Case 6:05-cv-06482-CJS-MWP Document 1 Filed 09/14/2005 Page 1 of 5

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

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:

EQUAL EMPLOYMENT OPPORTUNITY :

COMMISSION,

:

:

Plaintiff

:

:

v .

:

:

NICHOLS GAS & OIL, INC.

:

:

Defendant.

:

:

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Civil Action No.
COMPLAINT JURY TRIAL DEMAND

NATURE OF THE ACTION

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

of the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of sex,

female, retaliation and/or constructive discharge, and to make whole Eliza Foss (“Foss”) and

other similarly situated individuals (“claimants”). These allegations are described in greater

detail in paragraph seven (7) below.

JURISDICTION AND VENUE

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

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

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

5(f)(1) and (3) and § 2000e-6 ("Title VII"), and pursuant to Section 102 of the Civil Rights Act

of 1991, 42 U.S.C. § 1981a.

2. The unlawful employment practices alleged below were committed within the

jurisdiction of the United States District Court for the Western District of New York.

PARTIES

Case 6:05-cv-06482-CJS-MWP Document 1 Filed 09/14/2005 Page 2 of 5
3. Plaintiff, Equal Employment Opportunity Commission (hereinafter “EEOC” or “the Commission”), is an 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 Sections 706(f)(1) and (3) and Section 707 of Title VII, 42 U.S.C. §§ 2000e5(f)(1) and (3) and § 2000e-6.
4. Defendant has continuously been a New York corporation doing business in the State of New York and has had at least fifteen employees during the relevant time period.
5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce within the meaning of Section 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, Eliza Foss filed a Charge of Discrimination with the Commission alleging violations of Title VII by Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. Since at least January 1999, Defendant, through its owner and some of its male employees, has engaged in unlawful employment practices in violation of Section 703(a) of Title VII, 42 U.S.C. § 2000e. These practices include, but are not limited to, the following:
(a) Defendant subjected claimants to frequent and pervasive sexual harassment, including unwelcome groping of female employees’ bodies, including their breasts and buttocks.
(b) Defendant also subjected claimants to on-going sexually explicit propositions and comments including, but not limited to: “suck my cock
2

Case 6:05-cv-06482-CJS-MWP Document 1 Filed 09/14/2005 Page 3 of 5

so I can go home with lipstick on the end of it and make my wife jealous,”

“I could come over and fuck your brains out” and requests for

“blow-

jobs.” Defendant also permitted an environment where female

employees

were referred to as, “whore” and “stupid bitch” and

references were made

about their bodies, using language such as “ass” and

“tits.”

(c) Although claimants protested and complained about the harassment

Defendant made no efforts to prevent or eradicate this continuing

egregious and offensive behavior.

(d) Defendant caused the constructive discharge of claimants due

to the on-going severe and pervasive sexual harassment.

(e) Defendant retaliated against claimants who complained of sexual

harassment or who refused to participate in the sexualized work

atmosphere by further harassing them, terminating them and/or taking

other adverse action against them.

8. The effect of the practices complained of above has been to deprive claimants of

equal employment opportunities and otherwise adversely affect their status as employees

because of their sex.

9. The unlawful employment practices complained of above were intentional.

10. At all relevant times, Defendant has acted with malice or reckless indifference to

the federally protected rights of claimants.

PRAYER FOR RELIEF

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Case 6:05-cv-06482-CJS-MWP Document 1 Filed 09/14/2005 Page 4 of 5

Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant, its officers, successors, assigns and all persons in active concert or participation with it, from engaging in any employment practices that discriminate on the basis of sex; B. Order Defendant to institute and carry out policies, practices and programs that provide equal employment opportunities for all employees, regardless of sex, and that eradicate the effects of Defendant’ past and present unlawful employment practices; C. Order Defendant to make whole all those individuals affected by the unlawful employment practices described above, by providing compensation for past and future pecuniary losses in amounts to be determined at trial; D. Order Defendant to make whole all those individuals affected by the unlawful employment practices described above, by providing compensation for non-pecuniary losses, including pain, suffering and humiliation, in amounts to be determined at trial; E. Order Defendant to provide punitive damages for its malicious and/or reckless conduct, in amounts to be determined at trial; F. Grant such further relief as the Court deems necessary and proper; G. Award the Commission its costs in this action.

JURY TRIAL DEMAND The Commission requests a jury trial on all questions of fact raised by its Complaint.

Dated: New York, New York September 13, 2005

Respectfully submitted, 4

Case 6:05-cv-06482-CJS-MWP Document 1 Filed 09/14/2005 Page 5 of 5
James L. Lee Deputy General Counsel Gwendolyn Young Reams Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 s/ Elizabeth Grossman Elizabeth Grossman Acting Regional Attorney s/Nora E. Curtin Nora E. Curtin Acting Supervisory Trial Attorney s/Sunu P. Chandy Sunu P. Chandy Senior Trial Attorney New York District Office 33 Whitehall Street, 5th Floor New York, New York 10004 Phone: 212-336-3706 Fax: 212-336-3623
5

 
 E.E.O.C. v. Nichols Gas & Oil, Inc., Not Reported in F.Supp.2d (2006)

2006 WL 692345 Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
NICHOLS GAS & OIL, INC., Defendants.
No. 05-CV-6482 CJS. | March 13, 2006.
Attorneys and Law Firms
Maria Salacuse, Sunu P. Chandy, U.S. Equal Opportunity Commission, New York District Office, New York, New York, for the Plaintiff.
R. Scott DeLuca, Underberg & Kessler LLP, Rochester, New York, for the Defendant.
Opinion
DECISION AND ORDER
SIRAGUSA, J.
INTRODUCTION
*1 This is an action pursuant to Title VII of the Civil Rights Act of 1964, alleging sexual discrimination. Now before the Court is defendant’s motion [# 2] to dismiss part of the complaint pursuant to Federal Rule of Civil Procedure (“FRCP”) 12(b)(6), and for a more definite statement pursuant to FRCP 12(e). For the reasons that follow the application is denied.
BACKGROUND
The following facts are taken from the complaint in this action, as well as the documents submitted by the parties in connection with the subject motion to dismiss. Generally on a motion to dismiss pursuant to Rule 12(b)(6), the Court must consider only the complaint, which is deemed to include “any written instrument

attached to it as an exhibit or any statements or documents incorporated in it by reference.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002) (citations and internal quotations omitted). Moreover, “[e]ven where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, which renders the document integral to the complaint.” Id. at 153. In this regard, the Court finds that the documents comprising the administrative record of the investigation by the plaintiff, United States Equal Employment Opportunity Commission (“EEOC”), may be considered in resolving the motion to dismiss.
Elisa Foss (“Foss”), a female, was employed by the defendant in this action, Nichols Gas & Oil, Inc. (“defendant”) from July 8, 2002, until she resigned on July 8, 2002. Foss filed a written sexual harassment complaint against defendant with EEOC on September 12, 2003. Foss’s complaint stated: I began working for the above named Respondent on or about July 8, 2002. My most recent position was as Credit Manager. Beginning in or around August 2002, and continuing until I was constructively discharged, I was subjected to unwelcome comments and touching of a sexual nature from President/Owner of the organization.
On or about July 8, 2003, I was forced to resign because of the intolerable working conditions caused by the harassment.
I believe that I was subjected to this hostile, offensive, and intimidating work environment and forced to resign, because of my gender/female in willful violation of Title VII of the Civil Rights Act of 1964, as amended.
(Notice of Motion [# 2] Ex. A) Following an investigation, EEOC sent a determination notice to defendant on June 9, 2005, which stated, in relevant part:
The evidence obtained in the investigation establishes reasonable cause to believe that Respondent discriminated against [Foss] in that she was subjected to sexual harassment and constructive discharge. The investigation also revealed that [Foss] faced retaliation from Respondent in that she was given negative references following her employment with Respondent.
1

E.E.O.C. v. Nichols Gas & Oil, Inc., Not Reported in F.Supp.2d (2006)

(Chandy Decl. [# 6-2] Ex. D)
EEOC commenced this action on September 14, 2005 on behalf of Foss, and “other similarly situated individuals”. The complaint does not identify the other similarly situated individuals, or state how many such individuals there are. However, in correspondence between the parties prior to the commencement of the action, EEOC advised defendant that there were “at least ten additional claimants” besides Foss. (Chandy Decl. Ex. F) The complaint alleges sex discrimination including hostile work environment, constructive discharge, and retaliation. Specifically, the complaint alleges that “since at least January 1999”, defendant’s owner and certain unnamed male employees “groped” female employees, made sexually-explicit comments, constructively discharged female employees, and retaliated against them.
*2 Defendant filed the subject motion on November 18, 2005, contending that the retaliation claims should be dismissed as unexhausted, since Foss did not allege retaliation in her EEOC complaint. Defendant also seeks an order directing plaintiff to file a more definite statement, identifying the unnamed claimants and setting forth the factual basis for their claims. Plaintiff, however, contends that the retaliation claim is exhausted, and that the additional information that defendant seeks should be provided through discovery. Counsel for the parties appeared before the undersigned for oral argument on March 9, 2006. The Court has considered the parties’s submissions and the arguments of counsel.
ANALYSIS
It is well settled that in determining a motion under Fed.R.Civ.P. 12(b)(6), a district court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Bumette v. Carothers, 192 F.3d 52, 56 (1999), cert. denied, 531 U.S. 1052 (2000). While the Court must accept as true a plaintiff’s factual allegations, “[c]onclusory allegations of the legal status of the defendants’ acts need not be accepted as true for the purposes of ruling on a motion to dismiss.” Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir.1995)(citing In re American Express Co. Shareholder Litig ., 39 F.3d 395, 400-01 n. 3 (2d Cir.1994)). The Court “may dismiss the complaint only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id. (internal quotations omitted)(citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

Exhaustion of Remedies It is undisputed that before commencing a Title VII lawsuit, a plaintiff must first exhaust his administrative remedies:
As a precondition to filing a Title VII claim in federal court, a plaintiff must first pursue available administrative remedies and file a timely complaint with the EEOC. We have recognized, however, that claims that were not asserted before the EEOC may be pursued in a subsequent federal court action if they are reasonably related to those that were filed with the agency. A claim is considered reasonably related if the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge that was made. This exception to the exhaustion requirement is essentially an allowance of loose pleading and is based on the recognition that EEOC charges frequently are filled out by employees without the benefit of counsel and that their primary purpose is to alert the EEOC to the discrimination that a plaintiff claims he is suffering.
Deravin v. Kerik, 335 F.3d 195, 200-201 (2d Cir.2003) (citations and internal quotations omitted). Two additional types of claims that would be reasonably related to an EEOC complaint are: “1) a claim alleging retaliation by an employer against an employee for filing an EEOC charge[;] and (2) a claim where the plaintiff alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge.” Id. at 201, n. 3 (citing Butts v. City of N.Y. Dep’t of Hous. Pres. & Dev., 990 F .2d 1397, 1402-03 (2d Cir.1993), superseded by statute on other grounds as stated in Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684 (2d Cir.1998)) (internal quotation marks omitted).
*3 In the instant case, defendant maintains that plaintiff’s retaliation claim is unexhausted because Foss did not specifically allege retaliation in her EEOC complaint. The Court, however, disagrees. As mentioned above, a claim of retaliation arising from the filing of an EEOC
2

E.E.O.C. v. Nichols Gas & Oil, Inc., Not Reported in F.Supp.2d (2006)

complaint is considered reasonably related, as are claims which can reasonably be expected to grow out of an investigation of the charge that was made. Here, the EEOC actually investigated whether defendant had retaliated against Foss, and concluded that it had. Consequently, defendant’s motion to dismiss is denied.
Motion For A More Definite Statement Defendant also contends that it is entitled to a more definite statement, pursuant to FRCP 12(e), which states, in relevant part, that, “[i]f a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading.” See also, Swierkiewicz v. Sorema N. A., 534 U.S. 506, 514, 122 S.Ct. 992, 998 (2002) (“If a pleading fails to specify the allegations in a manner that provides sufficient notice, a defendant can move for a more definite statement under Rule 12(e) before responding.”) However, Rule 12(e)
is designed to remedy unintelligible pleadings, not to correct for lack of detail. A motion pursuant to Rule 12(e) should not be granted unless the complaint is so excessively vague and ambiguous as to be unintelligible and as to prejudice the defendant seriously in attempting to answer it. Motions for a more definite statement are generally disfavored because of their dilatory effect. The preferred course is to encourage the use of discovery procedures to apprise the parties of the factual basis of the claims made in the pleadings.
In re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, No. MASTER FILE 1:00-189, MDL 1358(SAS), M21-88, 2005 WL 1500893 at *2 (S.D.N.Y. Jun. 24, 2005) (footnotes and internal quotation marks omitted)
In the instant case, defendant seeks: “(a) the identity of

the claimants; (b) what claim(s) the individual claimants are asserting; and (c) the factual basis for each of the claimant’s claims, including a basis for knowing when the purportedly unlawful conduct occurred”. While the complaint does not identify the additional ten claimants by name, it provides a general description of the alleged discriminatory acts and the time frame within which they occurred. Moreover, it alleges that the harassment was perpetrated primarily by defendant’s owner. Therefore, defendant ought to be in a position both to know the names of the additional claimants, and to admit or deny the allegations. While it would have been preferable for plaintiff to have included the names of the additional claimants in the complaint, the Court does not believe that their omission makes the complaint unintelligible. That is, the Court believes that defendant is capable of understanding and answering the complaint. See, FRCP 8(b) (“If a party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial.”) Rather than delay the proceedings further, the Court finds that it would make more sense in this case to allow defendant to seek information concerning the additional claimants through discovery.1

1

Plaintiff states that it will provide defendant with the

names of all known claimants as part of its

“Fed.R.Civ.P. 26(a) Initial Disclosures”. (Def. Memo

of Law [# 6] p. 9)

CONCLUSION
*4 For the foregoing reasons, defendant’s motion [# 2] is denied. Defendant shall file and serve an answer to the complaint within ten days of the date of this Decision and Order. By separate order the undersigned will refer this case to the Honorable Marian W. Payson, United States Magistrate Judge, for all non-dispositive pretrial matters.
SO ORDERED.
	  

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 UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

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EQUAL EMPLOYMENT OPPORTUNITY :

COMMISSION,

:

:

:

Plaintiff,

:

v .

:

:

NICHOLS GAS & OIL, INC. and

:

TOWNSEND OIL CORPORATION

:

d/b/a/ TOWNSEND OIL & PROPANE,

:

:

Defendants.

:

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Civil Action No. 05-CV-6482 (CJS) (MWP)
FIRST AMENDED COMPLAINT and JURY TRIAL DEMAND

NATURE OF THE ACTION

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

of the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of sex,

female, retaliation and/or constructive discharge, and to make whole Eliza Foss (“Foss”) and

other similarly situated individuals (“claimants”). These allegations are described in greater

detail in paragraph 16 below.

JURISDICTION AND VENUE

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

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

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

5(f)(1) and (3) and § 2000e-6 ("Title VII"), and pursuant to Section 102 of the Civil Rights Act

of 1991, 42 U.S.C. § 1981a.

2. The unlawful employment practices alleged below were committed within the

jurisdiction of the United States District Court for the Western District of New York.

PARTIES 3. Plaintiff, Equal Employment Opportunity Commission (hereinafter “EEOC” or “the Commission”), is an 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 Sections 706(f)(1) and (3) and Section 707 of Title VII, 42 U.S.C. §§ 2000e5(f)(1) and (3) and § 2000e-6. 4. Defendant Nichols Gas & Oil, Inc. has continuously been a New York corporation doing business in the State of New York and has had at least fifteen employees during the relevant time period. 5. Defendant Townsend Oil Corporation d/b/a/ Townsend Oil & Propane (hereinafter “Townsend”) has continuously been a New York corporation doing business in the State of New York and has had at least fifteen employees during the relevant time period. 6. Defendant Townsend purchased Defendant Nichols Gas & Oil, Inc. on or about November 30, 2005 and is a legal successor to Nichols Gas & Oil, Inc. 7. Defendant Townsend purchased and obtained all of the real property and most of the tangible assets of Defendant Nichols Gas & Oil, Inc., retained all of Defendant Nichols Gas and Oil Inc.’s employees, and hired Wayne Nichols (former President of Nichols Gas & Oil, Inc.) to work for it. 8. Since its purchase of Defendant Nichols Gas and Oil, Inc., Defendant Townsend has continued to engage in the same business as Defendant Nichols Gas & Oil, Inc., the sale of fuel and related customer service, out of the same physical facility.
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9. There has been a substantial continuity of business operations by Defendant Townsend of the business operations of Defendant Nichols Gas and Oil, Inc., since the date of purchase of Defendant Nichols Gas and Oil, Inc. by Defendant Townsend Oil Corporation.
10. Defendant Townsend had actual notice of this action at the time it purchased Nichols Gas & Oil, Inc., and the lawsuit was listed in the Purchase Agreement between the two Defendants.
11. It is not assured that Defendant Nichols Gas & Oil, Inc. has had, or currently has, the ability to provide relief in this matter.
12. Defendant Townsend is liable in this matter under the principles of successor liability.
13. At all relevant times, Defendants have continuously been employers engaged in an industry affecting commerce within the meaning of Section 701(b), (g), and (h) of Title VII, 42 U.S.C. §§ 2000e-(b),(g), and (h).
14. At all relevant times, Defendants have continuously been employers engaged in an industry affecting commerce within the meaning of Section 701(b), (g), and (h) of Title VII, 42 U.S.C. §§ 2000e-(b),(g), and (h).
STATEMENT OF CLAIMS 15. More than thirty days prior to the institution of this lawsuit, Eliza Foss filed a Charge of Discrimination with the Commission alleging violations of Title VII by Defendant Nichols Gas & Oil, Inc. All conditions precedent to the institution of this lawsuit have been fulfilled.
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16. Since at least January 1999, Defendants have engaged in unlawful employment practices in violation of Section 703(a) of Title VII, 42 U.S.C. § 2000e. These practices include, but are not limited to, the following:
(a) Defendants subjected claimants to frequent and pervasive sexual harassment, including unwelcome groping of female employees’ bodies, including their breasts and buttocks.
(b) Defendants also subjected claimants to on-going sexually explicit propositions and comments including, but not limited to: “suck my cock so I can go home with lipstick on the end of it and make my wife jealous,” “I could come over and fuck your brains out” and requests for “blowjobs.” Defendant also permitted an environment where female employees were referred to as, “whore” and “stupid bitch” and references were made about their bodies, using language such as “ass” and “tits.”
(c) Although claimants protested and complained about the harassment Defendants made no efforts to prevent or eradicate this continuing egregious and offensive behavior.
(d) Defendants caused the constructive discharge of claimants due to the ongoing severe and pervasive sexual harassment.
(e) Defendants retaliated against claimants who complained of sexual harassment or who refused to participate in the sexualized work atmosphere by further harassing them, terminating them and/or taking other adverse action against them.
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17. The effect of the practices complained of above has been to deprive claimants of equal employment opportunities and otherwise adversely affect their status as employees because of their sex.
18. The unlawful employment practices complained of above were intentional. 19. At all relevant times, Defendants acted with malice or reckless indifference to the federally protected rights of claimants.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendants, their officers, successors, assigns and all persons in active concert or participation with it, from engaging in any employment practices that discriminate on the basis of sex; B. Order Defendants to institute and carry out policies, practices and programs that provide equal employment opportunities for all employees, regardless of sex, and that eradicate the effects of Defendants’ past and present unlawful employment practices; C. Order Defendants to make whole all those individuals affected by the unlawful employment practices described above, by providing compensation for past and future pecuniary losses in amounts to be determined at trial; D. Order Defendants to make whole all those individuals affected by the unlawful employment practices described above, by providing compensation for non-pecuniary losses, including pain, suffering and humiliation, in amounts to be determined at trial; E. Order Defendants to provide punitive damages for its malicious and/or reckless conduct, in amounts to be determined at trial;
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F. Grant such further relief as the Court deems necessary and proper;

G. Award the Commission its costs in this action.

JURY TRIAL DEMAND

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

Dated: New York, New York Date: October 1, 2007

Respectfully submitted,

Ronald Cooper General Counsel

James L. Lee Deputy General Counsel

Gwendolyn Y. Reams Associate General Counsel

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 “L” Street, N.W. Washington, D.C. 20507

s/ Elizabeth Grossman Elizabeth Grossman Regional Attorney

s/Robert D. Rose Robert D. Rose Supervisory Trial Attorney

s/Sunu P. Chandy Sunu P. Chandy Senior Trial Attorney US EEOC New York District Office 33 Whitehall Street, 5th Floor New York, New York 10004 Telephone No.: 212-336-3706 Facsimile No.: 212-336-3623

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 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
EQUAL EMPLOYMENT OPPORTUNITY, COMMISSION,
Plaintiff,
V.
NICHOLS GAS & OIL, INC. and TOWNSEND OIL CORPORATION d/b/a TOWNSEND OIL & PROPANE,
Defendants.

DECISION & ORDER 05-CV-6482CJS

PRELIMINARY STATEMENT By order dated March 17, 2006, the above-captioned matter has been referred to the undersigned for the supervision of pretrial discovery and the hearing and disposition of all non-dispositive motions, pursuant to 28 U.S.C. §§ 636(b)(A) and (B). (Docket# 11). Plaintiff, the Equal Employment Opportunity Commission (the "EEOC"), has filed suit on behalf often claimants against defendants, Nichols Gas & Oil, Inc. ("Nichols") and Townsend Oil Corporation ("Townsend"), under Title VII of the Civil Rights Act. Currently pending before this Court are motions to compel discovery filed by Townsend and Nichols, on June 23, 2008 and July 16,2008, respectively. (Docket## 51, 57, 68, 69).

FACTUAL BACKGROUND
The charging parti filed a charge of discrimination with the EEOC on September 12, 2003 against her former employer, Nichols Gas & Oil, Inc. The Charging Party alleged that she had been subjected to a hostile work environment, consisting of unwelcome sexual comments and touching, and had been constructively discharged. (Docket# 6-2). The EEOC conducted an investigation ofNichols and determined that female employees had been subjected to a pattern of sexual harassment, constructive discharge and retaliation. (Docket# 6-5).
Based upon its findings, the EEOC filed suit on behalf of ten identified victims (including the Charging Party) on September 14,2005. (Docket# 1). On October 1, 2007, the EEOC filed an Amended Complaint (the "Complaint") adding Townsend as a successor defendant. (Docket# 41 ). Specifically, the Complaint alleges that defendants constructively discharged the claimants due to severe and pervasive sexual harassment, including groping of the claimants' buttocks and breasts and ongoing sexual propositions and comments. (!d.). The Complaint also charges that defendants failed to take action to remedy and prevent the harassment and retaliated against those claimants who complained ofthe conduct. (!d.). According to the Complaint, the challenged conduct constitutes violations of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e-5 and e-6, and Section 102 ofthe Civil Rights Act of 1991, 42 U.S.C. § 1981 a. (/d.).
Nichols and Townsend have denied the allegations in the Complaint. Townsend also contends that it is not a successor to Nichols. (Docket## 44, 45).
1 For the purposes ofthis motion, the identities ofthe charging party and the claimants have been sealed by Order of this Court. (Docket # 66). Accordingly, the charging party will be referred to hereinafter as the "Charging Party." The remaining claimants will be referred to by number (e.g., "Claimant# 2") as necessary for clarity.
2

The instant motions to compel filed by Nichols and Townsend seek the same
relief? (Docket## 51, 57). Specifically, defendants seek to compel the EEOC to produce the
following documents:
Any and all documents directly or indirectly relating to the examination, diagnosis, or treatment of each and every claimant by a physician, psychiatrist, psychologist, social worker, counselor or other medical or mental health practitioner who examined, diagnosed or treated each and every claimant since January 1, 1999.
(Docket# 58-3, Exhibit ("Ex.") B, Request No. 1). Defendants also seek to compel the EEOC to
respond to an interrogatory requesting that it:
Identify ... each physician, psychiatrist, psychologist, social worker, counselor or other medical or mental health practitioner who examined, diagnosed or treated each and every claimant from January 1, 1999 through the present and, with respect to each practitioner identified, set forth the date(s) and purpose(s) of each consultation, describe any and all diagnoses made, describe the type and duration of each type of treatment recommended, and dates during which any condition existed.
(Docket# 58-3, Ex. A, Interrogatory No. 5). Finally, defendants seek to compel the claimants to
execute authorizations to their medical and mental health providers to release the requested
information. (Docket# 58-3, Ex. B, Request No. 1; Docket# 51, Ex. P).
At and following oral argument, Nichols agreed to exclude mental health
professionals from the scope of the challenged interrogatory and document request. (Docket# 65
at 3). Townsend has not agreed to that limitation, although it has agreed to execute a protective
2 The only manner in which the relief sought by both defendants differed was that Nichols sought discovery sanctions against the EEOC. (Docket # 57). l denied that application from the bench following oral argument. (Docket# 62).
3

order to safeguard the privacy of any medical records and information produced. (Docket # 64 at 5).
Summary of Claimants' Allegations and Relevant Document Production On behalf of each claimant, the EEOC's Complaint asserts, inter alia, claims for
"non-pecuniary losses, including pain, suffering, and humiliation." (Docket# 41 at~ D). According to the EEOC, eight of the ten claimants did not seek any medical or psychological treatment regarding the emotional distress they allegedly suffered while working for Nichols. (See Docket# 61, (''Chandy Aff.") at~ 8). The two who did were the Charging Party, who consulted with her primary care physician, and Claimant# 2, who treated with two different mental health counselors. (Chandy Aff. at~~ 9-1 0).
With respect to the Charging Party, the EEOC has represented that on July 14, 2003, she spoke to her physician3 and advised her that she was suffering verbal and physical sexual harassment at work. (Chandy Aff. at~ 9). Her doctor prescribed medication for anxiety, but she never had the prescription filled because she did not have health insurance. (!d.). The EEOC represents that the Charging Party's physician also referred her to a counselor, but she did not pursue the referral due to the lack of insurance. (!d.). The EEOC has produced to defendants one page of the Charging Party's medical records that reflects her physician's notes oftheir July 14, 2003 visit. (Docket # 51-3, Ex. B). According to the EEOC, the one page produced is the only record of the Charging Party's consultation with her physician on July 14, 2003.
3 The identity of the physician has also been sealed pursuant to the Order to Seal. (Docket# 66).
4

With respect to Claimant # 2, the EEOC represents that she spoke to her physician on August 13, 2002, concerning "work-related stress" that she was experiencing in her job at Nichols. (Chandy Aff. at ,-r 10). The EEOC has produced the one page of her medical records that reflects that visit. The record indicates that she was given three weeks of samples of anti-anxiety medication. According to the EEOC, Claimant# 2 does not recall whether she continued to take this medication after the samples ran out. (!d.).
The EEOC also represents that Claimant # 2 was referred by her physician to mental health counseling in the Spring of 2001 to address issues purportedly unrelated to her employment that have not been identified by the EEOC. (Chandy Aff. at ,-r 11 ). According to the EEOC, she attended two counseling sessions, but does not recall whether she discussed her employment with Nichols. (!d.). Claimant# 2 attended approximately two more counseling sessions with a different counselor in late 2002 or early 2003. (ld.). As with the earlier sessions, the impetus for the treatment were issues allegedly unrelated to employment, although Claimant # 2 recalls that she may have spoken to the counselor about her experiences while working for Nichols. (Jd.). The EEOC has not produced any records relating to any counseling sessions attended by Claimant# 2.
DISCUSSION The threshold requirement of discoverability under the Federal Rules of Civil Procedure is whether the information sought is "relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1 ). To be discoverable, the information ''need not be admissible at the trial ifthe discovery appears reasonably calculated to lead to the discovery of admissible evidence."
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!d. The relevance standard, therefore, is commonly recognized as one that is necessarily broad in scope in order "to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citation omitted). See Daval Steel Products, a Div. of Francosteel Corp. v. MIV Fakredine, 951 F.2d 1357, 1367 (2d Cir. 1991) (parties entitled to discovery of any matter that appears "reasonably calculated to lead to the discovery of admissible evidence").
In assessing a motion to compel, "the appropriateness of requested medical discovery . .. must be demonstrated separately for each plaintiff." Kunstler v. City ofNew York, 2006 WL 2516625, *3 (S.D.N.Y. 2006). The EEOC urges that the requested information should be protected from disclosure by each claimant because each has asserted only a garden-variety emotional distress claim and intends to offer no testimony or records of medical or mental health providers in support of such a claim. By contrast, defendants maintain that all claimants should be compelled to disclose their medical records because the material sought is relevant and not privileged. Townsend further urges this Court to require production of information and records concerning Claimant# 2's counseling sessions because, in Townsend's view, her claim of emotional distress waives the otherwise applicable privilege against disclosure.
In resisting disclosure, the EEOC places principal reliance on the Second Circuit's recent decision in Sims v. Blot, 534 F.3d 117 (2d Cir. 2008), to assert that (1) the records defendants seek are protected from disclosure under the federal psychotherapist-patient privilege recognized by the Supreme Court in Jaffee v. Redmond, 518 U.S. 1 (1996), and (2) none of the claimants waived her privilege by seeking compensatory damages for "garden variety" emotional
6

distress. Before I can determine whether the emotional distress claims asserted by any or all of the claimants amount to a waiver, I must initially determine whether the records are indeed privileged. It is to that question that I first tum.
I. Psychotherapist-Patient Privilege In Jaffee v. Redmond, the Supreme Court held that "confidential communications
between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence." 518 U.S. 1, 15 (1996). Rule 501 provides in relevant part:
[T]he privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. Fed. R. Evid. 501. The Court in Jaffee also recognized the scope of the psychotherapist privilege to include "confidential communications made to licensed social workers in the course of psychotherapy." Id. Thus, the privilege protects against compelled testimony concerning conversations between the patient and the licensed therapist, as well as compelled disclosure of notes taken during their counseling sessions. Id. at 18. In recognizing a federal psychotherapist-patient privilege, the Court noted that the privilege was one of the nine specifically-enumerated testimonial privileges contained in an earlier draft of Rule 501 that was rejected in favor ofthe more flexible, current version of Rule 501. Id at 14 ("(t]he uniform judgment of the States [in legislating a psychotherapist-patient privilege] is reinforced by the fact that a psychotherapist privilege was among the nine specific
7

privileges recommended by the Advisory Committee"). According to the Court, the psychotherapist-patient privilege "is 'rooted in the imperative need for confidence and trust.'" /d. at 10 (quoting Trammel v. United States, 445 U.S. 40, 51 (1980)). As the Court reasoned, "the mere possibility of disclosure [of confidential communications made during counseling sessions] may impede development ofthe confidential relationship necessary for successful treatment" of the "sensitive . . . problems for which individuals consult psychotherapists." /d.
The Court explicitly distinguished between treatment by a psychotherapist and treatment by a medical, non-mental health provider. As it observed, "by contrast" to the therapist's treatment, "(t]reatment by a physician for physical ailments can often proceed successfully on the basis of a physical examination, objective information supplied by the patient, and the results of diagnostic tests." !d. Indeed, a physician-patient privilege was not one of the nine privileges recognized in the earlier draft of Rule 501 and has not traditionally been recognized at common law. See, e.g., Whalen v. Roe, 429 U.S. 589,602 n.28 (1977) ("[t]he physician-patient evidentiary privilege is unknown to the common law''); Northwestern Mem 'l Hosp. v. Ashcroft, 362 F.3d 923, 925-26 (7th Cir. 2004) (noting absence of federal medical records privilege); Kunstler v. City ofNew York, 2006 WL 2516625 at *6 n.7 (noting federal courts' rejection of the physician-patient privilege).
Although Jaffee makes clear that the psychotherapist-patient privilege extends only to communications between a patient and a licensed mental-health professional during the course oftreatment, see In reSealed Case (Medical Records), 381 F.3d 1205, 1214 (D.C. Cir. 2004) ("[t]he federal psychotherapist privilege recognized in Jaffee extends no further than confidential communications between licensed mental health professionals and their patients"
8

(citing Jaffee v. Redmond, 581 U.S. at 15)), the EEOC nonetheless urges this Court to interpret the psychotherapist privilege as shielding from disclosure the medical records made and maintained by the Charging Party's and Claimant# 2's physicians. Specifically, the EEOC argues that the Second Circuit's later decision in Sims v. Blot, 534 F.3d 117 (2d Cir. 2008), holds that medical records, like psychiatric records, are protected from disclosure under a federal privilege. In support of its contention, the EEOC points out that the records sought from the New York State Office of Mental Health in Sims included, in addition to psychological records, medical records such as "x-rays, charts and diagrams, laboratory and pathological reports and tests." Sims, 534 F.3d at 124. The EEOC reasons that because the court found that the records sought were protected by the psychotherapist-patient privilege, the court must have implicitly extended the privilege to cover medical records.
I disagree. First, the court in Sims clearly and consistently refers to the privilege at issue as the psychotherapist-patient privilege, not the physician-patient privilege. Id at 119, 128-37, 141-42. Second, the records at issue in Sims were records maintained by the New York State Office of Mental Health ("OMH"), a mental health provider. Jd. at 124. The fact that the request for the release of information from a mental health provider also includes items like X-rays does not, in my view, transform the request of a mental health provider into one of a medical, non-mental health provider. Third, throughout the decision, the court refers to the documents at issue as "psychiatric treatment records," "mental health records" and "psychiatric records." Jd. at 119, 130, 134, 136-42. While defendant's request may have encompassed a broad group of records from OMH, including those that may be characterized as medical records,
9

the decision is silent as to whether any such "medical" records actually existed or were subject to dispute.
Rather, as framed by the court, Sims addressed "the novel and far-reaching question of whether a plaintiffs claim for injuries that include only the garden-variety emotional injury that would ordinarily result [from the challenged conduct] constitutes a forfeiture of his psychotherapist-patient privilege." !d. at 129. In other words, the issue presented was not whether the psychotherapist-patient privilege should be extended to cover medical records, but whether the assertion of "garden variety" emotional distress serves to waive that privilege.4
For these reasons, I decline to read Sims as expanding the scope of the psychotherapist-patient privilege recognized in Jaffee to include medical providers who are not psychotherapists, even if the treatment sought from the medical provider was a referral to a mental health professional or a prescription for medication to treat depression or anxiety. On the record in this case, I find that the only claimant likely to have properly asserted a psychotherapist-patient privilege is Claimant # 2 because she is the only claimant who was treated by a mental health provider. The EEOC has disclosed that she sought treatment on approximately two occasions from two different therapists5 during the period between 200 1 and 2003 and may have discussed the alleged workplace harassment with at least one of these therapists. I now tum to the question of whether Claimant# 2 has waived her privilege as to information and records of her counseling sessions.
4 That issue, as it pertains to this case, is addressed infra at Section II. 5 The record does not disclose whether either of Claimant# 2's counselors were licensed therapists. The EEOC is directed to submit to the Court by no later than March 20, 2009, an affidavit of Claimant# 2 stating whether her counselors were licensed psychotherapists or social workers.
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II. Waiver In Jaffee, the Supreme Court declined to subject the psychotherapist-patient
privilege to a judicial balancing test to determine whether it should yield in a particular case to the interests of disclosure of relevant evidence. 518 U.S. at 17. As the Court reasoned, ·'[m]aking the promise of confidentiality contingent upon a trial judge's later evaluation of the relative importance of the patient's interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege." !d. Thus, the psychotherapist privilege may be regarded as an absolute. In reConsolidated RNC Cases, 2009 WL 130178, *5 (S.D.N.Y. 2009). Nevertheless, "[l]ike other testimonial privileges, the patient may of course waive the protection" ofthe psychotherapist privilege. Jaffee, 581 U.S. at 15 n.14.
Prior to Sims, two divergent views existed within this Circuit concerning the circumstances necessary to effect a waiver ofthe psychotherapist privilege. In re Consolidated RNC Cases, 2009 WL 130178, at *5-6 (S.D.N.Y. 2009) (collecting cases); Kunst/er, 2006 WL 2516625 at *7 (collecting cases). Some courts employed a "broad" waiver analysis, pursuant to which "a plaintiff was deemed to have waived the privilege merely by alleging that she had suffered emotional or psychological injuries of any type, thus placing her mental or emotional condition at issue in the litigation." In reConsolidated RNC Cases, 2009 WL 130178 at *5. Under this approach, the mere allegation of emotional distress was viewed as sufficient to justify discovery into that party's psychological records to determine whether events other than the challenged conduct may have caused or exacerbated the party's distress. See Green v. St. Vincent's Medical Center, 252 F.R.D. 125, 128 (D. Conn. 2008).
11

The second approach adopted a narrower view of waiver, pursuant to which a plaintiff was not deemed to have waived the privilege by alleging only "garden variety" emotional distress. See, e.g., Kunstler, 2006 WL 2516625 at *9 (rejecting "the notion that a plaintiffs demand for emotional-distress damages necessarily triggers a waiver ofthe privilege for her psychotherapy records"), adopting report and recommendation, 242 F.R.D. 261, 264 (S.D.N.Y. 2007); Rulhmann v. Ulster County Dep 't ofSocial Servs., 194 F.R.D. 445, 450-51 (N.D.N.Y. 2000). Under this approach, courts must distinguish between garden variety claims and claims for more "severe" emotional distress, such as those involving a diagnosis of a specific psychiatric disorder. Cf. EEOC v. GriefBrothers Corp., 218 F.R.D. 59,61-62 (W.D.N.Y. 2003) (plaintiff placed his emotional condition in issue by claiming to have suffered severe depression and serious emotional distress as a result of the alleged harassment and seeking damages for costs of medical treatment); Sidor v. Reno, 1998 WL 164823, *2 (S.D.N.Y. 1998) (plaintiffs challenges to employer's justification for termination- that plaintiff was a danger to herself and others- placed her mental state in issue); see Kunstler, 2006 WL 2516625 at *7 (collecting cases). Garden variety claims refer to claims for "compensation for nothing more than the distress that any healthy, well-adjusted person would likely feel as a result of being so victimized"; claims for serious distress refer to claims for "the inducement or aggravation of a diagnosable dysfunction or equivalent injury." Kunstler, 2006 WL 2516625 at *7, 9.
In Sims, the Second Circuit acknowledged this divergent doctrinal approach to waiver and adopted the narrower view. 534 F.3d at 134, 141. There, the Court held that the prose prisoner had not waived his psychotherapist-patient privilege because he had asserted no more than a garden variety claim for emotional distress, that is, a claim of emotional injury for
12

damages "ordinarily associated with a conventional claim for pain and suffering." !d. at 120, 141. Although he had testified at a deposition regarding some anxiety as a result of the alleged assault, he later explicitly withdrew any claim for serious distress and reaffirmed his intent to pursue only a garden variety distress claim and not to offer privileged communications in support of his claim. !d. at 124-25. That withdrawal, coupled with the absence of any mention in his complaint of emotional distress and the fact that he was unrepresented at his deposition, led the court to conclude that waiver of the privilege should not be inferred "in the interests of fairness." !d. at 135, 136, 138, 140-42.
On the record before me in this case, I must determine whether Claimant# 2 (the only claimant to have treated with a mental health professional) has waived her psychotherapist-patient privilege. I note at the outset that the Complaint does not allege any specific injuries for Claimant # 2, and only asserts claims on behalf of Claimant # 2 (like the other nine claimants) for "non-pecuniary losses, including pain, suffering and humiliation." (Docket # 41 ). Claimant # 2 has not alleged that she suffered severe emotional distress. Cf Green v. St. Vincent's Medical Center, 252 F.R.D. at 129 (applying Sims to find that the plaintiffs emotional condition was at issue in case where she pursued claims for negligent and intentional infliction of emotional distress and sought recovery for "severe" emotional distress); In reConsolidated RNC Cases, 2009 WL 130178, at *7 (causes of action alleging "severe emotional distress, emotional injuries, psychological harm, mental anguish, embarrassment, humiliation, shock, fright, and apprehension" are not "garden variety claims").
In addition, the EEOC has explicitly disavowed any emotional distress claims other than garden variety claims that Claimant# 2 could have made. (Docket# 74). As the
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EEOC has represented in connection with this motion, it does not intend to offer at trial any psychological or medical testimony or records to support her claims of emotional distress. (Chandy Aff. ~ 12). See Sims, 534 F.3d at 132 ("Fairness considerations arise when the party attempts to use the privilege both as a shield and a sword[;] a party cannot partially disclose privileged communications or affirmatively rely on privileged communications to support its claim or defense and then shield the underlying communications from scrutiny by the opposing party") (internal quotations omitted).
On this record, I find that Claimant # 2 has not waived her psychotherapist~patient privilege, and information about and documents reflecting her mental health counseling sessions are therefore protected from disclosure.6
Ill. Rule 26 (c)
Having determined that the records of Claimant# 2's counseling sessions are protected from disclosure, I turn to the final question of whether the treatment records of any of the claimants' medical, non~mental health providers should be produced and, if so, whether their
production should be subject to any protective order under Fed. R. Civ. P. 26(c).
Although the state ofNew York has legislated a physician-patient privilege, N.Y. C.P.L.R. § 4504(a), "state privilege laws do not govern in federal question cases." In re Zyprexa Products Liability Litigation, 254 F.R.D. 50, 52 (E.D.N.Y. 2008) (citing Northwestern Mem 'l Hasp. v. Ashcroft, 362 F.3d at 925-26; von Bulow v. von Bulow, 811 F.2d 136, 141 (2d Cir.
1987)); Manessis v. New York City Dep 't ofTransportation, 2002 WL 31115032, *2, n.1
6 This detennination is conditioned upon the filing by the EEOC of the affidavit described in n.5, supra.
14

(S.D.N.Y. 2002) (citing Lupowilz v. Monetfiore Medical Center, 1997 WL 4577, *2 (S.D.N.Y. 1997)); see generally Fed. R. Evid. 501. Here, where the claims arise under federal law, the claimants cannot claim protection under the New York physician-patient privilege. Evanko v. Electronic Systems Assoc. , Inc., 1993 WL 14458, *I (S.D.N.Y. 1993) (" federal courts do not recognize a physician-patient privilege") (citing In re Doe, 964 F.2d 1325, 1328-29 (2d Cir. 1992)). That said, the claimants do maintain privacy interests in their medical records due to the sensitive nature of the information contained therein. Manessis v. New York City Dep 't of Transportation, 2002 WL 31115032 at *2 (citing Olszewski v. Bloomberg L.P., 2000 WL 1843236, *2 (S.D.N.Y. 2000) (recognizing "a privacy interest in keeping one's medical and mental health records confidential"); Gill v. DeFrank, 2000 WL 270854, *12 (S.D.N.Y.) (recognizing that plaintiff had a right to privacy in his medical records), modified on other Krounds, 2000 WL 897152 (S.D.N.Y. 2000).
Rule 26(c) of the Federal Rules of Civil Procedure provides that a court may '·issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed. R. Civ. P. 26(c)(t ). Such an order may forbid disclosure altogether, or, among other measures, "limit[] the scope of disclosure or discovery to certain matters." Fed. R. Civ. P. 26(c)(1)(A) and (D). Thus, " although Rule 26(c) contains no specific reference to privacy or to other rights or interests that may be implicated, such matters are implicit in the broad purpose and language of the Rule." In reSealed Case (Medical Records), 381 F.3d at 1215 (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20,35 n.21 (1984)); Kunstler , 2006 WL 2516625 at* 11 ("courts are to give weight to legitimate privacy interests even if the information in question is not protected by an enforceable privilege"). In other words,
15

Rule 26(c) authorizes the court to "fashion a set of limitations that allows as much relevant information to be discovered as possible, while preventing unnecessary intrusions into the legitimate interests- including privacy and other confidentiality interests- that might be harmed
by the release ofthe material sought." Pearson v. Miller, 211 F.3d 57,65 (3d Cir. 2000).
In addition to considering the privacy interests at stake, the Court should consider the expense and burden of the discovery sought, see EEOC v. Sheffield Financial, LLC, 2007 WL 1726560, *6 (M.D.N.C. 2007) ("a party's written consent for the release of medical records
represents the least expensive and most efficient means of procuring information from medical or
counseling providers") (internal quotation omitted); the relevance and importance of the discovery to the issues at stake in the litigation, see Fed. R. Civ. P. 26(b)(2); and, whether a state
evidentiary privilege exists, see In reSealed Case (Medical Records), 381 F.3d at 1216 (citing
Northwestern Mem '1 Hasp., 362 F.3d at 924-27). In this case, defendants argue that they are entitled to the claimants' medical
records because the records may reveal some alternative explanation for the emotional distress allegedly suffered by the claimants.7 Of course, defendants' "contention that any physical
malady might cause emotional distress ... scarcely gives defendants a license to rummage through all aspects of the plaintiffs life in search of a possible source of stress or distress."
Evanko, 1993 WL 14458 at *2 (S.D.N.Y. 1993); see also Manessis, 2002 WL 31115032 at *2
7 Nichols argues that the Charging Party and Claimant# 2 have waived any privacy interests in their medical records as a result ofthe EEOC's production of a one-page record for each ofthem. 1find no merit in this argument. As I understand the record, the EEOC has produced the only records that exist ofthe Charging Party's and Claimant# 2's consultations with their physicians during which work-related stress was discussed. Based upon this understanding, I do not find that the EEOC's disclosure of that one condition (work-related emotional stress) waives the claimants' privacy interests in other medical conditions. See Evanko v. Electronic Systems Assoc., 1993 WL 14458 at *2 (rejecting argument that disclosure of medical records relating to certain conditions waives privacy interest in records for other conditions).
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(plaintiffs emotional distress claim did not give defendants "an unfettered right to pursue discovery into [the plaintiffs] entire medical history"). I easily conclude that the claimants have demonstrated the existence of genuine privacy interests in the information and records sought by defendants. Whether and how these interests should be protected requires consideration of the other factors discussed above.
First, the requests pose little burden to the claimants. The execution of medical releases is clearly not burdensome. Nor do I find onerous the requirement of answering one interrogatory for each claimant.
Second, on the record as it has been developed, I find that disclosure of some records in the claimants' medical histories is appropriate, but not the wholesale disclosure of all medical records for the ten-year period that defendants seek (which in the case of some claimants predates their employment by three years and in the case of most claimants postdates their employment by at least five years). Here, two ofthe claimants consulted with their primary care physicians about work-related stress; five of the remaining eight have described physical manifestations of the emotional distress they allegedly suffered, such as anxiety attacks, nausea, sweats, severe headaches, insomnia, stomach aches and problems. Specifically, the record in this case contains summaries of EEOC interviews with those five describing the above-identified symptoms. (See Docket # 51, Exs. D, H, I, J and K)
In fairness, defendants should be entitled to examine any medical records of the Charging Party, Claimant# 2 and the other five claimants whose summaries have been submitted that (1) reflect consultation with or treatment by a medical provider for complaints of emotional distress regardless of the cause; (2) reflect medical conditions the symptoms of or treatment for
17

which could have resulted in the same type of physical symptoms that claimants have described. Because of the broad range and generalized nature of the symptoms, and the difficulty of determining (at least by a layperson) the range of possible symptoms of various medical conditions and the possible side effects of medication, fairness requires that the medical records of those seven claimants be disclosed for a relevant period of time. Balancing the competing interests in this case, I find that the relevant time period for each claimant extends from one year prior to through one year subsequent to her employment with Nichols.
With respect to the three claimants whose interview summaries have not been produced, defendants may depose them concerning any physical symptoms of stress they experienced. Depending upon their testimony, they too may be required to authorize the release of their medical records for the time period set forth herein.
To ensure that the claimants' privacy interests are properly protected, the parties are directed to confer and submit a proposed confidentiality stipulation and order governing the production and use of the medical information and records to be disclosed. The proposed order shall be submitted for the Court's review by March 20, 2009. Within ten days of the Court's entry of such an Order, the Charging Party, Claimant# 2 and the other five claimants shall provide executed authorizations to defendants .
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CONCLUSION For the foregoing reasons, it is my Decision and Order that the defendants' motions to compel (Docket## 51, 57, 68, 69) be GRANTED in part and DENIED in part. IT IS SO ORDERED.

Dated: Rochester, New York
March _j_, 2009

MARIAN W. PAYSON United States Magistrate Judge

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 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK __________________________________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, -vs-
NICHOLS GAS & OIL, INC. and TOWNSEND OIL CORPORATION d/b/a TOWNSEND OIL & PROPANE,

No. 05-CV-6482CJS(MWP) DECISION AND ORDER

Defendants. __________________________________________

For Plaintiff:
For Defendant Townsend Oil Corp.:

APPEARANCES
Sunu P. Chandy, Esq. U.S. Equal Employment Opportunity Commission New York District Office 33 Whitehall Street, 5th Floor New York, New York 10004
James S. Wolford, Esq. Wolford Law Firm LLP 16 East Main Street 600 Reynolds Arcade Building Rochester, New York 14614

INTRODUCTION This is an action alleging employment discrimination pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII), as amended, 42 U.S.C. § 2000e et seq. Now before the Court are two motions: 1) a motion [#79] for summary judgment by defendant Townsend Oil Corporation d/b/a Townsend Oil & Propane (“Townsend”); and 2) a crossmotion [#87] for summary judgment by Plaintiff. For the reasons that follow, both applications are granted in part and denied in part.
1

BACKGROUND The subject motions seek a determination as to whether Townsend is subject to successor liability for employment discrimination allegedly committed by defendant Nichols Gas & Oil, Inc. (“Nichols”). Unless otherwise noted, the following are the undisputed facts of this case. On September 12, 2003, Elisa Foss (“Foss”), a former employee of Nichols, filed a sexual discrimination complaint with the Equal Employment Opportunity Commission (“Plaintiff”). Foss alleged that Nichols’ President/Owner, Wayne Nichols (“Mr. Nichols”), subjected her to “unwelcome comments and touching of a sexual nature,” and constructively discharged her. (Docket No. [#6], Exhibit A). On June 9, 2005, the EEOC determined that there was sufficient cause to find that Mr. Nichols had subjected Foss and several other female employees to “egregious physical and verbal sexual harassment [and retaliation] which compelled many of them to resign.” (Id., Exhibit D). Also on June 9, 2005, the EEOC proposed a conciliation agreement that would have required Nichols to take various action, including: 1) Providing sexual harassment training for employees and supervisors; 2) paying the affected women back pay plus interest; and 3) paying each of the affected women “up to $50,000.00 or the maximum allowable by federal statute in compensatory damages.” (Id., Exhibit E). On June 30, 2005, EEOC provided additional information to Nichols regarding the complaints of discrimination by Foss and “at least ten additional” female employees.
2

(Id., Exhibit G).1 EEOC informed Nichols that it would settle all claims for $575,500.00.
(Id.). Plaintiff has since reduced its total demand to $550,000.00.2
On September 14, 2005, Plaintiff EEOC commenced the subject Title VII action
against Nichols. The action, brought on behalf of Foss and the other similarly situated
females, none of whom were still employed by Nichols, alleged a hostile work
environment, retaliation, and constructive discharge. The Complaint alleged that
Nichols, “through its owner,” Mr. Nichols, “and some of its male employees,” committed
the discriminatory acts. The complaint demanded injunctive relief, as well as
compensatory and punitive damages.
Subsequently, on or about November 30, 2005, Nichols entered into a “Purchase
Agreement” with defendant Townsend. In a prior Decision and Order in this case, the
Honorable Marian W. Payson, United States Magistrate Judge, described the Purchase
Agreement as follows:
The Agreement was signed by Kevin Brady [(“Brady”)], as President of Townsend, and Wayne Nichols, in his individual capacity and as President of Nichols Gas & Oil, Inc. The Agreement provided that Townsend would purchase certain specified assets of Nichols, including its tanks, certain trucks and any inventory and supplies selected by Townsend the day before the closing, as well as Nichol’s real property. The Agreement further provided that (1) Townsend would have the exclusive right to use the name “Nichols Gas & Oil,” (2) Nichols would execute an agreement not to compete with Townsend’s business for a period of five years following the sale and deliver its customer list to Townsend, and (3) the parties
1
EEOC alleged, in relevant part, that Mr. Nichols regularly asked fem ale employees questions about their sex lives, requested sexual favors, referred to fem ale em ployees as ‘bitches,’ made com m ents about female employees’ bodies, asked female employees to sit on his lap, and touched female em ployees by hugging them and rubbing their shoulders. (Id., Exhibit G).
2
At oral argument, Plaintiff’s counsel stated that the figure represents fifty thousand dollars in total back pay, and fifty thousand dollars combined compensatory and punitive damages for each of the ten wom en who were allegedly harassed.
3

would execute agreements providing for Wayne Nichol’s continued employment and his wife’s consulting services after the sale.
A schedule[, Schedule 6.10,] was attached to the Agreement identifying pending or threatened lawsuits, claims and investigations. This action was the only item disclosed on that schedule and was identified as follows: Elisa Foss v. Nichols Gas & Oil, Co.[,] Charge No. 165-2003-00767[,] Date of Filing of EEOC Charge: Sept. 12, 2003[,] Date of Probable Cause Determination: June 9, 2005[,] Complaint filed in United States District Court, Western District of New York on September 14, 2005, Docket No. 06:05-CV-06482-CJS(P).
(Decision and Order [#40] at 5) (citations omitted). As part of the agreement, Nichols
Gas & Oil and Mr. Nichols agreed to indemnify Townsend for any claims brought against
Townsend arising from the EEOC Complaint. (Chandy Declaration [#86], Exhibit B at 9).
Nichols further agreed to amend its certificate of incorporation with the State of New
York, “changing its name to a name dissimilar to ‘Nichols Gas & Oil’ to enable
[Townsend] to use that name.” Id. at 10.
Townsend’s President, Brady, learned of the EEOC charge and pending lawsuit
prior to the closing. (Brady Deposition at 37-38). Brady also learned that there had been
television news coverage of the sexual harassment lawsuit against Nichols. Id. at 38, 96.
Brady, though, did not take any steps at that time to investigate the allegations against
Nichols. Id. at 40. In fact, Brady claims that he did not learn any of the details of the
allegations against Nichols until January 2007. Id. at 43. Brady testified, though, that he
had misgivings about the closing, but went ahead anyway:
Q. But you continued with the purchase? . . . Was that based on financial considerations or some other reason?
A. It was based on my desire. I’ve been trying to get into that market for several years. I think I was blinded. I felt that we were indemnified, and not even knowing the background of all of this, the EEOC, obviously, it was
4

a big mistake. Id. at 100.
Having decided to proceed with the deal, Brady claims to have decided that Townsend should distance itself from Nichols, and that “there was no value to [the] Nichols Gas & Oil [name].” Id. at 40. Brady considered scrapping the deal, but decided instead to “change completely the structure of the sale.” Id. at 41. As to that, Brady testified:
We no longer were gonna purchase the company in its entirety. Okay. We were not interested in the name, and we were very concerned about the value now of the customer list. We expected a lot of attrition. So the structure of the deal changed completely. As opposed to purchasing it on a whole value, we now saw the customer list as a – we structured the deal on a retained gallonage basis, meaning – which is common within the industry – meaning that we wouldn’t pay any consideration for those until – as future sales took place. Id.3 Nevertheless, Townsend still essentially purchased the name and all assets of Nichols, except for eight-to-ten vehicles, some office furniture, some computers, certain inventory, and certain accounts receivable. However, while Townsend purchased the rights to the Nichols Gas & Oil name, it did not use the name, but instead, changed the name of the facility to Townsend Oil on or about December 1, 2005. (Brady Deposition at 162). Following the closing, Townsend sent out a letter to Nichols’ customers, that was signed by both Mr. Nichols and Brady. The letter stated four separate times that Townsend and Nichols had “merged,” though Brady now denies that an actual merger
3It is unclear why Brady would have completely restructured the sale if in fact he did not learn any of the details of the allegations against Mr. Nichols until January 2007, as he claim s.
5

took place. (See, Chandy Declaration [#86] , Exhibit C) (“We are pleased to announce that Nichols Gas & Oil, Inc. of Macedon, NY has completed a merger with Townsend Oil Corp. of LeRoy, NY.”). The joint letter further stated that deliveries and service from the Nichols facility would continue as before, and that customers would be “able to call in and talk to the same individuals you are accustomed to on a local basis.” Id. Further, the letter stated that “there are no planned changes in personnel at the Nichols facility.” Id. In that regard, Townsend continued to employ all of Nichols’ employees for some time following the closing. With regard to Mr. Nichols, the agreement provided that he would remain employed by Townsend for a period of five years, though he actually continued to work in sales and customer service for Townsend only until November 2006.
Townsend made certain changes at the Nichols facility, however. Specifically, Townsend removed Nichols’ computer system, mechanic’s shop, two-way radios, copier, and office furniture, and purchased new trucks, phone systems, a computer network, and office furniture. Townsend also established a system for having an employee “on call” twenty-four hours a day.
Approximately one month after the closing, Brady received a telephone message from a woman claiming to be a former customer of Nichols. She alleged that Mr. Nichols had solicited sex from her, in exchange for a debt that she owed him. (Brady Deposition at 8). Apparently, the incident was alleged to have occurred prior to the closing. Brady shared the message with certain managers at Townsend, but did not discuss the matter with Mr. Nichols, who was then employed by Townsend, nor did he take any other action. Id. at 10-11.
6

As for the corporation that was previously known as Nichols Gas & Oil, Inc., following the sale of assets to Townsend, Mr. Nichols changed the name of the corporation to “J.N.-IV, Inc.” (“J.N.-IV”). J.N.-IV had three employees: Mr. Nichols, his wife, Theresa Nichols (“Mrs. Nichols”), and their daughter, Jessica Nichols. J.N.-IV existed primarily to collect accounts receivable owed to Nichols prior to the sale. (Wayne Nichols Deposition at 271-272).
It is undisputed that as a result of the sale, Mr. Nichols, Mrs. Nichols, and/or J.N.IV, received approximately $1.5 million from Townsend. However, it is also undisputed, at least in the current record, that as of August 2008, J.N.-IV claimed to have assets valued at only approximately one-thousand dollars.
As mentioned earlier, Plaintiff initially commenced this action solely against Nichols Gas & Oil. Upon learning through discovery of the sale to Townsend, Plaintiff moved to amend the complaint to add Townsend as a defendant, on the basis of successor liability. Townsend opposed the application, on the ground of futility. In that regard, Townsend argued that under general principles of common law, it was not subject to successor liability. However, as will be discussed further below, Magistrate Judge Payson granted the motion to amend, finding that Plaintiff had stated a claim for successor liability under the “substantial continuity” test, as discussed in Forde v. Kee Lox Mfg. Co., Inc., 584 F.2d 4, 5-6 (2d Cir. 1978) (Title VII case). Defendants did not file objections to Judge Payson’s decision.
Subsequently, as part of discovery in this action, Plaintiff and Townsend deposed Mrs. Nichols, who had personal knowledge regarding the finances of Nichols and J.N.IV, gained from maintaining the bank accounts for the corporations. (Mrs. Nichols’s
7

Deposition at 54-55). Mrs. Nichols testified that at closing, Nichols/J.N.-IV was shown as receiving $548,916.55 from Townsend, representing pre-paid deposits from customers, which the parties had agreed that Nichols would keep. Id. at 61-62, 74. She stated, though, that Nichols did not actually receive any cash from Townsend at closing (Id. at 72), and that Nichols/J.N.-IV did not necessarily actually have $548,916.55 at that time. Id. at 74.4 Mrs. Nichols further stated that she did not know how much money Nichols/J.N.-IV actually had at that time, because she did not have the necessary records with her at the deposition. Id. at 66. It does not appear that Plaintiff or Townsend obtained any additional discovery from Mrs. Nichols on that point. Mrs. Nichols also indicated that as of February 2006, Nichols/J.N.-IV received $294,545.24 from Townsend, representing accounts receivable that Townsend collected for Nichols following the closing. Id. at 63. Moreover, Nichols/J.N.-IV had additional accounts receivable of $399,187.11, although there is no indication as to how much, if any, of that amount was ever collected.
To summarize Nichols/J.N.-IV’s financial condition at or around the time of the sale to Townsend, Mrs. Nichols’ testimony showed the following: 1) during the two months prior to closing, Nichols received $548,916.55 in pre-paid customer deposits, which it retained at part of the sale; 2) Nichols received an additional $294,545.24 from Townsend following the closing, as and for accounts receivable owed to Nichols prior to closing; and 3) Nichols had the right to collect and keep $399,187.11 in additional
4
See also, Brady Deposition at 67-68 (Stating that Townsend did not actually pay Nichols the $548,916.55 shown on the closing statem ent). According to Brady, that amount represented deposits that Nichols collected from custom ers during the two months leading up to the closing. Id. at 66.
8

accounts receivable, though there is no indication as to how much of that amount was ever collected.5
As for Nichols/J.N.-IV’s financial condition in 2008, Mrs. Nichols stated that the corporation essentially had no assets, since all of the money had been “eaten up” by legal bills. Id. at 61. Mrs. Nichols further stated that Nichols/J.N.-IV owed herself and Mr. Nichols $256,281.00, because they had loaned Nichols/ J.N.-IV sums of money from their personal assets over a period of years, for which they had not been repaid. Id. at 60, 76. Overall, Mrs. Nichols testified that as of August 2008, Nichols/J.N.-IV had essentially no assets, and debts of $255,001.00. Id. at 77, 79. There is no indication that Nichols/J.N.-IV’s financial condition changed during the period between August 2008 and the date that the subject motions were filed.
Additionally, as of August 2008, Townsend had commenced a lawsuit against Nichols, J.N.-IV, and Mr. & Mrs. Nichols, for damages that they allegedly caused to Townsend. (Brady Deposition at 71). The potential damages that Townsend is seeking in that action is unclear:
Q. Is there a dollar figure in your mind to compensate Townsend Oil Corporation for that damage? [caused by Nichols/J.N.-IV and Mr. & Mrs. Nichols] A. It’s an intangible. I know one deal fell through. I was in the process of buying another company and because they found out about this – it was worth over a million dollars. I’ve lost a lot of business in affiliating with this individual [Mr. Nichols]. So what dollar do you put on that? I don’t know.
5
Pursuant to the agreement with Townsend, Mr. & Mrs. Nichols were also personally paid $148,500.34 pursuant to their consulting agreements with Townsend, and Mr. Nichols was paid $72,000.00 in salary during the months that he was em ployed by Townsend. Id. at 64. However, neither Mr. Nichols or Mrs. Nichols are parties to this action.
9

Id. at 71-72. On May 22, 2009, Townsend filed its subject motion [#79] for summary judgment,
seeking a determination that it has no successor liability for Nichols’ alleged discrimination. Essentially, Townsend raises the same arguments that it made when opposing Plaintiff’s motion to amend the complaint to add Townsend as a defendant. More specifically, Townsend maintains that: 1) the “substantial continuity” test does not apply in Title VII cases, due to recent decisions from the U.S. Supreme Court and the Second Circuit; 2) even if the substantial continuity test applies, Townsend is not liable as a successor, since it did not substantially continue Nichols’ business operations, and since Nichols is able to provide relief to Plaintiff; and 3) even if Townsend has successor liability, such liability does not include liability for compensatory or punitive damages.
On August 13, 2009, Plaintiff filed its subject cross-motion [#87] for summary judgment. Plaintiff maintains that Townsend is subject to successor liability under the substantial continuity test, because it had notice of the pending action and substantially continued Nichols’ business, and because Nichols is not financially able to provide relief to Plaintiff.
On December 3, 2009, counsel for Plaintiff and Townsend appeared before the undersigned for oral argument.
ANALYSIS Rule 56 Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is
10

entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). “[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied.” 11 MOORE’S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). “In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim.” Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert denied, 517 U.S. 1190 (1996). Once that burden has been established, the burden shifts to the non-moving party to demonstrate "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To carry this burden, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249. The parties may only carry their respective burdens by producing evidentiary proof in admissible form. FED. R. CIV. P. 56(e). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993).
11

Successor Liability in Title VII Cases At the outset, the parties dispute the proper test for determining successor liability in a Title VII case. Townsend maintains that the Court should apply the general common-law test for successor liability, under which “a corporation that acquires the assets of another corporation is not liable for the torts of its predecessor,” except in certain circumstances that are not applicable here. See, Graham v. James , 144 F.3d 229, 240 (2d Cir. 1998) (“Under both New York state and federal law, the general rule is that a corporation that acquires the assets of another corporation is not liable for the torts of its predecessor.”) (citations omitted). On the other hand, Plaintiff contends that the Court must apply the morespecialized substantial continuity test, which, Plaintiff maintains, is applicable in labor and discrimination law cases. Under this test, “the appropriateness of successor liability depends on whether the imposition of such liability would be equitable.” Cobb v. Contract Transp., Inc., 452 F.3d 543, 554 (6th Cir. 2006) (citing EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 1089-1091 (6th Cir. 1974) (“MacMillan”)). In that regard, whether successor liability is equitable in a particular case requires courts to balance 1) the interests of the defendant-employer, 2) the interests of the plaintiff-employee, and 3) the goals of federal policy, in light of the particular facts of a case and the particular legal obligation at issue. . . . [T]here is, and can be, no single definition of ‘successor’ which is applicable in every legal context. Successor liability questions must be answered on a case by case basis, and a new employer may be a successor for some purposes and not for others. Id. (citations and internal quotation marks omitted). The MacMillan case identified nine factors that a court may consider in determining whether the imposition of successor
12

liability would be equitable:
(1) whether the successor company has notice of the charge; (2) the ability of the predecessor to provide relief; (3) whether the new employer uses the same plant; (4) whether there has been substantial continuity of business operations; (5) whether the new employer uses the same or substantially same workforce; (6) whether the new employer uses the same or substantially same supervisory personnel; (7) whether the same jobs exist under substantially the same working conditions; (8) whether [the defendant] uses the same machinery, equipment and methods of production; and (9) whether [the defendant] produces the same product.
Id. (citation omitted). However, these factors
are not in themselves the test for successor liability. Instead, the nine factors are simply factors courts have considered when applying the three prong balancing approach, considering the defendant's interests, the plaintiff's interests, and federal policy. . . . [A]ll nine factors will not be applicable to each case. Whether a particular factor is relevant depends on the legal obligation at issue in the case. The ultimate inquiry always remains whether the imposition of the particular legal obligation at issue would be equitable and in keeping with federal policy.
Id. In cases involving discrimination allegedly committed by a corporation’s
predecessor, some courts have focused on three of the nine MacMillan factors: 1)
whether the successor company had notice of the EEOC charge; 2) the predecessor’s
ability to provide relief to the Plaintiff; and 3) whether there was a substantial continuity
of business operations between the predecessor and successor. See, EEOC v. Barney
Skanska Construction Co., No. 99 Civ. 2001 (DC), 2000 WL 1617008 (S.D.N.Y. Oct. 27,
2000).6
6At oral argument, the Court asked counsel to explain how the balancing of the MacMillan factors was to occur. Specifically, the Court asked whether, assuming that the jury would decide any disputed issues of fact relating to the MacMillan factors, the jury would then also balance the factors, or whether the Court would balance the factors, based on the jury’s factual determ inations. Subsequently, counsel for Plaintiff and Townsend submitted supplem ental briefs addressing this issue. Townsend’s counsel m aintains that since the substantial continuity doctrine is equitable in nature, the Court should resolve any factual issues and balance the factors. (Letter of Jam es W olford, Esq. dated Decem ber 9, 2009) (“[T] ‘substantial conitinuity’ doctrine is an equitable rem edy derived solely from the equitable powers of the
13

Townsend, though, maintains that the “substantial continuity” test only applies to cases arising under the National Labor Relations Act (“NLRA”). As to this position, Townsend relies primarily on two decisions: U.S. v. Bestfoods, 524 U.S. 51, 118 S.Ct. 1876 (1998) and New York v. National Services Industries, Inc., 352 F.3d 682 (2d Cir. 2003). Both of these cases involve the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), and hold that, in order for a federal statute to “abrogate a common-law principle, the statute must speak directly to the question addressed by the common law.” See, e.g., Bestfoods, 524 U.S. at 63, 118 S.Ct. at 1885 (citation omitted). In National Services Industries, the Second Circuit analyzed the Bestfoods decision, and concluded that in CERCLA cases, “the substantial continuity test is not a sufficiently well established part of the common law of corporate liability to satisfy Bestfoods' dictate that common law must govern.” National Services Industries, 352 F.3d at 686. The Second Circuit noted, however, that “the substantial continuity doctrine is well established in the area of labor law.” Id. (citation omitted).
In the instant case, the Court finds that the substantial continuity test applies to cases under Title VII, for two reasons. First, in connection with Plaintiff’s motion to amend, Judge Payson issued a thoughtful decision which concluded that the substantial continuity test applies. (Decision and Order, Docket No. [#40] at 6-10). Consequently,
federal courts. Accordingly, there is no issue for a jury to decide relating to the MacMillan factors.”). Plaintiff’s counsel m aintains that it would be appropriate for a jury to decide any factual issues related to the MacMillan factors, and to also weigh the factors. However, Plaintiff’s counsel agrees for purposes of this action that the Court may make all of the findings necessary to resolve the issue of successor liability. (Letter of Sunu Chandy, Esq. dated Decem ber 17, 2009) (“In light of the overall discussion at the hearing [oral argum ent] and given the apparent lack of binding legal authority in this Circuit on this question, EEOC is amenable to this Court weighing the equities and making a determination on successor liability. Even if the Court finds (contrary to the parties’ views), that there are material facts in dispute, EEOC contends that any such disputes can be resolved on the papers subm itted to the Court [.]”) (citations om itted).
14

Judge Payson’s ruling on that point is the “law of the case,” from which this Court has been given no reason to depart. See, North River Ins. Co. v. Philadelphia Reinsurance Corp., 63 F.3d 160, 165 (2d Cir. 1995) (“[T]he law of the case should be disregarded only when the court has a clear conviction of error with respect to a point of law on which its previous decision was predicated.”) (citation omitted). Second, even if Judge Payson’s ruling were not law of the case, this Court would reach the same conclusion. In that regard, the Court notes, for example, that the Code of Federal Regulations (“CFR”) recognizes that the substantial continuity test applies in Title VII cases. See, 29 C.F.R. § 825.107 (2009) (Stating that in Title VII cases, the nine MacMillan factors apply when determining successor liability); accord, Cobb v. Contract Trans., Inc., 452 F.3d at 551.
Applying the relevant substantial continuity factors discussed above, the Court finds, at the outset, that Townsend clearly had notice of the EEOC charge and this lawsuit prior to purchasing Nichols’ assets. Additionally, such notice caused Townsend to alter the purchase agreement. Specifically, Townsend decided that the Nichols company name and customer list were less valuable as a result of the EEOC complaint and lawsuit, and consequently structured the purchase price on a “retained gallonage” basis. The notice also resulted in the inclusion of an indemnification clause in the agreement, requiring Nichols to indemnify Townsend for any damages resulting from this lawsuit. Therefore, this factor weighs in favor of imposing successor liability on Townsend. See, Golden State Bottling Co., Inc. v. National Labor Relations Bd., 414 U.S. 168, 185, 94 S.Ct. 414, 425 (1973) (“Since the successor must have notice before
15

liability can be imposed, his potential liability for remedying the unfair labor practices is a matter which can be reflected in the price he pays for the business, or he may secure an indemnity clause in the sales contract which will indemnify him for liability arising from the seller’s unfair labor practices.”) (citation and internal quotation marks omitted).
As for the next relevant factor, Townsend contends that it did not substantially continue Nichols’s business. However, the Court finds, on the undisputed facts, that Townsend did substantially continue the Nichols Gas & Oil business. It is true that there were a few changes. For example, Mr. Nichols was moved from his supervisory position to that of a salesman, and a new manager was placed in control at the former Nichols facility. Additionally, Townsend changed the name of the company. Otherwise, though, Townsend used the same customer list, it sold the same products, it used the same facility and essentially the same equipment, and it employed substantially the same personnel performing the same jobs, for at least some period of time following the closing. On these facts, the Court finds, as a matter of law, that Townsend substantially continued the Nichols Gas & Oil business. This factor also weighs in favor of imposing successor liability on Townsend.
As for the third and last element mentioned above, Townsend contends that successor liability is unwarranted, since Nichols has the ability to provide monetary relief to Plaintiff, having received approximately $1.4 million for the sale of the business assets. In that regard, Townsend maintains that, when considering whether a predecessor is able to provide relief, a court must look at the predecessor’s financial condition at the time the action was commenced. (Townsend Memo of Law [#80] at 24). See, EEOC v. Barney Skanska Const. Co., 2000 WL 1617008 at *5 (“Nothing in the
16

record indicates that W.J. Barney was unable to provide relief to Blakey at the time the EEOC commenced the underlying action in September 1994.”) (emphasis added). On the other hand, Plaintiff contends that the Court should consider that Nichols purportedly does not presently have the ability to provide relief to Plaintiff. Plaintiff also maintains that Nichols did not have the ability to provide relief at the time of the closing. (Plaintiff’s Counter-Statement of Facts ¶ 49) (“At the time of Townsend’s purchase of Nichols Gas, financial documents provided by Nichols Gas indicate that J.N.-IV held total assets valued at $527,596 and total liabilities valued at $448,302, resulting in insufficient assets to resolve this matter.”). Accordingly, it is disputed whether Nichols had the ability to provide relief when this action was commenced, and undisputed that Nichols/J.N.-IV does not presently have the ability to provide relief.
As Judge Payson noted in her decision granting Plaintiff’s motion to amend the Complaint, there is disagreement among courts regarding this issue of timing. See, Finnerty v. Wireless Retail, Inc., 624 F.Supp.2d 642, 660 (2009) (“[T]here is an open question as to the relevant time period that should be examined when considering whether the predecessor is able to provide relief, at the time of the sale of assets or at the time of the successor motion.”) (citing EEOC v. Nichols Gas & Oil, Inc., 518 F.Supp.2d 505, 514 (W.D.N.Y. 2007) (Payson, J.). Here, after weighing the interests of the parties and the goals of Title VII, the Court concludes that the relevant time is the filing of the motion seeking a determination as to successor liability. Here, choosing the earlier date would essentially leave Plaintiff without a remedy and defeat the purposes of Title VII. On the other hand, choosing the later date will provide Plaintiff with a potential
17

remedy and uphold the purposes of Title VII, and Townsend may seek indemnification from Nichols for any damages that it may suffer. Since it is undisputed, for purposes of the subject motions, that Nichols/J.N.-IV was essentially insolvent at the time the subject motions were filed, the Court finds that Nichols does not have the ability to provide relief to Plaintiff. Therefore, this factor also weighs in favor of imposing successor liability on Townsend.
The Court must now consider whether such successor liability extends to compensatory and punitive damages. Townsend maintains that it cannot be liable for either type of damages, and that it can only be liable for equitable relief, since the doctrine of “substantial continuity” successor liability is an equitable doctrine. Townsend further argues that any award of punitive damages against it would not be equitable, since it is essentially an innocent third party, who happened to purchase most of Nichols’s assets. Plaintiff, on the other hand, insists that Townsend may be held liable for compensatory and punitive damages, because “Title VII successor liability does not require any showing of wrong-doing.” (Plaintiff’s Memo of Law [#84] at 16). Plaintiff also argues that Townsend is “hardly an innocent entity involved in an arms-length asset purchase,” because it was aware of the allegations against Nichols, and because Townsend continued to employ Nichols for almost a year. (Id.at n. 9).
First, the Court finds that Plaintiff’s argument regarding Townsend’s lack of innocence lacks merit. While it may be true that, prior to closing, Townsend had notice of the allegations against Nichols, which have yet to be proven, the fact that Townsend went ahead with the purchase of Nichols’ assets does not mean that Townsend condoned discrimination. Importantly, none of the women who claim to have been
18

harassed by Mr. Nichols were still employed by Nichols at the time of the purchase. Moreover, although Plaintiff faults Townsend for hiring Mr. Nichols, there is no evidence that Mr. Nichols committed any acts of discrimination during the period of such employment, which lasted less than one year. In any event, any such acts would not be relevant to the claims being asserted in this case, all of which arose prior to Townsend entering the picture. Consequently, the Court views Townsend as an innocent purchaser.
The Court will now consider whether compensatory and/or punitive damages may be awarded against a successor-defendant in a Title VII action. In general, either type of damages may be awarded, depending upon the facts of a particular case. See, e.g., Musikiwamba v. ESSI, Inc., 760 F.2d 740, 749 (7th Cir. 1985) (“Indeed, the nature and extent of [successor] liability is subject to no formula, but must be determined upon the facts and circumstances of each case.”) (citation and internal quotation marks omitted); E.E.O.C. v. Steven T. Cox, Inc., No. 3:99-1184, 2002 WL 32357095 at *7 (M.D.Tenn. Jul. 19,2002) (“Successor liability includes liability for punitive damages, so long as punitive damages would be appropriate.”) (citing EEOC v. G-K-G, Inc., 39 F.3d 740, 748 (7th Cir.1994)). Consequently, the Court rejects Townsend’s contention that equitable relief is the only form of relief that may be awarded against a successor employer under the “substantial continuity” doctrine.
Punitive damages “are generally imposed to punish the actual wrongdoer and to deter him from acting illegally again.” Musikiwamba v. ESSI, Inc., 760 F.2d at 749. The Court is aware of only a few reported cases dealing with the issue of punitive damages
19

in Title VII actions involving successor liability, and all of them indicate that such damages are not appropriate against an innocent successor. See, Armstrong v. Lockheed Martin Beryllium Corp., 990 F.Supp. 1395, 1403 n. 9 (M.D.Fla. 1997) (“Under no circumstances can this court envision the imposition of punitive damages liability against an innocent successor. The conflicting interests of the parties and policies justifying successor liability and punitive damages all militate in favor of the successor company on such a claim.”); E.E.O.C. v. Steven T. Cox, Inc., 2002 WL 32357095 at *7 (“[A]lthough it may indeed be inappropriate to impose punitive damages on an innocent successor, STCI is not an innocent successor.”). In this case, of course, the alleged actual wrongdoer is Nichols, so awarding punitive damages against Townsend would not serve the purpose of punitive damages. Nor would such an award against Townsend be equitable under the facts of this case. Consequently, Townsend’s summary judgment motion is granted as to punitive damages.
On the other hand, it appears that compensatory damages may be appropriate in this case, depending upon the evidence that may be introduced at trial. See, Armstrong v. Lockheed Martin Beryllium Corp., 990 F.Supp. at 1403 (“[G]iven that Title VII allows for an award of compensatory damages designed to make the employee whole, it appears correct to conclude that the successor's liability could include an amount for compensatory damages in addition to backpay.”) (Noting, though, that “[i]t may be appropriate to limit such damages to the same time frame as backpay.”). That is, based on the present record, the Court cannot say as a matter of law that such damages would not be appropriate against Townsend. Therefore, Plaintiff’s claim for compensatory
20

damages may go forward.

CONCLUSION

For the reasons discussed above, the parties’ motions are granted in part and

denied in part. Townsend’s summary judgment motion [#79] is granted as to Plaintiff’s

claim for punitive damages, but is otherwise denied. Plaintiff’s cross-motion for

summary judgment [#87] is denied to the extent that it seeks a ruling that Townsend

may be held liable for punitive damages, but it otherwise granted.

SO ORDERED.

Dated: Rochester, New York January 13, 2010

ENTER:

/s/ Charles J. Siragusa CHARLES J. SIRAGUSA United States District Judge

21

 
 Case 6:05-cv-06482-CJS-MWP Document 115 Filed 09/11/12 Page 1 of 9
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ---------------------------------------------------------------x EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
NICHOLS GAS & OIL, INC. and TOWNSEND OIL CORPORATION d/b/a/ TOWNSEND OIL & PROPANE,
Defendants. ---------------------------------------------------------------x
CONSENT DECREE This cause of action was initiated on September 14, 2005 by the Equal Employment Opportunity Commission (hereinafter "EEOC"), an agency of the United States Government, alleging that Defendant Nichols Gas & Oil, Inc. violated Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of I991. The allegations against Defendant Nichols Gas & Oil, Inc. include that Defendant subjected claimants to frequent and pervasive sexual harassment including unwelcome groping of female employees, on-going sexually explicit propositions and comments. EEOC alleges that claimants protested and complained about the harassment and Defendant Nichols Gas & Oil, Inc. made no efforts to prevent or eradicate this on-going and offensive behavior. Additionally, EEOC contends that claimants were constructively discharge due to the on-going severe and pervasive sexual harassment and that Defendant retaliated against claimants who complained of sexual harassment or who refused to participate in the sexualized work atmosphere by further harassing them, terminating them and/or taking other adverse action against them.

Case 6:05-cv-06482-CJS-MWP Document 115 Filed 09/11/12 Page 2 of 9
Townsend Oil Corporation d/b/a Townsend Oil & Propane (hereinafter "Townsend") purchased Defendant Nichols Gas & Oil, Inc. on or about November 30, 2005. The Court granted EEOC's Motion to add Townsend as a successor defendant on September 28, 2007 and EEOC filed an Amended Complaint naming Townsend as a successor defendant on October 1, 2007.
Defendants deny the allegations brought by EEOC and make no admissions of liability by entering into this Consent Decree.
EEOC and Defendants agree that it is in their mutual interest to fully resolve the matter without further litigation. This Decree resolves all matters related to Civil Action 05-CV-6482, now pending in the United States District Court for the Western District of New York.
EEOC and Defendants do hereby stipulate and consent to the entry of this Decree as final and binding between the parties signatory hereto and their assigns or successors.
The parties have agreed that this Decree may be entered without Findings of Fact and Conclusions of Law having been made and entered by the Court.
In consideration of the mutual promises of each party to this Decree, the sufficiency of which is hereby acknowledged, it is agreed and IT IS ORDERED, ADJUDGED, AND DECREED AS FOLLOWS:
1. This Decree resolves all of the issues raised by the EEOC Complaint and the EEOC Charge filed by Elisa Foss, Charge No. 165-2003-00767. The Decree in no way affects EEOC's rights to process any future charges that may be filed against Defendants, and to commence civil actions on any such charges.
2. The parties agree that the federal court has jurisdiction to enforce this Decree. The parties agree that they will not contest jurisdiction to enforce this Decree on any grounds,
2

Case 6:05-cv-06482-CJS-MWP Document 115 Filed 09/11/12 Page 3 of 9
including subject matter jurisdiction, venue, or failure to meet administrative prerequisites. Any party may bring an enforcement suit upon breach of any of the terms of this Decree by any other party. Nothing in this Decree shall be construed to preclude EEOC from bringing proceedings to enforce this Decree in the event that Defendants fail to perform any of the promises and representations contained herein.
3. Defendants and their managers, officers, agents, successors and assigns are enjoined from discriminating against any individual because of her or his sex and from creating or maintaining a sexually hostile work environment on the basis of sex.
4. Defendants and their managers, officers, agents, successors and assigns are enjoined from retaliating against any individual who is asserting her or his rights under Title VII or otherwise engaging in protected activity, including retaliating against any individual who has filed a charge, complained about sexual harassment, given testimony or assistance with the investigation or litigation of these charges or actions or opposed discriminatory conduct.
5. Defendants shall pay a total of$150,000.00 in monetary damages to the claimants as set forth on the document attached as Exhibit A, which shall be filed under seal. Defendants shall mail each claimant directly a check for the amounts specified in Exhibit A within 10 days of entry of the Decree. A copy of each check payable to a claimant shall be forwarded to EEOC immediately upon issuance of the check. In connection with the check issued to each claimant, Defendants will issue an IRS form 1099 in connection with each compensatory damage amount. Each claimant shall be responsible for any taxes owed by her with respect to these payments.
6. All submissions to EEOC herein shall be sent to EEOC Consent Decree Monitoring, EEOC, 33 Whitehall Street, New York, NY 10004 or to decreemonitor.nydo«i!EEOC.gov and to Judith Biltekoff, US EEOC, Buffalo Local Office, 6
3

Case 6:05-cv-06482-CJS-MWP Document 115 Filed 09/11/12 Page 4 of 9
Fountain Plaza, Suite 350, Buffalo, New York 14202. Should Defendant Nichols Gas & Oil, Inc. reopen for business under the same name, or under any other name, it shall follow the procedures listed below in paragraphs A, Band C. Should President ofNichols Gas & Oil, Inc., Wayne Nichols, create, own or operate any business entity that hires permanent employees or obtains temporary employees during the period of the Decree, he will inform EEOC of this in writing prior to hiring any permanent employees or obtaining any temporary employees and undertake the following procedures:
A. Mr. Nichols will participate in 8 hours of individual training and counseling regarding laws prohibiting employment discrimination with a focus on sexual harassment and other sex discrimination. This training shall be conducted by an EEOC approved entity prior to Mr. Nichols hiring any permanent employees or obtaining any temporary employees for any business operation. Mr. Nichols shall furnish EEOC with documentation that this training was completed prior to hiring any permanent employees or obtaining any temporary employees for any business operation that he creates, owns or operates.
B. Mr. Nichols will implement EEOC approved equal employment and antidiscrimination policies and complaint procedures should he create, own, or operate any business entity during the period of the Decree. Mr. Nichols shall furnish EEOC with draft policies for review and must have EEOC's approval of the proposed policies prior to hiring any permanent employees or obtaining any temporary employees for any business operation that he creates, owns or operates.
C. Mr. Nichols will arrange for an EEOC approved entity to provide equal employment and anti-discrimination training for all employees of any business that he creates, owns or operates during the period of the Decree within 14 days of beginning its operation. Mr.
4

Case 6:05-cv-06482-CJS-MWP Document 115 Filed 09/11/12 Page 5 of 9
Nichols shall furnish EEOC with information regarding proposed trainers and proposed outlines of training materials for review upon the hiring of any permanent employees or obtaining any temporary employees for any business operation that he creates, owns or operates. Mr. Nichols will provide 8 hours of training for all managers and supervisors and 4 hours of training for all non-supervisory or non-managerial employees. Mr. Nichols will inform EEOC in writing as to the dates of the scheduled trainings 7 days before the first training sessions. Mr. Nichols will document the training sessions by providing a letter to EEOC confirming date and time of the trainings and attendance sheet within 7 days of the last training session.
7. Defendant Townsend will maintain and implement Equal Employment and AntiDiscrimination Policy and Procedures ("the Policy") EEOC. The Policy is attached as Exhibit B. The attachment of the policy to this Decree is not a representation by EEOC that Townsend has been or is compliant with federal anti-discrimination laws. The Policy includes: (a) a clear explanation of prohibited conduct; (b) the assurance that employees who make complaints of discrimination or provide information related to such complaints will not be retaliated against; (c) a clearly described complaint process that provides accessible avenues of complaint; (d) the assurance that Townsend will accept any and all complaints from employees who wish to file internal complaints; (e) the assurance that Townsend will protect the confidentiality of complaints to the extent possible; (f) a complaint process that provides a prompt, thorough, and impartial investigation; (g) the assurance that Townsend will take immediate and appropriate corrective action when it determines that discrimination has occurred; and (h) an assurance that Townsend will inform complainants of the outcome of investigations within a reasonable amount of time. This Policy will be distributed to all of Townsend's employees within 10 days ofthe entry of the Decree. Defendant Townsend will provide all new employees with a copy of
5

-------------------------------------
Case 6:05-cv-06482-CJS-MWP Document 115 Filed 09/11/12 Page 6 of 9
the Policy during their initial orientation and no later than 5 days after commencement of their employment. Within 14 days ofthe entry of this Decree, Townsend will send verification of to EEOC that Townsend has distributed a copy of the Policy to all of its employees. Every 12 months thereafter, Townsend will send written verification to EEOC that the Policy has been given to all new employees when they start their employment with Townsend.
8. Defendant Townsend will provide training regarding the Policy for all management and non-management employees as follows:
A. Townsend will provide 4 hours of equal employment and antidiscrimination training for all managerial and supervisory personnel. Such training is to be conducted by Sara Cegelski, ofHR Works, Inc., Fairport, NY. Townsend will complete this training within 30 days of the date of entry of this Decree, and will forward to EEOC a copy of the attendance sheet within 5 days of the completion of such training.
B. Townsend will provide 2 hours of equal employment and antidiscrimination training for all non-managerial and non-supervisory personnel. Such training is to be conducted by Sara Cegelski, ofHR Works, Inc., Fairport, NY. Townsend will complete this training within 30 days of the date of entry of this Decree, and will forward to EEOC a copy of the attendance sheet within 5 days of the completion of such training.
9. Townsend shall provide a written report to EEOC with information regarding any verbal or written complaints of sexual harassment or discrimination from its employees which were received by Defendant's Designated Representatives (as defined in the Policy) within thirty (30) days of receiving any such complaints. Townsend shall provide EEOC with the name ofthe complainant, the name of the alleged harasser, a summary of the complaint, the results of any investigation of the complaint, and remedial action, if any was taken by Townsend.
6

Case 6:05-cv-06482-CJS-MWP Document 115 Filed 09/11/12 Page 7 of 9

I0. Each party shall bear its own attorneys fees and costs incurred in this action. 11. This Decree constitutes the complete understanding among the parties to this Decree. No other promises or agreement shall be binding unless agreed to in writing and signed by these parties. 12. This Decree will remain in effect for 10 years from the date of entry between EEOC and Defendant Nichols Gas & Oil, Inc. and between EEOC and Mr. Wayne Nichols. This Decree will remain in effect for 5 years from the date of entry between EEOC and Defendant Townsend.

Dated: _ _._r}._ t.~zh'-'- t. -:2. . _.__

FOR PLAINTIFF EEOC

New York District Office 33 Whitehall Street, 5th floor New York, NY 10004-2112 E-mail: elizabeth.grossman@eeoc.gov
Nora E. Curtin, Supervisory Trial Attorney, U.S. EEOC New York District Office 33 Whitehall Street, 5th floor New York, NY 10004-2112 E-mail: nora.curtin@eeoc.gov
7

Case 6:05-cv-06482-CJS-MWP Document 115 Filed 09/11/12 Page 8 of 9

Dated:

~A._wJBrlji~ l~tfel.k~#;! U.S. EEOC Buffalo Local Office 6 Fountain Plaza, Suite 350 Buffalo, NY, 14202 Telephone: 716-551-3356 E-mail: judith.biltekoff@eeoc.gov
FOR DEFENDANTS

0Q ~~1:1-/iL-
Dated:

'-l ~J~

Wayne ichols

Individually

3184 Canandaigua Road

Macedon, New York 14502

Telephone: (315) 576-4352

8

Case 6:05-cv-06482-CJS-MWP Document 115 Filed 09/11/12 Page 9 of 9

Dated:

ant Townsend Oil

/a

Townsend Oil & Propane

64 Main Street

Leroy, New York 14482

Telephone: (585) 768-8188

SO ORDERED, ADJUDGED, AND DECREED,
Signed this JL_ day of 6£P7 , 2012

ATTACHMENTS EXHIBIT A (Under Seal): Allocation of Monetary Relief to Claimants EXHIBIT B: Anti-discrimination Policy

9

 
 Case: 6:05-cv-6482 As of: 07/13/2018 10:24 AM EDT 1 of 12
CLOSED,CASREF,CLOSED_2012,MEDIATION,MWP
U.S. DISTRICT COURT U.S. District Court, Western District of New York (Rochester)
CIVIL DOCKET FOR CASE #: 6:05−cv−06482−CJS−MWP

Equal Employment Opportunity Commission v. Nichols Gas and Date Filed: 09/14/2005

Oil, Inc.

Date Terminated: 09/11/2012

Assigned to: Hon. Charles J. Siragusa

Jury Demand: Plaintiff

Referred to: Hon. Marian W. Payson

Nature of Suit: 442 Civil Rights: Jobs

Cause: 42:2000 Job Discrimination (Sex)

Jurisdiction: U.S. Government Plaintiff

Plaintiff

Equal Employment Opportunity Commission

represented by Nora E. Curtin U.S. Equal Employment Opportunity Commission New York District Office 33 Whitehall Street 5th Floor New York, NY 10004−2112 212−336−3693 Fax: 212−336−3623 Email: nora.curtin@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Delia Dianna Cadle Equal Employment Opportunity Commission 6 Fountain Plaza, Suite 350 Buffalo, NY 14202 716−551−3393 Fax: 716−551−4387 Email: delia.cadle@eeoc.gov TERMINATED: 09/16/2011

Judith Ann Biltekoff Equal Employment Opportunity Commission 6 Fountain Plaza, Suite 350 Buffalo, NY 14202 716−551−3356 Fax: 716−551−4378 Email: judith.biltekoff@eeoc.gov ATTORNEY TO BE NOTICED

V. Defendant Nichols Gas and Oil, Inc.

represented by Elizabeth A. Cordello Underberg & Kessler LLP 300 Bausch & Lomb Place Rochester, NY 14604 585−258−2805 Fax: 585−258−2821 Email: ecordello@lawpf.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul F. Keneally Underberg & Kessler LLP 300 Bausch & Lomb Place Rochester, NY 14604

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585−258−2882 Fax: 585−258−2821 Email: pkeneally@underbergkessler.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

R. Scott DeLuca Schrader, Israely, DeLuca LLP 2635 Millersport Highway Suite 200 Getzville, NY 14068 716−845−6000 Fax: 716−845−6474 Email: rsdeluca@kavinokycook.com TERMINATED: 05/01/2009

Defendant
Townsend Oil Corporation d/b/a Townsend Oil & Propane

represented by James Scott Wolford The Wolford Law Firm LLP 16 East Main Street 600 Reynolds Arcade Building Rochester, NY 14614 585−325−8015 Fax: 585−325−8009 Email: jwolford@wolfordfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael R. Wolford The Wolford Law Firm LLP 16 East Main Street 600 Reynolds Arcade Building Rochester, NY 14614 585−325−8008 Fax: 585−325−8009 Email: mwolford@wolfordfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer L. Wang The Wolford Law Firm LLP 16 East Main Street 600 Reynolds Arcade Building Rochester, NY 14614 585−325−8003 Fax: 585−325−8009 Email: jnuhfer@wolfordfirm.com ATTORNEY TO BE NOTICED

Cross Claimant
Townsend Oil Corporation d/b/a Townsend Oil & Propane

represented by James Scott Wolford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael R. Wolford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Cross Defendant

Case: 6:05-cv-6482 As of: 07/13/2018 10:24 AM EDT 3 of 12

Nichols Gas and Oil, Inc.

represented by Paul F. Keneally (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

R. Scott DeLuca (See above for address) TERMINATED: 05/01/2009 LEAD ATTORNEY

Date Filed 09/14/2005 09/14/2005 11/18/2005 11/18/2005
11/18/2005 12/19/2005 12/19/2005 01/09/2006
01/10/2006 02/01/2006
03/09/2006
03/13/2006
03/17/2006

# Docket Text
1 COMPLAINT against Nichols Gas and Oil, Inc. , filed by Equal Employment Opportunity Commission.(TO, ) (Entered: 09/14/2005)
Summons Issued as to Nichols Gas and Oil, Inc.. (TO, ) (Entered: 09/14/2005)
2 MOTION to Dismiss Portions of Plaintiff's Complaint, MOTION for More Definite Statement by Nichols Gas and Oil, Inc..(DeLuca, R. Scott) (Entered: 11/18/2005)
3 AFFIDAVIT in Support re 2 MOTION to Dismiss Portions of Plaintiff's Complaint MOTION for More Definite Statement Attorney Affidavit in Support of Defendant's Motion filed by Nichols Gas and Oil, Inc.. (Attachments: # 1 Exhibit A)(DeLuca, R. Scott) (Entered: 11/18/2005)
4 MEMORANDUM in Support re 2 MOTION to Dismiss Portions of Plaintiff's Complaint MOTION for More Definite Statement filed by Nichols Gas and Oil, Inc.. (DeLuca, R. Scott) (Entered: 11/18/2005)
5 MOTION SCHEDULING ORDER re 2 MOTION to Dismiss Portions of Plaintiff's Complaint MOTION for More Definite Statement filed by Nichols Gas and Oil, Inc. Signed by Hon. Charles J. Siragusa on 12/19/05. (KAR, ) (Entered: 12/19/2005)
Set Deadlines/Hearings: Responses due by 1/11/2006. Replies due by 2/1/2006. Motion Hearing set for 3/9/2006 03:30 PM before Hon. Charles J. Siragusa. (KAR, ) (Entered: 12/19/2005)
6 RESPONSE in Opposition re 2 MOTION to Dismiss Portions of Plaintiff's Complaint MOTION for More Definite Statement filed by Equal Employment Opportunity Commission. (Attachments: # 1 Affidavit Chandy Declaration# 2 Exhibit A − Foss Charge# 3 Exhibit B − Notice of Foss Charge# 4 Exhibit C − ThielLetter# 5 Exhibit D − Determination# 6 Exhibit E−June9ConcilProposal# 7 Exhibit F−June30ConcilLetter# 8 Exhibit G−case−McNaMara# 9 Exhibit H−case−Fisher# 10 Exhibit I−case−Venator# 11 Exhibit J−Northwest# 12 Exhibit K−Consolidated# 13 Exhibit L−Caraveo)(Chandy, Sunu) (Entered: 01/09/2006)
7 NOTICE of Appearance by Maria Salacuse on behalf of Equal Employment Opportunity Commission (Salacuse, Maria) (Entered: 01/10/2006)
8 REPLY to Response to Motion re 2 MOTION to Dismiss Portions of Plaintiff's Complaint MOTION for More Definite Statement Defendant's Reply Memo of Law in Support of Defendant's Motions filed by Nichols Gas and Oil, Inc.. (DeLuca, R. Scott) (Entered: 02/01/2006)
9 Minute Entry for proceedings held before Judge Charles J. Siragusa : Motion Hearing held on 3/9/2006 re 2 MOTION to Dismiss Portions of Plaintiff's Complaint MOTION for More Definite Statement filed by Nichols Gas and Oil, Inc.,. Court will render a decision in 60 days. (Court Reporter Karen Winter.) (MSH, ) (Entered: 03/09/2006)
10 DECISION AND ORDER denying 2 Motion to Dismiss, denying 2 Motion for More Definite Statement. Defendant shall file and serve an answer to the complaint within ten days of the date of this Decision and Order. By separate order, the undersigned will refer this case to the Hon. Marian W. Payson for all non−dispostive pretrial matters. Signed by Judge Charles J. Siragusa on 3/13/06. (KAR, ) (Entered: 03/13/2006)
11 ORDER REFERRING CASE to Magistrate Judge Marian W. Payson. Signed by Hon. Charles J. Siragusa on 3/17/06. (TO, ) (Entered: 03/20/2006)

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03/27/2006 03/28/2006 05/04/2006 05/04/2006 05/10/2006 05/11/2006
05/15/2006
06/30/2006 07/10/2006 08/11/2006 08/11/2006 01/16/2007 01/17/2007 01/26/2007
01/30/2007

12 ANSWER to Complaint by Nichols Gas and Oil, Inc..(DeLuca, R. Scott) (Entered: 03/27/2006)
13 ORDER Scheduling Conference set for 5/10/2006 11:00 AM before Hon. Marian W. Payson. Signed by Hon. Marian W. Payson on 3/28/2006. (KAH) (Entered: 03/28/2006)
14 Corporate Disclosure Statement by Nichols Gas and Oil, Inc.. (DeLuca, R. Scott) (Entered: 05/04/2006)
15 REPORT of Rule 26(f) Planning Meeting. (DeLuca, R. Scott) (Entered: 05/04/2006)
18 Minute Entry for proceedings held before Judge Marian W. Payson : Appearances: Marian Salucuse, Esq. for plaintiff; R. Scott DeLuca, Esq. for defendantScheduling Conference held on 5/10/2006. (CAM, ) (Entered: 05/18/2006)
16 SCHEDULING ORDER: Status Conference set for 2/14/2007 11:00 AM before Hon. Marian W. Payson. Mandatory Disclosure due by 6/2/2006. Join Parties/Amend Pleadings due by 7/31/2006. Fact Discovery due by 2/28/2007. Plaintiff Expert Witness ID due by 2/28/2007. Defendant Expert Witness ID due by 3/30/2007. Expert Discovery due by 5/15/2007. Dispositive Motions due by 7/16/2007. Signed by Hon. Marian W. Payson on 5/11/2006. (KAH) (Entered: 05/11/2006)
17 AMENDED SCHEDULING ORDER (to correct status conference date): Status Conference set for 2/14/2007 11:00 AM before Hon. Marian W. Payson. Mandatory Disclosure due by 6/2/2006. Join Parties/Amend Pleadings due by 7/31/2006. Fact Discovery due by 2/28/2007. Plaintiff Expert Witness ID due by 2/28/2007. Defendant Expert Witness ID due by 3/30/2007. Expert Discovery due by 5/15/2007. Dispositive Motions due by 7/16/2007. Signed by Hon. Marian W. Payson on 5/15/2006. (KAH) (Entered: 05/16/2006)
19 STIPULATION AND ORDER amending paragraph 2 of the court's amended scheduling order filed 5/15/06: Join Parties/Amend Pleadings due by 8/31/2006.. Signed by Hon. Marian W. Payson on 6/28/06. (TO, ) (Entered: 06/30/2006)
20 NOTICE of Appearance by Sunu P. Chandy on behalf of Equal Employment Opportunity Commission (Chandy, Sunu) (Entered: 07/10/2006)
21 STIPULATION AND ORDER that the parties agree to amending paragraph 2 of the court's amended scheduling order filed 5/15/06 and as amended by this courts order of 6/28/06 (see order). Signed by Hon. Marian W. Payson on 8/9/06. (TO, ) (Entered: 08/14/2006)
22 STIPULATION OF CONFIDENTIALITY AND PROTECTIVE ORDER. Signed by Hon. Marian W. Payson on 8/11/2006. (KAH) (Entered: 08/14/2006)
23 First MOTION to Amend/Correct Complaint to Add Townsend Oil Corporation, d/b/aTownsend Oil & Propane, as Successor Defendant to Defendant Nichols Gas & Oil, Inc. by Equal Employment Opportunity Commission. (Attachments: # 1 Memorandum in Support # 2 Affidavit)(Chandy, Sunu) (Entered: 01/16/2007)
24 Sealed Document to #23 (Attachments: # 1 Exhibit b# 2 Exhibit c# 3 Exhibit d# 4 Exhibit e# 5 Exhibit f# 6 Exhibit g# 7 Exhibit h# 8 Exhibit i# 9 Exhibit j# 10 Exhibit k# 11 Exhibit l# 12 Exhibit m# 13 Exhibit n# 14 Exhibit o)(TO, ) (Entered: 01/18/2007)
25 STIPULATION AND ORDER (1) agreeing to amend 5/15/2006 scheduling order following the resolution of plaintiff's motion to amend; (2) adjourning 2/14/2007 status conference; (3) counsel for plaintiff shall notify this Court in writing within ten days of a decision on the pending motion to amend to request a status conference. Signed by Hon. Marian W. Payson on 1/26/2007. (KAH) (Entered: 01/26/2007)
26 ORDER re 23 First MOTION to Amend/Correct Complaint to Add Townsend Oil Corporation, d/b/aTownsend Oil & Propane, as Successor Defendant to Defendant Nichols Gas & Oil, Inc. filed by Equal Employment Opportunity Commission, Responses due by 2/28/2007 Replies due by 3/16/2007. Motion Hearing set for 5/31/2007 03:00 PM before Hon. Charles J. Siragusa.. Signed by Hon. Charles J. Siragusa on 1/29/07. (TO, ) (Entered: 01/30/2007)

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01/30/2007
02/02/2007
02/12/2007
02/28/2007
03/09/2007 04/04/2007 05/04/2007
05/23/2007 06/04/2007 06/04/2007 06/04/2007 06/04/2007 06/18/2007
09/28/2007

27 MOTION SCHEDULING ORDER re 23 First MOTION to Amend/Correct Complaint to Add Townsend Oil Corporation, d/b/aTownsend Oil & Propane, as Successor Defendant to Defendant Nichols Gas & Oil, Inc. filed by Equal Employment Opportunity Commission: Responses due by 2/12/2007. Replies due by 2/26/2007. Motion Hearing set for 3/13/2007 3:00 PM before Hon. Marian W. Payson. Signed by Hon. Marian W. Payson on 1/30/2007. (KAH) (Entered: 01/30/2007)
28 ORDER re 26 Order,, Set/Reset Motion and R&R Deadlines/Hearing. The Motion Scheduling Order [#26] issued by the undersigned is vacated. The parties shall comply with the dates set forth in the Motion Scheduling Order [#27] issued by Magistrate Judge Payson.Signed by Hon. Charles J. Siragusa on 2/2/07. (KAR, ) (Entered: 02/02/2007)
29 AMENDED MOTION SCHEDULING ORDER re 23 First MOTION to Amend/Correct Complaint to Add Townsend Oil Corporation, d/b/aTownsend Oil & Propane, as Successor Defendant to Defendant Nichols Gas & Oil, Inc. filed by Equal Employment Opportunity Commission: Responses due by 2/28/2007. Replies due by 3/14/2007. Motion Hearing set for 4/4/2007 2:00 PM before Hon. Marian W. Payson. Signed by Hon. Marian W. Payson on 12/12/2007. (KAH) (Entered: 02/12/2007)
30 MEMORANDUM in Opposition re 23 First MOTION to Amend/Correct Complaint to Add Townsend Oil Corporation, d/b/aTownsend Oil & Propane, as Successor Defendant to Defendant Nichols Gas & Oil, Inc. filed by Nichols Gas and Oil, Inc.. (Attachments: # 1 Appendix of Unreported Cases# 2 Appendix of Unreported Cases− ALL CASES)(DeLuca, R. Scott) (Entered: 02/28/2007)
31 REPLY to Response to Motion re 23 First MOTION to Amend/Correct Complaint to Add Townsend Oil Corporation, d/b/aTownsend Oil & Propane, as Successor Defendant to Defendant Nichols Gas & Oil, Inc. filed by Equal Employment Opportunity Commission. (Chandy, Sunu) (Entered: 03/09/2007)
32 Minute Entry for proceedings held before Judge Marian W. Payson : Motion Hearing held on 4/4/2007 on plaintiff's motion to amend (#23). Motion reserved.Appearances: Sunu P. Chandy, Esq. for plaintiff; R. Scott DeLuca, Esq. for Nichols Gas & Oil (CAM, ) (Entered: 04/11/2007)
33 LETTER ORDER granting request to allow Townsend Oil Corporation to respond to 23 First MOTION to Amend/Correct Complaint to Add Townsend Oil Corporation, d/b/a Townsend Oil & Propane, as Successor Defendant to Defendant Nichols Gas & Oil, Inc. filed by Equal Employment Opportunity Commission: Townsend Oil Corporation's Response due by 6/4/2007. Any responsive submissions shall be filed by 6/18/2007. Signed by Hon. Marian W. Payson on 5/4/2007. (KAH ) (Entered: 05/04/2007)
34 TRANSCRIPT of Proceedings (Motion Hearing) held on April 4, 2007 before Judge Marian W. Payson. Court Reporter: Karen J. Winter. 35 Pages. (Oogjen, Susan) (Entered: 05/23/2007)
35 NOTICE of Appearance by James Scott Wolford on behalf of Townsend Oil Corporation (Wolford, James) (Entered: 06/04/2007)
36 Sealed Document. (TO, ) (Entered: 06/05/2007)
37 Sealed Document. (TO, ) (Entered: 06/05/2007)
38 Sealed Document. (TO, ) (Entered: 06/05/2007)
39 REPLY to Response to Motion re 23 First MOTION to Amend/Correct Complaint to Add Townsend Oil Corporation, d/b/aTownsend Oil & Propane, as Successor Defendant to Defendant Nichols Gas & Oil, Inc. Second Reply −Re Townsend Submission filed by Equal Employment Opportunity Commission. (Chandy, Sunu) (Entered: 06/18/2007)
40 DECISION & ORDER The EEOC's motion for leave to amend its Complaint in order to add Townsend as a successor defendant in this matter 23 is granted. The EEOC is directed to serve and file the amended complaint by no later than twenty days from the entry of this Order. Signed by Judge Marian W. Payson on 9/28/2007. (KAH) (Entered: 09/28/2007)

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10/01/2007 10/15/2007 10/23/2007 11/16/2007 11/30/2007 12/20/2007 02/04/2008
03/04/2008
03/20/2008
03/26/2008 06/23/2008 06/27/2008 06/27/2008
06/30/2008 07/09/2008

41 AMENDED COMPLAINT Adding Townsend as a Successor Defendant against Townsend Oil Corporation, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Certificate of Service)(Chandy, Sunu) (Entered: 10/01/2007)
42 WAIVER OF SERVICE Returned Executed by Equal Employment Opportunity Commission. Townsend Oil Corporation waiver sent on 10/1/2007, answer due 11/30/2007. (Chandy, Sunu) (Entered: 10/15/2007)
43 STIPULATION AND ORDER extending defendant Nichols Gas & Oil, Inc.'s time to respond to amended complaint. Answer due date updated as to Nichols Gas and Oil, Inc. answer due 11/16/2007. Signed by Hon. Marian W. Payson on 10/23/2007. (KAH) (Entered: 10/23/2007)
44 ANSWER to Amended Complaint by Nichols Gas and Oil, Inc..(DeLuca, R. Scott) (Entered: 11/16/2007)
45 ANSWER to Amended Complaint, CROSSCLAIM against Nichols Gas and Oil, Inc. by Townsend Oil Corporation. (Attachments: # 1 Certificate of Service)(Wolford, Michael) (Entered: 11/30/2007)
46 ANSWER to Crossclaim by Nichols Gas and Oil, Inc..(DeLuca, R. Scott) (Entered: 12/20/2007)
47 LETTER ORDER Scheduling Conference set for 3/4/2008 at 10:00 AM before Hon. Marian W. Payson. The parties may participate telephonically. Any submissions counsel wish to make with respect to discovery issues shall be provided to the Court by no later than 2/27/2008. Signed by Hon. Marian W. Payson on 2/4/2008. (KAH) (Entered: 02/07/2008)
48 Minute Entry for proceedings held before Hon. Marian W. Payson: Scheduling Conference held on 3/4/2008. Appearances: Sunu P. Chandy, Esq., Robert Rose, Esq. and Jeffrey Burnstein, Esq. for plaintiff; R. Scott DeLuca, Esq. for defendant Nichols Gas and Oil, Inc.; Michael P. Wolford, Esq. and James S. Wolford, Esq. for defendant Townsend Oil Corporation. (KAH) (Entered: 03/18/2008)
49 AMENDED SCHEDULING ORDER: Status Conference set for 9/3/2008 11:00 AM before Hon. Marian W. Payson. Mandatory Disclosure due by 3/3/2008. Join Parties/Amend Pleadings due by 4/1/2008. Fact Discovery completed by 10/31/2008. Plaintiff Expert Witness ID due by 12/1/2008. Defendant Expert Witness ID due by 12/31/2008. Expert Discovery due by 2/17/2009. Dispositive Motions due by 4/20/2009. Signed by Hon. Marian W. Payson on 3/20/2008. (KAH) (Entered: 03/20/2008)
50 NOTICE of Appearance by Jeffrey C. Burstein on behalf of Equal Employment Opportunity Commission (Burstein, Jeffrey) (Entered: 03/26/2008)
51 SEALED MOTION by Townsend Oil Corporation. (Attachments: # 1 Memorandum in Support, # 2 Declaration)(TO) (Entered: 06/24/2008)
52 MOTION SCHEDULING ORDER re 51 SEALED MOTION filed by Townsend Oil Corporation. (Responses due by 7/9/2008, Motion Hearing set for 7/16/2008 at 2:00 PM before Hon. Marian W. Payson.) Signed by Hon. Marian W. Payson on 6/27/2008. (KAH) (Entered: 06/27/2008)
53 ORDER re 51 SEALED MOTION filed by Townsend Oil Corporation. Townsend's motion shall remain under seal until 7/9/2008. If either party believes the motion should remain sealed subsequent to that date, it must file a motion to seal, as required by Local Rule 5.4. If no such application is received by 7/9/2008, the Court will direct the Clerk of the Court to unseal Townsend's motion to compel. Signed by Hon. Marian W. Payson on 6/27/2008. (KAH) (Entered: 06/30/2008)
54 LETTER ORDER granting request as to 51 SEALED MOTION filed by Townsend Oil Corporation. (Responses due by 8/1/2008, Motion Hearing set for 8/12/2008 at 2:00 PM before Hon. Marian W. Payson.) Signed by Hon. Marian W. Payson on 6/30/2008. (KAH) (Entered: 07/01/2008)
55 MOTION to Seal Document by Townsend Oil Corporation. (Attachments: # 1 Declaration, # 2 Exhibit A−Proposed Order, # 3 Certificate of Service)(Wolford, James) (Entered: 07/09/2008)

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07/10/2008 07/16/2008 07/16/2008 07/16/2008 07/17/2008 07/31/2008 08/12/2008
08/13/2008
08/28/2008 08/29/2008 09/08/2008 09/12/2008 09/15/2008
09/15/2008

56 MOTION SCHEDULING ORDER re 55 MOTION to Seal Document filed by Townsend Oil Corporation. ( Responses due by 8/1/2008, Motion Hearing set for 8/12/2008 at 2:00 PM before Hon. Marian W. Payson.) Signed by Hon. Marian W. Payson on 7/10/2008. (KAH) (Entered: 07/10/2008)
57 MOTION to Compel by Nichols Gas and Oil, Inc..(DeLuca, R. Scott) (Entered: 07/16/2008)
58 AFFIDAVIT in Support re 57 MOTION to Compel Attorney Affidavit in Support of Motion to Compel filed by Nichols Gas and Oil, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(DeLuca, R. Scott) (Entered: 07/16/2008)
59 MEMORANDUM in Support re 57 MOTION to Compel (with Appendix of Unreported Cases) filed by Nichols Gas and Oil, Inc.. (Attachments: # 1 Appendix of Unreported Cases)(DeLuca, R. Scott) (Entered: 07/16/2008)
60 MOTION SCHEDULING ORDER re 57 MOTION to Compel filed by Nichols Gas and Oil, Inc. (Responses due by 8/1/2008, Motion Hearing set for 8/12/2008 at 2:00 PM before Hon. Marian W. Payson.) Signed by Hon. Marian W. Payson on 7/17/2008. (KAH) (Entered: 07/17/2008)
61 Sealed Document. (TO) (Entered: 08/01/2008)
62 Minute Entry for proceedings held before Hon. Marian W. Payson: Motion Hearing held on 8/12/2008, Motion to compel filed by Townsend Oil (#51) − reserved. Motion to compel filed by Nichols Gas & Oil (#57) − reserved. Defendants to file supplemental memoranda of law by 8/29/08; defendant to file by 9/19/08.Motion by Townsend Oil to seal (#55) is granted in part. Parties to send the Court a letter regarding sealed documents. Motion for sanctions is denied. Appearances: Sunu P. Chandy, Esq. for plaintiff; R. Scott DeLuca, Esq. for Nichols Gas & Oil; James Wolford, Esq. for Townsend Oil (CAM) (Entered: 08/14/2008)
63 AMENDED SCHEDULING ORDER: Telephone Conference adjourned to 1/7/2009 11:20 AM before Hon. Marian W. Payson. Parties are directed to call in. Fact Discovery to be completed by 1/30/2009. Plaintiff Expert Witness ID due by 3/2/2009. Defendant Expert Witness ID due by 3/31/2009. Expert Discovery to be completed by 5/18/2009. Dispositive Motions due by 7/20/2009. Signed by Hon. Marian W. Payson on 8/13/2008. (KAH) (Entered: 08/15/2008)
64 MEMORANDUM in Support re 51 SEALED MOTION filed by Townsend Oil Corporation. (Attachments: # 1 Certificate of Service)(Wolford, James) (Entered: 08/28/2008)
65 MEMORANDUM in Support re 57 MOTION to Compel Supplemental Memorandum of Law in Support of Motion to Compel Disclosure filed by Nichols Gas and Oil, Inc.. (Attachments: # 1 Exhibit A)(DeLuca, R. Scott) (Entered: 08/29/2008)
66 Sealed Order. (TO) (Entered: 09/09/2008)
67 RESPONSE in Opposition re 57 MOTION to Compel, 51 SEALED MOTION, 55 MOTION to Seal Document (Refiling EEOC's 7/31/08 Opposition − Now Filing Electronically with Court− Approved Redactions) filed by Equal Employment Opportunity Commission. (Chandy, Sunu) (Entered: 09/12/2008)
68 MOTION to Compel (original motion filed 6/23/08 − now filed with approved redactions) by Townsend Oil Corporation. (Attachments: # 1 Affidavit, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Memorandum in Support, # 20 Certificate of Service)(Wolford, James) (Entered: 09/15/2008)
69 MOTION to Compel (originally filed on July 16, 2008−−NOW filed with redactions) by Nichols Gas and Oil, Inc.. (Attachments: # 1 Affidavit of R. Scott DeLuca, Esq. (with redactions), # 2 Exhibit A to DeLuca Affidavit, # 3 Exhibit B to DeLuca Affidavit, # 4 Exhibit C to DeLuca Affidavit, # 5 Exhibit D to DeLuca Affidavit, # 6 Exhibit E to DeLuca Affidavit, # 7 Memorandum in Support (with redactions), # 8

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09/19/2008 10/15/2008
10/16/2008 01/06/2009 01/06/2009 01/29/2009 01/30/2009 03/03/2009 03/09/2009
03/18/2009 03/20/2009 05/05/2009 05/21/2009 05/22/2009

Appendix of Unreported Decisions)(DeLuca, R. Scott) (Entered: 09/15/2008)
70 MEMORANDUM in Opposition re 57 MOTION to Compel, 51 SEALED MOTION Supplemental Memorandum of Law − Post−Argument (Re Sims) filed by Equal Employment Opportunity Commission. (Chandy, Sunu) (Entered: 09/19/2008)
71 RESPONSE in Opposition re 69 MOTION to Compel (originally filed on July 16, 2008−−NOW filed with redactions) MOTION to Compel (originally filed on July 16, 2008−−NOW filed with redactions), 68 MOTION to Compel (original motion filed 6/23/08 − now filed with approved redactions) MOTION to Compel (original motion filed 6/23/08 − now filed with approved redactions) MOTION to Compel (original motion filed 6/23/08 − now filed with approved redactions) Letter Re Pritchard v. County of Erie, 07−5702 (10/14/08 Second Circuit Opinion) filed by Equal Employment Opportunity Commission. (Chandy, Sunu) (Entered: 10/15/2008)
E−Filing Notification: This district does not allow parties to file letters 71 RESPONSE to the Court. Letters are to be submitted in paper form directly to the judge or file document in proper pleading format (see Rule 10 form of papers in our Local Rules CP) (TO) (Entered: 10/16/2008)
NOTICE: Status Conference adjourned from 1/7/2009 to 1/29/2009 at 11:00 AM before Hon. Marian W. Payson. (KAH) (Entered: 01/06/2009)
NOTICE: The Status Conference set for 1/29/2009 at 11:00 AM before Hon. Marian W. Payson will be held by telephone. The parties should call chambers at (585) 613−4080 promptly at 11:00 AM to be connected into the conference call. (KAH) (Entered: 01/06/2009)
72 Minute Entry for proceedings held before Hon. Marian W. Payson: Telephone Conference held on 1/29/2009. Appearances: Sunu P. Chandy, Esq. for plaintiff; James S. Wolford, Esq. and R. Scott DeLuca, Esq. for defendants (CAM) (Entered: 01/30/2009)
73 AMENDED SCHEDULING ORDER: Status Conference set for 6/18/2009 11:40 AM before Hon. Marian W. Payson. (See Order for Detailed Deadlines). Signed by Hon. Marian W. Payson on 1/30/2009. (KAH) (Entered: 01/30/2009)
74 Supplemental Letter Submission dated 8/8/2008 to 61 by Equal Employment Opportunity Commission. (Chandy, Sunu). (KAH) (Entered: 03/03/2009)
75 ORDER granting in part and denying in part 51 Sealed Motion; granting in part and denying in part 57 Motion to Compel; granting in part and denying in part 68 Motion to Compel; granting in part and denying in part 69 Motion to Compel. Please refer to the Order for details. Signed by Hon. Marian W. Payson on 3/9/09. (RE) (Entered: 03/09/2009)
76 AFFIDAVIT (Court Requested Redacted Affidavit) by Equal Employment Opportunity Commission. (Chandy, Sunu) (Entered: 03/18/2009)
77 LETTER ORDER granting request for a stay of discovery until 4/24/2009 and an extension until 4/27/2009 to file any Fed. R. Civ. P. 72(a) review and appeal of the Court's 3/9/2009 Order. Signed by Hon. Marian W. Payson on 3/20/2009. (KAH) (Entered: 03/20/2009)
NOTICE: Telephone Conference set for 5/5/2009 11:20 AM before Hon. Marian W. Payson. Chambers will initiate the conference call. (KAH) (Entered: 05/05/2009)
78 LETTER ORDER granting defendant Townsend Oil Corporation's request for extension of page limitation to not exceed 30 pages for the memorandum of law in support of summary judgment motion.. Signed by Hon. Charles J. Siragusa on 5/20/09. (KAP) (Entered: 05/21/2009)
79 MOTION for Summary Judgment by Townsend Oil Corporation. (Attachments: # 1 Statement of Undisputed Material Facts, # 2 Appendix Cover Page, # 3 Appendix Attorney Declaration of James S. Wolford, # 4 Appendix Exhibit 1, # 5 Appendix Exhibit 2, # 6 Appendix Exhibit 3, # 7 Appendix Exhibit 4 − Part 1 of 12, # 8 Appendix Exhibit 4 − Part 2 of 12, # 9 Appendix Exhibit 4 − Part 3 of 12, # 10 Appendix Exhibit 4 − Part 4 of 12, # 11 Appendix Exhibit 4 − Part 5 of 12, # 12

Case: 6:05-cv-6482 As of: 07/13/2018 10:24 AM EDT 9 of 12

05/22/2009 05/26/2009 06/02/2009
06/25/2009 07/22/2009 08/13/2009 08/13/2009 08/13/2009 08/14/2009
08/14/2009

Appendix Exhibit 4 − Part 6 of 12, # 13 Appendix Exhibit 4 − Part 7 of 12, # 14 Appendix Exhibit 4 − Part 8 of 12, # 15 Appendix Exhibit 4 − Part 9 of 12, # 16 Appendix Exhibit 4 − Part 10 of 12, # 17 Appendix Exhibit 4 − Part 11 of 12, # 18 Appendix Exhibit 4 − Part 12 of 12, # 19 Appendix Exhibit 5 − Part 1 of 4, # 20 Appendix Exhibit 5 − Part 2 of 4, # 21 Appendix Exhibit 5 − Part 3 of 4, # 22 Appendix Exhibit 5 − Part 4 of 4, # 23 Appendix Exhibit 6, # 24 Appendix Exhibit 7 − Part 1 of 4, # 25 Appendix Exhibit 7 − Part 2 of 4, # 26 Appendix Exhibit 7 − Part 3 of 4, # 27 Appendix Exhibit 7 − Part 4 of 4, # 28 Appendix Exhibit 8 − Part 1 of 3, # 29 Appendix Exhibit 8 − Part 2 of 3, # 30 Appendix Exhibit 8 − Part 3 of 3, # 31 Appendix Exhibit 9, # 32 Certificate of Service)(Wolford, James) (Entered: 05/22/2009)
80 MEMORANDUM OF LAW IN SUPPORT OF 79 MOTION for Summary Judgment by Townsend Oil Corporation. (Attachments: # 1 Certificate of Service)(Wolford, James) Modified text on 5/26/2009 (TO). (Entered: 05/22/2009)
E−Filing Notification: revised docket text of 80 Memorandum in support to accurately reflect docket event and text (TO) (Entered: 05/26/2009)
81 AMENDED SCHEDULING/CASE MANAGEMENT ORDER (Please Note: This docket text may not contain the entire contents of the attached Order. It is your responsibility to read the attached Order and download it for future reference. Direct any questions to the Chambers of the Judge who entered this Order.) 6/18/2009 Status Conference adjourned without date. Court's 1/30/2009 Amended Scheduling Order 73 stayed pending decision by the district court on Townsend Oil Corporation's pending summary judgment motion. Counsel for Townsend to notify Court in writing within ten days of the district court's decision on the pending summary judgment motion to schedule a status conference. Signed by Hon. Marian W. Payson on 6/2/2009. (KAH) (Entered: 06/04/2009)
82 ORDER, (Responses due by 7/24/2009, Replies due by 8/24/2009., Motion Hearing set for 12/3/2009 03:00 PM before Hon. Charles J. Siragusa.). Signed by Hon. Charles J. Siragusa on 6/22/09. (TO) (Entered: 06/26/2009)
83 LETTER ORDER re 79 MOTION for Summary Judgment filed by Townsend Oil Corporation granting plaintiff's request for extension of time. ( EEOC's response due by 8/14/2009 Defendant Townsend's reply is due by 9/28/2009.EEOC's further reply to cross−motion is due 10/23/09.). Signed by Hon. Charles J. Siragusa on 7/21/09. (KAP) (Entered: 07/22/2009)
84 Reply Memo of law in opposition to 79 and in support of 87 Cross MOTION for Partial Summary Judgment by Equal Employment Opportunity Commission.(Chandy, Sunu) Modified text on 8/14/2009 (TO). (Entered: 08/13/2009)
85 Plaintiff EEOC's Rule 56.1 response to Townsned's undisputed material facts and Plaintiff's supplemental undisputed facts (Chandy, Sunu) Modified on 8/14/2009 (TO). (Entered: 08/13/2009)
86 DECLARATION of Sunu Chandy in opposition to 79 MOTION for Summary Judgment and in support of 87 cross motion for partial summary judgment by Equal Employment Opportunity Commission. (Attachments: # 1 Certificate of Service)(Chandy, Sunu) Modified text on 8/14/2009 (TO). (Entered: 08/13/2009)
E−Filing Notification: Document filed improperly as a motion. Court terminated motion and modified docket text to correctly reflect filing event. No action required. 86 Cross MOTION for Summary Judgment (Chandy Declaration), 84 Cross MOTION for Summary Judgment, 85 Cross MOTION for Summary Judgment (Rule 56.1 Response and Supplemental Undisputed Facts), E−Filing Notification: Incorrect event used to electronically file document. For future reference, use Memo in support, declaration and statement of facts event. No action required. 86 Cross MOTION for Summary Judgment (Chandy Declaration), 84 Cross MOTION for Summary Judgment, 85 Cross MOTION for Summary Judgment (Rule 56.1 Response and Supplemental Undisputed Facts) (TO) (Entered: 08/14/2009)
87 Cross MOTION for Summary Judgment (*Notice* of Cross−Motion) by Equal Employment Opportunity Commission.(Chandy, Sunu) (Entered: 08/14/2009)

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08/17/2009 08/17/2009 08/17/2009 09/28/2009 10/22/2009 12/03/2009
01/14/2010
01/28/2010 02/25/2010 03/09/2010 03/16/2010 09/21/2010 10/05/2010 10/18/2010

NOTICE of MANUAL FILING unredacted copies by Equal Employment Opportunity Commission of 84 , 85 and 86 to be retained in sealed record room (TO) (Entered: 08/17/2009)
E−Filing Notification: No proof of service. Action required: File proof of service re 87 (TO) (Entered: 08/17/2009)
88 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission (Chandy, Sunu) (Entered: 08/17/2009)
89 REPLY to Response to Motion re 79 MOTION for Summary Judgment filed by Townsend Oil Corporation. (Attachments: # 1 Certificate of Service)(Wolford, James) (Entered: 09/28/2009)
90 REPLY to Response to Motion for Partial Summary Judgment finding that Townsend is a Title VII Successor Defendant filed by Equal Employment Opportunity Commission. (Chandy, Sunu) (Entered: 10/22/2009)
91 Minute Entry for proceedings held before Hon. Charles J. Siragusa: Suan Chandy appearing on behalf of plaintiff. Michael Wolford appearing on behalf of defendant Townsend Oil Corporation. Motion Hearing held on 12/3/2009 re 79 Motion for Summary Judgment by Townsend Oil Corporation and 87 Cross Motion for Summary Judgment by Equal Employment Opportunity Commission. Motions Submitted: 79 Motion for Summary Judgment by Townsend Oil Corporation and 87 Cross Motion for Summary Judgment by Equal Employment Opportunity Commission. Court to render written decision. (Court Reporter Karen Bush.) (KJA) (Entered: 12/04/2009)
92 DECISION AND ORDER granting in part and denying in part 79 Motion for Summary Judgment; granting in part and denying in part 87 Motion for Summary Judgment. Townsends summary judgment motion [#79] is granted as to Plaintiffs claim for punitive damages, but is otherwise denied. Plaintiffs cross−motion for summary judgment [#87] is denied to the extent that it seeks a ruling that Townsend may be held liable for punitive damages, but it otherwise granted. Signed by Hon. Charles J. Siragusa on 1/13/10. (KAP) (Entered: 01/14/2010)
NOTICE: Telephone Conference set for 3/4/2010 at 11:40 AM before Hon. Marian W. Payson. Parties are directed to call chambers at (585) 613−4080 promptly at 11:40 AM to be connected into the conference call. (KAH) (Entered: 01/28/2010)
NOTICE: The Status Conference set for 3/4/2010 at 11:40 AM before the Hon. Marian W. Payson is adjourned without date. Parties are directed to submit by no later than 3/5/2010, a joint letter regarding the status of settlement negotiations. (KAH) (Entered: 02/25/2010)
NOTICE: Telephone Conference set for 3/11/2010 at 4:30 PM before Hon. Marian W. Payson. Parties are directed to call chambers at (585) 613−4080 promptly at 4:30 PM to be connected into the conference call. (KAH) (Entered: 03/09/2010)
93 ORDER (By 3/31/2010, each party shall submit directly to chambers a confidential settlement report.) Signed by Hon. Marian W. Payson on 3/16/2010. (KAH) (Entered: 03/16/2010)
94 NOTICE of Appearance by Judith Ann Biltekoff on behalf of Equal Employment Opportunity Commission (Biltekoff, Judith) (Entered: 09/21/2010)
95 NOTICE of Appearance by Delia Dianna Cadle on behalf of Equal Employment Opportunity Commission (Cadle, Delia) (Entered: 10/05/2010)
96 AMENDED SCHEDULING ORDER (Please Note: This docket text may not contain the entire contents of the attached Order. It is your responsibility to read the attached Order and download it for future reference. Direct any questions to the Chambers of the Judge who entered this Order.) Status Conference set for 1/20/2011 at 11:40 AM before Hon. Marian W. Payson. Motions to Compel Discovery due by 1/31/2011. Fact Discovery to be completed by 2/28/2011. Plaintiff Expert Witness ID due by 3/31/2011. Defendant Expert Witness ID due by 5/2/2011. Expert Discovery to be completed by 6/16/2011. Dispositive Motions due by 8/16/2011. Signed by Hon. Marian W. Payson on 10/18/2010. (KAH) (Entered: 10/18/2010)

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01/20/2011 02/01/2011
03/17/2011 04/08/2011 08/16/2011 09/13/2011 09/13/2011 09/13/2011 09/13/2011 09/13/2011 09/13/2011 09/14/2011
09/15/2011 11/09/2011

97 Minute Entry for proceedings held before Hon. Marian W. Payson: Status Conference held on 1/20/2011. Appearances: Nora Curtin, Esq. and Delia D. Cadle, Esq. for plaintiff; James Wolford, Esq. and Elizabeth Cordello, Esq. for defendant (CAM) (Entered: 01/27/2011)
98 LETTER ORDER granting request. Fact discovery shall be completed, and all motions to compel fact discovery filed, by no later than 3/31/2011. All other deadlines in the current scheduling order remain in force. (Fact Discovery to be completed by 3/31/2011.) Signed by Hon. Marian W. Payson on 2/1/2011. (KAH) (Entered: 02/03/2011)
99 LETTER ORDER granting request to conduct one non−party deposition by no later than 6/30/2011. Signed by Hon. Marian W. Payson on 3/17/2011. (KAH) (Entered: 03/18/2011)
Test docket event − please disregard (JMM) (Entered: 04/08/2011)
100 MOTION for Summary Judgment by Nichols Gas and Oil, Inc.. (Attachments: # 1 Statement of Undisputed Facts, # 2 Exhibit A through u, # 3 Affidavit Affidavit of Elizabeth A. Cordello with Attached Exhibit A, # 4 Memorandum in Support, # 5 Certificate of Service)(Cordello, Elizabeth) (Entered: 08/16/2011)
101 RESPONSE in Opposition re 100 MOTION for Summary Judgment Declaration of Juudith A. Biltekoff filed by Equal Employment Opportunity Commission. (Biltekoff, Judith) (Entered: 09/13/2011)
102 CONTINUATION OF EXHIBITS by Equal Employment Opportunity Commission. Exhibits A−V To the Declaration of Judith A. Biltekoff in Opposition to Motion for Summary Judgment filed by Equal Employment Opportunity Commission. (Biltekoff, Judith) (Entered: 09/13/2011)
103 RESPONSE in Opposition re 100 MOTION for Summary Judgment EEOC's Supplemental Statement of Undisputed Facts in Opposition to Motion for Summary Judgment filed by Equal Employment Opportunity Commission. (Biltekoff, Judith) (Entered: 09/13/2011)
104 RESPONSE in Opposition re 100 MOTION for Summary Judgment EEOC's Response to Defendant's Statement of Undisputed Material Facts in Opposition to Motion for Summary Judgment filed by Equal Employment Opportunity Commission. (Biltekoff, Judith) (Entered: 09/13/2011)
105 MEMORANDUM in Opposition re 100 MOTION for Summary Judgment EEOC's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment filed by Equal Employment Opportunity Commission. (Biltekoff, Judith) (Entered: 09/13/2011)
106 RESPONSE in Opposition re 100 MOTION for Summary Judgment EEOC's Certificate of Service filed by Equal Employment Opportunity Commission. (Biltekoff, Judith) (Entered: 09/13/2011)
E−Filing Notification: Incorrect event used to electronically file document. For future reference, use STATEMENT OF FACTS event. No action required. 103 RESPONSE in Opposition re 100 MOTION for Summary Judgment EEOC's Supplemental Statement of Undisputed Facts in Opposition to Motion for Summary Judgment. Incorrect event used to electronically file document. For future reference, use CERTIFICATE OF SERVICE event. No action required. 106 RESPONSE in Opposition re 100 MOTION for Summary Judgment EEOC's Certificate of Service filed by Equal Employment Opportunity Commission. (Biltekoff, Judith) (TO) (Entered: 09/14/2011)
107 MOTION SCHEDULING ORDER re 100 MOTION for Summary Judgment filed by Nichols Gas and Oil, Inc., ( Responses due by 10/21/2011. Replies due by 11/21/2011. Oral Argument set for 5/17/2012 03:00 PM before Hon. Charles J. Siragusa.). Signed by Hon. Charles J. Siragusa on 9/15/11. (KAP) (Entered: 09/15/2011)
108 AUTOMATIC REFERRAL to Mediation, mediation session will be held on 11/30/2011 at 1:30pm (see order for further information).signed by Charles J. Siragusa on 11/8/2011.(TO) (Entered: 11/10/2011)

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11/15/2011 12/08/2011 12/21/2011 05/17/2012
05/23/2012 05/29/2012
06/13/2012 06/14/2012
09/11/2012 09/11/2012 04/06/2016

109 LETTER ORDER re 100 MOTION for Summary Judgment filed by Nichols Gas and Oil, Inc. granting defendant's request for extension of time. ( Replies due by 12/21/2011.). Signed by Hon. Charles J. Siragusa on 11/14/11. (KAP) (Entered: 11/15/2011)
110 Mediation Certification by U.S. Magistrate Judge Victor E. Bianchini.(JEC) (Entered: 12/08/2011)
111 REPLY to Response to Motion re 100 MOTION for Summary Judgment filed by Nichols Gas and Oil, Inc.. (Attachments: # 1 Certificate of Service)(Cordello, Elizabeth) (Entered: 12/21/2011)
112 Minute Entry for proceedings held before Hon. Charles J. Siragusa: Judith Ann Biltekoff appearing on behalf of plaintiff. Elizabeth Cordello appearing on behalf of defendant Nichols Gas and Oil, Inc. Motion Hearing held on 5/17/2012 re 100 MOTION for Summary Judgment filed by Nichols Gas and Oil, Inc. Motions Submitted: 100 MOTION for Summary Judgment. Court reserves and will issue a written decision. (KJA) (Entered: 05/18/2012)
NOTICE of Hearing: Telephone status Conference set for 5/29/2012 03:00 PM before Hon. Charles J. Siragusa. Attorney Elizabeth Cordello is to conference in Attorney Judith Biltekoff and then place call to the Court at 585−613−4050.(KAP) (Entered: 05/23/2012)
113 Minute Entry for proceedings held before Hon. Charles J. Siragusa: Judith Biltekoff and Nora Curtin appearing on behalf of plaintiff. Elizabeth Cordello appearing on behalf of defendant Nichols Gas and Oil, Inc. Telephone Conference held on 5/29/2012. Plaintiff's counsel to advise Court and counsel for defendant, Nichols Gas and Oil, Inc., by letter faxed on 5/30/2012 whether or not plaintiff will accept defendant's settlement offer. (Court Reporter Molly Pricola/Alliance.) (KJA) (Entered: 05/31/2012)
NOTICE of Hearing: Status Conference set for 6/14/2012 02:00 PM before Hon. Charles J. Siragusa. Counsel is directed to arrange conference call and then conference in the Court by calling 585−613−4050.(KAP) (Entered: 06/13/2012)
114 Minute Entry for proceedings held before Hon. Charles J. Siragusa: Judith Biltekoff and Nora Curtain appearing on behalf of plaintiff via telephone. Elizabeth Cordello appearing on behalf of defendant Nichols Gas and Oil, Inc. via telephone. James Wolford appearing on behalf of defendant Townsend Oil Corporation via telephone. Status Conference held on 6/14/2012. Mr. Wolford to notify the Court by 2:30 PM on 6/15/2012 as to his client's decision. If case is not resolved, Court will set a trial date. (Court Reporter Karen Bush.) (KJA) (Entered: 06/18/2012)
115 CONSENT DECREE. Signed by Hon. Charles J. Siragusa on 9/5/2012. (TO) (Entered: 09/11/2012)
116 Sealed Document RE 115 . (TO) (Entered: 09/11/2012)
File is archived at the Federal Records Center. Location information:

Accession 021−15−0907Location KLS−01−0B−048−1−003−01−006Box 12

To obtain copies of documents for a fee, you may contact the Federal Records Center directly at their website: http://www.archives.gov/frc/. They will require the location information contained in this entry. You may also contact the Clerk's office to have the file shipped to the Court for your review or for copies of documents. Please refer to the current fee schedule to determine the cost to obtain documents or order the file for review. The fee schedule is located on our Public Web Site: http://www.nywd.uscourts.gov/fee−schedule. (JB) (Entered: 04/06/2016)