IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

WHIRLPOOL CORPORATION,

)

)

)

Defendant.

)

)

CIVIL ACTION NO.
COMPLAINT JURY DEMAND

NATURE OF THE ACTION

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

Civil Rights Act of 1991 to correct unlawful employment practices based on sexual and racial harassment and to provide appropriate relief to Carlota Freeman. The

Commission alleges that Carlota Freeman, a former employee, was subjected to sexual

and racial harassment by a co-worker because of her sex and race, Black, and that her

complaints to her supervisors were ignored by Defendant, causing Ms. Freeman to

suffer serious physical and emotional injuries. 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 Section 706

(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §

2000e-5(f)(1) and (3) ("Title VII") and Section 102 of the Civil Rights Act of 1991,42

U.S.C. § 1981a.

1

Case 3:06-cv-00593 Document 1 Filed 06/09/2006 Page 1 of 6

2. The unlawful employment practices alleged below were committed within the jurisdiction of the United States District Court for the Middle District of Tennessee, Nashville Division.
PARTIES 3. Plaintiff Equal Employment Opportunity Commission ("the Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII and is expressly authorized to bring this action by Section 706 (f)(1) and (3) of Title VII, 42 U.S.C. §2000e-5 (f)(1) and (3). 4. At all relevant times, Defendant Whirlpool Corporation ("Employer"), a foreign Corporation, has been continuously doing business in the State of Tennessee and the City of LaVergne and has continuously had at least 15 employees. 5. At all relevant times, Defendant Employer has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Carlota Freeman filed a charge with the Commission alleging violations of Title VII by Defendant Employer. All conditions precedent to the institution of this lawsuit have been fulfilled.
7. From January through March 26, 2004, Defendant Employer engaged in unlawful employment practices at its LaVergne, Tennessee facility, in violation of Section 703 (a) of Title VII, 42 U.S.C. § 2000e-2(a).
2
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8. In January, 2004, Carlota Freeman was recalled to work from layoff by Defendant Employer and assigned to a work station near the work station of Willie Baker. Ms. Freeman and Mr. Baker did not know each other prior to this.
9. From the first week that she returned to work, Ms. Freeman was subjected to continuing harassment by Mr. Baker because of her sex and race. Ms. Freeman reported this harassment to her supervisor on many occasions, but Defendant failed to stop Mr. Baker's harassing conduct. The harassing conduct and Defendant's failure to take appropriate actions to stop it caused Ms. Freeman to suffer great emotional distress and adversely affected her working conditions.
10. On or about March 26, 2004, Mr. Baker, without any provocation from Ms. Freeman, struck Ms. Freeman in the face and knocked her down, then continued to pummel her when she was on the ground. Co-workers managed to extricate Ms. Freeman from Mr. Baker's grasp and separate them. Ms. Freeman suffered serious injuries due to this assault.
11. Ms. Freeman suffered serious physical and emotional injuries due to the assault by Mr. Baker. Ms. Freeman has been diagnosed with post-traumatic stress disorder caused by the assault and has been unable to return to employment.
12. The effect of the practices complained of in paragraphs 9 - 11 above has been to deprive Carlota Freeman of equal employment opportunities and otherwise adversely affect her status as an employee because of her race and sex.
13. The unlawful employment practices complained of in paragraphs 9 - 11 above were intentional.
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14. The unlawful employment practices complained of in paragraphs 9 - 11 above were done with malice or reckless indifference to the federally protected rights of Carlota Freeman.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant Employer, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in employment practices that discriminate on the basis of race and sex. B. Order Defendant Employer to institute and carry out policies, practices, and programs which provide protection against discrimination based on race and sex, and which eradicate the effects of its past and present unlawful employment practices. C. Order Defendant Employer to make whole Carlota Freeman by providing appropriate compensatory damages for her pecuniary losses with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices. D. Order Defendant Employer to make whole Carlota Freeman by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in paragraphs 9 - 11 above, including emotional pain, suffering, inconvenience, humiliation, and loss of enjoyment of life, in amounts to be determined at trial.
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E. Order Defendant Employer to pay Carlota Freeman punitive damages for its malicious and reckless conduct described in paragraphs 9 - 11 above, in amounts to be determined at trial.
F. Grant such further relief as the Court deems necessary and proper in the public interest.
G. Award the Commission its costs of this action.
5 Case 3:06-cv-00593 Document 1 Filed 06/09/2006 Page 5 of 6

JURY TRIAL DEMAND

The Commission demands a jury trial on all questions of fact raised by the

Complaint.

Respectfully submitted,
JAMES LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel

&7; ~~-~~ 1; <;tJJ)
Acting Regional Attorney TN Bar No. 11730
JJ;;;1MI!Jf!j
STEVEN W. DILLS Trial Attorney TN Bar No. 11970
g;JjJ

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 50 Vantage Way, Suite 202 Nashville, TN 37228 (615) 736-5784
6
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE,
NASHVILLE DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, and CARLOTA FREEMAN,
Intervening Plaintiff,
V.
WHIRLPOOL CORPORATION, Defendant.

) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 3:06-0593
) ) ) ) ) ) )

COMPLAINT

Comes now Intervening Plaintiff, Carlota Freeman, and for cause would respectfully showy to the Court as follows:

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 Section 706(~)(1) and (3)

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

("Title VII") and Section 102 of the Civil Rights Act of 1991,42 U.S.C. § 1981a.

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

jurisdiction of the United States District Court for the Middle District of Tennessee, Nashville

Division.

Case 3:06-cv-00593 Document 9 Filed 07/24/2006 Page 1 of 6

PARTIES 3. Intervening Plaintiff, Carlota Freeman, has the right under Section 706(f)(1) of Title VII of the Civil Rights Act of 1964 to join in this litigation as a private party. Other parties are the Equal Employment Opportunity Commission as original Plaintiff, and Defendant Whirlpool Corporation, a foreign Corporation, doing business in the State of Tennessee and the City of LaVergne. At the time of Ms. Freeman’s employment with Whirlpool, they had substantially more than fifteen (15) employees and were engaged in interstate commerce.
STATEMENT OF CLAIMS 4. Carlota Freeman instituted a complaint with the Equal Employment Opportunity Commission against the Defendant Whirlpool on August 19, 2004, a copy of which is attached hereto as Exhibit 1. 5. From January through March 26, 2004, Defendant Whirlpool engaged in unlawful employment practices at its LaVergne, Tennessee facility, in violation of Section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a). 6. In January 2004, Carlota Freeman was recalled to work fi’om layoff by Defendant Whirlpool and assigned to a workstation near the workstation of Willie Baker. Ms. Frccman and Mr. Baker did not know each other prior to this. 7. From the first week that she returned to work, Ms. Freeman was subjected to continuing harassment by Mr. Baker because of her sex and race. Ms. Freeman reported this harassment to her supervisor on many occasions, but Defendant failed to stop Mr. Baker’s harassing conduct. The harassing conduct and Defendant’s failure to take reasonable and appropriate actions to stop it caused Ms. Freeman to suffer great emotion al distress and
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adversely affected her working conditions. In fact, Ms. Freeman’s supervisor was so callous on one occasion when she told her supervisor, Mr. Fisher, about the sexually explicit statements that Mr. Baker was making to her that maybe she should just go ahead and "f__k him and just get it over with."
8. On or about March 26, 2004, Mr. Baker, without any provocation from Ms. Freeman, struck Ms. Freeman in the face and knocked her down, then continued to pummel her when she was on the ground. Co-workers managed to extricate Ms. Freeman from Mr. Baker’s grasp and separate them. Ms. Freeman suffered serious injuries due to this assault and feared for her life both during the assault and afterward based on Mr. Baker’s threats to kill her.
9. Ms. Freeman suffered serious physical and emotion injuries due to the assault by Mr. Baker. Ms. Freeman has been diagnosed with post-traumatic stress disorder caused by the assault and has been unable to return to employment. Ms. Freeman’s great emotional distress has caused her to seek care from mental health care providers, which she has needed in the past and will continue to need in the future. Ms, Freeman’s emotional distress and depression also resulted in the demise of her long-term and previously happy marriage.
10. The effect of the practices complained of in paragraphs 7-9 above has been to deprive Carlota Freeman of equal employment opportunities and otherwise adversely affect her status as an employee because of her race and sex.
11. The unlawful employment practices complained of in paragraphs 7-9 above were intentional.
Case 3:06-cv-00593 Document 9 Filed 07/24/2006 Page 3 of 6

12. The unlawful employment practices complained of in paragraphs 7-9 above were done with malice or reckless indifference to the federally protected rights of Carlota Freeman.
PRAYER FOR RELIEF 1. Carlota Freeman asks this Court to award her back pay, compensatory damages for past and future non-pecuniary losses and for pecuniary losses together with prejudgment interest in amounts to be determined at trial for both her wage loss and her emotional pain, suffering, inconvenience, humiliation, and loss of enjoyment of life. 2. For punitive damages against the Employer Whirlpool for their reckless indifference to the misconduct of their employee and their failure to rectify such. 3. For such further and general relief to which she may be entitled, including her reasonable attorney’s fees, discretionary costs, expert witness costs and the costs of this cause.
Respectfully submitted,
Attorneys for Carlota Freemen The Wind in the Willows Mansion 2205 State Street Nashville, Tennessee 37203 (615) 320-0600 (615) 320-9933 (Fax)
Case 3:06-cv-00593 Document 9 Filed 07/24/2006 Page 4 of 6

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

CARLOTA FREEMEN,

)

)

Intervenor Plaintiff,

)

)

v.

)

)

WHIRLPOOL CORPORATION,

)

)

Defendant.

)

3:06-0593 Judge John T. Nixon

MEMORANDUM ORDER This is a Title VII and 42 U.S.C. § 1981 action for race and sex harassment brought against Whirlpool Corporation (“Whirlpool” or “Defendant”) by Plaintiff Equal Employment Opportunity Commission (“EEOC”) and Intervening Plaintiff Carlota Freeman (“Freeman”) (collectively, “Plaintiffs”). A bench trial was held in this Court on February 24-27, 2009. Each party submitted their proposed findings of fact and conclusions of law on April 17, 2009 (Doc. Nos. 179, 180, & 184). Also pending is Defendant’s Motion for Judgment on Partial Findings (“Defendant’s Motion”) (Doc. No. 164), to which the EEOC and Freeman submitted responses (Doc. Nos. 178 & 181). Defendant offered that Motion at the close of Plaintiffs’ proof, at which time the Court deferred a ruling on that Motion. The Court will make its findings of fact and
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conclusions of law on the entire record submitted, therefore the Court DENIES Defendant’s

Motion. For the reasons below, the Court finds that Plaintiffs have met their burden of

persuasion and therefore ENTERS JUDGMENT in favor of Plaintiffs.

I.

FINDINGS OF FACT

Plaintiff Carlotta Freeman, an African-American woman, began work at the Whirlpool

Corporation’s LaVergne, Tennessee facility in December 1989. In January 2004, Freeman was

working on Line 4 in the room air conditioner department. Also in January 2004, Willie Baker,

a white man, was transferred to Line 4. Freeman and Baker worked in relatively close proximity

to each other on the assembly line. Kim Wheeler, a white woman, was group leader of Line 4, a

position without managerial duties but responsible for covering for other employees when they

went to the restroom and making sure that the line ran smoothly. Chinica Lillard, an African-

American woman, also worked on Line 4. Charles “Charlie” Fisher was the Manufacturing

Supervisor directly responsible for Line 4. Manufacturing Supervisor Jimmy Lovelace was

Fisher’s boss. Curt Gamauf was Human Resources Manager for the LaVergne Division.

Employees received two ten minute breaks and one thirty minute lunch break per shift.

Freeman and Wheeler usually went outside to the same break area to smoke and talk together.

After starting work on Line 4, Baker began taking his breaks in the same area and talking with

Freeman and Wheeler during those breaks. Generally sociable, Freeman was initially friendly

with Baker. However, Freeman testified that Baker began staring at her, making her feel

uncomfortable, from the very first day they worked together. Within a few days Baker began

making inappropriate sexual and racial comments to Freeman during breaks. Baker, who

described himself as “a big flirt,” began interrupting break time conversations between Freeman

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and Wheeler. Baker would sing songs to Carlotta, about “my sweet Carolina” or “my Carolina in the morning,” directing them at Freeman by stating: “Carlotta, I wake up every morning and I sing this song about you.” Wheeler testified that she heard Baker sing these songs and that initially Freeman rolled her eyes at Baker and his singing. Wheeler also testified that eventually Freeman made it clear to Baker, by ignoring him and then moving away from him in the break area, that she did not want to be friends with him.
Undeterred, over the next two months Baker made sexually-explicit and racially-charged statements to Freeman. These statements included: discussion of the anatomies of black versus white men; graphic detail of black versus white men’s variable bedroom skills; asking if she had ever been with a white man; Freeman’s likelihood of changing her mind about black men once she had sex with Baker; that Baker had never been with a black woman before; that he had dreamed about her that night; and that she was his girlfriend. Baker also made repeated comments about Freeman’s appearance and clothes, including: “You know you’re pretty?”; that she had a cute little body; that she looked good; that she had on a pretty thong; and did she wear thongs all the time. Baker also frequently sang songs to Freeman, with lyrics such as “fuck you when I wake up every morning and I sing this song about you,” in addition to the “Sweet Caroline” songs. Freeman testified that Baker made these comments “day in and day out,” both on the line and on breaks. Freeman told Baker to “leave me alone.”
Freeman repeatedly complained to her direct supervisor, Charlie Fisher, about Baker’s comments and behavior, including his staring. This went on for a period of two months. Fisher would assure Freeman that he would do something about Baker’s behavior and suggested that Freeman ignore Baker. However, Fisher did nothing to investigate Freeman’s allegations and
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did not discuss them with Baker or confront him in any way. On March 19, Baker swore at Fisher while he was directing work on the assembly line,
for which Fisher verbally reprimanded Baker. That same day, while driving home from work, Fisher witnessed Baker and an African-American employee, Tim Swader, in a heated argument that resulted in police intervention at a gas station near work. Fisher called the Human Resources Manager, Curt Gamauf, and left a message about both those incidents. Gamauf did not return Fisher’s phone call.
The following Monday, March 22, Baker used racial slurs while on the Line, directing comments such as “I’m tired of you niggers” and “I’m killing you black motherfuckers” at Freeman and her co-worker Lillard. Freeman felt threatened and reported Baker’s comments to Kim Wheeler, who reported the same to Fisher. Fisher called Baker, Freeman, and Lillard separately into his office to discuss the matter. Manufacturing Supervisor Jimmy Lovelace and union steward Richard Eskildsen were also present at these meetings. Baker reported feeling threatened by his co-workers on the Line and asked to be moved to another area. Freeman reported that Baker harassed her and that she felt threatened when he stared at her and mumbled. Fisher told Baker and Freeman to ignore the other and not talk except if necessary. Lillard was reprimanded for using her cell phone on the Line. Despite this warning, when Fisher saw Freeman and Baker both go to the break area at the same time directly after the meeting, Fisher did not follow-up to make sure that the two were not having any contact. In fact, Fisher lied and told Lovelace that he had seen the two talking and laughing at that break.
Instead, during the break Baker walked up to Freeman and tried to talk with her. When she told him they weren’t supposed to be talking, he became angry and then sang the profanity-
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laced song to her. Freeman walked away from him. On her way back into the factory, Freeman saw Fisher and reported the continuing conduct. Fisher responded, “Why don’t you just go ahead and fuck him and get it over with? Then maybe he would leave you alone.” Freeman was very upset by this remark.
Baker’s harassment of Freeman continued throughout the week, and Freeman continued to complain about that harassment to Fisher. Although Fisher called Gamauf to report his meetings with Baker, Freeman and Lillard, Gamauf did not involve himself in the situation. Fisher told Gamauf that Baker and Freeman had reconciled.
Baker also reported to Fisher that he felt harassed by his co-workers and that if Fisher didn’t do something about it he was afraid that someone would get hurt and he, Baker, would lose his job. Fisher assured Baker that he would take care of the situation; however, Fisher did nothing to address Baker’s concerns. On Friday, March 26, Baker told the Director of Human Resources, Fred Contreras, that he felt threatened by Freeman and that he had already reported this to Fisher. Contreras did not believe that Freeman was threatening to Baker, but thought that Baker could be the target of co-worker harassment of some kind. He called Gamauf to look into the situation.
Later that day, when he returned to the Line from a restroom break, Baker walked up to Freeman and punched her in the face. The blow knocked Freeman onto the assembly line, where she was hit by air conditioners coming down the line. Baker continued to try to punch Freeman as Lillard pulled her over the Line. Lillard got Freeman to the floor on the other side of the Line, at which point Baker picked up a steel valve and threw it at the two women, yelling, “I’m going to get you too,” at Lillard. Fisher and Lovelace responded to the scene. Freeman was taken to
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the first aid office. Lovelace took Baker to Gamauf’s office, where Baker said that Kim Wheeler told him that Freeman had a gun, and so he hit Freeman. Gamuaf suspended Baker after that meeting and told him to leave the plant before the police arrived. After an investigation, Gamauf terminated Baker for gross misconduct. Although Freeman worked the next day, she then took an open-ended leave of absence. Freeman resigned from Whirlpool, upon the advice of her psychiatrist and psychologist, in December 2004.
Formerly a cheerful, upbeat person, after the attack Freeman became increasingly withdrawn. Several medical experts testified that she has developed chronic post-traumatic stress disorder (“PTSD”). She can no longer participate in normal activities, including grocery shopping and attending church, because she has panic attacks. Freeman filed for divorce from her husband of many years because she felt that she could no longer be a good wife to him, although he did not want to separate. Friends and relatives reported Freeman’s dramatic change in personality after the incidents at Whirlpool. Her daughter testified to how Freeman would wake up screaming in the middle of the night. Freeman has been receiving mental health treatment since 2004 and her doctors do not believe that she can work again or, in fact, that her condition will ever improve. II. CONCLUSIONS OF LAW
Jurisdiction is proper in this Court under 28 U.S.C. §§ 1331, 1343, and 1345. Plaintiffs EEOC and Freeman allege that Defendant impermissibly discriminated against Freeman in violation of Title VII and 42 U.S.C. § 1981 by not responding adequately to coworker Baker’s racial and sexual harassment of Freeman, thereby creating a hostile work environment that culminated in a physical assault on Freeman. Defendants dispute the content of
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the employees’ interactions, the steps taken by Freeman to report those interactions, and the propriety of Defendant’s response to the alleged harassment.
Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against any individual with respect to his or her “compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). A Title VII violation may be established when a supervisor impermissibly discriminates against an employee on the basis of a protected characteristic. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64 (1986). A Title VII violation may occur in the absence of an economic effect on the employee when “the workplace is permeated with discriminatory intimidation, ridicule, and insult . . . that is sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working environment.” Id. To establish a prima facie case of coworker hostile work environment under Title VII, Plaintiff must show that the harassment was: (1) unwelcome; (2) based on a protected characteristic such as race or sex; (3) sufficiently severe or pervasive to affect the terms, conditions, or privileges of employment; and (4) that the employer knew or should have known of the harassment and failed to take immediate and appropriate corrective action. See Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 332 (6th Cir. 2008) (sexual harassment); Bailey v. USF Holland, Inc., 526 F.3d 880, 885 (6th Cir. 2008) (racial harassment). Whether harassment is sufficiently severe or pervasive to establish a hostile work environment is “quintessentially a question of fact.” Hawkins, 517 F.3d at 333 (quoting Jordan v. City of Cleveland, 464 F.3d 584, 597 (6th Cir. 2006)).
Courts must examine the totality of the circumstances to determine whether or not a
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hostile work environment exists. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). Factors that may be considered when assessing the circumstances of a potential hostile work environment include: (1) the frequency of the harassing conduct; (2) the severity of the harassing conduct; (3) whether the conduct is physically threatening or humiliating or merely an offensive utterance; and (4) whether the conduct unreasonably interferes with an employee’s work performance. Id.
The factfinder evaluates the harassing conduct by both an objective and a subjective standard: “[t]his requires a plaintiff to establish both that the harassment was ‘severe or persuasive’ enough to create an environment that a reasonable person would find objectively hostile or abusive, and that he or she subjectively regarded the environment as abusive.” 517 F.3d at 333; 510 U.S. at 21-22. While psychological harm is not required to establish a hostile work environment claim, “the effect on the employee’s psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive.” 510 F.3d at 23. A. Unwelcome Harassment Based on Race and Sex
It is undisputed that Intervening Plaintiff Carlotta Freeman is a member of a protected group as both a woman and as an African American. In addition, Plaintiffs have demonstrated that Freeman was subjected to unwelcome harassment based upon her status as female and African-American.
The Court finds that Willie Baker subjected Freeman to an escalating campaign of racial and sexual harassment that culminated in his physical assault on her on March 26, 2004. Beginning in January 2004, Freeman and Baker worked together on Line 4 at Whirlpool’s
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LaVergne, Tennessee factory. Although Freeman was initially friendly toward Baker, Baker would stare at Freeman, making her feel uncomfortable. Within a few days Freeman made it clear to Baker that she did not wish to be friends with him or talk with him on breaks. However, he persisted in interrupting her conversations with Kim Wheeler and singing profanity-laced songs directed to her with such lyrics as: “fuck you when I wake up every morning and I sing this song about you.” Baker sang songs like this to Freeman daily and made other graphic, racially-offensive and sexually-explicit comments.
According to Wheeler, Freeman tried to avoid interacting with Baker in the break area by telling him “we’re trying to talk” or “leave us alone, Willie.” Eventually Freeman began moving away from that break area in an attempt to avoid Baker. Baker himself testified that he continued to take smoke breaks in the same area as Freeman and Wheeler and continued to try to talk with Freeman even after he knew that she did not want to talk with him. Another worker on Line 4, Chinica Lillard, testified that Baker was constantly “hanging around” Freeman. In fact, after the March 22 meeting in which Fisher told Baker not to have any further non-work related contact with Freeman, Baker immediately began talking with Freeman in the break area, and when she told him that they were not supposed to be talking, Baker responded angrily. He then began singing one of his profanity-laced songs. Freeman immediately left the break area.
The Court finds Freeman’s testimony as to the content of conversations with Baker to be credible. While many of the most graphic statements are uncorroborated, Wheeler testified to hearing Baker sing songs to Freeman and hearing him tell Freeman “you look good today” or “you sure do look good today.” Wheeler also stated that she thought Baker must have a crush on Freeman by the way that he smiled at her and his tone of voice in talking with her. Both
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Wheeler and Lillard agree that Baker hung around Freeman, attempting to talk with her after Freeman made it clear that she no longer wanted to talk with him. Baker denies having made any of these comments; however, the Court does not find Baker’s testimony to be credible on this point. Additionally, Freeman’s best friend from childhood, Delores Hancock Sparks, told the Court that Freeman reported Baker’s graphic comments to her in their weekly telephone conversations.
On March 22, 2004, Baker seemed very angry and while on the line made threatening gestures at both Freeman and Lillard (also African-American), while uttering racial slurs including “you niggers” and “I’m killing you black motherfuckers.” This was the first time Baker uttered racial slurs to Freeman. Group leader Wheeler corroborated that she heard Baker make comments on the line that included use of “nigger” and “black motherfucker” when the other employees in the area included Freeman and Lillard. Previous to these explicit comments, Freeman felt singled out by Baker for other race-based comments, such as that he had a grandchild by a black person, “I don’t have anything against black people but I have a problem with [a black co-worker],” and by confronting black co-workers after they visited Freeman at her workstation, asking them, “Are we cool?”
On March 26, 2004, Baker returned to Line 4 from a restroom break, walked up to Freeman and punched her in the face with his fist. Freeman was knocked onto the moving assembly line. Lillard and Wheeler witnessed the attack. Baker continued to try to punch Freeman as Lillard pulled Freeman away from him across the line. After Lillard pulled Freeman across the line, as Freeman was laying on the floor, Baker picked up a steel valve and threw it at Lillard and Freeman, yelling at Lillard, “I’m going to get you too.” The details of the rest of the
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aftermath of the attack are somewhat confused, but the Court finds the testimony of Wheeler and Lovelace credible as to the fact that co-workers kept Freeman and Baker separated, Freeman was upset, crying and possibly waving her arms, but she did not try to attack Baker. Baker was convicted of this assault in criminal court and referred for psychiatric counseling by that court. B. Sufficiently Severe to Effect the Terms or Conditions of Employment
To qualify as affecting a “term, condition, or privilege of employment” under Title VII, the harassment must be “sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.” 477 U.S. at 64. Teasing, off-hand comments and isolated incidents, except when extremely serious, do not rise to the level of a change in the terms and conditions of employment sufficient to constitute a hostile work environment under Title VII. Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998) (quoting Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998)). In evaluating whether or not a hostile work environment exists, the Court must examine the totality of the circumstances surrounding the alleged harassment. 510 U.S. at 23. Factors to be considered include: (1) the frequency of the harassing conduct; (2) the severity of the harassing conduct; (3) whether the conduct is physically threatening or humiliating or merely an offensive utterance; and (4) whether the conduct unreasonably interferes with an employee’s work performance. Id. The Sixth Circuit explained: “the issue is not whether each incident of harassment standing alone is sufficient to sustain the cause of action in a hostile environment case, but whether–taken together–the reported incidents make out such a case.” Williams v. General Motors Corp., 187 F.3d 553, 562 (6th Cir. 1999).
The Court determines the presence of a hostile work environment based upon both an
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objective determination–was the harassment severe or pervasive enough to create an environment that a reasonable person would find objectively hostile or abusive–and a subjective determination–did the plaintiff herself regard the environment as abusive. 517 F.3d at 333; 510 U.S. at 21-22.
1. The Objective Element A reasonable person would have found that the racially-explicit sexual comments endured by Freeman, culminating in the racist language and assault, constituted a hostile work environment. Baker frequently directed songs and explicit commentary at Freeman. While isolated episodes of teasing or sexual comments do not rise to the level of a hostile work environment, the Court finds that Baker harassed Freeman on an almost daily basis, both during breaks and while he worked in close proximity to her on the Line. As the months wore on, Baker’s harassment became more and more threatening, as he began mumbling and pointing at Freeman and eventually assaulted her. The Sixth Circuit has found that “sexual comments and harassing acts of a ‘continual’ nature are more likely to be deemed pervasive.” 517 F.3d at 333 (citing Abeita v. Transam. Mailings, Inc., 159 F.3d 246, 252 (6th Cir. 1998)). Defendant must strain to assert that the quality and quantity of racially-explicit sexual comments Baker addressed to Freeman before the assault do not meet the objective standard for sexual harassment under Title VII. And although Baker did not utter any blatantly sexual remarks on the day of the assault, the evaluation of a hostile work environment requires an inquiry into the totality of the circumstances and a clear-eyed look at all incidents of harassment, not just those with explicitly sexual content. The Sixth Circuit has held, “we now take this
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opportunity to join our sister circuits and make clear that the conduct underlying a sexual harassment claim need not be overtly sexual in nature. Any unequal treatment of an employee that would not occur but for the employee’s gender may, if sufficiently severe or pervasive under the Harris standard, constitute a hostile environment in violation of Title VII.” 187 F.3d at 565. “[N]on-sexual conduct may be illegally sex-based where it evinces ‘anti-female animus, and therefore could be found to have contributed significantly to the hostile environment’” if the plaintiff can show that “but for the fact of her sex, she would not have been the object of harassment.” Id. Non-sexually explicit harassing behavior that is “directed at women and motivated by discriminatory animus against women satisfies the ‘based on sex’ requirement.” Id. Multiple witnesses describe Baker as mumbling and staring at Freeman and her co-worker Chinica Lillard, also African-American, preceding the assault. After punching Freeman, Baker verbally threatened Lillard as well and threw a pipe at her. The Court finds that the assault was the final harassing act in a campaign of harassment that Baker targeted at Freeman because of her sex. Any reasonable person would find Freeman’s working environment to be hostile and abusive.
Defendant also asserts that Baker’s conduct, if it occurred at all, was not what a reasonable person would find to be race-based harassment. However, the Court finds that much of Baker’s sexual harassment had racialized content, including race-specific slurs, and was addressed to Plaintiff because of her status as an African-American woman. Therefore the Court does not isolate the “racial” from “sexual” harassment here, finding instead that the sexual harassment was racial in nature under the totality of the circumstances test. Additionally, the Court finds Baker’s racially-explicit sexual comments to Freeman to be race-based harassment
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that would not have occurred but-for Freeman’s race and objectively severe enough to qualify under Title VII. See Jackson v. Quanex Corp., 191 F.3d 647, 662 (6th Cir. 1999) (“even though a certain action may not have been specifically racial in nature, it may contribute to the plaintiff’s proof of a hostile work environment if it would not have occurred but for the fact that the plaintiff was African American”).
Additionally, Freeman reports two incidents of racially-explicit harassment: (1) Baker’s threatening gestures and comments like “you niggers” and “I’m killing you black motherfuckers” directed at Freeman and Lillard as they were working on Line 4 on March 22, 2004; and (2) when Freeman, Lillard, and Baker were called into Fisher’s office that same day because of those remarks, Baker walked by Freeman’s desk and said that if he was fired, “he was killing you black motherfuckers.” Wheeler corroborates that Baker made a statement to her about “all the motherfucking niggers in here” and that she assumed that Baker was referring to Freeman and Lillard with that comment because they were the only African-American workers in the area at the time. No one but Freeman reports the second threat. Baker spoke with Wheeler about his concern that some of the African-American workers had formed a gang and that one co-worker in particular had brought a gun to the factory. Racial epithets in the workplace may “create an inference that racial animus motivated other conduct as well.” 191 F.3d at 662 (quoting Carter v. Chrysler Corp., 173 F.3d 693, 701 (8th Cir. 1999)). Although Baker did not make a racially-explicit comment to Freeman before the assault, Baker’s attack on Freeman was motivated by racial animus, as suggested by his conviction, as confided to a white co-worker, that African-American co-workers had banded together to threaten him, along with his use of racial epithets in the days just prior to the attack. These incidents are severe and meet
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the objective standard for race-based harassment. In addition, harassment that involves “an element of physical invasion” is considered to
be more severe than harassing comments alone. 517 F.3d at 334. Other circuits have found single incidents of threatening conduct to be sufficiently severe to create an actionable hostile work environment on their own. See Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1072 (10th Cir. 1998) (incident where customer pulled plaintiff’s hair, grabbed her breast and placed his mouth on it sufficiently severe); Smith v. Sheahan, 189 F.3d 529, 533 (7th Cir. 1999) (co-worker assaulted plaintiff by pinning her against the wall, twisting her wrist to the point that it needed surgical correction, while threatening her and calling her a “bitch” sufficiently severe). Baker’s attack on Freeman, along with the racial and sexual harassment of the two months preceding it, is sufficiently severe to establish a objectively hostile work environment.
Defendant contends that Baker’s assault on Freeman was motivated not by racial and sexual animus, but by his delusional belief that Freeman had a gun at work. While Baker may have been delusional, or even paranoid, the Court finds that Baker’s behavior escalated in response to the only intervention by Whirlpool management in his harassment of Freeman–the March 22 meeting called by Fisher. After Freeman drew the attention of management, Baker threatened her and upon their return to work on Monday, assaulted her. The Court does not find the assault to be an isolated incident, but rather a direct response to Freeman’s complaints about Baker and as such, the final incident of racial and sexual harassment.
The totality of the circumstances show Freeman to have endured an objectively hostile working environment.
2. The Subjective Element
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The Court finds that Plaintiff subjectively perceived her work environment to be abusive and hostile. The graphic sexual comments, directed at specific parts of her body and his body, were upsetting and humiliating such that Freeman took steps to silence Baker, by first ignoring him, then telling him to leave her alone or stop, and eventually by removing herself completely from the break area. These were appropriate steps that any reasonable person might take under the circumstances, and show Plaintiff to have considered the comments unwelcome.
Defendant argues that Freeman could not have perceived Baker’s conduct to be abusive because she did not report that conduct to her then-husband Jimmy Freeman. The Sixth Circuit has held that there may be many reasons that a plaintiff chooses not to report actionable sexual harassment and that “the subjective component of the prima facie case does not require that a plaintiff report a hostile work environment.” 187 F.3d at 566 (“A plaintiff can be subjected to sexual harassment sufficiently severe or pervasive as to constitute a hostile environment and yet, for a number of valid reasons, not report the harassment.”). Plaintiff may have had any number of reasons for not telling her husband about sexually-explicit comments made to her by another man. And although Plaintiff did not report Baker’s comments to her husband, she did relate that she was being harassed to her best friend, Delores Hancock Sparks. Additionally, Freeman repeatedly complained to her supervisor, Charlie Fisher, that Baker was sexually and racially harassing her, that his comments were “out of order” and making her feel uncomfortable.
The Court finds Plaintiff’s testimony as to her emotional state regarding the harassment to be credible. Plaintiff’s deposition testimony was substituted for her presence at trial because she was not able psychologically to withstand the stress of appearing in this case. Evidence of psychological harm is not required to establish a hostile work environment claim; however, “the
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effect on the employee’s psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive.” 510 F.3d at 23. The Court finds that Plaintiff has met the subjective element. C. Employer Liability
Once a plaintiff has established a hostile work environment, she must establish that the employer is liable because it knew or should have known about the harassment, yet failed to take immediate and appropriate corrective action. 517 F.3d at 338. The Court finds that Whirlpool knew or should have known about Baker’s harassment of Freeman and failed to take reasonable care in preventing or correcting it. See id.
To establish employer liability, Plaintiff must show that Defendant knew or should have known about the harassing conduct. 191 F.3d at 663. Furthermore, the Sixth Circuit concluded, “in cases such as this where harassment is pervasive, courts may impute constructive notice to an employer.” Id. An employer may be found negligent in this context if its remedial response, even if well-intentioned, “manifests indifference or unreasonableness in light of the facts the employer knew or should have known.” 517 F.3d at 338 (quoting Blankenship v. Parke Care Ctrs., Inc., 123 F.3d 868, 873 (6th Cir. 1997) and applying Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 758-59 (1998)).
Although Defendant disputes that Freeman reported the harassment to members of management, the Court finds that she did so on multiple occasions. On the first day that Baker began work on Line 4, Freeman reported to her direct supervisor, Manufacturing Supervisor Charlie Fisher, that Baker was staring at her. Fisher downplayed Freeman’s concern, assuring her that Baker was “weird” and for her not to worry about it. Freeman repeatedly reported
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Baker’s sexual and racial comments to Fisher, telling him that the comments made her feel uncomfortable, that she thought “Willie’s situation was racial,” and that his comments were “out of order.” Fisher admitted that Freeman reported Baker’s singing and the fact that Baker was pointing and mumbling at her and Lillard. Fisher did not report Freeman’s specific complaints up the chain of command at Human Resources. He did not investigate her allegations or discuss the situation with Baker. Fisher did not ask Freeman to submit written documentation of her complaints. Rather he told Freeman, “I’ll take care of it. You know I love you,” and to “just ignore” Baker.
Fisher did not confront Baker about his behavior toward Freeman until the March 22 meeting. At that meeting, Freeman also reported Baker’s harassment to Manufacturing Supervisor Jimmy Lovelace, Fisher’s direct supervisor, and union steward Richard Eskildsen. A visibly upset Freeman complained about Baker’s sexual comments, his racial comments, his staring and threatening behavior. Fisher told Freeman to ignore Baker, that he had told Baker to leave her alone. Lovelace did not report this meeting to Human Resources.
On a separate occasion, Freeman reported Baker’s sexual comments to Lovelace. Freeman testified that Lovelace did not say anything in response to her allegations. Freeman believed that by reporting Baker’s conduct to Lovelace she was reporting him to Human Resources, because she believed that Lovelace worked in Human Resources.
Kim Wheeler, the Group Leader on Line 4, reported hearing Freeman complain repeatedly to Fisher about Baker’s conduct. Wheeler remembers Freeman as upset and stern in these conversations, and that Freeman told Fisher, “you need to do something.” Wheeler remembers Fisher’s response to Freeman’s complaints was usually an assurance that he would
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resolve the situation, telling her “I’ll handle it,” “I’ve got this, calm down,” or “I’ll take care of it.” Chinica Lillard, another employee on Line 4, also remembers Freeman telling Fisher that Baker was bothering her and that Fisher needed to move Baker.
Complaints by other employees about harassment are properly included in a district court’s calculus of a hostile work environment. 191 F.3d at 663. Lillard and Wheeler repeatedly told Fisher that Baker seemed unstable and that Fisher needed to intervene on the line. Wheeler also reported Baker’s comment about all the “motherfucking niggers,” as well as Baker’s questions to her about gangs and the presence of guns in the factory, to Charlie Fisher, precipitating the March 22 meeting.
In fact, Baker himself reported to Fisher about his conflicts on the line with Freeman. Baker told Fisher that if Fisher did not take immediate action regarding other employees, including Freeman, whom Baker perceived as threatening him, someone might get hurt. Baker testified that Fisher took no action, however, to address or diffuse the situation. On March 26, the day of the assault, Baker went to Fred Contreras, Director of Human Resources, to tell him that he was having a conflict with Freeman and others on the line, that he had spoken with Fisher, and that he felt threatened. Management at Whirlpool clearly had actual notice of Baker’s harassment of Freeman and their on-going conflict.
Furthermore, Whirlpool failed to take reasonable care to end the harassment. An employer may be found negligent under Title VII if its response to the harassment, “manifests indifference or unreasonableness in light of the facts the employer knew or should have known.” 517 F.3d at 338. Defendant bears the burden of showing reasonable efforts to prevent and correct the harassment. 191 F.3d at 664. Whirlpool does not make that showing here.
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As an initial matter, a defendant’s adoption of a policy against sexual or racial harassment is not sufficient, in and of itself, to establish reasonable care on the part of an employer to prevent harassment. See Bailey v. USF Holland, 526 F.3d 880, 887 (6th Cir. 2008). Rather, “a harassment policy itself means nothing without enforcement.” Id. When a policy is implemented by those who do not accept that the behavior at issue constitutes harassment, that policy will most likely not be implemented effectively. See id.; Clark v. UPS, Inc., 400 F.3d 341, 350 (6th Cir., 2005) (“The effectiveness of an employer’s sexual harassment policy depends upon the effectiveness of those who are designated to implement it.”). An employer response is “generally adequate, however, if it is ‘reasonably calculated to end the harassment.’” 517 F.3d at 340.
The facts show a failure of every level of management at Whirlpool, from Charlie Fisher, Baker’s direct supervisor, through to the Manager and Director of Human Resources. Fisher failed to respond to Freeman’s repeated complaints of harassment. For two months he assured her that he would intervene in the situation, yet he never so much as spoke with Baker about Freeman’s allegations. After an incident on March 19 where Fisher reprimanded Baker for swearing at him on the Line, then witnessed an altercation at a gas station outside the plant between one African-American employee and Baker, Fisher called Kurt Gamauf, his direct supervisor and Manager of Human Resources, to report both these incidents. Gamauf did not return Fisher’s phone call. The next Monday, March 22, Baker used racial slurs while working on the line and Freeman told Kim Wheeler, the Group Leader, to alert Fisher. Wheeler did so. Fisher then called Gamauf again and left another message. Fisher called Gamauf the next day and left a another message. Gamauf never contacted Fisher about any of these messages.
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Fisher did intervene in the situation once. After Freeman complained about Baker’s use of racial slurs, Fisher called in Freeman, Baker, and Chinica Lillard separately to meet with him, Jimmy Lovelace, and Richard Esklidsen, the union steward, in Fisher’s office on March 22. Baker asked to be moved away from Line 4 because he felt that people were “kicking at him” and “making fight gestures.” Fisher told Baker and Freeman not to talk to each other anymore. After the meetings, Fisher watched Baker and Freeman walk out the same door to go on break. Fisher did not follow up to see if they had any interaction at that point; however, he told Lovelace that he saw them “talking and cutting up and laughing with each other.” This failure to follow-up on a clearly escalating situation manifests indifference to the harassment situation which, along with Fisher’s lie to his superior about the resolution of the conflict, shows employer negligence.
In fact, when Baker and Freeman walked out into the smoking area directly after this meeting, Baker immediately approached Freeman and tried to speak with her. When Freeman told Baker that he wasn’t supposed to talk to her, he angrily demanded to know who said that, then began singing a profanity-laced song to her. Directly following this incident, Freeman complained to Fisher again that Baker had sexually harassed her despite Fisher telling Baker to stay away. In response Fisher said to Freeman, “Why don’t you just go ahead and fuck him and get it over with? Then maybe he would leave you alone.” Wheeler corroborates this exchange, testifying that once when Freeman complained to Fisher about Baker’s sexual comments, Fisher responding that Freeman “should just go ahead and give [Baker] some.” Defendant argues that because Freeman and Wheeler report variations on this response, the incident did not occur. The Court finds that Freeman and Wheeler are reporting the same callous response by Fisher, which
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shows a shocking lack of interest in addressing and correcting reported sexual harassment on the part of management at Whirlpool. Fisher denies having made this statement, but the Court does not find Fisher’s testimony to be credible on this point.
After the March 22 meetings with Freeman and Baker, Fisher succeeded in reaching Gamauf by phone. He told Gamauf about Freeman’s complaints of Baker’s pointing and mumbling, his meeting with both of them, and the Baker incident at the gas station. Gamauf advised Fisher to “keep an eye on the situation” and contact him with any further developments. Gamauf did not meet with Baker or Freeman after this call; in fact, Fisher told Gamauf that the two were now on friendly terms. Management at Whirlpool did not involve themselves again in the Freeman-Baker situation until after the March 26 assault.
Neither Fisher nor any other member of Whirlpool’s management took appropriate steps to address the harassment. An employer’s response to harassment is generally adequate if it is “reasonably calculated to end the harassment.” 517 F.3d at 340. Employer actions deemed sufficient under this standard include acting upon the first complaint by separating the parties and issuing a stern warning to the offender that harassment would not be tolerated and could result in termination, see Fenton v. HiSAN, Inc., 174 F.3d 827, 831 (6th Cir. 1999), and, again acting on the initial complaint, actively monitoring the situation, following-up with the victim, and issuing a written final warning to the offender after continued harassment. See Blankenship, 123 F.3d at 870-71, 874. Fisher’s failure to take any steps even to investigate Freeman’s complaints, his hollow assurances to both Freeman and Baker that he would “take care of” their conflicts, and Fisher’s lies to his supervisors that all conflicts were resolved after the March 22 meeting were unreasonable and show indifference to a harassment situation of which he was
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well aware. Plaintiffs therefore have shown, and Defendant has not disproved, a hostile work environment. D. Damages
Plaintiffs EEOC and Freeman request back pay and front pay in an amount between $511,888 and $773,261; $300,000 in compensatory and/or punitive damages; and attorneys’ fees and costs. Plaintiffs also requested a permanent injunction and declaratory judgment in their original Complaints (Doc. Nos. 1 & 9). However, because the workplace at issue, Defendant’s LaVergne Division, closed as of August 15, 2008 and Plaintiffs did not renew their request for this relief in their post-trial papers, the Court will not now grant injunctive or declaratory relief.
Under Title VII, the Court may order reinstatement, back pay, or any other equitable relief the court deems appropriate. See 42 U.S.C. § 2000e-5(g)(1). Front pay is “simply money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement.” Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 846 (2001) (finding that front pay was not subject to the compensatory damages cap of Title VII). Plaintiffs must also mitigate their damages, if possible, by working in the interim. See 42 U.S.C. § 2000e-5 (“Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.”). However, front pay is appropriate where reinstatement is not an option, due to “continuing hostility between the plaintiff and the employer or its workers, or because of psychological injuries suffered by plaintiff as a result of the discrimination.” 532 U.S. at 846.
Compensatory damages for nonpecuniary losses, along with punitive damages, cannot
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exceed the $300,000 statutory cap for an employer with more than five hundred (500) employees. See 42 U.S.C. § 1981(b)(3). Compensatory damages under this section do not include back pay, interest on backpay, or any other type of relief authorized under section 709(g) of the Civil Rights Act of 1964, including reinstatement or front pay. See id.; 42 U.S.C. § 2000e-5.
1. Back pay and front pay Plaintiffs’ expert Dr. Mark Cohen estimated a total net loss in earning capacity for Freeman–wage loss plus employment benefits loss–in the amount of $511,888 for a shorter work life (though age 57.6) and in the amount of $773,261 for a longer work life (through social security retirement age). The Sixth Circuit considers back pay “a presumptive entitlement of a plaintiff who successfully prosecutes an employment discrimination case.” Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1171 (6th Cir. 1996). Furthermore, upon a finding of unlawful discrimination under Title VII, back pay “should be denied only for reasons which, if applied generally, would not frustrate the central statutory purpose of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975). Finally, workers compensation benefits are a collateral source that should not be deducted from back pay in a Title VII award. 90 F.3d at 1171. The Court hereby finds that Plaintiff Freeman has successfully proven her Title VII sexual and racial harassment claims and is therefore entitled to back pay.
Front pay may be awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement. See 532 U.S. at 846. If reinstatement is not an
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option, due to “continuing hostility between the plaintiff and the employer or its workers, or because of psychological injuries suffered by plaintiff as a result of the discrimination,” front pay may be awarded. Id. Plaintiffs must mitigate the damages by working in the interim if possible. See 42 U.S.C. § 2000e-5.
Freeman claims constructive discharge from Whirlpool in order to qualify for an award of front pay. See Pa. State Police v. Suders, 542 U.S. 129, 147 n.8 (2004) (“a prevailing constructive discharge plaintiff is entitled to all damages available for formal discharge . . . including both backpay and, in fitting circumstances, frontpay”). After the assault, Whirlpool granted Freeman an open-ended leave of absence. Several months later, Freeman voluntarily resigned her position upon the advice of her doctors. Although Defendant challenges Plaintiffs’ pleadings, stating that neither the EEOC nor Freeman pled a claim of actual or constructive discharge, the Court finds that under the liberal pleading requirement endorsed by the Supreme Court in Title VII constructive discharge cases, Freeman’s assertion that the hostile work environment rendered her “unable to return to employment” sufficient as a statement of a constructive discharge claim (Doc. No. 9, at 3). See 542 U.S. at 139 n.5.
To prove constructive discharge under Title VII, the plaintiff must prove a hostile work environment and also show “working conditions so intolerable that a reasonable person would have felt compelled to resign.” 542 U.S. at 147. The harassment creating such working conditions may be the result of an official company act, unofficial supervisory conduct, or coworker conduct. Id. at 148. Employer-defendants may, in the absence of an employersanctioned adverse action officially changing the employee’s status, assert an affirmative defense by showing: (1) defendant maintained an accessible and effective harassment reporting and
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resolution policy; and (2) plaintiff unreasonably failed to make use of such policy. Id. at 134. Defendant raises this affirmative defense. (Doc. No. 13, at 6-7).
However, under Title VII employers have an affirmative duty: “once an employer has knowledge of the harassment, the law imposes upon the employer a duty to take reasonable steps to eliminate it.” 400 F.3d at 349. This means that “regardless of whether the victimized employee actively complained, prong one of the defense ensures that an employer will not escape vicarious liability if it was aware of the harassment but did nothing to correct it or prevent it from occurring in the future.” Id. The mere adoption of a policy is not sufficient, of itself, to satisfy this duty. Id. Rather, “[p]rong one of the affirmative defense requires an inquiry that looks behind the face of a policy to determine whether the policy was effective in practice in reasonably preventing and correcting any harassing behavior.” Id.
Whirlpool maintained a policy prohibiting racial and sexual harassment that was distributed to employees on a regular basis. That policy had a procedure through which an employee could bring a complaint of harassment to her supervisor, department head, or the Human Resources Department. The policy required that such complaints be investigated promptly, thoroughly, and in a manner intended to protect the privacy of all involved. Violations of the anti-harassment policy would result in discipline that could include termination.
As discussed above, Freeman repeatedly complained about Baker’s harassment to her supervisor, Charlie Fisher, in compliance with the policy. Defendant clearly knew about the harassing behavior and therefore had an affirmative duty to correct or prevent the harassment. However, Defendant did not take reasonable care to prevent or correct the harassing behavior. Freeman complained to Fisher for two months before Fisher confronted Baker about his
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behavior. That confrontation, the March 22 meeting, resulted from Baker, Wheeler, and Freeman’s reports to Fisher that there was a conflict on Line 4, that Baker had used racial slurs, and that Baker felt threatened by his co-workers. Although Freeman complained at that meeting about Baker’s past behavior, the meeting focused on the immediate conflict. Fisher’s response to that conflict was to tell the co-workers to leave each other alone. He conducted no follow-up on the situation, despite having witnessed Freeman and Baker walking into the same break area immediately after the meeting. In fact, Fisher lied to his superior, telling Lovelace that he had seen Freeman and Baker talking and laughing. It is clear that Defendant did not take reasonable care in addressing Freeman’s complaints of harassment and therefore its affirmative defense fails.
Once Defendant fails to prove the first prong of the affirmative defense, the Court need not address the second prong. See 400 F.3d at 349. However, Defendant asserts that Freeman failed to report this harassment to Fisher or Lovelace. As the Court noted above, it finds Freeman’s testimony credible as to her complaints. Also, Defendant asserts that Freeman unreasonably failed to take advantage of corrective opportunities provided by her employer by not filing a union grievance under the terms of the International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Local Union No. S272, Collective Bargaining Agreement (“CBA”). While actions by a co-worker–here Baker’s harassment–are not union-grievable, through the union grievance process a union member like Freeman could challenge a management practice that she felt violated any part of the CBA. Although Freeman voiced her concerns about sexual and racial harassment at the March 22 meeting of which union steward Richard Eskildsen was a part, she did not utilize the grievance procedure with the union
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regarding Fisher’s failure to investigate the harassment. However, Freeman’s failure to file a grievance against her supervisor does not relieve Defendant of its affirmative duty to address and end the harassment of which it was aware. Freeman complained multiple times to multiple supervisors at Whirlpool. Therefore, Defendant’s affirmative defense fails at both the first and second prong.
The Court finds, for all the reasons discussed herein, that Baker’s escalating harassment ending in an assault, along with Whirlpool supervisors’ ineffective intervention, created working conditions so intolerable that a reasonable person would have felt compelled to resign. See Plautz v. Potter, 156 Fed. Appx. 812, 819 (6th Cir. 2005) (“workplace harassment that is severe and pervasive enough to create a hostile work environment may in some circumstances constructively discharge the employee”). Freeman did, in fact, resign upon the advice of two of her treating physicians who determined that her continued employment at Whirlpool would be a detriment to her mental health.
Defendant argues that Whirlpool’s actions after the assault, including firing Baker, offering Freeman reassignment to a different area of the plant and different parking lot, and offering her indefinite leave show that her decision to resign was unreasonable. However, these steps were taken in response to the assault which Whirlpool maintains was not a part of Baker’s harassment of Freeman, but rather spurred by his fear that Freeman was carrying a gun at work. Defendant may now claim that these actions after the assault should have assured a reasonable employee that any future harassment reported to supervisors would not escalate in a like manner; however, the Court is not persuaded. Whirlpool has never admitted that Baker’s actions toward Freeman constituted harassment. Title VII is designed to spur employers to take complaints of
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hostile work environment seriously and proactively investigate and end such harassment. Actions taken after harassment which, despite months of complaints, culminates in a workplace assault, likely do not inspire much confidence in reasonable current employees.
As a result of Baker’s harassment and the assault, Freeman suffers from chronic posttraumatic stress disorder rendering her unable able to work. Multiple medical professionals as well as her closest friends and family attest to Freeman’s severe and debilitating condition. The Court finds that reinstatement was therefore not an option, nor was any other work feasible to mitigate damages. The Court also finds the calculations of Dr. Mark Cohen as to Freeman’s work life and income expectancy to be credible. Therefore, the Court AWARDS Plaintiff Freeman $773,261 in front pay and back pay.
2. Nonpecuniary losses & punitive damages Plaintiffs also seek $300,000 in compensatory damages for emotional injuries and/or punitive damages. Compensatory damages for nonpecuniary losses, along with punitive damages, cannot exceed the $300,000 statutory cap. See 42 U.S.C. § 1981(b)(3). Compensatory damages under this section do not include back pay, interest on backpay, or any other type of relief authorized under section 709(g) of the Civil Rights Act of 1964, including reinstatement. See id.; 42 U.S.C. § 2000e-5. Punitive damages from a Title VII claim require a showing of: (1) a malicious or reckless disregard of plaintiff’s federally-protected rights; and (2) that the offending agent was acting under a managerial capacity or that his actions must be imputed to defendant under another agency rationale. Kolstad v. American Dental Assoc., 527 U.S. 526, 534, 539-40 (1999). However, punitive damages will not be awarded based upon “employment decisions of managerial agents where these decisions are contrary to the employer’s good faith
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efforts to comply with Title VII.” Id. at 545 (citations omitted). The Court finds Plaintiff Freeman’s emotional injuries were caused by Defendant
Whirlpool’s ineffective response to her complaints of sexual and racial harassment. The severity of her injuries, psychological and emotional, warrant an award of $300,000 in compensatory damages.
The Court will not award punitive damages. While Freeman’s supervisors, in particular Charlie Fisher, acted negligently in responding to the harassment, the Court does not find that they acted with malicious or reckless disregard of Freeman’s rights. Fisher and Freeman’s other supervisors were undoubtedly aware of Defendant’s anti-harassment policies, having processed a sexual harassment complaint against Baker by another female employee, as well as having attended educational seminars and periodically distributing the anti-harassment policy in the factory newsletter. While maintaining an anti-harassment policy is not sufficient to show a good faith effort to comply with Title VII, see 526 F.3d at 887, the Court does not find that Fisher or the other supervisors acted with the requisite malicious or reckless intent for which an award of punitive damages would be warranted. Therefore, the Court AWARDS Plaintiff Freeman $300,000 in compensatory damages under Title VII. III. CONCLUSION
Judgment is entered for Plaintiff Carlotta Freeman in the amount of $1,073,261. The prevailing parties may move for attorney’s fees and/or costs.
It is so ORDERED.
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-31-

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

CARLOTA FREEMAN,

)

)

Intervenor Plaintiff,

)

)

v.

)

)

WHIRLPOOL CORPORATION,

)

)

Defendant.

)

No. 3:06-cv-0593 Judge Nixon

ORDER

Pending before the Court are Intervenor Plaintiff Carlota Freeman’s (“Plaintiff”) First

Motion for Attorney Fees and Costs (“First Fee Motion”) (Doc. No. 209), which was filed along

with a Memorandum in Support (Doc. No. 210), and Second Motion for Attorney Fees and Costs

(“Second Fee Motion”) (Doc. No. 229) (collectively, “Plaintiff’s Fee Motions”). Also pending

before the Court is Plaintiff’s Motion for Review of the Final Taxation of Costs (“Motion for

Review”). (Doc. No. 223.) Defendant Whirlpool Corporation (“Defendant”) has filed a

Response in Opposition to Plaintiff’s Fee Motions (Doc. No. 231), as well as a Response in

Opposition to Plaintiff’s Motion for Review (Doc. No. 224). For the reasons discussed herein,

Plaintiff’s Fee Motions and Plaintiff’s Motion for Review are GRANTED, with the

modifications discussed herein. Defendant is ORDERED to pay attorney’s fees and costs

consistent with this Order.

1

I.

BACKGROUND

A. Factual Background

The Court adopts the Findings of Fact section of the Memorandum Order entering

judgment in favor of Plaintiff (Doc. No. 194 at 2-6), unless otherwise noted.

B. Procedural Background

The Equal Employment Opportunity Commission (EEOC) initiated this suit against

Defendant on June 6, 2006. (Doc. No. 1.) Plaintiff intervened in the action on July 24, 2006,

and alleged causes of action for impermissible racial and sexual discrimination in violation of

Title VII and 42 U.S.C. § 1981. (Doc. No. 9.) A bench trial was held from February 24 to 27,

2009, and this Court ruled in Plaintiff’s favor on all claims. (Doc. No. 194.) The Court awarded

total damages in the amount of $1,073,261.00 ($773,261.00 in front pay and back pay and

$300,000.00 in compensatory damages). (Id.) Defendant filed a Motion to Alter or Amend the

Judgment on January 15, 2010. (Doc. No. 196.)

Plaintiff’s First Fee Motion (Doc. No. 209) and supporting Memorandum (Doc. No. 210)

were filed on February 20, 2010. Defendant filed a Response in Opposition (Doc. No. 213) and

a Memorandum in Support (Doc. No. 214) on March 1, 2010. The Clerk of Court entered a

Taxation of Costs against Defendant in the amount of $4,570.95 on March 5, 2010. (Doc. No.

217.) The parties jointly filed a Motion to Stay Plaintiff’s First Fee Motion (Doc. No. 220) on

March 9, 2010, pending the outcome of Defendant’s Motion to Alter or Amend the Judgment,

which this Court granted (Doc. No. 222). While Defendant’s Motion to Alter or Amend was

pending, Plaintiff filed her Motion for Review on March 22, 2010. (Doc. No. 223.) This Court

then denied Defendant’s Motion to Alter or Amend the Judgment on March 31, 2011. (Doc. No.

226.) Plaintiff subsequently filed her Second Fee Motion on April 14, 2011. (Doc. No. 229.)

2

II. LEGAL STANDARD
District courts have discretion pursuant to 42 U.S.C. § 1988 to award reasonable
attorney’s fees to a prevailing party in a civil rights suit. Loudermill v. Cleveland Bd. of Educ.,
844 F.2d 304, 310 (6th Cir. 1988). Although discretionary, a district court should award fees to a
plaintiff if that plaintiff prevails. Gregory v. Shelby Cnty., Tenn., 220 F.3d 433, 447 (6th Cir.
2000) (citing Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402-03 (1968)). The first step
in calculating reasonable attorney fees “is the determination of the fee applicant’s ‘lodestar,’
which is the proven number of hours reasonably expended on the case by an attorney, multiplied
by a reasonable hourly rate.” Isabel v. City of Memphis, 404 F.3d 404, 415 (6th Cir. 2005)
(citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The court should consider twelve
factors when determining the reasonableness of the hours and rate:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the ‘undesirability’ of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
Hensley, 461 U.S. at 430 n.3.
Generally, there is a “strong presumption” that a prevailing party is entitled to the
lodestar amount. Adcock-Ladd v. Sec’y of Treasury, 227 F.3d 343, 350 (6th Cir. 2000) (citing
City of Burlington v. Dague, 505 U.S. 557, 562 (1992)). However, a court may adjust the
lodestar “to reflect relevant considerations” of the particular case, including the abovementioned
twelve factors. Adcock-Ladd, 227 F.3d at 349. “‘Many of these factors usually are subsumed
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within the initial calculation of hours reasonably expended at a reasonable hourly rate.’” Geier v. Sundquist, 372 F.3d 784, 792 (6th Cir. 2004) (quoting Hensley, 461 U.S. at 434 n.9). In most cases, “the most crucial factor is the degree of success obtained.” Hensley, 461 U.S. at 436. Although district courts have discretion in determining the proper award, they must “consider the relationship between the extent of success and the amount of the fee award.” Id. at 438. Ultimately, district courts should “focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” Id. at 435.
III. ANALYSIS Plaintiff seeks attorney’s fees and costs pursuant to Federal Rule of Civil Procedure 54,
42 U.S.C. § 1981, and 42 U.S.C. § 2000e, for work completed over the course of almost five years of litigation. Throughout this action, Plaintiff has been represented by two attorneys: Helen Rogers of Nashville, Tennessee, and Andy L. Allman, of Hendersonville, Tennessee. (Doc. Nos. 209, 229.) Plaintiff requests $187,342.90 for Ms. Rogers’ services and $56,105.00 for Mr. Allman’s services, for a total of $243,447.90. (Doc. Nos. 210-1, 210-2, 229-1, 229-2.) Additionally, Plaintiff requests $37,5141.97 in costs and expenses related to the litigation. (Id.) Thus, the full amount that Plaintiff seeks from Defendant is $280,959.87. Defendant raises several challenges to Plaintiff’s request, which are addressed below.
A. Identification of Timekeepers and Reasonableness of Fees Plaintiff seeks a total of $77,849.90 for seven employees performing work for Ms. Rogers over the course of litigation. Defendant urges the Court to refuse Plaintiff’s request for these employees’ fees because Ms. Rogers “does not identify seven timekeepers or provide supporting documentation to justify the reasonableness of their fees.” (Doc. No. 231 at 2.)
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Specifically, Defendant alleges that Plaintiff “has not met her burden of establishing that the rate or amount of time billed is reasonable with regard to the following timekeepers: Lawrence Kamm ($1,935.50), Katie Marcottee ($45.00), Robin Barry ($970.00), Alan Gentry ($13,155.65), Nancy Hardt ($61,072.75), Audrey Anderson ($150.00), and Charla Chumney ($521.00).” (Id. at 3.) Defendant argues that Plaintiff’s failure to identify the positions and qualifications of each employee – whether they are lawyers, paralegals, or administrative staff – precludes recovery for these fees. (Id. at 4.)
“The party seeking attorneys fees bears the burden of documenting [her] entitlement to the award.” Reed v. Rhodes, 179 F.3d 453, 472 (6th Cir. 1999) (citing Webb v. Dyer Cnty. Bd. of Educ., 471 U.S. 234, 242 (1985)). In order to enable the Court to make a determination regarding the reasonableness of the hours and rates requested, “[t]he fee applicant ‘should submit evidence supporting the hours worked and rates claimed.’” Reed, 179 F.3d at 472 (citing Hensley, 461 U.S. at 433). Where the documentation is inadequate, the court may reduce the award accordingly. Hensley, 461 U.S. at 433.
Defendant is correct in asserting that Plaintiff’s documentation in support of the hourly rate charged to each of the seven employees listed above is insufficient. This Court is unable to determine with a high degree of certainty that some of the listed employees are entitled to the rate at which Plaintiff requests compensation. However, Ms. Rogers’ affidavit in support of the fees provides some indication of the qualifications and positions of her employees, from which the Court can deduce that these employees are paralegals. After discussing the traditional hourly rates for attorneys in her practice, Ms. Rogers stated that she “charge[s] between Seventy-Five Dollars ($75) and One Hundred Dollars ($100) per hour for [her] paralegals’ time.” (Doc. No. 210-2 at 2.) Ms. Rogers further stated that her “paralegals are experienced in this field and
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assisted greatly in this case . . . [and] have undergraduate degrees and paralegal certificates.” (Id.) Plaintiff’s First Fee Motion only identifies two attorneys from Ms. Rogers’ office who worked on this case: Ms. Rogers and Siew-Ling Shea. (Id.) From this information, the Court finds that the remaining employees are paralegals, since they were not identified specifically as attorneys and were billed at rates consistent with the firm’s standard paralegal range.
Fees for paralegal services are recoverable; the Supreme Court has found that the term “attorney fees” as used in 42 U.S.C. § 1988 embraces the fees of paralegals as well as attorneys. Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 580 (2008). In determining the reasonableness of paralegal fees, “the court should scrutinize the reported hours and suggested rates in the same manner it scrutinizes lawyer time and rates.” Ramos v. Lamm, 713 F.2d 546, 559 (10th Cir. 1983). Although Plaintiff provides significant documentation on the hourly activities of each employee, counsel for Plaintiff failed to provide evidence to justify her request for these employees’ hourly rates, nor does counsel provide evidence that these requested rates are the prevailing market rate for paralegal work. A judge in this District, when faced with the same lack of documentation or support for paralegal fees of upwards of $100.00 per hour, found that $75.00 per hour for paralegal time was the appropriate rate. Baltimore v. City of Franklin, No. 06-0578, 2008 WL 2437637, at *6 (M.D. Tenn. June 16, 2008). Accordingly, in light of Baltimore and the lack of documentation provided by Ms. Rogers justifying higher hourly rates, the Court will award those employees that it has determined to be paralegals a rate of $75.00 per hour for the hours reasonably expended on this litigation.
Based on Ms. Rogers’ affidavit and the requested rates, the Court assumes that the following employees are paralegals: Lawrence Kamm, Audrey Anderson, Robin Barry, Alan Gentry, Nancy Hardt, and Carla Chumney. Accordingly, the Court will award Plaintiff fees for
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these employees at the rate of $75.00 per hour for the hours that they reasonably expended on this litigation.
The Court cannot assume, however, that Ms. Marcottee is a paralegal. Plaintiff requests a total of $45.00 for her work at a rate of $45.00 per hour. This requested rate falls well below the standard range for paralegals at Helen Rogers & Associates. (Doc. No. 210-2 at 2.) The Court therefore assumes that Ms. Marcottee is neither a paralegal nor an attorney. Owing to the lack of sufficient detail regarding her position or qualifications, the Court finds the documentation inadequate to support an award of fees for Ms. Marcottee’s work. Accordingly, the Court will reduce Plaintiff’s request for fees as it pertains to work performed by Ms. Marcottee in the amount of $45.00.
B. Reasonableness of Attorney Helen Rogers’ Hourly Rates Plaintiff seeks an hourly rate for Ms. Rogers ranging from $150.00 to $350.00 per hour for 286.35 hours over the course of litigation, for a total of $92,165.00. Defendant urges the Court to reduce Plaintiff’s requested fees for Ms. Rogers because “the hourly rates for work performed by [Plaintiff’s] attorneys are unreasonable.” (Doc. No. 231 at 2.) Specifically, Defendant argues that “Ms. Rogers’ rate should be reduced to account for the drastic increase of her billing rate over the course of this litigation,” because “[t]here is no explanation provided as to how the [hourly] rates were calculated or what system was used to determine the amount or timing of rate increases.” (Id. at 5.) Defendant proposes that the Court award Ms. Rogers an hourly rate of $225.00 for all hours billed above that rate, for a total reduction of $29,323.75. (Id. at 5.) Ms. Rogers’ affidavit reveals that Ms. Rogers has practiced law since 1980 and is a senior member of her firm. (Doc. No. 210-2 at 1.) Additionally, she is certified as a Civil Trial
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Specialist by the Tennessee Commission of Continuing Legal Education & Specialization and the National Board of Trial Advocacy, and she is a Rule 31 Mediator. (Id.) However, Plaintiff provides no supportive documentation justifying or explaining the multiple increases in Ms. Rogers’ hourly billing rate from $150.00 to $350.00 during the course of this litigation. Ms. Rogers’ affidavit only enumerates her professional qualifications and states that her “usual and customary rates for professional services since 2004 when [she] began representing [Plaintiff] . . . has ranged from One Hundred Fifty Dollars ($150) per hour to Three Hundred Fifty Dollars ($350) per hour.” (Doc. No. 210-2 at 2-3.) Plaintiff states in conclusory fashion that the “hourly rates billed for the attorneys involved in this case are in keeping with the market rates prevailing in the community for similar services by lawyers of reasonable skill, experience, and reputation” (Doc. No. 210 at 6), but provides no documentary support other than the affidavit of Plaintiff’s counsel to substantiate such a claim.
In 2008, a judge in this District awarded a rate of $250.00 to $275.00 per hour to three attorneys who provided documentary support indicating that their rates “were consistent with fee awards to other Nashville-based attorneys in other civil rights cases before courts in this district.” Ibarra v. Barrett, No. 05-0971, 2008 WL 2414800, at *2 (M.D. Tenn. June 12, 2008). On another occasion, after ordering a decrease from a requested hourly rate of $350.00 per hour, a judge in this District granted an hourly rate of $275.00 per hour for an attorney who had been in private practice for fifteen years and focused his practice on civil rights. Randolph v. Schubert, No. 06-0050, 2007 WL 2220407, at *2-3 (M.D. Tenn. July 27, 2007). In both cases, the rates requested by the attorneys were supported by affidavits from outside counsel. Plaintiff has provided no such documentary support here, nor justification as to why or how she earned a more than a 100 percent increase in her hourly billing rate during the course of this litigation.
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The Court is persuaded that Ms. Rogers’ proposed hourly rates of $300.00 and $350.00 are excessive based on awards in recent cases involving lawyers with similar experience, and the lack of sufficient evidence provided to justify her rate as comporting with prevailing market values. However, based on Ms. Rogers’ substantial experience and the rates awarded to similarly experienced attorneys in this District, the Court finds that Defendant’s proposed reduction in Ms. Rogers’ rate is too drastic. Further, this Court has acknowledged that in some instances it is appropriate to stagger an attorney’s hourly rate over the course of litigation. Harris v. Metro. Gov’t of Nashville, No. 04-0762, 2009 WL 2423306, at *4 (M.D. Tenn. Aug. 6, 2009). Accordingly, in light of the prevailing market rates that judges within this District have acknowledged, the Court finds that a reduction to $275.00 per hour is warranted for Ms. Rogers’ hours billed at or above $300.00. The Court will not otherwise reduce Ms. Rogers’ rates for hours that were reasonably expended on this litigation.
C. Reasonable Relation of Time Spent to Litigation Defendant further urges the Court to reduce Plaintiff’s requested fees because “the time spent [by Plaintiff’s attorneys] was not reasonably related to the litigation.” (Doc. No. 231 at 2.) Specifically, Defendant alleges that Plaintiff’s counsel seeks to recover “at least $6,595.50 in fees for time spent on work for other cases or unrelated matters,” such as “time spent related to [Plaintiff’s] claim for social security disability benefits, for workers’ compensation benefits, and other matters unrelated to this case.” (Id. at 6.) Defendant objects to a total of sixty-two individual entries for time spent by Ms. Rogers and her employees. (Doc. No. 231-1.) The Supreme Court has held that a district court should exclude from the lodestar calculation hours that were not “reasonably expended” on pursuing the immediate litigation. Hensley, 461 U.S. at 434. As such, “[c]ounsel for the prevailing party should make a good faith
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effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice is ethically obliged to exclude such hours from his fee submission.” Id. Where “[n]o information has been provided regarding the relevance or relationship of the other matters . . . for which professional time was expended to the present case,” fees requested for time spent on those matters will be rejected. Tobin v. Gordon, 614 F. Supp. 2d 514, 526-27 (D. Del. 2009). The Court therefore declines to award to Plaintiff any fees billed by her attorneys for time entries that are unrelated to her successful civil rights claims.
Defendant claims that Ms. Rogers personally billed a total of $4,007.50 for time entries unrelated to this litigation. (Doc. No. 231-1.) The Court finds that the majority of the entries Defendant claims were unrelated were, in fact, reasonable expenditures of Ms. Rogers’ time as they related directly to the litigation. For example, Defendant challenges multiple entries where Ms. Rogers’ time entries dealt with Martin Holmes. A review of the case docket reveals that Mr. Holmes was a co-counsel for Plaintiff (Doc. No. 83) until January 27, 2009, at which point this Court permitted him to withdraw his representation owing to a conflict of interest (Doc. No. 91), and Ms. Rogers stopped billing time entries relating to him.
Nevertheless, the Court does find that several of Ms. Rogers’ time entries were not reasonably expended on this litigation. On several occasions, Ms. Rogers submitted time entries for work related to Plaintiff’s Social Security Administration request, workers’ compensation claims, and disability claims.1 There is nothing in the record connecting these claims to the instant litigation. As such, the Court finds that these specific entries were not reasonably
1 The Court finds that Ms. Rogers’ time entries on the following dates were not reasonably expended in relation to the immediate litigation: November 8, 2007; November 11, 2007; December 12, 2007; April 24, 2008; January 18, 2009. (See Doc. No. 210-2 at 10, 12, 14.)
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expended on this litigation. Accordingly, the Court will reduce Plaintiff’s award by 3.40 hours for time spent by Ms. Rogers on matters not related to the litigation.
Similarly, the Court finds that Defendant is correct in challenging a time entry for Robin Barry on September 28, 2005, wherein Ms. Rogers billed 1.9 hours for Barry to “[d]raft response to Whirlpool position statement: letter to D. High enclosing proposed response and EEOC ltr” (Doc. No. 210-2 at 26). Defendant alleges that High was Plaintiff’s workers’ compensation attorney (Doc. No. 231 at 6), and the Court finds no record of High’s direct involvement in this litigation. The Court therefore must assume that he is unrelated to this litigation. Because this billing entry consisted of two activities and one was unrelated to this litigation, the Court finds that a fifty percent reduction is warranted for this time entry. As such, the Court will reduce Plaintiff’s award by 0.95 hours for the time spent by Robin Barry on this particular task.
Finally, the Court finds that Defendant is also correct in challenging a portion of the time entries for work performed by Nancy Hardt, which Defendant alleges is unrelated to the litigation. Ms. Hardt billed multiple entries relating to Plaintiff’s workers’ compensation claims, Social Security claims, and disability claims.2 There is nothing in the record connecting these claims to the instant litigation. As such, the Court finds that these specific entries were not reasonably expended on this litigation. Where the documentation includes multiple activities per time entry and the Court can determine that the entry partially related to the litigation, the Court will only partially reduce the fees requested to account for unrelated activities. Accordingly, the
2 The Court finds that Ms. Hardt’s time entries on the following dates were not reasonably expended in relation to the immediate litigation: November 1, 2006; August 8, 2007; August 13, 2007; August 15, 2007; October 31, 2007; November 15, 2007 (one-half reduction); April 18, 2008 (one-half reduction); April 23, 2008; April 30, 2008; June 17, 2008; July 16, 2009; July 22, 2009; January 4, 2010 (one-third reduction); January 6, 2010; January 7, 2010; February 11, 2010, March 10, 2010 (one-half reduction); March 22, 2010; July 28, 2010 (one-half reduction); February 14, 2011 (one-half reduction). (See Doc. No. 210-2 at 30, 36, 41, 48-49, 59, 60-61; Doc. No. 22902 at 45.)
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Court will reduce Plaintiff’s award by 10.60 hours for time spent by Ms. Hardt on matters not related to the litigation.
D. Unreasonableness or Duplication of Fees for Clerical Tasks Defendant further urges the Court to reduce Plaintiff’s requested fees because Plaintiff’s “fees sought include fees for clerical tasks not recoverable as attorneys fees or was otherwise excessive or duplicative.” (Doc. No. 231 at 2.) Specifically, Defendant alleges that Plaintiff seeks compensation for clerical work and for fees resulting from “overstaffing or duplicative efforts, excessive overbilling, and unnecessary time spent on simplistic tasks.” (Id. at 7, 9.)
1. Time Spent on Clerical Work Defendant seeks to reduce the fees sought by two of Ms. Rogers’ employees, Nancy Hardt and Alan Gentry, by seventy-five percent, arguing that approximately seventy percent of their entries “are for purely clerical tasks and the remaining entries include a reference to a clerical task with an unknown amount of time expended on said task.” (Id. at 8.) Defendant argues that clerical activities, such as indexing documents, reviewing and organizing correspondence and pleadings, managing calendars, printing documents, making copies and preparing poster exhibits, should not be compensated as legal work. (Id.) A district court within the Sixth Circuit has found that “[t]ime spent by a lawyer on purely clerical matters not calling for the exercise of legal expertise or judgment, and which could be equally well performed by clerical staff, should not be recoverable under § 1988.” Tierney v. City of Toledo, No.83-430, 1989 WL 161543, at *12 (N.D. Ohio Aug. 28, 1989). Other district courts within this Circuit have arrived at a similar conclusion, albeit for clerical fees relating to non-civil rights claims. See Richards v. Johnson & Johnson, No. 08-279, 2010 WL 3219138, at *7 (E.D. Tenn. May 12, 2010) (finding that clerical tasks “are part of the
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overhead cost necessary to operate any law firm, and should not be compensated by a fee award”); Ferrero v. Henderson, No.00-00462, 2005 WL 1802134, at *3 (S.D. Ohio July 28, 2005). Additionally, the Sixth Circuit declined to find abuse of discretion where a district court reduced a fee award by striking clerical tasks, finding that “[w]hile reviewing correspondence can constitute legal work, receiving and filing correspondence presumably constitutes clerical work.” B & G Mining, Inc. v. Dir., Office of Workers’ Comp. Programs, 522 F.3d 657, 666 (6th Cir. 2008).
In light of the foregoing, the Court will decline to award fees to Plaintiff for hours billed by her attorneys that amount to clerical tasks and constitute the overhead cost normally expected in legal practice. The Court finds no evidence for Defendant’s allegation that Ms. Hardt or Mr. Gentry billed in excess of seventy percent of their time to clerical tasks. However, after reviewing their time entries, the Court finds that each billed approximately seven percent of their total billed hours to items that are classifiable as clerical. In particular, both employees repeatedly billed time for entries such as copying files, organizing documents, and mailing correspondence. As such, the Court will reduce the final hours calculated for both Mr. Gentry and Ms. Hardt by seven percent.
2. Duplicative, Excessive, or Unnecessary Billing Defendant further seeks to reduce the fees sought by Ms. Rogers and her employees by five percent for duplicative efforts, overstaffing and overbilling, and unnecessary time spent on simplistic tasks. Defendant argues that Ms. Rogers’ “fee submission is replete with entries for intra-office conferences, emails between counsel and paralegals in the same office, and multiple entries by many individuals to ‘review’ the file.” (Id. at 9.) Defendant argues that the
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“duplicative and excessive time spent on this matter is without explanation and [Defendant] should not be forced to compensate counsel for [Plaintiff] for their own inefficiency.” (Id.)
The Sixth Circuit has recognized “the propriety of across-the-board reductions based upon excessive or unnecessary hours.” Hisel v. City of Clarksville, No. 04-0924, 2007 WL 2822031, at *4 (M.D. Tenn. Sept. 26, 2007) (citing Auto Alliance Intern., Inc. v. U.S. Customs Serv., 155 F. App’x 226, 228 (6th Cir. 2005)). However, the Sixth Circuit has also held that “time spent by counsel discussing the case is properly compensable, and the mere fact that attorneys confer with one another does not automatically constitute duplication of efforts.” Sigley v. Kuhn, No. 98-3977, 2000 WL 145187, at *8 (6th Cir. Jan. 31, 2000) (quoting Glover v. Johnson, 138 F.3d 229, 252 (6th Cir. 1998)). Only in certain specific instances will the Sixth Circuit rely on “the arbitrary but essentially fair approach of simply deducting a small percentage of the total hours to eliminate duplication of services.” Northcross v. Bd. of Ed. of Memphis City Schs., 611 F.2d 624, 636-37 (6th Cir. 1979).
After reviewing a number of cases in which a percentage reduction was found to be warranted, the Court finds that the extent of the alleged duplicative or excessive billing in this case does not rise to the requisite level. Defendant’s conclusory allegations that Plaintiff repeatedly overbilled or engaged in duplicative billing are insufficient to warrant an across-theboard reduction of Plaintiff’s remaining requested fees, where the requested reduction is not proportional to the instances that Defendant cites as indicative of the overall trend of duplication or excess. Although another judge in this District has found such reductions warranted in the past, the reductions were imposed for significantly more egregious infractions that were identified at a much higher rate of occurrence. See Hisel, 2007 WL 2822031, at *5-6 (reducing the attorney fee award by twenty five percent for excessive billing for simplistic tasks where the
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issues in the case were “hardly new or novel to Plaintiff’s counsel”). As such, Defendant’s request to reduce Plaintiff’s fee award on these grounds is denied.
E. Block Billing Defendant further urges the Court to reduce Plaintiff’s requested fees by fifteen percent because Plaintiff’s “block billing and vague time records prevent meaningful review.” (Doc. No. 231 at 2.) Specifically, Defendant alleges that Plaintiff’s “billing records contain vague entries and excessive block billing, without any means of apportioning the total time billed to individual tasks, making a detailed segregation of fees virtually impossible.” (Id. at 12.) Where a party provides “detailed, itemized billing records that specify, for each entry, the date that the time was billed, the individual who billed the time, the fractional hours billed (in tenths of an hour), and the specific task completed,” the Sixth Circuit has held that “explicitly detailed descriptions are not required,” even where “some of the time entries in counsel's billing statement provide only the briefest description of the task completed.” Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 554 (6th Cir. 2008). An across-the-board reduction of fifteen percent is unwarranted where, as here, “[c]ounsel's billing entries, when read in the context of the billing statement as a whole and in conjunction with the timeline of the litigation, support the district court’s determination that the hours charged were actually and reasonably expended in the prosecution of the litigation.” Id. (citing United Slate, Local 307 v. G & M Roofing & Sheet Metal Co., 732 F.2d 495, 502 (6th Cir. 1984)). Counsel for Plaintiff satisfied that standard by enumerating in detail each activity for which she seeks recovery, as well as the increments of time spent on each item. To the extent previously discussed, the Court is able to identify distinct claims and determine with a high degree of certainty that the requested hours were actually and reasonably expended in the prosecution of the litigation. Again, Defendant’s conclusory
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allegations that Plaintiff’s documentation is insufficient to allow adequate judicial review will not suffice in securing such a significant reduction in Plaintiff’s requested fees. As such, Defendant’s request to reduce Plaintiff’s fee award on these grounds is denied.
F. Lodestar Amount for Each Timekeeper After making the foregoing reductions, the Court establishes the following lodestar amounts for each timekeeper for which Plaintiff requests fees. The Court awards Plaintiff 160.3 hours billed by Mr. Allman at a rate of $350.00 per hour3 for a total of $56,105.00. For the hours billed by Ms. Rogers, the Court awards Plaintiff 2.6 hours at $150.00 per hour, 4.0 hours at $160.00 per hour, 13.9 hours at $175.00 per hour, and 265.95 hours at $275 per hour, for a total of $76,598.75, accounting for the foregoing reductions made to her rate and hours reasonably spent on the litigation. For the hours billed by Siew-Ling Shea, the Court awards Plaintiff 4.8 hours at $100.00 per hour, 92.1 hours at $150.00 per hour, and 11.3 hours at $160.00 per hour,4 for a total of $16,103.00. For the six employees whom the Court identified as paralegals, the Court awards Plaintiff a total of 816.43 hours at a rate of $75.00 per hour for a total of $61,232.25, accounting for the foregoing reductions made to rates and hours reasonably spent on the litigation. G. Request for Lodestar Multiplier Plaintiff seeks an upward adjustment of the lodestar amount to compensate for the expertise of her counsel and the success obtained, as well as the undesirability of the case. (Doc. No. 210 at 10-11.) It is unclear to the Court what multiplier Plaintiff requests, because Plaintiff’s
3 Defendant has not objected to this rate, and the Court finds it reasonable based on Mr. Allman’s significant experience in the area of civil rights employement discrimination litigation, and the fact that his rates remained consistent throughout the course of this litigation. 4 Defendant has not objected to these rates, and the Court finds them reasonable based on Ms. Shea’s level of experience.
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First Fee Motion alternately requests a lodestar multiplier of 2.0 times (id. at 9) or 0.75 times (id. at 12). Defendant objects to the imposition of any multiplier, arguing that an “upward adjustment to an attorney’s lodestar hourly rate is permissible in certain rare and exceptional cases, supported by both specific evidence on the record and detailed findings.” (Doc. No. 231 at 10.) Plaintiff acknowledges this same “exceptional and rare” language and appears to argue that her case satisfies such a standard. (Doc. No. 210 at 10.)
The Supreme Court recently recognized that there exist limited circumstances in which superior attorney performance is not adequately taken into account in the lodestar calculation for an award of reasonable attorney fees in a civil rights case under § 1988. Perdue v. Kenny A. ex rel. Winn, 130 S.Ct. 1662, 1674 (2010). However, the Supreme Court qualified this observation by stating that such “circumstances are rare and exceptional, and require specific evidence that the lodestar fee would not have been adequate to attract competent counsel.” Id. (citing Blum v. Stenson, 465 U.S. 886, 899 (1984)). As such, an upward adjustment based on the quality of representation may be justified “only in the rare case where the fee applicant offers specific evidence to show that the quality of service rendered was superior to that one reasonably should expect in light of the hourly rates charged and that the success was ‘exceptional.’” Blum, 465 U.S. at 899. Plaintiff has provided no such evidence here, other than stating that the quality of her representation was exceptional. Additionally, Plaintiff does not claim that the representation was superior to what was expected, or that the success obtained was exceedingly unusual or extraordinary for a comparable civil rights claim.
When faced with a Title VII racial discrimination case that dealt with a city’s repeated failure to promote a minority employee, a judge in this District found that a multiplier of 0.10 to be warranted based on the difficulty of proving the employee’s claim, which had developed over
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a span of many years, and the exceptional success obtained by the employee’s counsel in securing a settlement for his client. Baltimore, 2008 WL 2437637, at *6. However, Baltimore is distinguishable from the present case. Although the length and difficulty of this litigation is not disputed, Plaintiff’s claims of racial and sexual harassment focused on a relatively short period of time and a few isolated incidents witnessed by multiple employees of Defendant, providing a stronger evidentiary basis from which counsel could prove Plaintiff’s case. While counsel for Plaintiff was ultimately successful in securing a judgment for Plaintiff, the Court finds that the evaluation of this success has already been subsumed by the calculation of the attorneys’ reasonable hourly rate. See Geier, 372 F.3d at 792 (quoting Hensley, 461 U.S. at 434 n.9) (finding that “‘[m]any of [the twelve factors discussed in Hensley] usually are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate’”).
Additionally, although Plaintiff secondarily requests the enhancement owing to the undesirability of the case, the Court finds the evidentiary basis for such a claim to be lacking. In Baltimore, the court found that “[m]any lawyers would not consider this case to be particularly ‘desireable’ [sic] to accept on a contingent fee basis where multiple current employees wished to sue their employer for what they considered to be a lengthy and pervasive policy or practice of racial discrimination.” 2008 WL 2437637, at *5. Here, however, counsel for Plaintiff has not presented any support regarding the contingent nature of their fees nor the rationale for determining the case to be desirable short of claiming that Plaintiff would be “looked upon by the public as playing the race card to receive benefits [she is] not otherwise entitled to.” (Doc. No. 210 at 12.) Furthermore, Plaintiff’s attorneys only represented one party, not multiple parties, significantly lessening the complexity and burden of the litigation. Accordingly, despite
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the success obtained by Plaintiff’s counsel, the Court finds that a lodestar multiplier, reserved for cases in which exceptional success is obtained, is not warranted in this case.
H. Costs Already Taxed Plaintiff also seeks review of the Clerk of Court’s Final Taxation of Costs. Defendant urges the Court to deny Plaintiff’s request in its entirety because Plaintiff “cannot recover for costs already taxed on March 15th, 2010.” (Doc. No. 231 at 2.) Specifically, Defendant argues that “[t]he costs sought in [Plaintiff’s] Motion, are the same costs sought in the Bill of Costs,” and “should be denied because the Clerk already taxed these costs and because they are not recoverable as part of the Motion for Fees.” (Id. at 12.) Upon receiving a Motion for Review of the Clerk of Court’s Final Taxation of Costs, the Court reviews the Clerk’s determination de novo. Reed v. Cracker Barrel Old Country Store, Inc., 171 F. Supp. 2d 751, 755 (M.D. Tenn. 2001). In seeking an alteration of the Clerk’s taxation of costs, “‘[t]he party objecting to the clerk's taxation has the burden of persuading the court that it was improper.’” BDT Prods., Inc. v. Lexmark Int'l, Inc., 405 F.3d 415, 420 (6th Cir. 2005) (quoting 10 Charles Alan Wright et al., Federal Practice and Procedure § 2679 (3d ed. 1998)). Accordingly, the burden rests on Plaintiff to persuade the Court that the amount taxed by the Clerk of $4,570.95 is insufficient or inaccurate. In making the determination of costs, the Clerk relied by incorporation on the arguments laid out in Defendant’s Objections to Plaintiff’s Amended Bill of Costs, and made the reduction as requested by Defendant for the reasons stated in Defendant’s Objections. (Doc. No. 212 (referencing Doc. No. 208)). Therefore, in order to seek sufficient review of the Clerk’s Taxation of Costs, Plaintiff must respond to Defendant’s Objections in order to persuade the Court that the Taxation was improper. Plaintiff has largely failed to do so. In her Motion for
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Review, Plaintiff provides only a reference to her Memorandum in Support as providing the rationale for her request for review. (Doc. No. 223.) Upon examination, Plaintiff’s Memorandum fails to address the majority of the costs denied by the Clerk, and provides rationales only for her requests for costs for court reporters’ transcripts and costs for exemplification and copies. As such, the Court finds that Plaintiff has not carried her burden in challenging the Clerk’s taxation of costs for a majority of the costs taxed. Therefore, requests for costs that were not granted by the Clerk are denied, apart from the requests for costs for court reporters’ transcripts and copies, which will be addressed below.
1. Costs for Court Reporters’ Transcripts Plaintiff seeks an award of costs of $7,839.72 for fees for printed or electronically recorded transcripts necessarily obtained for use in this case. (Doc. No. 204 at 1.) Plaintiff’s Memorandum asks the Court to award costs for deposition transcripts where the Court determines “it was ‘necessarily obtained for use in the case.’” (Doc. No. 210 at 12) (quoting LeVay Corp. v. Dominion Fed. Savings & Loan Assoc., 930 F.R.D. 522, 528 (4th Cir. 1987)). Defendant challenged $3,804.47 of that request on the grounds that the costs were not recoverable as costs under 28 U.S.C. § 1920, or, in the alternative, were not reasonable or necessary for use in this case. (Doc. No. 208 at 2-12.)
i. Not Recoverable as Costs Defendant challenged $1,687.25 in costs billed as printed or electronically recorded transcripts as non-recoverable fees. Upon examination, these costs appear to be fees for legal services performed by Netwon, Becker, Bouwkamp and Pendoski, PC, Attorneys at Law. The itemized receipt billed Plaintiff for such activities as “review voicemail,” “prepare letter,” “examine law re: service of out of state witness subpoena,” and “file pleading in district court.”
20

(Doc. No. 204-2 at 18-21.) The Court finds that these fees are for legal services are not recoverable as costs, especially not as costs billed as printed or electronically recorded transcripts. As such, the Clerk’s denial of such costs to Plaintiff is affirmed.
Defendant further challenged $28.00 in costs for postage relating to copies of transcripts, arguing that such costs are not enumerated in 28 U.S.C § 1920 and are therefore not recoverable. Plaintiff does not provide support for her claim that 28 U.S.C $ 1920 allows for recovery for postage costs, and the Court finds that she has not carried her burden in establishing that they are recoverable despite the fact that they are not specifically enumerated in the statute as recoverable costs. As such, the Clerk’s denial of such costs to Plaintiff is affirmed.
ii. Not Reasonable or Necessary Defendant challenged $405.35 in costs for the depositions of Karen Carey and Donald Payne, arguing that the subpoenas duces tecum and subsequent depositions were used to obtain several documents and testimony as to the authenticity of those documents which was never used in trial. “Ordinarily, the cost of taking and transcribing depositions reasonably necessary for the litigation are allowed to the prevailing party. Necessity is determined as of the time of taking, and the fact that a deposition is not actually used at trial is not controlling.” Sales v. Marshall, 873 F.2d 115, 120 (6th Cir. 1989). As such, the Court finds Defendant’s argument without merit, and awards Plaintiff the requested costs of $405.35 for the depositions. Defendant further challenged $50.00 in costs for the appearance fee for Alan Bouwkamp, a court reporter from Connor and Associates, where Plaintiff canceled the deposition after the reporter had already arrived. Defendant argued that the appearance was unnecessary because Plaintiff knew the day prior that the deposition had been rescheduled and therefore could have prevented the costs from being incurred. (Doc. No. 208 at 8.) The Court finds that this cost was
21

indeed unnecessary, as evidenced by the letter from Plaintiff’s attorney attached as an exhibit to Defendant’s Response in Opposition, confirming the rescheduled deposition the day prior to the date the cost was incurred. (Doc. No. 208-4). As such, the Clerk’s denial of such costs to Plaintiff is affirmed.
Finally, Defendant challenged three cost requests on the grounds that Plaintiff failed to specify the purpose of these costs and to what end they were used. Defendant challenged $1,155.99 in costs for work of a court reporter named LaVonne Cleeton for an unspecified deposition; $460.00 in costs for copies of transcripts and DVDs of video depositions which Defendant argued were unnecessary and solely for Plaintiff’s counsels’ convenience; and $17.88 for fees for printed and electronically recorded transcripts where the invoices in that category totaled less than the amount requested on Plaintiff’s Bill of Costs. Because there is no documentation provided to identify the nature of these costs, the Court is unable to determine whether these costs were reasonably necessary for use in this case. As such, the Clerk’s denial of such costs to Plaintiff is affirmed.
2. Costs for Exemplification and Making Copies Plaintiff seeks an award of costs of $4,925.20 for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case. (Doc. No. 204 at 1.) Defendant objects to the entire request for these costs, arguing that “because of the limited documentation provided by [Plaintiff] to support her purported copying and exemplification costs, it cannot be said that these costs were incurred for copies ‘necessarily obtained for use in the case.’” (Doc. No. 208 at 11.) Plaintiff’s Memorandum provides no indication of the purpose or use of these copies, and only cites law standing for the proposition that such copies may be taxable as costs if the Court finds they were necessarily obtained for use
22

in the case. (Doc. No. 210 at 13.) Without any supportive documentation or declarations as to the nature of the documents copied or their use, the Court is unable to determine whether these costs were reasonably necessary for use in this case. As such, the Clerk’s denial of such costs to Plaintiff is affirmed.
3. Final Costs Taxed After review of the Clerk’s Final Taxation of Costs, the Court awards Plaintiff the original taxation of costs in the amount of $4,570.95, and further awards Plaintiff the additional costs of $405.35 for the depositions of Karen Carey and Donald Payne. In total, the Court awards Plaintiff costs in the amount of $4,976.30.
IV. CONCLUSION Plaintiff’s Fee Motions and Motion for Review are GRANTED with the foregoing
adjustments. The Court finds that Plaintiff is entitled to an award of $56,105.00 for Mr. Allman’s work, $153,934.00 for Ms. Rogers’ work, and $4,976.30 in costs.
It is so ORDERED. Entered this the 2nd day of August, 2011.
23

 
 BRYANT,CASE−CLOSED,PROTECTIVE−ORDER
U.S. District Court Middle District of Tennessee (Nashville) CIVIL DOCKET FOR CASE #: 3:06−cv−00593

Equal Employment Opportunity Commission v. Whirlpool Corporation Assigned to: Senior Judge John T. Nixon Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 06/09/2006 Date Terminated: 12/21/2009 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Equal Employment Opportunity Commission

represented by Deidre Smith Equal Employment Opportunity Commission 1407 Union Avenue Suite 621 Memphis, TN 38104 (901) 544−0116 Email: deidre.smith@eeoc.gov ATTORNEY TO BE NOTICED

Faye A. Williams Equal Employment Opportunity Commission (Memphis Office) 1407 Union Avenue Suite 900 Memphis, TN 38104 (901) 544−0088 Email: faye.williams@eeoc.gov ATTORNEY TO BE NOTICED

Sally Ramsey Constangy, Brooks, Smith, & Prophete, LLP (Nashville Office) 401 Commerce Street Suite 1010 Nashville, TN 37219 (615) 320−5200 Fax: (615) 321−5891 Email: sramsey@constangy.com ATTORNEY TO BE NOTICED

Steven W. Dills Equal Employment Opportunity Commission 1407 Union Ave. Suite 901 Memphis, TN 38104 901−544−0136 Fax: 901−544−0111 TERMINATED: 04/04/2011

V.

Defendant

Whirlpool Corporation

represented by Adam Carl Wit Littler, Mendelson, P.C. 200 N LaSalle Street Suite 2900 Chicago, IL 60601 (312) 372−5520

Case: 3:06-cv-593 As of: 06/08/2017 03:40 PM CDT 1 of 20

Fax: (312) 372−7880 Email: awit@littler.com ATTORNEY TO BE NOTICED
Asilia S. Backus Littler, Mendelson, P.C. (Chicago) 321 N Clark Street Suite 1000 Chicago, IL 60654 (312) 372−5520 Fax: (312) 372−7880 Email: abackus@seyfarth.com ATTORNEY TO BE NOTICED
David Christlieb Littler, Mendelson, P.C. (Chicago) 321 N Clark Street Suite 1000 Chicago, IL 60654 (312) 372−5520 Fax: (312) 372−7880 Email: dchristlieb@littler.com ATTORNEY TO BE NOTICED
Keith C. Hult Littler, Mendelson, P.C. 200 N LaSalle Street Suite 2900 Chicago, IL 60601 (312) 372−5520 Email: khult@littler.com ATTORNEY TO BE NOTICED
Timothy K. Garrett Bass, Berry & Sims (Nashville Office) 150 Third Avenue South Suite 2800 Nashville, TN 37201 (615) 742−6200 Email: tgarrett@bassberry.com ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff Carlota Freemen

represented by Andy L. Allman 131 Saundersville Road Suite 110 Nashville, TN 37075 (615) 933−0110 Fax: (615) 265−8766 Email: andylallman@comcast.net ATTORNEY TO BE NOTICED

Helen Sfikas Rogers Rogers, Kamm & Shea 2205 State Street Nashville, TN 37203 (615) 320−0600 Fax: (615) 320−9933 Email: helen37203@aol.com ATTORNEY TO BE NOTICED

Martin D. Holmes Case: 3:06-cv-593 As of: 06/08/2017 03:40 PM CDT 2 of 20

Dickinson Wright PLLC (Nashville Office) 424 Church Street Suite 1401 Nashville, TN 37219−2392 (615) 244−6538 Email: mdholmes@dickinsonwright.com TERMINATED: 01/27/2009
Siew−Ling Shea Rogers, Kamm & Shea 2205 State Street Nashville, TN 37203 (615) 320−0600 Fax: (615) 320−9933 Email: siewlingshea@yahoo.com ATTORNEY TO BE NOTICED

Date Filed 06/09/2006 06/09/2006 07/05/2006 07/19/2006 07/20/2006
07/21/2006 07/21/2006 07/24/2006 07/24/2006 08/07/2006
08/07/2006
08/07/2006

# Docket Text
1 COMPLAINT against Whirlpool Corporation (Filing fee $350), filed by Equal Employment Opportunity Commission.(eh) (Entered: 06/12/2006)
2 NOTICE of Initial Case Management Conference set for Monday 7/24/2006 at 09:00 AM in Courtroom 764 before Magistrate Judge Juliet Griffin. (eh) (Entered: 06/12/2006)
3 WAIVER OF SERVICE Returned Executed by Equal Employment Opportunity Commission. Whirlpool Corporation waiver sent on 6/27/2006, answer due 8/28/2006. (Ramsey, Sally) Modified Text on 7/5/06 (jb). (Entered: 07/05/2006)
4 MOTION to Continue by Equal Employment Opportunity Commission. Responses due by 8/7/2006 (Attachments: # 1 Proposed Order Proposed Order Granting Motion)(Ramsey, Sally) (Entered: 07/19/2006)
5 ORDER granting 4 Motion to Continue Initial Case Management Conference. Case Management Conference reset for 8/10/2006 at 02:00 PM in Courtroom 764 before Magistrate Judge Juliet Griffin. The stay of discovery is lifted. Signed by Judge Juliet Griffin on 7/20/06. (gi, ) (Entered: 07/20/2006)
6 MOTION to Intervene in Action Filed by the Equal Employment Opportunity Commission by Carlota Freemen. Responses due by 8/7/2006 (Rogers, Helen) (Entered: 07/21/2006)
7 MEMORANDUM in Support of 6 MOTION to Intervene in Action Filed by the Equal Employment Opportunity Commission filed by Carlota Freemen. (Rogers, Helen) (Entered: 07/21/2006)
8 ORDER granting 6 Motion to Intervene. Clerk is directed to docket the intervening complaint. Signed by Judge Juliet Griffin on 7/24/06. (gi, ) (Entered: 07/24/2006)
9 Intervenor COMPLAINT filed by Carlota Freemen.(gi, ) (Entered: 07/24/2006)
10 MOTION for attorney Adam C. Wit to Appear Pro Hac Vice by Whirlpool Corporation. (PHV Fee Paid)Responses due by 8/24/2006 (Attachments: # 1 Exhibit Certificate of Good Standing)(Garrett, Timothy) Modified on 8/11/2006 (gi, ). (Entered: 08/07/2006)
11 MOTION for attorney Asilia Backus to Appear Pro Hac Vice by Whirlpool Corporation. (PHV Fee Paid)Responses due by 8/24/2006 (Attachments: # 1 Exhibit Certificate of Good Standing)(Garrett, Timothy) Modified on 8/11/2006 (gi, ). (Entered: 08/07/2006)
12 MOTION for attorney Keith Hult to Appear Pro Hac Vice by Whirlpool Corporation. (PHV Fee Paid) Responses due by 8/24/2006 (Attachments: # 1 Exhibit Certificate of Good Standing)(Garrett, Timothy) Modified on 8/11/2006 (gi, ). (Entered: 08/07/2006)

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08/07/2006 13 ANSWER to Complaint with Jury Demand by Whirlpool Corporation.(Garrett, Timothy) (Entered: 08/07/2006)

08/07/2006 14 PROPOSED CASE MANAGEMENT ORDER filed by Equal Employment Opportunity Commission. (Dills, Steven) (Entered: 08/07/2006)

08/07/2006 15 CORPORATE DISCLOSURE STATEMENT filed by Whirlpool Corporation. (Garrett, Timothy) (Entered: 08/07/2006)

08/08/2006

Note to Filer re DE #10 & #11: The Certificates of Good Standing should be filed as separate documents rather than as attachments. The "Certificate of Good Standing" event is found under the category "Other Documents". It is not necessary to refile the certificates. (gi, ) (Entered: 08/08/2006)

08/10/2006

Minute Entry for proceedings held before Judge Juliet Griffin : Initial Case Management Conference held on 8/10/2006. (Tape #G2006−098.) (jwc, ) (Entered: 08/17/2006)

08/11/2006 16 RECEIPT #111101 in the amount of $75.00 re 10 Motion for Attorney Adam Wit to Appear Pro Hac Vice. (gi, ) (Entered: 08/11/2006)

08/11/2006 17 RECEIPT #111102 in the amount of $75.00 re 11 Motion for Atty Asilia Backus to Appear Pro Hac Vice. (gi, ) (Entered: 08/11/2006)

08/11/2006 18 RECEIPT #111103 in the amount of $75.00 re 12 Motion for Atty Keith Hult to Appear Pro Hac Vice. (gi, ) (Entered: 08/11/2006)

08/14/2006

19 ORDER granting 10 11 12 Motions for Adam C. Wit, Asilia Backus andKeith Hult to Appear Pro Hac Vice. Signed by Judge Juliet Griffin on 8/14/06. (gi, ) (Entered: 08/15/2006)

08/16/2006

20 CASE MANAGEMENT ORDER: Motions to amend the pleadings to be filed by 11/13/2006. Fact discovery to be completed by 4/2/2007. Dispositive motions to be filed by 6/1/2007, responses by 7/2/07 and replies by 7/16/07. Signed by Judge Juliet Griffin on 8/16/06. (gi, ) (Entered: 08/16/2006)

08/16/2006

21 ORDER:The Court has approved and entered the parties' proposed case management order. Jury Trial set for 10/16/2007 at 09:00 AM in Courtroom 774 before Senior Judge John T. Nixon. Final Pretrial Conference set for 10/5/2007 at 10:00 AM before Senior Judge John T. Nixon. Proposed Pretrial Order due by 9/28/2007. Signed by Judge Juliet Griffin on 8/16/06. (gi, ) (Entered: 08/16/2006)

08/16/2006

22 ORDER: Case reassigned to Magistrate Judge John S. Bryant pursuant to AO No. 138−4. Case remains assigned to Judge Nixon. Signed by Judge Juliet Griffin on 8/16/06. (gi, ) (Entered: 08/16/2006)

08/24/2006 23 ANSWER to Intervenor Complaint and Affirmative Defenses by Whirlpool Corporation.(Backus, Asilia) (Entered: 08/24/2006)

11/08/2006 24 MOTION to Amend/Correct Scheduling Order by Carlota Freemen. (Rogers, Helen) (Entered: 11/08/2006)

11/09/2006

Note to Filer re DE #24: Each exhibit should be filed as a separate attachment to the main document and the mandatory description field used. It is not necessary to re−file these documents. (gi, ) (Entered: 11/09/2006)

11/13/2006

25 ORDER granting 24 Motion to Extend Scheduling Order Deadline. Ddl for filing mtns to amend the pleadings is extended to 12/15/2006. Signed by Judge John S. Bryant on 11/13/06. (gi, ) (Entered: 11/13/2006)

11/13/2006

26 RESPONSE to Motion re 24 MOTION to Amend/Correct Scheduling Order filed by Whirlpool Corporation. (Attachments: # 1 Exhibit 1−Correspondence to Helen Rogers# 2 Exhibit 2−Correspondence from Helen Rogers# 3 Exhibit 3−Correspondence from Helen Rogers# 4 Exhibit 4−Correspondence to Helen Rogers# 5 Exhibit 5−Correspondence from Helen Rogers)(Backus, Asilia) (Entered: 11/13/2006)

12/14/2006

27 MOTION for Extension of Time to Complete Discovery by Carlota Freemen. (Attachments: # 1 Exhibit A − Order to Extend Scheduling Deadline# 2 Exhibit B − Backus Letter to Rogers 11−27−06# 3 Exhibit C − Response to RPD Pages 1 −15# 4

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Exhibit C − Response to RPD Pages 16 − 31# 5 Exhibit C − Response to RPD Pages 32−45# 6 Exhibit C − Response to RPD Pages 46 − 62# 7 Exhibit C − Response to RPD Pages 63−79# 8 Exhibit C − Response to RPD Pages 80 − 97# 9 Exhibit C − Response to RPD Pages 98 − 105# 10 Exhibit C − Response to RPD Pages 106 − 119# 11 Exhibit C − Response to RPD Pages 120 − 135# 12 Exhibit C − Response to RPD Pages 136 − 149# 13 Exhibit D − Answers to Interrogatories# 14 Exhibit E − Backus Letter to Dills and Rogers 11−27−06)(Rogers, Helen) (Entered: 12/14/2006)

12/18/2006

28 RESPONSE in Opposition re 27 MOTION for Extension of Time to Complete Discovery and Extend Scheduling Order Deadline filed by Whirlpool Corporation. (Attachments: # 1 Exhibit 1−Correspondence# 2 Exhibit 2−Correspondence# 3 Exhibit 3−Correspondence)(Backus, Asilia) (Entered: 12/18/2006)

01/24/2007

29 First MOTION to Compel Discovery and for Sanctions by Carlota Freemen. (Attachments: # 1 Exhibit Defendants Answers and Objections to Intervening Plaintiffs First Set of Interrogatories# 2 Exhibit Defendants Responses and Objections to Intervening Plaintiffs First Request for Production of Documents# 3 Exhibit Collective Exhibit C; Two Letters; dated November 1 and 6, 2006# 4 Exhibit Courts Order of December 15, 2006# 5 Exhibit Letter of November 27, 2006# 6 Exhibit Carlota Freeman's Whirlpool Records# 7 Exhibit Letter dated December 7, 2006# 8 Exhibit Joint Written Statement Pursuant to Local Rule 37.01# 9 Exhibit Letter dated December 7, 2006 to Helen S. Rogers from Littler Mendelson# 10 Exhibit Defendants First Supplemental Answers and Objections to Intervening Plaintiffs First Set of Interrogatories# 11 Exhibit Defendants First Supplemental Responses and Objections to Intervening Plaintiffs First Request for Production of Documents)(Rogers, Helen) (Entered: 01/24/2007)

02/08/2007 30 NOTICE by Whirlpool Corporation re 29 First MOTION to Compel Discovery and for Sanctions (Garrett, Timothy) (Entered: 02/08/2007)

02/09/2007 31 MOTION to Continue by Carlota Freemen. (Attachments: # 1 Proposed Order Agreed Order)(Rogers, Helen) (Entered: 02/09/2007)

02/14/2007

32 ORDER granting 31 motion to hold in abeyance motion to compel discovery and for sanctions 29 for 30 days. Signed by Judge John S. Bryant on 2/14/07. (gi, ) (Entered: 02/14/2007)

03/02/2007

33 MOTION for Extension of Time to Complete Discovery Deadline and Corresponding Deadlines Including Dispositive Motion Deadline and Trial Date by Whirlpool Corporation. (Backus, Asilia) (Entered: 03/02/2007)

03/02/2007 34 MOTION for Protective Order Agreed by Whirlpool Corporation. (Attachments: # 1 Exhibit 1)(Backus, Asilia) (Entered: 03/02/2007)

03/13/2007 35 ORDER granting 34 Motion for Protective Order. Signed by Judge John S. Bryant on 3/13/07. (gi, ) (Entered: 03/13/2007)

03/13/2007 36 AGREED PROTECTIVE ORDER. Signed by Judge John S. Bryant on 3/13/07. (gi, ) (Entered: 03/13/2007)

03/15/2007

37 ORDER granting 33 Motion for Extension of Time to Complete Discovery Deadline and Corresponding Deadlines Including Dispositive Motion Deadline and Trial Date. Pretrial Conference reset for 2/8/2008 at 10:00 AM before Senior Judge John T. Nixon. Jury Trial reset for 2/19/2008 at 09:00 AM in Courtroom 774 before Senior Judge John T. Nixon. Written discovery to be completed by 6/1/2007. Dispositive motions to be filed by 7/31/2007. Signed by Judge John S. Bryant on 3/15/07. (gi, ) (Entered: 03/15/2007)

03/15/2007 38 ORDER denying as moot 27 Motion to Extend Scheduling Order Deadline in view of order 37 . Signed by Judge John S. Bryant on 3/15/07. (gi, ) (Entered: 03/15/2007)

04/02/2007

Minute Entry for proceedings held before Magistrate Judge Bryant: Telephone conference held on 4/2/2007 re discovery. Order to enter. (tm) (Entered: 04/02/2007)

04/03/2007

39 ORDER: Telephone conference held 4/2/07. Certain pretrial ddls are extended. Fact discovery & expert witness discovery due by 8/31/2007. Dispositive motions due by 10/1/2007, responses by 11/1/07 and replies by 11/15/07. Signed by Judge John S. Bryant on 4/3/07. (gi, ) (Entered: 04/03/2007)

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07/13/2007 07/13/2007 08/07/2007 08/29/2007 08/30/2007 08/30/2007
08/31/2007 08/31/2007 09/04/2007 09/11/2007
09/11/2007 09/20/2007 09/20/2007
09/20/2007
09/20/2007
09/21/2007 10/01/2007

40 SUBPOENA FOR DEPOSITION issued to Kim Wheeler and returned executed on 7/11/07 by Equal Employment Opportunity Commission. (gi, ) (Entered: 07/16/2007)
41 SUBPOENA FOR DEPOSITION issued to Charles Fisher and returned unexecuted by Equal Employment Opportunity Commission. (gi, ) (Entered: 07/16/2007)
42 SUBPOENA issued to Charles Fisher and returned executed on 8/5/07 as to Charles Fisher by Equal Employment Opportunity Commission, Carlota Freemen (jb) (Entered: 08/07/2007)
43 ORDER denying 29 Pltf's Motion to Compel without prejudice to her filing a similar motion if discovery issues persist. Signed by Judge John S. Bryant on 8/28/07. (jb) Modified on 8/30/07 (jb). (Entered: 08/30/2007)
Emailed a copy of 43 Order to all counsel. (jb) (Entered: 08/30/2007)
44 MOTION to allow an additional 45 days to disclose an economic expert and his/her opinion by Carlota Freemen. (Attachment: (1) Exhibit Deposition Page 50 of Stephen Montgomery, M.D.)(Rogers, Helen) Modified Text on 8/31/07 (jb). (Entered: 08/30/2007)
Note to Filer re DE #44−This document has been scanned. Scanning should be used only for documents that are not created on your computer. This document does not need to be re−filed unless otherwise directed by the Court. (jb) (Entered: 08/31/2007)
45 AMENDED Rule 26(a)(1) Initial Disclosures by Carlota Freemen. (Rogers, Helen) (SEE DOCKET ANNOTATION MADE 9/4/07.) Modified Text on 9/4/07 (jb). (Entered: 08/31/2007)
Note to Filer re DE #45−Pursuant to Rule 5(d) of the Federal Rules of Civil Procedure, disclosures under Rule 26(a)(1) or (2) must not be filed until they are used in the proceeding or the court orders filing. (jb) (Entered: 09/04/2007)
46 RESPONSE in Opposition to 44 MOTION to Modify the Court's Scheduling Order filed by Whirlpool Corporation. (Attachment: (1) Exhibit 1−Stephen A. Montgomery, M.D. Deposition Transcript Pages)(Backus, Asilia) Modified Text on 9/11/07 (jb). (Entered: 09/11/2007)
47 RESPONSE to 44 MOTION to Modify the Court's Scheduling Order filed by Equal Employment Opportunity Commission. (Dills, Steven) Modified Text on 9/12/07 (jb). (Entered: 09/11/2007)
48 NOTICE of Appearance by Siew−Ling Shea on behalf of Carlota Freemen (Shea, Siew−Ling) (Entered: 09/20/2007)
49 MOTION in Limine With Exhibits by Carlota Freemen. (Attachments: # 1 Exhibit Notice of Subpoenaed Deposition# 2 Exhibit Defendants Amended Rule 26 Initial Disclosures# 3 Exhibit Declaration of Catina Renea Bolden# 4 Exhibit Catina Renea Bolden's Prior Statement)(Rogers, Helen) (Entered: 09/20/2007)
50 MEMORANDUM in Support of 49 MOTION in Limine With Exhibits filed by Carlota Freemen. (Attachments: # 1 Exhibit Notice of Subpoenaed Deposition# 2 Exhibit Defendants Amended Rule 26 Initial Disclosure# 3 Exhibit Declaration of Catina Renea Bolden# 4 Exhibit Catina Bolden's Prior Statement)(Rogers, Helen) (Entered: 09/20/2007)
Note to Filer re DE Nos. 48−50 −These documents have been scanned. Scanning should be used only for documents that are not created on your computer. Signed declarations should be filed as separate events, not as attachments to other pleadings. These documents do not need to be re−filed unless otherwise directed by the Court.(jb) (Entered: 09/20/2007)
51 First MOTION to Take Deposition from Karen L. Carey by Carlota Freemen. (Attachments: # 1 Proposed Order Agreed Order Rescheduling Deposition)(Rogers, Helen) (Entered: 09/21/2007)
52 AGREED ORDER granting 51 Motion to Take Deposition from Karen L. Carey. The deposition of Karen L. Carey of Liberty Mutual Group−Indianapolis Division, shall be rescheduled to take place by telephone on 9/26/07 at 8:00 a.m., central standard time

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10/03/2007 10/25/2007 10/29/2007
11/06/2007 11/06/2007
11/08/2007
11/14/2007 11/15/2007 11/21/2007 11/27/2007 11/30/2007 12/21/2007
12/27/2007 01/09/2008

zone, at the law offices of Newton Becker Bouwkamp Pendoski, PC, Indianapolis, Indiana. Signed by Judge John S. Bryant on 10/1/07. (jb) (Entered: 10/01/2007)
53 RESPONSE in Opposition re 49 MOTION in Limine With Exhibits filed by Whirlpool Corporation. (Attachments: # 1 Exhibit 1−Sessoms v. Ghertner)(Backus, Asilia) (Entered: 10/03/2007)
54 MEMORANDUM of Law in support of and filing of supplement to 44 MOTION to modify the court's scheduling order to disclose economic expert and his opinion report filed by Carlota Freemen. (w/attachments) (Rogers, Helen) Modified Text on 10/29/07 (jb). (Entered: 10/25/2007)
Note to Filer re DE #54−This document has been scanned. Scanning should be used only for documents that are not created on your computer. Each exhibit should be filed as a separate attachment to the main document and the mandatorydescription field used. The mandatory description field should be used to accurately describe the contents of your attachment (labeling as Exhibit A, B C or Exhibit 1, 2, 3 is not sufficient). This document does not need to be re−filed unless otherwise directed by the Court. (jb) (Entered: 10/29/2007)
55 MOTION to Strike Intervening Plaintiff's "Amended" Rule 26(a)(2) Disclosures by Whirlpool Corporation. (Backus, Asilia) (Entered: 11/06/2007)
56 MEMORANDUM in Support of 55 MOTION to Strike Intervening Plaintiff's "Amended" Rule 26(a)(2) Disclosures filed by Whirlpool Corporation. (Attachments: # 1 Exhibit 1−Intervening Plaintiff's Amended Rule 26(a)(2) Expert Disclosures# 2 Exhibit 2−March 14, 2007 Letter# 3 Exhibit 3−March 19, 2007 Letter# 4 Exhibit 4−March 22, 2007 Letter# 5 Exhibit 5−Case)(Backus, Asilia) (Entered: 11/06/2007)
57 RESPONSE in Opposition to 44 Intervening Plaintiff's Supplement to Her Motion to Modify the Court's Scheduling Order filed by Whirlpool Corporation. (Attachments: (1) Exhibit 1−Deposition Transcript Pages (2) Exhibit 2−Deposition Transcript Pages (3) Exhibit 3−Cases)(Backus, Asilia) Modified Text on 11/8/07 (jb). (Entered: 11/08/2007)
58 RESPONSE in Opposition re 55 MOTION to Strike Intervening Plaintiff's "Amended" Rule 26(a)(2) Disclosures filed by Carlota Freemen. (Attachments: (1) Exhibit 1−Excerpt from Dr. Stephen Montgomery's Deposition)(Rogers, Helen) Modified Text on 11/15/07 (jb). (Entered: 11/14/2007)
Note to Filer re DE #58−This document has been scanned. Scanning should be used only for documents that are not created on your computer. This document does not need to be re−filed unless otherwise directed by the Court. (jb) (Entered: 11/15/2007)
59 MOTION for Leave to File Reply Brief in Support of Motion to Strike Intervening Plaintiff's Amended Rule 26(a)(2) Disclosures by Whirlpool Corporation. (Garrett, Timothy) (Entered: 11/21/2007)
60 ORDER granting 59 Motion for Leave to File a Reply Brief in support of its Motion to Strike Intervening Plaintiff's "Amended" Rule 26(a)(2) Disclosures. Signed by Judge John S. Bryant on 11/27/07. (jb) (Entered: 11/27/2007)
61 REPLY to Response to Motion re 55 MOTION to Strike Intervening Plaintiff's "Amended" Rule 26(a)(2) Disclosures filed by Whirlpool Corporation. (Attachments: # 1 Exhibit 1−Case)(Backus, Asilia) (Entered: 11/30/2007)
62 ORDER: For the reasons stated below, plaintiff's Motion for Additional Time 44 is Granted, and defendant's MOTION to Strike 55 is Denied. Inasmuch as the trial of this case is to be postponed and rescheduled. The following revised deadlines shall govern the progression of this case: Discovery due by 4/15/2008. Dispositive Motions due by 5/1/2008. Signed by Judge John S. Bryant on 12/21/07. (cc: Freemen by cert. & reg. mail)(dt) Modified Text on 12/21/2007 (dt). (Entered: 12/21/2007)
63 Green card to Carlota Freeman, returned on 12/27/07 as to DE No. 62, signed by S. Armor on 12/26/07. (jb) (Entered: 12/27/2007)
64 ORDER: Judge Nixon's Courtroom Deputy has advised the Magistrate Judge's office that this case is set for a Jury Trial on 9/9/08 at 9:00 a.m. with a Final Pretrial

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Conference on 8/29/08 at 10:00 AM. The parties should contact Judge Nixon's Chambers regarding Judge Nixon's requirements for both the trial and final pretrial conference. Signed by Judge John S. Bryant on 1/9/08. (jb) (Entered: 01/09/2008)

01/14/2008 65 MOTION to Continue by Carlota Freemen. (Attachments: # 1 Exhibit 1−Order to Set)(Rogers, Helen) (Entered: 01/14/2008)

01/16/2008 66 NOTICE of Appearance by Deidre Smith on behalf of Equal Employment Opportunity Commission (Smith, Deidre) (Entered: 01/16/2008)

01/25/2008

67 ORDER granting 65 MOTION to Continue Trial. Jury Trial is reset for 2/24/2009 at 09:00 AM before Senior Judge John T. Nixon. Signed by Judge John T. Nixon on 1/25/08. (dt) (Entered: 01/25/2008)

02/27/2008

68 MOTION to Extend the Deadline to Disclose Experts and Serve Expert Reports Pursuant to Rule 26(a)(2) by Whirlpool Corporation. (Backus, Asilia) Modified Text on 2/28/08 (jb). (Entered: 02/27/2008)

02/29/2008

69 RESPONSE in Opposition re 68 MOTION to Extend the Deadline to Disclose Experts and Serve Expert Reports Pursuant to Rule 26(a)(2) filed by Carlota Freemen. (Attachments: # 1 Exhibit # 2 Exhibit)(Rogers, Helen) (Entered: 02/29/2008)

02/29/2008

Note to Filer re DE #69−The mandatory description field, for each exhibit filed, should be used to accurately describe the contents of yourattachment (labeling as Exhibit A, B C or Exhibit 1, 2, 3 is not sufficient). This document has been scanned. Scanning should be used only for documents that are not created on your computer. This document does not need to be re−filed unless otherwise directed by the Court. (jb) (Entered: 02/29/2008)

03/03/2008

70 (DISREGARD THIS ENTRY−ATTY TO REFILE) MOTION for Discovery Limiting Further Expert Discovery by Carlota Freemen. (Attachments: # 1 Exhibit A − Letter from Whirlpool dated 2−26−08)(Rogers, Helen) Modified on 3/4/2008 (jb). (Entered: 03/03/2008)

03/03/2008

71 (DISREGARD THIS ENTRY−ATTY TO REFILE) MEMORANDUM in Support of 70 MOTION for Discovery Limiting Further Expert Discovery filed by Carlota Freemen. (Rogers, Helen) Modified on 3/4/2008 (jb). (Entered: 03/03/2008)

03/04/2008

72 First MOTION To Limit Further Expert Disclosure by Carlota Freemen. (Attachment: # 1 Exhibit Backus Letter of 02−25−08)(Rogers, Helen) Modified Text on 3/5/08 (jb). (Entered: 03/04/2008)

03/04/2008

73 MEMORANDUM OF LAW in Support of 72 First MOTION To Limit Further Expert Disclosure filed by Carlota Freemen. (Rogers, Helen) Modified Text on 3/5/08 (jb). (Entered: 03/04/2008)

03/05/2008

74 MOTION for Leave to file a reply brief in support of 68 motion to extend the deadline to disclose experts and serve expert reports pursuant to Rule 26(a)(2) by Whirlpool Corporation. (Backus, Asilia) Modified Text on 3/5/08 (jb). (Entered: 03/05/2008)

03/13/2008

75 RESPONSE in Opposition re 72 First MOTION To Limit Further Expert Disclosure filed by Whirlpool Corporation. (Attachments: # 1 Exhibit A−Letter dated March 22, 2007# 2 Exhibit B−Letter dated December 12, 2007# 3 Exhibit C−Cases)(Backus, Asilia) (Entered: 03/13/2008)

04/14/2008 76 MOTION for Extension of Time to Complete Discovery by Whirlpool Corporation. (Backus, Asilia) (Entered: 04/14/2008)

04/18/2008

77 RESPONSE in Opposition re 76 MOTION for Extension of Time to Complete Discovery filed by Carlota Freemen. (Attachments: # 1 Exhibit Deposition of Pam Auble, *Exhibit re−filed, see DE 78 *; # 2 Exhibit Deposition of Karen Carey)(Rogers, Helen) Modified on 4/24/2008 (gi). (Entered: 04/18/2008)

04/21/2008

Note to Filer re DE# 77 : All documents should be filed so that they may be read without the necessity of rotation. The Deposition of Pam Auble (Exhibit #1) needs to be re−filed. (ab) (Entered: 04/21/2008)

04/23/2008 78 Additional Attachments to Main Document re: 77 Response in Opposition to Motion. (Rogers, Helen) (Entered: 04/23/2008)

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04/24/2008

79 ORDER granting 68 Motion for Extension of Time to Complete Discovery to the extent stated in this order; denying 72 Motion to Limit Further Expert Discovery; denying as moot 74 Motion for Leave to File Reply Brief; granting 76 Motion to Extend Discovery to the extent stated in this order. All discovery shall be completed by 9/30/08. Dispositive mtns to be filed by 10/14/08, responses to be filed by 11/11/08 and replies by 11/25/08. Signed by Magistrate Judge John S. Bryant on 4/24/08. (gi) (Entered: 04/24/2008)

05/21/2008

80 *DISREGARD ENTRY; ATTY TO RE−FILE* MOTION New Pretrial Conference Date by Carlota Freemen. (Rogers, Helen) Modified on 5/21/2008 (gi). (Entered: 05/21/2008)

05/21/2008 81 MOTION For New Pretrial Conference Date by Carlota Freemen. (Rogers, Helen) (Entered: 05/21/2008)

05/23/2008

82 ORDER granting 81 MOTION For New Pretrial Conference Date filed by Carlota Freemen. Pretrial Conference reset for 2/13/2009 10:00 AM before Senior Judge John T. Nixon. Signed by Senior Judge John T. Nixon on 5/23/08. (km) (Entered: 05/23/2008)

08/11/2008 83 NOTICE of Appearance by Martin D. Holmes on behalf of Carlota Freemen (Holmes, Martin) (Entered: 08/11/2008)

08/21/2008

84 MOTION for attorney David L. Christlieb (PHV FEE PAID) to Appear Pro Hac Vice by Whirlpool Corporation. (Attachments: # 1 Exhibit Christlieb Certificate of Good Standing)(Garrett, Timothy) Modified text on 9/10/2008 (tmw). (Entered: 08/21/2008)

09/10/2008

85 RECEIPT #34675004078 in the amount of $75, PHV fee for Atty Christlieb, posted by Whirlpool Corporation re 84 Motion to Appear Pro Hac Vice. (tmw) (Entered: 09/10/2008)

09/12/2008 86 ORDER granting 84 Motion for Atty David L. Christlieb to Appear Pro Hac Vice. Signed by Magistrate Judge John S. Bryant on 9/12/08. (tmw) (Entered: 09/12/2008)

01/09/2009

87 ORDER: This matter is set for a jury trial on 2/24/09, at 9:00 a.m. The Pretrial Conference is set on 2/13/09, at 10:00 a.m. Counsel for the parties shall confer and attempt to prepare a new pretrial order to be submitted to the Court on or before noon on 2/12/09. Signed by Senior Judge John T. Nixon on 1/9/09. (tmw) (Entered: 01/09/2009)

01/13/2009

88 ORDER: The Magistrate Judge certifies this matter ready for trial, and the Clerk is directed to forward the file to the District Judge. Unless otherwise directed by the District Judge, there appear to be no further proceedings to be conducted before the Magistrate Judge. Signed by Magistrate Judge John S. Bryant on 01/12/09. (ab) (Entered: 01/13/2009)

01/19/2009 89 MOTION to Withdraw as Attorney by Carlota Freemen. (Attachments: # 1 Exhibit Letter to Plaintiff from Mr. Holmes)(Holmes, Martin) (Entered: 01/19/2009)

01/20/2009

90 MOTION Excuse Plaintiff from Trial by Carlota Freemen. (Attachments: # 1 Exhibit Affidavit of Stephen Montgomery "A", # 2 Exhibit Affidavit of Harry Steuber "B", # 3 Exhibit Deposition of Carlota Freeman "C")(Rogers, Helen) (Entered: 01/20/2009)

01/22/2009

Note to filer re 90 : A Memorandum in support of a motion should be filed as a separate entry, not as part of the main document or as an attachment to the main document. Affidavits/declarations should also be filed as separate entries. It is not necessary to re−file these documents unless otherwise directed by the Court. (tmw) (Entered: 01/22/2009)

01/27/2009

91 ORDER granting 89 Motion to Withdraw as Attorney. Attorney Martin D. Holmes terminated. Signed by Senior Judge John T. Nixon on 1/27/09. (tmw) (Entered: 01/27/2009)

01/30/2009 92 MOTION for Leave to File Document Under Seal by Whirlpool Corporation. (Attachments: # 1 Proposed Order)(Backus, Asilia) (Entered: 01/30/2009)

01/30/2009

93 Sealed Document filed by Whirlpool Corporation. (Attachments: # 1 Exhibit A−Carlota Freeman Deposition Trancript Excerpts, # 2 Exhibit B−Willie Baker Deposition Transcript Excerpts, # 3 Exhibit C−Charles Fisher Deposition Transcript

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02/09/2009 02/10/2009
02/10/2009 02/11/2009 02/12/2009 02/12/2009 02/12/2009 02/12/2009 02/12/2009 02/12/2009 02/12/2009 02/12/2009 02/12/2009 02/12/2009 02/12/2009
02/12/2009
02/12/2009
02/12/2009

Excerpts, # 4 Exhibit D−Jimmy Lovelace Deposition Transcript Excerpts, # 5 Exhibit E−Declaration of Richard Eskildsen, # 6 Exhibit F−Kim Wheeler Deposition Transcript Excerpts, # 7 Exhibit G−Chinica Lillard Deposition Transcript Excerpts, # 8 Exhibit H−Farlota Freeman Medical Records)(Backus, Asilia) (Entered: 01/30/2009)
94 OBJECTIONS to Carlota Freeman Deposition. (Rogers, Helen) (Entered: 02/09/2009)
Note to filer re 94 : Each exhibit should be filed as a separate attachment to the main document and the mandatory description field should be used to accurately describe the contents of your attachment. Also, these documents have been scanned. Scanning should be used only for documents that are not created on your computer. A scanned document does not allow for text searches, and also creates a larger file. It is not necessary to re−file these documents unless otherwise directed by the Court. (tmw) (Entered: 02/10/2009)
95 ORDER granting 92 Motion for Leave to File Docs Under Seal. Signed by Senior Judge John T. Nixon on 2/10/09. (tmw) (Entered: 02/10/2009)
96 NOTICE of Appearance by Andy L. Allman on behalf of Carlota Freemen (Allman, Andy) (Entered: 02/11/2009)
97 First MOTION in Limine by Equal Employment Opportunity Commission, Carlota Freemen. (Allman, Andy) (Entered: 02/12/2009)
98 Second MOTION in Limine by Equal Employment Opportunity Commission, Carlota Freemen. (Allman, Andy) (Entered: 02/12/2009)
99 TRIAL BRIEF on Damages by Equal Employment Opportunity Commission, Carlota Freemen. (Allman, Andy) (Entered: 02/12/2009)
100 Exhibit List by Carlota Freemen.. (Rogers, Helen) (Entered: 02/12/2009)
101 Witness List Plaintiff's Joint by Carlota Freemen. (Rogers, Helen) (Entered: 02/12/2009)
102 PRETRIAL MEMORANDUM by Whirlpool Corporation. (Attachments: # 1 Exhibit 1 − Unreported cases)(Christlieb, David) (Entered: 02/12/2009)
103 Exhibit List by Whirlpool Corporation.. (Wit, Adam) (Entered: 02/12/2009)
104 Witness List by Whirlpool Corporation. (Wit, Adam) (Entered: 02/12/2009)
105 Proposed Jury Instructions by Whirlpool Corporation. (Attachments: # 1 Exhibit)(Christlieb, David) (Entered: 02/12/2009)
106 MOTION in Limine to Bar Comments Regarding Littler Mendelson's Location, Speciality and/or Size of Law Firm by Whirlpool Corporation. (Attachments: # 1 Exhibit 1−Case)(Hult, Keith) (Entered: 02/12/2009)
107 MOTION in Limine to Preclude Testimony and Documents Regarding the Termination of Charles Fisher by Whirlpool Corporation. (Attachments: # 1 Exhibit 1−Fred Contreras Deposition Transcript Excerpts, # 2 Exhibit 2−Contreras Dep. Ex. 5, # 3 Exhibit 3−Charles Fisher Deposition Transcript Excerpts, # 4 Exhibit 4−Unreported Case)(Backus, Asilia) (Entered: 02/12/2009)
108 MOTION in Limine to Bar Claims for, or Evidence Regarding, Lost Pay Damages by Whirlpool Corporation. (Attachments: # 1 Exhibit 1−Freeman Deposition Excerpts, # 2 Exhibit 2−Freeman Deposition Exhibit, # 3 Exhibit 3−Cohen's Report, # 4 Exhibit 4−Cohen Deposition Excerpts, # 5 Exhibit 5−Part 1−Cases, # 6 Exhibit 5−Part 2−Cases)(Hult, Keith) (Entered: 02/12/2009)
109 MOTION in Limine Defendant's Motion in Limine to Preclude Evidence Regarding EEOC Determination and EEOC Interview Notes by Whirlpool Corporation. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit)(Christlieb, David) (Entered: 02/12/2009)
110 MOTION in Limine to Preclude Evidence from the Third Party Administrators of Whirlpool's Workers Compensation Plan by Whirlpool Corporation. (Attachments: # 1 Exhibit 1−First Report of Injury or Illness, # 2 Exhibit 2−Order for Reinstatement and

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02/12/2009
02/12/2009
02/12/2009 02/12/2009 02/12/2009
02/12/2009
02/12/2009 02/12/2009 02/12/2009 02/17/2009 02/17/2009 02/17/2009 02/17/2009 02/17/2009 02/17/2009 02/17/2009

to Reset, # 3 Exhibit 3−Workers' Compensation Mediated Settlement Agreement, # 4 Exhibit 4−Karen Carey Deposition Transcript Excerpts, # 5 Exhibit 5−Donald Payne Deposition Transcript Excerpts, # 6 Exhibit 6−Unreported Case, # 7 Exhibit 7−Crawford & Company Letter)(Backus, Asilia) (Entered: 02/12/2009)
111 MOTION in Limine Defendant's Motion in Limine to Preclude Evidence Regarding Other Discrimination And/Or Harassment Complaints by Whirlpool Corporation. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Christlieb, David) (Entered: 02/12/2009)
112 MOTION in Limine to preclude Unauthenticated Tape, Unverified Transcript and Evidence Regarding Criminal Conviction Against Willie Baker by Whirlpool Corporation. (Attachments: # 1 Exhibit 1−EEOC Initial Disclosures, # 2 Exhibit 2−Relevant Correspondence, # 3 Exhibit 3−Transcript)(Hult, Keith) (Entered: 02/12/2009)
113 PRETRIAL MEMORANDUM by Equal Employment Opportunity Commission. (Dills, Steven) (Entered: 02/12/2009)
114 NOTICE by Whirlpool Corporation Defendant's Designation of Depositions To Be Introduced Into Evidence (Attachments: # 1 Exhibit 1)(Wit, Adam) (Entered: 02/12/2009)
115 MOTION in Limine Defendant's Motion in Limine to Exclude Any Claim for Damages Related to Freeman's Diabetes or Use of Seroquel by Whirlpool Corporation. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Christlieb, David) (Entered: 02/12/2009)
116 MOTION in Limine to Bar Testimony from Dr. Stephen Montgomery and Dr. Harry Steuber Regarding Ultimate Issues by Whirlpool Corporation. (Attachments: # 1 Exhibit 1−Affidavit of Dr. Stephen A. Montgomery, # 2 Exhibit 2−Affidavit of Dr. harry Steuber, # 3 Exhibit 3−Report of Dr. Harry Steuber, # 4 Exhibit 4−Report of Dr. Stephen Montgomery, # 5 Exhibit 5−Unreported Cases)(Backus, Asilia) (Entered: 02/12/2009)
117 *DISREGARD − Atty to re−file* Proposed Pretrial Order by all parties. (Backus, Asilia) Modified text on 2/17/2009 (tmw). (Entered: 02/12/2009)
118 OBJECTIONS by Defendant to Plaintiffs' Designation of Depositions to be Introduced into Evidence. (Backus, Asilia) (Entered: 02/12/2009)
119 Proposed Jury Instructions by Equal Employment Opportunity Commission. (Dills, Steven) (Entered: 02/12/2009)
120 ACKNOWLEDGEMENT OF SERVICE Executed Subpoena on February 9, 2009, at 8:00 a.m. Acknowledgement filed by Carlota Freemen. (Rogers, Helen) (Entered: 02/17/2009)
121 ACKNOWLEDGEMENT OF SERVICE Executed Subpoean on February 4, 2009 Acknowledgement filed by Carlota Freemen. (Rogers, Helen) (Entered: 02/17/2009)
122 SUBPOENA issued to Whirlpool Corporation and returned executed on February 4, 2009 as to Whirlpool Corporation by Carlota Freemen (Rogers, Helen) (Entered: 02/17/2009)
123 SUBPOENA issued to James Harding Lovelace and returned executed on February 4, 2009 as to James Harding Lovelace by Carlota Freemen (Rogers, Helen) (Entered: 02/17/2009)
124 SUBPOENA issued to Charles R. Fisher and returned executed on February 9, 2009 as to Charles R. Fisher by Carlota Freemen (Rogers, Helen) (Entered: 02/17/2009)
125 SUBPOENA issued to Timmy Ray Swader and returned executed on February 6, 2009 as to Timmy Ray Swader by Carlota Freemen (Rogers, Helen) (Entered: 02/17/2009)
126 SUBPOENA issued to Chinica Lillard and returned executed on February 5, 2009 as to Chinica Lillard by Carlota Freemen (Rogers, Helen) (Entered: 02/17/2009)

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02/17/2009 127 SUBPOENA issued to Kim C. Wheeler and returned executed on February 5, 2009 as to Kim C. Wheeler by Carlota Freemen (Rogers, Helen) (Entered: 02/17/2009)

02/17/2009 128 RESPONSE to Motion re 106 MOTION in Limine to Bar Comments Regarding Littler Mendelson's Location, Speciality and/or Size of Law Firm filed by Carlota Freemen. (Rogers, Helen) (Entered: 02/17/2009)

02/17/2009 129 RESPONSE to Motion re 115 MOTION in Limine Defendant's Motion in Limine to Exclude Any Claim for Damages Related to Freeman's Diabetes or Use of Seroquel filed by Carlota Freemen. (Rogers, Helen) (Entered: 02/17/2009)

02/17/2009 130 AFFIDAVIT re 90 MOTION Excuse Plaintiff from Trial by Carlota Freemen. (Rogers, Helen) (Entered: 02/17/2009)

02/17/2009

131 MOTION in Limine to Exclude the "Updated" Report of Dr. Stephen Montgomery by Whirlpool Corporation. (Attachments: # 1 Exhibit 1−Dr. Montgomery's Report, # 2 Exhibit 2−Dr. Montgomery Report dated February 12, 2009, # 3 Exhibit 3−Unreported Cases)(Backus, Asilia) (Entered: 02/17/2009)

02/17/2009 132 RESPONSE in Opposition re 97 First MOTION in Limine of Plaintiffs filed by Whirlpool Corporation. (Attachments: # 1 Exhibit 1−Freeman Deposition Transcript Excerpts, # 2 Exhibit 2−Unreported Cases)(Backus, Asilia) (Entered: 02/17/2009)

02/17/2009

133 RESPONSE in Opposition re 98 Second MOTION in Limine of Plaintiffs filed by Whirlpool Corporation. (Attachments: # 1 Exhibit 1−First Report of Injury or Illness, # 2 Exhibit 2−Order for Reinstatement, # 3 Exhibit 3−Workers' Compensation Mediated Settlement Agreement, # 4 Exhibit 4−Unreported Case)(Backus, Asilia) (Entered: 02/17/2009)

02/17/2009

134 MOTION in Limine to Preclude Testimony or Other Evidence Regarding Statements Willie Baker Allegedly Made Outside of Intervening Plaintiff's Presence by Whirlpool Corporation. (Attachments: # 1 Exhibit 1−Wheeler Deposition Transcript Excerpts, # 2 Exhibit 2−Freeman Deposition Transcript Excerpts)(Backus, Asilia) (Entered: 02/17/2009)

02/17/2009 135 OBJECTIONS to Plaintiffs' Exhibit List filed by Whirlpool Corporation re 100 Exhibit List. (Wit, Adam) (Entered: 02/17/2009)

02/17/2009 136 OBJECTIONS to Plaintiffs' Witness List filed by Whirlpool Corporation re 101 Witness List. (Wit, Adam) (Entered: 02/17/2009)

02/17/2009 137 Proposed Pretrial Order by all parties. (Backus, Asilia) (Entered: 02/17/2009)

02/17/2009 138 RESPONSE filed by Whirlpool Corporation re 99 Trial Brief filed by Carlota Freemen, Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1−Unreported Case)(Backus, Asilia) (Entered: 02/17/2009)

02/19/2009

139 RESPONSE in Opposition re 112 MOTION in Limine to preclude Unauthenticated Tape, Unverified Transcript and Evidence Regarding Criminal Conviction Against Willie Baker filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit No. 1 − Transcript from Criminal Court proceeding, # 2 Exhibit Willie Baker depo excerpts, # 3 Exhibit Kurt Gamauf depo excerpts)(Dills, Steven) (Entered: 02/19/2009)

02/19/2009

140 RESPONSE in Opposition re 111 MOTION in Limine Defendant's Motion in Limine to Preclude Evidence Regarding Other Discrimination And/Or Harassment Complaints filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit No. 1 − Kurt Gamauf note, # 2 Exhibit Charles Fisher depo excerpts, # 3 Exhibit Kurt Gamauf depo excerpts, # 4 Exhibit Carlotta Freeman depo excerpts, # 5 Exhibit Chinica Lillard depo excerpts, # 6 Exhibit Jimmy Lovelace depo excerpts)(Dills, Steven) (Entered: 02/19/2009)

02/19/2009

141 RESPONSE in Opposition re 107 MOTION in Limine to Preclude Testimony and Documents Regarding the Termination of Charles Fisher filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Charles Fisher depo excerpts, # 2 Exhibit Fred Contreras depo excerpts)(Dills, Steven) (Entered: 02/19/2009)

02/19/2009 142 RESPONSE in Opposition re 134 MOTION in Limine to Preclude Testimony or Other Evidence Regarding Statements Willie Baker Allegedly Made Outside of Intervening

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02/19/2009 02/19/2009 02/19/2009
02/19/2009 02/19/2009 02/19/2009 02/20/2009 02/20/2009 02/20/2009 02/20/2009 02/20/2009 02/20/2009
02/20/2009 02/20/2009 02/20/2009 02/20/2009

Plaintiff's Presence filed by Equal Employment Opportunity Commission. (Dills, Steven) (Entered: 02/19/2009)
143 MEMORANDUM in Support of 142 Response in Opposition to Motion, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Kim Wheeler depo excerpts)(Dills, Steven) (Entered: 02/19/2009)
144 OBJECTIONS To Defendants Witness List filed by Carlota Freemen re 104 Witness List. (Attachments: # 1 Exhibit A)(Rogers, Helen) (Entered: 02/19/2009)
145 RESPONSE in Opposition re 109 MOTION in Limine Defendant's Motion in Limine to Preclude Evidence Regarding EEOC Determination and EEOC Interview Notes filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit No. 1 − Notes of Interview of Kim Wheeler, # 2 Exhibit Kim Wheeler depo excerpts)(Dills, Steven) (Entered: 02/19/2009)
146 RESPONSE filed by Equal Employment Opportunity Commission re 118 Objections filed by Whirlpool Corporation. (Attachments: # 1 Exhibit No. 1 Sexual Harassment Policy, # 2 Exhibit Kurt Gamauf depo excerpts)(Dills, Steven) (Entered: 02/19/2009)
147 Third MOTION in Limine exclude denial of disability by Carlota Freemen. (Allman, Andy) (Entered: 02/19/2009)
148 RESPONSE in Opposition re 116 MOTION in Limine to Bar Testimony from Dr. Stephen Montgomery and Dr. Harry Steuber Regarding Ultimate Issues filed by Carlota Freemen. (Allman, Andy) (Entered: 02/19/2009)
149 RESPONSE to Motion re 106 MOTION in Limine to Bar Comments Regarding Littler Mendelson's Location, Speciality and/or Size of Law Firm filed by Equal Employment Opportunity Commission. (Dills, Steven) (Entered: 02/20/2009)
150 OBJECTIONS Joint Response by Plaintiffs to Defendants Objection to Plaintiffs Witness List filed by Carlota Freemen re 136 Objections. (Rogers, Helen) (Entered: 02/20/2009)
151 Additional documents (Proposed Order) re 90 MOTION Excuse Plaintiff from Trial, filed by Carlota Freemen. (Rogers, Helen) Modified text on 2/24/2009 (tmw). (Entered: 02/20/2009)
152 RESPONSE in Opposition re 131 MOTION in Limine to Exclude the "Updated" Report of Dr. Stephen Montgomery filed by Equal Employment Opportunity Commission. (Dills, Steven) (Entered: 02/20/2009)
153 RESPONSE to Motion re 110 MOTION in Limine to Preclude Evidence from the Third Party Administrators of Whirlpool's Workers Compensation Plan filed by Carlota Freemen. (Rogers, Helen) (Entered: 02/20/2009)
154 MEMORANDUM in Support of 152 Response in Opposition to Motion filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Dr. Stephen Montgomery depo excerpts, # 2 Supplement Unreported Case − Rangasan v. Hawaiian Tug, # 3 Supplement Unreported Case − Seymour v UPS, # 4 Supplement Unreported Case − Torri v Specialty Ins)(Dills, Steven) (Entered: 02/20/2009)
155 RESPONSE in Opposition re 116 MOTION in Limine to Bar Testimony from Dr. Stephen Montgomery and Dr. Harry Steuber Regarding Ultimate Issues filed by Equal Employment Opportunity Commission. (Dills, Steven) (Entered: 02/20/2009)
156 MEMORANDUM in Support of 155 Response in Opposition to Motion filed by Equal Employment Opportunity Commission. (Attachments: # 1 Supplement Unreported Case − Rangasan v Hawaiian Tugs)(Dills, Steven) (Entered: 02/20/2009)
157 RESPONSE in Opposition re 108 MOTION in Limine to Bar Claims for, or Evidence Regarding, Lost Pay Damages filed by Equal Employment Opportunity Commission. (Dills, Steven) (Entered: 02/20/2009)
158 MEMORANDUM in Support of 157 Response in Opposition to Motion filed by Equal Employment Opportunity Commission. (Dills, Steven) (Entered: 02/20/2009)

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02/23/2009 02/23/2009
02/23/2009
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03/18/2009

159 RESPONSE in Opposition re 108 MOTION in Limine to Bar Claims for, or Evidence Regarding, Lost Pay Damages filed by Carlota Freemen. (Attachments: # 1 Exhibit Signed Sep Acknowledgment)(Allman, Andy) (Entered: 02/23/2009)
160 ORDER granting Intervening Pltf's 90 Motion to allow the testimony of Carlota Freeman to be introduced through her discovery deposition, and Ms. Freeman is excused from being at the trial of this cause. Based on the parties agreement, this matter shall proceed as a bench trial beginning on Tuesday, 2/24/09. Signed by Senior Judge John T. Nixon on 2/23/09. (tmw) (Entered: 02/23/2009)
161 ORDER deferring ruling on 97 Motion in Limine; 98 Motion in Limine; 107 Motion in Limine; 108 Motion in Limine; 109 Motion in Limine; 110 Motion in Limine; 111 Motion in Limine; 112 Motion in Limine; 116 Motion in Limine; 131 Motion in Limine; 134 Motion in Limine; and 147 Motion in Limine; granting 90 Intervening Pltf's Motion to Excuse Pltf from Trial; and denying as moot 106 Motion in Limine. Signed by Senior Judge John T. Nixon on 2/23/09. (tmw) (Entered: 02/23/2009)
162 PRETRIAL ORDER. Signed by Senior Judge John T. Nixon on 2/25/09. (tmw) (Entered: 02/25/2009)
163 STIPULATION by Carlota Freemen. (Rogers, Helen) (Entered: 02/25/2009)
164 MOTION for Judgment on Partial Findings by Whirlpool Corporation. (Attachments: # 1 Exhibit Unreported Cases)(Backus, Asilia) (Entered: 02/26/2009)
165 Transcript filed for dates of 2/24/09, before Senior Judge John T. Nixon. Court Reporter/Transcriber: Roxann Harkins, Telephone number: (615) 255−6425, E−Mail Address: roxannrpr@comcast.net. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Intent to Request Transcript Redaction due 3/9/2009. Redaction Request due 3/16/2009. Redacted Transcript Deadline set for 3/26/2009. Release of Transcript Restriction set for 5/26/2009. (tmw) (Entered: 03/02/2009)
166 Minute Entry for proceedings held before Senior Judge John T. Nixon: Bench Trial held on 2/26/2009. (Court Reporter Charlotte Sloan.) (tmw) (Entered: 03/05/2009)
167 *AMENDED. See 175 * WITNESS/EXHIBIT LIST prepared by Courtroom Deputy, re: Civil Bench Trial.(tmw) Modified text on 3/20/2009 (tmw). (Entered: 03/05/2009)
168 Minute Entry for proceedings held before Senior Judge John T. Nixon: Bench Trial held on 2/24/2009. (Court Reporter Charlotte Sloan.) (tmw) (Entered: 03/06/2009)
169 Minute Entry for proceedings held before Senior Judge John T. Nixon: Bench Trial held on 2/25/2009. (Court Reporter Charlotte Sloan.) (tmw) (Entered: 03/06/2009)
170 Minute Entry for proceedings held before Senior Judge John T. Nixon: Bench Trial completed on 2/27/2009. (Court Reporter Charlotte Sloan.) (tmw) (Entered: 03/06/2009)
171 Transcript filed for date of 2/24/09, before Senior Judge John T. Nixon. Court Reporter/Transcriber: Roxann Harkins, Telephone number: (615) 403−8314, E−Mail Address: roxannrpr@comcast.net. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Intent to Request Transcript Redaction due 3/25/2009. Redaction Request due 4/3/2009. Redacted Transcript Deadline set for 4/13/2009. Release of Transcript Restriction set for 6/11/2009. (tmw) (Entered: 03/16/2009)
172 Transcript filed for date of 2/26/09, before Senior Judge John T. Nixon. Court Reporter/Transcriber: Charlotte H. Sloan, Telephone number: 615−726−0355, E−Mail Address: charlotte_sloan@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Intent to Request Transcript Redaction due 3/27/2009. Redaction Request due 4/6/2009. Redacted Transcript Deadline set for 4/15/2009. Release of Transcript Restriction set for 6/15/2009. (tmw) (Entered: 03/18/2009)

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03/18/2009
03/20/2009
03/20/2009 03/23/2009 03/24/2009 04/17/2009 04/17/2009 04/17/2009 04/17/2009 04/17/2009 04/17/2009 04/17/2009
04/23/2009 05/01/2009 05/01/2009 05/05/2009 05/08/2009

173 Transcript filed for date of 2/27/09, before Senior Judge John T. Nixon. Court Reporter/Transcriber: Charlotte H. Sloan, Telephone number: 615−726−0355, E−Mail Address: charlotte_sloan@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Intent to Request Transcript Redaction due 3/27/2009. Redaction Request due 4/6/2009. Redacted Transcript Deadline set for 4/15/2009. Release of Transcript Restriction set for 6/15/2009. (tmw) (Entered: 03/18/2009)
174 Transcript filed for date of 2/25/09, before Senior Judge John T. Nixon. Court Reporter/Transcriber: Dorothy Stiles, Telephone number: 615−330−1764, E−Mail Address: dorothy_stiles@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Intent to Request Transcript Redaction due 3/31/2009. Redaction Request due 4/7/2009. Redacted Transcript Deadline set for 4/17/2009. Release of Transcript Restriction set for 6/15/2009. (tmw) (Entered: 03/20/2009)
175 AMENDED WITNESS/EXHIBIT LIST prepared by Courtroom Deputy re: Civil Bench Trial held 2/24/09 − 2/27/09. (tmw) (Entered: 03/20/2009)
176 Joint MOTION for Extension of Time to File Post−Trial Briefing by Equal Employment Opportunity Commission, Carlota Freemen, Whirlpool Corporation. (Backus, Asilia) (Entered: 03/23/2009)
177 ORDER granting 176 Motion for Extension of Time, to 4/17/09, to File Post−Trial Briefing. Signed by Senior Judge John T. Nixon on 3/24/09. (tmw) (Entered: 03/24/2009)
178 RESPONSE in Opposition re 164 MOTION for Judgment on Partial Findings filed by Equal Employment Opportunity Commission. (Dills, Steven) (Entered: 04/17/2009)
179 Proposed Findings of Fact and Conclusions of Law by Equal Employment Opportunity Commission. (Dills, Steven) (Entered: 04/17/2009)
180 STATEMENT of facts and conclusions of law. (Allman, Andy) (Entered: 04/17/2009)
181 RESPONSE in Opposition re 164 MOTION for Judgment on Partial Findings and directed verdict filed by Carlota Freemen. (Allman, Andy) (Entered: 04/17/2009)
182 MOTION to Strike the Report, Opinion and Testimony of Dr. Mark Cohen by Whirlpool Corporation. (Backus, Asilia) (Entered: 04/17/2009)
183 MOTION to Strike Certain Materials, Evidence, and Testimony by Whirlpool Corporation. (Backus, Asilia) (Entered: 04/17/2009)
184 Proposed Findings of Fact and Conclusions of Law by Whirlpool Corporation. (Attachments: # 1 Exhibit 1 − Unreported cases (part 1), # 2 Exhibit 1 − Unreported Cases (part 2), # 3 Exhibit 1 − Unreported Cases (part 3))(Backus, Asilia) (Entered: 04/17/2009)
185 RESPONSE in Opposition re 183 MOTION to Strike Certain Materials, Evidence, and Testimony filed by Equal Employment Opportunity Commission. (Dills, Steven) (Entered: 04/23/2009)
186 MOTION for Extension of Time to File Response/Reply as to 182 MOTION to Strike the Report, Opinion and Testimony of Dr. Mark Cohen by Carlota Freemen. (Allman, Andy) (Entered: 05/01/2009)
187 RESPONSE in Opposition re 183 MOTION to Strike Certain Materials, Evidence, and Testimony filed by Carlota Freemen. (Attachments: # 1 Exhibit Separation Acknowledgment)(Allman, Andy) (Entered: 05/01/2009)
188 ORDER granting 186 Motion for Extension of Time, to 5/8/09, to File Response to 182 MOTION to Strike the Report, Opinion and Testimony of Dr. Mark Cohen. Signed by Senior Judge John T. Nixon on 5/5/09. (tmw) (Entered: 05/05/2009)
189 RESPONSE in Opposition re 182 MOTION to Strike the Report, Opinion and Testimony of Dr. Mark Cohen economist filed by Carlota Freemen. (Allman, Andy)

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06/09/2009 06/16/2009 06/16/2009 09/08/2009
12/21/2009
12/21/2009 01/15/2010 01/15/2010 01/19/2010 01/20/2010 01/21/2010

(Entered: 05/08/2009)
190 MOTION to Amend/Correct 187 Response in Opposition to Motion by Carlota Freemen. (Attachments: # 1 Exhibit Separation Agreement)(Allman, Andy) (Entered: 06/09/2009)
191 ORDER granting 190 Motion to Amend/Substitute Document. Signed by Senior Judge John T. Nixon on 6/16/09. (tmw) (Entered: 06/16/2009)
192 ORDER: For the foregoing reasons, Deft's Motions to Strike Other Evidence 183 and to Strike Expert Testimony 182 are both DENIED. It is so ORDERED. Signed by Senior Judge John T. Nixon on 6/16/09. (tmw) (Additional attachment(s) added on 10/20/2009: # 1 Text based version) (af). (Entered: 06/16/2009)
193 ORDER: Therefore, the pretrial Motions identified in the February Order 161 (Doc. Nos. 97 , 98 , 107 − 112 , 116 , 131 , 134 , 147 ) are hereby DENIED as moot. The following additional pretrial Motions are also DENIED as moot: (1) Pltf Equal Employment Opportunity Commission and Intervening Pltf Carlota Freeman's Motion in Limine 49 and (2) Deft's Motion in Limine to Exclude Any Claim for Damages Related in Freeman's Diabetes or Use of Seroquel 115 . Signed by Senior Judge John T. Nixon on 9/8/09. (tmw) (Entered: 09/08/2009)
194 MEMORANDUM ORDER: This is a Title VII and 42 U.S.C. § 1981 action for race and sex harassment brought against Whirlpool Corporation ("Whirlpool" or "Defendant") by Plaintiff Equal Employment Opportunity Commission ("EEOC") and Intervening Plaintiff Carlota Freeman ("Freeman") collectively, "Plaintiffs"). A bench trial was held in this Court on February 24−27, 2009. Each party submitted their proposed findings of fact and conclusions of law on April 17, 2009 (Doc. Nos. 179, 180, & 184). Also pending is Defendant's Motion for Judgment on Partial Findings ("Defendant's Motion") (Doc. No. 164), to which the EEOC and Freeman submitted responses (Doc. Nos. 178 & 181). Defendant offered that Motion at the close of Plaintiffs' proof, at which time the Court deferred a ruling on that Motion. The Court will make its findings of fact andconclusions of law on the entire record submitted, therefore the Court DENIES Defendant's Motion. For the reasons below, the Court finds that Plaintiffs have met their burden of persuasion and therefore ENTERS JUDGMENT in favor of Plaintiffs. Judgment is entered for Plaintiff Carlotta Freeman in the amount of $1,073,261. The prevailing parties may move for attorney's fees and/or costs. Signed by Senior Judge John T. Nixon on 12/21/09. (km) (Entered: 12/21/2009)
195 Final judgment is hereby entered for purposes of Rule 58 and/or Rule 79(a) of the Federal Rules of Civil Procedure on 12/21/09 by km. (km) (Entered: 12/21/2009)
196 MOTION to Alter Judgment or Amend Judgment Under Rule 59 by Whirlpool Corporation. (Attachments: # 1 Memorandum In Support)(Christlieb, David) (Entered: 01/15/2010)
197 BILL OF COSTS by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1. Deposition Invoices, # 2 Exhibit 2. Trial Transcript Invoices)(Dills, Steven) (Entered: 01/15/2010)
198 First MOTION for Attorney Fees petition extension, First MOTION extension of time to file motion for fees and costs by Carlota Freemen. (Allman, Andy) (Entered: 01/19/2010)
199 BILL OF COSTS by Carlota Freemen. (Attachments: # 1 Appendix Fees for Service of Summons and Subpoenas, # 2 Appendix Fees for Printed Electronically Recorded Transcripts, # 3 Appendix Fees for Disbursements for Printing, # 4 Appendix Fees for Witnesses, # 5 Appendix Fees for Costs of Making Copies, # 6 Appendix Other Costs)(Rogers, Helen) (Entered: 01/20/2010)
200 ORDER: Pending before the Court is Intervenor Plaintiff Carlota Freeman's ("Pltf Freeman") Motion for Extension of Time to File Fee Affidavit and Bill of Costs as Well as Responding to Deft's Rule 59 Motion ("Pltf's Motion") 198 . On 1/20/10, Pltf Freeman filed her Bill of Costs 199 . Therefore, her request for an extension as to the Bill of Costs is MOOT. Pltf Freeman is hereby GRANTED a 30 day extension within which to file her Fee Affidavit. The Fee Affidavit is now due 30 days from the entry of

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this Order. Pltf Freeman and Pltf Equal Employment Opportunity Commission are hereby GRANTED a 30 day extension within which to file a response to Deft's Rule 59 Motion. The responses will be due 3/1/10. It is so ORDERED. Signed by Senior Judge John T. Nixon on 1/21/10. (tmw) (Entered: 01/21/2010)

01/22/2010 201 OBJECTIONS filed by Whirlpool Corporation re 197 Bill of Costs. (Backus, Asilia) (Entered: 01/22/2010)

01/26/2010

202 NOTICE by Clerk Regarding Bill of Costs: Pending 199 Bill of Costs filed by Intervenor Plaintiff Carlota Freemen. The Bill of Costs is defective in that it does not contain a date and time certain for presentation to the Clerk. Accordingly, the Clerk denies the Bill of Costs. Intervenor Plaintiff may file a corrected Bill of Costs within 14 days of this Notice. (ab) (Entered: 01/26/2010)

02/04/2010

203 NOTICE of Taxation of Costs: Pending is the Bill of Costs (Docket Entry 197 ) filed by the Plaintiff Equal Employment Opportunity Commission (EEOC). Defendant Whirlpool Corporation has filed Objections (Docket Entry 201 ). Accordingly, by entering this Notice of Taxation, the Clerk provides notice to the parties that costs in the amount of $5,339.45 have been determined to be taxable against Defendant in favor of the EEOC. A Taxation of Costs to that effect will be issued by the Clerk on Friday, February 12, 2010. The parties will have seven days from that date to file exceptions to the Clerk's determination for consideration by the Clerk. Following that seven day period the Clerk will consider any exceptions filed and will thereafter issue a Final Taxation of Costs. The parties will then have seven days following the issuance of the Final Taxation of Costs by the Clerk to file a motion before the Court seeking to review the Clerk's determination. Keith Throckmorton,Clerk of Court. (af) (Entered: 02/04/2010)

02/05/2010

204 Amended BILL OF COSTS by Carlota Freemen. (Attachments: # 1 Appendix Fees for Service of Summons and Subpoenas, # 2 Appendix Fees for Printed or Electronically Recorded Transcripts, # 3 Appendix Fees and Disbursement for Printing, # 4 Appendix Fees for Witnesses, # 5 Appendix Fees for Costs of Making Copies, # 6 Appendix Fees for Other Costs)(Rogers, Helen) Modified text on 2/11/2010 (tmw). (Entered: 02/05/2010)

02/11/2010 205 *REVOKED − See docket annotation dated 2/11/10* Costs Taxed in amount of $ 36,382.61 against Deft Whirlpool Corporation, re 204 Amended Bill of Costs. (tmw) Modified text on 2/11/2010 (tmw). (Entered: 02/11/2010)

02/11/2010

The taxation of costs entered in favor of Carlota Freeman this date, DE 205 , is REVOKED as having been made in error. Plaintiff Freeman's Bill of Costs was filed in error in that it did not allow the 7 day period for presentation to the Clerk as mandated by LR 54.01(a). Plaintiff need not refile the amended bill of costs. The clerk will consider this amended bill of costs, DE 204 , however, defendant Whirlpool shall have the full 7 day period permitted under the Local Rule in which to file objections. (tmw) Modified text on 2/11/2010 (tmw). (Entered: 02/11/2010)

02/11/2010 206 Written Exceptions to Taxation of EEOC's Bill of Costs and Request to Stay Taxation and Further Relief, by Whirlpool Corporation. (Backus, Asilia) Modified text on 2/16&24/2010 (tmw). (Entered: 02/11/2010)

02/12/2010

207 Taxation of Costs: The Clerk hereby taxes costs for Pltf Equal Opportunity Commission (EEOC) as stated in the Notice of Taxation of Costs for this case 203 . Costs in the amount of $5,339.45 are taxed against Deft Whirlpool Corporation in favor of the EEOC. The parties have seven days from the date of this Taxation of Costs to file exceptions to the Clerk's determination for consideration by the Clerk. The Clerk will consider the exceptions filed by Whirlpool 206 prior to the entering of this Taxation of Costs. Following that seven day period the Clerk will consider any exceptions filed and will thereafter issue a Final Taxation of Costs. The parties may then accept the Clerk's determination or within seven days file a motion before the Court seeking review by the Court. (tmw) (Entered: 02/12/2010)

02/12/2010

208 OBJECTIONS re 204 Amended Bill of Costs, and Request for Further Relief, by Whirlpool Corporation. (Attachments: # 1 Exhibit A−Explanatory Chart of Whirlpool's Objections, # 2 Exhibit B−Deposition Transcript of Donald Payne on behalf of Crawford & Company, # 3 Exhibit C−Deposition Transcript of Karen Carey, # 4 Exhibit D−8/18/07 letter from Siew−Ling Shea to Asilia Backus, # 5 Exhibit

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02/20/2010 02/20/2010 02/22/2010
02/23/2010
03/01/2010 03/01/2010 03/01/2010 03/04/2010 03/05/2010
03/09/2010

E−2007 Price List from Cheryl Erwin, Videographer, # 6 Exhibit F−Letters from Whirlpool to Freeman enclosing copies of medical records, # 7 Exhibit G−Helen Rogers letter to Adam Wit regarding costs of copies)(Backus, Asilia) Modified text on 2/16/2010 (tmw). (Entered: 02/12/2010)
209 First MOTION for Attorney Fees and costs by Carlota Freemen. (Allman, Andy) (Entered: 02/20/2010)
210 First MOTION for Attorney Fees supporting memorandum by Carlota Freemen. (Attachments: # 1 Exhibit Affidavit of Andy L. Allman, # 2 Exhibit Affidavit of Helen Rogers)(Allman, Andy) (Entered: 02/20/2010)
211 Final Taxation of Costs: The Clerk notes Defendant Whirlpool has filed written Exceptions 206 to the Clerk's Taxation of Costs 207 . The Exceptions filed do not question the determination as to the amount of costs, but go to whether the costs should be taxed pending a ruling on a motion for reconsideration and any subsequent appeal. Those are questions for the Court, not the Clerk, and Defendant may raise them in a motion to the Court following this Final Taxation of Costs pursuant to Local Rule 54.01(a). The Clerk hereby makes final the taxation of costs in the amount of $5,339.45 against Defendant Whirlpool Corporation in favor of the EEOC. The Clerk's reasoning for the final taxation of costs is stated in the Notice of Taxation of Costs 203 . Keith Throckmorton, Clerk of Court. (tmw) (Entered: 02/22/2010)
212 NOTICE of Taxation of Costs: Pending is the Amended Bill of Costs 204 filed by the Intervenor Pltf Carlota Freeman ("Freeman"). Deft Whirlpool Corporation has filed Objections 208 . Deft asks that consideration or enforcement of the taxation of costs in this case be stayed pending appeal. Although enforcement of the taxation of costs has been stayed by the Court in certain cases where the presiding judge has favored a stay, such is not the practice of the presiding judge in this case. Accordingly, no stay will be directed by the Clerk. Accordingly, by entering this Notice of Taxation, the Clerk provides notice to the parties that costs in the amount of $4,570.95 have been determined to be taxable against Deft in favor of Intervenor Pltf Freeman. A Taxation of Costs to that effect will be issued by the Clerk on Friday, March 5, 2010. The parties will have seven days from that date (until Friday, March 12, 2010) to file exceptions to the Clerk's determination for consideration by the Clerk. Keith Throckmorton, Clerk of Court. (tmw) (Entered: 02/23/2010)
213 RESPONSE in Opposition re 196 MOTION to Alter Judgment or Amend Judgment Under Rule 59 filed by Equal Employment Opportunity Commission. (Dills, Steven) (Entered: 03/01/2010)
214 MEMORANDUM in Support of 213 Response in Opposition to Motion, 196 MOTION to Alter Judgment or Amend Judgment Under Rule 59 filed by Equal Employment Opportunity Commission. (Dills, Steven) (Entered: 03/01/2010)
215 RESPONSE in Opposition re 196 MOTION to Alter Judgment or Amend Judgment Under Rule 59 filed by Carlota Freemen. (Allman, Andy) (Entered: 03/01/2010)
216 MOTION for Extension of Time to File Response/Reply as to 209 First MOTION for Attorney Fees and costs by Whirlpool Corporation. (Backus, Asilia) (Entered: 03/04/2010)
217 Taxation of Costs: The Clerk hereby taxes costs for Plaintiff Carlota Freeman in the amount of $4,570.95 as stated in the Notice of Taxation of Costs for this case 212 . The costs are taxed against Defendant Whirlpool Corporation. The parties have seven days from the date of this Taxation of Costs to file exceptions to the Clerk's determination for consideration by the Clerk. Following that seven day period the Clerk will consider any exceptions filed and will thereafter issue a Final Taxation of Costs. The parties may then accept the Clerk's determination or within seven days file a motion before the Court seeking review of the Clerk's decision by the Court. Keith Throckmorton, Clerk of Court. (tmw) (Entered: 03/05/2010)
218 ORDER granting 216 Motion for Extension of Time, to 3/15/10, to File Response re 209 First MOTION for Attorney Fees and costs. Signed by Senior Judge John T. Nixon on 3/9/10. (tmw) (Entered: 03/09/2010)

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03/11/2010 03/12/2010 03/15/2010
03/17/2010
03/22/2010 04/01/2010 08/19/2010 03/31/2011
04/08/2011 04/14/2011
04/14/2011 04/26/2011 04/28/2011 08/02/2011

219 MOTION for Leave to File Reply Brief In Support of Its Rule 59 Motion to Alter/Amend Judgment by Whirlpool Corporation. (Attachments: # 1 Exhibit 1)(Christlieb, David) Modified text on 3/15/2010 (tmw). (Entered: 03/11/2010)
220 Joint MOTION to Stay re 209 First MOTION for Attorney Fees and costs by Whirlpool Corporation. (Backus, Asilia) (Entered: 03/12/2010)
221 Final Taxation of Costs: The Clerk entered a Taxation of Costs in favor of Intervenor Plaintiff Carlota Freeman on March 5, 2010. The Taxation of Costs notified the parties that pursuant to Local Rule 54.01(a) they had seven days to file Exceptions to the Clerk's determination. No Exceptions have been filed. Accordingly, the Clerk hereby makes final the taxation of costs in the amount of $4,570.95 against Defendant Whirlpool Corporation in favor of Carlota Freeman. The Clerk's reasoning for the final taxation of costs is stated in the Notice of Taxation of Costs 212 . Keith Throckmorton, Clerk of Court.(tmw) (Entered: 03/15/2010)
222 ORDER: After consideration and for good cause shown, the Parties' Motion 220 is GRANTED. Proceedings on Plaintiff's Motion 209 are STAYED pending the entry of judgment on Defendant's Motion 196 . Plaintiff shall file her amended Motion for Attorneys' Fees, if any, within 14 days of the Court's ruling on Defendant's Motion. In the event that Plaintiff does not file an amended Motion for Attorneys' Fees, Defendant shall file its Response to Plaintiff's Motion within 14 days of the Court's ruling on Defendant's Motion. It is so ORDERED. Signed by Senior Judge John T. Nixon on 3/17/10. (tmw) (Entered: 03/17/2010)
223 MOTION for Review re 221 Final Taxation of Costs, by Carlota Freemen. (Allman, Andy) Modified text on 3/29/2010 (tmw). (Entered: 03/22/2010)
224 RESPONSE in Opposition re 223 MOTION for Review re 221 Costs Taxed,, filed by Whirlpool Corporation. (Backus, Asilia) (Entered: 04/01/2010)
225 NOTICE of Change of Address by Asilia S. Backus (Backus, Asilia) (Entered: 08/19/2010)
226 ORDER: Defendant's Motion for Leave to File Reply 219 is hereby GRANTED. The Court finds that Defendant has not offered to the Court sufficient evidence that the Courts Memorandum Order contained clear errors of law or manifest injustices. Accordingly, Defendants Motion to Alter/Amend Judgment 196 is DENIED. Signed by Senior Judge John T. Nixon on 3/31/2011. (hb) (Entered: 04/01/2011)
227 MOTION to Clarify re 222 Order on Motion to Stay,, (Agreed Motion for Clarification of Order) by Whirlpool Corporation. (Backus, Asilia) (Entered: 04/08/2011)
228 ORDER: Defendant's Motion to Clarify 227 is GRANTED. Freeman has until on or before Thursday, April 14, 2011 to file her Amended Motion for Attorneys' Fees, if any, and Defendant has until on or before Thursday, April 28, 2011 to file its Response to Freeman's Amended Motion or original Motion. Signed by Senior Judge John T. Nixon on 4/14/2011. (hb) (Entered: 04/14/2011)
229 Second MOTION for Attorney Fees by Carlota Freemen. (Attachments: # 1 Exhibit Allman Affidavit, # 2 Exhibit Rogers Affidavit)(Allman, Andy) (Entered: 04/14/2011)
230 NOTICE OF APPEAL as to 194 Order Dismissing Case,,,,, 226 Order on Motion to Alter Judgment,, Order on Motion for Leave, 192 Memorandum Opinion of the Court,, Order,, Terminate Motions, by Whirlpool Corporation. Filing fee $ 455, receipt number 0650−1068379. (Backus, Asilia) (Entered: 04/26/2011)
231 RESPONSE in Opposition re 210 First MOTION for Attorney Fees supporting memorandum, 229 Second MOTION for Attorney Fees, 209 First MOTION for Attorney Fees and costs filed by Whirlpool Corporation. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Backus, Asilia) (Entered: 04/28/2011)
232 ORDER: For the reasons discussed herein, Plaintiff's Fee Motions and Plaintiff's Motion for Review are GRANTED, with the modifications discussed herein. Defendant is ORDERED to pay attorney's fees and costs consistent with this Order. Signed by Senior Judge John T. Nixon on 8/2/11. (tmw) (Entered: 08/02/2011)

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06/12/2012 233 ORDER of USCA granting Joint motion to dismiss case − voluntarily. (afs) (Entered: 06/13/2012)
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