u~em ~L~ of Te~m~
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Plaintiff,

ClVlL ACTI(~.’0’5 ~ ~ 8

KROGER TEXAS L.P., Defendant.

JURY TRIAL DEMANDED

ORIGINAL COMPLAINT OF THE
UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

TO THE HONORABLE UNITED STATES DISTRICT COURT:
1. This is an action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and Title I of the Civil Rights Act of 1991, as amended, 42 U.S.C. § 1981 et seq., to correct unlawful employment practices based on sex and to provide appropriate relief to Yolanda E. Washington ("Washington"), Subrena L. Tarver ("Tarver"), and other females who were subjected to discriminatory treatment based on their sex, female. In this suit, the. Equal Employment Opportunity Commission ("Commission" or "Plaintiff") alleges that Kroger Texas L.P. unlawfully failed to hire Ms. Washington, Ms. Tarver, and other qualified females, as a class, because of their sex. Also, Kroger did not retain applications of applicant.to the order selector position.

JURISDICTION AND VENUE 2. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. 9§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Sections 706 (f)(1) and (3) of Title VII of the Civil Rights Acts of 1964 ("Title VII"), as amended, 42 U.S.C. 99 2000e-5(f)(1) and (3), and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. 3. Venue is proper in this Court because the unlawful employment practices alleged below were and are now being committed within the jurisdiction of the United States District Court for the Southern District of Texas, Houston Division.
PARTIES 4. Plaintiff Equal Employment Opportunity 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 Sections 706 (f)(1) and (3) of Title VII, 42 U.S.C. 99 2000e-5 (f)(1) and (3). 5. Defendant Kroger Texas L.P. ("Kroger" or "Defendant") has continuously been and is now doing business in the State of Texas and the City of Houston and has continuously had more than 15 employees. Kroger may be served with process by serving its registered agent in Texas, Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company, which may be found at 701 Brazos Street, Suite 1050, Austin, Texas 78701. 6. At all relevant times, Defendant 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).
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STATEMENT OF CLAIMS 7. More than thirty days prior to the institution of this lawsuit, Ms. Washington and Ms. Tarver filed charges of discrimination with the Commission alleging violations of Title VII by Defendant. On October 7, 2003, both Ms. Washington and Ms. Tarver filed charges with the Commission. All conditions precedent to the institution of this lawsuit have been fulfilled including the timely filing of charges and an attempt to conciliate the matter with Defendant. 8. Since at least 2003, Defendant has engaged in unlawful employment practices in violation of Section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1). Since at least 2003, Kroger has failed to hire qualified female applicants, as a class, as order selectors because of their sex. 9. On or about September 19, 2003, Ms. Washington and Ms. Tarver applied to work as order selectors at the Kroger Distribution Center ("Warehouse"). Ms. Washington and Ms. Tarver obtained and completed applications at the Warehouse and turned in their completed applications on the same day. 10. When she applied to work at the Warehouse, Ms. Washington had over three(3) years experience working as an order selector and other relevant work experience, which was set out in her application. Among other things, Ms. Washington’s completed application reflected that she had never been convicted of a crime, had never been discharged from employment, and had completed high school. Ms. Washington called the Warehouse several times to check the status of her application and was told Kroger was still hiring. In early October, 2003, she was told the Warehouse was accepting applications but not hiring. Ms. Washington had previously applied at the Warehouse for the order
-3-

selector job but has never been called for an interview. 11. When she applied to work at the Warehouse, Ms. Tarver had over ten (10)
years experience working as an order selector and other relevant work experience, which was set out in her application. Among other things, Ms. Tarver’s completed application reflected that she had never been convicted of a crime, had never been discharged from employment, and had completed high school. Ms. Tarver called the Warehouse several times to check the status of her application. On one occasion, she was told to wait until she was called and, at other times, she was told the Warehouse was still hiring. In early October, 2003, Ms. Tarver was told the Warehouse was accepting applications but not hiring.
12. After Ms. Washington and Ms. Tarver applied for order selector positions at the Warehouse, Kroger failed to interview them and hired less qualified male applicants for order selector positions.
13. During the year 2003, Mr. Tim Mack, Kroger’s Assistant Distribution Manager, was responsible for hiring order selectors to work at the Warehouse.
14. Since about 1998, Mr. Mack’s job responsibilities has included hiring order selectors to work at the Warehouse.
15. Mr. Mack has offered employment to just three female order selectors, but none prior to October 2003.
16. Mr. Mack has failed to select female applicants to the order selector position for interview on the same basis as male applicants.
17. Prior to November 2003, Kroger failed, in violation of Section 709(c) of Title VII, 42 U.S.C. § 2000e-8(c), to preserve the applications for the order selector position of
-4-

applicants who were not selected for interview. 18. The effect of the unlawful practices complained of herein has been to deprive
Ms. Washington, Ms. Tarver and other qualified female applicants of equal employment opportunities and otherwise adversely affected their status as employee because of their
sex.
PRAYER FOR RELIEF WHEREFORE, the Commission respectfully requests that this Court: 19. Grant a permanent injunction enjoining Kroger, its officers, successors, assigns and all persons in active concert or participation with it, from engaging in employment practices which discriminate on the basis of gender; 20. Order Kroger to institute and carry out policies, practices and procedures which provide equal employment opportunities for female applicants and employees and which eradicate the effects of its unlawful employment practices; 21. Order Kroger to make Ms. Washington, Ms. Tarver, and identified class members whole by providing appropriate back pay, with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of the unlawful employment practices they was subjected to; 22. Order reinstatement into a comparable position for Ms. Washington, Ms. Tarver, and identified class members or award front pay in the amounts to be proven at trial if reinstatement is impractical; 23. Order Kroger to pay compensatory damages to Ms. Washington, Ms. Tarver, and identified class members for the past and future pecuniary losses resulting from the unlawful employment practices described above including but not limited to loss benefits;
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24. Order Kroger to pay compensatory damages to Ms. Washington, Ms. Tarver, and identified class members for their past and future non-pecuniary losses including emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses they suffered as a result of the unlawful employment practices described above, in amounts to be proven at trial;
25. Award punitive damages to Ms. Washington, Ms. Tarver, and identified class members in amounts to be proven at trial;
26. Award pre-judgment and post-judgment interest on all amounts recovered as allowed by law;
27. Order all affirmative relief necessary to eradicate the effects of the unlawful employment practices;
28. Order Kroger to preserve applications as required under Title VII. 29. Award the Commission its costs in this action; and 30. Grant such other and further relief as is just and equitable.
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JURY TRIAL DEMAND
31. The Commission requests a jury trial on all questions of fact raised by its
complaint.
Respectfully submitted,
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
ERIC S. DREIBAND General Counsel JAMES L. LEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel 1801 L. Street, N.W. Washington, D.C. 20507

OF COUNSEL

Attorney-in-Charge Ohio Bar No. 0024652 Federal ID No.: 10541 Houston District Office 1919 Smith Street, 7th Floor Houston, Texas 77002 (713) 209-3404 Fax: (713) 209-3402
ATTORNEYS FOR PLAINTIFF

J}i’r~ ~S~chei/ R,e~ional Attorney T.B~: 17503300 SErN: 13536 EEOC Houston District Office 1919 Smith, 7th Floor Houston, Texas 77002 (713) 209-3398; Fax: (713)209-3402
-7-

.IS 44

(Rev 07/89)

l

CIVIL COVER SHEET

rslq

The JS 44 c~wl cover sheet and the information contained herein neith~l~place nor supplement the filing and serwc¢ of pleadings or other pap¢

tared by law, except as provided by local rules of court. Th~s form,

approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet (SEE INSTRUCTIONS ON THE REVERSE

OF THE FORM.)

I(a) PLAINTIFFS
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

DEFENDANTS KROGER TEXAS LP

(b) COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF __ (EXCEPT IN U.S. PLAINTIFF CASES)
(C) ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER) Rose Adewale-Mendes, Supervisory Trial Attorney EEOC-Houston District Office 1919 Smith Street, 7th Floor Houston, Texas 77002 (713) 209-3404

COUNTY OF RESIDENCE OF FIRST LISTED DEFENDANT

(IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOC~[I~

TRACT OF LAND INVOLVED ATTORNEYS (IF KNOWN)

.~II~’B flktd~
FILED
UAY 1’ Z005

I1. BASIS OF JURISDICTION 0’~ACEA~O~BOXO~Y)

Ix] I U.S. Government Plaintiff
[] 2 U.S. Government Defendant

[] 3 Federal Question (U.S Government Not a Party)
[] 4 Diversity (Indicate CiUzenship of Parties in Item Ill)

IlL CITIZENSHIP OF PRINCIPAL PARTIES CPL~CEA~O~EBOX
(For Diversity Cases Only) FOR PLAImI~ ~ ON~ BOX FOR DEVE~D~a, rD

PTF DEF Citizen of This State [ ] 1 [ ] r

PTF DEF Incorporated or Principal Place [ ] 4 [ ] 4 of Business in This State

Citizen of Another State [ ] 2 [ ] 2 Citizen or Subject of a [ ] 3 [ ] 3

Incorporated rand Principal Place [ ] $ [ ] ~

of Business in Another State

Foreign Nation

[ ] 6 [ ] 6

Foreign Country

IV. CAUSE OF ACTION (C~T~ T~ U s CIVIL STATLITE UNDER WHICH YOU ARE Vfi.ING AND WRITE A BPAEF STATEMENT OF CAUSE DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)
Defendant has engaged in unlawful employment practices in violation of Section 703(a)(l) of Title VII, 42 U S.C.§ 2000e-2 (a)(l) and Section 102 of the Civil Rights Act of 1991, 42 U S C § 1981a Defendant subjected Yolanda Washington and Subrena Tarver to discriminatory treatment by unlawfully faihng to hire them and other females, as a class, because of their sex Also, Kroger did not retain applications ofapphcant to the order selector position.

V. NATURE OF SUIT (PLACE AN x IN ONE BOX ONLY)

CONTRACT

TORTS

FORFEITUREJPENALTY

BANKRUPTCY

[] 130 Mdter ACt [] 140 Ne~ot,,ble ln,tr~ment
] 153
REALPROPERTY [] 21 0 I and Condc~nnetton [] 220 ~,,~c¢1 .... [] 230 Rent Lea~ & Ejectment
[] 240 ro~ ,o ~.d [] ~90 A.O~ ~

PERSONAL INJURY
[] 315 harplane Product L,ahd,ty [] 320 Assault. L~I & Slan~
fl 340 ~ [] 330 F~nl Emplo~s’ Ltabfll~
[] 350

PERSONAL INJURY
PERSONAL PROPER~ [] 370 ~ [] 371 Tm~m~dm$
1 385 ~

CIVIL RIGHTS [] 441 Volm~. IX] 442 Employment
[] 443 H~m~/Accornmodauons [] 444 w©lf.~e [] 440 O~rc~,alme, hu

PRISONER PETITIONS
[] 51o Mo,,~ ~ w~
Habeas Co~pus
[] ~30
[] 540 ~’~’ ~ ~
[] s50 ~

[] 610 Agncul~
[] 6zo o~ E~ ~ ~ []r6~2251 ~URSC~8,,8~1s~f
[] 630 L,~ ~w,
[] 640 ~r~ [] 650 ~’~’~ ~ [] 660 ~mt,o~ ~r~t~
[] ~9o
LABOR [] 710 Fair Labor Standards Act [] 720 Lalmr/Msmt Relatx~s [] 73OLa’o~/M~nt R¢poran~
[] 740 Radway Labor
[] 700 ce~ La~, ~,~o~

[] 422 Appea128USC 158 [] 423 W,thdr~w~l 2s USC 157
PROPERTY RIGHTS
[] 820 c~,~ [] sa0 P’~’
[] 840 ~.,k
SOCIAL SECURITY
[] 861 HIA(I395fl) [] 862 Bla~k Lung (923) [] 863 D~WC/D~WW [] 864 $SID T,a¢ XVI [] 865 RSl (405(8))
FEDERAL TAX SUITS
]~ 8D7e0fenTdaaxn~t)s (U.S Plamhffo¢ [] 871 IRS-T~ItdPa~y26USC 7609

Vi. ORIGIN
IX] I Original
Proceeding

(PLACE AN x IN ONE BOX ONLY)

[] 2 Re .... d from

[] 3 Remanded from

State Court

Appellate Court

[] 4 Remstated or Reopened

Transferred from [] 5 another dlsmct (specify)

Appeal to District

[] 6 Multi&strict

[] 7 Judge from

Lmgation

Magisu’ate Judgment

OTHER STATUTES
[] 400 Stat~Reappo~onn~nt [] 410 Anutrust
[] 4~o s~
[] 450 Co--CO R~ [] 460 ~mt,on
[] 8~o ~t’~ s~ [] ~BSxcO~nge [] 87~ c~ c~.~
12 USC 3410
[] 891 ~:~
[] 89~ ~
[] 894 E~ AlI~u~
[] 895 ~
[] 950 Co~t,mtx~h~ ofS~ S~tu~s
[] 890 ~=

VII. REQUESTED IN

CHECK IF THIS IS A CLASS ACTION

COMPLAINT:

[] UNDERF RC P 23

VIII. RELATED CASE(S) IF ANY ~s~ .......... )

DEMAND $
JUDGE

Check YES only ,f demanded in complaint: J~RYDEMAND: IX] YES [] NO
DOCKET NUMBER

UNITED STATES DISTRICT COURT

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION,

)

Plaintiff

)

)

v.

)

)

KROGER TEXAS, L.P.,

)

Defendants

)

)

and

)

)

YOLANDA E. WASHINGTON and

)

SUBRENA L. TARVER,

)

Plaintiff-Intervenor

)

)

v.

)

)

KROGER TEXAS, L.P.,

)

Defendants.

)

)

CIVIL ACTION FILE NO. H-05-1768

______________________________________________________________________________

COMPLAINT IN INTERVENTION ______________________________________________________________________________

COMES NOW, Yolanda E. Washington and Subrena L. Tarver, Intervenors who ask this

Court to order Defendant Kroger Texas, L.P., to correct unlawful practices and to grant Intervenors

full relief, as outlined below, for the discrimination they have suffered.

A. PRELIMINARY STATEMENT

1. Intervenors adopt and incorporate in its entirety the Complaint filed by the EEOC in the original

action above.

2. Defendant Kroger Texas, L.P. has already appearedin this action through itsattorney ofrecords.

1

EXHIBIT A

Service of this Complaint in Intervention may be made by delivering a copy of this instrument to its counsel in accordance with the Federal Rules of Civil Procedure.
B. STATEMENT OF FACTS 3. On or about September 19, 2003, Ms. Yolanda E. Washington and Ms. Subrena L. Tarver applied to work as order selectors at the Kr oger Distribution Center (“W arehouse”). Both Ms. Washington and Ms. Tarver obtained and completed applications at the Warehouse and turned in their completed applications on the same day. 4. Yolanda E. Washington is an African-American female who at the time had over three (3) years experience working as an order selector aol ng with other relevant work experience which was noted in her application. Additionally, Ms. Washington’s application reflected that she had never been convicted of a crime, had never been discharged from employment, and had completed high school. Subsequent to submitting her application, Ms. Washington called the Warehouse several times to check on the status of her applicati on and was told Kroger was still hiring. In early October, 2003, she was informed that the Warehouse was accepting applications by not hiring. Ms. Washington had previously applied at the Warehouse for the order selector position but has never been called for an interview. 5. At the time that Ms. Tarver applied for the order selector position with Kroger, she had over ten (10) years experience working as an order selector as well as other relevant work experience as she noted in her application. Among other things, Ms. Tarver’s completed application reflected that she had never been convicted of a crim e, had never been discharged from employment, and had completed high school. Ms. Tarver called the Warehouse several times to check the status of her application. On one occasion, shewas told that wait until she was called and, at other times, she was

2

EXHIBIT A

told the Warehouse was still hiring. In early October, 2003, Ms. Tarver was told the Warehouse was accepting applications but was not hiring. 6. After Ms. Washington and Ms. Tarver applied for order selector positions at the Warehouse, Kroger failed to interview them and hire less qualified male applicants for order selector positions. 7. During the year 2003, Mr. Tim Mack, Kroge r’s Assistant Distribution Manager was responsible for hiring order selectors to work at the Warehouse. 8. Since about 1988, Mr. Mack’s job responsibilitie s have included hiring order selectors to work at the Warehouse. 9. Mr. Mack has offered em ployment to just three order selectors, but non prior to October 2003. 10. Mr. Mack has failed to select female applicant to the order selectorposition for interview on the same basis as male applicant. 11. The effect of the unlawful practices com plained of herein has been to deprive Ms. Washington, Ms. Tarver and other qualified female applicants of equal employment opportunities and otherwise adversely affected their status as employees because of their sex.
C. CAUSES OF ACTION Count No. 1 – TEXAS COMMISSION ON HUMAN RIGHTS 13. Plaintiff repeats and re-allege pa ragraph 1 through 11 with the sam e force and effect as though fully set forth here. 14. As females, Ms. W ashington and Ms. Tarver are m embers of a class protected from discrimination by the Texas Commission on Human Rights Act.

3

EXHIBIT A

15. Defendant Kroger has discriminated against Ms. Washington and Ms. Tarver in violation of

the Texas Commission on Human Rights Act.

16. Ms. Washington and Ms. Tarver have been damaged as a result ofKroger’s discrimination in

violation of the Texas Commission on Human Rights Act.

17. Kroger’s violations were done with malice or with reckless indifference to the statutorily-

protected rights of Ms. Washington and Ms. Tarver. An award of exemplary damages are therefore

appropriate. Defendant’s actions demonstrate that they have engaged in discriminatory practices

with

D. DEMAND FOR A JURY

18. Intervenors Ms. Washington and Ms. Tarver demand a jury trial.

E. PRAYER FOR RELIEF

WHEREFORE, in addition to the relief prayed for in the complaint in the principal action.

Intervenor prays that this Court order Kroger to pay Intervenors the following:

a.

appropriate backpay, including but not limited to, their salary and benefits;

b. com pensatory damages;

c.

punitive damages;

d.

enjoin Kroger from further acts of discrimination;

e. reasonable attorney’s fees both for the trial of this cause and any and all appeals

as is necessary;

f.

all costs of taxable court in this matter;

g. pre-judgm ent and post-judgment interest at the highest rate allowed by law; and

h.

all such other relief, legal or equitable, as may be warranted.

4

EXHIBIT A

Respectfully submitted:

Moore

& Associates

By: /s/ Melissa Moore Melissa Moore State Bar No. 24013189 Lyric Centre 440 Louisiana, Suite 710 Houston, TX 77002 Telephone: 713.222.6775 Fax: 713.222.6739

ATTORNEY FOR PLAINTIFF

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing docum ent was forwarded t o all counsel of record via courier, certified mail (return receipt requested), facsimile transmittal and/or first class mail delivery on this the 14th day of July, 2005.
Rose Adewale-Mendes, Esq. EEOC Houston District Office 1919 Smith St., 7th Fl. Houston, TX 77002
J. Bradley Spalding Littler Mendelson, P.C. 1301 McKinney Street, Suite 1900 Houston, Texas 77010
/s/ Melissa Moore Melissa Moore

5

EXHIBIT A

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v.
KROGER TEXAS LP,
Defendant.

§ § § § § CIVIL ACTION NO. H-05-01768 § § § §

MEMORANDUM AND ORDER

Pending before the Court are Defendant’s Mo tion to Compel (Doc. # 17) and Plaintiff’s

Motion to Am end Scheduling Order (Doc. # 21). As set forth below, Defenda nt’s motion is

GRANTED, and Plaintiff’s motion is GRANTED IN PART and DENIED IN PART.

I. EEO-1 Reports and the Deliberative Process Privilege

Defendant Kroger Texas L.P. (“Kroger”) has moved the Court to co mpel the disclosure

of two portions of an eighteen-p age report relating to the employ ment practices of Kroger and

other companies. Specifically, Kro ger has req uested the d isclosure of an EEO-1 Com parison

Report containing data for 276 companies in the same industry as Kroger, and of EEO-1 Detailed

Reports for six of these com panies. Plaintiff, the Equal Employm ent Opportunity Commission

(“EEOC”), asserts that these repo rts are protec ted from disclosure by the deliberative process

privilege, and that they are not subject to disclosure under EEOC Comp liance Manual section

83.7(a).

The Fifth Circuit has recogni zed the existence of a deliberative pr ocess privilege to

protect the opinions, recommendations, and de liberations of a governmental agency. See, e.g.,

Branch v. Phillips Petroleum Co. , 638 F.2d 873, 881-82 (5th Cir. 1981) (articulating a non-

statutory, “official privilege” for documents “reflecting advisory opinions, recommendations and

deliberations comprising part of a process by which governm ental decisions and policies are

formulated”); Skelton v. U.S. Postal Serv. , 678 F.2d 35, 38 (5th C ir. 1982) (discussing a

deliberative process p rivilege drawn from the di sclosure exemption for “inter-agency or intra-

agency memorandums or letters w hich would not be available by law to a party other than an

agency in litig ation with the agen cy” of 5 U.S.C. § 552(b)(5 )). Th e deliberative process

privilege, however, is not withou t limits. W hile the privilege protects documents that are

indicative of an agency’s deliberative proce ss, it does not protect factual inform ation. Branch,

638 F.2d at 882; Skelton, 678 F.2d at 38. Docum ents “consisting only of com piled factual

material . . . [a re] generally available for discovery by private parties in litigation with the

Government.” Pac. Molasses Co. v. N.L.R.B. , 577 F.2d 1172, 1183 (5th Cir. 1978) (also noting

the “different treatment for materials reflecting deliberative or policy- making processes on the

one hand, and purely factual, investigative matters on the other”).

Having reviewed both the EEO-1 Comparative Report and the EEO-1 Detailed Reports in

camera, the Court finds that both sets of docum ents are com prised of factual data that are

unprotected by the deliberative process privilege. The EEO-1 Com parative Report is a list

showing the number of workers employed by each of 276 companies in Harris County, Texas, in

the same industry as Kroger. The report

does not contain any an alysis, opinions, or

recommendations, either of the EEOC investig ator who com piled the data, or of any other

member of the agency. Similarly, the EEO-1 Detailed Reports consist of statistics on the gender

and race of the workers em ployed by each of six pa rticular companies, without any analysis or

opinion. At a hearing before the Court, the EEO C argued that the reports reflect the deliberative

process of the EEOC investigator w ho compiled the data, as she decided what values to use in

2

the reports (e.g., the geographic location from which to collect data). This falls far short of the showing necessary to invoke the deliberative proce ss privilege. An agency necessarily chooses what data to collect and how to ar range the da ta for every report it creates, and such basic choices do not change the factua l nature of the data tha t a report contains. The Court is concerned by the EEOC’s far-re aching invocation of the deliberative process privilege for materials that are exclusively factual. The Commission’s position se ems antithetical to its purpose of fostering awareness of lawful and unlawful employment practices. Because the EEO1 reports fall squarely within the category of unprotected fact ual material, th e deliberative process privilege does not apply.
Additionally, the EEOC contends that its Compliance Manual counsels against disclosure of the EEO-1 repor ts. The EEOC’s subm itted excerpt from the m anual does s tate that “[ i]f reports for employers which are not respondents have been included in the file for c omparative purposes, remove them before disclosure.” EEOC Compliance Manual § 83.7(a).1 This practice, however, is contrary to the pol icies of open discovery and disc losure embodied in the Federal Rules of Civil Procedure and federal regulations. See, e.g., Coughlin v. Lee , 946 F.2d 1152, 1159 (5th Cir. 1991) (recognizing the “liberal spirit” of the federa l discovery rules). In fact, federal regulations require the E EOC to make available “certain tabul ations of aggregate industry, area, and other statistics derived from the Commission’s reporting programs,” provided that the identity of individuals or entities is not revealed. 29 C.F.R. § 1610.18(a).
The Court has reviewed the EEOC’s proposed redactions of identifying information from both its EEO-1 Comparative Report and Detailed Reports, and finds that rem oving the names,
1 The Court has found another version of EEOC Compliance Manual § 83.7(a), which pertains to photocopying requests. While it is n ot clear wh ich version is m ost current, to the extent that any provision of the EEOC Compliance Manual counsels against redacted disclosure of factual information, this practice conflicts with federal discovery policy and regulations.
3

locations, and identifying numbers of the other co mpanies is sufficient to prevent their identities from being disclosed. While confidentiality is an important concern, the EEOC has not show n how redacting these particular records would be any less effective here than in other cases. It is difficult to imagine a case in whic h there would not be at least som e risk that the identity of an entity referred to in a report m ight be guessed despite the redaction of the entity ’s name and address. S uch a generalized risk, without a particular showing of why redaction would be ineffective here, is insufficient to bar the disclosure of the re ports. Though the disclosure of statistical data relating to other entities m ay be contrary to EEOC practice, the production of the redacted EEO-1 reports in this case is unprotected by any privilege and necessary for compliance with federal regulations and policies of broad discovery. Accordingly, the EEOC is ORDERED to produce the EEO-1 Com parative Report an d EEO-1 Detailed Rep orts, in redacted form , to Kroger by Friday, March 17, 2006. II. Settlement Documents and the Conciliation Privilege
Kroger has also m oved the Court to com pel the disclosure of documents relating to settlement, including two letters from Intervenors Yolanda Washington and Subrena Tarver' s attorney to the EEOC investig ator, and one page of handwritten notes m ade by the EEOC investigator regarding conciliati on of the charges again st Kroger.2 The EEOC contends that these documents are protected by a conciliation priv ilege attaching to documents that reflect the EEOC’s efforts to settle charges of unlawful employment practice.
Title VII provides th at the EEOC shall attempt to elim inate unlawful employment practices through informal settlement and conciliation measures, and that “[n]othing said or done during and as a part of such inform al endeavors may be m ade public by the Commission, its
2 The letters fro m Intervenors’ attorney, which were sent on different dates, are ide ntical in substance, except for what appears to be a typographical error in the first letter as to one of the settlement offer amounts.
4

officers or em ployees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned.” 42 U.S.C. § 2000e-5(b). 3 W hile materials relating to conciliation efforts may not be disclosed to the public, however, the Fifth Ci rcuit has held that section 2000e-5(b) does not prevent the EEOC’s disclosure of such materials to the parties to the agency proceeding. Olitsky v. Spencer Gifts, Inc., 842 F.2d 123, 126 (5th Cir. 1988) (citing the Supreme Court’s holding in EEOC v. Associated Dry Goods Corp. , 449 U.S. 590, 598 (1981), that section 2000e-5(b)’s prohibiti on against making charges of unlawful employment practices public did not preclude disclosure of the charges to the ch arging parties). Sim ilarly, the Fifth Circuit has found that section 2000 e-5(b)’s admonition against disclosing conciliation efforts to the public “does not by its terms extend to employers,” and that “even the prescription for EEOC discreetness respecting its informal mediation efforts does not preclude release of th e identities of complainants or of the com plaints themselves to the parties; rather, only release of such information by the Commission or its emplo yees to th e public is proscribed.” Whitaker v. Carney, 778 F.2d 216, 221-22 (5th Cir. 1985).
The EEOC cites an earlier Fifth Circuit case , Branch v. Phillips P etroleum Co., as holding that the EEOC cannot disclose anything sa id or done during the conciliation process, even to the parties. 638 F.2d 873, 881 (5th Cir. 1981). In Branch, the court did find that the district court’s ordered disclosu re of settlement proposals was in error. Id. However, the court in Branch based its holding on the particular concern that “the prospect of disclosure or possible admission into evidence of proposals m ade during conciliation efforts would te nd to inhibit the
3 Federal regulations similarly provide that: Nothing that is said or done during and as part of the informal endeavors of the Commission to eliminate unlawful employment practices by informal methods of conference, conciliation, and persuasion may be made a matter of pu blic information by the Commission, its officers or employees, or used as ev idence in a su bsequent proceeding without the written consent of th e persons concerned.
29 C.F.R. § 1601.26(a).
5

kind of free and open communica tion necessary to achieve unli tigated compliance with th e requirements of Title VII.” Id. (emphasis added). The Fifth Circ uit later distinguished this as limited to preventing the disclo sure of conciliation m aterials for use at trial, though not preventing their disclosure to the parties for other purposes:
[Plaintiff] is correct that the section does not prevent disclosure by the EEOC o f material to the parties to the agen cy proceeding. . . . The issue in th is case, however, is not governed by the part of the section that prohibits disclosure to the public; it is governed by the part of the section that prohibits any use of the material in ‘subsequent proceedings.’ We interpreted this latter part in Branch v. Phillips Petroleum Co. . . . In Branch we denied the plaintiff’s request to discover EEOC conciliation material for use in a Title VII action ag ainst the employer, in part because section [2000e-5(b)] prohibits the use of such m aterial in later litigation. Olitsky, 842 F.2d at 126 (em phasis added). Acco rdingly, although m aterials relating to the conciliation process are not adm issible evidence and cannot be used at trial, they are discoverable by the parties to a lawsuit. The EEOC also cites two other Fifth Circuit cases, which it claim s are in acco rd with Branch’s prohibition against the disclosu re of conciliation materials. These cases a re distinguishable from the discovery request at issue here. In Olitsky v. Spencer Gifts, Inc. (“Olitsky II”), the court again dealt with the admission of evidence at trial and foun d that a letter contained no reference to concil iation efforts so as to render it inadm issible. 964 F.2d 1471, 1477 (5th Cir. 1992). In Lindsey v. Prive Corp., the court found that the trial court had not erred by refusing to admit at trial a letter allege dly involving settlement positions. 161 F.3d 886, 89495 (5th Cir. 1998). Both of these cases, like Branch, pertain to the admission of conciliation materials into evidence at trial, and not to their mere disclosure to parties in discovery. The Court therefore finds that Kroger is entitled to the disclosure of the conciliation letter from the In tervenors’ attorney to the EEOC investigator, and to th e EEOC investigator’s
6

handwritten notes regarding c onciliation of the charges against Kroger. The EEOC is ORDERED to produce these docum ents to Kroger by Friday, March 17, 2006. Kroger is admonished that it may not attempt to admit these documents into evidence for use at trial. III. Extension of Time
Finally, the EEOC has requested an extension of all deadlines in the case by ninety days, asserting that it needs additional tim e to review the approxim ately 7,000 employm ent applications disclosed by Kroger in response to the EEOC’ s discovery requests. The EEOC contends that because Kroger discarded its applications for January through April, 2004, it needs to conduct an analysis of applications from a longer time period than it had originally intended. The EEOC also points out that the deposition of Kroger’s hiring official was set for only ten days prior to the March 14, 2006 due date for the E EOC’s expert re port, which would not give its expert enough time to consider the deposition testimony as part of his analyses.
The Court agrees that a thirty-d ay extension of the deadlines for expert reports is warranted, to allow the experts to include rele vant deposition testim ony in their analyses and reports. A corresponding, two-week extension of the discovery d eadline is also reasonable. However, while the EE OC may be faced with nu merous documents to evaluate, th is does not warrant extending all of the deadlines in this c ase by ninety days. Previously, at a scheduling conference before the Court on S eptember 2, 2005, the EEOC argued that a fifteen-m onth discovery period was needed to allow it to analy ze two years of e mployment applications from Kroger. The Court disagreed, and gave the parties an August 14, 2006 trial date. Thereafter, the parties entered a proposed scheduling order wi th a discovery deadline of May 31, 2006. The EEOC has not provided a satisfactory explanation for why it then waited to serve Kroger with its first request for production of docum ents until December 16, 2005, over three m onths after the
7

Court declined to grant the extended discovery period that the EEOC had requested. The EEOC

also appears to have con templated the need to analyze two years of employment applications at

the time when the discovery deadline was set in September 2005. The volum inous nature of

these employment applications should not have b een a surprise to the EEOC. Kroger is en titled

to a timely resolution of the charges against it, and a ninety-day extension of all dates, including

the trial date, is not warranted.

Accordingly, the deadlines are extended as follows:

Deadline for Plaintiff’s and Intervenors’ Expert Reports April 14, 2006

Deadline for Defendant’s Expert Report

May 14, 2006

Discovery Completion Date

June

16, 2006

IT IS SO ORDERED.

SIGNED this 13th day of March, 2006.

KEITH UNITED

P. ELLISON STATES DISTRICT JUDGE

TO INSURE PROPER NOTICE, EACH PARTY WHO RECEIVES THIS ORDER SHALL FORWARD A COPY OF IT TO EVERY OTHER PARTY AND AFFECTED NON-PARTY
EVEN THOUGH THEY MAY HAVE BEEN SENT ONE BY THE COURT.

8

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
KROGER TEXAS LP,
Defendant.

§ § § § § CIVIL ACTION NO. H-05-01768 § § § §

FINAL JUDGMENT

Pursuant to Federal Rule of Civil Procedure 58(a), and in accordance with the parties'

Consent Decree and Plaintiff-Intervenors' stipulation of dismissal, this action is DISMISSED

WITH PREJUDICE.

IT IS SO ORDERED.
SIGNED th. l1~d'aJykofJuly, 2006.

KEIT-l:!..£.. ELLISON UNITED STATES DISTRICT JUDGE
TO INSURE PROPER NOTICE, EACH PARTY WHO RECEIVES THIS ORDER SHALL FORWARD A COpy OF IT TO EVERY OTHER PARTY AND AFFECTED NON-PARTY
EVEN THOUGH THEY MAY HAVE BEEN SENT ONE BY THE COURT

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff
and
YOLANDA E. WASHINGTON and
SUBRENA L. TARVER, Plaintiff-Intervenors
v.
KROGER TEXAS, L.P. Defendant

§ § § § § CIVIL ACTION NO: H-05-1768 § § JURY TRIAL DEMANDED § § § § § § §

CONSENT DECREE

Plaintiff, the United States Equal Employment Opportunity Commission

("Commission" or "EEOC"), Plaintiff-Intervenors Yolanda Washington and Subrena Tarver

("Intervenors" or "Charging Parties") and Defendant, Kroger Texas loP. ("Kroger"), agree to

entry of this Consent Decree.

I.

Background and History of Proceedings

A. Charging Parties Yolanda Washington and Subrena Tarver filed charges of

discrimination with the Commission (Charge Nos. 330-2003-04898 and 330-2003-04897)

alleging gender discrimination.

B. On May 17, 2005, after investigating the Charges and finding discrimination,

the Commission commenced this action alleging that Kroger discriminated against

Charging Parties and other qualified women, as a class, because of their sex by failing to hire them as order selectors while hiring less qualified men at its Houston Distribution Center in violation of Section 703 (a) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-1-17 and 42 U.S.C. § 1981. The lawsuit also alleged that Kroger had failed to preserve certain applications for the order selector position in violation of Section 709(c) of Title VII, 42 U.S.C. § 2000e-8. Charging Parties intervened in the action and alleged Kroger discriminated against them when it failed to hire them as order selectors in violation of Chapter 21 of the Texas Labor Code. The Commission and Charging Parties subsequently filed a motion to amend the pleadings to allege that Kroger's selection procedures for the order selector position had a discriminatory impact on women in violation of Section 703 (k) of Title VII, 42 U.S.C. § 2000e-2(k).
C. In response to the Complaints filed by the EEOC and Charging Parties, Kroger filed Answers in which it categorically denied each and every claim for relief.
D. The parties wish to avoid the risks, uncertainties and expenses of continued litigation. Accordingly, the parties have agreed to settle this lawsuit. Neither Kroger's consent to the entry of this Consent Decree nor any of the terms set forth in it shall constitute or be construed as an admission of liability or of any violation of the law or of the rights of any person. The parties agree that this Consent Decree (hereinafter sometimes referred to as the "Decree") is being entered into for the sale purpose of compromising disputed claims without the necessity for protracted litigation.
E. The Commission, Intervenors and Kroger stipulate to the jurisdiction of the
Court and waive their right to a jury trial and the entry offindings of fact and conclusions of
-2-

law on a/l issues.

II. Definitions

F.

The claims made the subject of this Consent Decree were made by the

EEOC on behalf of a class of female applicants for order selector positions in Kroger's

Houston distribution center. The class includes: (1) all identified members of the class;

and (2) all unidentified females who applied for the order selector position on or before

December 31, 2005.

G. The payment class shall consist of two subclasses, collectively representing

female applicants to the order selector position who applied during the period September

1,2003 through December 31,2005, who were not hired and who were identified by the

Commission on or before May 15, 2006, hereinafter referred to as the "payment class."

The payment class shall receive monetary relief pursuant to the terms of the Decree.

(1) The following individuals constitute the Charging Party payment

subclass: Yolanda E. Washington and Subrena l. Tarver. Kroger

has separately agreed to pay $35,000 to Ms. Tarver and $35,000 to

Ms. Washington in full and final settlement of their claims. The terms

of settlement are set forth in a separate confidential settlement

agreement and release.

(2) The following individuals constitute the non-party payment subclass:

Vivian Britton, lisa L. Edwards, Cynthia Franco, Angela H. Johnson,

Beverly A. Joseph, Kimberly A. Murphy, Sue A Perdue, Eteshia L.

Pointer, Permita D. Pointer, Darlene Perez, Elda Rodriguez, and

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Sylvia S. Sanchez. Members of the non-party payment subclass may also be qualified for membership in other classes defined by this Decree. H. The hiring class shall consist of certain females who applied for the order selector position between September 1,2003 and December 31,2005, were not hired, and have been or will be offered employment by Kroger, hereinafter referred to as the "hiring class." The following individuals belong to the hiring class: Lisa L. Edwards, Cynthia Franco, Angela H. Johnson, Beverly A. Joseph, Permita D. Pointer, Darlene Perez, Elda Rodriguez, Kimberly A. Murphy and Sylvia S. Sanchez. Ms. Edwards, Ms. Franco, Ms. Joseph, Ms. Pointer, Ms. Rodriguez and Ms. Murphy have already received offers of employment from Kroger. Ms. Johnson, Ms. Perez and Ms. Sanchez will receive job offers pursuant to this Decree. Each member of the hiring class will be hired if she passes the physical ability test, drug and alcohol test, and physical. Members of the hiring class may also be qualified for membership in other classes defined by this Decree. Each member of the hiring class may reject any offer of employment that has been made by Kroger, or will be made pursuant to this Decree. I. The term "physical ability test" refers to the ergonomics test used by Kroger to determine whether an applicant to the order selector position can perform the physical requirements of the order selector position. J. The term "acceptance" as used in the Decree refers to the Commission's approval of the physical ability testing program at Kroger's Houston distribution center at 701 Gelhorn Drive and to no other facility. No endorsement is implied for the utilization of
-4-

the test or its being properly validated in any context or setting other than for the purposes of settling this particular lawsuit at this particular distribution center.
IT IS ORDERED, ADJUDGED AND DECREED: I". General Provisions 1. This Consent Decree is entered in full and complete settlement of any and all claims
asserted by the Commission in Civil Action No. H-05-1768 and the abovereferenced Charges on behalf of Yolanda Washington and Subrena Tarver and the class of women the Commission represents, including but not limited to back pay, front pay, compensatory damages, exemplary damages, pre-judgment and postjudgment interest, injunctive and declaratory relief, attorneys' fees and costs of court. 2. Kroger agrees that, for the duration of this Decree, the managers and employees responsible for screening applications, interviewing and hiring order selectors in its Houston distribution center will not discriminate against any individual with respect to hiring, compensation, terms, conditions or privileges of employment because of such individual's sex. IV. Monetary Relief 3. Kroger has agreed to pay $35,000 to Ms. Tarver and $35,000 to Ms. Washington in full and final settlement of their claims. Kroger and Charging Parties have agreed to other terms that are set out in a separate settlement agreement and release. 4. Without admitting liability, Kroger shall pay the sum of SIXTY SEVEN THOUSAND FIVE HUNDRED DOLLARS ($67,500.00), in full and final settlement of the
-5-

Commission's lawsuit to provide monetary relief to the non-party payment subclass identified by the Commission. The Commission shall determine in its sole discretion whether or not a member of the non-party payment subclass is eligible for monetary relief under the terms of the Decree and if so, how much money that qualified claimant will receive from the non-party payment subclass settlement fund. The Commission has provided counsel for Kroger with the names, social security numbers, dates of birth and last-known addresses of each class-member who will receive a portion of the class settlement fund and the amounts to be paid to each. Each class-member has executed a separate and confidential settlement agreement and release. Kroger shall mail or deliver a settlement check to each identified non-party payment subclass member at the address provided to it by the Commission either ten (10) calendar days after all of the class-members execute (and do not revoke) their settlement agreements, or ten (10) calendar days after the Court's entry of the Consent Decree, whichever is later. Within three (3) days of the issuance of the checks to Charging Parties and the class-members, a copy of each check shall be mailed to the Commission's counsel of record. 5. In the event that the check payable to any non-party payment subclass member is not cashed or deposited within thirty (30) days of its mailing to a non-party payment subclass member, Kroger will notify the Commission within ten (10) days. Within ten (10) days thereafter, the Commission will provide an updated address, if available, to Kroger. Kroger will stop payment on the original check and re-issue and mail a replacement check to the class member. In the event that the reissued
-6-

settlement check is not cashed or deposited within thirty (30) days of its mailing, Kroger will notify the Commission within ten (10) days. At the direction of the Commission, Kroger will issue second checks to those class members who timely cashed their checks, on a pro-rata baSiS, in an amount in the aggregate that fully depletes the total amount of the settlement check(s) that have not been cashed by the other class members. None ofthe non-party payment subclass settlementfund shall revert back to Kroger. 6. The sums payable to the non-party payment subclass members may be subject to federal income tax. Not later than January 31, 2007, Kroger will issue Internal Revenue Service ("IRS") Forms 1099 to each non-party payment subclass member for all sums paid pursuant to this Decree.
v. Training
7. Annually, for the duration of the Decree, Kroger will provide, using either an attomey or an independent experienced training person or group, an anti-harassment and discrimination training program for all managers and employees who are involved in the application and hiring process at Kroger's Houston distribution center. Specifically, the training attendees will be Tim Mack, Dave Gigli, Cody Camp, Jerry O'Driscoll, Scott Christy, and other managers, supervisors or employees who replace these individuals or separately become involved in the application and hiring process during the period of time covered by the Decree. The training shall also specifically address compliance with all aspects of the Consent Decree, including a summary of the allegations in the Complaint and Amended Complaint and the terms
-7-

of the Consent Decree. The training will address Kroger's record-retention obligations under federal law. The minimum duration of each annual training session shall be two (2) hours. The first such training shall be completed within six (6) months from the date the Decree is entered. Kroger shall submit to the EEOC, at least forty-five days in advance of each year's training session, the name of the program provider and a curriculum outline indicating the information to be addressed during the program and copies of all agendas and materials to be distributed at the training seminar. Kroger intends to use either in-house labor and employment counselor counsel from the law firm of Littler Mendelson, P.C. as their consultant/lecturer for purposes of each annual training session, and the assigned consultant/lecturer shall have at least five (5) years of experience practicing employment law. Should Kroger elect to use any other consultant/lecturer, it shall notify the EEOC of the identity of the consultant/lecturer in writing at least sixty (60) days prior to each seminar, subject to the approval of the Commission, which will not be unreasonably withheld. Written acknowledgment of attendance at each training session shall be obtained by Kroger from all individuals attending the training, and retained by Kroger for the duration of this Decree. A copy of the attendance list shall be forwarded to the EEOC within thirty (30) days of each training session. Should the Commission elect to send a representative to any training session, it shall designate its representative and notify Kroger of this election in writing no less than ten (10) business days before the training session.
-8-

VI. Updated Validation Study of the Physical Ability Test 8. Within forty-five (45) days from the entry of this Decree, Kroger will retain a
company to perform an updated validation study on its physical ability test using current data addressing the physical demands and requirements of the order selector position in the Houston distribution center. The determination of a passing score for the physical ability test may be revised based upon the outcome of the validation study. In any event, however, the parties agree that the passing score for the aerobics portion of the test will not exceed 164.8 ml.kg-2/3 ·min-1. The results of the updated validation study and the determination of a passing score for the physical ability test will be subject to acceptance by the Commission, which will not be unreasonably withheld. Within seventy-five (75) days from the entry of this Decree, Kroger will provide the Commission with a copy of the updated validation study and all supporting documentation, electronic or otherwise, including technical details and appendices, including documentation and data relating to the job analyses and passing scores for each component of the test, subject to the Agreed Protective Order in place in this litigation. 9. Within one hundred twenty (120) days from the entry of this Decree, the Commission will inform Kroger whether it accepts the results of the updated validation study. Kroger will implement the revised physical ability testing program no later than thirty (30) days after receipt of the Commission's approval. 10. After submission of the updated validation study for the Commission's acceptance, Kroger and the Commission will engage in an interactive process involving their
-9-

counsel and experts and use their best efforts to resolve any issues raised as a result of the validation study. The interactive process will consist of two steps: (1) counsel for the Commission and Kroger, and the parties' expert witnesses, will confer via telephone conference; and if the parties cannot reach an agreement then (2) the parties will submit the issue to the Court for determination, or at the Court's preference, a Special Master to be appointed with input from the parties. 11. During the term of this Decree, the Commission shall be provided with written notice of any revision to the passing score for the physical ability test and shall be given written notice of any further change in the score and the reasons for such change. Such notice shall be given no later than ten (10) calendar days after such change is made.
VII. Hiring
12. Kroger has made job offers to certain members of the hiring class and pursuant to this Decree, offers for employment are hereby extended to Ms. Johnson, Ms. Perez and Ms. Sanchez (the remaining members of the hiring class). Each offer is contingent upon the class member passing the physical ability test, drug and alcohol test and physical. Within ten (10) days of the Commission's approval of the updated validation study and passing score, Kroger will send a letter to each member of the hiring class advising that they have twenty (20) days to accept Kroger's offer of employment. Kroger shall notify the Commission of the results of the physical ability test taken by any class member at the time it provides the Commission with the applicant flow log referenced in paragraph seventeen (17).
-10-

Each member of the hiring class who passes the physical ability test, drug and alcohol test and physical will be hired as an order selector. 13. Within sixty (60) days after the validation study is accepted by the Commission, Kroger will offer all women who were offered employment as order selectors at the Houston distribution center between September 1,2003 and December 31,2005, but who failed the physical ability test, the opportunity to re-take the test. The EEOC will provide Kroger, within sixty (60) days of the entry of the decree, with the last-known addresses of the women. All offers to re-test will be rescinded if not accepted within twenty-one (21) days from the date on the offer letter. All women who re-take and pass the physical ability test, drug and alcohol test, and physical will be hired as order selectors. VIII. Notice and Recruitment 14. Within ten days after entry of this Decree, Kroger will conspicuously post the attached notice (Exhibit "A") in a location which is accessible to all employees and applicants at the Houston distribution center. Kroger will assure that the notice remains posted for the duration of the Decree. Kroger will advise the Commission of the location(s) of the notice along with its first applicant flow log pursuant to Paragraph 17, and provide the Commission with a signed copy of the notice. 15. Kroger will engage in active recruitment of female applicants for order selector pOSitions at the Houston distribution center. To further this objective, and for the duration of this Decree, Kroger will utilize the following approaches:
i). when placing job advertisements for the position of order selector,
-11-

Kroger's advertisements shall contain language indicating that Kroger seeks qualified male and female applicants; ii). pictorial ads shall feature a female; iii). an advertisement compliant with items i) and ii) herein will be placed at least once per month in the Sunday Houston Chronicle; iv). Kroger will also place advertisements with all paper and web based publications of The Work Source and the Greensheet; v). Kroger will continue to hold weekly job fairs which seek both female and male applicants; and vi). the banner advertisement conspicuously placed on the Houston distribution center fence shall include a photograph of a female. 16. During the pendency of this Decree, Kroger shall maintain the applications of qualified male and female applicants to the order selector position in an active status for a period of 60 days from the application date. During the active period, the otherwise qualified male and female applicants shall be considered for vacancies which arise in the order selector position.
IX. Record-keeping
17. Kroger will develop and maintain an applicant flow log to document all persons seeking employment at the Houston distribution center. The information to be recorded shall include the name, date of application, address, telephone number, and gender of all applicants and whether a conditional offer of employment was extended to the applicant. In the event that a conditional offer is made, the
-12-

applicant flow log shall also indicate the applicant's score on each component of the physical ability test. Kroger will provide this information to the Commission on a quarterly basis for the duration of the Decree. 18. Pursuant to 29 C.F.R. § 1602.14, all Kroger's personnel or employment records concerning hiring, promotion, demotion, transfer, lay-off or termination will be preserved for a period of one year from the date of making of the record or the personnel action involved, whichever occurs later. Also, pursuant to 29 C.F.R. § 1602.14, where a charge of discrimination or a lawsuit has been filed against Kroger under Title VII or the Americans with Disabilities Act, Kroger will preserve all personnel records relevant to the charge or action until the later of the following events: final disposition of the charge or final disposition of the action including the period during which a judgment, consent decree or other resolution is pending. X. Reporting Requirements
19. Reports required pursuant to the Decree shall be in writing and mailed to the
following address: Equal Employment Opportunity Commission, Attention: Rose
Adewale-Mendes, Supervisory Trial Attorney, 1919 Smith Street, 6th Floor, Houston,
TX,77002.
XI. Monitoring Inspection
20. At the EEOC's option, its representatives may undertake an annual monitoring inspection at Kroger's Houston distribution center. The EEOC shall provide to Kroger's counsel, J. Bradley Spalding, at least ten (10) days written notice of any such inspection, and counsel may attend. At a monitoring inspection, the EEOC
-13-

representatives shall be permitted to speak with any of Kroger's employees in a group and/or individually and shall be permitted to contact any employee who is present as well as any who are not present on the day the EEOC representatives conduct the monitoring inspection. Within three (3) business days ofthe completion of an inspection, Kroger will, at the Commission's request, provide the Commission's counsel of record with the names, job titles, gender, and home telephone numbers of any employees who were not present on the occasion of the monitoring inspection so that the EEOC may, at its option, unilaterally contact any non-managers who were not at work during the monitoring visit. In the event that the EEOC intends to interview any management official who was not then present, the EEOC will contact Kroger's counsel, who may partiCipate in any resulting interview. If the EEOC chooses to forego a monitoring inspection in any twelve month period succeeding the entry of this Decree, that shall not be deemed to waive its right to arrange subsequent monitoring inspections in successive twelve month periods during the period up to the date of the expiration of the Decree. XII. Miscellaneous Provisions 21. Each party to this action shall bear their own costs and attorney's fees. 22. This Decree shall be binding on each party. Kroger will notify any successor-ininterest of the existence and terms of this Decree, and shall simultaneously notify the Commission by copying it with the referenced correspondence. 23. This Decree shall remain in effect for 30 months from the date of its entry by the Court. During the effective period of this Decree, the Court shall retain jurisdiction
-14-

to assure compliance with this Decree and to permit entry of such further orders or modifications as may be appropriate. The parties to the Decree are specifically authorized to seek Court-ordered enforcement of this Decree in the event of a breach of any of the provisions herein. 24. In the event either party to the Decree believes the other has breached any provision of this Decree, counsel for the non-breaching party shall notify counsel for the breaching party, in writing, of such breach. In that event, unless irreparable injury would be caused by a delay, before instituting any legal action to enforce such provision(s), the non-breaching party will afford the breaching party the opportunity to remedy as may be appropriate any such alleged violation within 30 days of such notice. In the event the parties disagree whether or not a fully satisfactory cure has been effected, the non-breaching party retains the right to seek Court enforcement of the terms of the Decree. 25. Nothing in this Decree shall be construed to preclude the Commission from investigating a timely charge and filing a separate action under Title VII or any other statute which the Commission enforces in the future for any alleged violation by Kroger which is not the subject of this Decree. 26. No waiver of any of the terms of this Decree shall be valid unless made in writing and signed by the parties. 27. No modification or alternation to the terms ofthis Decree shall be valid unless made in writing and signed by the parties.
-15-

28. If one or more provisions of this Decree are rendered unlawful or unenforceable by an Act of Congress, or otherwise, all other provisions of the Decree shall remain in full force and effect.
29. Each Signatory certifies that s/he has authority to execute this document on behalf of its client.
30. This Consent Decree may be signed in counterparts. 31. This Decree shall expire by its own terms at the end of 30 months from date of
entry, without further action by the parties. 32. The parties agree to entry of this Decree and judgment subject to final approval by
this Court. 33. The provisions of the Decree are the product of negotiation between the parties to
this litigation and are not intended as precedent in other cases involving claims of discrimination being asserted by the Commission against any other employer, or against Kroger by any plaintiff.
Signed this eX 7~ay J:;-=="F-"'~=_~_____' 2006 at Houston,
Texas.
Kef P. Ellison United States District Judge
-16-

AGREED AND CONSENTED TO:

~~ C\ 't-r\ \ "t:A--b~~L

.

~

Lynne Gellenbeck

Senior Attorney

The Kroger Co.

ATTORNEY FOR PLAINTIFF EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION

ATIORNEY FOR DEFENDANT KROGER TEXAS, L.P.

~L;~ -l<-..- (
By:

/ · .....

Ro Adewale-Mendes

Ohio Bar No.: 0024652

SON: 10541

Houston District Office

1919 Smith St., ]'h Floor

Houston, Texas 77002

(713) 209-3404

Fax: (713) 209-3402

Littler Mendelson, P_C. 1301 McKinney St., Suite 1900 Houston, Texas 77010 (713) 951-9400 Fax: (713) 951-9212

ATTORNEY FOR PLAINTIFF-INTERVENORS
YOLANDA W HINGTOrND SYfRENA TARVER

,

I

)

r/ /

By:

.I ()O7£

'----

Moore & Associates
Lyric Centre 440 Louisiana, Suite 710 Houston, Texas 77002 (713) 222 6775 Fax: (713) 2226739
Firmwide:61163275 2 026281.1218

-17-

"EXHIBIT A"

u.s. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Houston District Office

MIckey Leland Federal Building
1919 Smith Street, 711> Floor Houston, TX 77002-8049 (713) 209-3320 TTY (713) 209-3439 FAX (713) 209-3381

NOTICE TO THE EMPLOYEES AND APPLICANTS OF KROGER TEXAS, L.P.

1. Federal law requires that there be no discrimination against any employee or applicant for employment because ofthe employee's sex, race, color, religion, national origin, age or disability with respect to recruitment, hiring, compensation, assignment or other terms, conditions or privileges of employment.
2. KROGER TEXAS, L.P. supports and will comply with such Federallawin all respects and wiJI not retaliate or take any action against applicants, current or former employees because they have exercised their rights under the law by filing charges with the Equal Employment Opportunity Commission (EEOC), providing information to the EEOC, and/or participating in any manner with an EEOC investigation or lawsuit or provided information during the company's investigation of any discrimination complaint.
3. KROGER TEXAS, L.P. expressly prohibits sex discrimination and will not engage in any employment practices that have the effect ofcreating or tolerating discrimination against applicants or employees because of their sex. At KROGER TEXAS, L.P., such discriminatory employment practices will not be tolerated. KROGER TEXAS, L.P. will promptly investigate any claim of unlawful discrimination and will take appropriate action as indicated by the results of its investigation.
4. Any applicant or employee who feels s/he has been the target of such discrimination, retaliation or harassment is advised to report this action promptly to Paul Glenn, Human Resources Manager, at (713) 507-4876 or Bill Breetz, President, at (713) 507 4803.

SIGNED this _ _ day of _ _ _ _ _ _ _ _ _, 2006.

Bill Breetz, President KROGER TEXAS, L.P.
This notice shall remain posted for thirty (30) months to _ _ _ _ _ _ _ _ _', 2009.

 
 DC CM/ECF LIVE- US District Court-Texas Southern - Docket Report

https://ecf.txsd.uscourts.gov/cgi-bin/DktRpt.pl?225943772634677-L_3...

U.S. District Court SOUTHERN DISTRICT OF TEXAS (Houston) CIVIL DOCKET FOR CASE #: 4:05-cv-01768

CLOSED

Equal Employment Opportunity Commission v. Kroger Texas LP Assigned to: Judge Keith P Ellison Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 05/17/2005 Date Terminated: 07/27/2006 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Aimee Lynn McFerren EEOC 1919 Smith St 7th Floor Houston, TX 77002 713-209-3390 Fax: 713-209-3402 Email: aimee.mcferren@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rose Adewale-Mendes Equal Employment Opportunity Commission Houston District Office 1919 Smith Street, 7th Fl Houston, TX 77002 713-209-3404 Fax: 713-209-3402 Email: rose.adewale-mendes@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Kroger Texas LP

represented by James Bradley Spalding Littler Mendelson PC 1301 McKinney St Suite 1900 Houston, TX 77010 713-652-4731 Fax: 713-951-9212 fax Email: bspalding@littler.com LEAD ATTORNEY

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Intervenor Plaintiff Subrena L Tarver
Intervenor Plaintiff Yolanda E Washington
Intervenor Defendant Kroger Texas LP

ATTORNEY TO BE NOTICED
Yvette Vanessa Gatling Littler Mendelson, P.C. 1301 McKinney Street Suite 1900 Houston, TX 77010 713-652-4740 Fax: 713-456-2481 Email: ygatling@littler.com ATTORNEY TO BE NOTICED
represented by Melissa Moore Moore & Associates 440 Louisiana St Ste 710 Houston, TX 77002 713-222-6775 Fax: 713-222-6739 Email: melissamoore@sbcglobal.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Melissa Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James Bradley Spalding (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/17/2005
05/17/2005 05/17/2005

#

Docket Text

1 COMPLAINT against Kroger Texas LP (Filing fee $ 0.) filed by Equal Employment Opportunity Commission.(lfilmore, ) Additional attachment(s) added on 5/17/2005 (kmurphy, ). (Entered: 05/17/2005)
Summons Issued as to Kroger Texas LP , filed.(lfilmore, ) (Entered: 05/17/2005)
2 ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 9/2/2005 at 09:30 AM in Room 8631 before Judge Keith P Ellison.( Signed by Judge Keith P Ellison ) Parties notified.(kmurphy, ) (Entered: 05/17/2005)

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06/06/2005 06/16/2005 06/24/2005 06/24/2005 07/12/2005 07/14/2005 07/14/2005 08/02/2005 08/19/2005 08/26/2005
08/31/2005 09/02/2005
09/07/2005 09/15/2005 01/19/2006
02/08/2006

3 SUMMONS Returned Executed. Kroger Texas LP served on 6/6/2005, answer due 6/27/2005, filed.(kmurphy, ) (Entered: 06/16/2005)
4 RETURN of Service Executed as to Kroger Texas LP on 6/6/05, filed.(psmith, ) (Entered: 06/17/2005)
5 ANSWER to Complaint by Kroger Texas LP, filed.(Spalding, James) (Entered: 06/24/2005)
6 CERTIFICATE OF INTERESTED PARTIES by Kroger Texas LP, filed.(Spalding, James) (Entered: 06/24/2005)
7 CERTIFICATE OF FINANCIALLY INTERESTED PARTIES by Equal Employment Opportunity Commission, filed.(rroberts, ) (Entered: 07/12/2005)
8 Opposed MOTION to Intervene by Subrena Tarver, Yolanda Washington, filed. Motion Docket Date 8/3/2005. (Attachments: # 1 Exhibit Exhibit A)(Moore, Melissa) (Entered: 07/14/2005)
9 First INTERVENOR COMPLAINT against Kroger Texas LP filed by Subrena Tarver, Yolanda Washington.(Moore, Melissa) (Entered: 07/14/2005)
10 RESPONSE to 8 Opposed MOTION to Intervene, filed by Kroger Texas LP. (Spalding, James) (Entered: 08/02/2005)
11 JOINT Report of Meeting and joint DISCOVERY/CASE MANAGEMENT PLAN by Equal Employment Opportunity Commission, Kroger Texas LP, filed.(ncavazos, ) Modified on 8/19/2005 (ncavazos, ). (Entered: 08/19/2005)
12 ORDER Resetting Scheduling Conference: The scheduling conference previously set for Sept 2, 2005 at 9:30 am has been reset for Sept 2, 2005 at 11 am. Parties may participate by telephone.( Signed by Judge Keith P Ellison ) Parties notified.(psmith, ) (Entered: 08/26/2005)
13 ORDER granting 8 Unopposed Motion to Intervene .( Signed by Judge Keith P Ellison ) Parties notified.(pfoster, ) (Entered: 09/01/2005)
15 Minute Entry for proceedings held before Judge Keith P Ellison. SCHEDULING CONFERENCE held on 9/2/2005. Parties will submit a proposed Scheduling Order. The Court gave the parties an August 14, 2006 trial date. Appearances:Rochelle Owens (by telephone), Rose Adewale-Mendes, James Bradley Spalding.(Court Reporter: Stephanie Carlisle) (Judicial Asst: Lynda Lerma), filed.(llerma) (Entered: 09/09/2005)
14 PROPOSED ORDER, filed.(Moore, Melissa) (Entered: 09/07/2005)
16 ANSWER to Intervenor Complaint by Kroger Texas LP, filed.(Spalding, James) (Entered: 09/15/2005)
17 MOTION to Compel Plaintiff The Equal Employment Opportunity Commission to Produce Documents by Kroger Texas LP, filed. Motion Docket Date 2/8/2006. (Attachments: # 1 Exhibit 1 & 2# 2 Proposed Order)(Spalding, James) (Entered: 01/19/2006)
18 NOTICE of Appearance by Aimee L. McFerren on behalf of Equal Employment Opportunity Commission, filed. (ledwards, ) (Entered: 02/08/2006)

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02/08/2006 02/21/2006 02/23/2006 02/24/2006 02/24/2006 02/27/2006 02/27/2006 02/28/2006 03/09/2006 03/09/2006
03/13/2006

19 RESPONSE to 17 MOTION to Compel Plaintiff The Equal Employment Opportunity Commission to Produce Documents, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Proposed Order)(mkallie, ) (Entered: 02/08/2006)
20 Reply to Response to 17 MOTION to Compel Plaintiff The Equal Employment Opportunity Commission to Produce Documents, filed by Kroger Texas LP. (Gatling, Yvette) (Entered: 02/21/2006)
21 MOTION to Amend Scheduling Order by Equal Employment Opportunity Commission, filed. Motion Docket Date 3/15/2006. (Attachments: # 1 Proposed Order)(sguevara, ) (Entered: 02/24/2006)
22 SURREPLY to 17 MOTION to Compel Plaintiff The Equal Employment Opportunity Commission to Produce Documents, filed by Equal Employment Opportunity Commission. (McFerren, Aimee) (Entered: 02/24/2006)
23 Opposed MOTION to Expedite Hearing on Motion to Amend Scheduling Order by Equal Employment Opportunity Commission, filed. Motion Docket Date 3/16/2006. (McFerren, Aimee) (Entered: 02/24/2006)
24 RESPONSE to 21 MOTION to Amend, 23 Opposed MOTION to Expedite Hearing on Motion to Amend Scheduling Order, filed by Kroger Texas LP. (Attachments: # 1 Proposed Order)(Spalding, James) (Entered: 02/27/2006)
25 Amended RESPONSE to 21 MOTION to Amend, 23 Opposed MOTION to Expedite Hearing on Motion to Amend Scheduling Order, filed by Kroger Texas LP. (Attachments: # 1 Exhibit 1# 2 Proposed Order)(Spalding, James) (Entered: 02/27/2006)
26 ORDER SETTING HEARING Miscellaneous Hearing set for 3/9/2006 at 10:00 AM at Room 8631 before Judge Keith P Ellison.( Signed by Judge Keith P Ellison ) Parties notified.(svaught) (Entered: 02/28/2006)
27 Reply to Kroger's First Amended Response to 21 MOTION to Amend, Scheduling Order filed by Equal Employment Opportunity Commission. (ledwards, ) (Entered: 03/09/2006)
29 Minute Entry for proceedings held before Judge Keith P Ellison. Proceedings held on 3/9/2006. The Court will take under advisement. Appearances: Rose Adewale-Mendes, Aimee Lynn McFerren, Melissa Moore, James Bradley Spalding.(Court Reporter: Kathy Metzger)(Law Clerk: Christina Brown) (Judicial Asst: Lynda Lerma), filed.(llerma) (Entered: 03/16/2006)
28 MEMORANDUM AND ORDER granting 17 MOTION to Compel Plaintiff The Equal Employment Opportunity Commission to Produce Documents, granting in part, denying in part21 MOTION to Amend, mooting 23 Opposed MOTION to Expedite Hearing on Motion to Amend Scheduling Order, Pltf Expert Report due by 4/14/2006 Deft Expert Report due by 5/14/2006 Discovery due by 6/16/2006. The EEOC is ORDERED to produce the EEO-1 Comopartive Report and EEO-1 Detailed Reports, in redacted form, to Kroger by Friday March 17, 2006. ( Signed by Judge Keith P Ellison ) Parties notified.(svaught) Modified on 3/13/2006 (svaught). (Entered: 03/13/2006)

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03/30/2006 04/03/2006 04/14/2006 04/20/2006 04/24/2006 05/01/2006 05/03/2006
05/03/2006
05/10/2006 05/12/2006 05/18/2006 06/21/2006

30 Unopposed MOTION for Protective Order by Kroger Texas LP, filed. Motion Docket Date 4/19/2006. (Attachments: # 1 Exhibit 1)(Spalding, James) (Entered: 03/30/2006)
31 AGREED PROTECTIVE ORDER.( Signed by Judge Keith P Ellison ) Parties notified.(csonnier, ) (Entered: 04/03/2006)
32 DESIGNATION OF EXPERT WITNESS LIST by Equal Employment Opportunity Commission, filed.(ledwards, ) (Entered: 04/14/2006)
33 MOTION to Reopen Plaintiff-Intervenor Subrena Tarver's Deposition, MOTION to Compel Written Discovery Responses by Kroger Texas LP, filed. Motion Docket Date 5/10/2006. (Attachments: # 1 Exhibit 1-2# 2 Exhibit 3-6# 3 Proposed Order)(Spalding, James) (Entered: 04/20/2006)
34 MOTION for Leave to File EEOC'S First Amended Original Complaint by Subrena L Tarver, Yolanda E Washington, Equal Employment Opportunity Commission, filed. Motion Docket Date 5/15/2006. (ejuarez, ) Additional attachment(s) added on 4/25/2006 (ejuarez, ). (Entered: 04/25/2006)
35 TRANSCRIPT of hearing held on 3/9/06 before Judge Keith Ellison. Court Reporter: Kathy Metzger, filed. (cpeebles) Additional attachment(s) added on 8/15/2006 (tthompson, ). (Entered: 05/01/2006)
36 NOTICE of Withdrawal re: 33 MOTION to Reopen Plaintiff-Intervenor Subrena Tarver's Deposition MOTION to Compel Written Discovery Responses MOTION to Reopen Plaintiff-Intervenor Subrena Tarver's Deposition MOTION to Compel Written Discovery Responses by Kroger Texas LP, filed. (Spalding, James) (Entered: 05/03/2006)
37 ORDER denying as moot 33 MOTION to Reopen Plaintiff-Intervenor Subrena Tarver's Deposition MOTION to Compel Written Discovery Responses MOTION to Reopen Plaintiff-Intervenor Subrena Tarver's Deposition MOTION to Compel Written Discovery Responses.( Signed by Judge Keith P Ellison ) Parties notified.(svaught) (Entered: 05/04/2006)
38 Opposed MOTION for Leave to File Amended Complaint by Subrena L Tarver, Yolanda E Washington, filed. Motion Docket Date 5/30/2006. (Attachments: # 1 Exhibit Exhibit A)(Moore, Melissa) (Entered: 05/10/2006)
39 RESPONSE to 34 MOTION for Leave to File EEOC'S First Amended Original Complaint, 38 Opposed MOTION for Leave to File Amended Complaint, filed by Kroger Texas LP. (Attachments: # 1 Exhibit 1 and 2# 2 Exhibit 3, 4 and 5# 3 Proposed Order)(Gatling, Yvette) (Entered: 05/12/2006)
40 Joint NOTICE to Court by Subrena L Tarver, Yolanda E Washington, Equal Employment Opportunity Commission, Kroger Texas LP, filed. (jbradford, ) (Entered: 05/19/2006)
41 ORDER denying as moot 34 MOTION for Leave to File EEOC'S First Amended Original Complaint, 38 Opposed MOTION for Leave to File Amended Complaint.( Signed by Judge Keith P Ellison ) Parties notified.(svaught) (Entered: 06/21/2006)

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06/26/2006 07/21/2006
07/24/2006 07/24/2006 07/24/2006 07/24/2006 07/27/2006 07/27/2006 07/27/2006

42 Letter from J. Bradley Spalding re: the finalization of the consent decree between the parties , filed. (svaught) (Entered: 06/26/2006)
43 ORDER setting Status Conference for 7/26/2006 at 11:00 AM in Courtroom 8C before Judge Keith P Ellison. Parties should be prepared to discuss their progress in finalizing the consent decree.( Signed by Judge Keith P Ellison ) Parties notified.(svaught) (Entered: 07/21/2006)
44 Agreed MOTION to Enter Consent Decree by Equal Employment Opportunity Commission, Kroger Texas LP, filed. Motion Docket Date 8/14/2006. (sbyrum, ) (Entered: 07/24/2006)
45 PROPOSED ORDER re: 44 MOTION to Enter Consent Decree, filed.(sbyrum, ) (Entered: 07/24/2006)
46 STIPULATION of Dismissal witih Prejudice All Claims Against Defendant by Subrena L Tarver, Yolanda E Washington, Kroger Texas LP, Kroger Texas LP, filed. (Attachments: # 1 Proposed Order)(Spalding, James) (Entered: 07/24/2006)
47 Letter from J. Bradley Spalding re: the agreed finalization of the consent decree, filed. (svaught) Additional attachment(s) added on 7/25/2006 (svaught, ). (Entered: 07/25/2006)
48 CONSENT DECREE .( Signed by Judge Keith P Ellison ) Parties notified.(espencer, ) (Entered: 07/27/2006)
49 ORDER OF DISMISSAL WITH PREJUDICE .( Signed by Judge Keith P Ellison ) Parties notified.(espencer, ) (Entered: 07/27/2006)
50 FINAL JUDGMENT. Case terminated on July 27, 2006.( Signed by Judge Keith P Ellison ) Parties notified.(espencer, ) (Entered: 07/27/2006)

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