Case 2:06-cv-01104-LDG-GWF Document 3 Filed 09/13/2006 Page 1 of 6

1 Anna Y. Park, CA SBN 164242 Sue J. Noh,? CA SBN 192134
2 U.S. EQUAL EMPLOYMENT OPPORlUNITY COMMISSION
3 255 East Tem"QJe Stree~ Fourth Floor Los Angeles, CA 9001L.
4 Telephone: (213) 894-1082 FacsImile: (213) 894-1301
5 E-Mail: lado.legal@eeoc.gov
6 Attome~ for Plaintiff U.S. E UAL EMPLOYMENT
7 OPPOR UNITY COMMISSION
8

9

UNITED STATES DISTRICT COURT

10

DISTRICT OF NEVADA

11
12 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
13

14

Plaintiff,

15

vs.

16

17 CONSOLIDATED RESORTS, INC., and DOES 1-10, Inclusive,
18

19

Defendants.

Case No.: CV-S-06-1104-LDG-GWF FIRST AMENDED COMPLAINT-TITLE VII CIVIL RIGHTS
• SEXUAL HARASSMENT
DEMAND FOR JURY TRIAL

20

21

22

23

NATURE OF THE ACTION

24

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

25 Title I of the Civil Rights Act of 1991 to correct unlawful employment practices on

26 the basis of sex, and to provide appropriate relief to the Charging Party, who was

27 adversely affected by such practices. Plaintiff U.S. Equal Employment

28 Opportunity Commission alleges that the defendants discriminated against the

-1-

Case 2:06-cv-01104-LDG-GWF Document 3 Filed 09/13/2006 Page 2 of 6

1 Charging Party who was sexually harassed or subjected to sex-based harassment

2 during her employment with Defendant, Consolidated Resorts, Inc.

3

JURISDICTION

4

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

5 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to §

6 704(a) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §

7 2000e-3; §§ 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as

8 amended, 42 U.S.C. § 2000e-5(f)(1) and (3) ("Title VII"), and § 102 of the Civil

9 Rights Act of 1991,42 U.S.C. § 1981a.

10

VENUE

11

3. The employment practices alleged herein to be unlawful were

12 committed within the jurisdiction of the United States District Court for the

13 District of Nevada.

14

PARTIES

15

4. Plaintiff, the U.S Equal Employment Opportunity Commission

16 ("EEOC" or "Commission"), is the agency of the United States of America

17 charged with the administration, interpretation and enforcement of Title VII, and is

18 expressly authorized to bring this action by Section 706(f)( 1) and (3) of Title VII,

19 42 U.S.C. § 2000e-5(f)(1) and (3).

20

5. At all relevant times, Defendant CONSOLIDATED RESORTS, INC.

21 was and has continuously been a Nevada corporation doing business in the State of

22 Nevada, County of Clark, and has continuously had at least 15 employees.

23

6. During the relevant periods alleged in this Complaint, Defendant

24 Consolidated Resorts, Inc. ("Defendant") has employed the Charging Party.

25

7. At all relevant times, Defendant Employer has continuously been

26 employer engaged in an industry affecting commerce within the meaning of

27 Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h).

28 III

-2-

Case 2:06-cv-01104-LDG-GWF Document 3 Filed 09/13/2006 Page 3 of 6

1

8. All of the acts and failures to act alleged herein were duly perfonned

2 by and attributable to all Defendants, each acting as a successor, agent, employee,

3 or under the direction and control of the others, except as specifically alleged

4 otherwise. Said acts and failures to act were within the scope of such agency

5 and/or employment, and each Defendant participated in, approved and/or ratified

6 the unlawful acts and omissions by the other Defendants complained of herein.

7 Whenever and wherever reference is made in this Complaint to any act by a

8 Defendant or Defendants, such allegations and reference shall also be deemed to

9 mean the acts and failures to act of each Defendant acting individually, jointly,

10 and/or severally.

11

9. Plaintiff is ignorant of the true names and capacities of each

12 "Defendant," sued as DOE 1 through 10, inclusively, and therefore Plaintiff sues

13 said "Defendant Employer" by such fictitious names. Plaintiff reserves the right to

14 amend the complaint to name each DOE "Defendant" individually or corporately

15 as they become known. Plaintiff alleges that each "Defendant" named as DOE

16 was in some manner responsible for the acts and omissions alleged herein and

17 Plaintiff will amend the complaint to allege such responsibility when the same

18 shall have been ascertained by Plaintiff.

19

10. It is further alleged on infonnation and belief that the unnamed

20 defendants in the complaint are mere alter egos of the "Defendant" Consolidated

21 Resorts, Inc. The remaining defendants are properly named in the complaint.

22

CONCILIATION

23

11. Prior to the institution of this lawsuit, the Commission's

24 representatives attempted to eliminate the unlawful employment practices alleged

25 below and to effect voluntary compliance with Title VII through infonnal methods

26 of conciliation, conference and persuasion within the meaning of §§ 706(t)( 1) and

27 (3) of Title VII, 42 U,S,C, §§ 2000e-5(t)(1) and (3). All conditions precedent to

28 the institution of this lawsuit have been fulfilled.

·3·

Case 2:06-cv-01104-LDG-GWF Document 3 Filed 09/13/2006 Page 4 of 6

1

STATEMENT OF CLAIMS

2

12. More than thirty days prior to the institution of this lawsuit, the

3 Charging Party filed a charge with the Commission alleging violations of Title VII

4 by Defendant Employer. All conditions precedent to the institution of this lawsuit

5 have been fulfilled.

6

13. From at least as early as June 2004, through at least September 11,

7 2004, Defendant Employer individually and collectively engaged in unlawful

8 employment practices at their Las Vegas, Nevada, location, in violation of

9 § 706(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3). The unlawful

10 sexual harassment and sex based harassment of the Charging Party was in the form

11 of verbal, visual and physical harassment. The Charging Party was forced to

12 engage in oral sex and was subjected to degrading acts that impacted the terms and

13 conditions of her employment and created a hostile working environment at

14 "Defendant Employer" that resulted in a tangible employment action.

15

14. The impact of the aforementioned conduct deprived the Charging

16 Party and others similarly situated of equal employment opportunities and

17 otherwise adversely impacted their employment status because of their sex.

18

15. The unlawful employment practices complained of above were done

19 with malice or with reckless indifference to the federally protected rights of the

20 Charging Party. The unlawful employment practices complained of above were

21 and are willful within the meaning of §§ 706(f)(1) and (3) of Title VII, 42 U.S.C.

22 §§ 2000e-5(f)(I) and (3) and caused the Charging Party to suffer emotional

23 distress.

24

16. Defendant Employer has acted with malice or reckless indifference to

25 the federally protected rights of the Charging Party by subjecting her to harassment

26 consisting of Charging Party being forced to perform oral sex upon Supervisors

27 and the General Sales Manager in order to keep her job. The Charging Party was

28 also subjected to unwanted touching of her breasts and her private area.

-4-

Case 2:06-cv-01104-LDG-GWF Document 3 Filed 09/13/2006 Page 5 of 6

1

PRAYER FOR RELIEF

2

Wherefore, the Commission respectfully requests that this Court:

3

A. Grant a permanent injunction enjoining Defendant Employer, their

4 officers, successors, assigns, and all persons in active concert or participation with

5 it, from engaging in sex discrimination and any other employment practice which 6 discriminates on the basis of sex.

7

B. Order Defendant Employer to institute and carry out policies,

8 practices, and programs which provide equal employment opportunities for

9 women, and which eradicate the effects of their past unlawful employment 10 practices.

11

C. Order Defendant Employer to make whole Charging Party, by

12 providing appropriate back pay with prejUdgment interest, in amounts to be

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

14 their unlawful employment practices, including but not limited to compensation for 15 loss of seniority and benefits, plus prejudgment interest.

16

D. Order Defendant Employer to make whole Charging Party, by

17 providing compensation for past and future pecuniary losses resulting from the 18 unlawful employment practices described above, in amounts to be determined at 19 trial.

20

E. Order Defendant Employer to make whole Charging Party by

21 providing compensation for past and future nonpecuniary losses resulting from the 22 unlawful practices complained of above, including emotional pain, suffering, 23 inconvenience, loss of enjoyment of life, and humiliation, in amounts to be 24 determined at trial.

25

F. Order Defendant Employer to pay Charging Party punitive damages

26 for their malicious and reckless conduct described above, in amounts to be

27 determined at trial.

28 III

-5-

Case 2:06-cv-01104-LDG-GWF Document 3 Filed 09/13/2006 Page 6 of 6

1

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

2 the public interest.

3

H. Award the Commission its costs of this action.

4

JURY TruAL DEMAND

5

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

6 complaint.

7 8
9 Dated: September fi,2006.
10 11 12

Respectfully submitted,
u.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Ronald S. Cooper General Counsel

13

James L. Lee

14

Deputy General Counsel

15

16

17

18

19

Anna"¥-....ll;liw-v---

Regional Attorney

20

21

22

23

24

25

26

27

28

-6-

 
 Case 2:06-cv-01104-LDG-GWF Document 1 Filed 09/07/2006 Page 1 of 6

1 Anna Y. Park, CA SBN 164242

2

Sue U.S.

JE. NQoUhAzLCAEMSBPLNO1Y92M1E34NT

OPPORIUNITY COMMISSION 3 255 East TemQ.le Stree~ Fourth Floor

Los Angeles, CA 9001L

4 Telephone: (213) 894-1082

FacsImile: (213) 894-1301

5 E-Mail: lado.1egal@eeoc.gov

6 Attome~ for Plaintiff U.S. E UAL EMPLOYMENT
7 OPPOR UNITY COMMISSION

8

9

UNITED STATES DISTRICT COURT

10

DISTRICT OF NEVADA

11

12 U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
13

14

Plaintiff,

15

vs.

16

17 CONSOLIDATED RESORTS, INC., and DOES 1-10, Inclusive,
18

19

Defendants.

20

Case No.: CV-S-- - - - - -
COMPLAINT--TITLE VII CIVIL RIGHTS
• SEXUAL HARASSMENT • NATIONAL ORIGIN • RETALIATION
DEMAND FOR JURY TRIAL

21

22

23

NATURE OF THE ACTION

24

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

25 Title I of the Civil Rights Act of 1991 to correct unlawful employment practices on

26 the basis of sex, and to provide appropriate relief to the Charging Party, who was

27 adversely affected by such practices. Plaintiff U.S. Equal Employment

28 Opportunity Commission alleges that the defendants discriminated against the

·1·

Case 2:06-cv-01104-LDG-GWF Document 1 Filed 09/07/2006 Page 2 of 6

1 Charging Party who was sexually harassed or subjected to sex-based harassment

2 during her employment with Defendant, Consolidated Resorts, Inc.

3

JURISDICTION

4

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

5 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to §

6 704(a) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §

7 2000e-3; §§ 706(f)(l) and (3) of Title VII of the Civil Rights Act of 1964, as

8 amended, 42 U.S.C. § 2000e-5(f)(l) and (3) ("Title VII"), and § 102 of the Civil

9 Rights Act of 1991,42 U.S.C. § 1981a.

10

VENUE

11

3. The employment practices alleged herein to be unlawful were

12 committed within the jurisdiction of the United States District Court for the

13 District of Nevada.

14

PARTIES

15

4. Plaintiff, the U.S Equal Employment Opportunity Commission

16 ("EEOC" or "Commission"), is the agency of the United States of America

17 charged with the administration, interpretation and enforcement of Title VII, and is

18 expressly authorized to bring this action by Section 706(f)( 1) and (3) of Title VII,

19 42 U.S.C. § 2000e-5(f)(l) and (3).

20

5. At all relevant times, Defendant CONSOLIDATED RESORTS, INC.

21 was and has continuously been a Nevada corporation doing business in the State of

22 Nevada, County of Clark, and has continuously had at least 15 employees.

23

6. During the relevant periods alleged in this Complaint, Defendant

24 Consolidated Resorts, Inc. ("Defendant") has employed the Charging Party.

25

7. At all relevant times, Defendant Employer has continuously been

26 employer engaged in an industry affecting commerce within the meaning of

27 Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h).

28 III

-2-

Case 2:06-cv-01104-LDG-GWF Document 1 Filed 09/07/2006 Page 3 of 6

1

8. All of the acts and failures to act alleged herein were duly performed

2 by and attributable to all Defendants, each acting as a successor, agent, employee,

3 or under the direction and control ofthe others, except as specifically alleged

4 otherwise. Said acts and failures to act were within the scope of such agency

5 and/or employment, and each Defendant participated in, approved and/or ratified

6 the unlawful acts and omissions by the other Defendants complained of herein.

7 Whenever and wherever reference is made in this Complaint to any act by a

8 Defendant or Defendants, such allegations and reference shall also be deemed to

9 mean the acts and failures to act of each Defendant acting individually, jointly,

10 and/or severally.

11

9. Plaintiff is ignorant of the true names and capacities of each

12 "Defendant," sued as DOE 1 through 10, inclusively, and therefore Plaintiff sues

13 said "Defendant Employer" by such fictitious names. Plaintiff reserves the right to

14 amend the complaint to name each DOE "Defendant" individually or corporately

15 as they become known. Plaintiff alleges that each "Defendant" named as DOE

16 was in some manner responsible for the acts and omissions alleged herein and

17 Plaintiff will amend the complaint to allege such responsibility when the same

18 shall have been ascertained by Plaintiff.

19

10. It is further alleged on information and belief that the unnamed

20 defendants in the complaint are mere alter egos of the "Defendant" Consolidated

21 Resorts, Inc. The remaining defendants are properly named in the complaint.

22

CONCILIATION

23

11. Prior to the institution of this lawsuit, the Commission's

24 representatives attempted to eliminate the unlawful employment practices alleged

25 below and to effect voluntary compliance with Title VII through informal methods

26 of conciliation, conference and persuasion within the meaning of §§ 706(f)(1) and

27 (3) of Title VII, 42 U,S,C, §§ 2000e-5(f)(1) and (3). All conditions precedent to

28 the institution of this lawsuit have been fulfilled.

-3-

Case 2:06-cv-01104-LDG-GWF Document 1 Filed 09/07/2006 Page 4 of 6

1

STATEMENT OF CLAIMS

2

12. More than thirty days prior to the institution of this lawsuit, the

3 Charging Party filed a charge with the Commission alleging violations of Title VII

4 by Defendant Employer. All conditions precedent to the institution of this lawsuit 5 have been fulfilled.

6

13. From at least as early as June 2004, through at least September 11,

7 2004, Defendant Employer individually and collectively engaged in unlawful

8 employment practices at their Las Vegas, Nevada, location, in violation of

9 § 706(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(I) and (3). The unlawful

10 sexual harassment and sex based harassment of the Charging Party was in the form

11 of verbal, visual and physical harassment. The Charging Party was forced to

12 engage in oral sex and was subjected to degrading acts that impacted the terms and

13 conditions of her employment and created a hostile working environment at

14 "Defendant Employer" that resulted in a tangible employment action.

15

14. The impact of the aforementioned conduct deprived the Charging

16 Party and others similarly situated of equal employment opportunities and

17 otherwise adversely impacted their employment status because of their sex.

18

15. The unlawful employment practices complained of above were done

19 with malice or with reckless indifference to the federally protected rights of the

20 Charging Party. The unlawful employment practices complained of above were

21 and are willful within the meaning of §§ 706(f)(1) and (3) of Title VII, 42 U.S.C.

22 §§ 2000e-5(f)(1) and (3) and caused the Charging Party to suffer emotional 23 distress.

24

16. Defendant Employer has acted with malice or reckless indifference to

25 the federally protected rights of the Charging Party by subjecting her to harassment

26 consisting of Charging Party being forced to perform oral sex upon Supervisors

27 and the General Sales Manager in order to keep her job. The Charging Party was

28 also subjected to unwanted touching of her breasts and her private area.

-4-

Case 2:06-cv-01104-LDG-GWF Document 1 Filed 09/07/2006 Page 5 of 6

1

PRAYER FOR RELIEF

2

Wherefore, the Commission respectfully requests that this Court:

3

A. Grant a permanent injunction enjoining Defendant Employer, their

4 officers, successors, assigns, and all persons in active concert or participation with

5 it, from engaging in sex discrimination and any other employment practice which

6 discriminates on the basis of sex.

7

B. Order Defendant Employer to institute and carry out policies,

8 practices, and programs which provide equal employment opportunities for

9 women, and which eradicate the effects of their past unlawful employment

10 practices.

11

C. Order Defendant Employer to make whole Charging Party, by

12 providing appropriate back pay with prejudgment interest, in amounts to be

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

14 their unlawful employment practices, including but not limited to compensation fo

15 loss of seniority and benefits, plus prejudgment interest.

16

D. Order Defendant Employer to make whole Charging Party, by

17 providing compensation for past and future pecuniary losses resulting from the

18 unlawful employment practices described above, in amounts to be determined at

19 trial.

20

E. Order Defendant Employer to make whole Charging Party by

21 providing compensation for past and future nonpecuniary losses resulting from the

22 unlawful practices complained of above, including emotional pain, suffering,

23 inconvenience, loss of enjoyment oflife, and humiliation, in amounts to be

24 determined at trial.

25

F. Order Defendant Employer to pay Charging Party punitive damages

26 for their malicious and reckless conduct described above, in amounts to be

27 determined at trial.

28 III

-5-

Case 2:06-cv-01104-LDG-GWF Document 1 Filed 09/07/2006 Page 6 of 6

1

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

2 the public interest.

3

H. Award the Commission its costs of this action.

4

JURY TruAL DEMAND

5

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

6 complaint.

7

Respectfully submitted,

8 9

Dated: September ~006.

10

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

11

Ronald S. Cooper

12

General Counsel

13

James L. Lee

14

Deputy General Counsel

15

Gwendolyn Young Reams

16

Associate General Counsel

17

18

19
Regional Attorney 20

21

22

23

24

25

26

27

28

-6-

 
 Case 2:06-cv-01104-LDG-GWF Document 40 Filed 09/28/2007 Page 1 of 1

1

2

3

UNITED STATES DISTRICT COURT

4

DISTRICT OF NEVADA

5 U.S. EQUAL EMPLOYMENT
6 OPPORTUNITY COMMISSION,

7

Plaintiff,

2:06-cv-1104-DG-GWF

8 v.

ORDER

9 CONSOLIDATED RESORTS, INC., and DOES 1-10 inclusive,
10 Defendants.
11

12

Defendant Consolidated Resorts, Inc., has filed a motion to dismiss, or in the alternative,

13

motion for summary judgment (#11, opposition #15, reply #19), and plaintiff EEOC has filed a

14

Rule 56(f) motion for denial or suspension of hearing on defendants’ motion for summary

15

judgment (#12, response #16, reply #20). Upon reviewing the arguments of the parties, the court

16

finds that the EEOC’s Rule 56(f) motion has merit. The court is not convinced that the conduct of

17

the administrative investigation should result in the suspension of additional relevant discovery by

18

the EEOC in this case. Accordingly,

19

THE COURT HEREBY ORDERS that the EEOC’s Rule 56(f) motion for denial or

20

suspension of hearing on defendants’ motion for summary judgment (#12) is GRANTED.

21

THE COURT FURTHER ORDERS that Consolidated Resorts, Inc.’s motion to dismiss, or

22

in the alternative, motion for summary judgment (#11) is DENIED without prejudice to the refiling

23

of a motion for summary judgment after the completion of discovery.

24

DATED this _____ day of September, 2007.

25

______________________________

26

Lloyd D. George

United States District Judge

 
 Case 2:06-cv-01104-LDG-GWF Document 54 Filed 10/25/2007 Page 1 of 20

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

DISTRICT OF NEVADA

9

10 U.S. EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

11

)

Plaintiff,

)

12

)

vs.

)

13

)

CONSOLIDATED RESORTS, INC.,

)

14

)

Defendants.

)

15 __________________________________________)

Case No. 2:06-cv-01104-LDG-GWF ORDER (Motion for Protective Order #38)

16

This matter is before the Court on Defendant Consolidated Resort, Inc.’s Motion for Protective

17 Order (#38), filed on September 21, 2007; Plaintiff EEOC’S Opposition to Defendant’s Motion for

18 Protective Order and Cross-Motion for Order Compelling Documents and Responses to Questions at

19 Deposition and Permission to Take Depositions In Excess of Seven Hours (#41), filed on October 1,

20 2007; and Defendant’s Reply In Support of Motion for Protective Order and Opposition to EEOC’s

21 Cross-Motion to Compel (#42), filed on October 3, 2007. The Court conducted a hearing on these

22 motions on October 5, 2007.

23

Following the hearing in this matter, the parties entered into a Stipulation Regarding Approved

24 Deposition Questions (#46), which resolves one of the issues concerning the deposition of Defendant’s

25 general counsel. The parties have also entered into a Stipulation and Protective Order Regarding

26 Confidentiality of Third Party Personnel Files (#49), which will govern the employee personnel records

27 produced by Defendant.

28 . . .

Case 2:06-cv-01104-LDG-GWF Document 54 Filed 10/25/2007 Page 2 of 20

1

BACKGROUND

2

Plaintiff U.S. Equal Employment Opportunity Commission (“EEOC”) filed this action on

3 September 7, 2006 pursuant to Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights

4 Act of 1991. Amended Complaint (#3), ¶ 1. The EEOC alleges that Defendant Consolidated Resorts

5 engaged in unlawful employment practices in violation of 42 U.S.C. § 2000e-5(f)(1) and (3) by sexual

6 harassment and sex-based harassment of the Charging Party in the form of verbal, visual and physical

7 harassment. According to the complaint, between June and September 2004, the Charging Party was

8 forced to perform oral sex upon Supervisors and the General Sales Manager in order to keep her job and

9 was also subjected to unwanted touching of her breasts and private area. Amended Complaint (#3), ¶ ¶

10 13, 16. The EEOC seeks a permanent injunction against Consolidated Resorts, Inc. from engaging in

11 sex discrimination and any other employment practice which discriminates on the basis of sex; and that

12 the Defendant be ordered to institute and carry out policies, practices and programs which provide equal

13 employment opportunities for women and which eradicate the effects of their past unlawful

14 employment practices. The EEOC also requests that the Charging Party be awarded damages for her

15 pecuniary loss and emotional distress, and that punitive damages be awarded against Defendant for its

16 malicious and reckless conduct. See Amended Complaint (#3), p. 5. Consolidated Resorts denies the

17 EEOC’s allegations and, among its affirmative defenses, alleges that it promulgated appropriate policies

18 and exercised reasonable care to prevent and promptly correct any discriminatory, harassing or

19 retaliatory behavior and that the Charging Party unreasonably failed to properly avail herself of the

20 preventive and/or corrective opportunities provided by Defendant. See Answer to Amended Complaint

21 (#6).

22

The Charging Party, Erin Dawson, alleges that only Ramiro Rouco, who was Consolidated’s

23 General Sales Manager at the time, forced her to perform oral sex on him or engaged in unwanted

24 touching of her breasts and private area. Opposition/Cross-Motion (#41), p. 3. Ms. Dawson alleges

25 that Charles Rouse, Defendant’s Director of Sales, made offensive sexual comments to her, including

26 asking her to show her breasts to him and other employees, and that Mr. Rouse sent her a sexually

27 offensive postcard. Ms. Dawson also alleges that a third employee, Chris Kollmer, a Sales Manager,

28 made sexually offensive statements by asking her to show her breasts to other employees. The alleged

2

Case 2:06-cv-01104-LDG-GWF Document 54 Filed 10/25/2007 Page 3 of 20

1 harassment occurred while Ms. Dawson and the aforementioned employees were employed at the

2 Defendant’s sales office at the Tahiti Resort in Las Vegas, Nevada. Consolidated Resorts denies that its

3 employees engaged in the foregoing conduct or, in the alternative, that if they did, it was not

4 unwelcomed by or offensive to Ms. Dawson, who, Defendant alleges, engaged in sexually provocative

5 speech and conduct in the workplace.

6

Ms. Dawson reported the alleged sexual harassment to Defendant’s Human Resources

7 Department on September 12, 2004. Opposition/Cross-Motion (#41), pp. 3-4.1 According to the

8 EEOC, Defendant’s Human Resources Director, Kimberly Barber, and Defendant’s in-house counsel,

9 Kevin Blair, investigated Ms. Dawson’s complaint. During the pendency of the investigation, Ms.

10 Dawson was transferred to work at Defendant’s Club de Soleil office to prevent further contact between

11 herself and Mr. Rouco. The EEOC alleges that Ms. Dawson’s opportunities to earn comparable wages

12 at the Club de Soleil location were sharply curtailed. The EEOC further alleges that although the

13 Defendant initially promised to make Ms. Dawson financially whole for any lost compensation

14 resulting from the transfer, it later reneged on that promise and never brought her compensation up to

15 the level she earned prior to the transfer. Id. Defendant’s Human Resources Department completed its

16 internal investigation of Ms. Dawson’s complaint on or about October 6 or 7, 2004 without finding that

17 sexual harassment had occurred. Defendant gave Ms. Dawson the option of remaining at the Club de

18 Soleil office or returning to the Tahiti Resort sales office. According to the EEOC, Mr. Blair and Ms.

19 Barber allegedly told Ms. Dawson that the only way she could receive compensation for the alleged

20 sexual harassment would be if she filed a worker’s compensation claim and offered to assist her in

21 doing so. Opposition/Cross-Motion (#41), p. 4. Ms. Dawson objected to the manner in which the

22 Defendant’s investigation was conducted and she resigned from Defendant’s employment on November

23 8, 2004. According to the EEOC, Mr. Rouco, Mr. Rouse and Mr. Kollmer continued to work for

24 Consolidated Resorts, and Mr. Rouco has since been promoted a number of times. As of January 2007,

25 he heads the sales force for Consolidated Realty’s Orlando, Florida resort facility. Opposition/Cross-

26

27

1The EEOC previously attached a copy of Defendant’s internal investigation file regarding Ms.

Dawson’s sexual harassment complaint to its sealed reply brief in support of its Sealed Motion for

28 Protective Order (#27). See Sealed Reply (#31), Declaration of Dana Johnson, Exhibit “1”.

3

Case 2:06-cv-01104-LDG-GWF Document 54 Filed 10/25/2007 Page 4 of 20

1 Motion (#41), p. 4, Exhibit “B”, Rouco Deposition, p. 17:9-25.

2

Defendant states that it is a nationwide company with numerous discrete locations in Hawaii,

3 Florida and Las Vegas, Nevada. In Las Vegas, Defendant and its subsidiary Consolidated Realty, Inc.,

4 maintain “a business presence” at ten locations, including the two locations where Ms. Dawson worked

5 – Tahiti Resort and Club de Soleil. See Motion (#38), pp. 3-4. The EEOC notes, however, that

6 Consolidated Resorts maintains one human resources department which is responsible for investigating

7 and taking appropriate action in regard to discrimination complaints arising from Defendant’s different

8 business locations. Opposition/Cross-Motion (#41), p. 17; Exhibit “A”, Deposition of Kevin Blair, p.

9 79.

10

The discovery dispute, at issue, concerns the EEOC’s efforts to obtain documents and

11 deposition testimony from Defendant regarding sexual harassment and discrimination complaints made

12 by other employees. The EEOC served Amended Requests for Production of Documents on Defendant

13 in February 2007 which included the following requests:

14

Request For Production No. 24:

15

Please produce all DOCUMENTS which evidence, set forth, or reflect

any complaints or concerns brought by any of YOUR workforce (whether

16

designated as employees or independent contractors) regarding sexual

harassment, hostile environment or retaliation[.]

17

Request For Production No. 25:

18

Please produce all DOCUMENTS which evidence, set forth, pertain or

19

relate to any complaints of harassment, discrimination, retaliation

(whether based upon race, national origin, sex or membership in any

20

other protected classification) brought by any of YOUR employees or

independent contractors (including but not limited to Dawson) at any time

21

from January 1, 2000 to the present (including but not limited to written

complaints, notes or other documentation memorializing oral complaints,

22

notes or other documentation taken in the course of or pertaining to

YOUR investigation into a complaint of discrimination or harassment,

23

notes or documentation of the results of any investigation undertaken in

connection with a harassment or discrimination complaint,

24

documentation of disciplines imposed as a result of a complaint being

lodged or brought, DOCUMENTS which reflect the identity of the person

25

or persons against whom the complaining employee brought the

complaint).

26

27 Defendant’s Motion for Protective Order (#38), Exhibit “A”.

28 . . .

4

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1

Defendant served its responses to these requests on June 18, 2007 and objected to them on

2 grounds of irrelevancy, vagueness, undue burdensomeness, work-product doctrine and attorney-client

3 privileges, and the privacy rights of third party non-litigants. See Motion (#38), p. 4; Exhibit “B.” The

4 EEOC did not immediately confer with Defendant regarding its objections or file a motion to compel

5 responses. The EEOC’s counsel subsequently attempted to inquire into other complaints of sexual

6 harassment during the deposition of Defendant’s general counsel, Kevin Blair, on August 9, 2007.

7 Although Defendant allowed Mr. Blair to testify about his general practices in handling such

8 complaints, Mr. Blair refused to answer questions about specific complaints. Following Mr. Blair’s

9 deposition, the parties’ counsel conferred in September 2007 regarding the scope of documents that

10 Defendant would produce and the related areas that it would permit Mr. Blair and Defendant’s other

11 officers or employees to testify about at deposition.

12

Although the parties’ counsel narrowed the scope of their dispute, they were unable to reach

13 agreement. Defendant offered to produce information regarding complaints of sexual harassment at

14 Erin Dawson’s locations of work (Tahiti Resort and Club de Soleil) during the time she worked for

15 Consolidated Realty (Consolidated Resorts) from 1999 to 2004, and any complaints of sexual

16 harassment made against Mr. Rouco, Mr. Rouse and Mr. Kollmer which occurred prior to Ms.

17 Dawson’s resignation in November 2004. See Motion (#38), p. 5 and Exhibit “E”. The EEOC offered

18 to limit the subject matter of its requests to complaints of sexual harassment and gender

19 discrimination; to limit the scope to Defendant’s sales force; and to limit the temporal scope of the

20 requests for all of Defendant’s locations in Las Vegas from 1999 to the present; and to limit the

21 temporal scope for Defendant’s Orlando, Florida location(s) from January 2007 (when Mr. Rouco

22 began working there) to the present. As the Court understands this offer, the EEOC eliminated

23 production of documents regarding complaints and investigations arising from Defendant’s Hawaii

24 business location(s).

25

Consolidated Resorts also seeks a protective order regarding those portions of its files

26 concerning other complaints of sexual harassment which are protected by the attorney-client and/or

27 work-product doctrine. Defendant also seeks to preclude the EEOC from questioning Defendant’s in-

28 house counsel, Mr. Blair, or Defendant’s other officers or employees regarding privileged matters. The

5

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1 EEOC disputes whether the attorney-client privilege or work-product doctrine applies and contends that

2 Defendant has waived the privileges.

3

DISCUSSION

4

Fed.R.Civ.Pro. 26(b)(1), as amended in 2000, generally provides that parties may obtain

5 discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. The

6 rule further provides that for good cause, the court may order discovery of any matter relevant to the

7 subject matter involved in the action. EEOC v. Caesars Entertainment Inc., 237 F.R.D. 428, 431

8 (D.Nev. 2006), states that there is general consensus that the 2000 amendments do not dramatically

9 alter the scope of discovery and that Rule 26 still contemplates liberal discovery and that relevancy

10 under the rule remains extremely broad. The amendments, however, require the court to give greater

11 scrutiny to discovery requests by focusing on whether the requested discovery makes sense in light of

12 the Rule 26(b)(2) factors and by considering the totality of the circumstances, weighing the value of the

13 material sought against the burden of providing it and taking into account society’s interest in furthering

14 the truth-seeking function in the particular case before the court. Id. In deciding these motions, the

15 Court therefore begins with an analysis of the parties’ claims and defenses.

16

Under Title VII, it is unlawful for an employer to “discriminate against any individual with

17 respect to his compensation, terms, conditions, or privileges of employment, because of such

18 individual’s race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-2(a)(1). Sexual

19 harassment is a form of sex discrimination. By tolerating sexual harassment against its employees, the

20 employer is deemed to have adversely changed the conditions of their employment in violation of Title 21 VII. Swenson v. Potter, 271 F.3d 1184, 1191 (9th Cir. 2001); Nichols v. Azteca Restaurant Enterprises, 22 Inc., 256 F.3d 864, 871 (9th Cir. 1991); Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir. 2000).

23 To prove a “hostile work environment” claim, the plaintiff must demonstrate conduct “sufficiently

24 severe or pervasive to alter the conditions of the victim’s employment and create an abusive work

25 environment.” Swenson, at 1191, citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct.

26 2399, (1986). The plaintiff must also prove that the conduct was both objectively and subjectively

27 offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did 28 perceive to be so. Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864, 871-72 (9th Cir. 2001).

6

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1

Where harassment by a non-supervisory co-worker is alleged, an employer can only be liable if

2 its own negligence is a cause of the harassment. The test, here, is whether the employer knew or should

3 have known of the harassment and failed to take adequate remedial measures to stop it. Swenson v.

4 Potter, 271 F.3d at 1991; Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d at 875. An

5 employer, however, is vicariously liable for a sexually hostile work environment created by a

6 supervisory employee with authority over the alleged victim without a showing of negligence by the

7 employer. Where no tangible employment action is taken, however, the employer may raise an

8 affirmative defense to liability or damages by showing (a) that the employer exercised reasonable care

9 to prevent and correct promptly any sexually harassing behavior and (b) that the employee unreasonably

10 failed to take advantage of any preventive or corrective opportunities provided by the employer or to

11 avoid harm otherwise. Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93 (1998);

12 Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270 (1998) (the

13 “Faragher/Ellerth Affirmative Defense”).

14

The EEOC has alleged a claim for punitive damages against Defendant under 42 U.S.C. §

15 1981(a)(b)(1). In order to recover punitive damages, Plaintiff must show that Defendant engaged in

16 intentional discrimination with malice or reckless indifference to the federally protected rights of the

17 employee. Kolstad v. American Dental Assoc., 527 U.S. 526, 119 S.Ct. 2118, 2124 (1999), states that

18 this requirement focuses on whether the employer acted with knowledge or reckless indifference that it

19 may be violating federal law and not merely that it engaged in intentional discrimination. In some

20 circumstances an employer may engage in intentional discrimination in the erroneous, but good faith,

21 belief that its conduct is lawful. While the employer may be liable for compensatory damages or

22 subject to injunctive relief in such cases, it cannot be held liable for punitive damages. An employer is

23 also not vicariously liable for punitive damages based on the discriminatory decisions or conduct of its

24 managerial agents, where those decisions or conduct are contrary to the employer’s good faith efforts to

25 comply with Title VII. Kolstad, 119 S.Ct. at 2129.

26

The EEOC argues that Consolidated Resorts is not protected from liability if its investigation of

27 Ms. Dawson’s sexual harassment complaint was unreasonable or a sham. In Swenson v. Potter, 271

28 F.3d at 1193, the Ninth Circuit stated that the fact that an employer has conducted an investigation in

7

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1 response to a harassment complaint does not shield it from liability if the investigation is rigged to

2 reach a pre-determined conclusion or otherwise conducted in bad faith. Swenson also stated, however,

3 that the employer can act reasonably, yet reach a mistaken conclusion as to whether the accused

4 employee actually committed harassment. 271 F.3d at 1196. The reasonableness of the employer’s

5 conduct should be determined from its investigation and resolution of the complaint in issue. In Fuller 6 v. City of Oakland, 47 F.3d 1522, 1529 (9th Cir. 1995), for example, the court held that the employer’s

7 investigation was not reasonable or adequate where it failed to promptly interview the alleged harasser,

8 gave him an unfair opportunity to prepare extensive documentation for his defense, and accepted the

9 alleged harasser’s version of events over that of the plaintiff without taking reasonable steps to

10 corroborate the alleged harasser’s denial of harassing conduct.

11

The EEOC has not identified similar alleged deficiencies in Defendant’s investigation of Ms.

12 Dawson’s complaint. It does allege, however, that Defendant’s Human Resources Director and General

13 Counsel improperly informed Ms. Dawson that her only remedy for the alleged sexual harassment was

14 to make a claim for worker’s compensation, thereby arguably attempting to mislead her regarding her

15 right to pursue administrative or legal remedies under Title VII. Additionally, the EEOC alleges that

16 Defendant reneged on its promise to provide Ms. Dawson with comparable compensation after she was

17 transferred to Club de Soleil during the investigation. Such conduct, if established, could arguably

18 provide circumstantial evidence that Defendant did not intend to conduct an objective and fair

19 investigation of her complaint or implement appropriate remedies in response to a valid complaint of

20 sexual harassment.

21

The Court does not agree with Defendant’s argument that evidence regarding Defendant’s

22 investigation of other employees’ sexual harassment complaints is wholly irrelevant to Defendant’s

23 Faragher/Ellerth defense, or to whether punitive damages should be imposed. Although sexual

24 harassment complaints made by other employees, which were unknown to the plaintiff, are not relevant

25 to proving that a hostile work environment existed, they may be relevant to assessing the employer’s

26 motive in regard to its investigation of the plaintiff’s complaint. Brooks v. City of San Mateo, 214 F.3d 27 1082, 1089 n. 4 (9th Cir. 2000). In Williams v. Conagra, 378 F.3d 790, 790, (8th Cir. 2004), the court

28 stated that evidence of racial bias in other employment situations, even if unknown to the plaintiff,

8

Case 2:06-cv-01104-LDG-GWF Document 54 Filed 10/25/2007 Page 9 of 20

1 could permissibly lead to an inference that management was similarly biased against plaintiff and was

2 therefore admissible to show the employer’s motive. Such evidence may also be admissible to prove

3 Defendant’s reprehensible state of mind in its conduct toward Ms. Dawson for purposes of imposing

4 punitive damages. In Philip Morris USA v. Williams, 127 S.Ct. 1057 (2007), the Supreme Court held

5 that although a defendant cannot be punished for its misconduct toward non-parties, that conduct may

6 be relevant and admissible to establishing its reprehensible state of mind. The Court held that the trial

7 court is required to properly instruct the jury to make this difficult distinction.

8

Therefore, evidence that Defendant engaged in a pattern and practice of inadequately

9 investigating complaints of sexual harassment, or has routinely found in favor of the alleged harassers

10 in a manner that indicates a pre-determined conclusion, could provide circumstantial evidence that

11 Defendant’s investigation and resolution of Ms. Dawson’s complaint was not objective or fair.

12 Although the Court may exclude evidence regarding other complaints if no relevant nexus is shown,

13 discovery regarding Defendant’s investigation and resolution of other sexual harassment claims is

14 relevant to determine whether admissible evidence exists. As Jackson v. Montgomery Ward & Co., 173 15 F.R.D. 524, 527-28 (D. Nev. 1997), relying on Estes v. Dick Smith Ford Inc., 856 F.2d 1097, 1103 (8th

16 Cir. 1988), explained, the rationale for permitting liberal discovery of other discrimination complaints

17 made against an employer in a disparate treatment case is based on the difficulty plaintiffs often

18 experience in rebutting with direct evidence an employer’s account of its own motives for terminating

19 or rejecting an employee. Circumstantial proof may be critical for the jury’s assessment of whether a

20 given employer was more likely than not to have acted from an unlawful motive. The same rationale is

21 applicable to a claim that the employer failed to conduct a reasonable and fair investigation of the

22 Charging Party’s sexual harassment complaint.

23

The EEOC has not presented evidence, such as complaints or actions brought against Defendant

24 by other employees, which indicate Defendant has engaged in a pattern of improper or inadequate

25 practices in investigating sexual harassment or gender discrimination complaints. While the absence of

26 such information does not warrant complete denial of Defendant’s discovery requests, it clearly

27 cautions against granting overly broad discovery into other types of complaints or investigations, the

28 relevance of which is questionable. See Spina v. Our Lady of Mercy Medical Center, 2001 WL 630481

9

Case 2:06-cv-01104-LDG-GWF Document 54 Filed 10/25/2007 Page 10 of 20

1 (S.D.N.Y. 2001) *2, stating that “‘[w]here a plaintiff fails to produce any specific facts whatsoever to

2 support a[n] ... allegation, a district court may, in its discretion, refuse to permit discovery....’

3 Contemporary Mission, Inc. v. United Postal Service, 648 F.2d 97, 107 (2d Cir. 1981).” Although not

4 protected by a federal privilege, courts have also recognized that discovery into personnel records of

5 non-party employees has the potential to unreasonably intrude on their privacy interests. In Hawaii

6 Corp. v. Crossley, 88 F.R.D. 518, 524 (D. Hawaii 1980), the court stated that discovery of other

7 employees’ personnel files is allowed if the (1) the material sought is “clearly relevant” and (2) the need

8 for discovery is compelling because the discovery sought is not otherwise readily available. In Miller v.

9 Federal Express, 186 F.R.D. 376 (W.D. Tenn. 1999), the court held that discovery regarding personnel

10 records of other employees should be limited to employees who were “similarly situated” to plaintiff in

11 all of the relevant aspects. Only those portions of records containing relevant information should be

12 produced. As the EEOC notes, some federal courts have been wary of adopting the “compelling need”

13 standard set forth in Crossley and Miller. See Hill v. Motel 6, 205 F.R.D. 490, 496 (S.D. Ohio (2001);

14 Ladson v. Ulltra East Parking Corp., 164 F.R.D. 376, 378 (S.D.N.Y. 1996) and Hicks v. Robeson

15 County, 187 F.R.D. 232, 235 (E.D.N.C. 1999). The “compelling need” standard is consistent with the

16 factors that the court considers under Rule 26(b)(2), including the importance of the discovery in

17 resolving the issues in the case, and whether it is obtainable from some other source.

18

Defendant argues that the limits it has proposed regarding discovery of other complaints are

19 supported by the majority of cases. At the hearing in this matter, Defendant cited, in particular, the

20 decision in this district in Jackson v. Montgomery Ward & Co., 173 F.R.D. 524 (D. Nev. 1997).

21 Jackson held that the information sought by plaintiff was relevant to his burden of showing that the

22 employer’s explanation for rejecting him for promotion was a pretext for invidious discrimination. Id.,

23 at 527. The court held that plaintiff’s discovery requests were properly restricted by subject matter to

24 the facility where plaintiff was employed and were restricted to the time period of plaintiff’s

25 employment. Id., at 528, citing McClain v. Mack Trucks, Inc., 85 F.R.D. 53, 62-63 (E.D.Pa. 1979) and

26 Robbins v. Camden City Bd. of Educ., 105 F.R.D. 49, 58 (D.N.J. 1985). Consolidated Resorts argues

27 that the same subject matter, geographical and temporal limitations should be imposed in this case.

28 While the limits imposed in Jackson are consistent with those adopted by courts in many other cases,

10

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1 these restrictions do not constitute “iron-clad” rules that courts cannot vary from regardless of the

2 factual or legal issues presented in a particular case. The Court, therefore, considers the appropriate

3 limits on the scope of discovery based on the factual and legal issues in this case.

4

A. Subject Matter Scope.

5

The EEOC argues that discovery of other complaints should include both sexual harassment and

6 gender discrimination complaints. In support of its position, the EEOC argues that sexual harassment is

7 a species or subset of sex discrimination, Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66-67,

8 106 S.Ct. 2399, 2405 (1986), and it is logical to infer that if Defendant engaged in other forms of sexual

9 discrimination, it was also willing to tolerate sexual harassment in its workplace(s). Plaintiff also relies 10 on Heyne v. Caruso, 69 F.3d 1475 (9th Cir. 1995), in which the court held that evidence that the

11 defendant restaurant owner engaged in sexual harassment of other employees was relevant to plaintiff’s

12 disparate treatment discrimination claim. In Heyne, plaintiff’s employer allegedly fired her because she

13 failed to show up for work on time. Plaintiff alleged, however, that the employer actually fired her for

14 refusing his sexual advances. The court, therefore, held that evidence that the employer sexually

15 harassed other employees was directly relevant to his true motive for firing plaintiff. The court cited its 16 earlier decision in EEOC v. Farmers Bros. Co., 31 F.3d 891, 897-98 (9th Cir. 1994), which held that

17 evidence of the employer’s sexual harassment of female employees and disparaging remarks about

18 women in general were relevant to a claim that plaintiff’s discharge was motivated by the employer’s

19 general feeling of hostility toward women. The evidence in Farmers Bros. showed that the president of

20 the company had made a conscious decision to no longer employ women and had taken steps to

21 eliminate female employees. The other cases cited by the EEOC generally involve the admissibility of

22 evidence of other incidents or complaints of sexual harassment of employees in an action alleging 23 sexual harassment. See Dockter v. Rudolf Wolff Futures, 913 F.2d 456, 459 (7th Cir. 1990); Kalima v.

24 Regents of the University of California, 2007 WL 1514785 (N.D.Cal. 2007); Cuesta v. Texas Dept. of

25 Criminal Justice, 805 F.Supp. 451, 455-56 (W.D. Tex. 1991); Molnar v. Booth, 229 F.3d 593 603-04 26 (7th Cir. 2000); Green v. Administrators of Tulane Educ. Fund, 284 F.3d 642, 660 (5th Cir. 2002); Smith 27 v. Sheahan, 189 F.3d 529, 533 (7th Cir. 1999); and Ayala v. Tapia, 1991 WL 241925 (D.C. 1991). As

28 Defendant has argued, courts have also generally limited discovery into other complaints to the same

11

Case 2:06-cv-01104-LDG-GWF Document 54 Filed 10/25/2007 Page 12 of 20

1 type of conduct alleged by the plaintiff.

2

The Court finds that there is an insufficient factual basis to expand discovery in this case to all

3 forms of gender discrimination complaints made against Defendant. Sexual harassment is a specific,

4 and particularly egregious, form of sex discrimination. To establish such a claim, the harassment must

5 be severe or pervasive. Thus, as the court in EEOC v. Farmers Bros. Co. held, evidence that an

6 employer has engaged in or tolerated sexual harassment is relevant to its state of mind in allegedly

7 discriminating against females in hiring and firing decisions. While there is a relevant nexus between

8 sexual harassment and other forms of gender discrimination, it does not necessarily follow that because

9 other employees may have complained of other types of gender discrimination, that it is indicative of

10 the employer’s motive to engage in or tolerate sexual harassment. Second, unlike the defendants in

11 Heyne and Farmers Bros., there is no allegation or evidence that the alleged harassers in this case were

12 owners or high level policy makers of Defendant such that their alleged conduct can be directly inferred

13 to represent the state of mind of Consolidated Resorts. Third, Plaintiff has not alleged or presented any

14 evidence that Consolidated Resorts has engaged in other types of gender discrimination or, for that

15 matter, that other employees besides Ms. Dawson have complained of sexual harassment. The absence

16 of such allegations, again, caution against an overly broad scope of discovery.

17

Discovery into other types of gender discrimination would also likely result in litigation and

18 additional discovery regarding other alleged forms of gender discrimination that are clearly collateral

19 and irrelevant to those in this case. The discovery sought here is for the purpose of determining

20 whether Defendant has engaged in a pattern or practice of improperly investigating and resolving sexual

21 harassment complaints that would support a finding that Defendant did not conduct a reasonable or

22 good faith investigation of Ms. Dawson’s complaint. The Court, therefore, concludes that the scope of

23 discovery into other complaints should be limited to other complaints and investigations regarding

24 sexual harassment allegedly committed by Defendant’s employees.

25

B. Geographic or Jurisdictional Scope.

26

The next issue is whether the discovery should be restricted to the two locations where Ms.

27 Dawson worked, Tahiti Resorts and Club de Soleil, or should be more broadly allowed as to all of

28 Defendant’s Las Vegas locations. Discovery into other employee complaints or personnel files in Title

12

Case 2:06-cv-01104-LDG-GWF Document 54 Filed 10/25/2007 Page 13 of 20

1 VII cases is generally confined to the employee unit in which the plaintiff worked. As the court in

2 Onwuka v. Federal Express, 178 F.R.D. 508, 571 (D. Minn. 1997), states, discovery of company

3 records is usually limited to the local facility where plaintiff is employed because those who make

4 employment decisions vary across divisions and company-wide statistics are usually not helpful in

5 establishing pretext. In Hazelhorst v. Wal-Mart Stores, Inc., 163 F.R.D. 10, 11 (D. Kan. 1995), the

6 court further states that discovery is usually limited to employees in the same department or office

7 absent a particularized showing that there were hiring or firing practices and procedures applicable to

8 all the employing units. See also Sallis v. University of Minnesota, 408 F.3d 470, 478 (8th Cir. 2005)

9 (“Courts have also limited discovery of company records to the local facility where the plaintiff was

10 employed, where there is no showing of the need for regional or nationwide discovery”); and Boyd v.

11 American Airlines, 2002 U.S.Dist. LEXIS 19937 (N. D. Tex. 2002) (denying request for discovery of

12 racial harassment complaints occurring at 91other locations of defendant airline.)

13

Here, Defendant’s Human Resources Department was/is responsible for investigating and

14 resolving sexual harassment complaints arising from any of the Defendant’s business locations. Thus,

15 Defendant’s practices and procedures in handling sexual harassment complaints occurring at locations

16 other than Tahiti Resorts and Club de Soleil would not be materially different or less relevant than its

17 investigation of complaints occurring at those two locations. Because Defendant’s investigation of

18 other sexual harassment complaints, unknown to Ms. Dawson, are not relevant or admissible to prove

19 that a hostile work environment existed at the Tahiti Resorts or Club de Soleil, Brooks v. City of San

20 Mateo, supra, there is also no reason to restrict the discovery to those two locations on that ground.

21 Restricting the scope of the discovery to Tahiti Resorts and Club de Soleil could, however, result in

22 misleading information regarding Defendant’s practices. Under such a restriction, Plaintiff would be

23 deprived of information regarding sexual harassment complaints that may have been made against

24 supervisory employees at Defendant’s other Las Vegas, Nevada business locations which provide

25 equally relevant evidence about Defendant’s practices.

26

A related reason for limiting discovery of other complaints or personnel files to the plaintiff’s

27 employment unit is the unnecessary burden that may be imposed on a large corporation which conducts

28 business in many different locations. In Boyd v. American Airlines, 2002 U.S.Dist. LEXIS 19937 (N.

13

Case 2:06-cv-01104-LDG-GWF Document 54 Filed 10/25/2007 Page 14 of 20

1 D. Tex. 2002), for example, the court refused to order defendant to produce records regarding any

2 complaint or report of racial harassment or a racially hostile work environment at any of defendant’s 91

3 business locations during a two year period. There was no indication in Boyd, however, that

4 defendant’s investigation of racial harassment complaints was centralized in one office. In this case, no

5 information has been provided that the sexual harassment complaints made by employees at

6 Defendant’s other Las Vegas business locations are not readily accessible or are so voluminous that an

7 undue burden would be imposed on Defendant. The Court, therefore, concludes that the relevant scope

8 of discovery regarding other complaints of sexual harassment should include Defendant’s other Las 9 Vegas, Nevada business locations.2 This conclusion is consistent with Onwuka, Hazelhorst, Sallis and

10 other similar cases.

11

C. Temporal Scope.

12

Several, if not many, courts have limited discovery to the period of plaintiff’s employment and

13 do not permit discovery into other employee complaints that occurred after plaintiff’s employment

14 terminated. See Rossbach v. Fernandez Rundle, 128 F.Supp.2d 1348, 1354 (S.D. Fla. 2000); Johnson

15 v. Jung, 2007 U.S. Dist. Lexis 43638 (N.D. Ill. 2007); Laurenzano v. Lehigh Valley Hospital, Inc., 2001

16 U.S. Dist. Lexis 10534 (E.D.Pa. 2001); Landry v. AT&T, 1999 U.S. Distr. Lexis (E.D. La. 1999); and

17 Childers v. Slater, 1998 WL 429849 (D.D.C. 1998). Most of these cases imposed the limitation with

18 little discussion of the possible relevancy of post-employment complaints. The limitations appeared to

19 have generally been imposed to prevent over broad and burdensome discovery. Jackson v. Montgomery

20 Ward & Co. did not specifically address the issue because the plaintiff was currently employed by the

21 defendant and thus his requests were within the scope of discovery generally allowed by the courts. The

22 EEOC has cited a few cases in which the courts appear to have ordered or permitted discovery into

23 other complaints that occurred after the plaintiff was no longer employed by the defendant. See e.g.

24 Hill v. Motel 6, 205 F.R.D. 490, 496 (S.D. Ohio (2001); Wolber v. Kitsap Mental Health Services, 200

25 WL 1734079 (W.D. Wash. 2006). These cases, also contain no discussion of the basis for doing so. As

26

27

2The EEOC’s request, in its compromise proposal, for complaints arising from Defendant’s

Orlando, Florida location since January 2007 appears to be directed ensuring that it uncovers any

28 subsequent complaints relating to Mr. Rouco.

14

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1 with the limitations generally imposed on geographic scope, the Court believes that discovery into other

2 complaints should generally be restricted to the period of the plaintiff’s or charging party’s

3 employment, unless good cause is shown to support discovery of subsequent complaints.

4

Defendant’s practices and procedures in investigating and resolving other sexual harassment

5 complaints in temporal proximity to Ms. Dawson’s September 2004 complaint are likely to be more

6 relevant than remote incidents. Of course, other factors, such as whether the same employees were

7 involved and the similarity of the allegations and steps taken in the investigation, affect relevancy.

8 Thus, Defendant’s practices in investigating sexual harassment complaints within a reasonable period

9 before and after Ms. Dawson’s complaint are reasonably relevant to its practices in investigating her

10 complaint. As the EEOC argues, for example, if Defendant investigated another sexual harassment

11 complaint against Mr. Rouco a few months after Ms. Dawson made her complaint, this likely would be

12 very relevant to the handling of her complaint. The Court, therefore, believes that in striking the proper

13 balance, some discovery into subsequent complaints is relevant, and that a period of approximately one

14 year subsequent to Ms. Dawson’s complaint should be sufficient to generally cover other relevant

15 investigations.

16

The Court again notes that the EEOC has not alleged or shown that Defendant has engaged in a

17 general practice of not properly investigating and resolving sexual harassment complaints. Nor has

18 Defendant alleged that it has adopted different practices or procedures for investigating and resolving

19 such complaints since it investigated Ms. Dawson’s complaint. Were such a defense asserted,

20 discovery into more recent complaints would arguably be justified. If Plaintiff establishes that

21 Defendant failed to conduct a reasonable investigation of Ms. Dawson’s complaint and other similar

22 complaints, the court can fashion appropriate injunctive relief based on the evidence presented to it.

23 This disposes of the EEOC’s claim that it needs to obtain evidence of all complaints up to the present

24 time in order for appropriate injunctive relief to be granted.

25

There may be a stronger basis for allowing discovery of any other sexual harassment complaints

26 made against Mr. Rouco, Mr. Rouse or Mr. Kollmer after Ms. Dawson left Defendant’s employment.

27 Information contained in those investigation files could possibly reveal admissible evidence relevant to

28 Ms. Dawson’s complaint, or possibly show some bias on Defendant’s part in pursuing investigation of

15

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1 complaints against those employees. It would, of course, be helpful to know whether any subsequent

2 sexual harassment complaints have been filed against Mr. Rouco, Mr. Rouse or Mr. Kollmer and, if so,

3 the dates thereof and the general nature of the allegations. This would, at least, avoid a “cat and mouse”

4 game whether there are any such complaints that might contain relevant and discoverable information

5 and would allow the Court to determine whether production of these files should also be ordered.

6

D. Attorney-Client Privilege and Work-Product Doctrine.

7

Defendant asserts the attorney-client privilege in regard to confidential legal advice provided by

8 its in-house counsel, Mr. Blair, concerning the investigations of other complaints of sexual harassment.

9 See Upjohn Co. v. United States, 449 U.S. 383, 393-95 (1981); Admiral Ins. co. v. U.S. Dist. Court, 881 10 F.2d 1486 (9th Cir. 1989); Shearing v. Iolab Corp., 975 F.2d 1541, 1546 (Fed.Cir. 1992). Defendant

11 also alleges that documents and information arising from its investigation of other sexual harassment

12 complaints are protected by the work-product doctrine. Fed.R.Civ.Pro. 26(b)(3).

13

The work-product doctrine protects materials that were prepared in anticipation of litigation.

14 The EEOC argues the work-product doctrine does not apply to materials that were prepared as part of

15 Defendant’s ordinary practice to enforce its anti-harassment policy or to comply with its legal duty to

16 investigate and remedy the allegations. See Sanchez v. Matta, 229 F.R.D. 649, 656 D. N.M. 2004). On

17 the other hand, Sanchez states that if the purpose of preparing the document or materials was to provide

18 legal advice or prepare for litigation then the privilege applies. Id. The Defendant suggests that the

19 mere filing of an internal sexual harassment complaint is sufficient to place an employer in anticipation

20 of litigation. See EEOC v. Lutheran Social Services, 186 F.3d 959, 969 (D.C. Cir. 1999). Depending

21 on the facts and circumstances regarding the investigation of other sexual harassment complaints,

22 Defendant may or may not have been in anticipation of litigation. As Diamond State Ins. Co., 157

23 F.R.D. at 699, states:

24

Courts have not found a “neat general formula” to determine whether

documents were prepared in anticipation of litigation. United States v.

25

Davis, 636 F.2d 1028, 1040 (5th Cir.1981), citing Kent Corp. v. N.L.R.B.,

530 F.2d 612, 623 (5th Cir.1976), cert. denied 429 U.S. 920, 97 S.Ct.

26

316, 50 L.Ed.2d 287 (1976), In re Grand Jury Investigation, 599 F.2d

1224, 1229 (3d Cir.1979). Determining the driving force behind the

27

preparation of each requested document is required in resolving a work

product immunity question. Murray Sheet Metal, 967 F.2d at 984.

28

16

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1

The Court, therefore, cannot issue a blanket order that the work-product doctrine applies or does

2 not apply to Defendant’s other sexual harassment complaint files. A party asserting the attorney-client

3 privilege or work-product doctrine is required to provide a privilege log or other evidence sufficient to

4 establish a prima facie case for the protection of the privilege as to particular documents. See

5 Fed.R.Civ.Pro. 26(b)(5)(A); Diamond State Ins. Co. v. Rebel Oil Co., Inc., 157 F.R.D. 691 (D. Nev.

6 1994). Defendant should provide a privilege log and, if necessary, affidavits, supporting its assertion of

7 the attorney-client privilege and work-product doctrine for the documents that it seeks to withhold from

8 those files.

9

The EEOC argues that Defendant waived the privileges by not specifically raising them during

10 Mr. Blair’s deposition as grounds for instructing him not to answer questions regarding the details of

11 other sexual harassment claims. Under the circumstances of this case, the Court does not find waiver of

12 the privileges on this basis. First, as noted above, Defendant asserted both privileges in its objections to

13 Plaintiff’s requests for production of documents. Secondly, given the position taken by the Defendant

14 during the deposition regarding the scope of discovery into other complaints of sexual harassment, the

15 parties did not reach the point at which Mr. Blair was asked specific questions regarding other sexual

16 harassment complaints wherein either privilege would be invoked. Third, Defendant promptly moved

17 for a protective order regarding inquiry into the privileged materials or information.

18

The EEOC also argues that Defendant has waived its attorney-client privilege and work-product

19 doctrine privilege by asserting the Faragher/Ellerth affirmative defense in this case. In support of its

20 position, the EEOC cites Walker v. County of Contra Costa, 227 F.R.D. 429 (N.D. Cal. 2005);

21 Brownell v. Roadway Package System, Inc., 185 F.R.D. 19 (N.D.N.Y. 1999); and McGrath v. Nassau

22 County Healthcare Corp., 204 F.R.D. 240, 245 (E.D.N.Y. 2001). The court in Walker analyzed the

23 basis for finding waiver as follows:

24

When an employer injects into a lawsuit an issue concerning the

adequacy of its investigation, and the investigation was undertaken by an

25

attorney or law firm, a waiver of the traditional protections must be

deemed to have occurred. “If a defendant employer hopes to prevail by

26

showing that it investigated an employee’s complaint and took action

appropriate to the findings of the investigation, then it will have put the

27

adequacy of the investigation directly at issue, and cannot stand on the

attorney-client privilege or work product doctrine to preclude a thorough

28

examination of its adequacy.”

17

Case 2:06-cv-01104-LDG-GWF Document 54 Filed 10/25/2007 Page 18 of 20

1 Walker, 227 F.R.D. at 534, quoting Wellpoint Health Networks, Inc. v. Superior Court of Los Angeles
2 County, 59 Cal.App.4th 110, 123, 128. 68 Cal.Rptr.2d 844 (1997).
3 The EEOC acknowledges, however, that the waiver of the attorney-client privilege does not
4 extend to confidential legal advice an attorney may provide to an employer or its other agents who are
5 conducting an investigation of a sexual harassment or discrimination claim, where the attorney is not
6 himself involved in conducting the investigation. See Waugh v. Pathmark Stores, 191 F.R.D. 427
7 (D.N.J. 2000). The court in Walker v. County of Contra Costa also noted that the court should not issue
8 a blanket nullification of privilege, but should make findings on a document-by-document basis in
9 regard to whether the privileges have been waived.
10 In this case, Consolidated Resorts has placed the reasonable or adequacy of its investigation of
11 Ms. Dawson’s sexual harassment complaint in issue by asserting the Faragher/Ellerth affirmative
12 defense. Defendant has waived its attorney-client privilege or work-product doctrine privilege
13 concerning that investigation which was partly conducted by its in-house counsel, Mr. Blair.
14 Defendant, however, has not placed the reasonableness of its investigations of other sexual harassment
15 complaints directly in issue by asserting the affirmative defense in regard to its handling of Ms.
16 Dawson’s complaint.3 Rather, it is the EEOC which potentially seeks to place other sexual harassment
17 complaints in issue. Plaintiff has not cited any authority which supports a finding that an employer
18 waives its attorney-client or work-product privileges to all other sexual harassment complaints by
19 asserting the Faragher/Ellerth affirmative defense in regard to the plaintiff or charging party’s
20 complaint. In the Court’s judgment, this would be an over broad and unjust application of waiver.
21 The issue of waiver regarding other complaints is also premature. Conceivably, the EEOC may
22 attempt to introduce evidence of other sexual harassment complaints revealed through discovery to
23 show Defendant’s unreasonable practices. It is also conceivable that Defendant may seek to rebut any
24 such showing by demonstrating that its investigations of those complaints were also reasonable. At that
25

26

27

3Nor has any evidence been provided to the Court that Defendant has been sued on any other

claim of sexual harassment in which it has asserted the Faragher/Ellerth affirmative defense such that

28 waiver of its privileges may be found on that basis.

18

Case 2:06-cv-01104-LDG-GWF Document 54 Filed 10/25/2007 Page 19 of 20

1 point, an issue of waiver of Defendant’s privileges may arise. Until and unless that occurs, Defendant

2 has not waived its attorney-client or work-product privileges regarding other sexual complaints.

3 Therefore, Mr. Blair and Defendant’s other representatives are not required to answer questions

4 relating to confidential attorney-client communications or regarding Defendant’s attorney’s mental

5 impressions, opinions or conclusions formed during the investigation of other sexual harassment

6 complaints unless Defendant intends to introduce evidence regarding the reasonableness of adequacy of

7 those investigations at trial. To the extent that Defendant and its witnesses rely on the attorney-client

8 and work-product privileges in refusing to answer such questions, Defendant should also be precluded

9 from introducing such testimony at trial to support the reasonableness and adequacy of its investigation

10 and handling of other sexual harassment complaints. Accordingly,

11

IT IS HEREBY ORDERED that Defendant Consolidated Resort, Inc.’s Motion for Protective

12 Order (#38) and Plaintiff EEOC’S Opposition to Defendant’s Motion for Protective Order and Cross-

13 Motion for Order Compelling Documents and Responses to Questions at Deposition and Permission to

14 Take Depositions In Excess of Seven Hours (#41) are granted and denied as follows:

15

1. Defendant is ordered to produce documents relating to complaints of sexual harassment

16 against any employees that arose from any of Defendant’s business locations in Las Vegas, Nevada

17 between January 1, 2000 and December 31, 2005, inclusive. Defendant shall also inform Plaintiff and

18 the Court whether there are any more recent complaints of sexual harassment made against Mr. Rouco,

19 Mr. Rouse or Mr. Kollmer, and, if so shall identify the date the complaint was made and the general

20 nature of the allegation made.

21

2. Defendant’s production of other complaints shall include documents relating to

22 Defendant’s investigation and any disciplinary or remedial action taken in regard to the complaints,

23 other than documents that Defendant claims are protected from disclosure pursuant to the attorney-

24 client privilege or the work-product doctrine. Defendant shall provide a privilege log to Plaintiff in

25 accordance with Rule 26(b)(5)(A) and Diamond State Ins. Co. v. Rebel Oil Co., Inc., 157 F.R.D. 691

26 (D. Nev. 1994), regarding its assertions of the attorney-client privilege or work-product doctrine

27 regarding the contents of such complaint files.

28 . . .

19

Case 2:06-cv-01104-LDG-GWF Document 54 Filed 10/25/2007 Page 20 of 20

1

3. Defendant’s in-house counsel, Mr. Blair, or Defendant’s other officers and employees

2 are not required to disclose privileged attorney-client communications regarding such other complaints

3 or the attorney’s “opinion work product” regarding the investigation of such complaints, unless

4 Defendant intends to introduce evidence or testimony at trial that its investigation of such complaints

5 were reasonable and adequate.

6

4. Plaintiff may further depose Defendant’s counsel, Mr. Blair, regarding the matters set

7 forth in the parties’ Stipulation Regarding Approved Deposition Questions (#46). At this point,

8 however it is unclear whether and to what extent Plaintiff may need additional time to depose Mr. Blair

9 or Mr. Rouco in regard to other complaints that may be produced by Defendant. The Court directs

10 counsel for the parties to meet and confer regarding this matter once Defendant has complied with this

11 order regarding production of other complaints. If they are unable to agree, Plaintiff may renew its

12 Cross-Motion (#41) on an emergency basis and the Court will determine whether and to what extent

13 additional time is required to depose Mr. Blair or Mr. Rouco regarding other sexual harassment

14 complaints.

15

DATED this 25th day of October, 2007.

16

______________________________________

17

GEORGE FOLEY, JR.

United States Magistrate Judge

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1

2

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6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

9 U.S. EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

10

)

Plaintiff,

)

11

)

vs.

)

12

)

CONSOLIDATED RESORTS, INC.,

)

13

)

Defendant.

)

14 __________________________________________)

Case No. 2:06-cv-01104-LDG-GWF ORDER Motion to Compel - #71

15

This matter is before the Court on Defendant’s Motion to Compel Submission to Independent

16 Mental Examination (#63), filed February 22, 2008; Plaintiff EEOC’s Response in Opposition to

17 Defendant’s Motion to Compel Submission to Independent Mental Examination (#68), filed March 10,

18 2008; and Defendant’s Reply in Support of Motion to Compel Submission to Independent Mental

19 Examination (#71), filed March 27, 2008. The Court conducted a hearing in this matter on April 3,

20 2008.

21

BACKGROUND

22

The Plaintiff U.S. Equal Employment Opportunity Commission (“EEOC”) has brought this

23 action against Defendant Consolidated Resorts, et al., for violation of Title VII of the Civil Rights Act.

24 The EEOC alleges that Defendant has engaged in unlawful employment practices involving sexual

25 harassment and sex-based discrimination of the Charging Party, Erin Dawson, in the form of verbal,

26 visual and physical harassment. In its prayer for relief, the EEOC seeks “to make whole Charging Party

27 by providing compensation for past and future nonpecuniary losses resulting from the unlawful

28 practices complained of above, including emotional pain, suffering, inconvenience, loss of enjoyment

Case 2:06-cv-01104-LDG-GWF Document 73 Filed 04/07/2008 Page 2 of 13

1 of life, and humiliation, in amounts to be determined at trial.” Amended Complaint (#3), p. 5, ¶ E. The

2 Charging Party, Ms. Dawson, has not intervened in this action.

3

The EEOC alleges that between June 2004 and September 11, 2004 Ms. Dawson was forced, on

4 three occasions, to perform oral sex on one of her supervisors, Ramiro Rouco, under the threat of losing

5 her job. Mr. Rouco also allegedly touched Ms. Dawson’s breasts and private body area, exposed his

6 genitals to Ms. Dawson, and made sexually offensive statements to her. The EEOC also alleges that

7 other employees asked Ms. Dawson to expose her uncovered breasts to them and that one supervisor,

8 Chuck Rouse, sent Ms. Dawson a sexually offensive postcard. Defendant’s employees have denied Ms.

9 Dawson’s allegations. Mr. Rouco has specifically denied that he engaged in any sexual conduct with

10 Erin Dawson. Motion to Reconsider (#55), Exhibit “A”, Rouco Deposition, pp. 161-162. As an

11 alternative defense, Defendant alleges that if any of its supervisors or other employees engaged in

12 sexual conduct with Ms. Dawson, the conduct was not unwelcome. This defense is based on Ms.

13 Dawson’s allegedly sexually provocative or promiscuous attire, conduct and speech in Consolidated

14 Resort’s workplace.

15

Defendant’s instant motion seeks an order compelling Ms. Dawson to submit to a mental

16 examination pursuant to Fed.R.Civ.Pro. 35. Defendant bases its motion on the allegations set forth in

17 the EEOC’s Amended Complaint which seeks recovery of damages for Ms. Dawson’s emotional

18 distress. Defendant’s motion is also based on evidence which allegedly demonstrates that Ms. Dawson

19 is seeking damages for continuing severe or extreme emotional distress resulting from the alleged

20 sexual harassment. The evidence relied on by Defendant in support of its request for a mental

21 examination is summarized as follows:

22

Ms. Dawson first complained to Defendant of Mr. Rouco’s alleged sexual abuse on or about

23 September 11, 2004. Shortly afterwards, she also filed a complaint with the police department

24 regarding Mr. Rouco’s alleged conduct. Between September 11 and November 8, 2004, Ms. Dawson

25 met with and exchanged phone calls and letters with Defendant’s human resources director and general

26 counsel regarding her sexual harassment allegations. As a result of Ms. Dawson’s complaint,

27 Defendant transferred her to work at another facility, where she would not be under Mr. Rouco’s

28 supervision or have contact with him, while Defendant investigated her allegations.

2

Case 2:06-cv-01104-LDG-GWF Document 73 Filed 04/07/2008 Page 3 of 13

1

In an “Incident Investigation Form” that Ms. Dawson filled out on September 16, 2004, Motion

2 (#63), Exhibit “G”, p. EEOC 0049, she stated, in response to a question as to how the incident affected

3 her and whether her job has been affected: “Yes. Caused emotional distress. Because of having to

4 leave early on some days it caused financial loss.” In a handwritten note that Ms. Dawson apparently

5 wrote about this same time, she stated that “I thought I could handle the stress, [unintelligible] with

6 what happened coupled with being made to leave my job along with no support I finally cracked.” Id.,

7 p. ED 0055.

8

In a September 21, 2004 letter to Defendant’s human resources director, Ms. Dawson stated:

9 “This situation has become a living nightmare.” Id., p. EEOC 0057. In another letter, dated

10 September 30, 2004 to Defendant’s general counsel, Ms. Dawson stated: “In closing, I do appreciate

11 your offer to ‘make me whole’ financially. The fact that you promised to have the company

12 compensate me ‘wholly’ during the term of this investigation is dually (sic) welcomed. However, I

13 doubt that I will ever be able to fully or wholly recover financially or emotionally from this experience

14 now or ever in the future.” Id., EEOC 0074. This and the other letters that Ms. Dawson sent to

15 Defendant were drafted by her then boyfriend, Robert Kerner.

16

In an October 5, 2004 letter to Defendant’s human resources director, Ms. Dawson stated

17 “please be reminded that this is my life and career that surround these issues and incidents. I have

18 been pushed to the point emotionally of becoming physically ill on a daily basis.” Id., Exhibit “G”, p.

19 323. Ms. Dawson also noted that during a meeting with the human resources director and Defendant’s

20 counsel, her then boyfriend, Robert Kerner, told them “that emotionally, Erin has become the

21 equivalent of a train wreck.” ld., p. 324. Ms. Dawson also stated that the previous day, she spent the

22 morning at St. Rose Hospital and was prescribed medication to manage her nausea and sleeplessness.

23 She also stated: “Quite frankly, the process of going through your ‘investigation process’ is almost as

24 devastating as the illicit acts themselves.” Id., at 324.

25

A co-worker of Ms. Dawson also sent a handwritten statement to Defendant’s human resources

26 director on or about September 22, 2004 in which he relayed information that Ms. Dawson had

27 provided him regarding the alleged sexual assault. According to this co-worker, Ms. Dawson told him

28 that “[s]he took a Xanax to go to sleep.” Id., Exhibit “I”, p. EEOC 0063.

3

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1

Defendant has also attached October 3, 2004 medical records from St. Rose Hospital’s urgent

2 care facility which show that a Dr. Karajohn prescribed Ambien and Promethazine to Ms. Dawson.

3 Motion (#63), Exhibit “L”.

4

In Plaintiff’s Amended Responses to Interrogatories dated July 10, 2007, Plaintiff stated that

5 “[a]s a result of the sexual harassment of Ms. Dawson and the hostile work environment that she

6 experienced, she suffered emotional distress. She experienced nausea and headaches which she

7 believed were caused by the harassment.” Id., Exhibit “D”, p. 7. In response to an interrogatory

8 asking Plaintiff to identify any health care providers who examined or treated Ms. Dawson for the

9 alleged harassment, Plaintiff identified the visit to Dr. Karajohn on October 3, 2004 and stated that

10 Plaintiff was “[e]xperiencing headaches and nausea.” Id., p. 22. In response to another interrogatory

11 which asked Plaintiff to identify any medical doctors, psychiatrists, psychologists, therapists and

12 chiropractors who have examined or treated Ms. Dawson within the past ten years, Plaintiff identified

13 only a doctor who performed breast augmentation surgery on Ms. Dawson approximately 9 years

14 earlier. Plaintiff also stated that Ms. Dawson was required to attend group counseling in 2006 in Cedar

15 City, Utah for a DUI offense. Id., p. 23.

16

Defendant also relies on a workers compensation claim that Ms. Dawson filed in November

17 2004 as a result of the alleged sexual harassment. See Exhibit “M”. The worker’s compensation

18 records indicate that Ms. Dawson submitted a claim because Defendant told her she would have to

19 seek worker’s compensation in order to obtain compensation for her injuries. Dr. Karajohn apparently

20 signed a physician’s statement regarding Ms. Dawson’s worker’s compensation claim indicating that

21 he prescribed Ambien for anxiety or distress. Id.

22

At her deposition taken on February 4, 2008, Motion (#63), Exhibit “C”, Ms. Dawson was

23 questioned about the statements in her September-November 2004 letters. Ms. Dawson confirmed that

24 she stated in her September 21, 2004 letter that the situation had become a living nightmare and that,

25 in fact, was how she felt. Ms. Dawson testified that “[i]t was horrible.” Exhibit “C”, p. 462:8-15.

26 She also confirmed that she sought medical treatment for her distress and obtained prescribed

27 medication from Dr. Karajohn. Id., pp. 462:16 to 463:1. Ms. Dawson was also questioned about the

28 statements in her September 30, 2004 letter in which she stated that she doubted that she would ever be

4

Case 2:06-cv-01104-LDG-GWF Document 73 Filed 04/07/2008 Page 5 of 13

1 able to fully or wholly recover financially or emotionally from the experience. The following

2 testimony occurred:

3

So was it your contention that you were going to – that you had

suffered emotional distress as a result of this?

4

A. Yes.

Q. And you were also telling the company, Mr. Blair, that you

5

were going to continue to suffer emotionally as a result of the alleged

harassment, correct?

6

A. I think I am.

7 Motion (#63), Exhibit “C”, p. 480:17-25.

8

Defendant also questioned Ms. Dawson about the statements in her October 5, 2004 letter in

9 which she discussed her visit to St. Rose Hospital and the devastating effect that the alleged

10 harassment had on her. Ms. Dawson testified that the statements in the letter were truthful, but a little

11 dramatic. Id., Exhibit “C”, p. 489:7-12. The following testimony then occurred:

12

Q. Because you felt that the impact on you emotionally from

misconduct was devastating, correct?

13

A. Yes.

Q. And would be devastating perhaps for the rest of your life,

14

correct.

A. Hopefully not.

15

Q. But you have suffered long-term emotional distress, correct?

A. I think about it.

16 Id., at 489:13-22.

17

Ms. Dawson was also questioned about statements she made in a letter to Defendant’s human

18 resources director dated November 8, 2004. The following testimony occurred:

19

Q. In this letter that you authored, you state in the second

paragraph, I can no longer endure the added stress and mental anguish.

20

Do you see that?

A. Yes.

21

Q. And did you believe that you were suffering stress and mental

anguish as a result of the conduct at Consolidated?

22

A. Yes.

Q. In the fourth paragraph the very end of that paragraph, you

23

state, This situation has changed my life forever. Do you see that?

A. Yes.

24

Q. You were referring to the sexual harassment and the

consequences of that that you allegedly experienced?

25

A. Yes.

Q. And when you say has changed your life forever, you mean

26

emotionally and otherwise?

A. Yes.

27

28 Id., pp. 500:17-501:12.

5

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1

Defendant has also attached as an exhibit the February 25, 2006 medical records from the

2 Valley View Medical Center in Cedar City, Utah. Motion (#63), Exhibit “E” These records were

3 provided by the EEOC’s counsel under a cover letter dated October 17, 2007 which states that the

4 records were provided “[p]er the parties’ agreement that the EEOC would gather Ms. Dawson’s

5 medical records and disclose to your office those that implicate emotional distress issues ...” Id. The

6 February 25, 2006 emergency room report states that Ms. Dawson complained of left arm tenderness

7 which woke her up at 2:00 a.m. Ms. Dawson reported light headedness and nausea and felt chest

8 heaviness at 7:00 a.m. “She is extremely upset thinking she might be having a heart attack.” The

9 record further states: “Apparently she has a family history of coronary disease. Her dad had a bypass

10 in his late 50s. The patient denies any chest pain or pressure with exertion. She denies any shortness

11 of breath.” Id. The physician’s diagnosis was acute left arm neurapraxia and acute anxiety reaction.

12 The physician told the Plaintiff that she needed close follow-up with Dr. Smallwood so that she can

13 arrange a cardiac stress test to verify that she does not have any sort of coronary disease. Id.

14

There is nothing in this record which references Ms. Dawson’s 2004 sexual harassment

15 allegations or which suggests that the episode was a continuation of ongoing emotional distress/mental

16 stress that she allegedly suffered as a result of the sexual harassment. Nor is there any indication that

17 the EEOC or Ms. Dawson claim that this medical episode is related to the emotional distress/mental

18 distress she allegedly suffered as a result of the 2004 sexual harassment. Although Defendant’s

19 counsel questioned Ms. Dawson at her deposition about the information contained in this record and

20 verified the history she gave, Defendant’s counsel did not ask whether Ms. Dawson believes or

21 contends that this episode was related to the emotional distress she allegedly experienced as a result of

22 the sexual harassment or Defendant’s handling of her complaint. See Exhibit “C”, pp. 566:2 to

23 567:19.

24

Finally, Defendant has attached as an exhibit to its Motion a February 22, 2007 email that Ms.

25 Dawson’s ex-boyfriend, Robert Kerner sent to the EEOC’s counsel. Mr. Kerner apparently attached to

26 this email a legal memorandum regarding the liability of an entity for sexual harassment committed by

27 its independent contractors. Mr. Kerner’s email states:

28 . . .

6

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1

My motivation to contact you today was driven by a phone call that I

received from Ms. Dawson late this afternoon. Ms. Johnson, I have

2

heard that same traumatized voice a hundred times since August of

2004. A normal human being would have folded under this internal

3

pressure long ago. I applaud her ability to weather this seemingly

endless consternation. I am also proud to be of some solace to her when

4

she is confronted with the same and I applaud your efforts toward

resolve on her behalf.

5

6 Motion (#63), Exhibit “H”, p. EE0C 0667.

7

In its Response to Defendant’s Motion, the EEOC has attached a Declaration of Erin Dawson

8 made “under penalty of perjury under the laws of the State of Utah”. Response (#68). Ms. Dawson’s

9 Declaration states that “during and shortly after the time that I was sexually harassed, in the Summer of

10 2004, I had feelings of fearfulness, humiliation, stress and anxiousness. I had difficulty sleeping, and I

11 had headaches and nausea.” ¶ 2. She also states that she went to the emergency room in October 2004

12 and was treated by Dr. Karajohn, an emergency medicine and family medicine physician who

13 prescribed Ambien to help her sleep and Promethazine for her nausea. ¶ 3. She then states:

14

After a while, my feelings of anxiety, stress and humiliation began to

dissipate and by about six months after leaving Consolidated Resorts, I

15

began to feel better and able to move on with my life.

16 Id., ¶ 4.

17

Ms. Dawson’s Declaration also references her emergency room visit on February 25, 2006 in

18 she which states: “I became worried because there is a history of heart problems in my family. The

19 doctor told me I had an anxiety attack.” ¶ 5. Ms. Dawson’s Declaration does not assert that this

20 episode is related to her emotional distress resulting from the alleged sexual harassment. Ms. Dawson

21 also states that she was never prescribed Xanax. She states that a co-worker observed her upset

22 condition following one of the harassing events involving Mr. Rouco in the Summer of 2004 and

23 offered her a Xanax pill. She states that she took one-half of the pill and that is the only occasion on

24 which she has taken Xanax. ¶ 6. Ms. Dawson further states that she has never sought or received

25 psychiatric or psychological treatment for emotional distress because of the harassment. ¶ 7. She

26 concludes her Declaration by stating:

27

I still feel sad and sometimes anxious when I think about the harassment

like, for example, when I had to have my deposition taken or when I

28

7

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1

heard anything about Consolidated Resorts, but otherwise felt pretty

much back to normal.

2

3 Id., ¶ 8.

4

DISCUSSION

5

Fed.R.Civ.Pro 35(a)(1) requires that the moving party show both that the mental condition of

6 the party is in controversy and that good cause exists for the mental examination. In Schlagenhauf v.

7 Holder, 379 U.S. 104, 85 S.Ct. 234, 241-244 (1964), the Supreme Court held that these elements are

8 not met by mere conclusory allegations of the pleadings–nor by mere relevance to the case–but require

9 an affirmative showing by the movant that each condition as to which examination is sought is really

10 and genuinely in controversy and that good cause exists for ordering a particular examination. The

11 ability of the movant to obtain the desired information by other means is also relevant. Schlagenhauf

12 states that the Rule requires a discriminating application by the district court as to whether the movant

13 has adequately demonstrated the existence of the Rule’s requirements. The Court also noted that there

14 are situations where the pleadings alone are sufficient to meet the controversy requirement of the Rule

15 such as where a plaintiff in a negligence action asserts mental or physical injury.

16

Whether a plaintiff in a Title VII employment discrimination action may be required to submit

17 to an independent mental examination has been frequently litigated. While a few courts have held

18 plaintiff’s mental condition is in controversy when the complaint seeks to recover damages for

19 emotional distress as an element of the Title VII claim, most federal courts apply the factors set forth

20 in Turner v. Imperial Stores, 161 F.R.D. 89, 95 (S.D.Cal. 1995). Turner states that a plaintiff places

21 her mental condition in controversy for purposes of Rule 35, when, in addition to making a claim of

22 emotional distress, one or more of the following is present: (1) a cause of action for intentional or

23 negligent infliction of emotional distress; (2) an allegation of a specific mental or psychiatric injury or

24 disorder; (3) a claim of unusually severe emotional distress; (4) plaintiff’s offer of expert testimony to

25 support a claim of emotional distress; and/or (5) plaintiff’s concession that his or her mental condition

26 is “in controversy” within the meaning of Rule 35(a). See also Fox v. Gates Corp., 179 F.R.D. 303,

27 307-08 (D. Colo. 1998); Greenhorn v. Marriott Intern., Inc., 216 F.R.D. 649, 651 (D.Kan. 2003);

28 O’Sullivan v. State of Minnesota, 176 F.R.D. 325 (D.Minn. 1997); and Javeed v. Covenant Medical

8

Case 2:06-cv-01104-LDG-GWF Document 73 Filed 04/07/2008 Page 9 of 13

1 Center, 218 F.R.D. 178 (N.D. Iowa 2001).

2

In this case, neither the EEOC nor Ms. Dawson have alleged a cause of action for intentional

3 or negligent infliction of emotional distress. Nor do they allege that Ms. Dawson suffered a specific

4 mental or psychiatric injury or disorder. The EEOC also states that it does not intend to present expert

5 testimony to support a claim of emotional distress on behalf of Ms. Dawson. The EEOC also does not

6 concede that Ms. Dawson’s mental condition is in controversy within the meaning of the Rule. The

7 issue therefore is whether the EEOC is making a claim on Ms. Dawson’s behalf for unusually severe

8 emotional distress which warrants an independent mental examination.

9

In Greenhorn v. Marriott Intern., Inc., 216 F.R.D. 649, 651 (D.Kan. 2003), the court ordered

10 that the plaintiff submit to a mental examination where she alleged in her amended complaint that

11 defendant’s conduct had caused her to sustain lasting and permanent emotional injury in the form of

12 emotional trauma causing insomnia, severe depression, avoidance, withdrawal, suicidal ideation,

13 suspiciousness, social discomfort, low self esteem, and resentfulness. The plaintiff also alleged she

14 continued to suffer from several of these symptoms and expected to do so in the future. The court held

15 that these were not simply “garden variety” emotional distress symptoms and that plaintiff had placed

16 her mental condition in controversy. The court also held that there was good cause for a mental

17 examination because plaintiff’s allegations of emotional distress were sufficiently serious and

18 sweeping that an average lay person might not be able to evaluate properly the nature, extent and cause

19 of the injuries plaintiff claimed to have sustained. Id., 216 F.R.D. at 652. See also Javeed v. Covenant

20 Medical Center, 218 F.R.D. 178 (N.D. Iowa 2001), in which the court held that plaintiffs’ complaints

21 included a variety of specific symptoms which went beyond what the court would characterize as

22 “garden variety” emotional distress. Such alleged ongoing severe emotional distress justifies an

23 independent examination even where plaintiff does not intend to call an expert witness to support her

24 mental distress claims. Thiessen v. General Electric Capital Corp., 178 F.R.D. 568, 571 (D.Kan.

25 1998).

26

Ms. Dawson claims that she was subjected to egregious sexual harassment and abuse by Mr.

27 Rouco from June to September 11, 2004. During the time this abuse allegedly occurred, and while

28 Ms. Dawson was engaged in communications with Defendant’s human resource director and general

9

Case 2:06-cv-01104-LDG-GWF Document 73 Filed 04/07/2008 Page 10 of 13

1 counsel between September and November 2004, Ms. Dawson claimed that she experienced emotional

2 distress which manifested itself in headaches, nausea and insomnia. Ms. Dawson also allegedly took

3 half a Xanax pill that was given to her by a co-worker. She did not seek medical attention for her

4 distress symptoms, however, until October 3, 2004, a few weeks after she complained about the abuse

5 to Defendant. On that date, she saw an urgent care physician Dr. Karajohn, who prescribed Ambien

6 for her stress and Promethazine for nausea. There is no indication that Ms. Dawson took these

7 medications for an extended time or followed up with Dr. Karajohn or any other physician for

8 treatment of her emotional stress resulting from the alleged sexual harassment. Although Ms. Dawson

9 received medical attention in February 2006, regarding her concern that she might be having a heart

10 attack, and was diagnosed for anxiety reaction, there is no indication in the records that this episode

11 relates to emotional distress allegedly caused by the sexual harassment. There is also no indication

12 that the EEOC or Ms. Dawson claim that this February 2006 episode relates to the alleged sexual

13 harassment. Defendants did not explore this issue during Ms. Dawson’s deposition sessions.

14

The principal basis for Defendant’s motion are the various statements that Ms. Dawson made

15 to Defendant’s representatives between September 11, 2004 and November 8, 2004, in which she

16 described the alleged sexual abuse as a nightmare and horrible, that she suffered extreme distress, that

17 she believed her life was changed forever and that she did not think she would ever fully recover

18 emotionally. If Ms. Dawson was claiming that she continues to suffer from emotional distress in the

19 manner that she claimed she was experiencing in her September-November 2004 letters, then the

20 Court would have no reservation in concluding that her mental condition is in controversy and that

21 good cause for a mental examination exists. Defendant’s counsel, however, failed or chose not to

22 question Ms. Dawson about the progression of her mental condition during the ensuing three years

23 after her last communication with Defendant’s representatives. Instead, Defendant attempts to argue

24 that Ms. Dawson’s testimony about her emotional distress as set forth in her September-November

25 2004 letters is representative of the emotional distress that she claims to have suffered thereafter and

26

27

28

10

Case 2:06-cv-01104-LDG-GWF Document 73 Filed 04/07/2008 Page 11 of 13

1 up to the present time.1

2

In response to Defendant’s motion, the EEOC has filed a sworn declaration by Ms. Dawson in

3 which she states that during and shortly after the time she was sexually harassed in the Summer of

4 2004, she had feelings of fearfulness, humiliation, stress and anxiousness and that she had difficulty

5 sleeping, headaches and nausea. She further states that after awhile these feelings dissipated and by

6 about six months after she left Consolidated Resorts, i.e. May 2005, she began to feel better and able to

7 move on with her life. She states that she experiences sadness or anxiousness if she has to think about

8 the harassment, such as when her deposition was taken. Otherwise, she indicates that she has felt

9 “pretty much back to normal.” This Declaration eliminates the basis for Defendant’s contention that

10 Ms. Dawson is claiming “ongoing, severe and permanent” emotional distress. Defendant accuses the

11 EEOC and Ms. Dawson of engaging in self-serving gamesmanship by submitting a declaration in

12 contradiction to her deposition testimony in order to avoid being required to undergo a mental

13 examination. See Reply (#71), p. 2. Ms. Dawson’s Declaration, however, does not contradict her

14 deposition testimony since Defendant did not explore her post-November 2004 mental condition.

15

If Mr. Rouco coerced Ms. Dawson into engaging in oral sex and submitting to other unwanted

16 sexual contact, then the type of emotional distress symptoms she claims to have suffered in the

17 immediate aftermath of the alleged abuse–headaches, nausea and insomnia– are neither unusually

18 severe or beyond the common understanding of lay persons. On the other hand, if the jurors conclude

19 that the sexual conduct did not occur or was consensual, then they are equally capable of deciding that

20 Ms. Dawson did not, in fact, experience emotional distress as a result of sexual harassment. Lay jurors

21 are also reasonably capable of determining without expert testimony whether a person who claims to

22 have been victimized by the type of sexual misconduct that Ms. Dawson alleges was perpetrated by

23 Mr. Rouco would begin to get over it after approximately 8 to 10 months as she states in her

24 declaration.

25

26

1The Declaration of Defendant’s proposed mental examiner, Dr. Joann Behrman-Lippert,

27 attached to Defendant’s Reply (#71), appears to accept Defendant’s contention, based on Ms. Dawson’s testimony about her 2004 letters, that Ms. Dawson’s alleged emotional distress damage is “ongoing,

28 severe and permanent” . Id., ¶¶ 5-6.

11

Case 2:06-cv-01104-LDG-GWF Document 73 Filed 04/07/2008 Page 12 of 13

1

As Ricks v. Abbott Laboratories, 198 F.R.D. 647, 649 (D.Md. 2001) states:

2

When emotional distress is unusually severe or alleged in clinical terms,

or when another party intends to offer expert testimony about the

3

distress, the testimony of an expert would help the trier of fact

understand the nature, severity, and characteristics of the emotional

4

distress. A trier of fact, however, does not need help understanding the

ordinary grief, anxiety, anger, and frustration that any person feels when

5

something bad occurs. Most triers of fact are already experts in that.

Therefore, a defendant would not need to offer expert testimony on this

6

kind of emotional distress. By the same token, a defendant would not

need to consult an expert to understand the ordinary emotional distress

7

that any person in the plaintiff's claimed position would experience.

Because laypersons can understand this kind of ordinary emotional

8

distress without the help of an expert, there is no need for an expert to

conduct a mental examination of the plaintiff who claims only ordinary

9

and uncomplicated emotional distress.

10

Defendant raises the concern that if the Court does not authorize an independent mental

11 examination, Ms. Dawson may hereafter reverse her position and claim more severe emotional distress

12 damages. As indicated above, however, Ms. Dawson’s Declaration does not contradict her deposition

13 testimony in a manner which suggests that she will hereafter attempt to allege severe emotional

14 distress if she is able to thwart Defendant’s effort to obtain an independent mental examination. Were

15 Ms. Dawson to do so, however, she could be readily impeached with her sworn March 4, 2008 16 Declaration.2 Such a reversal of position would likely destroy the credibility of Ms. Dawson’s

17 emotional distress claim, if not the basis for her allegations of sexual harassment.

18

This potential can also be dealt with in the manner that the Court addressed similar concerns in

19 O’Sullivan v. State of Minnesota, 176 F.R.D. 325 (D. Minn. 1997). In that case, the plaintiff had

20 initially alleged in her complaint that she had suffered emotional distress and that it was reasonably

21 certain to continue in the future. However, during the litigation, plaintiff elected not to present any

22 expert testimony at trial and stated that she was not claiming a diagnosable medical or psychological

23 impairment. She also testified at deposition that she considered herself to be in good medical

24 condition. In concluding that an independent examination was unnecessary, the court stated:

25

26

2Defendant, of course, had an opportunity during Ms. Dawson’s two days of deposition to more

27 fully explore her mental condition during the past three years, but failed or chose not to do so. It is, therefore, in no position to argue that Ms. Dawson’s Declaration is not adequately detailed in describing

28 the course of her mental condition since late 2004.

12

Case 2:06-cv-01104-LDG-GWF Document 73 Filed 04/07/2008 Page 13 of 13

1

Lastly, we are satisfied that the playing field in this case is not presently

in need of leveling. The Plaintiff has previously testified-without

2

qualification-that she is in good mental health, and she has

unequivocally represented that she is not seeking to recover for a

3

diagnosable psychological condition or disorder, and that she will not be

offering expert testimony at Trial as to her mental condition. Moreover,

4

at the Hearing on this Motion, the Plaintiff's counsel went one step

further, and assured the Court that the Plaintiff will not present at Trial

5

any expert testimony in any form-including her own testimony as one

trained in the field of mental health-which would assert that she has

6

suffered a clinically diagnosable psychological illness, condition or

disorder. More importantly, Plaintiff's counsel expressed no objection to

7

our precluding any such evidence as a precondition to our denial of the

Motion to Compel a Rule 35 examination and, therefore, such a

8

preclusion is here prescribed.

9 O’Sullivan, 216 F.R.D. at 328.

10

At the hearing on this matter, the Court read the foregoing passage from O’Sullivan to the

11 EEOC’s counsel, who provided the Court with substantially the same assurances.

12

CONCLUSION

13

Based on the foregoing, the Court concludes that the Charging Party Erin Dawson’s mental

14 condition has not been placed in controversy and that good cause does not exist to order her to submit

15 to a mental examination. Accordingly,

16

IT IS HEREBY ORDERED that Defendant’s Motion to Compel Submission to Independent

17 Mental Examination (#63) is denied. This order is conditioned on the Plaintiff’s representation that

18 neither it nor Ms. Dawson are making any claim for ongoing, severe emotional distress as a result of

19 the alleged sexual harassment or Defendant’s conduct in regard to her claim that she was sexually

20 harassed. Any attempt by Plaintiff to introduce evidence of ongoing, severe and/or permanent

21 emotional distress at trial should be precluded.

22

DATED this 7th day of April, 2008.

23

______________________________________

24

GEORGE FOLEY, JR.

United States Magistrate Judge

25

26

27

28

13

 
 Case 2:06-cv-01104-LDG-GWF Document 78 Filed 10/15/08 Page 1 of 14

1 Anna Y. Park, CA SEN 164242
Peter F. Laura, CA SEN 116426 2 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
255 East Temple Street, 4th Floor 3 Los Angeles, CA 90012
Telephone: (213) 894-1079 4 Facsimile: (213) 894-1301
lado.legal@.eeoc. gov
5 Attorneys for Plaintiff
6 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Patrick H. Hicks, SEN 4632 7 Karyn M. Taylor, SEN 6142
LITTLER MENDELSON 8 3960 Howard Hughes Parkway, Suite 300
Las Vegas, NV 89169-5937 9 Telephone: (702) 862-8800
Facsimile: (702) 862-8811 10 Attorneys for Defendant 11 CONSOLIDATED RESORTS, INC. AND CONSOLIDATED REALTY, INC.

12

UNITED STATES DISTRICT COURT

13

DISTRICT OF NEVADA

14 U.S. EQUAL EMPLOYMENT )

OPPORTUNITY COMMISSION, )

15

)

Plaintiff, ) 16

17 v.

)

DOCKET NOS. 2:6-CV-l 104 LDG-GWF and 2:06-cv00681-JCM-LRL
CONSENT DECREE

CONSOLIDATED RESORTS, INC ) 18 CONSOLIDATED REALTY, INC.,)

19

) Defendants. )

20

)

21
22
23
24
25
26
27
28
LITTLER MENDELSON A PROFESSIONAL CORPORATIOH
50 West Liberty Street Suile 400
Reno. NV 69501 1944 775.343.488B

Plaintiff U.S. Equal Employment Opportunity Commission ("EEOC") and Defendants Consolidated Resorts, Inc, and Consolidated Realty, Inc. ("Consolidated"), hereby stipulate and agree to entry of this Consent Decree to resolve the EEOC's Complaint in Case No. CV S-061104-LDG-GWF, (the "Dawson Complaint") filed under Section 706 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5; Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a and to resolve the EEOC's Complaint in Case No. CV S-06-00681-JCMLRL, (the "Finley Complaint") filed under Section 706 of Title VII of the Civil Rights Act of
Firmwide:86150834.1 052326.1002

Case 2:06-cv-01104-LDG-GWF Document 78 Filed 10/15/08 Page 2 of 14

1 1964, as amended, 42 U.S.C. § 2000e-5; Section 102 of the Civil Rights Act of 1991, 42 U.S.C. §

2 198la (collectively known hereafter as "Actions"). The EEOC's Finley Complaint alleges that

3 Consolidated Realty discriminated against Tasha Finley by terminating her because of her sex, in

4 violation of Title VII. The EEOC's Dawson Complaint alleges that Consolidated Resorts

5 discriminated against Erin Dawson, who was sexually harassed during her employment with

6 Consolidated. Consolidated Resorts denies liability in both Actions.

7

The parties enter into this Decree to resolve the Actions and defendant Consolidated's entry

8 into and performance of the terms and conditions of this Decree is not an admission of liability,

9 any wrongful act, or any violation of law.

10 I. JURISDICTION

11

The Court has jurisdiction over the parties and the subject matter of this lawsuit, pursuant to

12 28 U.S.C. Sections 451, 1331, 1337, 1343, 1345, 1367 and 42 U.S.C. 2000e-5(f). The Court shall

13 retain jurisdiction of this action during the duration of the Decree for the purposes of entering all

14 orders, judgments and decrees which may be necessary to implement and/or enforce the relief

15 provided herein or to otherwise effectuate the purposes of the Decree.

16 II. PURPOSES AND SCOPE OF THE CONSENT DECREE

17

A. The parties to this Consent Decree ("Decree") are the EEOC and Consolidated

18 (collectively the "Parties"). This Decree shall be binding on and enforceable against Consolidated

19 and its officers, directors, agents, successors and assigns.

20

B. As a result of having engaged in comprehensive settlement negotiations the Parties

21 have agreed that this action should be finally resolved by entry of this Decree for the following

22 purposes:

23

1. To avoid expensive and protracted costs incident to litigation;

24

2. To provide a final and binding settlement upon the Parties as to all claims

25 alleged in the Complaint;

26

3. To provide monetary and injunctive relief;

27

4. To ensure that Consolidated's employment policies and procedures comply

28
LITTLER MENDELSON A PROFESSIOHAL CORPORATION
50 West Liberty Street Suite 400
Rono. NV 89501.1944 775.348.4886

with Title VII;
Firmwide:86150834.1 052326.1002

Case 2:06-cv-01104-LDG-GWF Document 78 Filed 10/15/08 Page 3 of 14

1

5. To ensure training for Consolidated's managerial employees with respect to

2 their obligations under Title VII; and

3

6. To provide effective responses to harassment, retaliation and discrimination

4 complaints.

5 III. EFFECTIVE DATE AND DURATION OF DECREE

6

A. The provisions and agreements contained herein are effective immediately upon the

7 date on which this Decree is entered by the Court ("the Effective Date").

8

B. Except as otherwise provided herein, the Decree shall remain in effect for one (1)

9 year after the Effective Date.

10 IV. FINDINGS

11

Having examined the terms and provisions of this Decree and based on the pleadings,

12 record and stipulation of the Parties, the Court finds the following:

13

A. The Court has jurisdiction over the Parties and the subject matter of these actions.

14 The Complaints assert claims that, if proven, would authorize the Court to grant the relief set forth

15 in this Decree.

16

B. The terms and provisions of this Decree are adequate, fair, reasonable, equitable

17 and just. The rights of the Parties and the public interest for which the EEOC seeks redress are

18 protected adequately by this Decree.

19

C. This Decree conforms with the Federal Rules of Civil Procedure and Title VII and

20 is not in derogation of the rights and privileges of any person. The entry of this Decree will further

21 the objectives of Title VII and will be in the best interest of the Parties.

22 V. RESOLUTION OF CLAIMS

23

A. The Parties agree that this Decree constitutes a complete resolution of EEOC Charge

24 Nos. 34B-2003-01506, 34BA500019, NERC Charge No. 1006-04-541L; and the Actions. The

25 Decree does not, however, resolve any charges of discrimination that may be pending with or

26 brought in the future before the EEOC other than the charges specifically referred to in this

27 paragraph.

28
LITTLER MENDELSON A PROFESSIONAL CORPORATION
Suite 400 Reno NV 89501 1944
775 34Q 4B68

B. Nothing in this Decree shall be construed to limit or reduce Consolidated's obligation
Firmwide:86150834.1 052326.1002

Case 2:06-cv-01104-LDG-GWF Document 78 Filed 10/15/08 Page 4 of 14

1 to comply fully with Title VII,or any other federal employment statute.

2

C. This Decree in no way affects the EEOC's right to bring, process, investigate or litigate

3 other charges that may be in existence or may later arise against Consolidated in accordance with

4 standard EEOC procedures.

5 VI. MONETARY RELIEF

6 Consolidated shall pay a total of $ 55,000.00 in settlement of all monetary claims for both Actions.

7 EEOC has the sole discretion to determine the allocation of the monies in both Actions. Upon entry

8 of this Decree, the EEOC shall provide in writing to Consolidated the specific monetary distribution

9 that is to be provided to the Charging Parties and their respective addresses to where the checks

10 should be delivered (the"Distribution List").

11

Monetary settlement is for emotional distress allegedly sustained by the Charging Parties as

12 a result of the conduct complained of in the Complaint. Accordingly, no withholdings shall be

13 made from any of the above payments. Defendant shall issue a check and 1099 form to the

14 Charging Parties no later than ten (10) days from the receipt of the Distribution List. Defendant

15 shall submit a copy of each check and related correspondence to the Regional Attorney, United

16 States Equal Employment Opportunity Commission, 255 East Temple Street, 4th Floor, Los

17 Angeles, CA 90012, within three (3) days of issuing the checks.

18

Defendant has not made any representations, warranties or guarantees regarding the taxable

19 or non-taxable character of the monies paid in accordance with this Agreement. The Charging

20 Parties shall be solely responsible for the employee's portion of taxes payable, if any,and

21 penalties arising out of payments made pursuant to this Decree, on their respective portion of

22 settlement proceeds reported in the 1099 tax reporting forms.

23

VII. INJUNCTIVE RELIEF

24

A. Non-Discrimination

25

Consolidated, its officers, agents, management, successors, assigns, and all those in active

26 concert or participation with any of them, hereby agree not to engage in discrimination in

27 recruitment, hiring, termination, or harassment based upon sex.

28
LITTLER MENDELSON A PROFESSIONAL CORPORATION
50 West Liberty Slieol Suite 400
Reno. NV B9501.1944 775 346 4668

B. Anti-Retaliation
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Case 2:06-cv-01104-LDG-GWF Document 78 Filed 10/15/08 Page 5 of 14

1

Consolidated, its officers, agents, management, successors, assigns, and all those in active

2 concert or participation with them, or any of them, hereby agree not to retaliate against any current

3 or former employee of Consolidated for: (a) engaging in protected activity under Title VII; (b)

4 participating in any manner in any investigation (including any internal investigation undertaken by

5 Consolidated) or proceeding relating to any alleged Title VII violation; (c) being identified as a

6 possible witness or claimant pertaining to any alleged Title VII violation; (d) asserting any rights

7 under this Decree; or (e) receiving any relief under this Decree.

8

C. Equal Employment Opportunity Consultant

9

Consolidated shall retain an Equal Employment Opportunity Consultant ("Consultant"), to

10

implement and monitor its compliance with Title VII and the provisions of this Decree.

11

The parties have agreed to an experienced employment attorney and trainer, who shall serve

12

as the Consultant for this Decree.

13

The Consultant's responsibilities shall include:

14

1. Reviewing and/or modifying Consolidated's policies and procedures to ensure equal

15

employment opportunity is afforded to women in the recruitment and hiring processes;

16

2. Ensuring effective investigations of and monitoring of harassment, discrimination, and

17

retaliation complaints; and

18

2. Ensuring effective training for (a) managerial employees on Consolidated's policies and

19

procedures against discrimination and retaliation and (b) supervisors and management on

20

recognizing discrimination and retaliation and responding to such complaints thereof.

21

D. Policies Concerning Discrimination, Harassment and Retaliation

22

Consolidated, shall review its existing policies addressing discrimination, harassment and

23 retaliation, maintain those policies and, if necessary, shall revise them to comply with the

24 requirements set forth below. The finalized policy shall, at a minimum, include:

25

1. A strong and clear commitment to a workplace free from discrimination,

26 harassment and retaliation;

27

2. A clear and comprehensive description of prohibited discrimination,

28
LITTLER MENDELSON A PROFESSIONAL CORPORATION
SO Wesl Liberty Street Suite 400
Reno, HV 89501.1944 775.348.4B8B

harassment and retaliation;
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Case 2:06-cv-01104-LDG-GWF Document 78 Filed 10/15/08 Page 6 of 14

1

3. A description of the possible consequences, that will be imposed upon

2 violation of the policy against discrimination, harassment and retaliation;

3

4. A statement encouraging employees to come forward if they believe that they

4 have been discriminated against or harassed;

5

5. An assurance that persons who in good faith complain about discrimination

6 or harassment they experienced or witnessed will not be subject to retaliation;

7

6. A clearly described complaint process that provides accessible avenues of

8 complaint;

9

7. Assurance that the employer will protect the confidentiality of discrimination

10 complaints to the extent possible;

11

8. A complaint process that provides a prompt, thorough, and impartial

12 investigation;

13

9. A system for tracking and providing follow-up on complaints and/or inquiries

14 regarding discrimination and harassment;

15

10. Assurance that Consolidated will take immediate and appropriate corrective

16 action if it determines that discrimination or harassment have occurred;

17

11. The contact information, including name, address, and telephone number of

18 persons both internal (i.e., Consolidated's human resources personnel or managers) and external

19 (i.e., EEOC) to whom employees may report complaints of discrimination or harassment at any

20 time without fear of reprisal. The contact information shall be visibly posted in an area accessible

21 to all employees and placed in the employee handbook; and

22

12. A statement that Consolidated's policies with respect to discrimination,

23 harassment and retaliation apply to all third-parties that interact with Consolidated's employees.

24

A copy of the reviewed/revised policy in compliance with the above requirements shall be

25 submitted to the EEOC and distributed to all Consolidated's employees within sixty days of the

26 Effective Date, along with a memorandum notifying employees that the company is re-affirming

27 its policy that discrimination is prohibited. Consolidated will re-affirm these policies in a

28
LITTLER MENDELSON A PROFESSIONAL CORPORATION
50 West liberty Slreel Suile 400
Reno. NV 89501.1944 775.348.4BBB

meeting within the term of this Decree.
Firmwide:86150834.1 052326.1002

Case 2:06-cv-01104-LDG-GWF Document 78 Filed 10/15/08 Page 7 of 14

1

D. Recruiting and Hiring:

2

Consolidated shall endeavor to increase diversity, including the representation of women in

3

the workplace and will engage in recruitment activities in furtherance of that goal..

4

5

6

E. Training

7

1. Within sixty days of the Effective Date, Consolidated shall submit its

8 training materials on discrimination, harassment and retaliation to the EEOC.

9

2. Consolidated's managerial employees were required to attend a training on

10 their obligations and responsibilities under Consolidated's policies and procedures and EEO laws.

11 Consolidated has committed to the following training sessions:

12

February 11, 2008: Tahiti Village Sales Management

13

February 21, 2008: Bermuda Management February 27, 2008: Corporate Management

14

March 12, 2008: Tahiti Village Sales Management

March 14, 2008: Corporate Management

15

April 2, 2008:

Hawaii Management

April 3, 2008:

Hawaii Management

16

May 15 and 16, 2008: Media Management training

17

The training included how to recognize, prevent, and correct discrimination, harassment

18 and retaliation, and how to receive, investigate, and/or report to designated officials complaints of

19 discrimination, harassment or retaliation.

20

21

F. Neutral References

22

In the event that any prospective employers contact Consolidated inquiring into the

23 employment of the Charging Parties, Consolidated shall provide a neutral reference which includes

24 the following information: date of hire, position held, and date of departure. Consolidated shall

25 explain that its internal policy allows it to reveal only that information to prospective employers.

26

G. Posting

27

Within ten (10) business days after the Effective Date and throughout the term of this

28
LITTLER MENOELSON
50 West Libeily Slreel Smle 400
Reno. NV 69501 1944 775 348 4aaB

Firmwide:86150834.1 052326.1002

Case 2:06-cv-01104-LDG-GWF Document 78 Filed 10/15/08 Page 8 of 14

1 Decree, Consolidated shall post a fall-sized copy of the Notice attached hereto as Appendix A, in a

2 clearly visible location frequented by employees (e.g., breakrooms, locker rooms, etc.) at its

3 facility located at 5625 W. Tropicana Ave., Las Vegas, NV 89103.

4

H. Record Keeping and Reporting

5

1. Record Keeping

6

Consolidated shall maintain its record keeping procedure that provides for the centralized

7 tracking of complaints of discrimination and the monitoring of such complaints to prevent

8 retaliation. The records that it will continue to maintain during the period of this Consent Decree

9 shall include:

10

a. Discrimination, harassment and retaliation policies;

11

b. Complaint procedure;

12

c. All documents generated in connection with any complaint,

13 investigation into, or resolution of every complaint of discrimination or retaliation for the duration

14 of the Decree and the identities of the parties involved, including, but not limited to, the

15 complainant, alleged perpetrator, investigator(s), witness(es), and decision-maker(s);

16

d. All materials used in trainings; and

17

e. Attendance lists for all trainings.

18

The EEOC shall provide at least thirty (30) days notice to Consolidated to review the

19 foregoing documents if deemed necessary.

20

2. Reporting

21

Consolidated shall provide the written reports to the EEOC as follows:

22

a. Within ninety days after the Effective Date, Consolidated shall

23 submit to the EEOC an initial report which contains:

24

i. A copy of the finalized policy against discrimination,

25 harassment and retaliation;

26

ii. A summary of the procedures and record keeping methods for

27 handling, tracking, and monitoring of complaints of discrimination and retaliation; and

28
LITTLER MENDELSON
A PROFESSIONAL CORPORATION 50 Wesl Liberty Slieol Suite 400 Reno, NV 39501.1944 775.348. 4888

Firmwide:86150834.1 052326.1002

iii. A statement confirming that all employees have received the

Case 2:06-cv-01104-LDG-GWF Document 78 Filed 10/15/08 Page 9 of 14

1 revised policy.

2

iv. A brief description of all sex discrimination and/or retaliation

3 complaints made since the submission of the immediately preceding report required by this

4 Consent Decree (or the Effective Date, if it is the first report). This description shall include the

5 nature of the sex discrimination or retaliation based upon a complaint of sex discrimination

6 alleged, , the dates of the alleged acts of sex discrimination or retaliation and a brief summary of

7 how each complaint was resolved (if applicable).

8

b. Consolidated shall maintain the underlying documents, including all

9 notes applications, recruitment, and any other documents utilized for the Reports.

10

c. For each internal complaint, the report shall (i) summarize the nature

11 of the complaint, (ii) list the date the complaint was received, (iii) list the date the complaint was

12 resolved, (iv) summarize Consolidated's findings, and (v) summarize any corrective action and/or

13 discipline taken in response to the complaint.

14

d. The report shall enable the tracking of multiple complaints by or

15 against a single employee.

16

e. In conjunction with the report, a Human Resources representative at

17 the Director level or higher shall audit each internal complaint investigation to ensure that such

18 complaints were handled in accordance with Consolidated's internal policy for handling complaints

19 of sex harassment, discrimination and retaliation, especially with respect to multiple complaints

20 received regarding the same individual. The report shall include information on the results of the

21 audit.

22

f.

Anna Y. Park and/or Peter F. Laura shall review the report on behalf

23 of the EEOC. If, after reviewing the report, they have concerns that Consolidated may have failed to

24 appropriately investigate or respond to an internal complaint, then they may request and review

25 particular documents related to such internal complaint. If Consolidated objects to all or part of any

26 such document request, then the parties shall utilize the dispute resolution process set forth in

27 Section VII.

28
LITTLER MENDELSON A PROFESSIONAL CORPORATION
50 Wesl Liberty Slioel Suite 400
Reno. NV B9S01 1944 775.348.4888

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Case 2:06-cv-01104-LDG-GWF Document 78 Filed 10/15/08 Page 10 of 14

1 VIII. MODIFICATION AND SEVERABILITY

2

A. This Decree constitutes the complete understanding of the Parties with respect to

3 the matters contained herein. No waiver, modification or amendment of any provision of this

4 Decree will be effective unless made in writing and signed by an authorized representative of

5 each of the Parties.

6

B. If one or more provisions of the Decree are rendered unlawful or unenforceable, the

7 Parties shall make good faith efforts to agree upon appropriate amendments to this Decree in order

8 to effectuate the purposes of the Decree. In any event, the remaining provisions will remain in full

9 force and effect unless the purposes of the Decree cannot, despite the Parties' best efforts, be

10 achieved.

11

C. By mutual agreement of the Parties, this Decree may be amended or modified in the

12 interests of justice and fairness in order to effectuate the provisions of this Decree.

13

14 IX. COMPLIANCE AND DISPUTE RESOLUTION

15

A. The Parties expressly agree that if the EEOC has reason to believe that Consolidated

16 has failed to comply with any provision of this Consent Decree, the EEOC may petition this Court

17 to enforce the Decree. Prior to initiating such petition, the EEOC will notify Consolidated's legal

18 department and its legal counsel of record, in writing, of the nature of the dispute. This notice shall

19 specify the particular provision(s) that the EEOC believes has/have been breached. Consolidated

20 shall have thirty days to attempt to resolve or cure the breach.

21

B. The Parties agree to cooperate with each other and use their best efforts to resolve

22 any dispute referenced in the EEOC notice.

23

C. After forty-five days have passed with no resolution or agreement to extend the time

24 further, the EEOC may petition this Court for compliance with this Decree, seeking all available

25 relief, including, but not limited to, the imposition of attorneys' fees and costs, if otherwise

26 allowed by law,and an extension of the term of the Decree for such period of time as Consolidated

27 is shown to be in breach of the Decree.

28
LITTLER MENDELSON A PROFESSIONAL CORPORATION
50 West Libeily Slrsel Sutle 400
Reno. NV 89501 1944 775.348.48BB

Firmwide:86150834.1 052326.1002

A Case 2:06-cv-01104-LDG-GWF Document 78 Filed 10/15/08 Page 11 of 14

1 X. 2

COSTS OF ADMINISTRATION AND IMPLEMENTATION OF CONSENT DECREE Consolidated shall bear all costs associated with their obligations under this Consent Decree.

3 XI. COSTS AND ATTORNEYS' FEES

4

Each Party shall bear its own costs of suit and attorneys' fees.

5 XII. COUNTERPARTS AND FACSIMILE SIGNATURES

6

This Decree may be signed in counterparts. A facsimile signature shall have the same force

7 and effect of an original signature or copy thereof.

8

Respectfully Submitted,

9

EQUAL EMPLOYMENT

10

11

Date:

'ff\ -

°\ - 0 P> SI

f \ *••»

OPPORTUgW£pm[TSSf©N

r~^v ^N/ ^"^

BY: T-^

Y

12

' Anna 7~1%rk-

'V

— --

13

Attorneys for Plaintiff

EQUAL EMPLOYMENT

14

OPPORTUNITY COMMISSION

15

LITTLER MENDELSON, P.C.

16 17 Date: / fi< At(fkf
18
19
20

Bv: y Pat^ rick~ g/HM icks "^— U Karyn M. Taylor, Esq.
Attorneys for Defendant CONSOLIDATED REALTY, INC. and CONSOLIDATED RESORTS, INC.

21

22

23

24

25

26

27

28
ELSON
SO Wesl Liberty Sltieel Suite 400
Reno. NV 895011..11944 775.348.4BBB3

Firmwide:86150834.1 052326.1002

Case 2:06-cv-01104-LDG-GWF Document 78 Filed 10/15/08 Page 12 of 14

1

2

[PROPOSED] ORDER

3
GOOD CAUSE APPEARING,
4
The Court finds the Consent Decree resolves both Actions and is fair. The Court shall retain
5
jurisdiction for the term of the Decree.
6

7

IT IS SO ORDERED.

8

9
Date: 10
11

Hon. Lloyd D. George United States District Judge

12

13 Date: 14

Hon. James Mahan United States District Judge

15
Firmwide:84584353.1 052326.1001
16 4/2/08 10:49 AM

17

18

19

20

21

22

23

24

25

26

27

28
LITTLER MENDELSON
A PROFESSIONAL CORPORATION 50 Wesl Liberty Streel Suite 400 Reno. NV 89501 1944 775 348 48B3

Firmwide:86150834.1 052326.1002

Case 2:06-cv-01104-LDG-GWF Document 78 Filed 10/15/08 Page 13 of 14
"EXHIBIT A"
"EXHIBIT A"

Case 2:06-cv-01104-LDG-GWF Document 78 Filed 10/15/08 Page 14 of 14
EXHIBIT "A" NOTICE TO ALL EMPLOYEES
This Notice is being posted pursuant to a Consent Decree entered by the federal court in EEOC v. Consolidated Resorts, Inc., Case No. CV S-06-1104 LDG GWF; EEOC v. Consolidated Realty, Inc., Case No. CV S-06-00681 JCM LRL (District of Nevada), settling two lawsuits filed by the U.S. Equal Employment Opportunity Commission ("EEOC"). In its first suit, the EEOC alleged that Consolidated subjected a female employee to sexual harassment, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"). In its second suit, the EEOC alleged that Consolidated terminated a female employee because her gender, in violation of Title VII.
To resolve this lawsuit the parties have entered into a Consent Decree which requires Consolidated to:
1) provide monetary relief to two Charging Parties; 2) refrain from permitting or engaging in sex discrimination in
the future; 3) hire an EEO consultant; 4) revise its policies; 5) provide periodic reports to the EEOC; and 6) provide annual training to its employees regarding employee
rights and responsibilities under Title VII.
The EEOC enforces the federal laws against discrimination in employment on the basis of disability, race, color, religion, national origin, sex, pregnancy, and age. If you believe you have been discriminated against, you may contact the EEOC at:
EEOC/Las Vegas Local Office 333 Las Vegas Boulevard South, Suite 8112 Las Vegas, NV 89101 (702) 388-5099

 
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United States District Court District of Nevada (Las Vegas) CIVIL DOCKET FOR CASE #: 2:06-cv-01104-LDG-GWF

CLOSED,ENE

U.S. Equal Employment Opportunity Commission v. Consolidated Resorts Assigned to: Judge Lloyd D. George Referred to: Magistrate Judge George Foley, Jr
Magistrate Judge Lawrence R. Leavitt (Settlement) Cause: 42:2000 Job Discrimination (Sex)

Date Filed: 09/07/2006 Date Terminated: 10/15/2008 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
U.S. Equal Employment Opportunity Commission

represented by Anna Park U.S. Equal Employment Opportunity Commission 255 East Temple Street 4th Floor Los Angeles, CA 90012213-894-1083 Email: anna.park@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dana C. Johnson United States Equal Employment Opportunity Commission Legal Unit 255 East Temple Street 4th Floor Los Angeles, CA 90012(213) 894-1000 Fax: 213-894-1118 Email: dana.johnson@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sue J. Noh United States Equal Employment Opportunity Commission Legal Unit 255 East Temple Street 4th Floor Los Angeles, CA 90012(213) 894-1082 Fax: 213-894-1118 Email: sue.noh@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

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V. Defendant Consolidated Resorts

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represented by Karyn M Taylor NV Energy 6100 Neil Road Reno, NV 89511 7758345781 Fax: 7758344098 Email: ktaylor@nvenergy.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick H. Hicks Littler Mendelson, PC 3960 Howard Hughes Parkway Suite 300 Las Vegas, NV 89109 Email: phicks@littler.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deborah L. Westbrook Littler Mendelson 3960 Howard Hughes Parkway Suite 300 Las Vegas, NV 89169-5937 (702) 862-8800 Fax: (702) 862-8811 Email: dwestbrook@littler.com TERMINATED: 10/19/2007

Date Filed 09/07/2006
09/07/2006 09/07/2006 09/13/2006 09/19/2006
01/05/2007

# Docket Text
1 COMPLAINT - Title VII Civil Rights - Sexual Harassment, National Origin, Retaliation against Consolidated Resorts, ﬁled by U.S. Equal Employment Opportunity Commission. Certiﬁcate of Interested Parties due by 9/17/2006. (Attachments: # 1 Civil Cover Sheet # 2 Summons)(Park, Anna) (Entered: 09/07/2006)
Case assigned to Judge Lloyd D. George and George W Foley, Jr. (GEW) (Entered: 09/07/2006)
2 SUMMONS Issued as to Consolidated Resorts. (GEW) (Entered: 09/07/2006)
3 AMENDED COMPLAINT with Jury Demand against all defendants, ﬁled by U.S. Equal Employment Opportunity Commission.(Park, Anna) (Entered: 09/13/2006)
4 ORDER for Certiﬁcate of Interested Parties. IT IS ORDERED that counsel for Plaintiff shall have a period of 10 calendar days from the ﬁling date of this order within which to fully comply with the provisions of Local Rule 10-6. Certiﬁcate of Interested Parties due by 9/27/2006. Signed by Judge George W Foley Jr. on 9/18/06. (MAJ) (Entered: 09/21/2006)
5 CERTIFICATE OF SERVICE by Plaintiff U.S. Equal Employment Opportunity Commission re 2 Summons Issued, 3 Amended Complaint. (Johnson, Dana) (Entered:

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6 ANSWER to 3 Amended Complaint defendant Consolidated Resorts, Inc.'s answer to plaintiff's First Amended Complaint by Defendant Consolidated Resorts.(Westbrook, Deborah) (Entered: 01/10/2007)

01/10/2007

7 CERTIFICATE of Interested Parties defendant's Certiﬁcate of Interested parties by Defendant Consolidated Resorts. (Westbrook, Deborah) (Entered: 01/10/2007)

01/29/2007

8 ORDER Scheduling Early Neutral Evaluation Session: Early Neutral Evaluation set for 3/12/2007 09:30 AM in LV Chambers 3C before Magistrate Judge Lawrence R. Leavitt. Signed by Judge Lawrence R. Leavitt on 1/23/07. (AXM) (Entered: 01/29/2007)

01/30/2007

9 MINUTE ORDER IN CHAMBERS of the Honorable Lawrence R. Leavitt, U.S. Magistrate Judge on 1/30/2007. At the request of counsel and for good cause shown the ENE session presently scheduled for 9:30 a.m. on March 12, 2007 before Judge Leavitt is hereby rescheduled for 9:30 A.M. ON THURSDAY, MARCH 29, 2007 in Room 3014. The written evaluation statements shall be submitted to chambers not later than March 22, 2007. (no image attached) (CAP, ) (Entered: 01/30/2007)

02/15/2007

10 PROPOSED Discovery Plan/Scheduling Order ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission Special Scheduling Review Requested. (Attachments: # 1 Signature Page)(Johnson, Dana) (Entered: 02/15/2007)

02/16/2007

11 MOTION to Dismiss DEFENDANT'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT by Defendant Consolidated Resorts. Responses due by 3/6/2007. (Attachments: # 1 Exhibit A-C# 2 Exhibit D# 3 Exhibit E# 4 Exhibit F-H# 5 Exhibit I)(Westbrook, Deborah) (Entered: 02/16/2007)

02/21/2007

12 MOTION to Continue District Judge Hearing On Defendant's Motion for Summary Judgment by Plaintiff U.S. Equal Employment Opportunity Commission. Responses due by 3/11/2007. (Johnson, Dana) Additional attachment(s) added on 2/22/2007 (GEW, ). (Entered: 02/21/2007)

02/21/2007

13 ERROR: Document should have been ﬁled as an attachment to motion 12 . Attorney notiﬁed by email. Attached to motion by the Court. Modiﬁed on 2/22/2007 (GEW). (Entered: 02/21/2007)

02/21/2007

NOTICE of Docket Correction to 13 Afﬁdavit: Document should have been ﬁled as an attachment to motion 12 . Attorney notiﬁed by email. Attached to motion by the Court. (no image attached)(GEW) (Entered: 02/22/2007)

02/23/2007

14 SCHEDULING ORDER on 10 Proposed Discovery Plan. Discovery due by 10/1/2007. Motions due by 11/30/2007. Proposed Joint Pretrial Order due by 12/30/2007. Signed by Judge George W Foley Jr. on 2/21/07. (AXM) (Entered: 02/23/2007)

03/06/2007

15 RESPONSE to 11 MOTION to Dismiss DEFENDANT'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT; ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. Replies due by 3/20/2007. (Attachments: # 1 Declaration of Erin Dawson# 2 Declaration of Barbara J. Tucker# 3 Exhibit to Declaration of Barbara J. Tucker)(Johnson, Dana) Modiﬁed on 3/7/2007 Attorney notiﬁed to REFILE Motion for Summary Judgment as a separate document (GEW). Modiﬁed on 3/14/2007 Declaration of Barbara J. Tucker and Exhibit to declaration of Barbara J. Tucker SEALED(GEW). (Entered: 03/06/2007)

03/09/2007

16 RESPONSE to 12 MOTION to Continue District Judge Hearing On Defendant's Motion for Summary Judgment; ﬁled by Defendant Consolidated Resorts. DEFENDANT'S OPPOSITION TO PLAINTIFF EEOC'S RULE 56(f) MOTION FOR DENIAL OR SUSPEND HEARING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

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03/13/2007 03/13/2007
03/20/2007
03/20/2007 03/22/2007 03/29/2007
04/10/2007 04/25/2007 05/02/2007 05/07/2007

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(Attachments: # 1 Declaration of Deborah L. Westbrook)(Westbrook, Deborah) (Entered: 03/09/2007)
17 MOTION to Seal 15 Response to Motion to Dismiss, Motion to Place Exhibits to Tucker Declaration Under Seal by Plaintiff U.S. Equal Employment Opportunity Commission. (Johnson, Dana) (Entered: 03/13/2007)
18 DECLARATION to Motion to Seal 17 MOTION to Seal 15 Response to Motion to Dismiss, Motion to Place Exhibits to Tucker Declaration Under Seal, 15 Response to Motion to Dismiss, Declaration of Dana Johnson in Support of Plaintiff EEOC's Motion to Place Exhibits Under Seal by Plaintiff U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Index Index of Exhibits# 2 Exhibit Exhibits 1-8# 3 Exhibit Exhibits 916)(Johnson, Dana) Modiﬁed on 3/14/2007 Exhibits #2 and #3 SEALED(GEW). Modiﬁed on 3/21/2007 to correct entry (GEW). (Entered: 03/13/2007)
19 REPLY to Response to 11 MOTION to Dismiss DEFENDANT'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT; ﬁled by Defendant Consolidated Resorts. REPLY IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT (Attachments: # 1 Declaration of Jim Monoyudis# 2 Declaration of John M. Lindros# 3 Declaration Brent Gunson)(Westbrook, Deborah) (Entered: 03/20/2007)
20 REPLY to Response to 12 MOTION to Continue District Judge Hearing On Defendant's Motion for Summary Judgment; ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. (Johnson, Dana) (Entered: 03/20/2007)
21 ORDER granting 17 Motion to Seal Declaration of Barbara J. Tucker attached to 15 Response to Motion to Dismiss. Signed by Judge Lloyd D. George on 3/22/07. (AAB) (Entered: 03/23/2007)
22 MINUTES OF PROCEEDINGS - Early Neutral Evaluation Conference held on 3/29/2007 before Judge Lawrence R. Leavitt.Pla Counsel: Dana C. Johnson; Def Counsel: Patrick H. Hicks; Kevin J. Blair, General Counsel, also present; Time of Hearing: 9:30 a.m.. Counsel,the parties and the court met and conferred. No settlement was reached. See Order for speciﬁc details. Telephonic Status Conference set for 5/7/2007 11:00 AM in Chambers before Magistrate Judge Lawrence R. Leavitt. Mr. Hicks will initiate the telephone conference call. (CAP, ) (Entered: 03/29/2007)
23 MOTION to Amend/Correct Complaint re 3 Amended Complaint. by Plaintiff U.S. Equal Employment Opportunity Commission. Responses due by 4/28/2007. (Attachments: # 1 Exhibit 1 - Second Amended Complaint)(Johnson, Dana) (Entered: 04/10/2007)
24 STIPULATION STIPULATION AND [PROPOSED] ORDER CONTINUING DEADLINE TO DESIGNATE EXPERT WITNESSES AND CONDUCT RELATED DISCOVERY by Plaintiff U.S. Equal Employment Opportunity Commission. (Johnson, Dana) (Entered: 04/25/2007)
25 ORDER ON STIPULATION granting 24 Stipulation on discovery deadlines, SCHEDULING ORDER. Discovery due by 10/31/2007. Motions due by 11/30/2007. Proposed Joint Pretrial Order due by 12/30/2007. Signed by Judge George W Foley Jr. on 4/30/07. (AXM) (Entered: 05/02/2007)
26 MINUTES OF PROCEEDINGS - Status Conference held on 5/7/2007 before Judge Lawrence R. Leavitt.Pla Counsel: Dana C. Johnson; Def Counsel: Deborah Westbrook; Time of Hearing: 11:00 a.m.. The court and counsel discussed the status of preliminary discovery. This case should be returned to the normal litigation track. (CAP, ) (Entered: 05/07/2007)

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28 MINUTE ORDER IN CHAMBERS of the Honorable George W Foley Jr., U.S. Magistrate Judge, on 5/11/2007. By Judicial Assistant: Julia Hill. RE: 27 Plaintiff's SEALED MOTION for Protective Order Pursuant to FRCP 26 and FRE 412 -- Motion Hearing set for THURSDAY, JUNE 14, 2007, at 9:30 AM in LV Courtroom 3A before Magistrate Judge George W Foley Jr.(no image attached) (JXH) (Entered: 05/11/2007)

07/19/2007

34 STIPULATION re 25 Order on Stipulation, Scheduling Order, 14 Scheduling Order ; Extending Discovery Deadlines [First Request] by Plaintiff U.S. Equal Employment Opportunity Commission, Defendant Consolidated Resorts. (Taylor, Karyn) (Entered: 07/19/2007)

07/25/2007

35 ORDER ON STIPULATION Denying 34 Stipulation to Extend Discovery Deadlines. Proposed Stipulation Extending Discovery Deadlines due by 8/3/2007. Signed by Judge George W Foley Jr. on 07/24/07. (Copies have been distributed pursuant to the NEF SRK) (Entered: 07/25/2007)

07/31/2007

36 STIPULATION re 35 Order on Stipulation,, Set/Reset Deadlines, ; Extending Discovery Deadlines; Order [First Request] by Plaintiff U.S. Equal Employment Opportunity Commission, Defendant Consolidated Resorts. (Taylor, Karyn) (Entered: 07/31/2007)

08/03/2007

37 ORDER ON STIPULATION granting 36 Stipulation for new SCHEDULING ORDER. Discovery due by 1/29/2008.,Motions due by 3/31/2008.,Proposed Joint Pretrial Order due by 4/30/2008. Signed by Judge George W Foley Jr. on 8/1/07. (Copies have been distributed pursuant to the NEF - AXM) Modiﬁed date on 8/7/2007. (Jaime, Melissa) (Entered: 08/03/2007)

09/21/2007

38 MOTION for Protective Order Defendant's Motion for Protective Order [EMERGENCY HEARING REQUESTED] by Defendant Consolidated Resorts. (Attachments: # 1 Exhibit A# 2 Exhibit b# 3 Exhibit C, D, E# 4 Exhibit F, G)(Westbrook, Deborah) (Entered: 09/21/2007)

09/24/2007

39 MINUTE ORDER IN CHAMBERS of the Honorable George W Foley Jr., U.S. Magistrate Judge, on 9/24/2007. By Judicial Assistant: Julia Hill. RE: 38 Defendant's Motion For Protective [ EMERGENCY HEARING REQUESTED] -- Motion Hearing set for FRIDAY, OCTOBER 5, 2007, at 1:30 PM in LV Courtroom 3A before Magistrate Judge George W Foley Jr. Opposition is due October 1, 2007 and Reply is due October 3, 2007. (Copies have been distributed pursuant to the NEF - JBH) (Entered: 09/24/2007)

09/28/2007

40 ORDER Granting 12 Motion for Denial or Suspension of Hearing on Defendants' 11 Motion for Summary Judgment. Denying Without Prejudice the 11 Motion to Dismiss, or in the alternative, Motion for Summary Judgment. Signed by Judge Lloyd D. George on 09/28/07. (Copies have been distributed pursuant to the NEF - SRK) (Entered: 09/28/2007)

10/01/2007

41 RESPONSE to 38 MOTION for Protective Order [ EMERGENCY HEARING REQUESTED] ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. Replies due by 10/15/2007. (Attachments: # 1 Declaration Declaration of Dana C.Johnson in Support of Plaintiff EEOC's Opposition to Defendant's Motion for a Protective Order and Cross-Motion for and Order Compelling Documents and Responses to Questions at Deposition and Permission to Take Depositions in Excess o# 2 Exhibit Exhibits A through C)(Johnson, Dana) Modiﬁed text on 10/4/2007. (MAJ) (Entered: 10/01/2007)

10/01/2007

43 CROSS-MOTION for and Order Compelling Documents and Responses to Questions at Deposition and Permission to Take Depositions in Excess of Seven Hours by Plaintiff U.S. Equal Employment Opportunity Commission. Responses due by 10/19/2007. (MAJ) (Entered: 10/04/2007)

10/03/2007 42 REPLY to Response to 38 MOTION for Protective Order Defendant's Motion For Protective [ EMERGENCY HEARING REQUESTED] ; ﬁled by Defendant Consolidated

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Resorts. (Westbrook, Deborah) (Entered: 10/03/2007)

10/03/2007 44 RESPONSE to 43 CROSS-MOTION to Compel ﬁled by Defendant Consolidated Resorts. Replies due by 10/17/2007. (MAJ) (Entered: 10/04/2007)

10/04/2007

NOTICE of Docket Correction to 41 Response to Motion to Compel, 42 Reply to Response to Motion; ERROR: PDF should have been ﬁled as two separate entries; CORRECTION: Document re-ﬁled by Court as 43 CROSS-MOTION to Compel and 44 Response to Motion to Compel. (no image attached)(MAJ) (Entered: 10/04/2007)

10/05/2007

45 MINUTES OF PROCEEDINGS - Motion Hearing held on 10/5/2007 before Judge George Foley Jr. Crtrm Administrator: Donna Smith; Pla Counsel: Dana Johnson; Def Counsel: Deborah Westbrook; FTR #: 1:22:41 - 2:58:28; Time of Hearing: 1:30 p.m.; Courtroom: 3A; RE: 38 MOTION for Protective Order EMERGENCY HEARING REQUESTED, 43 MOTION to Compel. The Court hears the representations of counsel. The Court suggests counsel discuss the scope of the discovery being sought regarding the Blair deposition after this hearing. If counsel can reach agreement regarding this issue, a stipulation and proposed order should be submitted to the Court. If the parties are unable to reach agreement, supplemental briefs regarding this issue are due by 10/12/2007. The Court takes the motions under submission. A separate written order will issue. (no image attached) (Copies have been distributed pursuant to the NEF - DES) (Entered: 10/05/2007)

10/11/2007

46 STIPULATION re 45 Motion Hearing,,, ; STIPULATION REGARDING APPROVED DEPOSITION QUESTIONS FOR KEVIN BLAIR by Plaintiff U.S. Equal Employment Opportunity Commission, Defendant Consolidated Resorts. (Westbrook, Deborah) (Entered: 10/11/2007)

10/11/2007

47 ORDER ON STIPULATION granting 46 Stipulation approving deposition question. Signed by Judge George W Foley Jr. on 10/11/07. (Copies have been distributed pursuant to the NEF - AXM) (Entered: 10/16/2007)

10/15/2007

48 ORDER temporarily unsealing transcript 32 Motion Hearing. Signed by Judge George W Foley Jr.. (Copies have been distributed pursuant to the NEF - AXM) (Entered: 10/18/2007)

10/18/2007

49 STIPULATION Stipulation and Protective Order Regarding Conﬁdentiality of Third Party Personnel Files by Plaintiff U.S. Equal Employment Opportunity Commission. (Johnson, Dana) (Entered: 10/18/2007)

10/18/2007 50 NOTICE by Defendant Consolidated Resorts NOTICE OF WITHDRAWAL AS COUNSEL BY DEBORAH L. WESTBROOK (Westbrook, Deborah) (Entered: 10/18/2007)

10/23/2007

53 ORDER Granting 23 Motion to Amend/Correct Complaint. Signed by Judge Lloyd D. George on 10/22/07. (Copies have been distributed pursuant to the NEF - AXM) (Entered: 10/25/2007)

10/24/2007

52 ORDER ON STIPULATION granting 49 Stipulation and Protective Order Regarding Conﬁdentiality of Third Party Personnel Files. Signed by Judge George W Foley Jr. on 10/19/07. (Copies have been distributed pursuant to the NEF - AXM) (Entered: 10/24/2007)

10/25/2007

54 ORDER Granting in part and denying in part 38 Motion for Protective Order. Signed by Judge George W Foley Jr. on 10/25/07. (Copies have been distributed pursuant to the NEF - AXM) (Entered: 10/30/2007)

11/07/2007

56 ORDER: Defendant produce to Plaintiff information and documents regarding the 03/06/06 complaint against Mr. Rouco in accordance with the provisions regarding the production of such records set forth in the 54 Court's Order. Signed by Judge George W

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11/13/2007

57 STIPULATION and [Proposed] Order Extending Discovery Deadlines [Third Request] by Plaintiff U.S. Equal Employment Opportunity Commission, Defendant Consolidated Resorts. (Taylor, Karyn) (Entered: 11/13/2007)

11/14/2007

59 ORDER ON STIPULATION re 57 Stipulation. SCHEDULING ORDER. Discovery due by 5/28/2008. Discovery Motions due by 6/27/08. Dispositive Motions due by 7/25/2008. Proposed Joint Pretrial Order due by 8/25/2008. Signed by Judge George W Foley Jr. on 11/14/07. (Copies have been distributed pursuant to the NEF - OXC) (Entered: 11/16/2007)

02/21/2008 62 STIPULATION and [Proposed] Order Extending Discovery Deadlines by Plaintiff U.S. Equal Employment Opportunity Commission. (Johnson, Dana) (Entered: 02/21/2008)

02/22/2008

63 MOTION to Compel Submission to Independent Mental Examination; Memorandum of Points and Authorities in Support Thereof by Defendant Consolidated Resorts. Responses due by 3/11/2008. (Attachments: # 1 Declaration Karyn M. Taylor, # 2 Exhibit A to B, # 3 Exhibit C to D, # 4 Exhibit E to L, # 5 Exhibit M to N, # 6 Exhibit O, # 7 Exhibit P to Q) (Taylor, Karyn) (Entered: 02/22/2008)

02/26/2008

64 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge George W Foley, Jr, on 2/26/2008. By Judicial Assistant: Julia Hill. RE: 63 Defendant's MOTION to Compel Submission to Independent Mental Examination -- Motion Hearing set for Thursday, April 3, 2008, at 9:30 AM in LV Courtroom 3A before Magistrate Judge George W Foley Jr. (Copies have been distributed pursuant to the NEF - JBH) (Entered: 02/26/2008)

02/26/2008

66 ORDER ON STIPULATION granting 62 Stipulation to extend discovery. Signed by Magistrate Judge George W Foley, Jr on 2/26/08. (Copies have been distributed pursuant to the NEF - AXM) (Entered: 02/28/2008)

02/27/2008

65 MOTION to Seal 63 MOTION to Compel Submission to Independent Mental Examination; Memorandum of Points and Authorities in Support Thereof MOTION TO FILE EXHIBIT UNDER SEAL by Defendant Consolidated Resorts. Motion ripe 2/27/2008. (Taylor, Karyn) (Entered: 02/27/2008)

03/05/2008

67 ORDER granting 65 Motion to Seal Exhibit E to motion #63. Signed by Magistrate Judge George W Foley, Jr on 3/5/08. (Copies have been distributed pursuant to the NEF - AXM) (Entered: 03/05/2008)

03/10/2008

68 RESPONSE to 63 MOTION to Compel Submission to Independent Mental Examination; Memorandum of Points and Authorities in Support Thereof, ﬁled by Plaintiff U.S. Equal Employment Opportunity Commission. Replies due by 3/24/2008. (Attachments: # 1 Declaration of Dana C. Johnson and Exhibit B in Support of Plaintiff EEOC' s Response in Opposition to Defendant's Motion to Compel Submission to Independent Mental Examination, # 2 Declaration of Erin Dawson in Support of Plaintiff EEOC's Response in Opposition to Defendant's Motion to Compel Submission to Independent Mental Examination, # 3 Declaration of Manuel Saint Martin, MD, JD in Support of Plaintiff's Opposition to Compel Independent Mental Examination, # 4 Proof of Service)(Johnson, Dana) (Entered: 03/10/2008)

03/20/2008

69 STIPULATION re 63 MOTION to Compel Submission to Independent Mental Examination; Memorandum of Points and Authorities in Support Thereof, 68 Response to Motion,,, ; STIPULATION TO EXTEND TIME FOR DEFENDANT TO FILE REPLY TO MOTION TO COMPEL SUBMISSION TO INDEPENDENT MEDICAL EXAMINATION; ORDER [FIRST REQUEST] by Plaintiff U.S. Equal Employment Opportunity Commission, Defendant Consolidated Resorts. (Taylor, Karyn) (Entered: 03/20/2008)

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70 ORDER ON STIPULATION granting 69 Stipulation, for time: 63 MOTION to Compel Submission to Independent Mental Examination; Memorandum of Points and Authorities in Support Thereof, Replies due by 3/28/2008. Signed by Magistrate Judge George W Foley, Jr on 3/25/08. (Copies have been distributed pursuant to the NEF - AXM) (Entered: 03/25/2008)
71 REPLY to Response to 63 MOTION to Compel Submission to Independent Mental Examination; Memorandum of Points and Authorities in Support Thereof ; ﬁled by Defendant Consolidated Resorts. Reply in Support of Motion to Compel Submission to Independent Mental Examination (Attachments: # 1 Declaration of Joann BehrmanLippert, PH.D.)(Taylor, Karyn) (Entered: 03/27/2008)
72 MINUTES OF PROCEEDINGS - Motion Hearing held on 4/3/2008 before Magistrate Judge George Foley, Jr. Crtrm Administrator: Donna Smith; Pla Counsel: Dana Johnson; Def Counsel: Karyn Taylor; FTR #: 9:20:59-10:04:45; Time of Hearing: 9:30 a.m.; Courtroom: 3A; The Court has reviewed the motion and briefs. The Court hears the representations of counsel. The 63 MOTION to Compel Submission to Independent Mental Examination STANDS SUBMITTED. The Court will issue a written decision. If the Court orders Plaintiff to undergo a mental examination it will be under the terms and conditions as stated on the record. (Copies have been distributed pursuant to the NEF DES) (Entered: 04/03/2008)
73 ORDER Denying 63 Motion to Compel. Signed by Magistrate Judge George W Foley, Jr on 4/7/08. (Copies have been distributed pursuant to the NEF - AXM) (Entered: 04/07/2008)
74 TRANSCRIPT of Proceedings: 72 , Motion Hearing, held on 04/03/2008 before Judge George W. Foley, Jr. FTR Recording. Transcript prepared by Exceptional Reporting Services, Inc. (no image attached) (ABC) (Entered: 05/08/2008)
75 ORDER: Parties shall ﬁle an Interim Status Report which fully complies with LR 26-3 by 7/10/2008. Signed by Magistrate Judge George W Foley, Jr on 06/30/08. (Copies have been distributed pursuant to the NEF - SRK) (Entered: 06/30/2008)
76 Joint STATUS REPORT by Plaintiff U.S. Equal Employment Opportunity Commission. (Johnson, Dana) (Entered: 07/10/2008)
77 STIPULATION of Dismissal [Proposed] Consent Decree by Defendant Consolidated Resorts. (Attachments: # 1 Exhibit A)(Taylor, Karyn) (Entered: 10/07/2008)
78 CONSENT JUDGMENT in favor of Consolidated Resorts against U.S. Equal Employment Opportunity Commission. Court shall retain jurisdiction for the term of the Decree. Signed by Judge Lloyd D. George on 10/14/08. (Copies have been distributed pursuant to the NEF - OXC) (Entered: 10/16/2008)

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