person(s) conducting the training shall be reviewed and approved by the

Commission prior to the entry and implementation ofthi8 decree.

2

3 E. POLICIES DESIGNED TO PROMOTE SUPERVISOR ACCOUNTABILITY.

4

31. J.e. Penney's agrees that it shall impose appropriate discipline - up to and including

5 termination, suspension without payor demotion -- upon any supervisor or manager employed in the

6 state of Idaho within the scope of this Consent Decree, who engages in sex harassment or sexually-

7 based harassment, or witb active or constructive knowledge pernlits any such conduct to occur in his

8 or her work area or among employees under his or her supervision, or who retaliates against any

9 person who complains or participates in any investigation or proceeding concerning any such

10 conduct. J.e. Penney shall communicate tbis policy to all of its supervisors and managers in the

II state ofIdaho.

12

32. J.C. Penney agrees tbat it shall continue to advise all managers and supervisors of

13 their duty to actively monitor their work areas to ensure employees' compliance with the company's

14 sex discrimination and harassment policy, and to report any incidents and/or complaints of sex

15 harassment, and/or retaliation of which they become aware to the department charged with handling

16 such complaints.

17

33. J.e.Penney agrees that in its appraisals and consideration Jor promotion of

18 management personnel employed in the state ofIdaho, it will consider that associate's awareness,

19 understanding and adherence to the company's policies ofnon~ discriminati(Jn and harassment in

20 employment.

21

F. REPORTING, RECORD KEEPING AND COMPLIANCE REVIEW

22

34. The reports to be submitted by J.C. Penney on a periodic basis as provided in this

23 24
25
26 CONSENT DECREE - PAGE 8
17

EQUAL EMPLOYMENT OpPORTUNITy COMMISSION Seattle District Office Feder." Office Bulldln!J
909 First Avenue, Suite 400
S~ttl(l. Wtlshingron 96104-1061
Telephone (2061220-6883 FIIX (206) 220·6911
TOO (N51220-68132

• •

Section will be forwarded (so as to arrive at the Commission within thirty (30) days after the close

of the reporting period.) pursuant to the following schedule:

2

a. Distribution of JCPenney I·luman Resource policies and posting of Notice within

3

60 days of execution of Consent decree by the Court.

4

b. Conduct finst round of training by November 1,2002

5

c. First report due to EEOC of training and any recorded complaints of harassment.,

6

discrimination or retaliation by December IS, 2002

7

d. Second Report to EEOC regarding incidents and where appropriate investigations

8

inlo claims of discrimination, harassment or retaliation due by June 3, 2003

9

e. Conduct second round of training between May 1,2003 and November 1,2003

10

f. Third Report due 10 EEOC by December 15, 2003

II

g. Fourth and last report due to the EEOC on June 4, 2004

12

35. On or before December IS, 2002, J.e. Penney will provide the Commission with a

13 report confirming the date of the distribution of copies of the J.C. Penney discrimination, harassment

14 and retaliation policy, as provided in paragraph 23. (Report A)

15

36. For the duration of this Decree, le. Penney will prepare and submit the reporls

16 described below:

17

a. A report on any oral or written complaints of sexual harassment and/or retaliation

18

made by any employee or applicant at the Idaho Falls store. This report will

19

provide for each such fom1a1 or infonnal complaint filed and/or resolved during

20

the period, the name and sex of the person making the complaint, the date the

21

complaint was made, a description of the complaint, and resolution or status of

22

each complaint. Copies of any complaint made during the reporting period will

23 24 25 26 CONSENT DECREE - PAGE 9
')7

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Soattle District Offleo
F~d!!rl!ll OIJi!;!! Building 909 rlrsl Avenue, Suite 400 S(l<ltl~. W<I$hin!ilton 98104-1061
Telepl'lc!l'lI!t (206) 220.aBS3 Fax (206) 220-6911 TOO (206) 220·61:182

• •

1

be provided along with the report. (Report B)

2

b. A report of all training activities conducted pursuant to this Consent Decree

3

during the period. (Report C)

4

37. All records required by this Consent Decree will be retained by J.e. Penney for the

5 duration of this Consent Decree. J.e. Penney will also maintain records necessary to demonstrate

6 compliance with the provisions of this Consent Decree and to verifY reports submitted, which

7 records shall include, but arc not limited to:

8

a. Records conceming sexual harassment and/or rctaliation incidents or complaints

9

made by any employee ofthe Idaho Falls store, including documentary evidence

10

and summaries of interviews conducted during the investigations, and the

11

findings, resolutions and/or conclusions reached;

12

b. Documents relating to any disciplinary action taken by J.e. Penney against any

13

employee employed at the Idaho Falls Store resulting from inappropriate conduct,

14

which could be construed as harassment of another employee on the basis of sex.

15

C. Documentation on individual and group training materials used during the

16

training sessions outlined above.

17

d. It is understood that J.e. Penney will provide a description of any documents

18

withheld from the EEOC under these provisions where such documents are

19

asserted to be covered by the attorney/client or work product privilege, or which

20

are deemed confidential pursuant to court order. lfthere is any dispute as to

21

whether a particular document is subject to being withheld under a privilege or

22

court order, the parties shall resort to the Alternative Dispute Resolution

23 24
25
26 CONSENT DECREE - PAGE 10
17

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION SQattlQ Dlstrlc:.t Office
Feder.zlll OffiCe! Building
gog Firat Avenue. Suite 400
SII;!roIU!!, Wl!I!I;hinglOl'l 9B1D4.1DBt
Telephone (200) 220-6883
F~x (206) 220.6911
roo (206) 22D-6M2

• •
interviews, attending training held pursuant to the Consent Decree, and examining documents and data maintained by J.C. Penney pursuant to this Consent Decree and Commission regulations for the purpose of confirming compliance with this Consent Decree Order. The Commission agrees that it will provide reasonable notice to J.C. Penney's attorney prior to conducting any review.
39. After the expiration of this Consent Decree, records will be maintained hy J.C. Penney as required by law and Commission regulations.
G. SETTLEMENT NOTICE 40. Within sixty (60) days after the Eilective Date of this Consent Decree, J.C. Penney will post a copy of the Notice of Settlement (Exhibit 3) in all of its stores in Idaho where the Company posts information on Company Policies and other pertinent Company in/(lfTnation, and will maintain this posting for the life of the Consent Decree.
X. ALTERNATIVE DISPUTE RESOLUTION PROCEDURES 41. Either party shall have the right to initiate an action pursuant to the Court's continuing jurisdiction for an unresolved dispute or for non-compliance with any provision of the Consent Decree, as follows:
a. If one party believes that there is an issue to resolve, it sha11 promptly give notice, in writing, to the other party regarding (1) the specific provision, which it believes has not been met, and (2) a complete factual statement of the issue. b. The parties shall promptly undertake efforts to resolve the areas of dispute or alleged non-compliance, through meetings, mediation or other appropriate means. c. If one party determines Ihat elrorls to resolve the matter have failed, the party so finding shall notifY the other party in writing of such failure to resolve the matter and provide a description of the facts and circumstances surrounding the matter.

• •

c. If one party detennines that efforts to resolve the matter have failed, the party so

1

finding shall notify the other party in writing of such failure to resolve the matter

2

and provide a description of the facts and circumstances surrounding the matter.

3

d. The parties shall select a mutually agreeable mediator or request that the Court

4

appoint a mediator within thirty (30) days of receipt in writing of the notice of

5

impasse. Discussions will be engaged in with the assistance of the Court

6

appointed mediator until the mediator determines that discussions arc no longer

7

productive.

8

XI. CONSENT DECREE AMENDMENT PROCEDURES

9

42. This Consent Decree may be modified by mutual written agreement between the

10 Commission and J.C. Penney, or by motion to the Court.

[[

43. Any modification to the Consent Decree is subject to approval by the Court.

12

XlI. DIJRATION OF THE AGREEMENT

13

44. This Agreement will be in effect for two (2) years commencing with the date the

14 Agreement is approved by the Court. The United States District Court Western District ofldaho will

15 have jurisdiction to enforce the Consent Decree. If either party petitions the Court for breach of the

16 Agreement, and the Court finds a violation of the tenns of the Agreement, the Court may extend the

17 duration of the Agreement and award the petitioning party its costs in bringing an enforcement

18 action.

19
'iYlay= 20 DATED this d1!;Ictay of-"f....L.o""""+"'-----, 2002.

21 A. LUIS LUCERO, JR. Regional Attorney
22

GWENDOLYN YOUNG REAMS Associate General Counsel

23
24
25 CONSENT DECREE - PAGE 12
26

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Sl;tatU~ District Office Federal OffIce Building 90g Flf!lt Avenue, SLlI~ 400
S(lattla, W~5hington 98104-1061
TEilepl'tone {2061220-6883
FEll( (206} 220-6911 TDo (20B} 220-6862

77

• •

KATHRYN OLSON Supervisory Trial Attorney
I
2 BY: /2 ¢;Iv;~~

3 EQUAL EMPLOYMENT OPPORTUN

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION
4 Seattle District Office 909 First Avenue, Suite 400
5 Seattle, Washington 98104

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

Telephone (206) 220-6895 6

Attorneys for Plaintiff EEOC 7

8

9 NICHOLAS O'KELLY, Esq.
10 J.C. PENNEY COMPANY, INC. P.O. Box 10001
11 Dal1as, TX 75301-0001 6501 Legacy Drive
12 Plano, TX 75024-3698 Tel: (972) 431-1000
13
14

Attorncys for Defendant

15

16

17

18

19

20

21

22

23
24
25 CONSENT DECREE - PAGE 13
26

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION SEllilttle District OffiCiii'
Federal Offl09 Building 909 Fi~t AVl!:nI,I!!, SIJil1:!: 4QO
Seattle, Washington 98104-1061 Teh~!phDr'l!! (20B) 220.8883
F9X (206) 220-6911
TDD (20B) 220.6882

')7

OHH2 II ,22 •• From-EEOC SED~

20, 220 Sg!!~

T-0,9 P.OI'/0'2 F-09,

ORDER APPROVING CONSENT DECREE AND DISMISSING ACTION

I

The Court having considered the foregoing stipulated agreement of the parties, HEREBY

2 ORDERS TRAT the foregoing Consent Decree is approved and this lawsuit is hereby dismissed with

3 prejudice and without cos{s or attorneys' fees to either the EEOC or Defendantl.C. Penney Company,

4 Inc. The Court retains jurisdiction of this matter solely for purposes of enforcing rile Consent Decree

TES DISTRICT JUD

IQUAL EMPLOYMENT OPPORTUNI-rv' eOMMfSSION $lClanle District Offico Feelersl Offi= B~I!t:llng
909 Flr.Ii:~ ~UII, Sl.Ille 4W S~Wt!l. W.IIj$!'Ilriglan BB104-1C1l1
Tl)lQphone (20B) 220-6a8~
F.,.;I: (20B) 220-6911 TOO (:~O!l) no-EI1!l8Z

.."".,. '''''' I.W . . V. "" ..... """.-1 ...... '111'"' •• V ••

nj.s for. 1& a11ec:ted by tile

of 1974; SGB prlVIl<:Y' ,,"ct StatelllBne

Id~ho Human RightE Commis y lou
Stale or localAgency, ifIVIJI

AND ZIP CODE

oIXI FEPA EEoC ahd EEOC A",.

STREET

NAME

STREET

DRACE

0 COLOR

IXl SEX

0 0 RELIGION

NATIONAL ORIGIN

o RETALIATION

0 AGE

o 0 OISABILITV

OTHER (""",,1fT)

DATE DISCR
EARlJE31'
06/30/96

PARlICULARS AflE fIr .ddlttaDlI.l ap_(ft: b nt#lHJed~ s.ttB.tl"~ ~~ti"li. abfMt(a)):

~**Bee Attached***

[R1~©~O,¥,[g[Q)

JUN 1 5 1999
IDAHO HUMAN RIGHTS COMMISSION

Are,. Cod~J
TOOK PLACE
urE3T
10/01/98

'-jZ~--,,'.n' this cnarg* fUed wUI'l i)otl~ tn~ EEOC .and tne State

. (When neCe5sary for State and Local Requlrements)

a~vbt!j 'l:tfl~~.~g~."~c~t:.:'~'~T~I~c~n:.~ng~.~m~Yh~~~~~~~~~~~~~~~;~~~~~~~;~ addrs5!Ai goerncty.),le1p1'noanllYe . numI bwerUalnC! C~Q~Utr'.:tt~J tUlly with them .i.11 tne I &WOai" or

that

~~~!!!!lL2!...!!!l!"£!~ll!...!l~n..!!~,_m'"'~

tM1r

1t 1ti ti"UB

baUet.

I dac:l.are Under penalty of perjurj ':-~~'-tl ttl. forego1ng 1s and CDrrect.

SIGNATURE OF

S DATE

• • COMPLAINANT: Becky Turner vs. JC Penney Company
PAGETWQ THE PARTICULARS ARE:

I. COMPLAINANT'S STATEMENT OF HARM: I was sexually harassed and had no alternative but to quit in October 1998. After I
quit, Respondent continued the sexual harassment and made sexual comments and propositions to my minor daughter.

II. RESPONDENT'S REASON FOR ADVERSE ACTION: Respondent gives no reason for the adverse action.

III. COMPLAINANT'S STATEMENT OF DISCRIMINATION: I believe I have been discriminated against based on my sex, female. In support of this
statement, I offer the following facts:

A I began working for Respondent on June 23, 1996. My position was a hairdresser in Respondent's salon.

B. Immediately after I was hired, my supervisor, Christopher Gee, began to subject me to what became a continuous stream of sexual stories, requests for sexual favors, and demands for sexual favors in exchange for concessions to my work schedule. This conduct continued until October, when Mr. Gee began to make similar comments and propositions t9.~, m~nor daughter.
C!'"'f ~""" 'P"
c. I had not notified anyone above my supervisor Mr. Gee about this inappropriate sexual
conduct. I believe that previous coworkers had complained, however, and that Respondent was aware ofMr. Gee's sexual conduct.

D. In October 1998, I felt I had no alternative but to constructively discharge my
employment. tM"i
00-1'1!.U<.N" I;j ~r
E. In ApHI-1999, Mr. Gee came to my home and made inappropriate sexual comments in front of my daughter. At this time, I notified Respondent of Mr. Gee's sexual harassment.

F. I believe that I was sexually harassed by my supervisor. and that I had no alternative but to quit my job. After I quit, Mr. Gee came to my home and continued his sexual harassment of me.

G. Respondent employs at least 15 employees.

( ) Action based on the same grievance as alleged in this complaint has been instituted with _ _.

I believe the practices of the above-named Respondent are in violation of:
o(x) Tille 67, Chapter 59 of the Idaho Code Tille 44, Chapter 17 of the Idaho Code (x) Tille VII of the Civil Rights Act of 1964, as amended

EXHIBIT~

_ . . . . . . . _ _ _ _ -.",,,,,,,.'••••11 •• ,,,,_."'."

by tru.

01 1974i SAa Privacy Act

I.1..ahQ HUma!l Bights Commtss'ton
SIal. or localAgency, ifany
Hr•• NJ!k •• Hr3.

oIXI FEPA EEOC ami EEOC

0 DRACE

COLOR

I&J SEX

0 RelIGION 0 NATIONAL ORIGIN

o o RETALIATION

0 ME

0 DISABILITY

OTHER (8peotf)')

DATE
EARl.IE31'
06130/96

THE PARtICUlARS ARt: (Ir 444ltioDI!1 ~paC8 1s .n~~d(!d. atts.ch t1ztrl!l. aht:t:t(:I)):

W**~ee Attached***

[R1~©~OW~[Q)

JL1N 1 5 1999
IDAHO HUMAN RIGHTS COMMISSION

I..fTEST
10/01/98

....,....._w'm' tl11s cnarge fHed W1t~1 noti"! H,~~ EEOC ~na thB state

• (When neeessary for Stat~ and Local Mequ1remer'lt&)

~ t.:-.~";,~g~.~nC~1~'~'~'~f~I;"~~~.~ng~.~m:Yn~~8D~~~;~~E~~~~~~~~~;]~;= addresAs goenrcytele1p1hoanney. r'II"bwerilaln<a:!CiC¥UM.P;ifIitr" ....1.,'1 fUUy wUh them 1n tl'la

1 swnr or 1t 1& true

tnat belIef.

I Cl9CUf'e under penalty 01 perjury ~'I"i~ and COrrect.

SIGNATURE OF

SWORN

• • .Ie r.OMPI ...AINANT: Bp.ckv Turn..r V". P~r"!"~l' r.nmpf.'lny
PAGE TWO THE PARTICULARS ARE:

I. COMPLAINANT'S STATEMENT OF HARM:
I was sexually harassed and had no alternative but to quit in October 1998. After I quit, Respondent continued the sexual harassment and made sexual comments and propositions to my minor daughter.

II. RESPONDENT'S REASON FOR ADVERSE ACTION:
Respondent gives no reason for the adverse action.

III. COMPLAINANT'S STATEMENT OF DISCRIMINATION:
I believe I have been discriminated against based on my sex, female. In support of this statement, I offer the following facts:

A. I began working for Respondent on June 23, 1996. My position was a hairdresser in
Respondent's salon.

B. Immediately after I was hired, my supervisor, Christopher Gee, began to subject me to what became a continuous stream of sexual stories, requests for sexual favors, and demands for sexual favors in exchange for concessions to my work schedule. This conduct continued until October, when Mr. Gee began to make similar comments and propositions to~, m}!,;!Vinor daughter.
er'f*M l" c. I had not notified anyone above my supervisor Mr. Gee about this inappropriate sexual
conduct_ I believe that previous coworkers had complained, however, and that Respondent was aware of Mr. Gee's sexual conduct.

D. In October 1998, I felt I had no alternative but to constructively discharge my employment. n1i
00-01 u..w"-!:l ~.
E. In AtwH--1999, Mr. Gee came to my home and made inappropriate sexual comments ir. front of my daughter. At this time, I notified Respondent of Mr. Gee's sexual harassment.

F. I believe that I was sexually harassed by my supervisor, and that I had no alternative but to quit my job. After Tquit, Mr. Gee came to my home and continued his sexual harassment of me.

G. Respondent employs at least J5 employees.

() Action based on the same grievance as alleged in this complaint has been instituted with ___

I believe the practices of the above-named Respondent are in violation of:
o(x) Title 67, Chapter 59 of the Idaho Code Title 44, Chapter 17 of the Idaho Code
(xl Title VII of the Civil Rights Act of 1984, as amended

EXHIBIT-:

Pr1v~ey CHARa "F DISCRIMINATION

This form is affe~ted by tne pr1_..... of 1974j SBa

Act statement.1

Idaho Human Rights Commission SIIJJe Or localAgency, ifany
NAME (Ind1t:!at~ If,. .. H$.~ Mrs.)

and EEOC

0 DRAGE

COLOR

o 0 o 0 RETALIATION

IKl SEX

0 RELIGION

0 NATIONAL ORIGIN

AGE

DISA"HlTY

OTHER (Spool'>'!

Hll:: f.>Atll'ICUlARS ARE (Ir s.ddtt/Qne/l apace is JJeeded. att~ch oItra slJeet(l!s)),
***5ee Attached***

DArE DISCRIMINATION TOOK PLACE

EARLIEST

LATESt

05/01/98

01/09/99

CONTINUING

..".' ,.
IDAHO HUMAN RIGHTS COMMISSION

I want thl~ charge 1118~ w1th both tne EEOC an~ the State-

. (When ne-cessary for Shu aM local Reqlul"em,mt'w

Agency J 1f .any, I w:i.ll adv1se tM agencies if I Change m~ f------""-"':----------------::;:o-"'------j

address or hlephone number and cooperate funy with them in the I swear or '''"1'''''"",

and that

Wl.th thalr

1t is t ..lJe

!;lnCl beUef.

I declare under penalty of perjury that the ioregolng is true
and cQrreet.

SIGNATURE OF COMPLAINAl1tk~-

- (' tJ 1 )

SUBSCRIB

SWORN TO

1

COMPLAINANT: r!-ibeth Parris VS. JC Penney comp!
r"'\ " f"' r. "T\ A ,,.....
• ~'.'.'_iI... • rlli"'-o'
THE PARTICULARS ARE:
I. COMPLAINANT'S STATEMENT OF HARM:
I was sexually harassed and had no alternative but to constructively discharge my employment in January 1999.
II. RESPONDENT'S REASON FOR ADVERSE ACTION:
Respondent gives no reason for the adverse action.
III. COMPLAINANT'S STATEMENT OF DISCRIMINATION:
I believe I have been discriminated against based on my sex, female. In support of this statement, I offer the following facts:
A. I began working for the above-named Respondent in April 1997. My position was
nail technician.
B. Within four to six weeks of my employment, I was subjected to working in a hostile work environment and sexual harassment from my Supervisor Chris Gee. Mr. Gee uttered to my coworkers a continuous stream of sexual stories, requests for sexual favors, and demands for sexual favors in exchange for work privileges. The first comments directed toward me, personally, occurred about four to six weeks into my employment, and continucd on a more or less monthly basis. Mr. Gee repeatedly made comments to me about my children such as he wanted to take my son "out and butt fuck him." He made similar comments about my daughter. Other similar comments directed to other employees occurred in my presence almost daily.
C. In addition to the offensiveness of the work environment created by Mr. Gee's conduct, there was an actual disparate treatment between women who played along and those that did not. Menial Job assignments in the shop, such as dusting and cleaning, stocking the stockroom, and taking inventory, were assigned to those who did not respond favorably to Mr. Gee's conduct. Those who did respond were relieved of such tasks.
D. Mr. Gee's behavior created a hostile envirorunent and I was not willing to remain at work any longer than what it would take to complete my appointments. This meant that I missed any walk-in customers. This situation cost me the minimum wage I would have earned for those hours, and possibly commissions that would have been earned if my revenues had been greater.
E. I am aware that others complained about Mr. Gee's sexual harassment, but nothing was done to address it. Consequently, 1 did not complain to the company about my

• • supervisor Mr. Gee's sexual harassment because I did not think anything would be
..lune. In addition, i am ,.v.an: lilal !vir. Gee wouid nOI schedule diem appoiHlm~m~ for employees he did not like. I feared his retaliation and that he would not schedule me for client appointments. F. In January 1999, it became apparent that nothing was going to change, so I determined that J had no alternative but to constructively discharge my employment. G. I believe that Mr. Gee created a sexually hostile working environment that became so unbearable that I had no alternative but to quit. H. Respondent employs at least 15 employees.
( ) Action based on the same grievance as alleged in this complaint has been instituted with __. I believe the practices of the above-named Respondent are in violation of:
o(xl Title 67. Chapter 59 of the Idaho Code Title 44, Chapter 17 of the Idaho Code
(xl Title Vii of the Civil Rights Act of 1964. as amended
oAge Discrimination in Employment Act of 1967 (ADEA) oAmericans with Disabilities Act
EXHIBIT-l

C

DISCRIMINATION

This form is &f1ecled by the Pr1vacy Act 01 1974; See Privacy Act Statement
1''''''''''

GENey
... ] FEPA IIRl EEOC

Ct"ARGF NUMIiER

Ida))[L State Human Rights (oI]1missioIl
Siale or local Agency, if(my

....___ and EEOC

,MH .• NT'':;.)

-------Tu"=c-TT<E'lE"P H"O"N"EC"r:CI"',,"C,,"'U'"'d"CC--:-::-:--:-==--1

Ar~'8 COGe)

.1?100 Park Cente.g.l Place, .bJ,tn:

NA" E

'-"-'''--'-----'''-''''-'---''-

STREn AI)[}Rt::

CITY, SlA,'E AND ZIP CODE

COUNTY

o IIACE

0 COlOil

[j(] SEX

0 "ELICION

0 NAI lO'Al ORIGIN

[KJ nf-lALlATION

0 AG~;

L:,'.J DISABI LI' Y [~:J OTHER (SpCCl ty)

lMti: IllS
t;,4Hi.../ f~'·{'!'
08/20/1998

ON TOOK PLACF:
£A'I'l!:S'I'
10/18/1999

PARTICULARS ARE (1'1' I:I.IJdft10iJ81 SP8CC' i:; fltt~rJ~il, ~tta.ch C'xtr<J .~;I!(.·f~I.(.';)):
I bee;an working as a salon employee on August 8, 1998.

From the time of

my empioyment through September 1999, T was subjected to sexually offens

comments, and unwelcome touching and other unwelcome behavior by my salo",-

managcr which cr~ated a hostile work environment. When I complained, I
retaiiateri against until I constructively discharge on October 18, 1999. r

believe these actjons occurred because of my gender, fcmale in Violation

Title VIi of the Civil Hights Act of 196Q, as amended.

See also attached Charge of Discrimination filed with the Idaho Human Rights Commission.

1 want this ctlJI'ge flied with both the EEOC ana the State NOTARY (When necesSoary 10r State and l.ocal Requir'f:jrn~Hlt:;)

local AgarJcy, 1'f any. ! wi.ll advise the agellc1es 1f ! change my

Olqr.lre5s or' tHo-phone number and cooperate fully w1tn tMm In the I swear or aHlrm tnat I nave re~d the above char'gao iim.J tll<1t

I-"'-=:c:.o~ing oJ., Illy ctlarg~ in accordance w1.th ',their' oce(ll~re!:;.

it is tr'Uu to thO best 01 my KnOwledqe, lntormation iind beliaf.

1 daclan: lmdcr penalty ot perjury that the rOi'ogOlng 1.5 true and GOrTac:t,

SIGNATURE OF COMPLAINANT

BEE~HtBtr- SUBSCRIBED AND SWORN

(Month, day and year)

TO

Part

FEPACOPY

CHAit .., DISCRIMINATION

This tor~ t& affected by the Pr1

,

•

At. L G1' 197f i See privacy Act Statement

com let1n this form.

Idaho Human Rights Commission
Siale or local Agency. if<lIIJI

'AGENCY
Grb 0& IFS EeP0 AC
and EEOC

NAME (Int11"lI.te Hr., h •. /il"s.)

reLE'~oNE (Includt:! A~1I Code)

Mr. Tro
STREET AODRESS

CITY, STATE AND ZIP CODE

-1442 DATE OF BIRTH

in Street

0 1

NAMED IS THE EMPLOYER, LABOR ORGANIZATION, EMPLOYMENT AGENCY APPRENTICESHIP COMMITTEE, STATE OR LOCAL GOVERNMENT AGENCY WHO DISCRIMINATED AGAINST ME (Ir mo,"" than on. It.t b.lo~.)

NAME

NUMBER OF EMPLO~E!:.S, MEMBERS

TELEPHONE (In~lude A~1f C()dt::l

J C Penne Co. Inc.
sTREET ADDRESS

CITY, STATE AND zIp COD~

20 E. 1
NAME

Street Idaho Fall

TELEPHONE NUMBER (Includt:' A~6 Code)

STREET ADPRESS

CITY. STATE ANP ZIP COPE

COUNTY

CAUSE 0

CRIMINA 10

DRACE

0 COLD.

IKJ sex

0 RelIGION

0 NATIONAL ORIGIN

!Xl RETALIATION 0 AGE

o 0 PISAPILITY

OTHER (speotry)

THE PARTICULARS ARE Ur addit10nal ap"ct:' 1:11 m~~(J~d, s.etlf(!b e:rtJ'>s sh~t(S))l

DATE DISCRIMINATION TOOK PLACE

EAHLIE3T

LATEST

09/01/1997 11/30/1999
o OONnNUINO ACTION

SEE ATTACHED

FEB 0 3 2000

/

~ want th1~ charge filed with both t~e EEOC and tha State or

Y - (Whan necessary for Stato and Local ReqUirements ~...

loc:al AgencYJ if any. 1 wolll adv1se tne agenc1es 11 1: cnange mYI-----"'....-.::----------------=_~~--

aagress or telephone number and cooperate fully with them in the I swear or af

that I have read the above c e and that

rocesSln of m char e 1n accordance w1th their roceauras.

it 1s true to the b of my knowledge j 1 atlon and bellef.

I declare ijnder penalty of perjury that the 1oregoing is true and correct.

SIGNATURE OF COMPLAI""'....~

/
Date

• •
I. Complainant's Statement ofPersonal Harm
I have been sexually harassed and then retaliated against for complaining of the behavior. The retaliation left me no alternative but to involuntarily resign.
II. Respondent's Reason for Adverse Action
Respondent has provided no explanation for the sexual harassment and has simply failed to respond to my complaints.
III. Complainant's Statement ofDiscrimination
I believe I have been discriminated against by the above named Respondent. In support ofthis, I offer the following:
A. I began working for Respondent in September 1997. Shortly after being hired, my supervisor, who is the salon manager Christopher Gee, asked me if I was interested in "swapping wives." In making these requests, Mr. Gee used offensive and obscene language such as "Hey, I'm going to take your wife out and fuck her," or "Bring your wife over to my house and we will swap. Your wife won't know the difference in the dark except that I'm better."
B. After refusing the invitation and objecting to his course language, I have been subjected to discriminatory treatment in my job as stylist. Mr. Gee refused to comply with the salon's policies related to walk-in clients, referral clients, scheduling or credits for redoing another stylist's work. Further, Mr. Gee thwarted my efforts to apply for a position as salon manager. When I complained to Mr. Gee about his discriminatory treatment, he simply sated that my problems arose from the fact that I refused to "go out and party" with him.
C. In December 1998, I filed a complaint with the store manager, Pat Boyce, related to Mr. Gee's sexual harassment and retaliation. Ms. Boyce did not respond to my complaint at that time. Subsequently, when I complained to Ms. Boyce about Mr. Gee's continuing discrimination and harassing conduct, she informed me that Mr. Gee could do whatever he wished because he was the salon manager.
D. Throughout my employment, I have witnessed Mr. Gee's continuous stream of sexual stories, requests for sexual favors, and demands for sexual favors in exchange for concessions from my female coworkers. In fact, in December 1998, Mr. Gee displayed his newly pierced penis to coworkers.
E. I have been victimized by Mr. Gee's sexual harassment because favorable job opportUnities were bestowed upon female coworkers based on Mr. Gee's requests for sexual favors. Management personnel were notified of Mr. Gee's obscene, offensive, degrading and intimidating verbal and physical acts. Numerous salon employees lodged complaints with the following management personnel: Carol
EXHIB~l

• •

Mayer (loss prevention manager), Steve Aller (former store manager), and Patricia Boyce (store manager)_ Management routinely ignored the complaints, failing to prevent or correct Mr. Gee's sexually harassing behavior.

F. In addition, after I complained about Mr. Gee's sexually harassing behavior, management began selectively enforcing salon rules, treating me differently than my coworkers_ For instance, management originally granted me flexibility in my work schedule. However, after I complained about Mr. Gee, the store manager, Pat Boyce, became confrontational and objected to my work schedule. On another occasion, I was selectively reprimanded for arriving late to work due to road construction. However, other employees in the salon were not reprimanded for being late on other occasions. These instances only occurred after I complained about Mr. Gee's illegal conduct.

G. After Mr. Gee was discharged, the new salon manager continued to discriminate against me in my employment. I was instructed to stop charging my normal rate for the unique color technique I used on at least 90% of my clients, even though my prices were in accordance with long-standing company policy. Essentially, management demanded that I reduce my rates for this treatment by approximately 50% even though the salon manager acknowledged that none of my clients had complained about my prices. Management's decision to charge less money was totally illogical and was not a good business decision. I believe management's decisioh was based on its desire to retaliate against me for raising a sexual harassment complaint against Mr. Gee.

H. As a result of Respondent's discrimination and retaliatory conduct against me, I was forced to find other employment and I believe I had no alternative but to quit my job with Respondent.

I. Respondent employs more than 15 individuals.

I believe the practices of the above named Respondent are in violation of:

(X) Title 67. Chapter 59 of the Idaho Code

( )

Title 44, Chapter 17 of the Idaho Code

(X) Title VII of the Civil Rights Act of 1964, as amended

( ) Age Discrimination in Employment Act of 1967, as amended

( ) Americans with Disabilities Act of 1990

( ) Equal Pay Act

EXHIBiT..l
. II II

• • U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Seattle District Office

Federal Ot"ticc Building

MAY - 4 2000

909 Pirst Avenue, Suite -'100
Seattie. WA 98104-1061 pH (206) 220-6883
TTY (206) l20-6882
r AX (206) 220·6911

Charge No. 38C990352
Merribeth Parris 1540 Laprele Apt. 49 Idaho Falls. ID 83402

Charging Party

J.e. Pelmey Company
Attn.: Ron Winkler, Attorney 12700 Park Central Place Dallas, TX 75251

Respondent

DETERMINATION

Under the authority vested in me by the Conunission, I issue the following determination as to the merits of the subject charge filed undcr Title VII of the Civil Rights Act ot' 1964, as amended.
All requirements for coverage have been met. Charging Party alleged that Respondcnt discriminated against her by subjecting her to a hostile, offensive work environment which constitutes illegal sexual harassment. She alleges that there was a continuous stream of sexual stories, requests for sexual favors and demands for sexual favors. She alleges that those who "played along" received more favorable treatment. She claims that the work atmosphere forced her to resign.
I have considered all the evidence disclosed during the investigation and have determined that the Respondent maintained a work environment which was rampant with sexually offensive language and sexual requests, and those who "played along" were treated more favorably. The Respondent failed to respond to complaints and failed to correct this sexually charged work envirorunent by taking effective action to curtail the hostile enviromnent. Respondent's failure to take appropriate actjon forced the Charging Party to resign.

EX'fH'q. I\B'1IlT+ 2-

• •
Charge No. 38C990352
Upon finding that there is reason to believe that violations have occurred, the Commission attempts to eliminate the alleged unlawful practices hy informal mcfhods of conciliation. Therefore, th" Commission now invites the parties to join with it in reaching a just resolution of this matter. The Commission will also consider compensatory and punitive damages availahle under the law.
If the Respondent declines to discuss settlement or when, for any other reason, a settlement acceptable to the office Director is not obtained, the Director will inform the parties and advise them of the court enForcement alternatives availahle to aggrieved persons and the Commission. Disclosure of information ohtained by the Commission during the conciliation process will be made in accordance with Section 706(b) of Title VII and Section 1601.26 of the Commission's procedural regulations. A Conunission representative will contact each party in the near future to begin conciliation.

HAY -,. 2000

On behalf of the Commission:

EXHIBIT-2
-fJ. ~ Ob t./

• • U.S. RQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Seattle District Office

Pederal Ofticc Rundlng
909 First Aven\le, Suite 400 Seattle, WA 98104·1061 PH (206) 220-6883 Tty (206) 220-6RR2 I-'AX (206) 220-6911

Charge No. 38C990295
Beeky Turner 1715 Curlew Ammon, 10 83406

Charging Party

J.e. Penney Company
Attn: Ron Winkler, Attorney 12700 Park Central Place Dallas, TX 75251

Respondent

DETERMINATION

Under the authority vested in me by the Commission, I issue the following determination as to the merits of the subject charge filed under Title VII of the Civil Rights Act of 1964, as amended.
All requirements for coverage have heen met. Charging PaTty alleged that Respondent discriminated a.gainst her by snbjecting her to a hostile, offensive work environment which constitutes illegal sexual harassment. She alleges that there was a continuous stream of sexual stories, requests for sexual favors and demands for sexual favors. She alleges that those who "played along" received more tiworable treatment. She alleges that the work atmosphere for(;ed her to resign.
I have considered all the evidence disclosed during the investigation and have determined that the Respondent maintained a work environment which was rampant with sexually offensive language and sexual requests. and those who "played along" were treated more favorably_ The Respondent failed to respond to complaints and failed to correct this sexually charged work environment by taking effective action to curtail the hostile environment. Respondent's failure to take appropriate action forced the Charging Party to resign.

EXHIBIT-2

• •
Charge No. 38C990295
Upon finding that there is reason to believe that violations have occurred, the Commission attempts to eliminate the alleged unlawful practices hy informal methods of conciliation. Therefore, the Commission now invites the parties to join with it in reaching a just resnlution of this matter. The Commissinn will also consider compensatory and punitive damages availabk under the law.
If the Respondent declines to discuss settlement or when, for any other reason, a settlement acceptahle to the office Director is not ohtained, the Director will inform the parties and advise them of the court enforcement alternatives available to aggrieved persons and the Commission. Disclosure of information obtained by the Commission during the conciliation process will be made in accordance with Section 706(b) of Title VII and Section 1601.26 of the COimnission's procedural regulations. A Commission representative will contact eaeh party in the near future to hegin conciliation.

MAY - 5 2000

On behalf of the COimnission:

EXHIBiT-Z
? J/ 06 ;t/.

• •
NOTTCE TO ALL EMPLOYEES This nolice is being posted pursuant to an agreement between lC. Penney Company, Inc. and lbe U.S. Equal Employment Opporlunity Commission, entered as the result of a settlement of a lawsuit pending in the federal dislrict court for the District ofIdaho al Pocatello, Civil No. 00· 570·E·BLW.
Title VII or the Civil Rights Act of 1964, as amended, is enforced by the EEOC and
requires the following: That there be no discrimination against any employee or applicant for employmenl because of the employee's race, color, religion, sex or national origin, wilh respect to hiring, tiring, compensation, or other terms, conditions or privileges of employment. It is an unlawful employment practice fur an employer to retaliate against any employees or applicanls ror employment because they have opposed a practice or because they have made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under lhis stalule. J.C. Penney will institute a training progranl to train its managers regarding lhe
requirements of the above statutes, with particular emphasis on sexual harassmenl and retaliation. J.C. Pernley has posted this notice because the company supports and will comply willi
lhis f'ederallaw in all respects and will not take any retaliatory action against employees because they have exercised their rights under the law.
DATED _ _ _ _ _ _ _ __
lC. Pelliley Company, Inc.
EXHIBIT :3
t:h."l e. l crt; 1

• • United States District Court

dkh

for the

District of Idaho

June 3, 2002

* * CLERK'S CERTIFICATE OF MAILING * *

Re: 4:00-cv-00S70

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

A Luis Lucero Jr, Esq. US EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Seattle District Office 909 First Ave #400 Seattle, WA 98104-1061

Claire Cordon, Esq. US EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Seattle District Office 909 First Ave #400 Seattle, WA 98104-1061

Lisa Guarnera, Esq. US EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Seattle District Office 909 First Ave #400 Seattle, WA 98104-1061

Bradley J Williams, Esq. MOFFATT THOMAS BARRETT ROCK & FIELDS PO Box 1367 Idaho Falls, ID 83403-1367

Chrys Meador, Esq. JC PENNEY CO., INC. PO Box 10001 Dallas, TX 75301-0001

Nicholas A O'Kelly, Esq.
JC PENNEY CO., INC. 6501 Legacy Dr MS-1122 Plano, TX 75024

Richard H Greener, Esq. 1-208-338-3290 COSHO HUMPHREy GREENER & WELSH
815 W Washington Boise, ID 83702

Daniel Laras Glynn, Esq.

1-208-338-3290

COSHO HUMPHREY GREENER & WELSH

815 W Washington

Boise, 1D 83702 . . .

...

Daniel L Glynn, Esq.

1-208-338-3290

COSHO HUMPHREY GREENER & WELSH

815 W Washington

Boise, 1D 83702

Lary S Larson, Esq.
HOPKINS RODEN CROCKETT HANSEN & HOOPES
PO Box 51219 Idaho Falls, 1D 83405-1219

VChief Judge B. Lynn Winmill
Judge Edward J. Lodge
--~Chief Magistrate Judge Larry M. Boyle V Magistrate Judge Mikel H. Williams

Date:

Cameron S. Burke, Clerk
BY: TDeputy Clerk)

 
 •

•

•

cnwns TN THE UNITED STATES DISTRICT COURT U.S.

FOR THE DISTRICT OF IDAHO

02 ,~!'r; 12 P:l 4: 28

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,

C ,<"i.':--'!:"'i', ,.,

" ,,~'. ',-::-::---,~

r CASE NO.'-eiVOO-570-E Iff.:W

STIPULATION FOR DISMISSAL

BECKY TURNER (n/kla BECKY WEEKS), MERRIDETH PARRIS HICKS, TROY HURLEY, SARA H JOHNSON and CAROL MA YER,

Plaintiffs/Intervenors,

v.
J.e. PENNEY COMPANY, INC., CHIUSTOPHER GEE, PAT BOYCE and JOHN AND JANE DOE NOS. 1-5,

Defendants.

COME NOW the intervening Plaintiffs, Becky Turner Weeks, Troy Hurley, Sarah Johnson and Carol Mayer, and the Defendants, by and through their attorneys, and hereby stipulate and agree that all claims pending in this action may be dismissed with prejudice, each side to bear their own costs and attorney's fees, onthc grounds and for the reason thatthc matter has been li.Llly resolved by and between said parties.
Intervening PlaintiffMerribeth Parris Hicks and the Defendants, by and through their attomeys, ami subject only to approval by the I3ankrupky Court for the District ofIdaho in Case No. 01-41673, also hereby stipulate and agree that all claims pending in this action may be dismissed with prejudice, each side to bear their own costs and attorney's fees, on the grounds and for the reason that the matter has been fully resolved by and between said parties.

STIPULATION FOR DISMISSAL

• •

DATED this ~ day of . .:::5::..:~:..:.".,.----_ _ _, 2002.

By: 6J t.J.d....-

..

Counsel for Defendants, J.e. Penney Company, Inc., and

Patricia "Pat" Boyce

DATED this _,L day Of---->.0.L1.cI"-!y'1-_ _ _"2002.
COSHO HUMPHRlCY GREENER & WELSH, PA

L By

.

Counsel for Defendant, C If stopher Gee

STTP1KATION FOR DISMISSAL

2

 
 District of Idaho Live CM/ECF - Docket Report

https://ecf.idd.uscourts.gov/cgi-bin/DktRpt.pl?219530698097114-L_35...

MTNDDL, TERMED
U.S. District Court District of Idaho (LIVE Database)Version 3.0.4 (Pocatello)
CIVIL DOCKET FOR CASE #: 4:00-cv-00570-BLW

EEOC v. JC Penney Company, et al Assigned to: Honorable B. Lynn Winmill Demand: $0 Cause: 42:2000 Job Discrimination (Employment)

Date Filed: 09/29/2000 Date Terminated: 06/03/2002 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by A Luis Lucero, Jr US EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Seattle District Office 909 First Ave #400 Seattle, WA 98104-1061 (206) 220-6883 Fax: 1-206-220-6911 Email: luis.lucero@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Claire Cordon US EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Seattle District Office 909 First Ave #400 Seattle, WA 98104-1061 (206) 220-6883 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Guarnero US EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Seattle District Office 909 First Ave #400 Seattle, WA 98104-1061 (206) 220-6883 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant

1 of 11

5/8/2007 12:34 PM

District of Idaho Live CM/ECF - Docket Report
J C Penney Company, Inc.
Defendant Christopher Gee
2 of 11

https://ecf.idd.uscourts.gov/cgi-bin/DktRpt.pl?219530698097114-L_35...
represented by Bradley J Williams MOFFATT THOMAS BARRETT ROCK & FIELDS PO Box 51505 Idaho Falls, ID 83405-1505 (208) 522-6700 Fax: (208) 522-5111 Email: bjw@moffatt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chrys Meador JC PENNEY CO., INC. PO Box 10001 Dallas, TX 75301-0001 (972) 431-1261 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Loras Glynn COSHO HUMPHREY GREENER & WELSH 815 W Washington Boise, ID 83702 (208) 344-7811 Fax: 1-208-338-3290 Email: dglynn@chgw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicholas A O'Kelly JC PENNEY CO., INC. 6501 Legacy Dr MS-1122 Plano, TX 75024 (972) 431-2471 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard H Greener Greener Banducci Shoemaker P.A. 950 W. Bannock St 900 Boise, ID 83702 (208) 319-2600 Email: rgreener@greenerlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel Loras Glynn (See above for address)
5/8/2007 12:34 PM

District of Idaho Live CM/ECF - Docket Report
Defendant Pat Boyce
Defendant John & Jane Does 1-5 Intervenor Plaintiff Becky Turner
Intervenor Plaintiff Merribeth Parris Hicks Intervenor Plaintiff Troy Hurley
3 of 11

https://ecf.idd.uscourts.gov/cgi-bin/DktRpt.pl?219530698097114-L_35...
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard H Greener (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley J Williams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chrys Meador (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicholas A O'Kelly (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lary S Larson HOPKINS RODEN CROCKETT HANSEN & HOOPES PO Box 51219 Idaho Falls, ID 83405-1219 (208) 523-4445 Fax: (208) 523-4445 Email: lary@hrchh.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lary S Larson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lary S Larson (See above for address) LEAD ATTORNEY
5/8/2007 12:34 PM

District of Idaho Live CM/ECF - Docket Report

https://ecf.idd.uscourts.gov/cgi-bin/DktRpt.pl?219530698097114-L_35...

Intervenor Plaintiff Sarah Johnson
Intervenor Plaintiff Carol Mayer

ATTORNEY TO BE NOTICED
represented by Lary S Larson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lary S Larson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/29/2000 09/29/2000 10/23/2000 10/23/2000 10/24/2000 10/31/2000 10/31/2000 10/31/2000 11/13/2000 11/16/2000 11/30/2000 12/13/2000

#

Docket Text

1 COMPLAINT (Summons(es) issued) (jml)
2 NOTICE of Availability of Magistrate and Requirement for Consent sent to counsel for plaintiff re complaint [1-1] (jml)
3 ANSWER by def JC Penney Company (dkh) (Entered: 10/24/2000)
5 RETURN OF SERVICE/PROCESS executed upon def JC Penney Company on 10/4/00 (dkh) (Entered: 10/24/2000)
4 NOTICE of Availability of Magistrate and Requirement for Consent sent to counsel for def JC Penney Company re answer [3-1] (dkh)
6 MOTION by Becky Turner, Merribeth Parris Hicks, Troy Hurley, Sarah Johnson, Carol Mayer to intervene as plas (dkh) (Entered: 11/03/2000)
7 MEMORANDUM by proposed intp in support of motion to intervene as plas [6-1] (dkh) (Entered: 11/03/2000)
8 AFFIDAVIT of Lary S Larson regarding motion to intervene as plas [6-1] (dkh) (Entered: 11/03/2000)
9 APPLICATION AND ORDER FOR ADMISSION PRO HAC VICE - def JC Penney Company represented by Chrys Meador dkh (dkh) (Entered: 11/14/2000)
10 NOTICE OF STATUS CONFERENCE ; Telephonic Status Conference set for 11:00 12/8/00 before BLW in Pocatello (wm) (Entered: 11/17/2000)
11 SCHEDULING CONFERENCE FORM - LITIGATION PLAN by pla and def (dkh) (Entered: 12/01/2000)
12 SCHEDULING ORDER by Honorable B. Lynn Winmill ; Telephonic Status Conference held 12/8/00 ; Discovery ddl set for 9/7/01 ; Disp Motion ddl set 9/7/01 ; Jury Trial 2/25/02 1:30 Pocatello ; Pretrial Conference set for 2/12/02 8:00 Case referred to Magistrate Mikel H. Williams for all pretrial matters. (cc: all counsel) (dkh)

4 of 11

5/8/2007 12:34 PM

District of Idaho Live CM/ECF - Docket Report

https://ecf.idd.uscourts.gov/cgi-bin/DktRpt.pl?219530698097114-L_35...

01/11/2001 01/17/2001
02/20/2001 02/21/2001 02/21/2001 02/23/2001 02/28/2001 06/07/2001 06/11/2001 07/10/2001 07/18/2001 07/18/2001 07/18/2001 07/26/2001 07/31/2001 07/31/2001 07/31/2001 07/31/2001 07/31/2001

13 ORDER by Honorable B. Lynn Winmill granting motion to intervene as plas [6-1] (cc: all counsel) (dkh)
14 AMENDED COMPLAINT [1-1] by pla EEOC and intvplas Becky Turner, Merribeth Parris Hicks, Troy Hurley, Sarah Johnson, Carol Mayer; adding Christopher Gee and Pat Boyce (dkh) (Entered: 01/19/2001)
15 ANSWER by defs JC Penney Company and Pat Boyce (dkh) (Entered: 02/21/2001)
16 NOTICE of Availability of Magistrate and Requirement for Consent sent to counsel for defs JC Penney Company and Pat Boyce re answer [15-1] (dkh)
17 MOTION by intvplas for entry of default as to Christopher Gee (dkh) (Entered: 02/23/2001)
18 RETURN OF SERVICE/PROCESS executed upon def Christopher Gee on 1/30/01 (dkh) (Entered: 02/24/2001)
19 DEFAULT ENTERED as to def Christopher Gee (dkh) (Entered: 03/01/2001)
20 MOTION by defs JC Penney Company and Pat Boyce for attorney Nicholas A O'Kelly to appear pro hac vice (dkh) (Entered: 06/11/2001)
21 ORDER granting motion for attorney Nicholas A O'Kelly to appear pro hac vice [20-1] (cc: all counsel) (dkh)
22 NOTICE OF ASSOCIATION OF ATTORNEY, by def JC Penney Company with attorney Richard H Greener and Daniel Loras Glynn (dkh)
23 MOTION by def JC Penney Company to compel examination of pla (dkh) (Entered: 07/19/2001)
24 MEMORANDUM by def in support of motion to compel examination of pla [23-1] (dkh) (Entered: 07/19/2001)
25 AFFIDAVIT of Daniel Loras Glynn regarding motion to compel examination of pla [23-1] (dkh) (Entered: 07/19/2001)
26 NOTICE OF ATTORNEY APPEARANCE for def Christopher Gee by Richard H Greener and Daniel L Glynn (dkh) (Entered: 07/27/2001)
27 MOTION by invpla's Becky Turner, Merribeth Parris Hicks, Troy Hurley, Sarah Johnson, Carol Mayer to amend complaint (dkh) (Entered: 08/02/2001)
28 MEMORANDUM by intvplas in support of motion to amend complaint [27-1] (dkh) (Entered: 08/02/2001)
29 AFFIDAVIT of Natalee Madsen regarding motion to amend complaint [27-1] (dkh) (Entered: 08/02/2001)
30 CERTIFICATE OF SERVICE by intvpla regarding affidavit of Natalee Madsen (dkh) (Entered: 08/02/2001)
31 AFFIDAVIT of Reed E Andrus regarding motion to amend complaint [27-1] (Not scanned, too large, in expandable folder) (dkh) (Entered: 08/02/2001)

5 of 11

5/8/2007 12:34 PM

District of Idaho Live CM/ECF - Docket Report

https://ecf.idd.uscourts.gov/cgi-bin/DktRpt.pl?219530698097114-L_35...

08/03/2001 08/07/2001 08/07/2001 08/07/2001 08/07/2001 08/08/2001 08/08/2001 08/20/2001 08/20/2001 08/24/2001 08/29/2001
08/29/2001
08/29/2001
08/29/2001
08/30/2001 08/30/2001 08/30/2001 08/31/2001

32 DECLARATION by Rebecca Ord Page re motion to amend complaint [27-1] (dkh)
33 MOTION by intvplas for protective order (dkh) (Entered: 08/10/2001)
34 MEMORANDUM by intvplas in opposition re: motion to compel examination of pla [23-1] (dkh) (Entered: 08/10/2001)
34 MEMORANDUM by intvplas in support of motion for protective order [33-1] (dkh) (Entered: 08/10/2001)
35 AFFIDAVIT of Steven K Brown regarding motion to compel examination of pla [23-1], regarding motion for protective order [33-1] (dkh) (Entered: 08/10/2001)
36 NOTICE OF HEARING ; All Pending Motions Hrg set for 10/3/01 10:30 Pocatello (cc: all counsel) (dkh) (Entered: 08/10/2001)
37 NOTICE by intvplas of proposed amended consolidated complaint and demand for jury trial (dkh) (Entered: 08/10/2001)
38 REPLY by defs to response to motion to compel examination of pla [23-1] (dkh) (Entered: 08/21/2001)
39 AFFIDAVIT of Dr. Eric F Holt regarding motion to compel examination of pla [23-1] (dkh) (Entered: 08/21/2001)
40 MEMORANDUM by def JC Penney Company in opposition re: motion to amend complaint [27-1] (dkh)
41 MOTION by defs JC Penney Company and Christopher Gee to compel responses to request for production of documents and requests for admissions (dkh) (Entered: 08/30/2001)
42 MEMORANDUM by defs in support of motion to compel responses to request for production of documents and requests for admissions [41-1] (dkh) (Entered: 08/30/2001)
43 AFFIDAVIT of Nicholas A O'Kelly regarding motion to compel responses to request for production of documents and requests for admissions [41-1] (dkh) (Entered: 08/30/2001)
44 AFFIDAVIT of Daniel Loras Glynn regarding motion to compel responses to request for production of documents and requests for admissions [41-1] (dkh) (Entered: 08/30/2001)
45 STIPULATION to extend deadlines (dkh) (Entered: 08/31/2001)
47 REPLY by intvplas to response to motion to amend complaint [27-1] (dkh) (Entered: 09/04/2001)
48 SUPPLEMENTAL AFFIDAVIT of Reed E Andrus regarding motion to amend complaint [27-1] (dkh) (Entered: 09/04/2001)
46 NOTICE OF HEARING ; All Pending Motions Hrg set for 10/3/01 10:30 Pocatello (cc: all counsel) (dkh) (Entered: 09/04/2001)

6 of 11

5/8/2007 12:34 PM

District of Idaho Live CM/ECF - Docket Report

https://ecf.idd.uscourts.gov/cgi-bin/DktRpt.pl?219530698097114-L_35...

09/14/2001 09/14/2001 09/17/2001 09/17/2001 09/17/2001 09/19/2001 09/24/2001 09/25/2001 09/25/2001 09/25/2001
09/25/2001 09/25/2001 09/25/2001 09/25/2001
09/25/2001 10/03/2001

49 MOTION by dfts JC Penney Company, Christopher Gee for leave to file counterclaim (wm) (Entered: 09/17/2001)
50 MEMORANDUM by dfts JC Penney Company, Christopher Gee in support of motion for leave to file counterclaim [49-1] (wm) (Entered: 09/17/2001)
51 MOTION by def Christopher Gee to set aside entry of default (ja) (Entered: 09/18/2001)
52 MEMORANDUM by def Christopher Gee in support of motion to set aside entry of default [51-1] (ja) (Entered: 09/18/2001)
53 AFFIDAVIT of Christopher Gee in support of motion to set aside entry of default [51-1] (ja) (Entered: 09/18/2001)
54 SUR-REPLY MEMORANDUM in Opposition by def Christopher Gee to pla's motion to amend complaint to allege punitive damages [27-1] (ja)
56 OBJECTION by intvplas to def's sur-reply memorandum to motion to amend complaint [27-1] (dkh) (Entered: 09/27/2001)
57 MEMORANDUM by pla in opposition re: motion to compel responses to request for production of documents and requests for admissions [41-1] (dkh) (Entered: 09/27/2001)
58 AFFIDAVIT of Steven K Brown regarding motion to compel responses to request for production of documents and requests for admissions [41-1] (dkh) (Entered: 09/27/2001)
55 MOTION by defs JC Penney Company, Christopher Gee and Pat Boyce to expedite hearing on def's motion to quash the deposition of Christopher Gee , to quash the deposition of Christopher Gee , motion to compel production of Christopher Gee's Statements , for protective order Re: Video tape deposition of Christopher Gee (dkh) (Entered: 09/28/2001)
59 MEMORANDUM by defs in support of motion to quash the deposition of Christopher Gee [55-2] (dkh) (Entered: 09/28/2001)
60 MEMORANDUM by defs in support of motion motion to compel production of Christopher Gee's Statements [55-3] (dkh) (Entered: 09/28/2001)
61 MEMORANDUM by defs in support of motion for protective order Re: Video tape deposition of Christopher Gee [55-4] (dkh) (Entered: 09/28/2001)
62 AFFIDAVIT of Daniel Loras Glynn regarding motion to expedite hearing on def's motion to quash the deposition of Christopher Gee [55-1], regarding motion to quash the deposition of Christopher Gee [55-2], regarding motion motion to compel production of Christopher Gee's Statements [55-3], regarding motion for protective order Re: Video tape deposition of Christopher Gee [55-4] (dkh) (Entered: 09/28/2001)
FILE DIVISION - File # 2 begins with document # 63 (dkh) (Entered: 09/28/2001)
63 AMENDED NOTICE OF HEARING ;All Pending Motions Hrg set for 10/3/01 8:00 Pocatello (cc: all counsel) (dkh)

7 of 11

5/8/2007 12:34 PM

District of Idaho Live CM/ECF - Docket Report

https://ecf.idd.uscourts.gov/cgi-bin/DktRpt.pl?219530698097114-L_35...

10/03/2001
10/10/2001 10/10/2001 10/10/2001 10/10/2001 10/11/2001
10/15/2001 10/16/2001 10/16/2001 10/16/2001 10/29/2001
11/06/2001 11/06/2001 11/07/2001 11/07/2001 11/07/2001

64 MINUTES OF PENDING MOTIONS - taking under advisement on 10/3/01 the motion to compel examination of pla [23-1], the motion to amend complaint [27-1], the motion for protective order [33-1], and the motion to compel responses to request for production of documents and requests for admissions [41-1] ; All Pending Motions Hrg held 10/3/01 MHW (dkh) (Entered: 10/04/2001)
65 STIPULATION of counsel (wm)
66 MEMORANDUM by pla EEOC in opposition re: motion for leave to file counterclaim [49-1] (dkh) (Entered: 10/12/2001)
67 MEMORANDUM by pla EEOC in opposition re: motion to set aside entry of default [51-1] (dkh) (Entered: 10/12/2001)
68 AFFIDAVIT of Steven K Brown regarding motion to set aside entry of default [51-1] (dkh) (Entered: 10/12/2001)
69 ORDER by Judge Mikel H. Williams withdrawing motion to quash the deposition of Christopher Gee [55-2] withdrawing motion for protective order Re: Video tape deposition of Christopher Gee [55-4] (cc: all counsel) (dkh) (Entered: 10/12/2001)
70 ORDER by Judge Mikel H. Williams granting stipulation to extend deadlines [45-1] ; Discovery ddl set for 11/7/01 ; Motion Filing ddl 11/7/01 (cc: all counsel) (dkh) (Entered: 10/16/2001)
71 MOTION by defs JC Penney Company, Christopher Gee and Pat Boyce to sever claims (dkh) (Entered: 10/17/2001)
72 MEMORANDUM by defs in support of motion to sever claims [71-1] (dkh) (Entered: 10/17/2001)
73 AFFIDAVIT of Daniel Loras Glynn regarding motion to sever claims [71-1] (dkh) (Entered: 10/17/2001)
74 ORDER by Judge Mikel H. Williams granting in part and denying in part motion to compel examination of pla [23-1] granting in part and denying in part motion for protective order [33-1] granting motion to amend complaint [27-1] (cc: all counsel) (dkh) (Entered: 10/30/2001)
80 RESPONSE by intvr-plas to motion to sever claims [71-1] (dkh) (Entered: 11/09/2001)
81 AFFIDAVIT of Reed E Andrus regarding motion to sever claims [71-1] (dkh) (Entered: 11/09/2001)
75 MOTION by pla and intv-plas for partial summary judgment (dkh) (Entered: 11/08/2001)
76 MEMORANDUM by pla and intv-plas in support of motion for partial summary judgment [75-1] (dkh) (Entered: 11/08/2001)
77 STATEMENT OF MATERIAL FACTS by pla and intv-plas in support of motion for partial summary judgment [75-1] (dkh) (Entered: 11/08/2001)

8 of 11

5/8/2007 12:34 PM

District of Idaho Live CM/ECF - Docket Report

https://ecf.idd.uscourts.gov/cgi-bin/DktRpt.pl?219530698097114-L_35...

11/07/2001
11/07/2001 11/07/2001 11/07/2001 11/07/2001 11/07/2001 11/07/2001
11/07/2001 11/08/2001 11/19/2001 12/03/2001
12/03/2001 12/03/2001 12/03/2001 12/03/2001 12/03/2001 12/03/2001 12/03/2001 12/03/2001

78 DECLARATION by Lisa M Guarnero re motion for partial summary judgment [75-1] (Attachments not scanned, too voluminous) (dkh) Modified on 11/09/2001 (Entered: 11/08/2001)
79 STIPULATION for extension Re: Expert disclosure deadlines (dkh) (Entered: 11/08/2001)
82 MOTION by defs for summary judgment (dkh) (Entered: 11/09/2001)
83 MEMORANDUM by defs in support of motion for summary judgment [82-1] (dkh) (Entered: 11/09/2001)
84 STATEMENT OF MATERIAL FACTS by defs in support of motion for summary judgment [82-1] (dkh) (Entered: 11/09/2001)
85 AFFIDAVIT of Patricia R Boyce regarding motion for summary judgment [82-1] (dkh) (Entered: 11/09/2001)
86 AFFIDAVIT of Daniel Loras Glynn regarding motion for summary judgment [82-1] (Attachments not scanned, too voluminous and w/tabs) (dkh) (Entered: 11/09/2001)
FILE DIVISION - File # 3 begins with document # 87 (ja) (Entered: 11/14/2001)
87 MEMORANDUM by pla EEOC in opposition re: motion to sever claims [71-1] (dkh) (Entered: 11/09/2001)
88 REPLY by defs JC Penney Company and Christopher Gee to response to motion to sever claims [71-1] (dkh) (Entered: 11/20/2001)
89 STATEMENT OF MATERIAL FACTS by defs JC Penney Company and Christopher Gee Re: motion for partial summary judgment [75-1] (dkh) (Entered: 12/04/2001)
90 RESPONSE by defs to motion for partial summary judgment [75-1] (dkh) (Entered: 12/04/2001)
91 AFFIDAVIT of Ramona Torres regarding motion for partial summary judgment [75-1] (dkh) (Entered: 12/04/2001)
92 AFFIDAVIT of Daniel Loras Glynn regarding motion for partial summary judgment [75-1] (dkh) (Entered: 12/04/2001)
93 BRIEF IN RESPONSE by intvplas to motion for summary judgment [82-1] (dkh) (Entered: 12/05/2001)
94 STATEMENT OF ADDITIONAL AND/OR DISPUTED FACTS by intvplas Re: motion for summary judgment [82-1] (dkh) (Entered: 12/05/2001)
95 AFFIDAVIT of Becky Turner regarding motion for summary judgment [82-1] (dkh) (Entered: 12/05/2001)
96 AFFIDAVIT of Merribeth Parris Hicks regarding motion for summary judgment [82-1] (dkh) (Entered: 12/05/2001)
97 AFFIDAVIT of Troy Hurley regarding motion for summary judgment [82-1] (dkh) (Entered: 12/05/2001)

9 of 11

5/8/2007 12:34 PM

District of Idaho Live CM/ECF - Docket Report

https://ecf.idd.uscourts.gov/cgi-bin/DktRpt.pl?219530698097114-L_35...

12/03/2001 12/03/2001 12/03/2001 12/13/2001 12/13/2001
12/13/2001
12/13/2001
12/14/2001 12/14/2001 01/07/2002 01/07/2002 01/17/2002
01/17/2002 01/17/2002 01/23/2002 01/24/2002
01/28/2002
02/21/2002

98 AFFIDAVIT of Sarah Johnson regarding motion for summary judgment [82-1] (dkh) (Entered: 12/05/2001)
99 AFFIDAVIT of Carol Mayer regarding motion for summary judgment [82-1] (dkh) (Entered: 12/05/2001)
100 AFFIDAVIT of Steven K Brown regarding motion for summary judgment [82-1] (dkh) (Entered: 12/05/2001)
101 REPLY by defs to response to motion for summary judgment [82-1] (dkh) (Entered: 12/14/2001)
102 MOTION by defs JC Penney Company and Christopher Gee to strike certain paragraphs in affidavits in response to def's motion for summary judgment (dkh) (Entered: 12/14/2001)
103 MEMORANDUM by defs in support of motion to strike certain paragraphs in affidavits in response to def's motion for summary judgment [102-1] (dkh) (Entered: 12/14/2001)
104 AFFIDAVIT of Daniel Loras Glynn regarding motion to strike certain paragraphs in affidavits in response to def's motion for summary judgment [102-1] (dkh) (Entered: 12/14/2001)
105 REPLY by pla to response to motion for partial summary judgment [75-1] (dkh)
106 DECLARATION by Lisa M Guarnero re motion for partial summary judgment [75-1] (dkh)
107 BRIEF by intvps in response to defs' motion to strike [102-1] (ja) (Entered: 01/10/2002)
108 AFFIDAVIT of counsel in response to def's motion to strike [107-1] (ja) (Entered: 01/10/2002)
109 REPLY by defs JC Penney Company and Pat Boyce to response to motion to strike certain paragraphs in affidavits in response to def's motion for summary judgment [102-1] (dkh) (Entered: 01/18/2002)
110 MOTION by defs to continue trial set for 2/25/02 (dkh) (Entered: 01/18/2002)
111 MEMORANDUM by defs in support of motion to continue trial set for 2/25/02 [110-1] (dkh) (Entered: 01/18/2002)
112 NOTICE OF NON-OPPOSITION by pla to motion to continue trial set for 2/25/02 [110-1] (dkh) (Entered: 01/24/2002)
113 ORDER by Judge Mikel H. Williams denying as moot the motion to compel responses to request for production of documents and requests for admissions [41-1] (cc: all counsel) (dkh)
114 AMENDED SCHEDULING ORDER by Honorable B. Lynn Winmill ; Jury Trial reset for 6/17/02 1:30 Pocatello ; Pretrial Conference reset for 6/5/02 8:00 Pocatello; granting motion to continue trial set for 2/25/02 [110-1] (cc: all counsel) (dkh)
115 SUBPOENA as to: Broyn Stommel served on 1/25/02 (dkh)

10 of 11

5/8/2007 12:34 PM

District of Idaho Live CM/ECF - Docket Report

https://ecf.idd.uscourts.gov/cgi-bin/DktRpt.pl?219530698097114-L_35...

02/21/2002 04/01/2002
04/19/2002
06/03/2002 08/12/2002

116 NOTICE OF HEARING ; All Pending Motions Hrg set for 4/1/02 1:30 Boise before MHW (cc: all counsel) (dkh) (Entered: 02/22/2002)
117 MINUTES OF PENDING MOTIONS - taking under advisement on 4/1/02 the motion for leave to file counterclaim [49-1], the motion to set aside entry of default [51-1], the motion motion to compel production of Christopher Gee's Statements [55-3], the motion to expedite hearing on def's motion to quash the deposition of Christopher Gee [55-1], the motion to sever claims [71-1], the motion for summary judgment [82-1], the motion for partial summary judgment [75-1], and the motion to strike certain paragraphs in affidavits in response to def's motion for summary judgment [102-1] ; All Pending Motions Hrg held 4/1/02 MHW (dkh) (Entered: 04/02/2002)
118 REPORT AND RECOMMENDATION that motion to set aside entry of default should be denied [51-1], motion for leave to file counterclaim should be denied [49-1], motion to sever claims should be denied [71-1], motion for partial summary judgment should be denied [75-1], motion for summary judgment should be denied [82-1], motion to strike certain paragraphs in affidavits in response to def's motion for summary judgment should be denied [102-1] by Judge Mikel H. Williams (cc: all counsel) (dkh)
119 CONSENT DECREE AND ORDER OF DISMISSAL by Honorable B. Lynn Winmill dismissing case (cc: all counsel) (dkh)
120 STIPULATION between intervening plas and defs for dismissal with prejudice, with each party to bear their own costs and attorney's fees (dkh) (Entered: 08/13/2002)

PACER Login:
Description:
Billable Pages:

PACER Service Center
Transaction Receipt
05/08/2007 11:34:37

hs0328

Client Code: nniles

Docket Report

Search Criteria:

4:00-cv-00570-BLW

6

Cost:

0.48

11 of 11

5/8/2007 12:34 PM

 
 HOPKINS RODEN CROCKETT HANSEN & HOOPES, PLLC
Steven K. Brown, ISBN 3396 Katherine Steele Moriarty, ISBN 4302 Reed E. Andrus, ISBN 5022 428 Park Avenue P. O. Box 51219 Idaho Falls, Idaho 83405-12 I9 Telephone: 208-523-4445 Attorneys for Intervening Plaintiffs

, O~ :.'.: 17 Pi: 2;qwn c:

,~

c,

, .

.

.

,,----.

r:'. -.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ORIGINAL

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER,
Plaintiffs,
v.
J. C. PENNEY COMPANY, INC., CHRISTOPHER GEE, PAT BOYCE and JOHN AND JANE DOE NOS. 1-5
Defendants.

CASE NO. CIVOO-570-E-BLW
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER,
MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND
CAROL MAYER

SECTION A - COMPLAINT OF BECKY TURNER COMES NOW the Plaintit1~ Becky Turner, by and through her counsel, the law

firm of Hopkins Roden Crockett Hansen & Hoopes, PLLC, and for cause of action against the above-named Defendants complains and alleges as follows:
PARTIES. JURISDICTION AND VENUE

I. PlaintitT Becky Turner is, and at all times material hereto was, an individual residing in Bonneville County, Idaho. During the period when the various acts alleged

CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRlBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER-J

\,L-\

in this Complaint occurred, PlaintiffTumer was employed by the Defendant, J. C. Penney Company, Inc., at the beauty salon (hereinafter the "Salon") in its Idaho Falls, Idaho store.
2. Defendant 1. C. Penney Company, Inc., (hereinafter "J. C. Penney") is a Delaware corporation which at all times material hereto conducted business in the State of the Idaho and maintained, operated and conducted business through the aforementioned Idaho Falls, Idaho store. J.C. Penney is, and at all times material hereto was, an employer engaging in an industry affecting commerce, employing more than 500 employees.
3. Defendant Christopher Gee is, and at times material hereto was, an individual residing in Idaho. Throughout the course of Turner's employment at the Salon, Defendant Gee was the Styling Salon Manager and her immediate supervisor. The acts of Defendant Gee during the course and scope of his employment with Defendant J. C. Penney, including those which serve as the basis for the claims stated in this Complaint, are imputed to J. C. Penney.
4. John and Jane Doe Defendants 1-5 are other persons or entities who are liable or responsible to Plaintiff Turner, either directly or on theories of vicarious liability, for the damages sought. The identity of the John and Jane Doe Defendants is presently unknown. At such time as the identity and status of the John and Jane Doe Defendants is or becomes known, Plaintiff Turner shall seek leave of the Court to amend this Complaint to specifically name the John and Jane Doe Defendants, with such amendment to relate back to the date of filing herein.
5. This Complaint and the causes of action it sets forth arise chiefly out of
events, acts and occurrences which took place in Bonneville County, Idaho and which occurred
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER- 2

during the period Plaintiff Turner was employed by J. C. Penney at the Salon in its Idaho Falls,

Idaho store.

6. The Plaintiff, Equal Employment Opportunity Commission ("EEOC"),

previously invoked this Court's jurisdiction pursuant to U.S.C. §§ 451,1331,1337,1343 and

1345 and instituted this action pursuant to Title VII of the Civil Rights Act of 1964, as codified

and amended, 42 U.S.c. §2000(e) et seq. (,Title VII"), and Section 102 of the Civil Rights Act

of 1991 as codified and amended, 42 U.S.c. §1981a ("Section 198Ia"). This Court has subject

matter jurisdiction over Plaintiff Turner's Title VII and Section 1981a claims pursuant to 28

U.S.c. § 1331.

7. Plaintiff Turner also alleges that Defendants J.c. Penney and Gee violated

her rights under the Idaho Human Rights Act ("IHRA"), Idaho Code § 67-5901 et seq. and under

common law. Under 28 U.S.c. § 1367, this Court has supplemental jurisdiction over these IHRA

and common law claims even though they do not themselves involve a federal question within

the meaning of 28 U.S.c. § 1331.

COUNT I--GENDER DISCRIMINATION. SEXUAL HARASSMENT AND CONSTRUCTIVE DISCHARGE

8. Plaintiff Turner incorporates by this reference the allegations of

Paragraphs 1-7, above, as though the same were here set forth in full.

9.

Plaintiff Turner was employed by Defendant J.c. Penney at the Salon in its

Idaho Falls, Idaho store. Her work there commenced on or about June 23, 1996 and continued

until approximately the end of October, 1998.

10. Throughout the course of her employment at the Salon, Plaintiff Turner
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER - 3

worked under and was supervised by Defendant Gee, the Styling Salon Manager. 11. During the entire course of Plaintiff Turner's employment with Defendant
1. e. Penney, Defendants Gee and J.e. Penney subjected her and several of her co-workers in the
Salon to a continuing course of obscene, offensive, degrading and intimidating comments and physical acts of a sexual nature. These comments and acts included, among others, the following:
A. Mr. Gee was continually telling Plaintiff Turner graphic sexual stories, requesting sexual favors, and making other sexually oriented comments toward Plaintiff Turner and her co-workers. Mr. Gee's comments included comments about Plaintiff Turner and others giving him oral sex or having sex with him, or about the Plaintiff Turner's children doing those things. For instance, Mr. Gee repeatedly told Plaintiff Turner that he wanted to see her daughter wearing lingerie or a bikini. He continually invited Plaintiff Turner to have sex with him. He frequently told other employees that Plaintiff Turner had engaged in sexual relations with him. He mocked her about the young age at which she had her first child. He spoke on repeated occasions about his sexual conquest of various other employees at the Salon. He made several comments about his desire to have anal intercourse with men. He described his sexual activities with his wife.
B. Mr. Gee's sexual comments and requests were frequently tied
directly to her rcquests for time off, scheduling accommodations, or other job
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER-4

benefits. There were many occasions when Plaintiff Turner asked for time off or for other tangible employment benefits when Mr. Gee responded that he would accommodate her ifhe could have sexual relations with her. Plaintiff Turner repeatedly heard Mr. Gee make similar demands of other co-workers. For example, on one occasion, Turner approached Mr. Gee to request that her work schedule be arranged to allow her to receive a necessary medical operation. Mr. Gee responded by requesting a sexual favor in return. When she rejected that proposal, he refused to make any accommodation, and Plaintiff Turner was forced to find a replacement on her own. C. Mr. Gee treated favorably those employees who submitted to his sexual propositions and/or tolerated his offensive language, while treating those who would not with contempt. Specifically, he gave better working hours, better job assignments, and more referral business, which meant significantly greater opportunities and compensation, to employees who went along with his behavior. 12. Plaintiff Turner reported Mr. Gee's sexual harassment to Carol Mayer, the Loss Prevention Manager at J. C. Penney's Idaho Falls store who reported it to Pat Boyce, the Store Manager. In addition, other victims reported Mr. Gee's behavior and the sexually hostile environment which existed in the Salon to other members of 1. C. Penney management before, during and after Plaintiff Turner's employment. These included some complaints to the Store Manager, Pat Boyce, and her predecessor. When those reports were made, it was foreseeable that Plaintiff Turner would suffer continued harm from Defendant Gee. Nevertheless, Boyce and
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER. MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER - 5

J.c. Penney pernlitted Mr. Gee to remain in his position as the Salon Styling Manager and to exercise supervisory control over Plaintiff Turner and other victims long after they became aware of his behavior. Consequently, Plaintiff Turner continued to suffer damages.
13. Plaintiff Turner feared that further pursuing her complaint about Mr. Gee's actions would not likely result in corrective measures by 1. C. Penney, but rather would probably result in Mr. Gee and/or other members of J. C. Penney management retaliating against her.
14. Defendant Gee's obscene and abusive comments and behavior were not welcomed or appreciated by Plaintiff Turner, and altered the conditions of her employment by creating a hostile and offensive work environment.
15. Faced with the prospect of having to continue to endure such conditions, Plaintiff Turner had no choice but to resign from her job.
16. The sexual harassment, ongoing hostile work environment, gender discrimination and retaliation endured by Plaintiff Turner and her resulting constructive discharge from her employment with J. C. Penney were unlawful and constituted repeated and serious violations ofthc following: (1) Title VII of the Civil Rights Act of 1964 as codified and amended, 42 U.S.c. § 2000e et seq. (hereinafter 'Title VII"); and (2) the Idaho Human Rights Act as codified and amended, 67-590 I et seq. (hereinafter the "IHRA").
17. During her employment at J. C. Penney, Plaintiff Turner received pay and benefits which were substantially greater than she was able to obtain after she was constructively
discharged from her employment there. Therefore, as a direct and proximate result of the illegal
and discriminatory conduct of the Defendants, Plaintiff Turner has been damaged through the
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER-6

loss of wages and benefits. 18. Defendant J.C. Penney engaged in unlawful intentional discrimination
within the meaning of 42 U.S.C. § 1981 a and by its actions violated the provisions of Title VII and the IHRA. As a direct and proximate result, Plaintiff Turner has suffered, is now suffering and will continue to suffer severe emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, embarrassment, and humiliation, for which she is entitled to recover compensatory damages.
19. Defendant lC. Penney engaged in discriminatory practices including those detailed in this Complaint with malice or with reckless disregard to the protected rights of Plaintiff Turner. Therefore, Plaintiff Turner will be entitled to amend her Complaint to include a claim for punitive damages after seeking appropriate leave of the Court.
20. PlaintitfTurner previously tiled a Charge of Discrimination before the Idaho Human Rights Commission and the EEOC. After its investigation, the Idaho Human Rights Commission issued its determination finding probable cause to believe that unlawful discrimination occurred. An appropriate right to sue letter was then issued.
21. After its investigation of Turner's Charge of Discrimination, the EEOC elected to file its Complaint in this matter. Plaintiff Turner therefore sought leave to intervene pursuant to Rule 24 of the Federal Rules of Civil Procedure and 42 U.S.c. § 2000e-5(t)(l). Along with her October 30,2000 Motion to Intervene, Plaintiff Turner provided to the Court for
filing and served upon Defendant J.c. Penney a Complaint substantially similar to that set forth
in Section A of this Consolidated Complaint. The Court recently granted the Motion to
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER -7

Intervene. COUNT lI--INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 22. Plaintiff Turner incorporates by this reference the allegations of
Paragraphs 1-21, above, as though the same were here set forth in full. 23. The conduct of the Defendants was intentional or reckless, and extreme
and outrageous. Such conduct directly and proximately caused severe emotional distress to Plaintiff Turner.
24. As a direct and proximate result of Defendants' conduct, Plaintiff Turner has sustained substantial damages in an amount to be established at trial.
25. The Defendants, and each of them, are jointly and severally liable to Plaintiff Turner for their intentional infliction of emotional distress upon her and the damages resulting therefrom. The liability of the Defendant J. C. Penney arises in part by reason of its vicarious liability for the acts and omissions of its agent and employee, Christopher Gee, and for the further reason that he was a member of J. C. Penney management who had direct supervisory control over PlaintilTTumer.
COUNT IIl--NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 26. Plaintiff Turner incorporates by this reference the allegations of
Paragraphs 1-25, above, as though the same were here set forth in full. 27. By their actions and conduct set forth in this Complaint, the Defendants
negligently inflicted and proximately and directly caused severe emotional distress to Plaintiff Turner. Such emotional distress manifested itself by multiple physical symptoms including, but
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRlBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER - 8

without limitation, loss of sleep, fatigue, severe headaches, reduced libido, stomach pains, loss of appetite and anxiety.
28. The Defendants, and each of them, are jointly and severally liable to Plaintiff Turner for their negligent infliction of emotional distress upon her and the damages
resulting therefrom. The liability of the Defendant J. C. Penney arises in part by reason of its
vicarious liability for the acts and omissions of its agent and employee, Christopher Gee, and for
the further reason that he was a member of J.e. Penney management who had direct supervisory
control over Plaintiff Turner. COUNT IV -- NEGLIGENT HIRING, SUPERVISION AND/OR RETENTION
29, Plaintiff Turner incorporates by this reference the allegations of Paragraphs 1-28, above, as though the same were here set forth in full.
30, J, e. Penney and its managers had a duty to exercise at least reasonable care in the hiring, training, supervision and retention of 1. e. Penney's employees and
supervisory personnel.
31, J,e. Penney and its managers failed to exercise such reasonable care and
thereby directly and proximately caused foreseeable damage and injury to Plaintiff Turner. ATTORNEYS FEES AND COSTS
32, Plaintiff Turner has been required to employ counsel to prosecute her claims against the Defendants and has incurred and will continue to incur substantial attorneys fees and costs, all of which she is entitled to recover from the Defendants under applicable law
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER - 9

including, but without limitation, 42 U.S.c. §§ 1988(b) and 2000e(5)(K) and Idaho Code §§ 12-

120,12-121, and 67-5901 e/ seq.

WHEREFORE, the Plaintiff, Becky Turner, prays the judgment, order and decree

of this Court as follows:

I.

That judgment be entered in favor of Plaintiff Turner and against the

Defendant J. C. Penney on Counts I and IV and against all Defendants jointly and severally on

Counts II and III of this Complaint;

2. That Defendant J. C. Penney be ordered to pay to Plaintiff Turner front pay

and fringe benefits in an amount to be proven at trial;

3. That Defendant J. C. Penney be ordered to pay to Plaintiff Turner back pay

and fringe benefits, including prejudgment interest thereon, less such amounts as may be

appropriate based upon Plaintiff Turner's other employment;

4.

That all Defendants be ordered to pay to Plaintiff Turner compensatory

damages for her emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of

life, and other non-pecuniary losses in an amount to be determined at trial;

5. That Plaintiff Turner be granted leave to amend her Complaint to add a

claim and prayer for punitive damages in accordance with applicable law;

6. That Plaintiff Turner be awarded her costs of suit and reasonable attorneys

fees incurred and to be incurred herein; and,

7. That Plaintiff Turner be awarded all such other and further relief as the

Court may deem just and equitable.

CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY
TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER-IO

SECTION B - COMPLAINT OF MERRIBETH PARRIS HICKS COMES NOW the Plaintiff, Merribeth Parris Hicks, by and through her counsel,
the law firm of Hopkins Roden Crockett Hansen & Hoopes, PLLC, and for cause of action against the above-named Defendants complains and alleges as follows:
PARTIES, JURISDICTION AND VENUE I. PlaintiffMerribeth Parris Hicks is, and at all times material hereto was, an individual residing in Bonneville County, Idaho. During the period when the various acts alleged
in this Complaint occurred, Plaintiff Hicks was employed by the Defendant, J. e. Penney
Company, Inc., at the beauty salon (hereinafter the "Salon") in its Idaho Falls, Idaho store.
2. Defendant J. e. Penney Company, Inc., (hereinafter "J. e. Penney") is a
Delaware corporation which at all times material hereto conducted business in the State of the Idaho and maintained, operated and conducted business through the aforementioned Idaho Falls,
Idaho store. J.e. Penney is, and at all times material hereto was, an employer engaging in an
industry affecting commerce, employing more than 500 employees. 3. Defendants Christopher Gee and Pat Boyce are, and at times material
hereto were, individuals residing in Idaho. Throughout the course of Hicks' employment at the Salon, Defendant Gee was the Styling Salon Manager and her immediate supervisor. For the majority of that time period, Defendant Boyce was the Store Manager and Christopher Gee's immediate supervisor. The acts of Defendants Gee and Boyce during the course and scope of their employment with Defendant J. C. Penney, including those which serve as the basis for the
claims stated in this Complaint, are imputed to 1. e. Penney.
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER- 11

4. John and Jane Doe Defendants 1-5 are other persons or entities who are liable or responsible to Plaintiff Hicks, either directly or on theories of vicarious liability, for the damages sought. The identity of the John and Jane Doe Defendants is presently unknown. At such time as the identity and status of the John and Jane Doe Defendants is or becomes known, Plaintiff Hicks shall seek leave of the Court to amend this Complaint to specifically name the John and Jane Doe Defendants, with such amendment to relate back to the date of filing herein.
5. This Complaint and the causes of action it sets forth arise chiefly out of events, acts and occurrences which took place in Bonneville County, Idaho and which occurred during the period Plaintiff Hicks was employed by J. C. Penney at the Salon in its Idaho Falls, Idaho store.
6. The Equal Employment Opportunity Commission ("EEOC") previously invoked this Court's jurisdiction pursuant to U.S.c. §§ 451, 1331, 1337, 1343 and 1345 and instituted this action pursuant to Title VI! of the Civil Rights Act of 1964, as codified and amended, 42 U.S.C. §2000(e) et seq. (,Title VII"), and Section 102 of the Civil Rights Act of 1991 as codified and amended, 42 U.S.c. §1981a ("Section 198Ia"). This Court has subject matter jurisdiction over Plaintiff Hicks' Title VII and Section 1981a claims pursuant to 28 U.S.c. § 1331.
7. Plaintiff Hicks also alleges that Defendants J.c. Penney, Gee and Boyce violated her rights under the Idaho Human Rights Act ("IHRA"), Idaho Code § 67-5901 et seq, and under common law. Under 28 U.S.C. §1367, this Court has supplemental jurisdiction over these IHRA and common law claims even though they do not themselves involve a federal
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER - 12

question within the meaning of 28 U.S.c. § 1331. COUNT I--GENDER DISCRIMINATION. SEXUAL HARASSMENT AND CONSTRUCTIVE DISCHARGE 8. Plaintiff Hicks incorporates by this reference the allegations of Paragraphs
1-7, above, as though the same were here set forth in full. 9. Plaintiff Hicks was employed by Defendant J.C. Penney at the Salon in its
Idaho Falls, Idaho store. Her work there commenced on or about April 9, 1997 and continued until approximately January of 1999.
10. Throughout the course of her employment at the Salon, Plaintiff Hicks worked under and was supervised by Defendant Gee, the Styling Salon Manager.
II. During the entire course of Plaintiff Hicks' employment with Defendant J. C. Penney, Defendants Gee and J.c. Penney subjected her and several of her co-workers in the Salon to a continuing course of obscene, offensive, degrading and intimidating comments and physical acts of a sexual nature. These comments and acts included, among others, the following:
A. Mr. Gee was continually telling graphic sexual stories, requesting sexual favors, and making other sexually oriented comments toward Plaintiff Hicks and her co-workers. Gee's comments included comments about Plaintiff Hicks and others giving him oral sex or having sex with him, or about Plaintiff Hicks' children doing those things. For instance, Mr. Gee repeatedly told Plaintiff Hicks that he wanted to take her son out and have anal intercourse with him. He also talked on repeated occasions about having sexual intercourse and anal
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER- 13

intercourse with her daughter. He also talked on repeated occasions about getting oral sex from her daughter, her son or herself.
B. Mr. Gee's sexual comments and requests were frequently tied directly to her requests for time off, scheduling accommodations, or other job benefits. For instance, the second time Mr. Gee made a sexual comment about PlaintilTHicks' son was when she asked for some time off. There were many occasions when Plaintiff Hicks asked for time off or for other tangible employment benefits when Mr. Gee responded that he would accommodate her if he could have sexual relations with her son, her daughter or herself. On other occasions, Mr. Gee would give Plaintiff Hicks work assignments and state that if she didn't go do it, he would go find her son or daughter and engage in various sexual acts with them. Plaintiff Hicks repeatedly heard Mr. Gee make similar demands of other co-workers.
C. Mr. Gee treated favorably those employees who submitted to his sexual propositions and/or tolerated his offensive language, while treating those who would not with contempt. Specifically, he gave more favorable work assignments to employees who went along with his behavior. 12. Plaintiff Hicks reported Mr. Gee's sexual harassment to Carol Mayer, the Loss Prevention Manager at J. C. Penney's Idaho Falls store, who reported it to Defendant Pat Boyce, the Store Manager. In addition, other victims reported Mr. Gee's behavior and the sexually hostile environment which existed in the Salon to other members of J. C. Penney
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER. MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER-14

management before, during and after the Plaintiffs employment. These included some complaints to the Store Manager, Defendant Pat Boyce, and her predecessor. When those reports were made, it was foreseeable that Plaintiff Hicks would suffer continued hann from Defendant Gee. Nevertheless, Defendant Pat Boyce and 1.c. Penney permitted Mr. Gee to remain in his position as the Salon Styling Manager and to exercise supervisory control over Plaintiff Hicks and other victims long after they became aware of his behavior. Consequently, Plaintiff Hicks continued to suffer damages.
13. Plaintiff Hicks feared that further pursuing her complaint about Mr. Gee's actions would not likely result in corrective measures by J. C. Penney, but rather would probably result in Mr. Gee and/or other members of 1. C. Penney management retaliating against her.
14. Defendant Gee's obscene and abusive comments and behavior were not welcomed or appreciated by Plaintiff Hicks, and altered the conditions of her employment by creating a hostile and offensive work environment.
IS. Faced with the prospect of having to continue to endure such conditions, Plaintiff Hicks had no choice but to resign from her job.
16. The sexual harassment, ongoing hostile work environment, gender discrimination and retaliation endured by Plaintiff Hicks and her resulting constructive discharge from her employment with J. C. Penney were unlawful and constituted repeated and serious violations of the following: (I) Title VII of the Civil Rights Act of 1964 as codified and
amended, 42 u.s.c. § 2000e et seq. (hereinafter "Title VII"); and (2) the Idaho Human Rights
Act as codified and amended, 67-590 I et seq. (hereinafter the "IHRA").
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER - 15

17. During her employment at 1. C. Penney, Plaintiff Hicks received pay and benefits which were substantially greater than she was able to obtain after she was constructively discharged from her employment there. Therefore, as a direct and proximate result of the illegal and discriminatory conduct of the Defendants, Plaintiff Hicks has been damaged through the loss of wages and benefits.
18. Defendant J.c. Penney engaged in unlawful intentional discrimination within the meaning of42 U.S.c. § 1981a and by its actions violated the provisions of Title VII and the IHRA. As a direct and proximate result, Plaintiff Hicks has suffered, is now suffering and will continue to suffer severe emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, embarrassment, and humiliation, for which she is entitled to recover compensatory damages.
19. Defendant J.c. Penney engaged in discriminatory practices including those detailed in this Complaint with malice or with reckless disregard to the protected rights of the Plaintiff Hicks. Therefore, Plaintiff Hicks will be entitled to amend her Complaint to include a claim for punitive damages after seeking appropriate leave of the Court.
20. Plaintiff Hicks previously filed a Charge of Discrimination before the Idaho Human Rights Commission and the EEOC. After its investigation, the Idaho Human Rights Commission issued its determination finding probable cause to believe that unlawful discrimination occurred. An appropriate right to sue Ictter was then issued.
21. After its investigation of Hicks' Charge ofDiscrimination, the EEOC
electcd to file its Complaint in this matter. Plaintiff Hicks therefore sought leave to intervene
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIfFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER- 16

pursuant to Rule 24 of the Federal Rules of Civil Procedure and 42 U.S.C. § 2000e-5(f)(1). Along with her October 30, 2000 Motion to Intervene, Plaintiff Hicks provided to the Court for
filing and served upon Defendant J.e. Penney a Complaint substantially similar to that set forth
in Section B of this Consolidated Complaint. The Court recently granted the Motion to Intervene.
COUNT [[--INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 22. Plaintiff Hicks incorporates by this reference the allegations of Paragraphs
1-21, above, as though the same were here set forth in full. 23. The conduct of the Defendants was intentional or reckless, and extreme
and outrageous. Such conduct directly and proximately caused severe emotional distress to Plaintiff Hicks.
24. As a direct and proximate result of Defendants' conduct, Plaintiff Hicks has sustained substantial damages in an amount to be established at trial.
25. The Defendants, and each of them, are jointly and severally liable to Plaintiff Hicks for their intentional infliction of emotional distress upon her and the damages resulting therefrom. The liability of Defendant J. C. Penney arises in part by reason of its vicarious liability for the acts and omissions of its agent and employee, Christopher Gee, and for
the further reason that he was a member of J. e. Penney management who had direct supervisory control over Plaintiff Hicks. The liability of Defendant J.e. Penney also arises in part by reason
of its vicarious liability for the acts and omissions of its agent and employee, Pat Boyce, and for the further reason that she was a member of J. C. Penney management who had direct
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER - 17

supervisory control over Defendant Gee.
COUNT III--NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
26. Plaintiff Hicks incorporates by this reference the allegations of Paragraphs 1-25. above. as though the same were here set forth in full.
27. By their actions and conduct set forth in this Complaint, the Defendants negligently inflicted and proximately and directly caused severe emotional distress to Plaintiff Hicks. Such emotional distress manifested itself by multiple physical symptoms including, but without limitation, loss of sleep, fatigue, severe headaches, reduced libido, stomach pains, loss of appetite and anxiety.
28. The Defendants, and each of them, are jointly and severally liable to Plaintiff Hicks for their negligent infliction of emotional distress upon her and the damages resulting therefrom. The liability of Defendant 1. e. Penney arises in part by reason of its vicarious liability for the acts and omissions of its agent and employee, Christopher Gee, and for
the further reason that he was a member of J.e. Penney management who had direct supervisory
control over Plaintiff Hicks. The liability of the Defendant 1.e. Penney also arises in part by reason of its vicarious liability for the acts and omissions of its agent and employee, Pat Boyce,
and for the further reason that she was a member of J.e. Penney management who had direct
supervisory control over Defendant Gee.
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER- 18

COUNT IV n NEGLIGENT HIRING, SUPERVISION AND/OR RETENTION

29, Plaintiff Hicks incorporates by this reference the allegations of Paragraphs

1-28, above, as though the same were here set forth in full.

30, j, C. Penney and its managers had a duty to exercise at least reasonable

care in the hiring, training, supervision and retention of j, C. Penney's employees and

supervisory personnel.

31, I,C. Penney and its managers failed to exercise such reasonable care and

thereby directly and proximately caused foreseeable damage and injury to Plaintiff Hicks,

ATTORNEYS FEES AND COSTS

32, Plaintiff Hicks has been required to employ counsel to prosecute her

claims against the Defendants and has incurred and will continue to incur substantial attorneys

fees and costs, all of which she is entitled to recover from the Defendants under applicable law

including, but without limitation, 42 U,S,c. §§ 1988(b) and 2000e(5)(K) and Idaho Code §§ 12-

120,12-121, and 67-5901 el seq,

WHEREFORE, the Plaintiff, Merribeth Parris Hicks, prays the judgment, order

and decree of this Court as follows:

1. That judgment be entered in favor of PI aintiff Hicks and against the Defendant I, C. Penney on Counts I and IV and against all Defendants jointly and severally on Counts]] and 1II of this Complaint;

2,

That Defendant], C. Penney be ordered to pay to Plaintiff Hicks front pay

and benefits in an amount to be proven at trial;
CONSOLIDA TED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRlBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER - 19

3. That Defendant J. C. Penney be ordered to pay to Plaintiff Hicks back pay and fringe benefits, including prejudgment interest thereon, less such amounts as may be appropriate based upon Plaintiff Hicks' other employment;
4. That all Defendants be ordered to pay to Plaintiff Hicks compensatory damages for her emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses in an amount to be determined at trial;
5. That Plaintiff Hicks be granted leave to amend her Complaint to add a claim and prayer for punitive damages in accordance with applicable law;
6. That Plaintiff Hicks be awarded her costs of suit and reasonable attorneys fees incurred and to be incurred herein; and,
7. That Plaintiff Hicks be awarded all such other and further relief as the Court may deem just and equitable.
SECTION C - COMPLAINT OF TROY HURLEY COMES NOW the Plaintiff, Troy Hurley, by and through his counsel, the law firm of Hopkins Roden Crockett Hansen & Hoopes, PLLC, and for cause of action against the above-named Defendants complains and alleges as follows:
PARTIES. JURISDICTION AND VENUE I. Plaintiff Troy Hurley is, and at all times material hereto was, an individual residing in Bonneville County, Idaho. During the period when the various acts alleged in this Complaint occurred, Plaintiff Hurley was employed by the Defendant, J. C. Penney Company, Inc., at the beauty salon (hereinafter the "Salon") in its Idaho Falls, Idaho store.
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER- 20

2. Defendant J. e. Penney Company, Inc., (hereinafter "J. e. Penney") is a Delaware corporation which at all times material hereto conducted business in the State of the Idaho and maintained, operated and conducted business through the aforementioned Idaho Falls, Idaho store. J.e. Penney is, and at all times material hereto was, an employer engaging in an industry affecting commerce, employing more than 500 employees.
3. Defendants Christopher Gee and Pat Boyce are, and at times material hereto were individuals residing in Idaho. From the time Hurley began his employment at the Salon until at least August of 1999, Defendant Gee was the Styling Salon Manager and Hurley's immediate supervisor. Defendant Gee continued to work in the Salon with Hurley until at least late September of 1999. Defendant Boyce was the Store Manager and Christopher Gee's immediate supervisor. The acts of Defendants Gee and Boyce during the course and scope of their employment with Defendant J. e. Penney, including those which serve as the basis for the claims stated in this Complaint, are imputed to 1. e. Penney.
4. John and Jane Doe Defendants 1-5 are other persons or entities who are liable or responsible to Plaintiff Hurley, either directly or on theories of vicarious liability, for the damages sought. The identity of the John and Jane Doe Defendants is presently unknown. At such time as the identity and status of the John and Jane Doe Defendants is or becomes known, Plaintiff Hurley shall seek leave of the Court to amend this Complaint to specifically name the John and Jane Doe Defendants, with such amendment to relate back to the date of filing herein.
S. This Complaint and the causes of action it sets forth arise chiefly out of events, acts and occurrences which took place in Bonneville County. Idaho and which occurred
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER- 21

during the period Plaintiff Hurley was employed by J. C. Penney at the Salon in its Idaho Falls, Idaho store.
6. The Plaintiff, Equal Employment Opportunity Commission ("EEOC"), previously invoked this Court's jurisdiction pursuant to U.S.c. §§ 451, 1331, 1337, 1343 and 1345 and instituted this action pursuant to Title VII of the Civil Rights Act of 1964, as codified and amended, 42 U.S.c. §2000(e) et seq. ("Title VII"), and Section 102 of the Civil Rights Act of 1991 as codified and amended, 42 u.s.c. §1981 a ("Section 1981 a"). This Court has subject matter jurisdiction over Plaintiff Hurley's Title VII and Section 1981a claims pursuant to 28 U.S.c. § 1331.
7. Plaintiff Hurley also alleges that Defendants J.c. Penney, Gee and Boyce violated his rights under the Idaho Human Rights Act ("IHRA"), Idaho Code § 67-5901 et seq. Under 28 U.S.c. § 1367, this Court has supplemental jurisdiction over these [HRA claims and additionally for all other claims alleged in this Complaint that do not themselves involve a federal question within the meaning of 28 U.S.c. § 1331.
COUNT [--GENDER DISCRIMINATION, SEXUAL HARASSMENT AND CONSTRUCTIVE DISCHARGE
8. Plaintiff Hurley incorporates by this reference the allegations of Paragraphs 1-7, above, as though the same were here set forth in full.
9. Plaintiff Hurley was employed by the Defendant J.c. Penney at the Salon in its Idaho Falls, Idaho store, His work there commenced on or about September 4, 1997 and
continued until November of 1999.
10. From the time Hurley began his employment at the Salon until at least
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER - 22

August of 1999, Plaintiff Hurley worked under and was supervised by Defendant Gee, the Styling Salon Manager; Defendant Gee continued to work in the Salon with Hurley until at least latc September of 1999.
II. During virtually the entire course of Plaintiff Hurley's employment with Defendant J. C. Penney, Defendants Gee and J.C. Penney subjected him and several of his coworkers in the Salon to a continuing course of obscene, offensive, degrading and intimidating comments and physical acts of a sexual nature. These comments and acts included, among others, the following:
A. Mr. Gee was continually telling graphic sexual stories, requesting sexual favors, and making other sexually offensive comments toward Plaintiff Hurley and his co-workers. For example, Gee made repeated requests to Hurley that they "swap wives." Gee also threatened Hurley in foul and vulgar terms that he was going to take Hurley's wife and have sexual intercourse with her.
B. Mr. Gee's sexual comments and requests were frequently tied directly to his subordinates' requests for time off, scheduling accommodations or other job benefits. For instance, Hurley stepped outside the Idaho Falls store for a short break one day in the latter part of 1998 and observed his co-worker Becky Turner sobbing. He asked her what was wrong and she informed him that she had just asked Gee for a scheduling accommodation so she could receive a necessary operation and that Gee had responded that he would grant her request if she would perform oral sex for him. When Hurley subsequently reported this incident to
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER - 23

Store Manager Pat Boyce she responded by asking if Becky was "overreacting" or

if Gee was just"joking." Gee also occasionally made comments to Plaintiff

Hurley that implied that Gee wanted to have sex with him. For instance, he told

Hurley that his working conditions would be better if Hurley agreed "to party"

with him.

C. Gee treated Hurley less favorably than those employees who

submitted to Gee's sexual propositions and/or offensive language and such

disparate treatment worsened when Hurley rejected Gee's sexual propositions and

objected to Gee's coarse sexual language. When Hurley complained to Gee about

this discriminatory treatment, Gee told him that Hurley's problem arose from the

fact he failed to "party" or "hang out" with Gee.

12. Plaintiff Hurley reported Mr. Gee's discriminatory treatment and sexual

harassment of Salon employees to Carol Mayer, the Loss Prevention Manager at J. C. Penney's

Idaho Falls store. He made additional reports to Store Manager Pat Boyce and others. For

instance, he approached Store Manager Pat Boyce in late 1998 and complained about Gee's

discriminatory actions against him. He specifically told Boyce that Gee had told him that Gee

based his treatment of Hurley upon Hurley's unwillingness to "go out and party" with Gee.

Boyce then informed Hurley that Gee could do whatever he wished since he was the Salon

Manager.

13. During late 1998 and 1999, Hurley made numerous additional complaints

to various members of J.c.Penney management about Gee's behavior, the discrimination he was

CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY. SARAH JOHNSON AND CAROL MAYER - 24

enduring and the sexually hostile work environment in the Salon. These included complaints to Carol Mayer, Pat Boyce and others. Again, however, Boyce was unsympathetic and went so far as to sarcastically query of Hurley when he reported Gee's ongoing foul language and conduct: "What do you want me to do? Go in there and put tape over his mouth')"
14. Other victims also complained about Gee's inappropriate behavior, Gee's discriminatory treatment of his subordinates and the sexually hostile work environment which existed in the Salon. These included multiple complaints to the Store Manager Pat Boyce and her predecessor, Steve Aller. Nevertheless, J.e. Penney permitted Mr. Gee to remain in his position as the Salon Styling Manager until at least August of 1999, to work with Plaintiff Hurley in the Salon until at least late September of 1999 and to exercise supervisory control over Plaintiff Hurley and other victims long after J.e. Penney became aware of his behavior.
IS. It became apparent to Hurley and other employees in the Salon that complaints to J.e.Penney management and particularly to Store Manager Pat Boyce would not likely result in effective corrective measures by J. e. Penney, but rather would probably result in Gee, Boyce and/or other members of J. C. Penney management retaliating against the complaining employee and treating such employee with distrust, contempt and disdain.
16. When complaints were made to Boyce and various other members of J.C. Penney management, they were greeted with skepticism, hostility and often treated in a flippant and confrontational manner. They were not kept confidential but were rather disclosed to Gee
who was then pennitted to remain in his supervisory position and to work with and retaliate
against the very employees who made the complaints. Moreover, those like Hurley who made
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER- 25

complaints were labeled and stereotyped as complainers, and were thereafter treated with disdain
and contempt by Gee, Boyce and 1.e. Penney. 17. Although Gee finally left J.e. Penney's Idaho Falls store in late September
of 1999, Pat Boyce and other hostile members of J.e. Penney management remained there.
Boyce and certain other of her subordinates continued to treat Hurley and others who had complained about Gee with contempt and disdain. Instances of retaliation against Hurley
continued as did 1.e. Penney's disparate treatment of him. Among other things, Hurley was
required to stop charging his normal rate for certain techniques and procedures he used on his clientele even though that rate was in accordance with longstanding policies.
18. As a result of the discrimination and retaliatory conduct against him,
Hurley concluded he had no choice but to quit his job with Defendant J.e. Penney and find
alternative employment. Even after he quit, however, he still endured spiteful and disdainful treatment at the hands of the Defendants. Among other things, this treatment included the making and dissemination of false statements that: (I) Hurley had pursued Gee's ex-wife while she was married to Gee; and (2) that Hurley was not happy with his relationship with his wife and was having an extra-marital affair.
19. The sexual harassment, ongoing hostile work environment, gender discrimination and retaliation endured by Plaintiff Hurley and his resulting constructive
discharge from his employment with J. e. Penney were unlawful and constituted repeated and
serious violations oflhe following: (I) Title VII oflhe Civil Rights Act of 1964 as codified and
amended, 42 U.S.c. § 2000e et seq. (hereinafter "Title VlI"); and (2) the Idaho Human Rights
CONSOLIDA TED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS. TROY HURLEY. SARAH JOHNSON AND CAROL MAYER-26

Act as codified and amended, 67-5901 et seq. (hereinafter the "IHRA"). 20. During his employment at 1. C. Penney, Plaintiff Hurley received pay and
benefits which were substantially greater than he was able to obtain after he was constructively discharged from his employment there. Moreover, Plaintiff Hurley was denied promotion and other related benefits. Therefore, as a direct and proximate result of the illegal and discriminatory conduct of the Defendants, Plaintiff Hurley has been damaged through the loss of wages and benefits.
21. Defendant J.c. Penney engaged in unlawful intentional discrimination within the meaning of 42 U.S.c. § 1981 a and by its actions violated the provisions of Title VII and the IHRA. As a direct and proximate result, Plaintiff Hurley has suffered, is now suffering and will continue to suffer severe emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, embarrassment, and humiliation, for which he is entitled to recover compensatory damages.
22. Defendant lC. Penney engaged in discriminatory practices including those detailed in this Complaint with malice or with reckless disregard to the protected rights of Plaintiff Hurley. Therefore, PlaintifT Hurley will be entitled to amend his Complaint to include a claim for punitive damages after seeking appropriate leave of the Court.
23. Plaintiff Hurley previously tiled a Charge of Discrimination before the Idaho Human Rights Commission/EEOC. After its investigation of that Charge of Discrimination, and others filed by the Plaintiff Hurley's co-workers, the EEOC elected to file its Complaint in this matter. The Plaintiff therefore sought leave to intervene pursuant to Rule
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER - 27

24 of the Federal Rules of Civil Procedure and 42 U.S.c. § 2000e-5(f)(l). Along with his October 30, 2000 Motion to Intervene, Plaintiff Hurley provided to the Court for filing and
served upon Defendant J.e. Penney a Complaint substantially similar to that set forth in Section
C of this Consolidated Complaint. The Court recently granted the Motion to Intervene. COUNT [[--INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 24. Plaintiff Hurley incorporates by this reference the allegations of Paragraph
1-23, above, as though the same were here set forth in full. 25. The conduct of the Defendants was intentional or reckless, and extreme
and outrageous. Such conduct directly and proximately caused severe emotional distress to the Plaintiff Hurley.
26. As a direct and proximate result of Defendants' conduct, Plaintiff Hurley has sustained substantial damages in an amount to be established at trial.
27. The Defendants, and each of them, are jointly and severally liable to Plaintiff Hurley for their intentional infliction of emotional distress inflicted upon him and the damages resulting therefrom. The liability of Defendant J. C. Penney arises in part by reason of its vicarious liability for the acts and omissions of its agent and employee, Christopher Gee, and
for the further reason that he was a member of J. e. Penney management who had direct supervisory control over Plaintiff Hurley. The liability of Defendant J.e. Penney also arises in
part by reason of its vicarious liability for the acts and omissions of its agent and employee, Pat
Boyce, and for the further reason she was a member of J.e. Penney management who had direct
supervisory control over Defendant Gee.
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER - 28

COUNT III--NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 28. Plaintiff Hurley incorporates by this reference the allegations of
Paragraphs 1-27, above, as though the same were here set forth in full. 29. By their actions and conduct set forth in this Complaint, the Defendants
negligently inflicted and proximately and directly caused severe emotional distress to Plaintiff Hurley. Such emotional distress manifested itself by multiple physical symptoms including, but without limitation, loss of sleep, fatigue, severe headaches, reduced libido, stomach pains, loss of appetite and anxiety.
30. The Defendants, and each of them, are jointly and severally liable to Plaintiff Hurley for their negligent infliction of emotional distress upon him and the damages resulting therefrom. The liability of Defendant J. C. Penney arises in part by reason of its vicarious liability for the acts and omissions of its agent and employee, Christopher Gee, and for the further reason that he was a member of lC. Penney management who had direct supervisory control over Plaintiff Hurley. The liability of Defendant J.C. Penney also arises by reason of its vicarious liability for the acts and omissions of its agent and employee, Pat Boyce, and for the further reason that she was a member of J.c. Penney management who had direct supervisory control over Defendant Gee.
COUNT IV -- NEGLIGENT HIRING. SUPERVISION AND/OR RETENTION
31. Plaintiff Hurley incorporates by this reference the allegations of Paragraphs 1-30, above, as though the same were here set forth in full.
32. J. C. Penney and its managers had a duty to exercise at least reasonable
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS. TROY HURLEY, SARAH JOHNSON AND CAROL MAYER- 29

care in the hiring, training, supervision and retention of J. C. Penney's employees and supervisory personnel.
33. J.c. Penney and its managers failed to exercise such reasonable care and thereby directly and proximately caused foreseeable damage and injury to Plaintiff Huriey.
ATTORNEYS FEES AND COSTS 34. Plaintiff Hurley has been required to employ counsel to prosecute his claims against the Defendants and has incurred and will continue to incur substantial attorneys fees and costs, all of which he is entitled to recover from the Defendants under applicable law including, but without limitation, 42 U.S.c. §§ 1988(b) and 2000e(5)(K) and Idaho Code §§ 12120,12-121, and 67-5901 et seq. WHEREFORE, the Plaintiff, Troy Hurley, prays the judgment, order and decree of this Court as follows: 1. That judgment be entered in favor of Plaintiff Hurley and against Defendant 1. C. Penney on Counts I and IV and against all Defendants jointly and severally on Counts II and III of this Complaint; 2. That Defendant J. C. Penney be ordered to pay Plaintiff Hurley front pay and benefits in an amount to be proven at trial; 3. That Defendant 1. C. Penney be ordered to pay to Plaintiff Hurley back pay and fringe benefits, including prejudgment interest thereon, less such amounts as may be appropriate based upon Plaintiff Hurley's other employment; 4. That all Defendants be ordered to pay Plaintiff Hurley compensatory
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER- 30

damages for his emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses in an amount to be determined at trial;
5. That Plaintiff Hurley be granted leave to amend his Complaint to add a claim and prayer for punitive damages in accordance with applicable law;
6. That Plaintiff Hurley be awarded his costs of suit and reasonable attorneys fees incurred and to be incurred herein; and,
7. That Plaintiff Hurley be awarded all such other and further relief as the Court may deem just and equitable.
SECTION D - COMPLAINT OF SARAH JOHNSON COMES NOW the Plaintiff, Sarah Johnson, by and through her counsel, the law firm of Hopkins Roden Crockett Hansen & Hoopes, PLLC, and for cause of action against the above-named Defendants complains and alleges as follows:
PARTIES. JURISDICTION AND VENUE I. Plaintiff Sarah Johnson is, and at all times material hereto was, an individual residing in Bonneville County, Idaho. During the period when the various acts alleged in this Complaint occurred, Plaintiff Johnson was employed by the Defendant, J. C. Penney Company, Inc., at the beauty salon (hereinafter the "Salon") in its Idaho Falls, Idaho store. 2. Defendant 1. C. Penney Company, Inc., (hereinafter "J. C. Penney") is a Delaware corporation which at all times material hereto conducted business in the State of Idaho
and maintained, operated and conducted business through the aforementioned Idaho Falls, Idaho
store. J.C. Penney is, and at all times material hereto was, an employer engaging in an industry
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS. TROY HURLEY, SARAH JOHNSON AND CAROL MAYER - 31

affecting commerce, employing more than 500 employees. 3. Defendants Christopher Gee and Pat Boyce are, and at times material
hereto were individuals residing in Idaho. From the time Plaintiff Johnson began her employment at the Salon until at least August of 1999, Defendant Gee was the Styling Salon Manager and her immediate supervisor. Defendant Gee continued to work in the Salon with Johnson until at least as late as September of 1999. Defendant Boyce was the Store Manager and Christopher Gee's immediate supervisor. The acts of Defendants Gee and Boyce during the course and scope of their employment with Defendant J. C. Penney, including those which serve as the basis for the claims stated in this Complaint, are imputed to J. C. Penney.
4. John and Jane Doc Defendants 1-5 are other persons or entities who are liable or responsible to Plaintiff Johnson, either directly or on theories of vicarious liability, for the damages sought. The identity of the John and Jane Doe Defendants is presently unknown. At such time as the identity and status of the John and Jane Doe Defendants is or becomes known, Plaintiff Johnson shall seek leave of the Court to amend this Complaint to specifically name the John and Jane Doe Defendants, with such amendment to relate back to the date of filing herein.
5. This Complaint and the causes of action it sets forth arise chiefly out of events, acts and occurrences which took place in Bonneville County, Idaho and which occurred during the period Plaintiff Johnson was employed by J. C. Penney at the Salon in its Idaho Falls, Idaho store.
6. The Plaintiff, Equal Employment Opportunity Commission ("EEOC"), previously invoked this Court's jurisdiction pursuant to U.S.c. §§ 451, 1331, 1337, 1343 and
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER - 32

1345 and instituted this action pursuant to Title VII of the Civil Rights Act of 1964, as codified and amended, 42 U.S.e. §2000(e) ('/ seq. ("Title VII"), and Section 102 of the Civil Rights Act of 1991 as codified and amended, 42 U.S.e. § 1981 a ("Section 1981 a"). This Court has subject matter jurisdiction over Plaintiff Johnson's Title VII and Section 1981 a claims pursuant to 28 U.S.e. § 1331.
7. Plaintiff Johnson also alleges that Defendants J.e. Penney, Gee and Boyce violated her rights under the Idaho Human Rights Act ("IHRA"), Idaho Code § 67-5901 el seq. Under 28 U.S.e. §1367, this Court has supplemental jurisdiction over these IHRA claims and additionally for all other claims alleged in this Complaint that do not themselves involve a federal question within the meaning of 28 U.S.C. § 1331.
COUNT InGENDER DISCRIMINATION. SEXUAL HARASSMENT AND CONSTRUCTIVE DISCHARGE
8. Plaintiff Johnson incorporates by this reference the allegations of Paragraphs 1-7, above, as though the same were here set forth in full.
9. Plaintiff Johnson was employed by Defendant J.e. Penney at the Salon in its Idaho Falls, Idaho store. Her work there commenced on or about August 20, 1998 and continued until October of 1999.
10. From the time Johnson began her employment at the Salon until at least August of 1999, Plaintiff Johnson worked under and was supervised by Defendant Gee, the Styling Salon Manager; Defendant Gee continued to work in the Salon with Johnson until at least late September of 1999.
II. During virtually the entire course of Plaintiff Johnson's employment with
CONSOLIDATED COMPLAINT AND DEMAND FOR JUR Y TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER - 33

Defendant J. e. Penney, Defendants Gee and J.e. Penney subjected her and several of her coworkers in the Salon to a continuing course of obscene, offensive, degrading and intimidating comments and physical acts of a sexual nature. These comments and acts included, among others, the following:
A. Mr. Gee was continually telling graphic sexual stories, requesting sexual favors, and making other sexually offensive comments toward Plaintiff Johnson and her co-workers. Mr. Gee's sexual comments and requests were frequently tied to requests for time off, scheduling accommodations or other tangible employment benefits.
B. Mr. Gee subjected Plaintiff Johnson to unwelcome sexual touching and other behavior of a sexual nature. When Johnson or her family members made efforts to report or resist Mr. Gee's unwelcome, inappropriate conduct, she was subjected to retaliation, ridicule, contempt and scorn in her work place.
e. Mr. Gee treated favorably those employees who submitted to his sexual propositions and/or tolerated his offensive language, while treating those who would not with contempt. Specifically, he gave better working hours, better job assignments, and more referral business, which meant more opportunities and compensation, to employees who went along with his behavior. 12. PlaintiffJohnson reported Mr. Gee's sexual harassment to Carol Mayer, the Loss Prevention Manager at J. C. Penney's Idaho Falls store. Additional reports were made by Plaintiff Johnson and her husband to Store Manager Pat Boyce and even to J. C. Penney
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER-34

attorney Ronald Winkler. J. e. Penney disclosed these complaints to Gee and then continued to expose Plaintiff Johnson to further harm by making her work with Gee in the Salon.
13. Other victims also reported Mr. Gee's behavior and the sexually hostile environment which existed in the Salon to other members of 1. C. Penney management before and during Plaintiff Johnson's employment. These even included some complaints to the current Store Manager and her predecessor. Nevertheless, J.e. Penney permitted Mr. Gee to remain in his position as the Salon Styling Manager until at least August of 1999, to work with Plaintiff Johnson in the Salon until at least late September of 1999 and to exercise supervisory control over her and other victims long after lC. Penney became aware of his behavior.
14. Plaintiff Johnson feared that pursuing her complaint about Mr. Gee's actions would not likely result in corrective measures by J. e. Penney, but rather would probably result in Mr. Gee and/or other members of l e. Penney management retaliating against her. These fears were borne out. For instance, after the Plaintiff and her husband made complaints about Defendant Gee to Store Manager Pat Boyce and J. e. Penney Attorney Ronald Winkler, Plaintiff Johnson was thereafter required to work with Gee in the Salon. During that period, Defendants engaged in the following, among other, inappropriate and retaliatory activities:
A. Gee made false and defamatory statements to many people that he had engaged in sexual threesomes with Plaintiff Johnson and her husband. B. Gee purposely worked right next to Plaintiff Johnson and made disruptive, hostile, hateful and intimidating faces and gestures to her and her clients; C. Gee made efforts to divert Plaintiff Johnson's clientele away from her and
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER- 35

to tum other employees against her; D. Gee told others graphic and offensive stories of sexual encounters he had allegedly had with Plaintiff Johnson and bragged of his alleged sexual conquests of her. E. Gee openly threatened Plaintiff Johnson that he was going to "ruin her life" and made other threats of a similar nature. Plaintiff Johnson took these threats seriously since Mr. Gee had an increasingly unstable personality, had been seen prowling around her house, explained to her how he was going to kill his exwife and hide the body, and told her he had a hit list of people he was going to kill. IS. Defendant Gee's obscene and abusive comments and behavior were not welcomed or appreciated by Plaintiff Johnson, and altered the conditions of her employment by creating a hostile and offensive work environment. 16. Faced with the prospect of having to continue to endure such conditions and the retaliation, ridicule, contempt and scorn that result from the efforts of herself and her husband to report inappropriate conduct, Plaintiff Johnson had no choice but to resign from her job. 17. The sexual harassment, ongoing hostile work environment, gender discrimination and retaliation endured by Plaintiff 10hnson and her resulting constructive discharge from her employment with J. C. Penney were unlawful and constituted repeated and serious violations of the following: (l) Title VII of the Civil Rights Act of 1964 as codified and
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS. TROY HURLEY, SARAH JOHNSON AND CAROL MAYER - 36

amended, 42 U.S.c. § 2000e et seq. (hereinafter "Title VII"); and (2) the Idaho Human Rights Act as codified and amended, 67-5901 et seq. (hereinafter the "IHRA").
18. During her employment at J. C. Penney, Plaintiff Johnson received pay and benefits which were substantially greater than she was able to obtain after she was constructively discharged from her employment there. Therefore, as a direct and proximate result of the illegal and discriminatory conduct of the Defendants, Plaintiff Johnson has been damaged through the loss of wages and benefits.
19. Defendant J.c. Penney engaged in unlawful intentional discrimination within the meaning of42 U.S.c. § 1981a and by its actions violated the provisions of Title VII and the IHRA. As a direct and proximate result, Plaintiff Johnson has suffered, is now suffering and will continue to suffer severe emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, embarrassment, and humiliation, for which she is entitled to recover compensatory damages.
20. Defendant J.c. Penney engaged in discriminatory practices including those detailed in this Complaint with malice or with reckless disregard to the protected rights of Plaintiff Johnson. Therefore, Plaintiff Johnson will be entitled to amend her Complaint to include a claim for punitive damages after seeking appropriate leave of the Court.
21. Plaintiff Johnson previously filed a Charge of Discrimination before the Idaho Human Rights Commission/EEOC. After its investigation ofthat Charge of
Discrimination, and other related charges filed by Plaintiff Johnson's co-workers, the EEOC
elected to file its Complaint in this matter. Plaintiff Johnson therefore sought leave to intervene
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER - 37

pursuant to Rule 24 of the Federal Rules of Civil Procedure and 42 U.S.e. § 2000e-5(f)(I). Along with her October 30, 2000 Motion to Intervene, Plaintiff Johnson provided to the Court for filing and served upon Defendant J.e. Penney a Complaint substantially similar to that set forth in Section D of this Consolidated Complaint. The Court recently granted the Motion to Intervene.
COUNT [[--INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 22. Plaintiff Johnson incorporates by this reference the allegations of
Paragraphs 1-21, above, as though the same were here set forth in full. 23. The conduct of the Defendants was intentional or reckless, and extreme
and outrageous. Such conduct directly and proximately caused severe emotional distress to Plaintiff Johnson.
24. As a direct and proximate result of Defendants' conduct, PlaintiffJohnson has sustained substantial damages in an amount to be established at trial.
25. The Defendants, and each of them, are jointly and severally liable to Plaintiff Johnson for their intentional infliction of emotional distress inflicted upon her and the damages resulting therefrom. The liability of the Defendant J. e. Penney arises in part by reason of its vicarious liability for the acts and omissions of its agent and employee, Christopher Gee, and for the further reason that he was a member of J. e. Penney management who had direct supervisory control over Plaintiff Johnson. The liability of Defendant J.e. Penney also arises in part by reason of its vicarious liability for the acts and omissions of its agent and employee, Pat Boyce, and for the further reason that she was a member of J.C. Penney Management who had
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER- 38

direct supervisory control over Defendant Gee. COUNT II1--NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 26. Plaintiff Johnson incorporates by this reference the allegations of
Paragraphs 1-25, above, as though the same were here set forth in full. 27. By their actions and conduct set forth in this Complaint, the Defendants
negligently inflicted and proximately and directly caused severe emotional distress to Plaintiff Johnson. Such emotional distress manifested itself by multiple physical symptoms including, but without limitation, loss of sleep, fatigue, severe headaches, reduced libido, stomach pains, loss of appetite and anxiety.
28. The Defendants, and each of them, are jointly and severally liable to Plaintiff Johnson for their negligent infliction of emotional distress upon her and the damages resulting therefrom. The liability of the Defendant 1. e. Penney arises in part by reason of its vicarious liability for the acts and omissions of its agent and employee, Christopher Gee, and for the further reason that he was a member of J.e. Penney management who had direct supervisory control over Plaintiff Johnson. The liability of Defendant J.e. Penney also arises in part by reason of its vicarious liability for the acts and omissions of its agent and employee, Pat Boyce, and for the further reason that she was a member of J.e. Penney Management who had direct supervisory control over Defendant Gee.
COUNT IV -- NEGLIGENT HIRING SUPERVISION AND/OR RETENTION
29. Plaintiff Johnson incorporates by this reference the allegations of Paragraphs 1-28, above, as though the same were here set forth in full.
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS. TROY HURLEY, SARAH JOHNSON AND CAROL MAYER - 39

30. J. e. Penney and its managers had a duty to exercise at least reasonable care in the hiring, training, supervision and retention of J. e. Penney's employees and supervisory personnel.
31. J.e. Penney and its managers failed to exercise such reasonable care and thereby directly and proximately caused foreseeable damage and injury to Plaintiff Johnson.
COUNT V -- DEFAMATION. FALSE LIGHT. PUBLIC DISCLOSURE ABOUT PRIVATE FACTS
32. Plaintiff Johnson incorporates by this reference the allegations of Paragraphs 1-31, above, as though the same were here set forth in full.
33. Defendant Gee made false and defamatory statements to various third persons that Gee, Plaintiff Johnson's husband and Johnson had engaged in group sexual activity and made other false and defamatory statements to a similar effect. These statements constitute slander per se.
34. Such statements were made of and concerning Plaintiff Johnson and her husband and were published and disseminated by Defendant Gee on multiple occasions to various third parties, including various of Plaintiff Johnson's co-workers. Such publication and dissemination occurred on multiple occasions during work hours in Defendant J.e.Penney's Idaho Falls store.
35. The publication and dissemination of such statements placed Plaintiff Johnson in a false light in the public eye.
36. In addition, Defendant Gee told others graphic and offensive stories of sexual encounters he had allegedly had with Plaintiff Johnson and bragged of his alleged sexual CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER- 40

conquests of her. The publication and dissemination of these statements occurred on multiple occasions during work hours in Defendant J.c.Penney's Idaho Falls store.
37. To the limited extent such statements were true, such publication and dissemination constituted public disclosure of embarrassing private facts about Plaintiff Johnson. To the extent they were false, they were defamatory and placed Plaintiff Johnson in a false light in the public eye.
38. As a direct and proximate result of Defendants' conduct, Plaintiff Johnson has sustained substantial damages in an amount to be established at trial.
39. The Defendants, and each ofthcm, are jointly and severally liable to Plainti ff Johnson for such defamation, painting of Plainti ff Johnson in a false light in the public eye, and public disclosure of embarrassing private facts and the damages resulting therefrom. The liability of the Defendant J. C. Penney arises in part by reason of its vicarious liability for the acts and omissions of its agent and employee, Christopher Gee.
ATTORNEYS FEES AND COSTS 40. Plaintiff Johnson has been required to employ counsel to prosecute her claims against the Defendants and has incurred and will continue to incur substantial attorneys fees and costs, all of which she is entitled to recover from the Defendants under applicable law including, but without limitation, 42 U.S.c. §§ 1988(b) and 2000e(5)(K) and Idaho Code §§ 12120,12-121, and 67-5901 cl seq.
WHEREFORE, Plaintiff, Sarah Johnson, prays the judgment, order and decree of
this Court as follows:
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTlFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL
MAYER - 41

1. That judgment be entered in favor of Plaintiff 10hnson and against the Defendant 1. C. Penney on Counts I and IV, against Defendant Gee and lC. Penney jointly and severally on Count V and against all Defendants jointly and severally on Counts II and 1II of this Complaint;
2. That Defendant J. C. Penney be ordered to pay Plaintiff Johnson front pay and benefits in an amount to be proven at trial;
3. That Defendant 1. C. Penney be ordered to pay to Plaintiff 10hnson back pay and fringe benefits, including prejudgment interest thereon, less such amounts as may be appropriate based upon Plaintiff 10hnson 's other employment;
4. That all Defendants be ordered to pay to Plaintiff Johnson compensatory damages for her emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses in an amount to be determined at trial;
5. That Plaintiff Johnson be granted leave to amend her Complaint to add a claim and prayer for punitive damages in accordance with applicable law;
6. That Plaintiff Johnson bc awarded her costs of suit and reasonable attorneys fees incurred and to be incurred herein; and,
7. That Plaintiff Johnson be awarded all such other and further relief as the Court may deem just and equitable.
SECTION E - COMPLAINT OF CAROL MAYER
COMES NOW the Plaintiff, Carol Mayer, by and through her counsel, the law
finn of Hopkins Roden Crockett Hansen & Hoopes, PLLC, and for cause of action against the
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER -42

above-named Defendants complains and alleges as follows:
PARTIES, JURISDICTION AND VENUE
I, Plaintiff Carol Mayer is, and at all times material hereto was, an individual residing in Bonneville County, Idaho, During the period when the various acts alleged in this Complaint occurred, Plaintiff Mayer was employed by the Defendant, 1. C. Penney Company, Inc., at its Idaho Falls, Idaho store.
2. Defendant J. C. Penney Company, Inc., (hereinafter "J. C. Penney") is a Delaware corporation which at all times material hereto conducted business in the State of Idaho and maintained, operated and conducted business through the aforementioned Idaho Falls, Idaho store. 1.c. Penney is, and at all times material hereto was, an employer engaging in an industry affecting commerce, employing more than 500 employees.
3. Defendants Christopher Gee and Pat Boyce are, and at times material hereto were individuals residing in Idaho. Defendant Gee was the Styling Salon Manager in the beauty salon ("Salon") at the Idaho Falls store until at least August of 1999 and continued to work in the Salon until at least the latter part of September of 1999. Defendant Boyce was the Store Manager and Christopher Gee's immediate supervisor. Defendant Gee exercised direct supervisory control over Becky Turner, Merribeth Parris Hicks, Sarah Johnson, Troy Hurley and various other employees in the Salon. The acts of Defendants Gee and Boyce during the course and scope of their employment with Defendant J. C. Penney, including those which serve as the basis for the claims stated in this Complaint, are imputed to 1. C. Penney.
4. John and Jane Doe Defendants 1-5 are other persons or entities who are
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER- 43

liable or responsible to Plaintiff Mayer, either directly or on theories of vicarious liability, for the damages sought. The identity of the John and Jane Doe Defendants is presently unknown. At such time as the identity and status of the John and Jane Doe Defendants is or becomes known, Plaintiff Mayer shall seek leave of the Court to amend this Complaint to specifically name the John and Jane Doe Defendants, with such amendment to relate back to the date of filing herein.
5. This Complaint and the causes of action it sets forth arise chiefly out of events, acts and occurrences which took place in Bonneville County, Idaho and which occurred during the period Plaintiff Mayer was employed by J. C. Penney at the Salon in its Idaho Falls, Idaho store.
6. The Plaintiff, Equal Employment Opportunity Commission ("EEOC"), previously invoked this Court's jurisdiction pursuant to U.S.C. §§ 451,1331,1337,1343 and 1345 and instituted this action pursuant to Title VII of the Civil Rights Act of 1964, as codified and amended, 42 U.S.c. §2000(e) et seq. ('Title VII"), and Section 102 of the Civil Rights Act of 1991 as codified and amended, 42 U.S.c. §1981a ("Section 1981a"). This Court has subject matter jurisdiction over Plaintiff Mayer's Title VII and Section 1981a claims pursuant to 28 U.S.c. § 1331.
7. Plaintiff Mayer also alleges that Defendant J.c. Penney Gee and Boyce violated her rights under the Idaho Human Rights Act ("IHRA"), Idaho Code § 67-5901 et seq. Under 28 U.S.c. § 1367, this Court has supplemental jurisdiction over these IHRA claims and additionally for all other claims alleged in this Complaint that do not themselves involve a federal question within the meaning of 28 U.S.c. § 1331.
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER -44

COUNT I--GENDER DISCRIMINATION. SEXUAL HARASSMENT AND CONSTRUCTIVE DISCHARGE
8. Plaintiff Mayer incorporates by this reference the allegations of Paragraphs 1-7, above, as though the same were here set forth in full.
9. Plaintiff Mayer was employed by Defendant J.e. Penney at its Idaho Falls, Idaho store. Her work there commenced in 1985 and continued until October of 1999. She began work as a Loss Prevention Officer and became the Loss Prevention Manager in approximately 1994. She served as Loss Prevention Manager at that store until her demotion in mid-1999.
10. Among other things, Plaintiff Mayer's job entailed receiving reports from employees about things that presented a risk of liability or loss to lC. Penney. Store employees were instructed that if they were victims of sexual harassment by other employees, they could report such matters to Mayer or any other manager in the store.
11. When Plaintiff Mayer received reports of sexual harassment from employees she relayed them to the Store Manager. In some instances, Plaintiff Mayer suggested that the complaining employee report the complaint to the Store Manager in person.
12. While she was the Loss Prevention Manager at le. Penney, Plaintiff Mayer received numerous complaints trom various employees about Defendant Gee. The complaints were that Gee frequently made vulgar, graphic, unsolicited comments of a highly sexual nature to his subordinates in the Salon and frequently requested sexual favors from those subordinates, often in exchange for work privileges. In addition, these complaints included frequent reports that Gee treated unfavorably those employees in the Salon who did not go along
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS. TROY HURLEY, SARAH JOHNSON AND CAROL MAYER -45

with his sexual conversations and demands. 13. In addition to reports she received from employees in the Salon, Plaintiff
Mayer also personally observed and was subjected to the hostile work environment Gee was engendering at the Idaho Falls store. For instance, Gee frequently made comments in Mayer's presence about the breasts or buttocks of females like "she's got a nice set on her" or "she's really stacked," statements about women like "I wish I could get her into bed", or "I sure wish I could do her," statements about what percentage of his relationships were homosexual and what percentage were heterosexual, and so forth.
14. Plaintiff Mayer received reports from employees in the Salon that Gee's behavior was actually discriminating against those who did not go along with Mr. Gee's inappropriate conduct. Plaintiff Mayer verbally repeated the complaints to Pat Boyce, the Store Manager in the Idaho Falls store. Boyce did not ask Mayer to make any further investigation or take any additional action.
15. In early 1999, Plaintiff Mayer received a report that Gee had invited female subordinates to join him in the back room at the Salon, and then pulled his pants down to show them his recently pierced penis. Mayer immediately reported the incident to Store Manager Pat Boyce. In response to Mayer's report, Boyce suggested that perhaps J.C. Penney did not need a Loss Prevention Manager at its Idaho Falls store and mentioned the possible elimination of
Mayer's position.
16. During the spring and early summer of 1999, additional reports about Gee and the hostile environment he was engendering in the Salon were made to Plaintiff Mayer by
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER - 46

various employees in the Salon. Plaintiff Mayer forwarded these along to Boyce but the situation

did not improve and Gee continued to manage the Salon.

17. By mid-1999, Mayer had grown extremely frustrated at the failure of J.e.

Penney management and particularly Store Manager Pat Boyce to timely address in an appropriate manner the work environment Gee was creating in the Salon or to respond to the

concerns about Gee which were raised by Mayer and the Salon employees. This frustration grew

as the problem continued to fester.

18. During this time frame, Mayer began to feel other adverse impacts as

well. For instance, Mayer had a meeting with Ramona Hereford, J.C. Penney's District Loss

Prevention Manager. Hereford told Mayer during the meeting that Mayer "was not a Loss

Prevention Manager" and that she "would never be one."

19. On or about June 6, 1999, Store Manager Boyce told Mayer that she was

not the Loss Prevention Manager although Mayer had served as a Loss Prevention Manager since

1994, a fact reflected by J.e. Penney's own performance evaluations of Mayer.

20. On or about June 16, 1999, Store Manager Boyce informed Mayer that

Mayer's performance appraisal rating would be downgraded from a "2" to a "3". A couple of

days later, J.e. Penney demanded that Plaintiff Mayer sign a blank performance appraisal in

which the rating of"3" had already been filled in. No legitimate reason was ever given to Mayer for the decision to downgrade her rating or its requiring her to sign the blank performance

appraisal.

21. Commencing shortly after PlaintitTMayer's reporting ofMr. Gee's

CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETII PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER-47

inappropriate behavior to Pat Boyce in early 1999 and continuing through the date of her constructive discharge, Store Manager Boyce made various statements which Plaintiff Mayer understood to be part ofa concerted effort to intimidate or force her to leave J.e.Penney. For instance, Boyce spoke repeatedly about discussions she claimed she had with other members of management about doing away with Plaintiff Mayer's position and claimed that senior management had asked her whether she really needed a Loss Prevention Manager at the Idaho Falls store. Repeated statements about the need to cut Plaintiff Mayer's job and to save her salary costs were also made during this time frame.
22. In addition, Mayer's reasonable requests for guidance, assistance and resources to adequately perform her loss prevention and other duties were also denied. Mayer accordingly perceived that she was being set up to fail in her job.
23. J.e. Penney management also complained during this time period about Mayer's "police mentality" and made other disparaging comments about her. Mayer perceived this criticism to be at least in part a rebuke for her vigilance, zeal and effort in reporting and pursuing reports of discrimination and harassment received from Mr. Gee's subordinates.
24. Shortly before her work with J.e. Penney terminated, a person claiming to be an attorney for some of the former employees in the Salon contacted Plaintiff Mayer. When Plaintiff Mayer reported to Store Manager Boyce the fact that she had been contacted by that
person, Boyce became very upset with Mayer.
25. Faced with the cumulative actions of J.e. Penney and its management outlined above, Plaintiff Mayer finally concluded she had no other option but to cease working
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER. MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER - 48

for J.C.Penney. Her employment there terminated in October of 1999. 26. The sexual harassment, ongoing hostile work environment, gender
discrimination and retaliation endured by Plaintiff Mayer and her resulting constructive discharge from her employment with J. e. Penney were unlawful and constituted repeated and serious violations of the following: (1) Title VII of the Civil Rights Act of 1964 as codified and amended, 42 U.S.e. § 2000e et seq. (hereinafter 'Title VII"); and (2) the Idaho Human Rights Act as codified and amended, 67-5901 et seq. (hereinafter the "IHRA").
27. During her employment at J. C. Penney, Plaintiff Mayer received pay and benefits which were substantially greater than she was able to obtain after she was constructively discharged from her employment there. Therefore, as a direct and proximate result of the illegal and discriminatory conduct of the Defendants, Plaintiff Mayer has been damaged through the loss of wages and benefits.
28. Defendant J.e. Penney engaged in unlawful intentional discrimination within the meaning of42 U.S.e. § 1981a and by its actions violated the provisions of Title VII and the IHRA. As a direct and proximate result, Plaintiff Mayer has suffered, is now suffering and will continue to suffer severe emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, embarrassment, and humiliation, for which she is entitled to recover compensatory damages.
29. Defendant J.e. Penney engaged in discriminatory practices including those detailed in this Complaint with malice or with reckless disregard to the protected rights of Plaintiff Mayer. Therefore, Plaintiff Mayer will be entitled to amend her Complaint to include a
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS. TROY HURLEY, SARAH JOHNSON AND CAROL
MAYER- 49

claim for punitive damages after seeking appropriate leave of the Court. 30. Plaintiff Mayer previously filed a Charge of Discrimination before the
Idaho Human Rights Commission/EEOC. After its investigation of that Charge of Discrimination, and others filed by Plaintiff Mayer's co-workers, the EEOC elected to file its Complaint in this matter. Plaintiff Mayer therefore sought leave to intervene pursuant to Rule 24 of the Federal Rules of Civil Procedure and 42 U.S.C. § 2000c-5(f)(l). Along with her October 30, 2000 Motion to Intervene, Plaintiff Mayer provided to the Court for filing and served upon Defendant J.c. Penney a Complaint substantially similar to that set forth in Section E of this Consolidated Complaint. The Court recently granted the Motion to Intervene.
COUNT lInINTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 31. Plaintiff Mayer incorporates by this reference the allegations of Paragraph
1-30, above, as though the same were here set forth in full. 32. The conduct of the Defendants was intentional or reckless, and extreme
and outrageous. Such conduct directly and proximately caused severe emotional distress to the PlaintitT Mayer.
33. As a direct and proximate result of Defendants' conduct, Plaintiff Mayer has sustained substantial damages in an amount to be established at trial.
34. The Defendants, and each of them, are jointly and severally liable to the Plaintiff Mayer for their intentional infliction of emotional distress inflicted upon her and the damages resulting therefrom. The liability of the Defendant 1. C. Penney arises in part by reason of its vicarious liability for the acts and omissions of its agents and employees, Christopher Gee
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER - 50

and Pat Boyce, and for the further reason that both Gee and Boyce were members of J. e. Penney
management, with Boyce having supervisory control over Plaintiff Mayer. COUNT lII--NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 35. Plaintiff Mayer incorporates by this reference the allegations of Paragraphs
1-34, above, as though the same were here set forth in full. 36. By their actions and conduct set forth in this Complaint, the Defendants
negligently intlicted and proximately and directly caused severe emotional distress to Plaintiff Mayer. Such emotional distress manifested itself by multiple physical symptoms.
37. The Defendants, and each of them, are jointly and severally liable to Plaintiff Mayer for their intentional int1iction of emotional distress int1icted upon her and the
damages resulting therefrom. The liability of the Defendant J. e. Penney arises in part by reason
of its vicarious liability for the acts and omissions of its agents and employees, Christopher Gee and Pat Boyce, and for the further reason that both Gee and Boyce were members of J. C. Penney management, with Boyce having supervisory control over Plaintiff Mayer.
COUNT IV -- NEGLIGENT HIRING. SUPERVISION AND/OR RETENTION
38. Plaintiff Mayer incorporates by this reference the allegations of Paragraphs 1-37, above, as though the same were here set forth in full.
39. 1. C. Penney and its managers had a duty to exercise at least reasonable
care in the hiring, training, supervision and retention of J. C. Penney's employees and supervisory personnel.
40. J.e. Penney and its managers failed to exercise such reasonable care and
CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY. SARAH JOHNSON AND CAROL MAYER- 51

thereby directly and proximately caused foreseeable damage and injury to Plaintiff Mayer.

ATTORNEYS FEES AND COSTS

41. Plaintiff Mayer has been required to employ counsel to prosecute her

claims against the Defendants and has incurred and will continue to incur substantial attorneys fees and costs, all of which she is entitled to recover from the Defendants under applicable law

including, but without limitation, 42 U.S.c. §§ 1988(b) and 2000e(5)(K) and Idaho Code §§ 12120,12-121, and 67-5901 et seq.

WHEREFORE, the Plaintiff, Carol Mayer, prays the judgment, order and decree

of this Court as follows:

1.

That judgment be entered in favor of Plaintiff Mayer and against the

Defendant J. C. Penney on Counts I and IV and against all Defendants jointly and severally on

Counts II and III of this Complaint;

2. That Defendant J. C. Penney be ordered to pay the Plaintiff front pay and

benefits in an amount to be proven at trial;

3.

That Defendant J. C. Penney be ordered to pay to Plaintiff Mayer back pay

and fringe benefits, including prejudgment interest thereon, less such amounts as may be

appropriate based upon her other employment;

4.

That all Defendants be ordered to pay to Plaintiff Mayer compensatory

damages for her emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of

life, and other non-pecuniary losses in an amount to be determined at trial;

5. That Plaintiff Mayer be granted leave to amend her Complaint to add a

CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER - 52

claim and prayer for punitive damages in accordance with applicable law; 6. That Plaintiff Maycr be awarded her costs of suit and reasonable attorneys

fees incurred and to be incurred herein; and,

7. That Plaintiff Mayer be awarded all such other and further relief as the

Court may decm just and equitable.

DATED this/7"1: day ()f~'!j'-"'""""""-~f· --~_/~~~-' 2001.

(

.

P

EN CRO~KETT

N & H OI1ES, PLLC
~' .. \~
BY~~~~~f--*-~~~~~_ _
Steven K. Brown

B~ Reed E. Andrus Attorneys for Intervening Plaintiffs

CONSOLIDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRlBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER- S3

DEMAND FOR JURY TRIAL

Becky Turner, Merribeth Parris Hicks, Troy Hurley, Sarah Johnson and Carol

Mayer hereby demand a trial by jury as to all issues triable to ajury in this matter and for an

advisory jury as to all equitable issue,,s to assist the Court in dete[(l'lining those matters.

EN CROCKETT

,~~~~'(/.PES,~LLC

\

I

BY\ ~~___

.~l.~"
_M-~~=-_____

__

_ _

_

Reed E. Andrus Attorneys for Intervening Plaintiffs

CONSOLlDATED COMPLAINT AND DEMAND FOR JURY TRIAL BY PLAINTIFFS BECKY TURNER, MERRIBETH PARRIS HICKS, TROY HURLEY, SARAH JOHNSON AND CAROL MAYER - 54