UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

EQUAL EMPLOYMENT

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OPPORTUNITY COMMISSION, et al., )

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Plaintiff,

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v.

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U.S. BELL, LINK TECHNOLOGIES, )

CORP., d/b/a U.S. BELL, and BUZZ

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TELECOM CORP.,

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Defendants.

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CAUSE NO.: 2:03-CV-237-PRC

OPINION AND ORDER This matter is before the Court on a Motion for Summary Judgment [DE 142], filed by Defendants, U.S. Bell Corporation, Link Technologies, Corp. d/b/a U.S. Bell, and Buzz Telecom Corp. (collectively “U.S. Bell”) on March 30, 2005. For the following reasons, U.S. Bell’s Motion for Summary Judgment is granted in part and denied in part.

PROCEDURAL BACKGROUND The Plaintiff, Equal Employment Opportunity Commission (“EEOC”), filed a Complaint against U.S. Bell on June 16, 2003. In the Complaint, the EEOC alleges violations of Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991. The EEOC alleges that Tiffany Sims, Beatrice Johnson, Renee Roby, and a class of similarly situated employees were subjected to a hostile work environment and quid pro quo sexual harassment, that U.S. Bell forced Roby and a class of similarly situated employees to resign their employment, and that Sims, Johnson, Childs, Roby, and a class of similarly situated employees were demoted and/or terminated in

retaliation for their opposition to the unlawful practices and/or their participation in statutorily protected activity. The EEOC seeks to correct these alleged unlawful employment practices of U.S. Bell and its successor entities on the bases of sex and retaliation and to provide appropriate relief to Sims, Johnson, Roby, Childs, and a class of similarly situated employees who were adversely affected by the alleged practices. Specifically, the EEOC seeks compensatory damages, punitive damages, and injunctive relief against the Defendants.
U.S. Bell filed an Answer on July 16, 2003, denying the material allegations of the Complaint.
On October 10, 2003, a Motion to Intervene was filed by Joshua Childs, Tiffany Sims Childs (“Sims”), Beatrice Johnson, and Renee Roby. The Motion to Intervene was granted on November 7, 2003, and a Complaint by the Intervenor Plaintiffs was filed that same day. The Intervenor Complaint was brought against the U.S. Bell Defendants as well as Defendants Kurtis Kintzel (“Kurtis”), individually and in his corporate capacity, Keanan Kintzel (“Keanan”), individually and in his corporate capacity, and Gene Chill, individually and in his corporate capacity (collectively “Individual Defendants”).
On December 23, 2003, U.S. Bell and the Individual Defendants filed an Answer to the Intervenor Complaint.
On March 30, 2005, U.S. Bell filed a Motion for Summary Judgment. The EEOC filed its Brief in Opposition to the Motion for Summary Judgment on May 2, 2005. A Reply Brief in Support of the Motion for Summary Judgment was filed on May 31, 2005, by U.S. Bell.
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The parties have consented to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case. Thus, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).
SUMMARY JUDGMENT STANDARD The Federal Rules of Civil Procedure mandate that motions for summary judgment be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). Rule 56(c) further requires the entry of summary judgment, after adequate time for discovery, against a party “who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[S]ummary judgment is appropriate-in fact, is mandated-where there are no disputed issues of material fact and the movant must prevail as a matter of law. In other words, the record must reveal that no reasonable jury could find for the non-moving party.” Dempsey v. Atchison, Topeka, & Santa Fe. Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations and quotation marks omitted). A party seeking summary judgment bears the initial responsibility of informing a court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party may discharge its “initial responsibility” by simply “‘showing’-that is, pointing out to the district court-that there is an absence of evidence to support the non-moving party’s case.” Id. at
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325. When the non-moving party would have the burden of proof at trial, the moving party is not required to support its motion with affidavits or other similar materials negating the opponent’s claim. Id. at 323, 325; Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n.3 (7th Cir. 1994); Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1526 (7th Cir. 1990). However, the moving party, if it chooses, may support its motion for summary judgment with affidavits or other materials and thereby shift to the non-moving party the burden of showing that an issue of material fact exists. Kaszuk v. Bakery & Confectionary Union & Indus., Int’l Pension Fund, 791 F.2d 548, 558 (7th Cir. 1986); Bowers v. DeVito, 686 F.2d 616, 617 (7th Cir. 1982).
Once a properly supported motion for summary judgment is made, the non-moving party cannot resist the motion and withstand summary judgment by merely resting on its pleadings. Fed. R. Civ. P. 56(e); Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). Rule 56(e) establishes that “the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). Thus, to demonstrate a genuine issue of fact, the nonmoving party must do more than raise some metaphysical doubt as to the material facts; the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor of that party. NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995); Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). A court’s role is not to evaluate the weight of the evidence, to judge the credibility of the witnesses, or to determine the truth of the matter, but
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instead to determine whether there is a genuine issue of triable fact. Anderson, 447 U.S. at 249-50; Doe, 42 F.3d at 443.
No heightened standard of summary judgment exists in employment discrimination cases nor is there a separate rule of civil procedure governing summary judgment in employment cases. Alexander v. Wisconsin Dept. of Health and Family Srvcs., 263 F.3d 673, 681 (7th Cir. 2001) (citing Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997)). However, intent and credibility are critical issues, frequently found in employment cases, which are genuinely contestable. Id. Nevertheless, summary judgment in favor of the defendant is hardly unknown, or for that matter, rare, in employment discrimination cases. Wallace, 103 F.3d at 1396.
FACTUAL BACKGROUND The facts viewed in the light most favorable to the non-moving party, the EEOC, are as follows. U.S. Bell, a telecommunication business, is owned and operated by Kurtis and Keanan Kintzel. A small portion of U.S. Bell is owned by Rob Dimitt who is not involved with the daily operations of the business. The business was started in 1992 and became known as U.S. Bell Corporation; although the name was later changed to Buzz Telecom (“Buzz”).1 Kurtis, who owns seventy-two percent of Buzz’s stock, is the Chairman of the Board and President of Buzz. Keanan owns twenty-six percent of Buzz’s stock and holds the positions of secretary and treasurer of Buzz. Bill Brzycki was the Vice President of Administration and Ethics Officer at Buzz; his responsibilities included overseeing all aspects of Buzz’s sexual harassment policy and employee complaints. Kelly Adwell Cripe was the Division 1 Manager at Buzz, oversaw hiring and ethics, was responsible for
1 Due to licensing concerns regarding the use of the name “Bell,” the company changed its name to Link Technologies Corp. d/b/a U.S. Bell in the spring of 2002. The name of the company was then changed to Buzz Telecom.
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conducting exit interviews, and reported to Brzycki. Investigation of sexual harassment claims fell mainly on Cripe and Brzycki. Cripe oversaw hiring and ethics and was responsible for conducting exit interviews.
In November 2000, Brzycki, along with the company attorney, wrote Buzz’s sexual harassment policy. Though he wrote the policy, Brzycki cannot remember ever explaining the sexual harassment policy to anyone. Brzycki stated that he did not have much experience when dealing with claims of sexual harassment. Cripe personally read and signed a sexual harassment policy on her first day of work. Most employees were unaware a sexual harassment policy existed. The EEOC policy letter was shown to Margaret Robertson-Smith, Buzz’s Director of Communications, when she was first hired, but it was not posted anywhere in the building as it was kept in the reception desk filing cabinet. Robertson-Smith remembers having to sign a company policy when she was hired; however, she did not receive any sexual harassment training, as she described that it “was pretty much a free fall over there.” Pl. Br., Exh. 26, p. 13 (Robertson-Smith Dep.). An employee, Tiffany Sims, noted in her EEOC charge of discrimination that to her knowledge, U.S. Bell did not have a sexual harassment policy nor was one ever communicated to her. Employees Renee Roby and Beatrice Johnson denied any knowledge of a sexual harassment policy. Also, employee Iesha Cotton does not remember being given any paperwork regarding sexual harassment.
In 2000, Michael Norvil was hired by Buzz as a telemarketer. On October 12, 2000, Norvil drafted a memo that was added to his personnel file and that stipulated that his two prior employment positions had ended because of charges of sexual harassment and fraternization with other employees. Norvil stated that Buzz did not provide any sexual harassment training during his employment. In October 2000, Norvil was promoted to the position of Vice President of Expansion
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at Buzz. This position involved overseeing all of the telemarketers, who were predominately female. All of the telemarketers worked in one large open room together at rows of tables.2 The work force of telemarketers was transient as employees came and went quickly and U.S. Bell was frequently hiring.3
At some point after being hired, Norvil signed an “Executive Employment Agreement,” which stipulated that “inter-office” relations were forbidden. Pl. Br., Exh. 19, p. 31-32 (Norvil Dep. Volume I). Relations were defined as “flirting, kissing, touching, etc.” Id. While in his supervisory position as Vice President of Expansion, Norvil admits violating the “Executive Employment Agreement” by having relations with several of his employees. Pl. Br., Exh. 19, p. 35 (Norvil Dep., vol. I). These violations included kissing Hilary Phillips, Amber Mink, Jennifer Turner, Stephanie Rodriguez, Kelly Hendle, Yanira Daniels, Melissa Grissom, and Andrea Boscovich. Norvil also had consensual relationships with three individual female employees. Norvil had sexual relations during lunchtime with another employee, Daniels, in a closet at the back of the sales floor. Daniels and Norvil both went into the closet to have sexual intercourse. They did not have sexual intercourse, but did engage in half-naked groping and kissing. Norvil also admits that he had sexual intercourse with an employee, Grissom, in the closet during work hours.
Roby, an employee, asserts that Norvil exposed his penis to her at work. Sometime prior to May 9, 2002, when Roby filed her charge with the EEOC, Roby had complained to Kurtis about Norvil’s behavior, especially the incident where he exposed his penis in front of her, and Kurtis
2 The telemarketers’ work environment was similar to a classroom with rows of tables without any partitions between the work stations.
3 Lisa Hogan noted that Buzz had about twenty telemarketers at one time and that “people came and went all the time.” D. Br., Exh. 17, p. 24 (Hogan Dep.).
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responded, “Are you sure he wasn’t just tucking in his pants?” P. Br., Exh. B-2. Further, Norvil demanded that Roby perform oral sex, attempted to rub her breasts, and requested that she expose her breasts to him.4 Norvil told Johnson that Roby conducted oral sex on him in the break room and that Rasheeda Maxwell did the same to keep her job. In addition, Norvil wondered out loud to Johnson “how good a mixed girl could suck dick, knowing that [Johnson was] of black and Mexican origin.” Pl. Br., Exh. C1, p. 1.
Norvil also had sexual intercourse with employees outside of the workplace. These encounters did not remain outside of the office because Norvil repeatedly bragged about and discussed these encounters with his employees and co-workers in the workplace. Elena Magana remembers that it was common knowledge that Norvil was having sexual relations with the female telemarketers. For example, after a sexual encounter with Rodriguez at his home, Norvil told other employees that Rodriguez was scared after he “got her naked and when she saw how big” his penis was. Pl. Br., Exh. 23, p. 12 (Norvil Dep. vol. II).
Comments about sex and sexual jokes were repeatedly made several times a day by Norvil to and in the presence of other employees, and it was common knowledge that Norvil made sexual comments to the female employees. These comments included making statements on the sales floor about the size of his penis and his desire to get “laid.” Pl. Br., Exh. 18, p. 76 (Magana Dep.). Cotton mentioned that she was frequently told unwelcome jokes about sex. In addition to the sexual jokes and comments, Norvil was overheard calling the female employees: “dirty, skank, whore, slut, and Bs.” Pl. Br., Exh. 11, p. 30-1 (Cotton Dep.). These comments included telling one female employee,
4 During a meeting with Kurtis, Norvil claimed this was a consensual sexual interlude. However, as the Court must view the facts in the light most favorable to the non-moving party, the Court will consider the conduct nonconsensual for the purposes of ruling on the Motion for Summary Judgment.
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“You look like a slut today.” Pl. Br., Exh. 8, p. 50. (Bernard Dep.). During work hours, Norvil often expressed his desire to have sexual intercourse with other employees.
Along with the sexual comments, Norvil repeatedly made remarks about the clothes worn by the female employees. For instance, if a woman wore an article of clothing that revealed her cleavage, Norvil would say “I see something I like.” Id. Sims asserts that Norvil told her at work that he wanted to have sex with her and that he poured water down the front of her shirt. Norvil also told Daniels, when she was bent down to pick up something on the floor, “Oh, you could have stayed down there.” Pl. Br., Exh. 13, p. 24. (Daniels Dep.). Norvil was overheard by Lisa Hogan, a telemarketer at Buzz, commenting on women’s clothing, underwear, and breasts. Pl. Br., Exh. 14, p. 37 (Hogan Dep.). She noted that he would often remark upon women’s panty lines and say, “I would like to have sex with her,” when speaking about other employees. Id. Amanda Bernard once overheard Norvil loudly tell another female employee, Hogan, to “tuck her tit back in her shirt because it was popping out.” Pl. Br., Exh. 8, p. 49 (Bernard Dep.). Bernard noted that Hogan seemed angry and uncomfortable about the comment. Johnson was told by Norvil that he could tell who she was by looking at her butt. Norvil often observed job candidates at U.S. Bell and told Kelly Cripe to hire the attractive ones. If the employee did not go along with the comments, Norvil would be unpleasant to the employee for the rest of the day. Norvil’s comments about how women looked, which he made almost every day, would make the female employees uncomfortable.
Norvil also often rubbed female employees’ shoulders while they were working. For instance, both Serveria Scott and Magana saw Norvil frequently rub the shoulders of fellow female employees. Magana and Scott were subjected to it themselves. This conduct made Magana uncomfortable, which she conveyed to Norvil with a “funny look,” and later she told him “you had
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no right touching me.” Pl. Br., Exh. 18, p. 13 (Magana Dep.). Other employees would complain about Norvil rubbing their shoulders. Norvil would only rub the shoulders of female employees. Another employee, Cotton, remembers an occasion when Norvil touched her neck and she told him “would you please not do that.” Pl. Br., Exh. 11, p.38 (Cotton Dep.).
In addition to shoulder rubbing, Norvil frequently tipped female employees’ chairs so that he could look down their shirts and watch their breasts jiggle. This occurred to Lisa Lacefield who stated that Norvil would target female employees who wore low neck lines so “if he tipped her back he could look right down her shirt.” Pl. Br., Exh. 17, p. 53 (Lacefield Dep.). She also testified that the chair tipping occurred several times a week. If there was a new employee, Norvil would tip her chair and the women would know “that’s Mike’s next victim. You know, that’s the girl he’s going to try to talk to or get in her pants.” Id. at 60. Johnson was subjected to Norvil looking down the front of her shirt while “covering his penis as if he was turned on.” Pl. Br., Exh. C-1, p. 1. She was also often pushed and bumped into by Norvil while he felt her breasts “as if it were an accident.” Id. Norvil hugged the female employees while the women just stood there in front of all the other employees. On one occasion, Norvil took Roby’s hand and preceded to kiss and suck on her fingers.
In addition to the sexual activities, sexual comments, and shoulder rubbing, Norvil repeatedly asked the female employees for dates. Norvil often asked female employees for other female employees’ personal phone numbers in order to call them for dates. Hogan recounted a time when Norvil requested that she help get another female employee interested in him. If Hogan made good comments about Norvil to the employee, then he would give Hogan good leads on customers that would lead to higher commissions or he would allow her to leave early. Norvil asked out Katrina Reillo and Magana, who both refused his requests. In fact, Reillo complained to her co-workers that
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she did not like Norvil’s requests for dates. Magana went even further and complained to Keanan about Norvil’s behavior around November and December of 2002. Scott commented that she felt it was inappropriate of Norvil to ask employees out on dates, given his position with the company. Bernard was also asked out by Norvil on several occasions. On one such occasion, during Bernard’s employee evaluation with Norvil, Norvil told her that “the reason I didn’t write you up is because I like you” and then asked for a date and her phone number. Pl. Br., Exh. 8, p. 55 (Bernard Dep.).
Norvil solicited sex from employees, including Sims and Roby. In Sims’ EEOC charge of discrimination, she asserts that, on January 17, 2002, Norvil indicated to Sims that he wanted to have sex with her. Norvil told Sims that if her fiancee had not been working that day that Norvil and she “would have ended up fucking.” Pl. Br., Exh. A1, p. 2. In addition to the solicitation of sex, Norvil also told Sims’s co-workers that “he could fuck [her] anytime he wanted.” Id. At another time, Norvil indicated to Waushara Person that “I’m going to get it,” which she understood to mean that Norvil was “going to have sex with [her] one day.” Pl. Br., Exh. 24, p. 36-7 (Person Dep.). Johnson was also propositioned by Norvil when he asked her to participate in a threesome.
As Buzz’s Vice-President of Expansion, Norvil was in charge of overseeing the sales department, including telemarketers. Even though Norvil claims he only could recommend termination, employees heard on several occasions from Norvil that he could fire employees for any reason. Robertson-Smith, Buzz’s Director of Communications, testified that Norvil had the authority to fire anyone he wanted who worked on the sales floor. Also, Cotton remembered Norvil firing one female employee while calling her a “dirty B.” Pl. Br., Exh. 11, p. 31 (Cotton Dep.). Norvil could write up employees for infractions, and he often did so. Scott observed that unfair and unwarranted write-ups were made because the employee was female. As a result, Norvil could and often did
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intimidate, frighten, and threaten his employees. In fact, based on his comments, Hogan was aware that “it would be immediate termination if we complained over his head.” Pl. Br., Exh. 14, p. 45 (Hogan Dep.). Roby stated in her EEOC Charge that Norvil frequently mentioned that he had the power to do whatever he wanted so long as the sales numbers were up. Magana heard Norvil say that employees needed to go along with him to keep their jobs. Cotton commented that, if the employees went behind Norvil’s back “and told somebody something that he told you, you were fired. If you stood up for yourself, you [were] fired. If you talked back to him or embarrassed him in front of everyone else, you [were] fired.” Pl. Br., Exh. 11, p. 38 (Cotton Dep.). Norvil made it clear to the female employees that they had to go along with his wishes if they did not want to be terminated. Norvil once told his employees that, “if anyone has a problem with me make a report, give it to Cathy Olive, then Cathy will give it to me, I’ll laugh, I’ll tear it up and you’ll be fired.” Pl. Br., Exh. 18, p. 81 (Magana Dep.).
Cripe remembers that Norvil “was known to have a temper and lots of sexual advances towards women.” Pl. Br., Exh. 24, p. 95 (Cripe Dep.). As a result of her position, Cripe often heard complaints from women who worked for Norvil on the sales floor, which included complaints that he made the female employees uncomfortable and that they did not like when he touched them. In addition, the female employees were afraid of Norvil because “they thought if they didn’t let him do certain things to them that he would fire them, or he would come down hard on them.” Pl. Br., Exh. 11, p. 94-5 (Cripe Dep.). Robertson-Smith observed that Norvil was “very forceful and flirtatious.” Pl. Br., Exh. 26, p. 20 (Robertson-Smith Dep.). When new female employees were hired, they were often warned by Cripe, Robertson-Smith, and Brzycki to stay away from Norvil.
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The indiscretions and actions of Norvil at Buzz Telecom began to be known by the management and supervisors of Buzz during the summer of 2001. In May 2001, there were complaints about Norvil’s activities. On May 24, 2001, Jaci Erwin resigned from her position and wrote a report stating, “I resigned because of the continuing harassment from Division 6a manager Mike [Norvil].” Pl. Br., Exh. 21, p. 58-60 (Norvil Dep. vol. 1, Exh. 10).5 Cripe testified that she first heard complaints in the summer of 2001 and that she forwarded all complaints to Brzycki. In a July 25, 2001 memo, Keanan refers to a meeting with Norvil to discuss “Mike’s recent inter-divisional dating activities.” Id. at 82-83. On September 12, 2001, Phillips stated on her “Employment Status Form,” which each employee filled out at the termination of employement, that “Mike Norvil approached me several times and asked me ‘out.’ I told him no on all occasions, but he still persisted.” Pl. Br., Exh. 19, p. 60-67 (Norvil Dep., vol. 1, Exh. 11). In her “Employee Status Form,” dated October 22, 2001, Cassandra Mardis Idisr states that she could have “filed sexual harassment charges against Norvil.” Pl. Br., Exh. 19, p. 75, Dep. Exh. 11 (Norvil Dep., vol. 1). Further, during her exit interview on September 12, 2001, Lacefield reported Norvil’s conduct, including the chair tipping, to Brzycki. Lacefield also told Keanan about Norvil’s behavior. When asked by Keanan why she did not complain earlier, she told him that she believed she would have been terminated if she had. Keanan denied this and told Lacefield he needed to be notified if there was a problem.
Sims contacted Cripe on January 25, 2002, to meet with her on January 28, 2002, in order to report Norvil’s sexual harassment. On January 28, 2002, Norvil fired Sims before she met with Cripe. However, Sims met with Cripe after she was terminated. After one month, Sims was rehired
5 Normal procedure for an exit interview included a termination sheet (“Employee Status Form”) written out by the employee’s direct supervisor and then a meeting with Cripe to discuss the termination. If there was no termination sheet, the employees could meet with Cripe at any time to discuss their resignation. Cripe did not make the termination decision as it was left to the department manager.
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on the condition that she not work on Norvil’s shift and that Norvil not be her direct supervisor. Subsequently, Norvil was again on her shift and her direct supervisor. When Cripe received the sexual harassment complaint from Sims, she passed the report on to Brzycki, who Cripe states did not take it seriously. Upon receiving it, Brzycki commented that Norvil would not have hit on Sims “because [she] was overweight and unattractive.” Id. at 141. According to Cripe, Sims’ report was never followed up by either her or Brzycki, although she admits that Kurtis did take action after learning of Sims’ complaint.
Brzycki noted that there were a total of ten complaints made by exiting employees and that he noted them to Keanan, then placed the reports in Norvil’s personnel file. According to RobertsonSmith, there were at least four complaints about Norvil. Norvil was not disciplined nor was any investigation done based on these reports from employees. Brzycki noted that Norvil was given “a lot of breaks” because he did well at his job and was producing sales. Pl. Br., Exh. 10, p.124 (Brzycki Dep.). Both Brzycki and Keanan warned Norvil against this type of behavior.
On April 26, 2002, Sims, a telemarketer, filed a Charge of Discrimination with the EEOC on the basis of sex and retaliation, and on May 28, 2002, Sims filed an Amended Charge for the purpose of adding Kurtis and Keanan as named respondents, alleging that they sought to terminate her employment in retaliation for the prior charge filed with the EEOC. On April 29, 2002, Roby filed a Charge of Discrimination with the EEOC on the basis of sex and retaliation, and on June 10, 2002, Roby filed an Amended Charge on the basis of sex and retaliation related to her treatment after she filed her original Charge. On May 8, 2002, Johnson, a telemarketer, filed a Charge of Discrimination with the EEOC on the basis of race and sex, and on June 7, 2002, Johnson filed an Amended Charge,
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alleging discrimination on the basis of race, sex, and retaliation. On December 9, 2002, Person filed a Charge of Discrimination with the EEOC on the basis of retaliation after she left U.S. Bell.
According to Brzycki, sexual harassment complaints that were received were investigated. In direct contrast to Brzycki’s claim, Bernard remembers female employees making complaints to the management about Norvil and never hearing a response back. Cripe testified that Kurtis was aware of Norvil’s behavior before the EEOC was contacted and that Kurtis “was doing nothing to punish Mike in the way he should have been punished.” Id. at 153. Daniels noted that “whenever [female employees] tried to say anything to the owner, Keanan, nothing would get done.” Pl. Br., Exh. 13, p. 21 (Daniels Dep.). In a memo dated March 19, 2002, Brzycki wrote that
[Norvil] had been written up by staff leaving the company on many occasions with no ramifications from his senior Keanan Kintzel. Keanan was made aware of the reports by me and took the point of view that because we had staff members sign the EEOC policy letter we were safe. We had spoken to Mike several times about his behavior concerning women in the office and he promised us that nothing further would occur. We did not take into account the effect that Mike’s behavior was having on the staff. Pl. Br., Exh.10, Dep. Exh. 28 (Brzycki Dep.). Kurtis believes the first complaint of Norvil’s behavior he received was from Sims in March of 2002, and Kurtis claims that, once he learned of the complaints, he conducted a more thorough investigation than those undertaken by Cripe or Brzycki. On March 13, 2002, in response to Sims’ complaint, Kurtis requested that the employees make reports if they had problems with Norvil. Subsequently, a group of telemarketers, including Sims, Johnson, and Roby, filed reports about Norvil. After the reports were filed, Kurtis read them one by one with Norvil and testified in his deposition that Norvil seemed surprised and stunned by all of the allegations.
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Once the charges of discrimination were filed with the EEOC, Kurtis and Keanan came into her office to review employment files of the employees who filed the complaints in order to “to plot against the women.” Id. at 137. Cripe commented that Kurtis and Keanan “were always trying to cover for Mike or make excuses for Mike.” Id.
In addition to meeting with Norvil, Kurtis also met with Brzycki to discuss the complaints and determine what discipline should be meted out. Brzycki noted in his deposition that, though he could not remember the specifics of each report, he did notice a pattern. In response to Kurtis, Brzycki recommended that Norvil be kept out of the building until the claims could be investigated. Brzycki told Kurtis that Norvil should be terminated because of the number of complaints and the constant trouble Norvil caused, and Kurtis agreed. Further, Brzycki stated in his deposition that U.S. Bell “kind of anticipated that we may have more trouble, but we just–we weren’t sure how to deal with it.” D. Br., Exh. 24, p.82 (Brzycki Dep.).
Despite Brzycki’s recommendation of termination, Kurtis suspended Norvil indefinitely on March 18, 2002. In the same memorandum, Brzycki was relieved of his ethics duties due to his inability, in Kurtis’ opinion, to handle the situation concerning Norvil’s behavior with female employees, and Cripe, Kathy Olive–the Sales Trainer, and Joshua Childs–Director of Sales Services, were warned for accepting and holding a post, but not performing its duties.
In his deposition, Kurtis testified that Norvil’s suspension included a requirement that Norvil take an ethics course, labor-intensive duties away from the sales office such as groundskeeping, a reduction of pay, and meeting with the women who had made the reports to attempt to rectify the situations. Cripe noted that Norvil was on the sales floor and in the building during his suspension. On April 3, 2002, Kurtis wrote Norvil a note asking that he stay in the administration section of the
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building or outside because the “reps” were unsatisfied with his presence. Norvil’s suspension ended and he was reinstated in or about June of 2002.
According to Hogan and Bernard, Norvil’s return made them uncomfortable as Norvil’s behavior did not change after the suspension. Roby noted that she was humiliated and stressed when Norvil was allowed back on the sales floor after she had complained of his behavior. On the day of Norvil’s return, Roby left work early due to chest pains, which continued for the next two days. Bernard also noted that she was ill at ease with Norvil’s return to work after his suspension and had to leave work early because she was so uncomfortable. Cripe resigned her position once Norvil was reinstated because she “was tired of dealing with everything to do with Mike and nothing being done about it.” Pl. Br., Exh. 11, p. 132 (Cripe Dep.). Further, once Norvil returned, Person recognized that he acted in a manner expressing that “no matter what we told Kurtis, he was still going to be Vice President of Expansion.” Id. at 52. His coming back was like a “smack in the face” to Person and other employees. Id.
DISCUSSION In its Complaint, the EEOC alleges that U.S. Bell engaged in sexual harassment in violation of Title VII of the Civil Rights Act of 1964. This broad claim of sexual harassment includes the allegations that a class of U.S. Bell employees was subjected by their employer to a hostile work environment, quid pro quo sexual harassment, retaliation, and constructive discharge. U.S. Bell filed a Motion for Summary Judgment on all of the EEOC’s claims and asserts that the evidence put forward by the EEOC does not rise to the level of actionable Title VII sexual harassment. U.S. Bell also maintains that, even if the EEOC can prevail on its claims, the Ellerth/Faragher affirmative defense would defeat those claims. U.S. Bell has not moved for summary judgment on the claims
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of the individual Intervenor Plaintiffs, nor have the Individual Defendants joined in U.S. Bell’s Motion for Summary Judgment. The EEOC responds that the evidence does rise to the level of an actionable hostile work environment, that U.S. Bell has waived its right to assert the affirmative defense, and that, even if the Court considers the affirmative defense, U.S. Bell is not entitled to its protection. The Court will address each claim in turn.
A. Hostile Work Environment Claim Title VII of the Civil Rights Act of 1964 forbids an employer to “discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex . . . .” 42 U.S.C. § 2000e-2(a)(1). Sexual harassment that creates a hostile work environment is actionable under Title VII because “the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their . . . gender . . . offends Title VII’s broad rule of workplace equality.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993). Through Title VII, Congress sought to strike at the complete spectrum of disparate treatment based on sex in the workplace. Id. at 21. In order to survive summary judgment based on a hostile work environment claim, the EEOC must demonstrate: (1) the employee was subjected to unwelcome harassment, (2) the harassment was directed at her because of her sex, (3) the conduct was so severe or pervasive as to alter the conditions of her employment, and (4) there is a basis for employer liability. See Kriescher v. Fox Hills Golf Resort and Conference Ctr., FHR, Inc., 384 F.3d 912, 915 (7th Cir. 2004); Quantock v. Shared Mktg. Servs., 312 F.3d 899, 903 (7th Cir. 2002); see also Meritor Sav. Bank, FSB, v. Vinson, 477 U.S. 57, 67 (1986) (severe or pervasive). A hostile work environment is one that is both objectively and subjectively offensive. See Quantock, 312 F.3d at 903.
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The first two prongs of the hostile work environment analysis are easily met by the EEOC. The first prong demands that the harassment be unwelcome by the victims. “[T]he question whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact . . . .” Rennie v. Dalton, 3 F.3d 1100, 1107 (7th Cir. 1993) (citing Meritor, 477 U.S. at 68). Although some of Norvil’s sexual interaction with employees was consensual, the evidence presented by both parties in this case demonstrates that other female employees were humiliated and made uncomfortable by Norvil’s nonconsensual behavior. Several female employees, including Daniels, Lacefield, Roby, Johnson, Magana, Person, Cotton and Scott claimed they disliked Norvil touching them, commenting on their bodies, and jiggling their chairs to see their breasts move. Johnson, Cotton, Bernard, and Hogan testified that his jokes and comments were unwelcome. Magana and Cotton both told Norvil to stop touching them, and Magana gave Norvil a look that conveyed her discomfort. Norvil made comments about the women such as “You look like a slut today,” and he called the female employees “dirty, skank, whore, slut, and Bs.” Furthermore, the female employees, such as Sims, Reillo, Bernard, Roby, Johnson, Phillips, and Magana repeatedly turned down Norvil’s requests for dates or his propositions for sex, demonstrating that these advances were not welcome. Finally, a number of the women, including Magana, Idisr, Person, Lacefield, Erwin, and Sims, complained to U.S. Bell management–Cripe, Keanan, and Brzycki–and other co-workers about Norvil’s constant barrage of sexual comments and touching. From the evidence of how the employees responded to Norvil’s behavior, a reasonable jury could find that the female employees of U.S. Bell did not welcome or invite Norvil’s conduct.
The second prong requires that the harassment be based on the sex of the employee. Plaintiffs must prove more than that the supervisor treated everyone poorly; rather plaintiffs must
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make a showing that they were targeted because of their sex. See Wyninger v. New Venture Gear,
Inc., 361 F.3d 965, 976 (7th Cir. 2004). Not all comments with sexual content or connotation are
actionable; rather, “[t]he critical issue . . . is whether members of one sex are exposed to
disadvantageous terms or conditions of employment to which members of the other sex are not
exposed.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). Whereas female
employees at U.S. Bell had their shoulders repeatedly rubbed, had their chairs tipped, and were the
recipients of sexual propositions, the male employees were not subjected to this behavior. As noted
by Magana, Norvil would not rub the shoulders of male employees, nor were male employees
subjected to sexual advances. Based on Scott’s testimony, male employees were not written up by
Norvil in ways that seemed unfair and unwarranted. Based on this evidence, a reasonable jury could
conclude that female employees were targeted by Norvil for sexual comments, touching, and sexual
propositions because of the employees’ sex.
To analyze the severe or pervasive nature of the harassment, which constitutes the third prong
of this test for hostile work environment, both a subjective and objective inquiry is necessary.6 The
subjective inquiry compels the court to ask whether the victims subjectively perceived the
6 A line of cases in the Seventh Circuit seemingly requires a determination that the hostile work environment seriously affect the psychological well-being of the plaintiff. See, e.g., Moser v. Indiana Dept. of Corrections, 406 F.3d 895, 902 (7th Cir. 2005) (including in the third prong of the hostile work environment test a requirement of psychological injury); McPherson v. City of Waukegan, 379 F.3d 430, 437-38 (7th Cir. 2004) (same); Durkin v. City of Chicago, 341 F.3d 606, 611 (7th Cir. 2003) (same); Hall v. Bodine Elec. Co., 276 F.3d 345, 354-55 (7th Cir. 2002) (same); Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1032 (7th Cir. 1998) (same); Rennie v. Dalton, 3 F.3d 1100, 1107 (7th Cir. 1993) (same); Swanson v. Elmhurst Chrysler Plymouth, Inc., 882 F.2d 1235, 1238 (7th Cir. 1989) (same). However, the United States Supreme Court explicitly held that, as long as an employee subjectively perceived the workplace to be hostile, it would be enough to prevail without a showing of psychological harm. Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). In accordance with this precedent, another line of Seventh Circuit cases does not require proof of psychological injury. See, e.g., Kriescher v. Fox Hills Golf Resort, 384 F.3d 912, 915 (7th Cir. 2004) (making no mention of a requirement to prove the plaintiff was psychologically injured); McKenzie v. Milwaukee County, 381 F.3d 619, 624 (7th Cir. 2004) (same); Wyninger, 361 F.3d at 975 (same); Rhodes v. Illinois Dept. of Transp., 359 F.3d 498, 505 (7th Cir. 2004) (same); Saxton v. American Tel. and Tel. Co., 10 F.3d 526, 533 (7th Cir. 1993) (recognizing that the Supreme Court “has now made clear that the plaintiff need not prove that she was psychologically injured”). Accordingly, the Court will follow the holding in Harris and will not require the EEOC to make a showing of psychological injury to demonstrate that the harassment was severe or pervasive.
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environment to be abusive such that it altered the conditions of their employment. See Harris, 510 U.S. at 21-22 (1993); Hostetler v. Quality Dining, Inc., 218 F.3d 798, 807 (7th Cir. 2000).
As for the subjective inquiry, the record reflects that a number of the women subjectively perceived the workplace as hostile based on Norvil’s sexual harassment. The evidence provided by both parties shows that many female employees personally felt humiliated, uncomfortable, and offended by Norvil’s conduct. In fact, some female employees left their employment to escape Norvil’s conduct. Others complained about his behavior to each other and U.S. Bell management. When Norvil returned from his suspension, Hogan, Roby, Bernard, Person, and Cripe felt uncomfortable about his return and were concerned by the lack of change in his behavior. In the extreme, Roby noted that she had chest pains and was humiliated, which required her to leave work early that day. Also, upon Norvil’s return, some women resigned rather than continue to deal with Norvil. Subjectively, the evidence demonstrates that the female employees of U.S. Bell felt that their workplace was a hostile work environment when Norvil was in charge.
Turning to the objective inquiry, the Court must query whether a reasonable person in the plaintiff’s position, considering all of the circumstances, would find the environment hostile. See Harris, 510 U.S. at 21 (1993); see also Hostetler, 218 F.3d at 807 (citing Oncale, 523 U.S. at 81). When considering all the circumstances, the Court may consider “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris, 510 U.S. at 23; Russell v. Bd. of Trustees of the Univ. of Ill., 243 F.3d 336, 343 (7th Cir. 2001); Hostetler, 218 F.3d at 806-07. The Seventh Circuit has determined that “[i]solated and/or trivial remarks of a sexual nature do not satisfy the definition of sexual harassment: the offensive conduct
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must be persistent.” Rennie, 3 F.3d at 1107 (internal quotations marks omitted) (alteration in original).
A hostile work environment is defined by the Seventh Circuit as “hellish.” Id. “When the harassment moves beyond the sort of casual contact which (if it were consensual) might be expected between friendly co-workers, and manifests in more intimate, intrusive forms of contact, it becomes increasingly difficult to write the conduct off as a pedestrian annoyance.” Hostetler, 218 F.3d at 807. Second-hand harassment, although not given as much weight as direct harassment, is relevant to the hostile work environment inquiry. See Hildebrandt v. Illinois Dept. of Natural Res., 347 F.3d 1014, 1035 (7th Cir. 2003) (holding that second-hand harassment, that is, comments not directed to the plaintiff, do not have the same impact as harassment directed at the plaintiff); Patt v. Family Health Sys., 280 F.3d 749, 754 (7th Cir. 2002) (holding that second-hand harassment claims are relevant to the plaintiff’s claim).
There is no “mathematically precise” test to determine a hostile work environment as it is a fact-intensive inquiry. Robinson v. Sappinton, 351 F.3d 317, 329 (7th Cir. 2003). Analyzing a hostile work environment claim is often a very difficult process as there is no bright line test. See, e.g., Kriescher, 384 F.3d at 912 (summary judgment is appropriate because the employee was not subjected to unwanted physical contact nor were disparaging comments directed at her); Robinson, 351 F.3d at 317 (noting that the defendant made several sexually overt comments, took inappropriate interest in plaintiff’s dating life, made gestures “that when put in the larger context, served as a constant reminder of [his] interest in her, sexually suggestive incidents occurred on an almost weekly basis and that “she could not avoid personal conduct and still do her job”); Patt, 280 F.3d at 749 (summary judgement was affirmed as eight comments over the course of employment were too sporadic to be severe or pervasive); Hostetler, 218 F.3d at 812 (reversing summary judgment because
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a reasonable person could find that a forcible kiss, unfastening a female employee’s bra, and describing his effective oral sex technique created a hostile work environment); Adusumilli v. City of Chicago, 164 F.3d 353 (7th Cir. 1998) (holding that scattered and offhand statements were not enough to create a hostile work environment). As the Seventh Circuit noted in Baskerville v. Culligan:
On one side lie sexual assaults; other physical contact, whether amorous or hostile, for which there is no consent express or implied; uninvited sexual solicitations; intimidating words or acts; obscene language or gestures; pornographic pictures. On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of coarse and boorish workers . . . . It is not a bright line, obviously, this line between a merely unpleasant working environment on one hand and a hostile or deeply repugnant one on the other . . . .” 50 F.3d 428, 430 (7th Cir. 1995) (internal citations omitted). The Court finds that a reasonable person in the position of the female employees at U.S. Bell could find that their workplace was hostile and abusive. See Harris, 510 U.S. at 21-22. This case encompasses more than a few off-hand comments with sexual connotations. Much of Norvil’s actions fall on the side of the line that divides abusive behavior from that which is merely vulgar or mildly offensive. Norvil exposed himself to Roby and sucked on her fingers. He also rubbed the shoulders of numerous women and touched the breasts of others. Norvil made comments every day about how the female employees’ bodies and clothing looked, he repeatedly solicited different employees for sex, and several times every week he would tip the chairs of female employees to look down their shirts. In addition, Norvil frequently made sexual jokes, commented on his sex life, and requested dates repeatedly from the same individuals. A reasonable person in the position of these women might find Norvil’s behavior humiliating, even intimidating. Norvil also intimidated the women by making them feel that their jobs were in jeopardy if they complained about his behavior. The repeated nature of his comments and touching, combined with the solicitations of sex, created
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a constant barrage that had to be endured by all of the female employees. Both the severity and frequency of the behavior could lead a reasonable person to determine a hostile work environment existed at U.S. Bell.
Several women testified that they were uncomfortable due to Norvil’s invariant sexual harassment. In fact, upon Norvil’s return from his suspension, many female employees testified they were humiliated and had to leave work early. This leads into the inquiry of whether the behavior unreasonably interfered with the employees’ job performance. Having female employees leave work early or even resign due to the presence of Norvil unreasonably interferes with the ability to perform. Further, the employees were subjected to Norvil tipping their chairs while they tried to fulfill their telemarketer’s duties.
Because the line between actionable conduct and that which is vulgar or mildly offensive is often difficult to define, it is instructive to compare Norvil’s actions with those of harassers in various cases in which the Seventh Circuit has held that a reasonable person could find that the alleged conduct was severe or pervasive.
In EEOC v. Indiana Bell Telephone Company, the harasser’s behavior included repeatedly exposing his penis to female employees, making comments with sexual connotations, making remarks about female employee’s bodies, and rubbing their shoulders along with other behavior. See EEOC v. Indiana Bell Tel. Co., 214 F.3d 813, 816-17 (7th Cir. 2000), rev’d on other grounds, 256 F.3d 516 (7th Cir. 2000). The court determined that all of the employees were disturbed by this behavior and that the alleged conduct was enough to establish both an objective and subjective hostile work environment. Id. at 822. The female employees at U.S. Bell were all complaining about a similar pattern of sexual harassment. Although not as frequently as the harasser in Indiana Bell, Norvil exposed his penis to Roby and later bragged to Johnson that Roby and Maxwell had
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performed oral sex on him to keep their jobs. He also placed Roby’s fingers in his mouth and kissed and sucked on them. Norvil directly solicited sex from the female employees and told other female employees which of their co-workers he would have sex with or who he could get. Norvil made comments about the women’s clothing, underwear, breast size, panty lines, about the size of his penis, and about his desire to have sex with particular women. Norvil often rubbed the shoulders of female employees, even though the touching was unwelcome, and Norvil would tip the women’s chairs back to look down their shirts and watch their breasts jiggle. As in Indiana Bell, the U.S. Bell female employees were disturbed and uncomfortable because of Norvil’s behavior, and it is reasonable to find that U.S. Bell was both subjectively and objectively a hostile work environment.
In Quantock v. Shared Marketing Services, Cathey Quantock was propositioned for sex three times, all of which she refused, during a meeting by the president of the company. 312 F.3d at 902; see also Wyninger, 361 F.3d at 977. The Seventh Circuit held that summary judgment was inappropriate, in part, because the solicitation of sex rose to the level of actionable sexual harassment, reasoning that the direct propositions combined with the president’s position of authority and the close working conditions could be viewed by a reasonable jury as hostile. Quantock, 312 at 902 (noting that the supervisor solicited sex “in a crude and shocking manner,” which along with other actions could constitute a hostile work environment); see also Smith v. Northwest Financial Acceptance, Inc., 129 F.3d 1408, 1414 (10th Cir. 1997) (reasoning that the “intimate office setting” of the plaintiff’s small office, which contained no partitions or walls, increased her humiliation and, therefore, the severity of the discriminatory conduct). In Quantock, only one woman was propositioned for sex whereas at U.S. Bell, Norvil solicited several women for sex, including for threesomes and oral sex. The working conditions at U.S. Bell were open and intimate as all of the telemarketers worked in an open room where everyone could hear and see what was happening
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around them; there was no privacy. The U.S. Bell working environment, like the close working conditions in Quantock, combined with the high frequence of sexual comments and propositions made by Norvil, could be viewed as leading to heightened humiliation and a hostile environment.
In Hostetler, the Seventh Circuit reversed the district court’s grant of summary judgment for the employer when the harasser, over a two-day period, had stuck his tongue down the plaintiff’s throat, attempted to kiss her, unfastened four snaps on her brassiere, said he would unfasten it completely, and stated that he could perform oral sex on her so effectively that she would do cartwheels. 218 F.3d at 808. The court held that, although there were a limited number of acts involved so that the conduct might not be pervasive, the behavior could “readily be described as a hostile working environment” because two of the acts involved physical contact of an intimate nature and that the lewd remark “was more than a casual obscenity.” Id. at 807-08. As discussed above, Norvil’s physical contact with the women was of an intimate nature and his lewd remarks were more than a casual obscenity because he was actively seeking sexual encounters with the women. Unlike in Hostetler, in which the conduct was limited to two acts, Norvil’s conduct was also pervasive in that his comments and actions were directed at multiple women over the course of his employment.
Accordingly, the Court finds that a reasonable juror could find that the workplace at Buzz was both subjectively and objectively hostile and abusive.
Finally, the fourth prong of the sexual harassment analysis addresses the issue of employer liability. The Seventh Circuit has held that an employer can be liable, notwithstanding any affirmative defenses, if a supervisor has engaged in sexual harassment. Rhodes, 359 F.3d at 506. However, the plaintiff must demonstrate that the harasser was her supervisor with direct power to affect the terms and conditions of her employment. Id. The power to affect the terms and conditions is often considered to encompass the power to “hire, fire, promote, demote, discipline or transfer .
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. . .” Id. It is not enough to show that the harasser merely had the power to oversee aspects of another employee’s job. Id. To fulfill the fourth prong, Norvil must have been the complaining female employees’ supervisor. Neither the EEOC nor U.S. Bell in their briefs challenge the assumption that Norvil was in fact a supervisor for all of the plaintiffs. Norvil could and did have the power to affect the conditions of the workplace as he personally oversaw the sales floor. Norvil had the power to discipline, to fire or at a minimum to recommend termination, and to recommend hiring. Accordingly, there is a basis for employer liability.
Based on the foregoing analysis of the four-part test for hostile work environment, the Court finds that a reasonable jury could determine that Norvil’s behavior created such conditions at U.S. Bell so as to create a hostile work environment in violation of Title VII.
C. Ellerth/Faragher Affirmative Defense In the Motion for Summary Judgment, U.S. Bell argues that, if the Court finds that the EEOC has met its burden of demonstrating a hostile work environment, U.S. Bell should nevertheless be granted summary judgment because it can establish the affirmative defense set forth in Burlington Industries v. Ellerth, 524 U.S. 742 (1998) and Faragher v. Boca Raton, 524 U.S. 775, 807 (1998). The EEOC argues that U.S. Bell waived the affirmative defense by failing to assert it in its answer and that, even if U.S. Bell had properly raised the defense, it is not entitled to rely on the defense.
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1. Waiver Federal Rule of Civil Procedure 8(c) requires that a defendant, in a responsive pleading, raise
all affirmative defenses that will defeat the allegations in the complaint. See Fed. R. Civ. P. 8(c); Castro v. Chicago Hous. Auth., 360 F.3d 721, 735 (7th Cir. 2004). The purpose of this Rule is to “avoid surprise and undue prejudice to the plaintiff by providing her notice” and an opportunity to respond. Venters v. City of Delphi, 123 F.3d 956, 967 (7th Cir. 1997). If a defendant does not raise a defense at the time of filing an answer, the defense is deemed waived. Castro, 350 F.3d at 735; Johnson v. Sullivan, 922 F.2d 346, 355 (7th Cir. 1990); Pinto Trucking Serv., Inc. v. Motor Dispatch, Inc., 649 F.2d 530, 534 (7th Cir. 1981). A defendant may seek leave to amend an answer to assert an affirmative defense once the availability of an affirmative defense is reasonably apparent, but the defendant must alert the parties and the court of the intent to pursue that defense. Venters, 123 F.3d at 967. A failure to amend the answer raises the risk that the court will find the defense to have been waived. Id. at 967-68. However, a defendant may be allowed to raise an affirmative defense late in the proceedings if the plaintiff is not prejudiced by the late notice and has an opportunity to respond. See Williams v. Lampe, 399 F.3d 867, 871 (7th Cir. 2005).
In Venters v. City of Delphi, the Seventh Circuit held that an affirmative defense raised in the reply brief in support of a motion for summary judgment was deemed waived when the defense was not raised in the answer and no amended answer had been filed. Venters, 123 F.3d at 968. The court reasoned that “if Rule 8(c) is not to become a nullity, we must not countenance attempts to invoke such defenses at the eleventh hour, without excuse and without adequate notice to the plaintiff.” Id. at 969. The court focused on the defendant’s failure to assert the defense even though the parties had endured a long discovery process, the plaintiff did not have an opportunity to respond, and the scheduled trial date was in a month. Id. at 968.
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In contrast, in Williams v. Lampe, the Seventh Circuit allowed a defendant to assert an affirmative defense even though the defendant failed to properly plead the affirmative defense. 399 F.3d at 871. Reasoning that the plaintiff was given an opportunity to respond to the late affirmative defense, unlike the plaintiff in Venters, the court held the plaintiff was not prejudiced by the late notice. Id. The court further held that a plaintiff, after an opportunity to respond to the defense, “cannot establish prejudice merely by showing that the case has progressed significantly since the defendant answered [the] complaint.” Id.
Although U.S. Bell had ample opportunity and notice that the affirmative defense was available, U.S. Bell nevertheless failed to follow the Federal Rules of Civil Procedure and properly amend the Answer. U.S. Bell’s first assertion of the defense was in the Motion for Summary Judgment. As in Williams, and unlike in Venters, the EEOC had an opportunity to respond to the affirmative defense raised by U.S. Bell in the motion for summary judgment and the EEOC did so in its opposition brief. The EEOC has not made any showing that it was prejudiced in its ability to respond to the late-asserted affirmative defense, such as an inability to conduct relevant discovery. Therefore, the Court will allow U.S. Bell to assert the affirmative defense, and the Court will consider the defense on the merits.
2. The Defense When no tangible employment action has been taken by the employer against the employee,
an employer is entitled to assert the Ellerth/Faragher affirmative defense, which encompasses two elements: (1) that the employer had “exercised reasonable care to prevent and correct promptly any sexually harassing behavior” and (2) that the employee “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”
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Pennsylvania State Police v. Suders, 124 S. Ct. 2342, 2346 (2004) (citing Faragher v. Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742, 765 (1998)). In Suders, the United States Supreme Court further explains that the employee “who alleges no tangible employment action has the duty to mitigate harm.” 124 S. Ct. at 2346. However, it is the defendant’s burden to “prove the plaintiff unreasonably failed to avoid or reduce harm.” Id. at 2354.
An exception to the defense is recognized by the Seventh Circuit. An employer is not able to avoid liability if the offending employee is “within that class of an employer organization’s officials who may be treated as the organization’s proxy.” See Johnson v. West, 218 F.3d 725, 730 (7th Cir. 2000) (citing Faragher, 524 U.S. at 789).7 The following officials may be considered an employer’s proxy: “a president, owner, proprietor, partner, corporate officer or supervisor ‘hold[ing] a sufficiently high position in the management hierarchy of the company for his actions to be imputed automatically to the employer.’” Johnson, 218 F.3d at 730 (quoting Faragher, 524 U.S. at 789-90). In West, although the harasser had an important title, it was not enough to find that he was a proxy for his employees. Noting that the defendant had no less than two supervisors and that the plaintiff answered to other supervisors, the court held “if automatic vicarious liability is warranted for Williams, there would be little or nothing left of the [Ellerth/Faragher] affirmative defense.” Id.
Application of the exception in this case is similarly inappropriate. Norvil answered not only to the owners of U.S. Bell, Kurtis and Keanan, but he also had to discuss his behavior with Brzycki,
7 Other circuits have affirmed this exception to the Ellerth/Faragher defense. See, e.g., Ackel v. National Communications, Inc., 339 F.3d 376, 383-84 (5th Cir. 2003) (citing the Seventh Circuit decision in Johnson v. West and holding that an employer is vicariously liable when the “harassing employee is a proxy for the employer”); MallinsonMontague v. Pocrnick, 224 F.3d 1224, 1233 (10th Cir. 2000) (recognizing that the United States Supreme Court created an “alter ego” exception to the affirmative defense); Dees v. Johnson Controls, 168 F.3d 417, 421-22 (11th Cir. 1999) (noting an employer can be held vicariously liable if the supervisor holds “such a high position in the company that he could be considered the employer’s ‘alter ego’”).
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the company’s Ethics Officer, and the termination of employees was processed through Cripe.8 Despite his title as Vice President of Expansion, it does not appear that Norvil spoke for the company nor was he in a “significantly high position” within the company. See id. Further, if U.S. Bell would be held automatically liable for a low-level executive, the Ellerth/Faragher defense would be extinct in the manner against which the Seventh Circuit explicitly warned.
Although U.S. Bell did not move for summary judgment on the EEOC allegations of constructive discharge, the EEOC has not yet proven that claim. Therefore, for the purposes of analyzing the applicability of the affirmative defense, the Court will assume, without deciding, that no tangible employment action was taken by the company against the female employees.
Under the first prong of the Ellerth/Faragher defense, the Court must analyze whether U.S. Bell had “exercised reasonable care to prevent and correct promptly any sexually harassing behavior.” Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807. An effective sexual harassment policy “must provide for ‘effective grievance mechanisms’ and have a ‘meaningful process’ for employees to seek redress for their concerns.” Durkin v. City of Chicago, 341 F.3d 606, 612 (2003) (citing Gentry v. Export Packaging Co., 238 F.3d 842, 847 (7th Cir. 2001)). Although U.S. Bell “is in the best position to know what remedial procedures it offers to employees and how those procedures operate,” Suders, 124 S.Ct. at 2354 n. 7, U.S. Bell does not provide any explanation in its brief as to how it exercised reasonable care to prevent and correct promptly any sexually harassing behavior.9
8 Unlike the claim by the EEOC that Norvil made “all of the sales decisions, including which employees to hire and fire,” it is not clear from the evidence that Norvil held these powers solely. Pl. Br., p. 28.
9 U.S. Bell limits its argument on the affirmative defense in its opening brief to showing that none of the employees suffered a tangible employment action and that the EEOC cannot prove a hostile work environment.
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U.S. Bell took few steps to prevent sexual harassment within the workplace as it had no widely disseminated sexual harassment policy. Only a few management-level employees, including Norvil, Robertson-Smith, and Cripe, remember being asked to sign a policy stating sexual harassment would not be tolerated when they began their employment. Although Brzycki wrote a sexual harassment policy, it does not appear that it was distributed to the other employees or posted within the workplace. None of the employees testified that the policy was published or placed out in view of the employees, nor were employees fully aware of complaint procedures in direct contrast to the requirements of Durkin. Nor did U.S. Bell conduct any sexual harassment training for its employees. There was also confusion among U.S. Bell upper management regarding who would handle the sexual harassment complaints. The reports were given or made to Cripe, Brzycki, and Robertson-Smith, but they were not always taken seriously or investigated. Sometimes Norvil would be talked to about the complaints and other times the complaints were ignored and never investigated. Further, Robertson-Smith testified that no one did anything about sexual harassment other than write reports.
The second part of the first prong demands that U.S. Bell demonstrate that they promptly corrected any sexually harassing behavior. Although U.S. Bell claims it did promptly correct Norvil’s behavior and Kurtis’ testimony supports his claim that he thoroughly investigated and took action against Norvil once he learned about the wide-spread nature of the complaints, there is a question of fact as to the extent of the management’s knowledge prior to March 2002 and the action or inaction that followed that knowledge. Norvil notified his employers of his termination from two previous employments due to sexual harassment by placing a letter in his personnel file shortly after he began working for U.S. Bell in late 2000. Cripe, Brzycki, and Keanan then began receiving
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complaints from women in 2001 regarding Norvil’s behavior, as well as Sims’ complaint in January 2002. Little action was taken except for the occasional meeting with Keanan or Brzycki. It is unclear from the record how early Kurtis knew of the complaints from Sims after she made them in January 2002 and what action, if any, he took with Norvil based on those complaints prior to Norvil’s suspension in March 2002. It is also unclear to what extent Keanan, the secretary and treasurer, knew about the various harassments early on, as Lacefield testified that she told Keanan about the harassment in the fall of 2001, and what his role in the management of the company was.
U.S. Bell asserts that it took corrective action against Brzycki and Cripe for their failure to fully investigate complaints; however, the only tangible action taken against Norvil was a paid suspension after complaints were received from thirteen different female employees. U.S. Bell does not assert that the suspension was an adequate response to the sexual harassment. After a few months’ suspension, during which time Norvil continued to work for the company and was occasionally on the telemarketing floor, Norvil was reinstated, which made the female employees uncomfortable and upset. Person testified that Norvil was “back to his old self” after the EEOC conducted its interviews at Buzz.
The second prong of the Ellerth/Faragher defense asks whether the employees unreasonably failed to take advantage of the policy provided by the employer or to otherwise avoid harm. See id. at 2347. U.S. Bell did not address this prong of the defense in its brief either, despite its burden to prove the defense. See id. at 2354 n. 7. From all accounts, female employees were seemingly not unreasonable when they failed to report sexual harassment. Although the women could have reported to Cripe, they were warned by Norvil not to. As the facts demonstrate, the female employees were repeatedly intimidated and threatened by Norvil so that they would not complain
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about Norvil to the higher management. Norvil threatened that he would fire anyone who complained and made it clear that employees should not go over his head. There was a perception by some employees, such as Bernard, that complaints about Norvil were made and that those complaining employees were then fired or quit immediately after voicing their complaints. In addition to Norvil’s intimidation, the female employees also had no faith that any action would be taken even if they did complain. Due to the intimidation and confusion, along with the lack of a readily accessible policy, a reasonable jury could find that it was not unreasonable for the employee’s failure to report the sexual harassment more frequently, earlier, or to higher management.
In conclusion, the Court finds that U.S. Bell has failed to prove either prong of the Ellerth/Faragher defense at this stage of the litigation. Because the Court finds that a reasonable jury could determine that Norvil’s actions created a hostile work environment at U.S. Bell and that U.S. Bell has failed to establish that it took steps to prevent and correct sexual harassment, summary judgment on the EEOC’s hostile work environment claim is inappropriate.
B. Quid Pro Quo Sexual Harassment, Retaliation, and Constructive Discharge Claims Federal Rule of Civil Procedure 56(e) provides that summary judgment should be granted,
if appropriate, when the adverse party fails to respond. Fed. R. Civ. P. 56(e); Johnson v. Gudmundsson, 35 F.3d 1104, 1112 (7th Cir. 1994). Further, if issues raised in the motion for summary judgment are not responded to by the non-moving party, the issues are deemed waived. Palmer v. Marion County, 327 F.3d 588, 597-98 (7th Cir. 2003) (holding a plaintiff who failed to state a negligence claim in his brief in opposition to summary judgment was abandoned); Laborers’
34

Int’l Union of N. Am. v. Caruso, 197 F.3d 1195, 1197 (7th Cir. 1996) (stating that arguments not presented to the district court in response to summary judgment motions are waived.).
In its Complaint, in addition to hostile work environment, the EEOC asserts quid pro quo sexual harassment, retaliation, and constructive discharge claims against U.S. Bell on behalf of four individuals–Tiffany Sims, Renee Roby, Joshua Childs, and Beatrice Johnson. U.S. Bell moved for summary judgment on all of the EEOC’s claims with the exception of constructive discharge:
A. The plaintiff cannot establish that Tiffany Sims, Beatrice Johnson or Renee Roby were subjected to hostile work environment sexual harassment and quid pro quo sexual harassment. B. U.S. Bell did not terminate or take any adverse job action against any employee in retaliation for making a claim of sexual discrimination or harassment. C. U.S. Bell did not engage in a pattern or practice of discrimination based on sex and retaliation. D. U.S. Bell exercised reasonable care to prevent and promptly correct workplace harassment, and the class representatives, as well as the class members, unreasonably failed to take advantage of corrective opportunities that were available. Def. Br., p. 2. Just as the motion does not address constructive discharge, U.S. Bell’s Brief in Support does not address constructive discharge either. The EEOC does reassert its claim for constructive discharge in its response brief. Therefore, any claims of constructive discharge asserted by the EEOC in its Complaint remain for trial. However, U.S. Bell did move for summary judgment on the issues of retaliation and quid pro quo as to Tiffany Sims, Renee Roby, Joshua Childs, and Beatrice Johnson, and the EEOC did not respond to the substantive merits of these arguments. In its response, the EEOC addresses these claims by noting that U.S. Bell has settled with the intervenor plaintiffs on all of their claims and that, therefore, the quid pro quo and retaliation claims are no longer at issue in this case as to the Intervenor Plaintiffs. The EEOC does not address the retaliation and quid pro quo arguments raised
35

in its own Complaint. Therefore, it appears that the EEOC concedes that the settlement by U.S. Bell with the individuals is not only as to the Intervenor Complaint but also as to the quid pro quo and retaliation claims set forth in the EEOC’s Complaint on behalf of those individuals–Tiffany Sims, Beatrice Johnson, Joshua Childs, and Renee Roby–and for whom individual relief was sought by the EEOC on the basis of retaliation and quid pro quo sexual harassment. At a minimum, by not responding to U.S. Bell’s arguments, the EEOC has waived its claims of quid pro quo and retaliation, if any such claims remained after U.S. Bell’s settlement with the Intervenor Plaintiffs.
Accordingly, summary judgment is granted in favor of U.S. Bell on the EEOC’s quid pro quo and retaliation claims in the Complaint. Summary Judgment on the claim of constructive discharge in the EEOC’s complaint has not been sought by U.S. Bell, and, therefore, the EEOC’s claim of constructive discharge remains for trial.
C. Scope of the EEOC’s Complaint In the Brief in Support of Defendants’ Motion for Summary Judgment, U.S. Bell argues that this Title VII lawsuit does not contain allegations that are like or reasonably related to allegations contained in the EEOC charges filed by the individual women and that there is no nexus between the initial charges by those women and the subsequent allegations brought by the EEOC in this federal Complaint, citing Cheek v. Western & Southern Life Insurance Co., 31 F.3d 497, 501 (7th Cir. 1994); EEOC v. Caterpillar, Inc., 336 F. Supp. 2d 858, 863-64 (N.D. Ill. 2004); EEOC v. Jillian’s of Indianapolis, Indiana, Inc., 279 F. Supp. 2d 974, 979 (S.D. Ind. 2003). It appears that U.S. Bell is arguing that the EEOC’s Complaint should be dismissed for a failure to have exhausted administrative remedies.
36

However, as argued by the EEOC, a lawsuit “brought by the EEOC is not limited to discriminations that the charging party had standing to raise.” EEOC v. Gurnee Inn Corp., 914 F.2d 815, 819 n. 6 (7th Cir. 1990) (internal quotation marks and citation omitted). The EEOC may allege in its Complaint whatever unlawful conduct it uncovers during the course of its investigation, “provided there is a reasonable nexus between the initial charge and the subsequent allegations in the complaint.” EEOC v. Harvey L. Walner & Assocs., 91 F.3d 963, 968 (7th Cir. 1996). First, it appears that all of the allegations brought in the EEOC’s Complaint arose directly out of the investigation commenced after the filing of EEOC charges by various employees. Second, there is a reasonable nexus between the charges filed by the individual female employees and the subsequent allegations in the EEOC Complaint as both deal solely with the alleged conduct of Norvil.
CONCLUSION Based on the foregoing, the Court now hereby GRANTS in part and DENIES in part the Defendant’s Motion for Summary Judgment [DE 142]. The Court GRANTS the Defendants’ Motion for Summary Judgment on the claims of quid pro quo sexual harassment and retaliation. The Court DENIES the Motion for Summary Judgment on the claim of hostile work environment. Summary Judgment was not sought on the claim of constructive discharge and remains for trial. The Court REAFFIRMS the Trial Setting of August 15, 2005 and the Final Pretrial Conference set for August 4, 2005, at 9:00 a.m. So ORDERED this 19th day of July, 2005.
s/ Paul R. Cherry MAGISTRATE JUDGE PAUL R. CHERRY UNITED STATES DISTRICT COURT
37

cc: All counsel of record 38

 
 FI LED

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

and

)

)

JOSHUA CHILDS, TIFFANY (SIMS) CHILDS, )

BEATRICE JOHNSON AND RENEE ROBY, )

)

Intervening Plaintiffs,

)

)

vs.

)

)

U.S. BELL CORPORATION, LINK

)

TECHNOLOGIES, CORP., d/b/a U.S. BELL, )

and BUZZ TELECOM, CORP.,

)

)

Defendants,

)

)

and

)

)

KURTIS KINTZEL, individually and in his )

corporate capacity,

)

)

and

)

)

KEANAN KINTZEL, individually and in his )

corporate capacity,

)

)

and

)

)

GENE CHILL, individually and in his

)

corporate capacity,

)

)

Proposed Defendants.

)

CAUSE NO. 2-03CV237JM
COMPLAINT OF INTERVENORS JOSHUA CHILDS, TIFFANY (SIMS) CHILDS, BEATRICE JOHNSON AND RENEE ROBY

F I LED

NOV 072003

At

M

STEPHEN R. LUDWIG, Clerk

U.S. DISTRICT COURT

NORTHERN DISTRICT OF INDIAN~

COMPLAINT OF INTERVENORS JOSHUA CHILDS, TIFFANY (SIMS) CHILDS, BEATRICE JOHNSON, AND RENEE ROBY Now come Intervening Plaintiffs Joshua Childs, Tiffany (Sims) Childs, Beatrice Johnson, and Renee Roby (collectively, "Plaintiffs"), through counsel, and for their Complaint against all Defendants, allege as follows: PARTIES 1. Plaintiff Tiffany Sims is a natural person who was employed by Defendants through May 31,2002. Sims is and was at all relevant times a resident of Valparaiso, Indiana. 2. Plaintiff Joshua Childs is a natural person who was employed by Defendants through May 30,2002. Childs is and was at all relevant times a resident of Valparaiso, Indiana. 3. Plaintiff Beatrice Johnson is a natural person who was employed by Defendants through June 7,2002. Johnson is and was at all relevant times a resident of Glenwood, Illinois. 4. Plaintiff Renee Roby is a natural person who was employed by Defendants through about May 10, 2002. Roby was at all relevant times a resident of Gary, Indiana. 5. Defendant U.S. Bell Corporation at all relevant times was a Nevada for-profit corporation registered in Indiana as a foreign corporation, with its principal place of business being 8380 Louisiana Street, Merrillville, Indiana 46410, and for whom Keanan Kintzel was an agent, officer and owner, and for whom Kurtis Kintzel was an owner and agent. 6. Defendant Link Technologies, Corp., at all relevant times was a Nevada for-profit corporation registered in Indiana as a foreign corporation, with its principal place of business being 8380 Louisiana Street, Merrillville, Indiana 46410, and conducted business under the name "U.S. Bell," and Defendant Buzz Telecom, Corp., is the successor corporation of Link Technologies, Corp.
2

7. Defendant Buzz Telecom, Corp., is a Nevada for-profit corporation registered in Indiana as a foreign corporation, with its principal place of business being 8380 Louisiana Street, Merrillville, Indiana 46410, and for whom Kurtis and Keanan Kintzel are agents, officers and owners.
8. The foregoing Defendants US. Bell Corporation, Link Technologies, Corp., and Buzz Telecom, Corp. are collectively referred to herein as the "Corporate Defendants."
9. Defendant Kurtis Kintzel is a natural person who is named in his individual capacity as to his own tortious conduct, and his authorization, acquiescence and direction of tortious conduct committed against Plaintiffs. He also is named in his corporate capacity as owner, director and officer of the Corporate Defendants named herein.
10. Defendant Keanan Kintzel is a natural person who is named in his individual capacity as to his own tortious conduct, and his authorization, acquiescence and direction of tortious conduct committed against Plaintiffs. He also is named in his corporate capacity as owner, director and officer of the Corporate Defendants named herein.
11. Defendant Gene Chill is a natural person who is named in his individual capacity as to his own tortious conduct, and his authorization, acquiescence and direction of tortious conduct committed against Plaintiffs. He also is named in his corporate capacity as an officer and/or upper-level manager of the Corporate Defendants named herein.
JURISDICTION AND VENUE 12. This Court has subject matter jurisdiction over all claims brought under Title VII of
the Civil Rights Act pursuant to 28 US.c. § 1331 and 28 US.C. § 1343, and the Court has supplemental subject matter jurisdiction over Plaintiffs' state law claims pursuant to 28 US.c. § 1367.
3

13. Venue is proper in this Court since the unlawful employment and other tortious acts alleged herein were committed within the jurisdiction of the United States District Court for the Northern district ofIndiana.
14. Plaintiffs have exhausted their administrative remedies and have satisfied all conditions precedent to bringing this action. All Plaintiffs filed timely discrimination charges with the Equal Employment Opportunity Commission ("EEOC"), and the EEOC commenced these proceedings on June 16, 2003.
COUNT I - TITLE VII HOSTILE ENVIRONMENT, QUID PRO QUO, AND RETALIATION
(As to the Corporate Defendants) 15. Plaintiffs incorporate by reference in this Count each and every preceding allegation of this Complaint as if fully re-written here. 16. From at least October, 2000, the Corporate defendants have engaged in unlawful employment discrimination against Plaintiffs at the Merrillville, Indiana offices in violation of Title VII, 42 U.S.C. §§ 2000e-2(a) and 2000e-3(a). 17. Such discrimination included subjecting Plaintiffs Tiffany Sims, Renee Roby, and Beatrice Johnson to hostile employment environment sexual harassment and quid pro quo sexual harassment by Defendants through the conduct of Defendants' owners, officers, and managers. 18. Defendants also illegally retaliated against Plaintiffs Tiffany Sims, Renee Roby, Beatrice Johnson, and Joshua Childs by demoting, discharging and/or constructively discharging them immediately following Defendants' receipt of discrimination charges. 19. As a direct and proximate result of Defendants' conduct, Plaintiffs Tiffany Sims, Renee Roby, Beatrice Johnson, and Joshua Childs were deprived of equal employment opportunities and were subject to adverse employment actions and retaliation.
4

20. The illegal conduct of Defendants in discriminating against, demoting, discharging and/or constructively discharging Plaintiffs Tiffany Sims, Renee Roby, Beatrice Johnson, and Joshua Childs was done intentionally, with malice, and in gross disregard for the federally protected rights of the Plaintiffs.
COUNT 11- STATE LAW WRONGFUL DISCHARGE (As to all Defendants)
21. Plaintiffs incorporate by reference in this Count each and every preceding allegation of this Complaint as if fully re-written here.
22. Plaintiffs each were discharged from their employment with the Corporate Defendants solely for exercising their statutorily-conferred right to report, complain about, and/or provide support to persons who reported or complained about sexual and racial harassment.
23. Each such discharge was wrongful and in violation of public policy under Indiana law. 24. As a direct and proximate result of the Defendants' wrongful conduct in discharging Plaintiffs, each plaintiff suffered compensatory damages, including but not limited to lost wages and severe mental anguish, and Plaintiffs are entitled to recover in an amount to be determined at trial. 25. Because wrongful termination is a tort under Indiana law, each of the individually named defendants is personally liable, in addition to the Corporate Defendants for whom they acted as agents, for their own tortious conduct in performing, authorizing, directing and/or acquiescing in the wrongful termination of Plaintiffs. 26. The Defendants' willful and intentional conduct as alleged herein was taken with malice and in gross disregard for the rights of each Plaintiff, and Plaintiffs are entitled to recover punitive damages in an amount to be determined at trial.
5

COUNT llI- STATE LAW INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (As to all Defendants)
27. Plaintiffs incorporate by reference in this Count each and every preceding allegation of this Complaint as if fully re-written here.
28. Through their conduct in intentionally harassing and discriminating against Sims, Roby and Johnson based upon gender, and in retaliating against all Plaintiffs for reporting and for supporting the reporting of such harassment and discrimination, Defendants intended to cause severe emotional distress or should have known that their conduct would cause such distress.
29. Each Defendant's conduct as aforesaid was so extreme and outrageous as to go beyond the bounds of decency and was such that it is utterly intolerable in a civilized society.
30. The mental anguish suffered by each Plaintiff was severe and of a nature that no reasonable person could be expected to endure it.
31. As a direct and proximate result of the Defendants' wrongful conduct in intentionally inflicting severe emotional distress, each plaintiff suffered compensatory damages, including but not limited to lost wages and severe mental anguish, and Plaintiffs are entitled to recover in an amount to be determined at trial.
32. Because intentional infliction of emotional distress is a tort under Indiana law, each of the individually named defendants is personally liable, in addition to the Corporate Defendants for whom they acted as agents, for their own tortious conduct in performing, authorizing, directing and/or acquiescing in the wrongful conduct that harmed Plaintiffs.
33. The Defendants' willful and intentional conduct as alleged herein was taken in gross disregard for the rights of each Plaintiff, and Plaintiffs are entitled to recover punitive damages in an amount to be determined at trial.
6

WHEREFORE, the Intervening Plaintiffs pray that the Court enter judgment in their favor

as to all Counts contained herein, and afford to each of them the following relief against each and

all Defendants, jointly and severally:

A. Back pay with pre-judgment interest in an amount to be determined at trial;

B. Front pay in an amount to be determined at trial;

C. Damages for all past and future pecuniary losses resulting from Defendants'

unlawful employment practices, with pre-judgment interest in an amount to be

determined at trial;

D. Damages for all past and future non-pecuniary losses resulting from Defendants'

unlawful employment practices, including but not limited to physical and emotional

pain and suffering, mental anguish, and loss of enjoyment of life, all in an amount

to be determined at trial;

E. Punitive damages based on Defendants' intentional, malicious, and reckless

conduct taken in gross disregard for the Plaintiffs' rights;

F. Attorney's fees, costs, and expenses incurred by the Plaintiffs in connection with

their claims and charges against Defendants;

G. DATED:

Any and all such further relief as is just and proper under the circumstances. October ~, 2003

Matthew J. Mnold (IN 23418-64; OR 0067002) Law Office of Matthew J. Arnold 3437 Airport Road Portage, IN 46368 Telephone: (219) 764-3900 Facsimile: (219) 763-0519

ames T. McNiece (IN 9549-45) Spangler, Jennings & Dougherty, P.e. 8396 Mississippi Street Merrillville, IN 46410 Telephone: (219) 769-2323 Facsimile: (219) 769-5007

7

•
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and accurate copy of the foregoing
COMPLAINT OF PROPOSED INTERVENORS JOSHUA CHILDS, TIFFANY (SIMS)
CHILDS, BEATRICE JOHNSON, AND RENEE ROBY was served upon the following parties
and counsel of record by Certified U.S. Mail Return Receipt Requested, postage prepaid, this
~ day of October 2003:
Jo Ann Farnsworth, Senior Trial Attorney Equal Employment Opportunity Commission Indianapolis District Office 101 West Ohio Street, Suite 1900 Indianapolis, IN 46204
Johnson & Rappa, LLC Steven A. Johnson Lizabeth R. Hopkins 250 East 90th Drive Merrillville, IN 46410 Attorneys for U.S. Bell Corporation Link Technologies, Corp., d/b/a U.S. Bell and Buzz Telecom, Corp.
New Defendants: Kurtis Kintzel 1521 Essex Drive Chesterton, IN 46304
Keanan Kintzel 303 Oak Street Valparaiso, IN 46383
Gene Chill Address Unknown (Not Served)
8

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

CAUSE NO.: 2:03-CV-237-PRC

)

U.S. BELL CORPORATION, LINK

)

TECHNOLOGIES, CORP., d/b/a U.S. BELL,

)

and BUZZ TELECOM, CORP.,

)

)

Defendants.

)

ORDER

This matter is before the Court on Plaintiff Equal Employment Opportunity Commission’s

Motion to Compel Defendants’ Responses to Interrogatories and Production of Documents [DE 29],

filed by the Plaintiff Equal Employment Opportunity Commission (“EEOC”) on February 25, 2004.

The Plaintiff has also filed a Memorandum in Support. The Defendant has not filed a Response to the

Motion.

On December 16, 2003, the EEOC served upon the Defendants its First Set of Interrogatories

and First Request for Production of Documents. On January 20, 2004, the EEOC received a letter

from Defendants’ counsel, dated January 14, 2004, requesting an extension of time to respond to the

discovery requests to and including February 28, 2004. On January 20, 2004, counsel for the EEOC

sent a letter to Defendants’ counsel objecting to the length of the requested extension of time. On

January 26, 2004, during a telephone call initiated by the EEOC’s counsel, Defendants’ counsel

agreed to submit the discovery responses by February 9, 2004. On February 18, 2004, counsel for

the EEOC sent a letter requesting the discovery responses, not having received the responses by that

date. As of the date of the filing of the motion, the Defendants had not responded to the

interrogatories or request for production of documents. The EEOC requests that the Court compel the Defendants to respond to the propounded discovery within ten days.
Having reviewed the Motion and noting that the Defendant has not filed a response, the Court now GRANTS the Plaintiff Equal Employment Opportunity Commission’s Motion to Compel Defendants’ Responses to Interrogatories and Production of Documents [DE 29]. The Court ORDERS the Defendants to provide complete responses to the First Set of Interrogatories and First Request for Production of Documents on or before March 31, 2004. The Defendants are ADVISED that a failure to abide by the discovery rules in the future may result in sanctions or attorney fees being assessed against the offending party.
SO ORDERED this 17th day of March, 2004.

cc: All counsel of record

s/ Paul R. Cherry MAGISTRATE JUDGE PAUL R. CHERRY UNITED STATES DISTRICT COURT

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

CAUSE NO.: 2:03-CV-237-PRC

)

U.S. BELL CORPORATION, LINK

)

TECHNOLOGIES, CORP., d/b/a U.S. BELL,

)

and BUZZ TELECOM, CORP.,

)

)

Defendants.

)

ORDER

This matter is before the Court on Plaintiff Equal Employment Opportunity Commission’s

Notice of Partial Compliance with Discovery and Renewed Motion to Compel [DE 32], filed by the

Plaintiff Equal Employment Opportunity Commission (“EEOC”) on March 23, 2004. The Plaintiff

has also filed a Memorandum in Support. The Defendants have not filed a Response to the Motion.

On December 16, 2003, the EEOC served upon the Defendants its First Set of Interrogatories

and First Request for Production of Documents. On January 20, 2004, the EEOC received a letter

from Defendants’ counsel, dated January 14, 2004, requesting an extension of time to respond to the

discovery requests to and including February 28, 2004. On January 20, 2004, counsel for the EEOC

sent a letter to Defendants’ counsel objecting to the length of the requested extension of time. On

January 26, 2004, during a telephone call initiated by the EEOC’s counsel, Defendants’ counsel

agreed to submit the discovery responses by February 9, 2004. On February 18, 2004, counsel for

the EEOC sent a letter requesting the discovery responses, not having received the responses by that

date.

1

On February 25, 2004, the EEOC filed a Motion to Compel and a Memorandum in Support. The Defendants never filed a response to the motion. On March 8, 2004, the EEOC received the Defendants’ Answers to Plaintiff’s First Set of Interrogatories and Defendants’ Response to Plaintiff’s First Request for Production of Documents. Having found the responses inadequate, the EEOC faxed a letter to the Defendants’ counsel on March 10, 2004, but received no response. On March 17, 2004, the EEOC again faxed a letter to Defendants’ counsel and requested a response by March 19, 2004. On March 17, 2004, after faxing the letter, the EEOC received notice that the Court had granted the February 25, 2004 Motion to Compel.
In its renewed motion to compel and supporting memorandum, the EEOC argues that the First Set of Interrogatories and First Request for Production of Documents were propounded in good faith, that the information sought is essential to the issues in this action, and that Defendants’ failure to fully and completely respond is unnecessarily prolonging the discovery process. The EEOC specifically sets forth the inadequacies with each objection or insufficient answer or response both in its March 10, 2004 letter to Defendants’ counsel and in its memorandum in support. Defendants have filed no response to this motion.
Having reviewed the motion and its supporting documents and noting that the Defendant has not filed a response, the Court now GRANTS the Plaintiff Equal Employment Opportunity Commission’s Notice of Partial Compliance with Discovery and Renewed Motion to Compel [DE 32]. The Court ORDERS the Defendants (1) to provide complete responses to Interrogatories 2, 4, 6, 7, 10, 11, 13, and 14 of the First Set of Interrogatories; and (2) to provide complete responses to Requests for Production 2, 3, 6-9, 11- 45 of the First Request for Production of Documents including (3) an adequate privilege log as required by Rule Fed. R. Civ. P. 26(b)(5) for Requests for
2

Production 6-9, 31, 32, and 40-45 on or before April 30, 2004. The Court again ADVISES the Defendants that a failure to abide by the discovery rules in the future may result in sanctions or attorney fees being assessed against the offending party.
SO ORDERED this 14th day of April, 2004.

cc: All counsel of record

s/ Paul R. Cherry MAGISTRATE JUDGE PAUL R. CHERRY UNITED STATES DISTRICT COURT

3

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION, et al.

)

)

Plaintiffs,

)

)

v.

)

)

U.S. BELL CORPORATION, et al.

)

)

)

Defendants.

)

)

CIVIL ACTION NO. 2:03-CV-237-PRC

ORDER This matter is before the Court on Plaintiff Equal Employment Opportunity Commission’s Motion to Compel Defendants’ Responses to Interrogatories and Production of Documents [DE 59], filed by the Plaintiff EEOC on October 1, 2004. Defendants U.S. Bell Corporation, Link Technologies, Corp., d/b/a U.S. Bell, and Buzz Telecom, Corp. (“Defendants”) have not filed a Response. The EEOC represents that on May 20, 2004, the EEOC served upon Defendants its Third Set of Interrogatories. On June 16, 2004, the EEOC served upon Defendants its Second Request for Production of Documents and Companion Interrogatory. On July 21, 2004, the EEOC received from Defendants the Answers to Plaintiff’s Third Set of Interrogatories. On July 29, 2004, the EEOC sent a letter to Defendants’ counsel inquiring about the response to the Second Request for Production of Documents and Companion Interrogatory. On August 4, 2004, counsel for the Plaintiff sent a letter to counsel for the Defendants requesting that the Defendants withdraw the objection and provide responses to the EEOC’s Third Set of Interrogatories, no. 23-24. Apparently crossing in the

mail, a letter dated August 3, 2004, sent from counsel for the Defendants, was received by counsel for the EEOC. That letter requested a thirty-day extension of time to and including August 19, 2004, to respond to the Commissioner’s Second Request for Production of Documents and Companion Interrogatory. On September 10, 2004, counsel for the EEOC spoke with counsel for the Defendants during a break in a deposition being taken in the case. Counsel for the Defendants indicated that he would not provide responses to the Third Set of Interrogatories unless ordered by the Court and that he did not know when the responses to the Request for Production of Documents would be provided.
Having considered the motion and in light of the lack of response from the Defendants, the Court now GRANTS the Plaintiff Equal Employment Opportunity Commission’s Motion to Compel Defendants’ Responses to Interrogatories and Production of Documents [DE 59]. The Court ORDERS the Defendants to respond to Plaintiff’s Third Set of Interrogatories, nos. 23-24, and Second Request for Production of Documents and Companion Interrogatory on or before November 8, 2004.
So ORDERED this 25th day of October, 2004.

cc: All counsel of record

s/ Paul R. Cherry MAGISTRATE JUDGE PAUL R. CHERRY UNITED STATES DISTRICT COURT

2

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION, et al.

)

)

Plaintiffs,

)

)

v.

)

)

U.S. BELL CORPORATION, et al.

)

)

)

Defendants.

)

)

CIVIL ACTION NO. 2:03-CV-237-PRC

ORDER
This matter is before the Court on Plaintiff Equal Employment Opportunity Commission’s
Motion to Compel Defendants’ Responses to Fourth Request for Production of Documents [DE 65],
filed by the Plaintiff EEOC on November 8, 2004.
The EEOC represents that on September 15, 2004, the EEOC served upon Defendants its
Fourth Request for Production of Documents. On October 28, 2004, counsel for the EEOC sent a
letter to Defendants’ counsel inquiring about Defendants’ response. As of the filing of the motion,
counsel for the Defendants had not received a response to that letter.
Federal Rule of Civil Procedure 37(2)(B) provides in relevant part:
If . . . a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action.

Fed. R. Civ. P. 37. Additionally, Local Rule 37.1 provides:

Any certification required to be made under Fed. R. Civ. P. 26(c), 37(a)(2)(A), 37(a)(2)(B), and 37(d) shall recite, in addition to the information required under the appropriate Federal Rule, the date, time, and place of the conference or attempted conference and the names of all persons participating therein.
Local Rule 37.1(a).
Although the Plaintiff sent one letter to counsel for the Defendants regarding the Fourth
Request for Documents and then waited approximately one week prior to filing the Motion to
Compel, the Court finds that the Plaintiff has not made a sufficient attempt to resolve this discovery
dispute informally before requesting the intervention of the Court. Accordingly, the Court now DENIES without prejudice the Plaintiff Equal Employment
Opportunity Commission’s Motion to Compel Defendants’ Responses to Fourth Request for
Production of Documents [DE 65].
So ORDERED this 9th day of November, 2004.

cc: All counsel of record

s/ Paul R. Cherry MAGISTRATE JUDGE PAUL R. CHERRY UNITED STATES DISTRICT COURT

2

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION, et al.

)

)

Plaintiffs,

)

)

v.

)

)

U.S. BELL CORPORATION, et al.

)

)

Defendants.

)

CIVIL ACTION NO. 2:03-CV-237-PRC

PROTECTIVE ORDER

This matter is before the Court on Plaintiff’s Motion for Protective Order and Request for

Expedited Ruling [DE 81], filed by the EEOC on December 3, 2004. The Defendants filed a

response on December 8, 2004, and the EEOC filed a reply on December 10, 2004.

On November 9, 2004, the Defendants noticed three depositions of intervening plaintiffs

scheduled for December 29 and 30, 2004, and January 3, 2005. On November 15, 2004, counsel

for the EEOC notified counsel for the Defendants that both EEOC counsel had schedule conflicts

with those dates. Subsequently, counsel from both sides discussed the possibility of changing the

deposition dates, with the Defendant suggesting that the depositions could be moved if the EEOC

agreed to extend the discovery deadline in order to allow for follow-up discovery, if necessary. On

November 29, 2004, counsel for the EEOC wrote a second letter to counsel for the Defendants

reaffirming that they were not willing to move the discovery deadline, requesting that the Defendant

reschedule the depositions, and providing eight dates in January which were available to them. On

November 30, 2004, counsel for the Defendants replied by letter and explained that the depositions

could not be held earlier because outstanding discovery was required prior to the depositions and

1

that if the depositions were scheduled later, there would be inadequate time for additional discovery without an extension of the discovery deadline.
The Court is concerned by the parties’ inability to resolve this matter on their own and agrees that this litigation has become especially contentious. Although the Court recognizes the time constraints upon the Defendant regarding outstanding discovery responses and the close of discovery, the Court also notes that counsel for the Defendants did not consult counsel for the EEOC prior to scheduling the depositions in question on this motion. The Court also finds that Counsel for the EEOC should have counsel present at the depositions, separate from counsel representing the intervening Plaintiffs. However, Counsel for the EEOC has not set forth any explanation for the inability of an EEOC attorney to be present at the depositions set for December 29 and 30, 2004, and January 3, 2005, other than to say that they are not available. In contrast, counsel for the Defendant has set forth court-related conflicts on January 5, 2005, and January 6, 2005, as well as the week of January 10, 2005, for the dates proposed by counsel for the EEOC.
Regardless, the parties are clearly at an impasse. Without attributing responsibility to either party for the failure to resolve this issue without court intervention, and in an effort to expedite the three depositions as well as to provide adequate time for follow-up discovery, the Court now GRANTS the Plaintiff’s Motion for Protective Order [DE 81]. The Court ORDERS that counsel for the parties confer to find mutually agreeable dates and times for the three depositions currently scheduled for December 29, 2004, December 30, 2004, and January 3, 2005, but that January 5, 2005, January 6, 2005, and the week of January 10, 2005, shall not be considered as potential dates and December 29, 2004, December 30, 2004, and January 3, 2005, may still be viable dates for the depositions. The Court strongly SUGGESTS that the parties resolve this dispute without resort to
2

further Court intervention. In addition, the Court sua sponte VACATES the February 1, 2005 discovery deadline and
RESETS the discovery deadline for February 21, 2005. The Court DENIES as moot the request for an expedited briefing schedule [DE 81]. The Court further ADVISES the parties that, in light of the August 15, 2005 jury trial setting,
the Court will look with disfavor on any requests for extension of the dispositive motion deadline. So ORDERED this 14th day of December, 2004. s/ Paul R. Cherry MAGISTRATE JUDGE PAUL CHERRY UNITED STATES DISTRICT COURT
cc: All counsel of record
3

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al.
Plaintiffs, v. U.S. BELL CORPORATION, et al.,
Defendants.

)

)

)

CIVIL ACTION NO.

)

2:03-CV-237-PRC

)

)

)

)

)

)

ORDER This matter is before the Court on Plaintiff EEOC’s Motion to Compel Responses to Deposition Questions and Motion for Sanctions [DE 89], filed by the Equal Employment Opportunity Commission (“EEOC”) on December 9, 2004. The Defendants filed a Response on December 27, 2004. The EEOC filed a Reply on January 4, 2005. This action was filed by the EEOC for alleged violations of Title VII of the Civil Rights Act, 42 U.S.C. § 2000(e) et seq., as amended, and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. The Complaint alleges, in part, that four individual plaintiffs and a class of female employees were subjected to sexual harassment by the Defendants. Michael Norvil has been alleged by the EEOC to be the main perpetrator of sexual harassment by the Defendants. The EEOC deposed Michael Norvil, a former manager of the Defendants, on November 18, 2004. At the deposition, the EEOC asked Mr. Norvil questions about the following subjects to which counsel for the Defendants objected and instructed Mr. Norvil not to answer: 1) his interoffice relationships at Buzz and if he felt he violated the company’s morality policy; 2) which employees he kissed at Buzz; 3) which employees he dated at Buzz;

4) which employees he “messed around with” or had sexual intercourse with at Buzz; 5) if he told the owners that he had sex with an employee; 6) if he told employees about a particular sexual episode; 7) his relationship with a former employee with whom he socialized; 8) what documents he reviewed in preparation for the deposition; 9) if he paid an attorney’s fee to Mr. Johnson; and 10) how many times he had met with Mr. Johnson and who was present for any meetings. The Defendants objected to these questions on the basis of relevance and for questions 8, 9, and 10 on the basis of the attorney-client relationship. These questions were not answered by Mr. Norvil at his deposition. At no time did counsel for the Defendants seek a protective order under Federal Rule of Civil Procedure 30(d)(4). First, the Court finds that the efforts made by the parties during the course of the deposition satisfy the requirement that the parties attempt to resolve this dispute in good faith, and that the EEOC has filed the necessary Local Rule 37.1 certification. The Court next considers the questions that Mr. Norvil was instructed not to answer based on the objection as to relevance. Federal Rule of Civil Procedure 30(d)(1) provides: “Any objection during a deposition must be stated concisely and in a non-argumentative and non-suggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under Rule 30(d)(4).” The general rule is that an instruction not to answer based on relevancy is improper at a deposition. See Fed. R. Civ. P. 30(d)(1); see also Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, 657 F.2d 890, 902 (7th Cir.1981) (citations omitted) (a pre-1993 amendment decision noting that the general rule is that absent a claim of privilege, it is improper for counsel at a deposition to instruct a client not to answer). However, the general rule is not hard and fast, and in some instances, refusing to answer questions may be justified if the questions “unnecessarily touch sensitive areas
2

or go beyond reasonable limits.” Eggleston, 657 F.2d at 903. In this case, the topics raised in subject areas 1-7 posed to Mr. Norvil were not privileged,
nor did they touch any sensitive areas that were not relevant to the cause of action. More importantly, the questions are relevant as they go to the heart of the factual questions at issue in this case, which put Mr. Norvil’s sexual behavior and the nature of his relationships with other employees of the Defendants directly at issue. It is difficult to understand how these topics could be viewed otherwise.
Relevancy, during the discovery process, is delineated by Rule 26(b)(1), which provides in pertinent part:
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . . It is not ground for objection that the information sought would be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1). Mr. Norvil is alleged to be the main perpetrator of the sexual harassment alleged by the Plaintiffs. The fact that consensual sex is not illegal does not make Mr. Norvil’s general sexual conduct with employees undiscoverable, as argued by defense counsel. Who Mr. Norvil kissed at the place of business of the Defendants, the employees with whom he “messed around” or had sexual intercourse, and who he dated is relevant to the claims of sexual harassment, hostile work environment, quid pro quo, constructive discharge, and retaliatory discharge. Even if Mr. Norvil believed that some of the relationships or acts were consensual, which nevertheless goes to Mr. Norvil’s general sexual behavior, some relationships or acts he believes to have been consensual may not have been. Whether Mr. Norvil discussed his relationships with the owners of the Defendants goes to the knowledge of the Defendants as to Mr. Norvil’s behavior. Whether he
3

told other employees about a particular sexual episode goes to a number of issues, including Mr. Norvil’s relationship with employees and whether there was a sexually hostile work environment. In contrast with the Defendants’ assertion, these questions do not seek to disclose Mr. Norvil’s “entire sex life” but rather to limit the questioning to those encounters and relationships related to Mr. Norvil’s employment with the Defendants, where the alleged harassment took place. Def. Br., p. 2.1
Although counsel for Mr. Norvil correctly stated his objection based on relevancy on the record to preserve the objection, it was improper for counsel for Mr. Norvil to instruct Mr. Norvil not to answer questions based on a relevancy objection. On this basis, the Court orders that Mr. Norvil’s deposition be reopened for the purpose of posing the questions counsel directed Mr. Norvil not to answer as well as any questions that reasonably follow therefrom. In addition, the Court orders that the Defendants shall pay the EEOC’s cost in bringing this motion to compel as well as for the cost of the reopened deposition. See Fed. R. Civ. P. 37(a)(4)(A).
The Court next turns to the objections to topics 8-10 on the basis of attorney-client privilege. “The attorney-client privilege protects from disclosure confidential communications made by a client to his attorney.” In re Walsh, 623 F.2d 489, 492 (7th Cir. 1980). “[T]he privilege protects confidential communications, not the attorney-client relationship as a whole.” Id. at 493. “For example, the fact of communication between a known client and his attorney is not a privileged communication.” Id. at 494. “The privilege does not foreclose inquiry into the fact of representation itself or the dates upon which services are rendered as long as the substance of the attorney-client relationship is shielded from disclosure.” Condon v. Petacque, 90 F.R.D. 53, 54 (N.D. Ill. 1981).
1 The Court notes that the Defendants’ brief is not numbered in contravention of Local Rule 5.1(a).
4

In addition, “[i]n the absence of unusual circumstances, the amount of an attorney’s fee and the conditions of his employment do not come within the attorney-client privilege.” Bailey v. Meister Brau, Inc., 55 F.R.D. 211, 214 (N.D. Ill. 1972); see also In re Witnesses Before the Special March 1980 Grand Jury, 720 F.2d 489, 491 (7th Cir. 1984).
Mr. Norvil has not worked for Buzz since February or March 2003, yet counsel for the Defendants represents Mr. Norvil in this case. The EEOC states that, in an effort to discover if any impeaching evidence exists in this regard and whether the attorney-client privilege applied, the EEOC sought to determine the parameters of the relationship between Mr. Norvil and defense counsel by asking questions such as whether Mr. Norvil was paying defense counsel, how many times the two met, and who was present during their meetings.
The Court will consider each of the three topics in turn. First, the EEOC asked Mr. Norvil what documents he had reviewed in preparation for the deposition. The Defendants object on the basis that this question intrudes on the attorney-client relationship. Clearly, the EEOC is not asking about the substance of the communications between Mr. Norvil and his attorney, but rather what documents Mr. Norvil reviewed in preparation for his deposition. Therefore, the Court must consider whether the EEOC is entitled to know which documents, if any, Mr. Norvil reviewed prior to his deposition with the assistance of his attorney. The work product privilege, to the extent that it protects “opinion” product, is an almost absolute privilege. See Fed. R. Civ. P. 26(b)(3); Upjohn Co. v. United States, 449 U.S. 383, 401, 101 S.Ct. 677, 688, 66 L.Ed.2d 584 (1981); Sporck, 759 F.2d at 316; see also Hickman v. Taylor, 329 U.S. 495 (1947) (first recognizing the attorney work product doctrine). “Opinion work product includes such items as an attorney's legal strategy, his intended lines of proof, his evaluation of the
5

strengths and weaknesses of his case, and the inferences he draws from interviews of witnesses.” Sporck, 759 F.2d at 316. The identification itself of the documents selected by an attorney for review by a witness prior to a deposition may reveal important aspects of the attorney’s understanding of the case. Sporck, 759 F.2d at 316; James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 144 (D. Del.1982); Berkey Photo, Inc. v. Eastman Kodak Co., 74 F.R.D. 613 (S.D.N.Y. 1977).
In tension with this privilege, Federal Rule of Evidence 612 generally entitles the EEOC to an inspection of a writing when the writing has been used to refresh memory for the purpose of testifying, either while the witness is testifying or before testifying, if the court determines such review is necessary and is in the interests of justice. See Fed. R. Evid. 612. Rule 612 has generally been applied to depositions through Federal Rule of Civil Procedure 30(c). Rule 612 tends to conflict with the attorney work product doctrine, especially in situations in which the attorney has sifted through a large number of documents to extract those documents the attorney believes important for the witness’ review. See, e.g., McDaniel v. Freightliner Corp., 99 CIV 4292 RMB FM, 2000 WL 303293, at * 3-5 (S.D.N.Y. Mar. 23, 2000) (discussing the interplay between Rule 612 and the work product doctrine); Spork v. Piel, 759 F.2d 312, 313-14 (3d Cir. 1985), cert. denied 106 S.Ct. 232 (1985). Courts are divided on the issue of whether Rule 612 allows for disclosure of such documents over a claim of work product.
Some courts have held that the privilege prevails over the disclosure under Rule 612 and that the documents remained protected. See, e,g. Shelton v. Am. Motors Corp., 805 F.2d 1323, 1328 (8th Cir. 1986); Robinson v. Time Warner, Inc., 187 F.R.D. 144, 147 (S.D.N.Y. 1999) (stating that documents prepared by defense counsel were protected by both the attorney-client privilege and the work product doctrine, and Rule 612 could not be utilized to circumvent the doctrines); Stone
6

Container Corp. v. Arkwright Mut. Ins. Co., 1995 WL 88902, at *4 (N.D. Ill. Feb. 25, 1995) (finding that, where documents were selected for preparation of an attorney's client and had already been produced to plaintiff, Rule 612 did not override the work product doctrine); Parry v. Highlight Indus., 125 F.R.D. 449 (W.D. Mich. 1989) (holding that the plaintiffs failed to establish either a substantial need to review or that disclosure was necessary in the interests of justice for core attorney work product documents that the witness reviewed prior to deposition testimony).
In contrast, other courts have held that the work product doctrine does not protect the selection of documents by an attorney for review prior to testimony when the elements of Rule 612 have been satisfied. See, e.g., Sporck, 759 F.2d at 317 (reasoning that satisfaction of Rule 612 could require revelation of documents collected by an attorney for review by a witness in preparation for testimony but holding that, in that case, the requirements of Rule 612 had not been met); Nutramax Labs., Inc. v. Twin Labs., Inc., 183 F.R.D. 458, 469 (D. Md. 1998) (finding that the otherwise discoverable documents not containing mental impressions or legal theories of counsel, even if assembled by counsel, were not subject to the work product doctrine, due to waiver and Rule 612); U.S. v. 22.80 Acres of Land, 107 F.R.D. 20, 25 (D.C. Cal.1985) (recognizing that Rule 612 has been interpreted to permit discovery of writings that a witness reviewed prior to a deposition for the purpose of refreshing recollection, that any privilege or work product protection against disclosure is thus deemed waived as to those portions so reviewed, and that the court then may order disclosure if, in its discretion, it determines disclosure is in the interest of justice) (citing In re Comair Air Disaster Litig., 100 F.R.D. 350, 353 (E.D. Ky.1983); James Julian, 93 F.R.D. at 138; Wheeling-Pittsburgh Steel Corp. v. Underwriters Labs., Inc., 81 F.R.D. 8, 10 (N.D. Ill.1978)); Marshall v. United States Postal Service, 88 F.R.D. 348, 350 (D. D.C. 1980) (holding that “once a
7

document is used to refresh the recollection of a witness, privileges as to that document have been
waived”); Berkey Photo, 74 F.R.D. at 616-17. In Sporck, the Court reasoned:
Indeed, if respondent's counsel had first elicited specific testimony from petitioner, and then questioned petitioner as to which, if any, documents informed that testimony, the work product petitioner seeks to protect-- counsel's opinion of the strengths and weaknesses of the case as represented by the group identification of documents selected by counsel--would not have been implicated. Rather, because identification of such documents would relate to specific substantive areas raised by respondent's counsel, respondent would receive only those documents which deposing counsel, through his own work product, was incisive enough to recognize and question petitioner on. The fear that counsel for petitioner's work product would be revealed would thus become groundless.
759 F.2d at 318.
Being persuaded by this reasoning and having carefully reviewed the previous court
decisions on this issue, the Court finds that the selection of documents by an attorney for review by
a witness in preparation for a deposition, in and of itself, is protected by the work product doctrine,
but that those documents may be inquired into individually by opposing counsel if the requirements
of Rule 612 are met. Sporck, 759 F.2d at 317; see also J. Edward Robinson v. Time Warner, Inc.,
187 F.R.D. 144, 147 (S.D.N.Y. 1999) ("While Levien did review certain documents prior to his
deposition, however, this review alone does not automatically trump claims of privilege or work
product protection. Robinson must 'not only show that [Levien] . . . reviewed the documents in
preparation for his deposition, but that he relied upon them in testifying.' "); Bowne of New York
City, Inc. v. AmBase Corp., 150 F.R.D. 465, 494 (S.D.N.Y. 1993) ("As for Rule 612, AmBase must
show not only that the witness reviewed the documents in preparation for his deposition, but that
he relied upon them in testifying."); Leucadia, Inc. v. Reliance Ins. Co., 101 F.R.D. 674, 679
(S.D.N.Y. 1983) ("The mere fact that a deposition witness looked at a document protected by the
attorney-client privilege in preparation for a deposition is an inadequate reason to conclude that the
8

privilege was destroyed."); Jos. Schlitz Brewing Co. v. Muller & Phipps (Hawaii), Ltd., 85 F.R.D. 118 (W.D. Mo. 1980) (holding that there was no waiver when the deponent reviewed a privileged file and there was no showing of an actual use of the documents).
As set forth above, Rule 612 requires that 1) the witness use the writing to refresh his memory; 2) the witness use the writing for the purpose of testifying; and 3) the court determine that production is necessary in the interests of justice. Fed. R. Evid. 612; Sporck, 759 F.2d at 317. At this point in Mr. Norvil’s deposition, it is unknown to the Court what types of documents, if any, were reviewed by Mr. Norvil, if any of the documents themselves are work product, if the documents have already been produced to the EEOC in the course of discovery, or to what extent the selection of those documents by the attorney hints at the attorney’s opinion based on the number of documents selected from the number of documents available. The Court trusts that, with the guidelines set forth in this Order, counsel for Mr. Norvil will be able to determine which documents, if any, should be disclosed to the EEOC based on whether Mr. Norvil reviewed the document in preparation for his deposition, whether he relied on it during his deposition testimony, and whether it is in the interests of justice to disclose the document after considering the extent to which the document was relied upon and the extent to which Mr. Norvil revealed its contents during the deposition.
The second topic objected to is based on the question posed by the EEOC: “Are you yourself paying Mr. Johnson for his legal services to you?” The general rule is that information about payment of attorney fees is not privileged. See In re Subpoenaed Grand Jury Witness, 171 F.3d 511 (7th Cir. 1999) (citing In re Witnesses Before the Special March 1980 Grand Jury, 720 F.2d at 491). However, there is an exception when revealing the identify of the individual who paid the attorney
9

fees would violate the attorney-client privilege because revealing the identity would disclose a confidential communication, such as the motive to engage in a criminal activity. Id. at 513-14. This exception does not appear to apply in these circumstances nor do the Defendants attempt to suggest how the exception might apply. Therefore, this question is not protected by the attorney-client privilege.
Third, the EEOC asked how many times Mr. Norvil had met with defense counsel and who was present during those meetings. This question does not attempt to seek information pertaining to the communications with counsel but rather attempts to determine facts surrounding Mr. Norvil’s representation. In fact, questions regarding who was present during certain communications may establish that the communications were not confidential. This question is not protected by the attorney-client privilege.
Based on the foregoing, the Court now GRANTS the Plaintiff EEOC’s Motion to Compel Responses to Deposition Questions and Motion for Sanctions [DE 89]. The Court ORDERS that Mr. Norvil appear at the offices of the Equal Employment Opportunity Commission, 101 West Ohio Street, Suite 1900, Indianapolis, Indiana, to provide complete answers to the EEOC’s questions, including any reasonable follow-up questions, not inconsistent with this Order. The Court ORDERS that counsel for the parties are to arrange a convenient time for the continuation of this deposition, at a time when the undersigned Magistrate Judge is available by telephone to rule on objections, if necessary.
Further, the Defendants are ORDERED to pay the EEOC for reasonable expenses, including attorney fees and court reporter fees, incurred (a) to bring this motion and (b) to finish the deposition of Mr. Norvil. Counsel for the EEOC are ordered to submit a certification of fees and expenses to
10

the Court within ten days of the completion of Mr. Norvil’s deposition. So ORDERED this 26th day of January, 2005. s/ Paul R. Cherry MAGISTRATE JUDGE PAUL R. CHERRY UNITED STATES DISTRICT COURT
cc: All counsel of record
11

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

CAUSE NO.: 2:03-CV-237-PRC

)

U.S. BELL CORPORATION, LINK

)

TECHNOLOGIES, CORP., d/b/a U.S. BELL,

)

and BUZZ TELECOM, CORP.,

)

)

Defendants.

)

ORDER This matter is before the Court sua sponte. On February 16, 2005, the Equal Employment

Opportunity Commission filed a Motion to Quash Deposition Subpoena [DE 121]. The deposition

sought to be quashed is set for February 17, 2005.

The Court now ORDERS the Defendants to file a Response to the Motion to Quash on or

before February 17, 2005 at 2:00 p.m. If the Defendants require a brief extension of this deadline, the

Defendant should contact the Court by telephone.

So ORDERED this 16th day of February, 2005.

s/ Paul R. Cherry MAGISTRATE JUDGE PAUL R. CHERRY UNITED STATES DISTRICT COURT
cc: All counsel of record by fax on February 16, 2005

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

CAUSE NO.: 2:03-CV-237-PRC

)

U.S. BELL CORPORATION, LINK

)

TECHNOLOGIES, CORP., d/b/a U.S. BELL, )

BUZZ TELECOM, CORP.,

)

)

Defendants.

)

MEMORANDUM OF OPINION AND ORDER

This matter is before the Court on Defendants’ Petition for Payment of Attorney Fees and

Court Reporter Fees [DE 132], filed by the Defendants on March 11, 2005. The Plaintiff, Equal

Employment Opportunity Commission (“EEOC”) filed a Response on March 15, 2005, and the

Defendants filed a Reply on March 28, 2005.

On January 28, 2005, the Court ordered counsel for the Defendants to provide a verified certification of their attorney fees incurred resulting from the continuation of the deposition of Kelly Adwell Cripe. On March 11, 2005, the Defendants filed their Petition for Attorney Fees requesting a total of $11,150.00 in attorney fees and $1,394.96 in payment of fees charged by the court reporter. The Defendants request compensation at the rate of $250 an hour for 8.4 hours spent researching and drafting the Defendants’ Motion to Exclude Kelly Adwell Cripe as a Witness and the Reply to the EEOC’s Response thereto, 1.0 hours spent preparing and/or revising required pleadings, notices, subpoenas and letters rescheduling the continued deposition of Kelly Adwell Cripe, 17.1 hours spent reviewing and preparing for the continuation of the deposition of Kelly Adwell Cripe, 16.1 hours spent deposing Kelly Adwell Cripe, and 2.0 hours spent preparing the petition. In addition, the

Defendants indicate that they were charged $1394.96 for the services performed by the court reporter utilized for the continuation of the deposition. In the Response Brief, the EEOC challenges aspects of the fee request regarding the number of hours but does not challenge the hourly rate requested.
The district court has broad discretion to award attorneys' fees based on its “superior understanding of the litigation.” Fenster v. Tepfer and Spitz, Ltd., 301 F.3d 851, 860 (7th Cir. 2002) (citing Jaffee v. Redmond, 142 F.3d 409, 412-13 (7th Cir.1998)). “The party seeking the fee award bears the burden of proving the reasonableness of the hours worked and the hourly rates claimed.” Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 550 (7th Cir. 1999). “Counsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The Court will review each aspect of the fee petition in turn.
First, the Court considers the “8.4 hours spent reviewing, researching, drafting and/or editing the defendants’ Motion to Exclude Kelly Adwell Cripe as a Witness and Reply to plaintiff’s Response thereto.” The Motion did not constitute a request that the deposition of Ms. Cripe be continued and concluded. The Court’s January 28, 2005 Order awarded costs and reasonable attorney fees incurred to complete the remainder of Ms. Cripe’s deposition. The Order did not award fees for the preparation of the underlying Motion. Accordingly, the Court denies the request for these 8.4 hours.
Second, the Court denies the request for 1.0 hours noticing the deposition of Ms. Cripe, in part because both Attorney Johnson and Attorney Rappa indicate they each spent .5 hours noticing
2

the deposition, which appears on its face excessive, and, in part, because the Court did not award the EEOC fees for noticing the deposition of Michael Norvil.
Next, the EEOC objects to paying fees for the preparation and presence of a second attorney (Attorney Steven Johnson), who was present at the deposition but asked no questions of the deponent. It is not clear from the Defendants’ petition or their Reply Brief how Attorney Johnson’s preparation for and presence at the deposition was reasonably necessary in light of the Court’s January 28, 2005 Order. Accordingly, the Court denies the request for preparation and attendance fees by Attorney Johnson.
In addition, the EEOC objects to attorney preparation in this matter more generally because the purpose of the continuation of the deposition of Ms. Cripe was to complete the deposition that counsel for the Defendants had prepared for originally, an opportunity the Defendants were denied when the deposition was terminated by the EEOC. Having considered the briefs of both parties, the Court finds that it is difficult for the Court to attempt to determine somehow what preparation was necessary to “continue” the original deposition, as the Court ordered in its January 28, 2005 Order. The Court relies on the sworn affidavit of Attorney Rappa, that 8.8 hours were reasonably necessary for the preparation of the continuation of Ms. Cripe’s deposition. To the extent that the EEOC requests that the Court reconsider its prior ruling awarding fees, the Court denies this request. Therefore, the Court grants 8.8 hours of preparation time by Attorney Rappa.
For the time Attorney Rappa spent deposing Ms. Cripe, the Court will award 5.5 hours. The Court reporter’s bill indicates 5.5 hours for attendance at the deposition. The deposition was taken at the office of counsel for the Defendants, which necessarily implies that additional travel time was not a consideration; and counsel for the Defendants has not explained the basis for requesting hours
3

beyond the 5.5 indicated on the court reporter’s invoice. The Defendants also request 2.0 hours for the preparation of the Petition for Payment of
Attorney Fees–1.4 hours by Attorney Johnson and .6 hours by Attorney Rappa. The Petition is approximately one page in length, and the Affidavits submitted by the attorneys are also each approximately one page in length. The Court finds that the 2.0 hours for the Petition is excessive, and the Court reduces the request to 1.0 hour.
Finally, the Court considers the $1,394.96 that the Defendants request for fees charged by the court reporter for the deposition of Ms. Cripe. In the Response Brief, the EEOC objects to reimbursing the Defendants for the court reporter fee for the continuation of Ms. Cripe’s deposition on March 1, 2005, because the court reporter already billed the EEOC directly in an amount of $939.93 for 5.5 hours of attendance, 209 pages plus two pages of certified questions, 36 pages of exhibit photocopying, an ASCII disk, a certified mail signature, and postage/delivery charges. The March 9, 2005 court reporter invoice attached to the EEOC’s Response Brief further indicates that “per the EEOC the sealed original will go to Mr. Rappa.” In their Reply Brief, the Defendants represent that “the court reporter charged the Defendants with the cost of the original copy of the deposition (not the plaintiffs), and therefore, the Defendants have incurred $1,394.96 in deposition costs related to the completion of Ms. Cripe’s deposition.” Def. Reply, p. 2. The Defendants further reason that “the Plaintiff, not the Defendants would have otherwise had to bear the cost of the original deposition had Ms. Cripe’s deposition not been unilaterally terminated on November 8, 2004.” Def. Reply, p. 3. It appears that the Defendants may be requesting $1,394.96 in fees related in whole or in part to the initial deposition of Ms. Cripe on November 8, 2004; however, the Defendants have not provided a copy of a court reporter invoice setting forth the basis for this
4

request. The Court agrees that the Plaintiff EEOC should have been responsible for the court reporter cost for the original deposition on November 8, 2004, because the EEOC noticed that deposition, but it is not clear why the EEOC should pay for the Defendants’ copy of the original November 8, 2004 deposition, a cost that would have been the Defendants’ responsibility even if the EEOC had not terminated the deposition. Accordingly, the request for reimbursement of court reporter fees is denied without prejudice.

Having considered the Petition, the Court ORDERS the Plaintiff EEOC to pay to Defendants' attorneys, Johnson & Rappa, LLC, the total sum of $3,825.00.1 The Court further ORDERS that the payment shall be made within sixty (60) days of the entry of this Order.

SO ORDERED this 4th day of April, 2005.

cc: All counsel of record

s/ Paul R. Cherry MAGISTRATE PAUL R. CHERRY UNITED STATES DISTRICT COURT

1 This total is comprised of 8.8 hours of preparation time by Attorney Rappa, 5.5 hours of deposition time by Attorney Rappa, and 1.0 hour spent preparing the Petition for Payment. The rate is calculated at $250 an hour.
5

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al.
Plaintiffs, v. U.S. BELL CORPORATION, et al.,
Defendants.

)

)

)

CIVIL ACTION NO.

)

2:03-CV-237-PRC

)

)

)

)

)

)

MEMORANDUM OPINION AND ORDER This matter is before the Court on Plaintiff Equal Employment Opportunity Commission’s Motion to Compel Defendants’ Responses to Sixth Request for Production of Documents [DE 138], filed by the Equal Employment Opportunity Commission (“EEOC”) on March 24, 2005.

PROCEDURAL BACKGROUND On December 14, 2004, this Court entered an Order setting the discovery deadline for February 21, 2005. On January 18, 2005, the EEOC served upon the Defendants its Sixth Request for Production of Documents. The Defendants’ Responses were due on February 21, 2005, the last day of the discovery period. On March 8, 2005, not having received the Defendants’ Responses, the EEOC sent a letter to counsel for the Defendants inquiring into the Responses. On March 18, 2005, counsel for the Defendants stated that “discovery in this matter has closed.” On March 24, 2005, the EEOC filed its Motion to Compel. The Defendants filed a Response on April 11, 2005, and the EEOC filed a Reply on April 15, 2005.

ANALYSIS In this matter, the EEOC served its Sixth Request for Production on January 18, 2005, which allowed sufficient time for the Defendants’ Responses to be served by the close of discovery on February 21, 2005. See NIPSCO v. Colorado Westmoreland, Inc., 112 F.R.D. 423 (N.D. Ind. 1986) (holding that discovery must be completed within the time established by the court, which includes serving requests for written discovery with sufficient time for the responses to be filed within the discovery period). Therefore, the only issue remaining is whether the EEOC’s Motion to Compel was timely filed. First, the Court notes that the Defendants did not file a Motion for Protective Order prior to the close of discovery in objection to the content of the Sixth Request for Production. Second, the EEOC sent a letter via fax and mail to counsel for the Defendants on March 8, 2005, inquiring into a number of discovery matters, including the Defendants’ failure to respond to the EEOC’s Sixth Request for Production. The EEOC requested that the Responses be provided by March 18, 2005. On March 18, 2005, the Defendants responded that discovery in this matter had closed. On March 24, 2005, the EEOC filed its Motion to Compel. The Court finds that the EEOC’s Motion to Compel was timely filed. The EEOC waited two weeks after the Defendants’ failure to timely respond to the Sixth Request for Production to contact the Defendants regarding their failure to respond. Although the Court finds that two weeks may have been a somewhat lengthy delay in light of the close of discovery on February 21, 2005, the Court nevertheless finds that two weeks, as a courtesy to allow for an untimely response by the Defendants, is not unreasonable. Compare Rosetto v. Pabst Brewing Co., 217 F.3d 539, 542 (7th Cir. 2000) (holding that a discovery motion was untimely when filed two months after the close of
2

discovery); EEOC v. United States Steel, Civ. No. H87-536, 1988 WL 155942, at *1 (N.D. Ind. Aug. 26, 1988) (holding that a motion to compel was untimely when filed after the close of discovery and when the EEOC could have sought court assistance almost one month prior to the expiration of the discovery period). The Court notes that the EEOC’s correspondence also addressed other discovery disputes in addition to the Sixth Request for Discovery. Once the EEOC received the Defendants’ reply on March 18, 2005, the EEOC filed its Motion to Compel shortly thereafter on March 24, 2005. In addition, the Motion to Compel was filed prior to the dispositive motion deadline of March 30, 2005. Compare Packman v. Chicago Tribune Co., 267 F.3d 628, 646-47 (7th Cir. 2001) (upholding the district court’s denial of a motion to compel filed after the close of discovery and after a motion for summary judgment was filed). The Court finds that the EEOC took the reasonable steps necessary under Local Rule 37.1 to attempt to resolve this conflict informally without court intervention, even though taken after the close of the discovery period. Those steps would not have been necessary if the Defendants had timely responded to the Sixth Request for Production or filed a Motion for Protective Order.
Based on the foregoing, the Court now GRANTS the Plaintiff Equal Employment Opportunity Commission’s Motion to Compel Defendants’ Responses to Sixth Request for Production of Documents [DE 138]. The Court ORDERS the Defendants to respond to the EEOC’s Sixth Request for Production of Documents on or before May 16, 2005.
So ORDERED this 25th day of April, 2005. s/ Paul R. Cherry MAGISTRATE JUDGE PAUL R. CHERRY UNITED STATES DISTRICT COURT
cc: All counsel of record
3

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
U.S. BELL CORPORATION; LINK TECHNOLOGIES, CORP., d/b/a U.S. BELL; and BUZZ TELECOM CORP.,
Defendants.

) ) ) ) ) ) CAUSE NO.: 2:03-CV-237-PRC ) ) ) )
) )

VERDICT: Amanda Bernard
Ouestion 1 (choose a or b):
o a. We, the jury, unanimously find in favor of the plaintiff United States Equal Employment
Opportunity Commission with respect to its claim that Amanda Bernard was subjected to a hostile or abusive work environment because of her sex.
tJ( b. We, the jury, unanimously find in favor of defendants Buzz Telecom with respect to all
claims involving Amanda Bernard (Uyou check response b, go no further.)

Ouestion 2 (choose a or b)
o a. We, the jury, unanimously find in favor ofthe plaintiff United States Equal Employment
Opportunity Commission with respect to its claim that Amanda Bernard was constructively discharged.
o b. We, the jury, unanimously find in favor of defendants Buzz Telecom with respect to the
EEOC's claim that Amanda Bernard was constructively discharged. (Proceed to the next question.)

... ..

Question 3

We, the jury, award compensatory damages for the benefit of Amanda Bernard in the following amount: $ _ _ _ _ _ _ _ __
(Proceed to the next question.)

Question 4 We, the jury, award punitive damages for the benefit of Amanda Bernard in the following
amount: $ - - - - - - - - - - -

Dated: } - Z3- v,-

Presiding Juror

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
U.S. BELL CORPORATION; LINK TECHNOLOGIES, CORP., d/b/a U.S. BELL; and BUZZ TELECOM CORP.,
Defendants.

) ) ) ) ) ) CAUSE NO.: 2:03-CV-237-PRC ) ) ) ) ) )

VERDICT: Kelly Cripe
Question 1 (choose a or b):
o a. We, the jury, unanimously find in favor ofthe plaintiff United States Equal Employment
Opportunity Commission with respect to its claim that Kelly Cripe was subjected to a hostile or abusive work environment because of her sex. ~ b. We, the jury, unanimously find in favor of defendants Buzz Telecom with respect to all claims involving Kelly Cripe.
(If you check response b, go no further.)

Question 2 We, the jury, award compensatory damages for the benefit of Kelly Cripe in the following amount:
$---------------(Proceed to the next question.)

Question 3 We, the jury, award punitive damages for the benefit ofKelly Adwell Cripe in the following amount: $_---------------

Dated: _~Y_---.:L~]~-cJ----'Lr_ _

Presiding Juror

------------------------------

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
U.S. BELL CORPORATION; LINK TECHNOLOGIES, CORP., d/b/a U.S. BELL; and BUZZ TELECOM CORP.,
Defendants.

) ) ) ) ) ) CAUSE NO.: 2:03-CV-237-PRC ) ) ) ) ) )

VERDICT: Lisa Hogan
Ouestion 1 (choose a or b):
o a. We, the jury, unanimously find in favor ofthe plaintiff United States Equal Employment
Opportunity Commission with respect to its claim that Lisa Hogan was subjected to a hostile or abusive work environment because of her sex.
IX' b. We, the jury, unanimously find in favor of defendants Buzz Telecom with respect to all
claims involving Lisa Hogan. (If you check response b, go no further.)

Question 2
We, the jury, award compensatory damages for the benefit of Lisa Hogan in the following
amount: $ -----------------
(Proceed to the next question.)

Question 3 We, the jury, award punitive damages for the benefit ofLisa Hogan in the following amount:
$----------------

Dated:

Presiding Juror

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
U.S. BELL CORPORATION; LINK TECHNOLOGIES, CORP., d/b/a U.S. BELL; and BUZZ TELECOM CORP.,
Defendants.

) ) ) ) ) ) CAUSE NO.: 2:03-CV-237-PRC ) ) ) ) ) )

VERDICT: Lisa Lacefield

Ouestion 1 (choose a or b):

o

a. We, the jury, unanimously find in favor ofthe plaintiff United States Equal Employment

Opportunity Commission with respect to its claim that Lisa Lacefield was subjected to a hostile or

abusive work environment because of her sex.

IE' b. We, the jury, unanimously find in favor of defendants Buzz Telecom with respect to all

claims involving Lisa Lacefield.

(Jfyou check response b, go no further.)

Ouestion 2 (choose a or b)

o

a. We, the jury, unanimously find in favor ofthe plaintiff United States Equal Employment

Opportunity Commission with respect to its claim that Lisa Lacefield was constructively discharged.

o

b. We, the jury, unanimously find in favor of defendants Buzz Telecom with respect to the

EEOC's claim that Lisa Lacefield was constructively discharged.

(Proceed to the next question.)

Question 3 We, the jury, award compensatory damages for the benefit ofLisa Lacefield in the following
amount: $ -------------------
(Proceed to the next question.)
Question 4 We, the jury, award punitive damages for the benefit of Lisa Lacefield in the following
amount: $ -------------------

Dated:

Presiding Juror

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
U.S. BELL CORPORATION; LINK TECHNOLOGIES, CORP., d/b/a U.S. BELL; and BUZZ TELECOM CORP.,
Defendants.

) ) ) ) ) ) CAUSE NO.: 2:03-CV-237-PRC ) ) ) ) ) )

VERDICT: Waushara Person
Question 1 (choose a or b):
o a. We, the jury, unanimously find in favor ofthe plaintiff United States Equal Employment
Opportunity Commission with respect to its claim that Waushara Person was subjected to a hostile or abusive work environment because of her sex. ~ b. We, the jury, unanimously find in favor of defendants Buzz Telecom with respect to all claims involving Waushara Person.
(Jfyou check response b, go no further.)

Question 2 We, the jury, award compensatory damages for the benefit of Waushara Person in the
following amount: $ _ _ _ _ _ _ _ __ (Proceed to the next question.)

-------~------------------

----

Question 3 We, the jury, award punitive damages for the benefit of Waushara Person in the following
amount: $ --------------

Dated: g- Z}- V:J

Presiding Juror

 
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CONMAG, PROTO, TERMED
U.S. District Court Northern District of Indiana [LIVE] USDC Northern Indiana (Hammond)
CIVIL DOCKET FOR CASE #: 2:03-cv-00237-PRC

EEOC v. US Bell Corp, et al Assigned to: Magistrate Judge Paul R Cherry Demand: $0 Case in other court: USCA, 05-04091
USCA, 05-04091 Cause: 42:2000 Job Discrimination (Sex)
Plaintiff
Equal Employment Opportunity Commission

Date Filed: 06/16/2003 Date Terminated: 08/23/2005 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff
represented by Jo Ann Farnsworth Equal Employment Opportunity Commission - Ind/IN 101 W Ohio Street Suite 1900 Indianapolis, IN 46204-4203 317-226-7949 Fax: 317-226-5571 Email: joann.farnsworth@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kenneth L Bird Equal Employment Opportunity Commission - Ind/IN 101 W Ohio Street Suite 1900 Indianapolis, IN 46204-4203 317-226-7204 Fax: 317-226-5571 Email: Kenneth.Bird@EEOC.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant US Bell Corporation

represented by Lizabeth R Nadzan Suber & Davis 212 E Lincolnway Suite 201 Valparaiso, IN 46383 219-548-2880 Fax: 219-548-2881 Email: suberdavis@aol.com TERMINATED: 08/12/2004 LEAD ATTORNEY

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Defendant Link Technologies Corp doing business as US Bell
Defendant Buzz Telecom Corp

ATTORNEY TO BE NOTICED
Michael J Rappa Johnson & Rappa LLC 250 E 90th Drive Merrillville, IN 46410 219-769-0087 Fax: 219-769-0092 Email: mjr@JohnsonRappa.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven A Johnson Johnson & Rappa LLC 250 E 90th Drive Merrillville, IN 46410 219-769-0087 Fax: 219-769-0092 Email: saj@JohnsonRappa.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lizabeth R Nadzan (See above for address) TERMINATED: 08/12/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J Rappa (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven A Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lizabeth R Nadzan (See above for address) TERMINATED: 08/12/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J Rappa (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Intervenor Defendant Kurtis Kintzel individually and in his corporate capacity TERMINATED: 08/03/2005
Intervenor Defendant Keanan Kintzel individually and in his corporate capacity TERMINATED: 08/03/2005 Intervenor Defendant Gene Chill individually and in his corporate capacity TERMINATED: 08/03/2005 Intervenor Defendant Link Technologies Corp TERMINATED: 08/03/2005 doing business as U S Bell TERMINATED: 08/03/2005 Intervenor Defendant U S Bell Corporation TERMINATED: 08/03/2005 Intervenor Defendant Buzz Telecom Corp TERMINATED: 08/03/2005 Intervenor Plaintiff
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Steven A Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel A Gioia Spangler Jennings & Dougherty PC Mer/IN 8396 Mississippi Street Merrillville, IN 46410-6398 219-769-2323 Fax: 219-769-5007 Email: dgioia@sjdlaw.com TERMINATED: 08/04/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED Steven A Johnson (See above for address) ATTORNEY TO BE NOTICED
represented by Steven A Johnson (See above for address) ATTORNEY TO BE NOTICED
represented by Steven A Johnson (See above for address) ATTORNEY TO BE NOTICED
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Joshua Childs TERMINATED: 08/03/2005
Intervenor Plaintiff Tiffany Childs (Sims) TERMINATED: 08/03/2005
Intervenor Plaintiff Beatrice Johnson TERMINATED: 08/03/2005

represented by James T McNiece Spangler Jennings & Dougherty PC Mer/IN 8396 Mississippi Street Merrillville, IN 46410-6398 219-769-2323 Fax: 219-769-5007 Email: jmcniece@sjdlaw.com TERMINATED: 09/23/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew J Arnold Ferngren Arnold & Busse LLP Seven Napoleon Street Valparaiso, IN 46383 219-464-1162 Fax: 219-464-0941 Email: mjarnold@sevennapoleon.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel A Gioia (See above for address) ATTORNEY TO BE NOTICED
represented by James T McNiece (See above for address) TERMINATED: 09/23/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew J Arnold (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel A Gioia (See above for address) ATTORNEY TO BE NOTICED
represented by James T McNiece (See above for address) TERMINATED: 09/23/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew J Arnold

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Intervenor Plaintiff
Renee Roby TERMINATED: 08/03/2005

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel A Gioia (See above for address) ATTORNEY TO BE NOTICED
represented by James T McNiece (See above for address) TERMINATED: 09/23/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew J Arnold (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel A Gioia (See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/16/2003 06/16/2003 06/27/2003 06/27/2003 07/10/2003 07/10/2003 07/10/2003 07/16/2003

#

Docket Text

1 COMPLAINT ( Number of Summon(es) issued: 3 ) Jury demand by: plaintiff Amt. of filing fee: waived Receipt #: (plm) (Entered: 06/18/2003)
2 ATTORNEY APPEARANCE for plaintiff EEOC by Jo Ann Farnsworth (plm) (Entered: 06/18/2003)
3 ATTORNEY APPEARANCE for defendant Buzz Telecom Corp by Steven A Johnson (plm) (Entered: 06/27/2003)
4 ATTORNEY APPEARANCE for defendant Buzz Telecom Corp by Lizabeth R Hopkins (plm) (Entered: 06/27/2003)
5 RETURN OF SERVICE executed upon defendant US Bell Corp on 6/25/03 (plm) (Entered: 07/10/2003)
6 RETURN OF SERVICE executed upon defendant Link Technl Corp on 6/25/03 (plm) (Entered: 07/10/2003)
7 RETURN OF SERVICE executed upon defendant Buzz Telecom Corp on 6/26/03 (plm) (Entered: 07/10/2003)
8 ATTORNEY APPEARANCE for defendant US Bell Corp, defendant Link Technl Corp by Lizabeth R Hopkins (plm) (Entered: 07/16/2003)

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07/16/2003 07/16/2003 08/26/2003 10/07/2003 10/10/2003 10/10/2003 10/10/2003
10/21/2003 11/07/2003
11/07/2003 12/03/2003 12/03/2003 12/04/2003

9 ATTORNEY APPEARANCE for defendant US Bell Corp, defendant Link Technl Corp by Steven A Johnson (plm) (Entered: 07/16/2003)
10 ANSWER AND AFFIRMATIVE DEFENSES by defendant US Bell Corp, defendant Link Technl Corp, defendant Buzz Telecom Corp to complaint [1-1]; jury demand (plm) (Entered: 07/16/2003)
11 ORDER by Judge James T. Moody Case referred to Mag Judge Andrew P. Rodovich for all non-dispositive pretrial motions (cc: all counsel) (plm) (Entered: 08/26/2003)
12 ORDER by Chief Judge Robert L. Miller Jr Case referred to Magistrate Paul R. Cherry (cc: all counsel) (smb) (Entered: 10/10/2003)
13 MOTION to intervene of proposed plaintiffs Joshua Childs, Tiffany (Sims) Childs, Beatrice Johnson and Renee Roby (Original complaint housed in file) (plm) Modified on 10/14/2003 (Entered: 10/14/2003)
14 ATTORNEY APPEARANCE for intervenor plaintiff Joshua Childs, intervenor plaintiff Tiffany Childs (Sims), intervenor plaintiff Beatrice Johnson, intervenor plaintiff Renee Roby by Matthew J Arnold (plm) (Entered: 10/14/2003)
13 MEMORANDUM by intervenor plaintiff Joshua Childs, intervenor plaintiff Tiffany Childs (Sims), intervenor plaintiff Beatrice Johnson, intervenor plaintiff Renee Roby in support of motion to intervene of proposed plaintiffs Childs, Tiffany (Sims) Childs, Beatrice Johnson and Renee Roby [13-1] (plm) (Entered: 10/17/2003)
15 ORDER by Magistrate Paul R. Cherry ;teleph init pretrial conference 2:30 12/4/03 before Magistrate Paul R. Cherry; consent forms sent (cc: all counsel) (smb) (Entered: 10/21/2003)
16 ORDER granting [13] Motion to Intervene. Clerk is directed to modify the docket to reflect that Joshua Childs, Tiffany (Sims) Childs, Beatrice Johnson, and Renee Roby have been granted leave to intervene as party-plaintiffs. Signed by Judge Paul R Cherry on 11/7/03. (plm, ) (Entered: 11/14/2003)
17 Intervenor COMPLAINT , filed by Joshua Childs, Tiffany Childs (Sims), Beatrice Johnson, Renee Roby.(plm, ) (Entered: 11/24/2003)
18 REPORT of Rule 26(f) Planning Meeting. (plm, ) (Entered: 12/04/2003)
20 REPORT of Rule 26(f) Planning Meeting. (plm, ) (Entered: 12/11/2003)
19 Minute Entry for proceedings held before Judge Paul R Cherry: Teleph Rule 16 Preliminary Pretrial Conference held on 12/4/2003. Pltf by JoAnn Farnsworth. Dft by L Hopkins. Intervenor Pltf by J McNiece. Dft US Bell Corp to make preliminary TR26 disclosures by 12/12/03; Dft US Bell Corp has no objection to Report of Parties' Planning Meeting filed 12/3/03 signed by Pltf, Interv Pltf. Dft US Bell to file w/Court its signed Report of Parties' Planning Meeting in accordance with Crt's instruction this same date. Rule 16 Prelim Pretrial Conference continued to 2/12/2004 09:20 AM before Magistrate Judge Paul R Cherry. Crt to initiate conference. (smb, ) (Entered: 12/08/2003)

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12/12/2003 12/23/2003 01/20/2004 01/20/2004 01/20/2004 02/12/2004
02/18/2004 02/25/2004 02/25/2004 02/25/2004 02/25/2004 03/17/2004 03/23/2004

21 Voluntary Initial DISCLOSURES filed by Buzz Telecom Corp, Link Technologies Corp, US Bell Corporation.(plm, ) (Entered: 12/16/2003)
22 ANSWER to 17 Intervenor Complaint by Buzz Telecom Corp, Gene Chill, Keanan Kintzel, Kurtis Kintzel, Link Technologies Corp, US Bell Corporation. (Attachments: # 1 # 2)(Johnson, Steven) (Entered: 12/23/2003)
23 Summons Issued as to Kurtis Kintzel. (plm, ) (Entered: 01/20/2004)
24 Summons Issued as to Gene Chill. (plm, ) (Entered: 01/20/2004)
25 Summons Issued as to Keanan Kintzel. (plm, ) (Entered: 01/20/2004)
26 Scheduling Conference held on 2/12/2004 before Mag Judge Paul R Cherry. Pltf by Jo Ann Farnsworth. Dfns by L Hopkins, J McNiece, M Arnold. CASE MANAGEMENT ORDER ENTERED: Pltf expert witness disclosures and reports due to dfns by 8/30/04; dfns expert witness disclosures and reports due to pltf by 10/15/04. Amended Pleadings to be filed by 3/1/2005. Discovery to be completed by 2/1/2005. Dispositive Motions and Daubert Motions, if any, to be filed by 3/30/2005. Response Brief(s) due 4/29/05; Reply Brief(s) due 5/16/05. Jury Trial (2 week primary) set for 8/15/2005 to proceed through week 8/22/05 09:00 AM in Hammond before Senior Judge James T Moody. Final Pretrial Conference set for 8/4/2005 09:00 AM before Senior Judge James T Moody. Pltf to submit wit-exhibit list for inclusion in PTO to lead dft cnsl (L Hopkins) by 11/1/04. Dfts to submit wit-exhib list for inclusion in PTO to lead dft cnsl (L Hopkins) by 12/1/04. Lead dft cnsl to prepare and file Final PTO. Order Cont Trial to follow.(smb) (Entered: 02/18/2004)
27 ORDER Controlling Final Pretrial Conference and Trial. Signed by Judge Paul R Cherry on 2/18/04. (plm, ) (Entered: 02/19/2004)
NOTICE OF REASSIGNMENT OF CASE TO MAGISTRATE JUDGE upon full consent of parties; case reassigned to Magistrate Judge Paul R Cherry. The scheduling order entered on 2/12/04 (DE 26) remains INTACT.(smb) (Entered: 02/25/2004)
28 CERTIFICATION of Informal Conference to Settle Discovery Dispute by Equal Employment Opportunity Commission (plm, ) (Entered: 03/01/2004)
29 MOTION to Compel Defendants' Responses to Interrogatories and Production of Documents by Plaintiff Equal Employment Opportunity Commission. (plm, ) (Entered: 03/01/2004)
30 MEMORANDUM in Support of 29 MOTION to Compel filed by Equal Employment Opportunity Commission. (plm, ) (Entered: 03/01/2004)
31 ORDER granting 29 Motion to Compel . Defendants to provide complete responses to the First Set of Interrogatories and First Request for Production of Documents by 3/31/04. Signed by Judge Paul R Cherry on 3/17/04. (plm, ) (Entered: 03/17/2004)
32 Notice of Partial Compliance with Discovery and Renewed MOTION to Compel by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit #G (2) Exhibit H# 3 Exhibit I# 4 Exhibit J# 5 Exhibit K)(plm, ) (Entered: 03/25/2004)

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03/23/2004 03/23/2004 04/14/2004 04/29/2004 04/30/2004
05/05/2004 05/28/2004 06/01/2004 06/01/2004 06/22/2004 06/22/2004 06/22/2004

33 MEMORANDUM in Support of 32 MOTION to Compel filed by Equal Employment Opportunity Commission. (plm, ) (Entered: 03/25/2004)
34 CERTIFICATION of Additional Attempts to Settle Discovery Dispute by Equal Employment Opportunity Commission re 32 MOTION to Compel (plm, ) (Entered: 03/25/2004)
35 ORDER granting 32 Motion to Compel . Defendants to provide complete responses by 4/30/04. Signed by Judge Paul R Cherry on 4/14/04. (plm, ) (Entered: 04/16/2004)
36 MOTION for Extension of Time to File Supplemental Discovery Responses by Defendants Buzz Telecom Corp, Link Technologies Corp, US Bell Corporation. (Hopkins, Lizabeth) (Entered: 04/29/2004)
37 Minute Entry for proceedings held before Judge Paul R Cherry: Telephonic Motion Hearing held on 4/30/2004 re 36MOTION for Extension of Time to File Supplemental Discovery Responses filed by US Bell Corporation,Link Technologies Corp, Buzz Telecom Corp. Pltf by Joann Farnsworth. Defense by L Hopkins. Counsel for Intervenor Defendants waived participation. Argument heard. Motion granted over objection of Plaintiff. Defendant given to and including May 10, 2004 in which to provide supplemental and complete responses to discovery to Plaintiff. (smb) (Entered: 04/30/2004)
38 NOTICE of Appearance by Kenneth L Bird on behalf of Equal Employment Opportunity Commission (Bird, Kenneth) (Entered: 05/05/2004)
39 MOTION for Extension of Time to File Response/Reply to Plaintiff's Third Set of Interrogatories by Defendant Buzz Telecom Corp. (Hopkins, Lizabeth) (Entered: 05/28/2004)
40 RESPONSE to Motion re 39 MOTION for Extension of Time to File Response/Reply to Plaintiff's Third Set of Interrogatories filed by Equal Employment Opportunity Commission. (Farnsworth, Jo Ann) (Entered: 06/01/2004)
41 ORDER granting 39 Motion for Extension of Time to File Response/Reply re 39 Plaintiff's Third Set of Interrogatories. Court orders Defendant Buzz Telecom to respond to Third Set of Interrogatories to Defendants on or before 7/20/2004. Signed by Judge Paul R Cherry on 6/1/04. (plm, ) (Entered: 06/02/2004)
42 MOTION for Sanctions by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit)(Farnsworth, Jo Ann) (plm, ). (Entered: 06/22/2004)
43 MOTION for Sanctions Memorandum in Support by Plaintiff Equal Employment Opportunity Commission. (Farnsworth, Jo Ann) (Modified on 7/14/2004 filed as motion should have been filed as Memorandum. Termed motion.) (Entered: 06/22/2004)
44 MOTION for Sanctions Certification of Counsel by Plaintiff Equal Employment Opportunity Commission. (Farnsworth, Jo Ann) (Modified on 7/14/2004. Filed as Motion should be filed as Certification. Termed Motion.) (Entered: 06/22/2004)

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06/22/2004 06/24/2004 06/24/2004 07/09/2004 07/14/2004 08/10/2004 08/12/2004 09/03/2004 09/07/2004 09/08/2004 09/09/2004 09/16/2004 09/22/2004 09/22/2004 09/23/2004

45 MOTION for Extension of Time to File Expert Report by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit)(Farnsworth, Jo Ann) (Entered: 06/22/2004)
46 ORDER granting 45 Motion for Extension of Time to Submit its Expert Witness Disclosures and Reports . Signed by Judge Paul R Cherry on 6/24/04. (plm, ) (Entered: 06/25/2004)
Set/Reset Deadlines: Plaintiff expert witness disclosures and reports to be delivered to the defendant by 10/29/2004. (plm, ) (Entered: 06/25/2004)
47 MOTION to Withdraw 42 MOTION for Sanctions by Plaintiff Equal Employment Opportunity Commission. (Farnsworth, Jo Ann) (Entered: 07/09/2004)
48 ORDER granting 47 Motion to Withdraw 42 MOTION for Sanctions . Signed by Judge Paul R Cherry on 7/14/04. (plm, ) (Entered: 07/14/2004)
49 MOTION to Withdraw Appearance by Defendants Buzz Telecom Corp, Link Technologies Corp, US Bell Corporation, Intervenor Defendants Keanan Kintzel, Kurtis Kintzel. (Hopkins, Lizabeth) (Entered: 08/10/2004)
50 ORDER granting 49 Motion to Withdraw Appearance. Signed by Judge Paul R Cherry on 8/12/04. (plm, ) (Entered: 08/12/2004)
51 Joint MOTION for Protective Order by Plaintiff Equal Employment Opportunity Commission. (Farnsworth, Jo Ann) (Entered: 09/03/2004)
52 NOTICE OF ENDORSEMENT of 51 Joint MOTION for Protective Order by Joshua Childs (Arnold, Matthew) (Entered: 09/07/2004)
53 NOTICE OF ENDORSEMENT of 51 Joint MOTION for Protective Order by Joshua Childs, Tiffany Childs (Sims), Beatrice Johnson, Renee Roby (Gioia, Daniel) (Entered: 09/08/2004)
54 NOTICE OF ENDORSEMENT of 51 Joint MOTION for Protective Order by Buzz Telecom Corp, Link Technologies Corp, US Bell Corporation (Johnson, Steven) (Entered: 09/09/2004)
55 Stipulated PROTECTIVE ORDER. Signed by Judge Paul R Cherry on 9/16/04. (plm, ) (Entered: 09/16/2004)
56 NOTICE of Appearance by Daniel A Gioia on behalf of Joshua Childs, Tiffany Childs (Sims), Beatrice Johnson, Renee Roby (Gioia, Daniel) (Entered: 09/22/2004)
57 MOTION to Substitute Attorney by Intervenor Plaintiffs Joshua Childs, Tiffany Childs (Sims), Beatrice Johnson, Renee Roby. (Gioia, Daniel) (Entered: 09/22/2004)
58 ORDER granting 57 Motion to Substitute Attorney. Added attorney Daniel A Gioia for Kurtis Kintzel; Renee Roby; Joshua Childs and Tiffany Childs (Sims). Attorney James T McNiece terminated . Signed by Judge Paul R Cherry on 9/23/04. (plm, ) (Entered: 09/24/2004)

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10/01/2004 10/01/2004 10/01/2004 10/25/2004
10/26/2004 10/26/2004 11/08/2004 11/08/2004 11/08/2004 11/09/2004 11/12/2004
11/15/2004 11/15/2004 11/15/2004 11/24/2004

59 MOTION to Compel by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F)(Farnsworth, Jo Ann) (Entered: 10/01/2004)
60 MEMORANDUM in Support of 59 MOTION to Compel filed by Equal Employment Opportunity Commission. (Farnsworth, Jo Ann) (Entered: 10/01/2004)
61 STATEMENT of Informal Conference to Settle Discovery Dispute re 59 MOTION to Compel filed by Equal Employment Opportunity Commission. (Farnsworth, Jo Ann) (Entered: 10/01/2004)
64 ORDER granting 59 Motion to Compel . Court orders Defendants to respond to Plaintiff's Third Set of Interrogatories nos. 23-24 and Second Request for Production of Documents and Companion Interrogatory on or before 11/8/04. Signed by Judge Paul R Cherry on 10/25/04. (plm, ) (Entered: 10/26/2004)
62 Witness List by Equal Employment Opportunity Commission. (Farnsworth, Jo Ann) (Entered: 10/26/2004)
63 Exhibit List by Equal Employment Opportunity Commission.. (Farnsworth, Jo Ann) (Entered: 10/26/2004)
65 MOTION to Compel by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Certification of)(Bird, Kenneth) (Entered: 11/08/2004)
66 MEMORANDUM in Support of 65 MOTION to Compel filed by Equal Employment Opportunity Commission. (Bird, Kenneth) (Entered: 11/08/2004)
67 NOTICE by Buzz Telecom Corp, Link Technologies Corp, US Bell Corporation Notice of Service of Discovery Responses (Johnson, Steven) (Entered: 11/08/2004)
68 ORDER denying without prejudice 65 Motion to Compel . Signed by Judge Paul R Cherry on 11/9/04. (plm, ) (Entered: 11/10/2004)
69 MOTION for Extension of Time to File Expert Reports by Defendants Buzz Telecom Corp, Link Technologies Corp, US Bell Corporation. (Johnson, Steven) Additional attachment(s) - Exhibit A added on 11/15/2004 (efc, ). (Entered: 11/12/2004)
70 RESPONSE in Opposition re 69 MOTION for Extension of Time to File Expert Reports filed by Equal Employment Opportunity Commission. (Farnsworth, Jo Ann) (Entered: 11/15/2004)
71 ORDER granting 69 Motion for Extension of Time to File expert witness disclosures until 12/14/04. Signed by Judge Paul R Cherry on 11/15/04. (kjp, ) (Entered: 11/18/2004)
Set/Reset Deadlines: Defendant expert witness disclosures and reports to be submitted by 12/14/2004. (kjp, ) (Entered: 11/18/2004)
72 Defendants' Objections to Plaintiff's Final Witness List and Plaintiff's Final Exhibit List Defendants' Objections to Plaintiff's Final Witness List and Plaintiff's Final by Buzz Telecom Corp.. (Johnson, Steven) (Entered:

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11/29/2004 12/01/2004 12/01/2004
12/01/2004 12/01/2004 12/02/2004 12/02/2004 12/02/2004 12/03/2004
12/03/2004 12/08/2004
12/08/2004 12/08/2004

11/24/2004)
73 OBJECTION by Buzz Telecom Corp, Link Technologies Corp, US Bell Corporation to Plaintiff's expert. (Attachments: # 1 Exhibit Report of Vincent A. Thomas)(Johnson, Steven) (Entered: 11/29/2004)
74 AMENDED DOCUMENT by Equal Employment Opportunity Commission. Amendment to 62 Witness List. (Farnsworth, Jo Ann) (Entered: 12/01/2004)
75 RESPONSE TO DEFENDANTS' OBJECTIONS TO PLAINTIFF'S FINAL WITNESS LIST AND PLAINTIFF'S FINAL EXHIBIT LIST by Equal Employment Opportunity Commission to 72 Exhibit List,. (Farnsworth, Jo Ann) (Entered: 12/01/2004)
76 Exhibit List by Buzz Telecom Corp, Gene Chill, Keanan Kintzel, Kurtis Kintzel, Link Technologies Corp, US Bell Corporation.. (Johnson, Steven) (Entered: 12/01/2004)
77 Witness List by Buzz Telecom Corp, Gene Chill, Keanan Kintzel, Kurtis Kintzel, Link Technologies Corp, US Bell Corporation. (Johnson, Steven) (Entered: 12/01/2004)
78 RESPONSE by Equal Employment Opportunity Commission to Defendants' Objections to Plaintiff's Expert. (Bird, Kenneth) (Entered: 12/02/2004)
79 MOTION for Sanctions by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit L# 2 Exhibit M# 3 Exhibit N# 4 Exhibit O# 5 Exhibit P# 6 Exhibit Q)(Farnsworth, Jo Ann) (Entered: 12/02/2004)
80 MEMORANDUM in Support of 79 MOTION for Sanctions filed by Equal Employment Opportunity Commission. (Farnsworth, Jo Ann) (Entered: 12/02/2004)
81 MOTION for Protective Order and Request for Expedited Ruling by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Certification of Informal Efforts to Resolve Discovery Dispute# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6)(Bird, Kenneth) (Entered: 12/03/2004)
82 MEMORANDUM in Support of 81 MOTION for Protective Order and Request for Expedited Ruling filed by Equal Employment Opportunity Commission. (Bird, Kenneth) (Entered: 12/03/2004)
83 MOTION for Sanctions Fed. R. Civ. P. 37(c)(1) and Objection to Defendants' Witness List by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Farnsworth, Jo Ann) (Entered: 12/08/2004)
84 MEMORANDUM in Support of 83 MOTION for Sanctions Fed. R. Civ. P. 37(c)(1) and Objection to Defendants' Witness List filed by Equal Employment Opportunity Commission. (Farnsworth, Jo Ann) (Entered: 12/08/2004)
85 RESPONSE in Opposition re 79 MOTION for Sanctions filed by Kurtis Kintzel, Keanan Kintzel, Gene Chill, US Bell Corporation, Link Technologies Corp, Buzz Telecom Corp. (Attachments: # 1 Exhibit 1)(Johnson, Steven) (Entered: 12/08/2004)

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12/08/2004 12/08/2004 12/08/2004 12/09/2004
12/09/2004 12/10/2004 12/10/2004 12/10/2004 12/10/2004 12/10/2004 12/13/2004 12/13/2004 12/13/2004

86 RESPONSE in Opposition re 81 MOTION for Protective Order and Request for Expedited Ruling filed by Kurtis Kintzel, Keanan Kintzel, Gene Chill, US Bell Corporation, Link Technologies Corp, Buzz Telecom Corp. (Attachments: # 1 Exhibit 1)(Johnson, Steven) (Entered: 12/08/2004)
87 MOTION To Exclude Kelly Adwell Cripe as a Witness by Intervenor Defendants Kurtis Kintzel, Keanan Kintzel, Gene Chill, Defendants US Bell Corporation, Link Technologies Corp, Buzz Telecom Corp. (Attachments: # 1 Exhibit Exhibit A)(Johnson, Steven) (Entered: 12/08/2004)
88 RESPONSE in Opposition re 81 MOTION for Protective Order and Request for Expedited Ruling Defendants' Memorandum in Support filed by Kurtis Kintzel, Keanan Kintzel, Gene Chill, US Bell Corporation, Link Technologies Corp, Buzz Telecom Corp. (Johnson, Steven) (Entered: 12/08/2004)
89 MOTION to Compel Responses to Deposition Questions and Motion for Sanctions by Plaintiff Equal Employment Opportunity Commission. (Attachments: # (1) Portions of Transcript of Deposition of Michael Norvil# 2 Certification of Counsel of Informal Efforts to Resolve Discovery Dispute# 3 Exhibit)(Bird, Kenneth) Additional attachment(s) added on 12/14/2004 (smp, ). (Entered: 12/09/2004)
90 MEMORANDUM in Support of 89 MOTION to Compel Responses to Deposition Questions and Motion for Sanctions filed by Equal Employment Opportunity Commission. (Bird, Kenneth) (Entered: 12/09/2004)
91 OBJECTION by Equal Employment Opportunity Commission to 76 Exhibit List. (Farnsworth, Jo Ann) (Entered: 12/10/2004)
92 REPLY to Response to Motion re 81 MOTION for Protective Order and Request for Expedited Ruling filed by Equal Employment Opportunity Commission. (Bird, Kenneth) (Entered: 12/10/2004)
93 REPLY to Response to Motion re 79 MOTION for Sanctions filed by Equal Employment Opportunity Commission. (Farnsworth, Jo Ann) (Entered: 12/10/2004)
94 Reply by Kurtis Kintzel, Keanan Kintzel, Gene Chill, US Bell Corporation, Link Technologies Corp, Buzz Telecom Corp to 78 Response/Reply To EEOC's Response to Defendants'Objections To Plaintiff's Expert. (Johnson, Steven) (Entered: 12/10/2004)
95 REPLY by Kurtis Kintzel, Keanan Kintzel, Gene Chill, US Bell Corporation, Link Technologies Corp, Buzz Telecom Corp to 75 Response/Reply To Plaintiff's Response To Defendants'Objections To Plaintiff's Final Witness List And Plaintiff's Final Exhibit List. (Johnson, Steven) (Entered: 12/10/2004)
96 Amended Exhibit List Amended by Equal Employment Opportunity Commission.. (Farnsworth, Jo Ann) (Entered: 12/13/2004)
97 Defendant's Reply to EEOC Response to Defendants' Objections by Buzz Telecom Corp to 75 Response/Reply. (Johnson, Steven) (Entered: 12/13/2004)
98 Defendants' Reply to EEOC Response to Defendants' Objections to Plaintiff's Expert by Buzz Telecom Corp to 78 Response/Reply. (Johnson, Steven)

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12/14/2004 12/15/2004 12/15/2004 12/22/2004 12/22/2004 12/23/2004 12/27/2004 12/27/2004 12/27/2004

(Entered: 12/13/2004)
99 PROTECTIVE ORDER: Granting Motion for Protective Order 81; Ordering counsel for parties confer to find agreeable dates for the 3 depositions currently set 12/29/04, 12/30/04 & 1/3/05 but that 1/5/05, 1/6/05 and the week of 1/10/05 shall not be considered. In addition the court sua sponte VACATES the 2/1/05 discovery deadline and resets it to 2/21/05. The Court Denies as Moot request for expedited briefing schedule. Motion terminated: 81. All discovery to be completed by 2/21/2005. Signed by Judge Paul R Cherry on 12/14/04. (jld) (Entered: 12/14/2004)
100 SUPPLEMENTAL PRELIMINARY Witness List by Kurtis Kintzel, Keanan Kintzel, Gene Chill, US Bell Corporation, Link Technologies Corp, Buzz Telecom Corp. (Johnson, Steven) Modified on 12/16/2004 (smp). (Entered: 12/14/2004)
101 RESPONSE to Motion re 87 MOTION To Exclude Kelly Adwell Cripe as a Witness filed by Equal Employment Opportunity Commission. (Farnsworth, Jo Ann) (Entered: 12/15/2004)
102 OBJECTION by Equal Employment Opportunity Commission to 100 Witness List. (Farnsworth, Jo Ann) (Entered: 12/15/2004)
103 RESPONSE in Opposition re 83 MOTION for Sanctions Fed. R. Civ. P. 37(c)(1) and Objection to Defendants' Witness List filed by Kurtis Kintzel, Keanan Kintzel, Gene Chill, US Bell Corporation, Link Technologies Corp, Buzz Telecom Corp. (Johnson, Steven) (Entered: 12/22/2004)
104 RESPONSE by Kurtis Kintzel, Keanan Kintzel, Gene Chill, US Bell Corporation, Link Technologies Corp, Buzz Telecom Corp to 102 Objection to Defendants' Supplemental Witness List. (Johnson, Steven) (Entered: 12/22/2004)
105 REPLY to Response to Motion re 83 MOTION for Sanctions Fed. R. Civ. P. 37(c)(1) and Objection to Defendants' Witness List and Objection 102 to Defendants' Supplemental Witness List filed by Equal Employment Opportunity Commission. (Bird, Kenneth) (Entered: 12/23/2004)
106 RESPONSE by Kurtis Kintzel, Keanan Kintzel, Gene Chill, US Bell Corporation, Link Technologies Corp, Buzz Telecom Corp to 91 Objection. (Attachments: # (1) Redacted Exhibit 1# (2) Redacted Exhibit 2# 3 Exhibit Exhibit 3)(Johnson, Steven) Redacted attachments added on 1/7/2005 (jld). (Entered: 12/27/2004)
107 RESPONSE to Motion re 89 MOTION to Compel Responses to Deposition Questions and Motion for Sanctions filed by Kurtis Kintzel, Keanan Kintzel, Gene Chill, US Bell Corporation, Link Technologies Corp, Buzz Telecom Corp. (Johnson, Steven) (Entered: 12/27/2004)
108 REPLY to Response to Motion re 87 MOTION To Exclude Kelly Adwell Cripe as a Witness filed by Kurtis Kintzel, Keanan Kintzel, Gene Chill, US Bell Corporation, Link Technologies Corp, Buzz Telecom Corp. (Johnson, Steven) (Entered: 12/27/2004)

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01/26/2005 01/26/2005 01/26/2005
01/28/2005

109 REPLY to Response to Motion re 89 MOTION to Compel Responses to Deposition Questions and Motion for Sanctions filed by Equal Employment Opportunity Commission. (Bird, Kenneth) (Entered: 01/04/2005)
110 STIPULATION of the Parties by Plaintiff Equal Employment Opportunity Commission. (Bird, Kenneth) (Entered: 01/18/2005)
111 ORDER granting in part and denying in part 79 Motion for Sanctions. The Court DENIES the motion to the extent that it requests the 2003 tax returns and Requests 46 & 47; the Court GRANTS the Motionto the extent that it seeks Interrogatory #24 as well as the sanction of attorneys fees, to a limited extent. The Court ORDERS Defendants to 1) provide complete responss to Interrogatory #24 of Pltf's 3rd Set of Interrogatories within 5 days of the date of this order, 2) pay the EEOC attorney fees associated with the instant Motion for Sanctions. The Court further ORDERS the EEOC to provice verified certification of attorney fees. Finally the Court SUGGESTS the Defts provide 2003 tax returns in response to Interrogatories 16 & 27 within 10 days of the date of this Order. Signed by Judge Paul R Cherry on 1/26/05. (jld) (Entered: 01/26/2005)
Set Deadlines: Discovery deadline is 1/31/2005 from Order 111. (jld) (Entered: 01/26/2005)
112 ORDER granting in part and denying in part 83 Motion for Sanctions. GRANTING the motion to the extent that it seeks to exclude witnesses but DENIES the motion to the extent that it seeks sanctions. The Court ORDERS that Defts shall not be permitted to introduce at trial, hearing, or motion the testimony of the witnesses disclosed in the order because Defts failed to disclose these witnesses to Pltf . Signed by Judge Paul R Cherry on 1/26/05. (jld, ) (Entered: 01/26/2005)
113 ORDER granting 89 Motion to Compel. The Court ORDERS Mr. Norvil to appear at the offices of the EEOC in Indianapolis to provide complete answers to the EEOC's quesitons, including any reasonable folloe-up questions, not inconsistent with this Order. ORDERING that counsel for the parties are to arrange a convenient time for the continuation of this deposition, at a time when the undersigned Magistrate Judge is available by telephone to rule on objections, if necessary. Further the Defts are ORDERED to pay the EEOC for reasonable expenses to (a) bring this motion and (b) finish the deposition of Mr. Norvil. Counsel for the EEOC are ordered to submit a certification of fees and expenses to the Court within 10 days of the completion of Mr. Norvil's deposition . Signed by Judge Paul R Cherry on 1/26/05. (jld, ) (Entered: 01/26/2005)
115 ORDER: DENYING 87 Motion to Exclude Kelly Adwell Cripe as a Witness; ORDERING that the Defendants may notice the deposition of Ms Cripe for the completion of the deposition commenced on 11/8/04; GRANTING the Defendants to 3/8/05 to conduct the deposition of Ms. Cripe. In all other respects the 2/21/05 discovery deadline remains intact. In addition the EEOC is ORDERED to pay the Defendants the reasonable expenses incurred to complete the deposition of Ms. Cripe. Counsel for the Defendants is ORDERED to submit a certification of fees within 10 days of the completion of Ms Cripe's deposition. Signed by Judge Paul R Cherry on 1/28/05. (jld) (Entered: 02/01/2005)

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02/21/2005 02/22/2005 02/23/2005

114 NOTICE by Kurtis Kintzel, Keanan Kintzel, Gene Chill, US Bell Corporation, Link Technologies Corp, Buzz Telecom Corp re 111 Order on Motion for Sanctions,,, Service of Discovery Documents (Johnson, Steven) (Entered: 01/31/2005)
116 NOTICE by Equal Employment Opportunity Commission re 111 Order on Motion for Sanctions,,, Petition for Attorney Fees (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Farnsworth, Jo Ann) (Entered: 02/03/2005)
117 NOTICE of Appearance by Michael J Rappa on behalf of all defendants (Rappa, Michael) (Entered: 02/03/2005)
118 MOTION for Attorney Fees by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Affidavit of Jo Ann Farnsworth# 2 Affidavit of Kenneth Bird# 3 Affidavit of Amy Ficklin DeBrota)(Bird, Kenneth) Modified on 2/4/2005 (smp). (Entered: 02/04/2005)
119 ORDER re 116 MOTION for Attorney Fees filed by Equal Employment Opportunity Commission,, Motions terminated: 116 Payment of $500.00 to be made by 4/5/2005. Signed by Judge Paul R Cherry on 2/4/05. (smp) Modified on 2/4/2005 (smp). (Entered: 02/04/2005)
120 ORDER denying as moot 118 Motion for Attorney Fees . Signed by Judge Paul R Cherry on 2/4/05. (jld) (Entered: 02/07/2005)
121 MOTION to Quash Deposition Subpoena by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit No. 1# 2 Exhibit No. 2# 3 Exhibit No. 3# 4 Exhibit No. 4)(Bird, Kenneth) (Entered: 02/16/2005)
122 MEMORANDUM in Support of 121 MOTION to Quash Deposition Subpoena filed by Equal Employment Opportunity Commission. (Bird, Kenneth) (Entered: 02/16/2005)
123 ORDER re 121 MOTION to Quash Deposition Subpoena filed by Equal Employment Opportunity Commission. Defendants to file response to 121 by 2:00 pm 2/17/05.Signed by Judge Paul R Cherry on 2/16/05. (Faxed service to all cnsl of record by smb/CRD)(smb) (Entered: 02/16/2005)
124 NOTICE of Hearing on Motion 121 MOTION to Quash Deposition Subpoena: Motion Hearing set for 2/23/2005 09:00 AM telephonically before Magistrate Judge Paul R Cherry w/the Court initiating the conference. Defend US Bell provided an extension in which to file response brief on or before 2:00 pm (CST) 2/22/05.(smb) (Entered: 02/17/2005)
125 RESPONSE to Motion re 121 MOTION to Quash Deposition Subpoena filed by US Bell Corporation. (Attachments: # (1) Exhibit # 2 Exhibit # 3 Exhibit # 4 # 5 Exhibit # (6) Exhibit # 7 Exhibit)(Rappa, Michael) Additional attachment(s) added on 2/22/2005 (smp, ). (Entered: 02/21/2005)
126 REPLY to Response to Motion re 121 MOTION to Quash Deposition Subpoena filed by Equal Employment Opportunity Commission. (Bird, Kenneth) (Entered: 02/22/2005)
127 Motion Hearing held on 2/23/2005 telephonically before Magistrate Judge Paul Cherry re 121 MOTION to Quash Deposition Subpoena filed by Equal

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03/14/2005 03/15/2005 03/22/2005 03/24/2005 03/24/2005 03/24/2005

Employment Opportunity Commission. EEOC by K Bird. US Bell by S Johnson, M Rappa. Comments presented; argument heard. Motion is denied as moot. Court gives direction; Amanda Beard should be produced for deposition-reasons stated of record. Discovery extended through 3/31/05 for limited purpose of taking Beard's deposition. (#Digitally Recorded.) (smb) (Entered: 02/23/2005)
128 Motion terminated: finding moot 121 Motion to Quash per Court's oral 2/23/05. (smb) (Entered: 02/23/2005)
Set/Reset Deadlines: Discovery deadline reset 3/31/2005. (smb) (Entered: 02/23/2005)
129 MOTION for Attorney Fees and Court Reporter Fees by Plaintiff Equal Employment Opportunity Commission. (Farnsworth, Jo Ann) (Entered: 02/24/2005)
130 AFFIDAVIT re 129 MOTION for Attorney Fees and Court Reporter Fees Declaration of Kenneth L. Bird by Equal Employment Opportunity Commission. (Farnsworth, Jo Ann) (Entered: 02/24/2005)
131 AFFIDAVIT re 129 MOTION for Attorney Fees and Court Reporter Fees Declaration of Jo Ann Farnsworth by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A)(Farnsworth, Jo Ann) (Entered: 02/24/2005)
132 MOTION for Attorney Fees and Court Reporter Fees by Intervenor Defendants Kurtis Kintzel, Keanan Kintzel, Gene Chill, Defendants US Bell Corporation, Link Technologies Corp, Buzz Telecom Corp. (Attachments: # 1 Affidavit of Steven A. Johnson# 2 Affidavit of Michael J. Rappa)(Johnson, Steven) (Entered: 03/11/2005)
134 ORDER granting 129 Motion for Attorney Fees and Court Reporter Fees. Defendant to pay the EEOC the sum of $1,767.10 within 30 days of the entry of this order. Signed by Judge Paul R Cherry on 3/14/05. (jld) (Entered: 03/16/2005)
133 RESPONSE in Opposition re 132 MOTION for Attorney Fees and Court Reporter Fees filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Farnsworth, Jo Ann) (Entered: 03/15/2005)
135 CLERK'S ENTRY OF JUDGMENT in favor of EEOC and against US Bell Corp et al in the amount of $1,767.10. (jld) (Entered: 03/22/2005)
136 MOTION for Leave to Contact Former Supervisors in Preparation for Trial by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1 (letter of 2005 March 4)# 2 Exhibit ABA Ethics Opinion 91-359)(Bird, Kenneth) (Entered: 03/24/2005)
137 MEMORANDUM in Support of 136 MOTION for Leave to Contact Former Supervisors in Preparation for Trial filed by Equal Employment Opportunity Commission. (Bird, Kenneth) (Entered: 03/24/2005)
138 MOTION to Compel by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Farnsworth, Jo Ann)

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03/30/2005 04/04/2005 04/11/2005 04/11/2005 04/15/2005

(Entered: 03/24/2005)
139 MEMORANDUM in Support of 138 MOTION to Compel filed by Equal Employment Opportunity Commission. (Farnsworth, Jo Ann) (Entered: 03/24/2005)
140 CERTIFICATE of Informal Conference to Settle Discovery Dispute. (Farnsworth, Jo Ann) (Entered: 03/24/2005)
141 REPLY by Kurtis Kintzel, Keanan Kintzel, Gene Chill, US Bell Corporation, Link Technologies Corp, Buzz Telecom Corp to 132 MOTION for Attorney Fees and Court Reporter Fees Defendants' Reply in Support of Petition for Fees and Response to Plaintiff's Request for Reconsideration. (Rappa, Michael) (Entered: 03/28/2005)
142 MOTION for Summary Judgment by Defendant US Bell Corporation. (Rappa, Michael) (Entered: 03/30/2005)
143 APPENDIX to 142 MOTION for Summary Judgment by US Bell Corporation. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2# 3 Exhibit Exhibit 3# 4 Exhibit Exhibit 4# 5 Exhibit Exhibit 5# 6 Exhibit Exhibit 6# 7 Exhibit Exhibit 7# 8 Exhibit Exhibit 8# 9 Exhibit Exhibit 9# 10 Exhibit Exhibit 10# 11 Exhibit Exhibit 11# 12 Exhibit Exhibit 12# 13 Exhibit Exhibit 13# 14 Exhibit Exhibit 14# 15 Exhibit Exhibit 15# 16 Exhibit Exhibit 16# 17 Exhibit Exhibit 17# 18 Exhibit Exhibit 18# 19 Exhibit Exhibit 19# 20 Exhibit Exhibit 20# 21 Exhibit Exhibit 21# 22 Exhibit Exhibit 22# 23 Exhibit Exhibit 23# 24 Exhibit Exhibit 24# 25 Exhibit Exhibit 25# 26 Exhibit Exhibit 26# 27 Exhibit Exhibit 27# 28 Exhibit Exhibit 28# 29 Exhibit Exhibit 29# 30 Exhibit Exhibit 30# 31 Exhibit Exhibit 31)(Rappa, Michael) (Entered: 03/30/2005)
144 MEMORANDUM in Support of 142 MOTION for Summary Judgment filed by US Bell Corporation. (Rappa, Michael) (Entered: 03/30/2005)
145 MEMORANDUM OF OPINION AND ORDER granting 132 Motion for Attorney Fees. The Plaintiff is ordered to pay to Defendants' attorneys the total sum of $3,825.00. The Court further Orders that the payment shall be made within 60 days of this order. Signed by Judge Paul R Cherry on 4/4/05. (jld) (Entered: 04/05/2005)
146 RESPONSE to Motion re 138 MOTION to Compel Response to Sixth Request for Production filed by Kurtis Kintzel, Keanan Kintzel, Gene Chill, US Bell Corporation, Link Technologies Corp, Buzz Telecom Corp. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2)(Rappa, Michael) (Entered: 04/11/2005)
147 RESPONSE to Motion re 136 MOTION for Leave to Contact Former Supervisors in Preparation for Trial filed by Kurtis Kintzel, Keanan Kintzel, Gene Chill, US Bell Corporation, Link Technologies Corp, Buzz Telecom Corp. (Rappa, Michael) (Entered: 04/11/2005)
148 REPLY to Response to Motion re 138 MOTION to Compel filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit D# 2 Exhibit E# 3 Exhibit F# 4 Exhibit G# 5 Exhibit H# 6 Exhibit I)(Farnsworth, Jo Ann) (Entered: 04/15/2005)

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04/29/2005 05/06/2005 05/09/2005

149 REPLY to Response to Motion re 136 MOTION for Leave to Contact Former Supervisors in Preparation for Trial filed by Equal Employment Opportunity Commission. (Bird, Kenneth) (Entered: 04/19/2005)
150 ORDER granting 136 Motion for leave to contact former supervisors in preparation for trial . Signed by Judge Paul R Cherry on 4/25/05. (jld) (Entered: 04/26/2005)
151 MEMORANDUM OPINION AND ORDER granting 138 Motion to Compel Defendants' Responses to Sixth Request for Production of Documents. Defendants to respond to the EEOC's Sixth Request for Production of Documents by 5/16/2005. Signed by Judge Paul R Cherry on 4/25/05. (jld) (Entered: 04/26/2005)
152 MOTION for Leave to File Excess Pages by Plaintiff Equal Employment Opportunity Commission. (Bird, Kenneth) (Entered: 04/29/2005)
153 RESPONSE in Opposition re 142 MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. (Attachments: # 1 Appendix Statement of Genuine Issues# 2 Affidavit of Webster N. Smith, Part I (text of affidavit)# 3 Affidavit of Webster N. Smith, Part II (Sims's charges)# 4 Affidavit of Webster N. Smith, Part III (charges of Roby and Johnson)# 5 Affidavit of Webster N. Smith, Part IV (letters of determination)# 6 Affidavit of Webster N. Smith, Part V (proposed conciliation agreement)# 7 Exercerpts from deposition of Amanda Bernard# 8 Excerpts from deposition of Ben Bruce# 9 Excerpts from deposition of Wm. Brzycki# 10 Excerpts from deposition of Iesha Cotton# 11 Excerpts from deposition of Kelly Adwell Cripe# 12 Excerpts from deposition of Yanira Daniels# 13 Excerpts from deposition of Lisa Hogan# 14 Excerpts from deposition of Keanan Kintzel# 15 Excerpts from deposition of Kurtis Kintzel# 16 Excerpts from deposition of Lisa Lacefield# 17 Excerpts from deposition of Elena Maga?a# 18 Excerpts from volume I of deposition of Michael Norvil (text of questions and answers)# 19 Excerpts from volume I of deposition of Michael Norvil (deposition exhibits 2 and 9)# 20 Excerpts from volume I of deposition of Michael Norvil (deposition exhibit 10 and first part of exhibit 11)# 21 Excerpts from volume I of deposition of Michael Norvil (remainder of deposition exhibit 11)# 22 Excerpts from volume II of deposition of Michael Norvil# 23 Excerpts from deposition of Waushara Person# 24 Excerpts from deposition of Katrina Reillo# 25 Excerpts from deposition of Margaret Robertson-Smith# 26 Excerpts from deposition of Severia Scott)(Bird, Kenneth) (Entered: 04/29/2005)
154 ORDER granting 152 Motion for Leave to Brief in Excess of Twenty-five Pages. In the interests of justice the Court now RECOGNIZES that the Response Brief has been filed with the Court at DE 153 on 4/29/05. Signed by Judge Paul R Cherry on 4/29/05. (jld) (Entered: 05/02/2005)
155 MOTION for Extension of Time to File Response/Reply by Defendant Buzz Telecom Corp. (Rappa, Michael) (Entered: 05/06/2005)
156 RESPONSE in Opposition re 155 MOTION for Extension of Time to File Response/Reply filed by Equal Employment Opportunity Commission. (Farnsworth, Jo Ann) (Entered: 05/09/2005)

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157 ORDER granting 155 Motion for Extension of Time to File Reply to 142 Motion for Summary Judgment. Reply to be filed by 5/31/2005. Signed by Judge Paul R Cherry on 5/10/05. (jld) (Entered: 05/11/2005)
158 REPLY to Response to Motion re 142 MOTION for Summary Judgment filed by Buzz Telecom Corp. (Rappa, Michael) (Entered: 05/31/2005)
159 ORDER granting in part and denying in part 142 Motion for Summary Judgment. Grants defendants motion for summary judgment on claims of quid pro quo sexual harrassment and retaliation. Denies the motion for summary judgment on the claim of hostile work environment. The court reaffirms trial setting of 8/15/05 and final pretrial conference set for 8/4/05 at 9:00 a.m. . Signed by Judge Paul R Cherry on 7/19/05. (kds) (Entered: 07/19/2005)
160 STATEMENT Joint Submission of Preliminary Statement. (Farnsworth, Jo Ann) (Entered: 07/27/2005)
161 Witness List by Equal Employment Opportunity Commission. (Farnsworth, Jo Ann) (Entered: 08/01/2005)
162 MOTION in Limine to Prevent the Defendants from Presenting an Ellerth/Faragher Affirmative Defense by Plaintiff Equal Employment Opportunity Commission. (Bird, Kenneth) (Entered: 08/03/2005)
163 MEMORANDUM in Support of 162 MOTION in Limine to Prevent the Defendants from Presenting an Ellerth/Faragher Affirmative Defense filed by Equal Employment Opportunity Commission. (Bird, Kenneth) (Entered: 08/03/2005)
164 MOTION in Limine To Prevent Evidence Regarding Unemployment Benefits Hearing by Plaintiff Equal Employment Opportunity Commission. (Farnsworth, Jo Ann) (Entered: 08/03/2005)
165 MEMORANDUM in Support of 164 MOTION in Limine To Prevent Evidence Regarding Unemployment Benefits Hearing filed by Equal Employment Opportunity Commission. (Attachments: # (1) Exhibit A-unemployment hearing decision# 2 Exhibit B-deposition of A.Bernard)(Farnsworth, Jo Ann) Additional attachment(s) added on 8/4/2005 (smp, ). (Entered: 08/03/2005)
166 MOTION in Limine Regarding Defendants' Current Financial Condition by Plaintiff Equal Employment Opportunity Commission. (Farnsworth, Jo Ann) (Entered: 08/03/2005)
167 MEMORANDUM in Support of 166 MOTION in Limine Regarding Defendants' Current Financial Condition filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A-6th Request for Production# 2 Exhibit B-Defendants' Response to 6th RFP)(Farnsworth, Jo Ann) (Entered: 08/03/2005)
168 MOTION in Limine to Prevent Alan Furmankiewicz from Testifying at Trial by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Report of Vincent A. Thomas# 2 Exhibit Report of Alan Furmankiewicz# 3 Exhibit Excerpts from deposition of Alan Furmankiewicz)(Bird, Kenneth) (Entered: 08/03/2005)

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169 MEMORANDUM in Support of 168 MOTION in Limine to Prevent Alan Furmankiewicz from Testifying at Trial filed by Equal Employment Opportunity Commission. (Bird, Kenneth) (Entered: 08/03/2005)
170 Proposed Voir Dire by Equal Employment Opportunity Commission. (Farnsworth, Jo Ann) (Entered: 08/03/2005)
171 Proposed Jury Instructions by Equal Employment Opportunity Commission. (Bird, Kenneth) (Entered: 08/03/2005)
172 Proposed Verdict Form by Equal Employment Opportunity Commission. (Bird, Kenneth) (Entered: 08/03/2005)
173 STIPULATION to Dismiss Intervenors' Claims by Defendants Buzz Telecom Corp, Buzz Telecom Corp. (Rappa, Michael) (Entered: 08/03/2005)
174 NOTICE OF ENDORSEMENT of 173 STIPULATION to Dismiss Intervenors' Claims by Joshua Childs, Tiffany Childs (Sims), Beatrice Johnson, Renee Roby (Gioia, Daniel) (Entered: 08/03/2005)
175 NOTICE OF ENDORSEMENT of 173 STIPULATION to Dismiss Intervenors' Claims by Joshua Childs (Arnold, Matthew) (Entered: 08/03/2005)
176 MOTION to Preclude Defendants' Witnesses and Exhibits at Trial and to Preclude Defendants from Proffering Case-Specific Jury Instructions by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A, letter of July 7, 2005# 2 Exhibit B, letter of July 8, 2005# 3 Exhibit C, Letter of July 12, 2005# 4 Exhibit D, Letter of August 2, 2005)(Bird, Kenneth) (Entered: 08/03/2005)
177 MOTION to Seal Document by Plaintiff Equal Employment Opportunity Commission. (kjp, ) (Entered: 08/03/2005)
178 MOTION in Limine filed under seal, by Plaintiff Equal Employment Opportunity Commission. (kjp, ) (Entered: 08/03/2005)
179 MEMORANDUM in Support of [178] MOTION in Limine, filed under seal, filed by Equal Employment Opportunity Commission. (kjp, ) (Entered: 08/03/2005)
180 ORDER granting 173 Stipulation to Dismiss Intervenor-Plaintiffs' claims with prejudice. Signed by Judge Paul R Cherry on 8/3/05. (kds) (Entered: 08/04/2005)
181 Minute Entry for proceedings held before Judge Paul R Cherry: FINAL PRETRIAL CONFERENCE and MOTION HEARING held on 8/4/2005 re 176MOTION to Preclude Defends' Witnesses and Exhibits at Trial and to Preclude Defends from Proffering Case-Specific Jury Instructions filed by EEOC. Present: J Farnsworth, K Bird, S Johnson, M Rappa, Kurtis Kintzel, Keanan Kintzel. Argument heard-Motion DENIED. Any further defense mtn(s)to be filed on or before 8/5/05. Defense response(s) to motion(s) due on or before 8/8/05; EEOC response(s) to motion(s) due on or before 8/10/05; objections to exhibits if any to be filed on or before 8/8/05. Telephone Conference set for 8/12/2005 11:00 AM before Magistrate Judge Paul R Cherry for ruling on motions and confirmation of jury selection time to be initiated by the Court. EEOC makes oral motion for copy of settlement agreement of Intervening

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Party-motion taken under advisement to allow for in-camera review by the Court. Trial reaffirmed for 8:30 8/15/05. (#Digitally Recorded.) (smb) (Entered: 08/05/2005)
182 Motion terminated: 176 Motion to Preclude denied. No pdf order to be issued. By Judge Paul R Cherry on 8/4/05. (smb) (Entered: 08/05/2005)
183 ORDER granting [177] Motion to Seal Document, [178] Motion in Limine and [179] Memorandum in support of Motion in Limine. Signed by Judge Paul R Cherry on 8/4/05. (kds) (Entered: 08/05/2005)
189 Oral MOTION for Disclosure by Plaintiff Equal Employment Opportunity Commission made in open Court 8/4/05. (smb) (Entered: 08/08/2005)
184 Witness List by Buzz Telecom Corp. (Rappa, Michael) (Entered: 08/05/2005)
185 MOTION in Limine by Defendant Buzz Telecom Corp. (Rappa, Michael) (Entered: 08/05/2005)
186 MEMORANDUM in Support of 185 MOTION in Limine filed by Buzz Telecom Corp. (Attachments: # 1 Exhibit Vincent Thomas Report)(Rappa, Michael) (Entered: 08/05/2005)
187 OBJECTION by Equal Employment Opportunity Commission to Defendants' Exhibits. (Attachments: # 1 Exhibit A - Affidavit of Chandler# 2 Exhibit B email# 3 Exhibit C - Notice/Letter# 4 Exhibit D - Charge)(Farnsworth, Jo Ann) (Entered: 08/08/2005)
188 RESPONSE in Opposition re 185 MOTION in Limine filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 56 - letter dated Oct. 12, 2000# 2 Exhibit 28 - Severance Agreement)(Farnsworth, Jo Ann) (Entered: 08/08/2005)
190 **SEALED** ORDER granting [189] Motion for Disclosure-PROTECTIVE ORDER signed by Judge Paul R Cherry on 8/8/05. Copy of Order faxed to counsel this same date. (smb) (Entered: 08/08/2005)
191 Proposed Jury Instructions by Buzz Telecom Corp. (Rappa, Michael) (Entered: 08/08/2005)
192 OBJECTION by Buzz Telecom Corp to 171 Proposed Jury Instructions, 172 Proposed Verdict form. (Rappa, Michael) (Entered: 08/08/2005)
193 RESPONSE to Motion re 166 MOTION in Limine Regarding Defendants' Current Financial Condition, 168 MOTION in Limine to Prevent Alan Furmankiewicz from Testifying at Trial, 162 MOTION in Limine to Prevent the Defendants from Presenting an Ellerth/Faragher Affirmative Defense, 164 MOTION in Limine To Prevent Evidence Regarding Unemployment Benefits Hearing filed by Buzz Telecom Corp. (Rappa, Michael) (Entered: 08/08/2005)
194 Proposed Voir Dire by US Bell Corporation, Link Technologies Corp, Buzz Telecom Corp. (Johnson, Steven) (Entered: 08/08/2005)
195 RESPONSE to Motion re [178] MOTION in Limine filed by Buzz Telecom Corp. (Rappa, Michael) (Entered: 08/08/2005)

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196 OBJECTION by Buzz Telecom Corp to Plaintiff's Exhibits. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8)(Rappa, Michael) (Entered: 08/08/2005)
197 REPLY Brief in support of [178] MOTION in Limine - Filed under sealby Equal Employment Opportunity Commission. (kjp, ) (Entered: 08/09/2005)
198 RESPONSE by Equal Employment Opportunity Commission to 196 Objection. (Attachments: # 1 Exhibit A - Bernard depo excerpt)(Farnsworth, Jo Ann) (Entered: 08/09/2005)
199 REPLY to Response to Motion re 166 MOTION in Limine Regarding Defendants' Current Financial Condition, 168 MOTION in Limine to Prevent Alan Furmankiewicz from Testifying at Trial, 162 MOTION in Limine to Prevent the Defendants from Presenting an Ellerth/Faragher Affirmative Defense, 164 MOTION in Limine To Prevent Evidence Regarding Unemployment Benefits Hearing filed by Equal Employment Opportunity Commission. (Farnsworth, Jo Ann) (Entered: 08/10/2005)
200 OBJECTION by Equal Employment Opportunity Commission to 191 Proposed Jury Instructions. (Farnsworth, Jo Ann) (Entered: 08/10/2005)
201 PRETRIAL ORDER. Signed by Judge Paul R Cherry on 8/12/05. (smb) (Entered: 08/12/2005)
202 Minute Entry for proceedings held before Judge Paul R Cherry: Motion Hearing held on 8/12/2005 re 166MOTION in Limine Regarding Defendants' Current Financial Condition; 168MOTION in Limine to Prevent Alan Furmankiewicz from Testifying at Trial; 162MOTION in Limine to Prevent the Defendants from Presenting an Ellerth/Faragher Affirmative Defense; 164 MOTION in Limine To Prevent Evidence Regarding Unemployment Benefits Hearing; 185 MOTION in Limine. Present: K Bird, J Farnsworth, S Johnson, M Rappa. Court makes oral ruling on objections to Pltf Final Witness and Exhibit List; Pltf's Expert, Defends' Wit List. Court makes oral rulings on all pending motions. (SEE ATTACHED COURT MEMO). The Jury to decide liability and damages. By agreement the Court to determine injunctive relief where necessary, and any issue of back pay either by stipulation or at post-trial hearing where necessary. Trial confirmed for 8:30 AM 8/15/05. (smb) (Entered: 08/12/2005)
203 Motions terminated: denying 162 Motion in Limine, granting 164 Motion in Limine, granting 166 Motion in Limine, denying 168 Motion in Limine, granting in part and denying in part 185 Motion in Limine. No pdf order to be issued. See Court Memo in 202 By Judge Paul R Cherry on 8/12/05. (smb) (Entered: 08/12/2005)
204 DEPOSITION of Kelly Jo Cripe taken on 11/8/04 by Equal Employment Opportunity Commission. (smb) (Entered: 08/16/2005)
205 DEPOSITION of Kelly Adwell Cripe taken on 3/1/05 by Equal Employment Opportunity Commission(smb) (Entered: 08/16/2005)
206 DEPOSITION of Dawn Allen taken on 11/10/04 by Equal Employment Opportunity Commission. (smb) (Entered: 08/16/2005)

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207 DEPOSITION of Ben Bruce taken on 9/8/04 by Equal Employment Opportunity Commission. (smb) (Entered: 08/16/2005)
208 DEPOSITION of William Brzycki taken on 11/17/04 by Equal Employment Opportunity Commission.(smb) (Entered: 08/16/2005)
209 DEPOSITION of Gene Jeffrey Chill taken on 11/16/04 by Equal Employment Opportunity Commission.(smb) (Entered: 08/16/2005)
210 DEPOSITION of Alan Furmankiewicz CPA taken on 9/2/04 by Equal Employment Opportunity Commission.(smb) (Entered: 08/16/2005)
211 DEPOSITION of Alan Furmankiewicz CPA taken on 2/9/05 by Equal Employment Opportunity Commission.(smb) (Entered: 08/16/2005)
212 DEPOSITION of Alan Furmankiewicz CPA taken on Deposition Exhibit Index by Equal Employment Opportunity Commission.(smb) (Entered: 08/16/2005)
213 DEPOSITION of Keanan Glenn Kintzel taken on 11/23/04 by Equal Employment Opportunity Commission.(smb) (Entered: 08/16/2005)
214 DEPOSITION of Kurtis John Kintzel taken on 11/24/04 by Equal Employment Opportunity Commission.(smb) (Entered: 08/16/2005)
215 DEPOSITION of Elena Lydia Magana taken on 9/9/04 by Equal Employment Opportunity Commission.(smb) (Entered: 08/16/2005)
216 DEPOSITION of Michael Peter Norvil taken on 11/18/04 by Equal Employment Opportunity Commission.(smb) (Entered: 08/16/2005)
217 DEPOSITION of Michael Peter Norvil taken on Deposition Questions Certified to the Court by Equal Employment Opportunity Commission.(smb) (Entered: 08/16/2005)
218 CONTINUATION OF DEPOSITION of Michael Norvil taken on 2/16/05 by Equal Employment Opportunity Commission.(smb) (Entered: 08/16/2005)
219 DEPOSITION of Cathy Olive taken on 11/9/04 by Equal Employment Opportunity Commission.(smb) (Entered: 08/16/2005)
220 DEPOSITION of Gale Perry taken on 11/10/04 by Equal Employment Opportunity Commission.(smb) (Entered: 08/16/2005)
221 DEPOSITION of Gale Perry -Deposition Questions Certified to the Court by Equal Employment Opportunity Commission.(smb) (Entered: 08/16/2005)
222 DEPOSITION of Katrina Reillo taken on 9/9/04 by Equal Employment Opportunity Commission.(smb) (Entered: 08/16/2005)
223 DEPOSITION of Elizabeth Ontiveros Rosas taken on 9/13/04 by Equal Employment Opportunity Commission.(smb) (Entered: 08/16/2005)
224 DEPOSITION of Severia Scott taken on 9/13/04 by Equal Employment Opportunity Commission.(smb) (Entered: 08/16/2005)
225 DEPOSITION of Margaret Robertson-Smith taken on 9/10/04 by Equal Employment Opportunity Commission.(smb) (Entered: 08/16/2005)

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226 Jury Trial begun on 8/15/2005 before Magistrate Judge Paul Cherry. EEOC by Jo Ann Farnsworth, K Bird. Defense by S Johnson, M Rappa, Kurtis Kintzel in person. Sep of witnesses order in place. Objections to Ellerth/Faragher defense. Prospective jurors sworn on voir dire. Jury Selection 8:45-11:45am. Jury selected, sworn to try case and charged with preliminary instructions. Opening statements. Plaintiff begins presentation of evidence but does not conclude. Objections/offer(s) of proof made as to exhibits. Court adjourned to 8:30 8/16/05. (Court Reporter Pam Owen.) (smb) (Entered: 08/16/2005)
227 DEPOSITION of Lisa Lacefield taken on 2/18/05 by US Bell Corporation. (smb) (Entered: 08/16/2005)
228 DEPOSITION of Amanda Nicole Bernard taken on 3/23/05 by US Bell Corporation.(smb) (Entered: 08/16/2005)
229 Jury Trial (SECOND DAY) held on 8/16/2005 before Magistrate Judge Paul R Cherry. All parties present as previously noted. Further objections/ argument/ruling re Ellerth/Faragher defense. Further objections/argument/offer of proof/ruling re exhibits. EEOC Exhibit 120 Defendant Supplmntl Answers to Pltf First Set of Interrogatories(EEOC received stamp 5/4/04)admitted for Court review only-not for review by jury. EEOC continues w/presentation of evidence but does not conclude. Court ajourned to 8:30 8/17/05. Pam Owen, Court Reporter. (smb) (Entered: 08/17/2005)
230 Jury Trial (THIRD DAY) held on 8/17/2005 before Magistrate Judge Paul Cherry. All parties and counsel of record present. Further objection(s) to Ellerth-Faragher defense. Rulings on objections to William Brzycki deposition prior to testimony by deposition. EEOC continues with evidence but does not conclude. Trial adjourned to 8:30 8/18/05. (Court Reporter Pam Owen.) (smb) (Entered: 08/18/2005)
231 DEPOSITION of Lisa Hogan taken on 2/17/05 by Buzz Telecom Corp.(smb) (Entered: 08/18/2005)
232 DEPOSITION of Waushara Person taken on 2/17/05 by Buzz Telecom Corp.(smb) (Entered: 08/18/2005)
233 Jury Trial (FOURTH DAY) held on 8/18/2005 before Magistrate Judge Paul Cherry. All parties and counsel present. EEOC continues w/evidence, concludes, and rests. Defense presents oral TR50 motion for judgment on the evidence. Argument heard outside presence of jurors. Defend TR50 motion for judgment on the evidence is DENIED. Defense presentation of evidence begins. Defense oral motion for mistrial based on alleged violation of motion in limine and other prior evidentiary rulings of the Court is DENIED. Trial adjourned to 8:30 8/19/05. (Court Reporter Pam Owen.) (smb) (Entered: 08/19/2005)
234 Jury Trial (DAY FIVE) held on 8/19/2005 before Magistrate Judge Paul Cherry. All parties and counsel present. Objection/argument/ruling as it relates to expert or non-expert testimony of Alan Furmanciewicz. Defense continues w/evidence but does not conclude. Jurors excused at 12:20 PM for the day. Court conducts informal preliminary jury instruction conference with counsel off the record. Formal record of objections on jury instructions to be recorded later date. Trial is adjourned to 8/22/05 @8:30 AM. (Court Reporter Pam Owen.) (smb) (Entered:

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08/19/2005)
235 TRIAL BRIEF Objection Memorandum Rule 403 by Buzz Telecom Corp. (Rappa, Michael) (Entered: 08/22/2005)
236 TRIAL BRIEF Objection Memorandum Rule 801 by Buzz Telecom Corp. (Rappa, Michael) (Entered: 08/22/2005)
237 TRIAL BRIEF Objection Memorandum Totality Circumstances by Buzz Telecom Corp. (Rappa, Michael) (Entered: 08/22/2005)
238 TRIAL BRIEF Objection Memorandum Rule 602 by Buzz Telecom Corp. (Rappa, Michael) (Entered: 08/22/2005)
239 TRIAL BRIEF Memorandum in Support of Defendants' First Oral Motion Judgment on the Evidence FRCP 50 by Buzz Telecom Corp. (Rappa, Michael) (Entered: 08/22/2005)
240 TRIAL BRIEF Objection Memorandum 611 Rebuttal Evidence by Buzz Telecom Corp. (Rappa, Michael) (Entered: 08/22/2005)
241 TRIAL BRIEF Memorandum in Support of Defendants' Second Oral Motion Judgment as Matter of Law FRCP 50 by Buzz Telecom Corp. (Rappa, Michael) (Entered: 08/22/2005)
242 Supplemental Proposed Jury Instructions by Buzz Telecom Corp. (Rappa, Michael) (Entered: 08/22/2005)
243 Jury Trial (DAY SIX) held on 8/22/2005 before Magistrate Judge Paul Cherry. All parties and counsel present. Defendant concludes with evidence and rests. Argument heard re rebuttal evidence. Defense oral motion to exclude all rebuttal evidence is denied. Defense oral motion to exclude testimony of Vincent Thomas CPA is denied. Rebuttal evidence presented by Plaintiff. Presentation of evidence concludes 2:00 PM-jurors dismissed for remainder of day. Argument heard. Defense second oral motion for mistrial for alleged violation of motion in limine and violation of court order is denied. Defense renewed oral motion for judgment on the evidence is denied. Final jury instruction conference-formal objections of record. Trial adjourned to 8:30 AM 8/23/05 for closing comments and deliberations. (Court Reporter Linda Diaz.) (smb) (Entered: 08/23/2005)
244 Proposed Verdict Forms(smb) (Entered: 08/23/2005)
245 Court's Final Jury Instructions (1-34)(smb) (Entered: 08/23/2005)
246 ORDER for Jury Meals. Signed by Judge Paul R Cherry on 8/23/05. (smb) (Entered: 08/23/2005)
247 Jury Trial COMPLETED 8/23/2005 before Magistrate Judge Paul Cherry. All parties and counsel present. Closing arguments presented. Jurors charged with the Court's final instructions (1-35). Jury deliberates 11:50 AM to 3:10 PM. Jury returns verdict in favor of Defendants US Bell Corporation, Link Technologies Corp d/b/a US Bell, Buzz Telecom, Corp and against EEOC with respect to all claims involving Amanda Beard, Kelly Cripe, Lisa Hogan, Lisa Lacefield, and Waushara Person. All jurors polled with no change in verdict. Clerk directed to enter final judgment on the verdict. Plaintiff, by counsel, states to the Court that it

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will no longer pursue claim for injunctive relief. The issue of back pay is moot. (Court Reporter Linda Diaz.) (smb) (Entered: 08/23/2005)
248 RETURN ORIGINAL DEPOSITIONS. Court returns all original depositions to counsel of record except that of William Brzycki taken 11/7/04. The Court will retain deposition of William Brzycki (intact with deposition exhibits) until such time for appeal expires. (smb) (Entered: 08/23/2005)
249 CLERK'S ENTRY OF JUDGMENT in favor of defendants and against plaintiff. (efc, ) (Entered: 08/23/2005)
250 JURY VERDICTS (smb) (Entered: 08/23/2005)
251 TRIAL EXHIBIT and WITNESS LIST. Court retains custody of all trial exhibits both admitted and not admitted until such time for appeal expires.(smb) (Entered: 08/23/2005)
252 ORDER dismissing plaintiffs claim for injunctive relief. Signed by Judge Paul R Cherry on 8/25/05. (kds) (Entered: 08/26/2005)
253 BILL OF COSTS by Buzz Telecom Corp. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15 # 16 # 17 # 18 # 19 # 20 # 21 # 22 # 23 # 24 # 25 # 26 # 27 # 28 # 29 # 30 # 31 # 32 # 33 # 34)(Rappa, Michael) (Entered: 09/06/2005)
254 MOTION for Attorney Fees by Defendant Buzz Telecom Corp. (Attachments: # 1 # 2 # 3 # 4)(Rappa, Michael) (Entered: 09/07/2005)
255 NOTICE Of Costs To Be Taxed by Buzz Telecom Corp re 253 Bill of Costs. (kds) (Entered: 09/07/2005)
256 RESPONSE in Opposition re 254 MOTION for Attorney Fees filed by Equal Employment Opportunity Commission. (Farnsworth, Jo Ann) (Entered: 09/12/2005)
257 MOTION To Review Taxation of Costs re 255 Notice (Other), 253 Bill of Costs, by Plaintiff Equal Employment Opportunity Commission. (Bird, Kenneth) (Entered: 09/14/2005)
258 MEMORANDUM in Support of 257 MOTION To Review Taxation of Costs re 255 Notice (Other), 253 Bill of Costs, filed by Equal Employment Opportunity Commission. (Bird, Kenneth) (Entered: 09/14/2005)
259 REPLY to Response to Motion re 254 MOTION for Attorney Fees filed by US Bell Corporation, Link Technologies Corp, Buzz Telecom Corp. (Johnson, Steven) (Entered: 09/20/2005)
260 RESPONSE in Opposition re 257 MOTION To Review Taxation of Costs re 255 Notice (Other), 253 Bill of Costs, filed by Buzz Telecom Corp. (Rappa, Michael) (Entered: 10/03/2005)
261 REPLY to Response to Motion re 257 MOTION To Review Taxation of Costs re 255 Notice (Other), 253 Bill of Costs, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A: Invoice for deposition of Alan Furmankiewicz 2004 September 2)(Bird, Kenneth) (Entered: 10/12/2005)

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262 NOTICE OF APPEAL by Equal Employment Opportunity Commission. (Bird, Kenneth) (Entered: 10/20/2005)
263 Short Record Sent to US Court of Appeals re 262 Notice of Appeal: copy of verdict form, clerk's judgment, 7th Circuit Appeal Information Sheet, notice of appeal and docket sheet (filed electronically) (smp) (Entered: 10/24/2005)
264 USCA Case Number 05-4091 for 262 Notice of Appeal filed by Equal Employment Opportunity Commission. (kds) (Entered: 10/28/2005)
265 TRANSCRIPT REQUEST by Equal Employment Opportunity Commission for proceedings held on 8-12-05 (pre trial conference), 8-15-05 thru 8-23-05 (trial), 8-22-05 (opening statement, instruction conference), 8-23-05 (closing statements, court instructions) before Judge Cherry, re 262 Notice of Appeal. (kds) (Entered: 11/04/2005)
266 MANDATE of USCA as to 262 Notice of Appeal filed by Equal Employment Opportunity Commission that motion to dismiss filed 12/8/05 is granted pursuant to FRAP 42(b) and no record filed with this court. 0 volumes returned. (kds) (Entered: 12/12/2005)
267 ORDER granting in part and denying in part 257 Motion review taxation of costs . Defendants have leave to submit a revised request for deposition transcript costs with supporting exhibits on/before 2/20/06. Signed by Judge Paul R Cherry on 1/31/06. (kds) (Entered: 01/31/2006)
268 BILL OF COSTS Supplemental Petition for Deposition Costs by Buzz Telecom Corp. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit)(Rappa, Michael) (Entered: 02/20/2006)
269 ORDER granting 268 Bill of Costs filed by defendant to the extent that it requests costs for original deposition transcripts in the amount of $1,159.55. Signed by Judge Paul R Cherry on 3/13/06. (efc, ) (Entered: 03/13/2006)
270 OPINION AND ORDER denying 254 Petition for Attorney Fees. Signed by Judge Paul R Cherry on 4/13/06. (efc, ) (Entered: 04/13/2006)

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 USCA7 Docket Sheet for 05-4091

http://pacer.ca7.uscourts.gov/cgi-bin/dktrpt.pl?CASENUM=05-4091&p...

General Docket
US Court of Appeals for the Seventh Circuit

Court of Appeals Docket #: 05-4091 Nsuit: 1442 Civil Rights Jobs-US Pla EEOC v. U.S. Bell Corp, et al Appeal from: United States District Court

Filed: 10/25/05

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Lower court information:

District: 0755-2 : 03 C 237 Ordering Judge: Paul R. Cherry, Magistrate Judge Date Filed: 6/16/03 Date order/judgment: 8/25/05 Date NOA filed: 10/20/05 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Fee status: U.S. appellant

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Prior cases:
None Current cases:
None

Docket as of December 8, 2005 11:02 pm

Page 1

05-4091 EEOC v. U.S. Bell Corp, et al

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Plaintiff - Appellant

Dori K. Bernstein FAX 202/663-7090 202/663-4734 Room 7046 [COR LD NTC ret] EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W. Washington, DC 20507 USA

v.

U.S. BELL CORPORATION Defendant - Appellee

Michael J. Rappa FAX 219/769-0092 219/769-0087 [COR LD NTC ret] JOHNSON & RAPPA 250 E. 90th Drive Merrillville, IN 46410-8102 USA

LINK TECHNOLOGIES, CORPORATION, doing business as U.S. BELL
Defendant - Appellee

Michael J. Rappa (See above) [COR LD NTC ret]

BUZZ TELECOM, CORPORATION Defendant - Appellee

Michael J. Rappa (See above) [COR LD NTC ret]

Docket as of December 8, 2005 11:02 pm

Page 2

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USCA7 Docket Sheet for 05-4091

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05-4091 EEOC v. U.S. Bell Corp, et al
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff - Appellant
v.
U.S. BELL CORPORATION, LINK TECHNOLOGIES, CORPORATION, doing business as U.S. BELL and BUZZ TELECOM, CORPORATION,
Defendants - Appellees

Docket as of December 8, 2005 11:02 pm

Page 3

05-4091 EEOC v. U.S. Bell Corp, et al

10/25/05

U.S. civil case docketed. [05-4091] [1916522-1] Transcript information sheet due 11/4/05 . Appellant's brief due 12/5/05 for EEOC . Docketing Statement due 10/27/05 . (elea)

10/28/05

ORDER: Pursuant to Circuit Rule 33, briefing will proceed as follows: [1916522-1] SCO [05-4091] 1. Appellant's brief due 12/16/05 for EEOC. 2. Appellee's brief due 1/17/06 for Buzz Telecom Corp, for Link Technologies, for U.S. Bell Corp. 3. Appellant's reply brief due 1/31/06 for EEOC. (hudk)

11/1/05

Terminated attorney Kenneth L. Bird for EEOC and added attorney Dori Bernstein per appearance form. Appearance form filed for Appellant EEOC by attorney Dori K. Bernstein. [05-4091] [1916522-1] (hudk)

11/1/05

Filed Appellant EEOC docketing statement. [05-4091] [1918905-1] (hudk)

11/8/05

ORDER: Pursuant to Circuit Rule 33, briefing will proceed as follows: [1916522-1] SCO [05-4091] 1. Appellant's brief due 1/9/06 for EEOC. 2. Appellee's brief due 2/8/06 for Buzz Telecom Corp, for Link Technologies, for U.S. Bell Corp. 3. Appellant's reply brief due 2/22/06 for EEOC. (hudk)

12/8/05

Filed motion by Appellant EEOC to dismiss case pursuant to FRAP 42(b). [1931218-1] [05-4091] (hudk)

12/8/05

ORDER: This cause is DISMISSED pursuant to FRAP 42(b). Mandate issued, no record to be returned. [05-4091] [0-0] (hudk)

Docket as of December 8, 2005 11:02 pm

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 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION

EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION, et al., )

)

Plaintiff,

)

)

v.

)

)

U.S. BELL, LINK TECHNOLOGIES, )

CORP., d/b/a U.S. BELL, and BUZZ

)

TELECOM CORP.,

)

)

Defendants.

)

CAUSE NO.: 2:03-CV-237-PRC

OPINION AND ORDER This matter is before the Court on a Motion for Summary Judgment [DE 142], filed by Defendants, U.S. Bell Corporation, Link Technologies, Corp. d/b/a U.S. Bell, and Buzz Telecom Corp. (collectively “U.S. Bell”) on March 30, 2005. For the following reasons, U.S. Bell’s Motion for Summary Judgment is granted in part and denied in part.

PROCEDURAL BACKGROUND The Plaintiff, Equal Employment Opportunity Commission (“EEOC”), filed a Complaint against U.S. Bell on June 16, 2003. In the Complaint, the EEOC alleges violations of Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991. The EEOC alleges that Tiffany Sims, Beatrice Johnson, Renee Roby, and a class of similarly situated employees were subjected to a hostile work environment and quid pro quo sexual harassment, that U.S. Bell forced Roby and a class of similarly situated employees to resign their employment, and that Sims, Johnson, Childs, Roby, and a class of similarly situated employees were demoted and/or terminated in

retaliation for their opposition to the unlawful practices and/or their participation in statutorily protected activity. The EEOC seeks to correct these alleged unlawful employment practices of U.S. Bell and its successor entities on the bases of sex and retaliation and to provide appropriate relief to Sims, Johnson, Roby, Childs, and a class of similarly situated employees who were adversely affected by the alleged practices. Specifically, the EEOC seeks compensatory damages, punitive damages, and injunctive relief against the Defendants.
U.S. Bell filed an Answer on July 16, 2003, denying the material allegations of the Complaint.
On October 10, 2003, a Motion to Intervene was filed by Joshua Childs, Tiffany Sims Childs (“Sims”), Beatrice Johnson, and Renee Roby. The Motion to Intervene was granted on November 7, 2003, and a Complaint by the Intervenor Plaintiffs was filed that same day. The Intervenor Complaint was brought against the U.S. Bell Defendants as well as Defendants Kurtis Kintzel (“Kurtis”), individually and in his corporate capacity, Keanan Kintzel (“Keanan”), individually and in his corporate capacity, and Gene Chill, individually and in his corporate capacity (collectively “Individual Defendants”).
On December 23, 2003, U.S. Bell and the Individual Defendants filed an Answer to the Intervenor Complaint.
On March 30, 2005, U.S. Bell filed a Motion for Summary Judgment. The EEOC filed its Brief in Opposition to the Motion for Summary Judgment on May 2, 2005. A Reply Brief in Support of the Motion for Summary Judgment was filed on May 31, 2005, by U.S. Bell.
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The parties have consented to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case. Thus, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).
SUMMARY JUDGMENT STANDARD The Federal Rules of Civil Procedure mandate that motions for summary judgment be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). Rule 56(c) further requires the entry of summary judgment, after adequate time for discovery, against a party “who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[S]ummary judgment is appropriate-in fact, is mandated-where there are no disputed issues of material fact and the movant must prevail as a matter of law. In other words, the record must reveal that no reasonable jury could find for the non-moving party.” Dempsey v. Atchison, Topeka, & Santa Fe. Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations and quotation marks omitted). A party seeking summary judgment bears the initial responsibility of informing a court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party may discharge its “initial responsibility” by simply “‘showing’-that is, pointing out to the district court-that there is an absence of evidence to support the non-moving party’s case.” Id. at
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325. When the non-moving party would have the burden of proof at trial, the moving party is not required to support its motion with affidavits or other similar materials negating the opponent’s claim. Id. at 323, 325; Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n.3 (7th Cir. 1994); Fitzpatrick v. Catholic Bishop of Chicago, 916 F.2d 1254, 1526 (7th Cir. 1990). However, the moving party, if it chooses, may support its motion for summary judgment with affidavits or other materials and thereby shift to the non-moving party the burden of showing that an issue of material fact exists. Kaszuk v. Bakery & Confectionary Union & Indus., Int’l Pension Fund, 791 F.2d 548, 558 (7th Cir. 1986); Bowers v. DeVito, 686 F.2d 616, 617 (7th Cir. 1982).
Once a properly supported motion for summary judgment is made, the non-moving party cannot resist the motion and withstand summary judgment by merely resting on its pleadings. Fed. R. Civ. P. 56(e); Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). Rule 56(e) establishes that “the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). Thus, to demonstrate a genuine issue of fact, the nonmoving party must do more than raise some metaphysical doubt as to the material facts; the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor of that party. NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995); Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). A court’s role is not to evaluate the weight of the evidence, to judge the credibility of the witnesses, or to determine the truth of the matter, but
4

instead to determine whether there is a genuine issue of triable fact. Anderson, 447 U.S. at 249-50; Doe, 42 F.3d at 443.
No heightened standard of summary judgment exists in employment discrimination cases nor is there a separate rule of civil procedure governing summary judgment in employment cases. Alexander v. Wisconsin Dept. of Health and Family Srvcs., 263 F.3d 673, 681 (7th Cir. 2001) (citing Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997)). However, intent and credibility are critical issues, frequently found in employment cases, which are genuinely contestable. Id. Nevertheless, summary judgment in favor of the defendant is hardly unknown, or for that matter, rare, in employment discrimination cases. Wallace, 103 F.3d at 1396.
FACTUAL BACKGROUND The facts viewed in the light most favorable to the non-moving party, the EEOC, are as follows. U.S. Bell, a telecommunication business, is owned and operated by Kurtis and Keanan Kintzel. A small portion of U.S. Bell is owned by Rob Dimitt who is not involved with the daily operations of the business. The business was started in 1992 and became known as U.S. Bell Corporation; although the name was later changed to Buzz Telecom (“Buzz”).1 Kurtis, who owns seventy-two percent of Buzz’s stock, is the Chairman of the Board and President of Buzz. Keanan owns twenty-six percent of Buzz’s stock and holds the positions of secretary and treasurer of Buzz. Bill Brzycki was the Vice President of Administration and Ethics Officer at Buzz; his responsibilities included overseeing all aspects of Buzz’s sexual harassment policy and employee complaints. Kelly Adwell Cripe was the Division 1 Manager at Buzz, oversaw hiring and ethics, was responsible for
1 Due to licensing concerns regarding the use of the name “Bell,” the company changed its name to Link Technologies Corp. d/b/a U.S. Bell in the spring of 2002. The name of the company was then changed to Buzz Telecom.
5

conducting exit interviews, and reported to Brzycki. Investigation of sexual harassment claims fell mainly on Cripe and Brzycki. Cripe oversaw hiring and ethics and was responsible for conducting exit interviews.
In November 2000, Brzycki, along with the company attorney, wrote Buzz’s sexual harassment policy. Though he wrote the policy, Brzycki cannot remember ever explaining the sexual harassment policy to anyone. Brzycki stated that he did not have much experience when dealing with claims of sexual harassment. Cripe personally read and signed a sexual harassment policy on her first day of work. Most employees were unaware a sexual harassment policy existed. The EEOC policy letter was shown to Margaret Robertson-Smith, Buzz’s Director of Communications, when she was first hired, but it was not posted anywhere in the building as it was kept in the reception desk filing cabinet. Robertson-Smith remembers having to sign a company policy when she was hired; however, she did not receive any sexual harassment training, as she described that it “was pretty much a free fall over there.” Pl. Br., Exh. 26, p. 13 (Robertson-Smith Dep.). An employee, Tiffany Sims, noted in her EEOC charge of discrimination that to her knowledge, U.S. Bell did not have a sexual harassment policy nor was one ever communicated to her. Employees Renee Roby and Beatrice Johnson denied any knowledge of a sexual harassment policy. Also, employee Iesha Cotton does not remember being given any paperwork regarding sexual harassment.
In 2000, Michael Norvil was hired by Buzz as a telemarketer. On October 12, 2000, Norvil drafted a memo that was added to his personnel file and that stipulated that his two prior employment positions had ended because of charges of sexual harassment and fraternization with other employees. Norvil stated that Buzz did not provide any sexual harassment training during his employment. In October 2000, Norvil was promoted to the position of Vice President of Expansion
6

at Buzz. This position involved overseeing all of the telemarketers, who were predominately female. All of the telemarketers worked in one large open room together at rows of tables.2 The work force of telemarketers was transient as employees came and went quickly and U.S. Bell was frequently hiring.3
At some point after being hired, Norvil signed an “Executive Employment Agreement,” which stipulated that “inter-office” relations were forbidden. Pl. Br., Exh. 19, p. 31-32 (Norvil Dep. Volume I). Relations were defined as “flirting, kissing, touching, etc.” Id. While in his supervisory position as Vice President of Expansion, Norvil admits violating the “Executive Employment Agreement” by having relations with several of his employees. Pl. Br., Exh. 19, p. 35 (Norvil Dep., vol. I). These violations included kissing Hilary Phillips, Amber Mink, Jennifer Turner, Stephanie Rodriguez, Kelly Hendle, Yanira Daniels, Melissa Grissom, and Andrea Boscovich. Norvil also had consensual relationships with three individual female employees. Norvil had sexual relations during lunchtime with another employee, Daniels, in a closet at the back of the sales floor. Daniels and Norvil both went into the closet to have sexual intercourse. They did not have sexual intercourse, but did engage in half-naked groping and kissing. Norvil also admits that he had sexual intercourse with an employee, Grissom, in the closet during work hours.
Roby, an employee, asserts that Norvil exposed his penis to her at work. Sometime prior to May 9, 2002, when Roby filed her charge with the EEOC, Roby had complained to Kurtis about Norvil’s behavior, especially the incident where he exposed his penis in front of her, and Kurtis
2 The telemarketers’ work environment was similar to a classroom with rows of tables without any partitions between the work stations.
3 Lisa Hogan noted that Buzz had about twenty telemarketers at one time and that “people came and went all the time.” D. Br., Exh. 17, p. 24 (Hogan Dep.).
7

responded, “Are you sure he wasn’t just tucking in his pants?” P. Br., Exh. B-2. Further, Norvil demanded that Roby perform oral sex, attempted to rub her breasts, and requested that she expose her breasts to him.4 Norvil told Johnson that Roby conducted oral sex on him in the break room and that Rasheeda Maxwell did the same to keep her job. In addition, Norvil wondered out loud to Johnson “how good a mixed girl could suck dick, knowing that [Johnson was] of black and Mexican origin.” Pl. Br., Exh. C1, p. 1.
Norvil also had sexual intercourse with employees outside of the workplace. These encounters did not remain outside of the office because Norvil repeatedly bragged about and discussed these encounters with his employees and co-workers in the workplace. Elena Magana remembers that it was common knowledge that Norvil was having sexual relations with the female telemarketers. For example, after a sexual encounter with Rodriguez at his home, Norvil told other employees that Rodriguez was scared after he “got her naked and when she saw how big” his penis was. Pl. Br., Exh. 23, p. 12 (Norvil Dep. vol. II).
Comments about sex and sexual jokes were repeatedly made several times a day by Norvil to and in the presence of other employees, and it was common knowledge that Norvil made sexual comments to the female employees. These comments included making statements on the sales floor about the size of his penis and his desire to get “laid.” Pl. Br., Exh. 18, p. 76 (Magana Dep.). Cotton mentioned that she was frequently told unwelcome jokes about sex. In addition to the sexual jokes and comments, Norvil was overheard calling the female employees: “dirty, skank, whore, slut, and Bs.” Pl. Br., Exh. 11, p. 30-1 (Cotton Dep.). These comments included telling one female employee,
4 During a meeting with Kurtis, Norvil claimed this was a consensual sexual interlude. However, as the Court must view the facts in the light most favorable to the non-moving party, the Court will consider the conduct nonconsensual for the purposes of ruling on the Motion for Summary Judgment.
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“You look like a slut today.” Pl. Br., Exh. 8, p. 50. (Bernard Dep.). During work hours, Norvil often expressed his desire to have sexual intercourse with other employees.
Along with the sexual comments, Norvil repeatedly made remarks about the clothes worn by the female employees. For instance, if a woman wore an article of clothing that revealed her cleavage, Norvil would say “I see something I like.” Id. Sims asserts that Norvil told her at work that he wanted to have sex with her and that he poured water down the front of her shirt. Norvil also told Daniels, when she was bent down to pick up something on the floor, “Oh, you could have stayed down there.” Pl. Br., Exh. 13, p. 24. (Daniels Dep.). Norvil was overheard by Lisa Hogan, a telemarketer at Buzz, commenting on women’s clothing, underwear, and breasts. Pl. Br., Exh. 14, p. 37 (Hogan Dep.). She noted that he would often remark upon women’s panty lines and say, “I would like to have sex with her,” when speaking about other employees. Id. Amanda Bernard once overheard Norvil loudly tell another female employee, Hogan, to “tuck her tit back in her shirt because it was popping out.” Pl. Br., Exh. 8, p. 49 (Bernard Dep.). Bernard noted that Hogan seemed angry and uncomfortable about the comment. Johnson was told by Norvil that he could tell who she was by looking at her butt. Norvil often observed job candidates at U.S. Bell and told Kelly Cripe to hire the attractive ones. If the employee did not go along with the comments, Norvil would be unpleasant to the employee for the rest of the day. Norvil’s comments about how women looked, which he made almost every day, would make the female employees uncomfortable.
Norvil also often rubbed female employees’ shoulders while they were working. For instance, both Serveria Scott and Magana saw Norvil frequently rub the shoulders of fellow female employees. Magana and Scott were subjected to it themselves. This conduct made Magana uncomfortable, which she conveyed to Norvil with a “funny look,” and later she told him “you had
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no right touching me.” Pl. Br., Exh. 18, p. 13 (Magana Dep.). Other employees would complain about Norvil rubbing their shoulders. Norvil would only rub the shoulders of female employees. Another employee, Cotton, remembers an occasion when Norvil touched her neck and she told him “would you please not do that.” Pl. Br., Exh. 11, p.38 (Cotton Dep.).
In addition to shoulder rubbing, Norvil frequently tipped female employees’ chairs so that he could look down their shirts and watch their breasts jiggle. This occurred to Lisa Lacefield who stated that Norvil would target female employees who wore low neck lines so “if he tipped her back he could look right down her shirt.” Pl. Br., Exh. 17, p. 53 (Lacefield Dep.). She also testified that the chair tipping occurred several times a week. If there was a new employee, Norvil would tip her chair and the women would know “that’s Mike’s next victim. You know, that’s the girl he’s going to try to talk to or get in her pants.” Id. at 60. Johnson was subjected to Norvil looking down the front of her shirt while “covering his penis as if he was turned on.” Pl. Br., Exh. C-1, p. 1. She was also often pushed and bumped into by Norvil while he felt her breasts “as if it were an accident.” Id. Norvil hugged the female employees while the women just stood there in front of all the other employees. On one occasion, Norvil took Roby’s hand and preceded to kiss and suck on her fingers.
In addition to the sexual activities, sexual comments, and shoulder rubbing, Norvil repeatedly asked the female employees for dates. Norvil often asked female employees for other female employees’ personal phone numbers in order to call them for dates. Hogan recounted a time when Norvil requested that she help get another female employee interested in him. If Hogan made good comments about Norvil to the employee, then he would give Hogan good leads on customers that would lead to higher commissions or he would allow her to leave early. Norvil asked out Katrina Reillo and Magana, who both refused his requests. In fact, Reillo complained to her co-workers that
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she did not like Norvil’s requests for dates. Magana went even further and complained to Keanan about Norvil’s behavior around November and December of 2002. Scott commented that she felt it was inappropriate of Norvil to ask employees out on dates, given his position with the company. Bernard was also asked out by Norvil on several occasions. On one such occasion, during Bernard’s employee evaluation with Norvil, Norvil told her that “the reason I didn’t write you up is because I like you” and then asked for a date and her phone number. Pl. Br., Exh. 8, p. 55 (Bernard Dep.).
Norvil solicited sex from employees, including Sims and Roby. In Sims’ EEOC charge of discrimination, she asserts that, on January 17, 2002, Norvil indicated to Sims that he wanted to have sex with her. Norvil told Sims that if her fiancee had not been working that day that Norvil and she “would have ended up fucking.” Pl. Br., Exh. A1, p. 2. In addition to the solicitation of sex, Norvil also told Sims’s co-workers that “he could fuck [her] anytime he wanted.” Id. At another time, Norvil indicated to Waushara Person that “I’m going to get it,” which she understood to mean that Norvil was “going to have sex with [her] one day.” Pl. Br., Exh. 24, p. 36-7 (Person Dep.). Johnson was also propositioned by Norvil when he asked her to participate in a threesome.
As Buzz’s Vice-President of Expansion, Norvil was in charge of overseeing the sales department, including telemarketers. Even though Norvil claims he only could recommend termination, employees heard on several occasions from Norvil that he could fire employees for any reason. Robertson-Smith, Buzz’s Director of Communications, testified that Norvil had the authority to fire anyone he wanted who worked on the sales floor. Also, Cotton remembered Norvil firing one female employee while calling her a “dirty B.” Pl. Br., Exh. 11, p. 31 (Cotton Dep.). Norvil could write up employees for infractions, and he often did so. Scott observed that unfair and unwarranted write-ups were made because the employee was female. As a result, Norvil could and often did
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intimidate, frighten, and threaten his employees. In fact, based on his comments, Hogan was aware that “it would be immediate termination if we complained over his head.” Pl. Br., Exh. 14, p. 45 (Hogan Dep.). Roby stated in her EEOC Charge that Norvil frequently mentioned that he had the power to do whatever he wanted so long as the sales numbers were up. Magana heard Norvil say that employees needed to go along with him to keep their jobs. Cotton commented that, if the employees went behind Norvil’s back “and told somebody something that he told you, you were fired. If you stood up for yourself, you [were] fired. If you talked back to him or embarrassed him in front of everyone else, you [were] fired.” Pl. Br., Exh. 11, p. 38 (Cotton Dep.). Norvil made it clear to the female employees that they had to go along with his wishes if they did not want to be terminated. Norvil once told his employees that, “if anyone has a problem with me make a report, give it to Cathy Olive, then Cathy will give it to me, I’ll laugh, I’ll tear it up and you’ll be fired.” Pl. Br., Exh. 18, p. 81 (Magana Dep.).
Cripe remembers that Norvil “was known to have a temper and lots of sexual advances towards women.” Pl. Br., Exh. 24, p. 95 (Cripe Dep.). As a result of her position, Cripe often heard complaints from women who worked for Norvil on the sales floor, which included complaints that he made the female employees uncomfortable and that they did not like when he touched them. In addition, the female employees were afraid of Norvil because “they thought if they didn’t let him do certain things to them that he would fire them, or he would come down hard on them.” Pl. Br., Exh. 11, p. 94-5 (Cripe Dep.). Robertson-Smith observed that Norvil was “very forceful and flirtatious.” Pl. Br., Exh. 26, p. 20 (Robertson-Smith Dep.). When new female employees were hired, they were often warned by Cripe, Robertson-Smith, and Brzycki to stay away from Norvil.
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The indiscretions and actions of Norvil at Buzz Telecom began to be known by the management and supervisors of Buzz during the summer of 2001. In May 2001, there were complaints about Norvil’s activities. On May 24, 2001, Jaci Erwin resigned from her position and wrote a report stating, “I resigned because of the continuing harassment from Division 6a manager Mike [Norvil].” Pl. Br., Exh. 21, p. 58-60 (Norvil Dep. vol. 1, Exh. 10).5 Cripe testified that she first heard complaints in the summer of 2001 and that she forwarded all complaints to Brzycki. In a July 25, 2001 memo, Keanan refers to a meeting with Norvil to discuss “Mike’s recent inter-divisional dating activities.” Id. at 82-83. On September 12, 2001, Phillips stated on her “Employment Status Form,” which each employee filled out at the termination of employement, that “Mike Norvil approached me several times and asked me ‘out.’ I told him no on all occasions, but he still persisted.” Pl. Br., Exh. 19, p. 60-67 (Norvil Dep., vol. 1, Exh. 11). In her “Employee Status Form,” dated October 22, 2001, Cassandra Mardis Idisr states that she could have “filed sexual harassment charges against Norvil.” Pl. Br., Exh. 19, p. 75, Dep. Exh. 11 (Norvil Dep., vol. 1). Further, during her exit interview on September 12, 2001, Lacefield reported Norvil’s conduct, including the chair tipping, to Brzycki. Lacefield also told Keanan about Norvil’s behavior. When asked by Keanan why she did not complain earlier, she told him that she believed she would have been terminated if she had. Keanan denied this and told Lacefield he needed to be notified if there was a problem.
Sims contacted Cripe on January 25, 2002, to meet with her on January 28, 2002, in order to report Norvil’s sexual harassment. On January 28, 2002, Norvil fired Sims before she met with Cripe. However, Sims met with Cripe after she was terminated. After one month, Sims was rehired
5 Normal procedure for an exit interview included a termination sheet (“Employee Status Form”) written out by the employee’s direct supervisor and then a meeting with Cripe to discuss the termination. If there was no termination sheet, the employees could meet with Cripe at any time to discuss their resignation. Cripe did not make the termination decision as it was left to the department manager.
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on the condition that she not work on Norvil’s shift and that Norvil not be her direct supervisor. Subsequently, Norvil was again on her shift and her direct supervisor. When Cripe received the sexual harassment complaint from Sims, she passed the report on to Brzycki, who Cripe states did not take it seriously. Upon receiving it, Brzycki commented that Norvil would not have hit on Sims “because [she] was overweight and unattractive.” Id. at 141. According to Cripe, Sims’ report was never followed up by either her or Brzycki, although she admits that Kurtis did take action after learning of Sims’ complaint.
Brzycki noted that there were a total of ten complaints made by exiting employees and that he noted them to Keanan, then placed the reports in Norvil’s personnel file. According to RobertsonSmith, there were at least four complaints about Norvil. Norvil was not disciplined nor was any investigation done based on these reports from employees. Brzycki noted that Norvil was given “a lot of breaks” because he did well at his job and was producing sales. Pl. Br., Exh. 10, p.124 (Brzycki Dep.). Both Brzycki and Keanan warned Norvil against this type of behavior.
On April 26, 2002, Sims, a telemarketer, filed a Charge of Discrimination with the EEOC on the basis of sex and retaliation, and on May 28, 2002, Sims filed an Amended Charge for the purpose of adding Kurtis and Keanan as named respondents, alleging that they sought to terminate her employment in retaliation for the prior charge filed with the EEOC. On April 29, 2002, Roby filed a Charge of Discrimination with the EEOC on the basis of sex and retaliation, and on June 10, 2002, Roby filed an Amended Charge on the basis of sex and retaliation related to her treatment after she filed her original Charge. On May 8, 2002, Johnson, a telemarketer, filed a Charge of Discrimination with the EEOC on the basis of race and sex, and on June 7, 2002, Johnson filed an Amended Charge,
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alleging discrimination on the basis of race, sex, and retaliation. On December 9, 2002, Person filed a Charge of Discrimination with the EEOC on the basis of retaliation after she left U.S. Bell.
According to Brzycki, sexual harassment complaints that were received were investigated. In direct contrast to Brzycki’s claim, Bernard remembers female employees making complaints to the management about Norvil and never hearing a response back. Cripe testified that Kurtis was aware of Norvil’s behavior before the EEOC was contacted and that Kurtis “was doing nothing to punish Mike in the way he should have been punished.” Id. at 153. Daniels noted that “whenever [female employees] tried to say anything to the owner, Keanan, nothing would get done.” Pl. Br., Exh. 13, p. 21 (Daniels Dep.). In a memo dated March 19, 2002, Brzycki wrote that
[Norvil] had been written up by staff leaving the company on many occasions with no ramifications from his senior Keanan Kintzel. Keanan was made aware of the reports by me and took the point of view that because we had staff members sign the EEOC policy letter we were safe. We had spoken to Mike several times about his behavior concerning women in the office and he promised us that nothing further would occur. We did not take into account the effect that Mike’s behavior was having on the staff. Pl. Br., Exh.10, Dep. Exh. 28 (Brzycki Dep.). Kurtis believes the first complaint of Norvil’s behavior he received was from Sims in March of 2002, and Kurtis claims that, once he learned of the complaints, he conducted a more thorough investigation than those undertaken by Cripe or Brzycki. On March 13, 2002, in response to Sims’ complaint, Kurtis requested that the employees make reports if they had problems with Norvil. Subsequently, a group of telemarketers, including Sims, Johnson, and Roby, filed reports about Norvil. After the reports were filed, Kurtis read them one by one with Norvil and testified in his deposition that Norvil seemed surprised and stunned by all of the allegations.
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Once the charges of discrimination were filed with the EEOC, Kurtis and Keanan came into her office to review employment files of the employees who filed the complaints in order to “to plot against the women.” Id. at 137. Cripe commented that Kurtis and Keanan “were always trying to cover for Mike or make excuses for Mike.” Id.
In addition to meeting with Norvil, Kurtis also met with Brzycki to discuss the complaints and determine what discipline should be meted out. Brzycki noted in his deposition that, though he could not remember the specifics of each report, he did notice a pattern. In response to Kurtis, Brzycki recommended that Norvil be kept out of the building until the claims could be investigated. Brzycki told Kurtis that Norvil should be terminated because of the number of complaints and the constant trouble Norvil caused, and Kurtis agreed. Further, Brzycki stated in his deposition that U.S. Bell “kind of anticipated that we may have more trouble, but we just–we weren’t sure how to deal with it.” D. Br., Exh. 24, p.82 (Brzycki Dep.).
Despite Brzycki’s recommendation of termination, Kurtis suspended Norvil indefinitely on March 18, 2002. In the same memorandum, Brzycki was relieved of his ethics duties due to his inability, in Kurtis’ opinion, to handle the situation concerning Norvil’s behavior with female employees, and Cripe, Kathy Olive–the Sales Trainer, and Joshua Childs–Director of Sales Services, were warned for accepting and holding a post, but not performing its duties.
In his deposition, Kurtis testified that Norvil’s suspension included a requirement that Norvil take an ethics course, labor-intensive duties away from the sales office such as groundskeeping, a reduction of pay, and meeting with the women who had made the reports to attempt to rectify the situations. Cripe noted that Norvil was on the sales floor and in the building during his suspension. On April 3, 2002, Kurtis wrote Norvil a note asking that he stay in the administration section of the
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building or outside because the “reps” were unsatisfied with his presence. Norvil’s suspension ended and he was reinstated in or about June of 2002.
According to Hogan and Bernard, Norvil’s return made them uncomfortable as Norvil’s behavior did not change after the suspension. Roby noted that she was humiliated and stressed when Norvil was allowed back on the sales floor after she had complained of his behavior. On the day of Norvil’s return, Roby left work early due to chest pains, which continued for the next two days. Bernard also noted that she was ill at ease with Norvil’s return to work after his suspension and had to leave work early because she was so uncomfortable. Cripe resigned her position once Norvil was reinstated because she “was tired of dealing with everything to do with Mike and nothing being done about it.” Pl. Br., Exh. 11, p. 132 (Cripe Dep.). Further, once Norvil returned, Person recognized that he acted in a manner expressing that “no matter what we told Kurtis, he was still going to be Vice President of Expansion.” Id. at 52. His coming back was like a “smack in the face” to Person and other employees. Id.
DISCUSSION In its Complaint, the EEOC alleges that U.S. Bell engaged in sexual harassment in violation of Title VII of the Civil Rights Act of 1964. This broad claim of sexual harassment includes the allegations that a class of U.S. Bell employees was subjected by their employer to a hostile work environment, quid pro quo sexual harassment, retaliation, and constructive discharge. U.S. Bell filed a Motion for Summary Judgment on all of the EEOC’s claims and asserts that the evidence put forward by the EEOC does not rise to the level of actionable Title VII sexual harassment. U.S. Bell also maintains that, even if the EEOC can prevail on its claims, the Ellerth/Faragher affirmative defense would defeat those claims. U.S. Bell has not moved for summary judgment on the claims
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of the individual Intervenor Plaintiffs, nor have the Individual Defendants joined in U.S. Bell’s Motion for Summary Judgment. The EEOC responds that the evidence does rise to the level of an actionable hostile work environment, that U.S. Bell has waived its right to assert the affirmative defense, and that, even if the Court considers the affirmative defense, U.S. Bell is not entitled to its protection. The Court will address each claim in turn.
A. Hostile Work Environment Claim Title VII of the Civil Rights Act of 1964 forbids an employer to “discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex . . . .” 42 U.S.C. § 2000e-2(a)(1). Sexual harassment that creates a hostile work environment is actionable under Title VII because “the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their . . . gender . . . offends Title VII’s broad rule of workplace equality.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993). Through Title VII, Congress sought to strike at the complete spectrum of disparate treatment based on sex in the workplace. Id. at 21. In order to survive summary judgment based on a hostile work environment claim, the EEOC must demonstrate: (1) the employee was subjected to unwelcome harassment, (2) the harassment was directed at her because of her sex, (3) the conduct was so severe or pervasive as to alter the conditions of her employment, and (4) there is a basis for employer liability. See Kriescher v. Fox Hills Golf Resort and Conference Ctr., FHR, Inc., 384 F.3d 912, 915 (7th Cir. 2004); Quantock v. Shared Mktg. Servs., 312 F.3d 899, 903 (7th Cir. 2002); see also Meritor Sav. Bank, FSB, v. Vinson, 477 U.S. 57, 67 (1986) (severe or pervasive). A hostile work environment is one that is both objectively and subjectively offensive. See Quantock, 312 F.3d at 903.
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The first two prongs of the hostile work environment analysis are easily met by the EEOC. The first prong demands that the harassment be unwelcome by the victims. “[T]he question whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact . . . .” Rennie v. Dalton, 3 F.3d 1100, 1107 (7th Cir. 1993) (citing Meritor, 477 U.S. at 68). Although some of Norvil’s sexual interaction with employees was consensual, the evidence presented by both parties in this case demonstrates that other female employees were humiliated and made uncomfortable by Norvil’s nonconsensual behavior. Several female employees, including Daniels, Lacefield, Roby, Johnson, Magana, Person, Cotton and Scott claimed they disliked Norvil touching them, commenting on their bodies, and jiggling their chairs to see their breasts move. Johnson, Cotton, Bernard, and Hogan testified that his jokes and comments were unwelcome. Magana and Cotton both told Norvil to stop touching them, and Magana gave Norvil a look that conveyed her discomfort. Norvil made comments about the women such as “You look like a slut today,” and he called the female employees “dirty, skank, whore, slut, and Bs.” Furthermore, the female employees, such as Sims, Reillo, Bernard, Roby, Johnson, Phillips, and Magana repeatedly turned down Norvil’s requests for dates or his propositions for sex, demonstrating that these advances were not welcome. Finally, a number of the women, including Magana, Idisr, Person, Lacefield, Erwin, and Sims, complained to U.S. Bell management–Cripe, Keanan, and Brzycki–and other co-workers about Norvil’s constant barrage of sexual comments and touching. From the evidence of how the employees responded to Norvil’s behavior, a reasonable jury could find that the female employees of U.S. Bell did not welcome or invite Norvil’s conduct.
The second prong requires that the harassment be based on the sex of the employee. Plaintiffs must prove more than that the supervisor treated everyone poorly; rather plaintiffs must
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make a showing that they were targeted because of their sex. See Wyninger v. New Venture Gear,
Inc., 361 F.3d 965, 976 (7th Cir. 2004). Not all comments with sexual content or connotation are
actionable; rather, “[t]he critical issue . . . is whether members of one sex are exposed to
disadvantageous terms or conditions of employment to which members of the other sex are not
exposed.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). Whereas female
employees at U.S. Bell had their shoulders repeatedly rubbed, had their chairs tipped, and were the
recipients of sexual propositions, the male employees were not subjected to this behavior. As noted
by Magana, Norvil would not rub the shoulders of male employees, nor were male employees
subjected to sexual advances. Based on Scott’s testimony, male employees were not written up by
Norvil in ways that seemed unfair and unwarranted. Based on this evidence, a reasonable jury could
conclude that female employees were targeted by Norvil for sexual comments, touching, and sexual
propositions because of the employees’ sex.
To analyze the severe or pervasive nature of the harassment, which constitutes the third prong
of this test for hostile work environment, both a subjective and objective inquiry is necessary.6 The
subjective inquiry compels the court to ask whether the victims subjectively perceived the
6 A line of cases in the Seventh Circuit seemingly requires a determination that the hostile work environment seriously affect the psychological well-being of the plaintiff. See, e.g., Moser v. Indiana Dept. of Corrections, 406 F.3d 895, 902 (7th Cir. 2005) (including in the third prong of the hostile work environment test a requirement of psychological injury); McPherson v. City of Waukegan, 379 F.3d 430, 437-38 (7th Cir. 2004) (same); Durkin v. City of Chicago, 341 F.3d 606, 611 (7th Cir. 2003) (same); Hall v. Bodine Elec. Co., 276 F.3d 345, 354-55 (7th Cir. 2002) (same); Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1032 (7th Cir. 1998) (same); Rennie v. Dalton, 3 F.3d 1100, 1107 (7th Cir. 1993) (same); Swanson v. Elmhurst Chrysler Plymouth, Inc., 882 F.2d 1235, 1238 (7th Cir. 1989) (same). However, the United States Supreme Court explicitly held that, as long as an employee subjectively perceived the workplace to be hostile, it would be enough to prevail without a showing of psychological harm. Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). In accordance with this precedent, another line of Seventh Circuit cases does not require proof of psychological injury. See, e.g., Kriescher v. Fox Hills Golf Resort, 384 F.3d 912, 915 (7th Cir. 2004) (making no mention of a requirement to prove the plaintiff was psychologically injured); McKenzie v. Milwaukee County, 381 F.3d 619, 624 (7th Cir. 2004) (same); Wyninger, 361 F.3d at 975 (same); Rhodes v. Illinois Dept. of Transp., 359 F.3d 498, 505 (7th Cir. 2004) (same); Saxton v. American Tel. and Tel. Co., 10 F.3d 526, 533 (7th Cir. 1993) (recognizing that the Supreme Court “has now made clear that the plaintiff need not prove that she was psychologically injured”). Accordingly, the Court will follow the holding in Harris and will not require the EEOC to make a showing of psychological injury to demonstrate that the harassment was severe or pervasive.
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environment to be abusive such that it altered the conditions of their employment. See Harris, 510 U.S. at 21-22 (1993); Hostetler v. Quality Dining, Inc., 218 F.3d 798, 807 (7th Cir. 2000).
As for the subjective inquiry, the record reflects that a number of the women subjectively perceived the workplace as hostile based on Norvil’s sexual harassment. The evidence provided by both parties shows that many female employees personally felt humiliated, uncomfortable, and offended by Norvil’s conduct. In fact, some female employees left their employment to escape Norvil’s conduct. Others complained about his behavior to each other and U.S. Bell management. When Norvil returned from his suspension, Hogan, Roby, Bernard, Person, and Cripe felt uncomfortable about his return and were concerned by the lack of change in his behavior. In the extreme, Roby noted that she had chest pains and was humiliated, which required her to leave work early that day. Also, upon Norvil’s return, some women resigned rather than continue to deal with Norvil. Subjectively, the evidence demonstrates that the female employees of U.S. Bell felt that their workplace was a hostile work environment when Norvil was in charge.
Turning to the objective inquiry, the Court must query whether a reasonable person in the plaintiff’s position, considering all of the circumstances, would find the environment hostile. See Harris, 510 U.S. at 21 (1993); see also Hostetler, 218 F.3d at 807 (citing Oncale, 523 U.S. at 81). When considering all the circumstances, the Court may consider “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris, 510 U.S. at 23; Russell v. Bd. of Trustees of the Univ. of Ill., 243 F.3d 336, 343 (7th Cir. 2001); Hostetler, 218 F.3d at 806-07. The Seventh Circuit has determined that “[i]solated and/or trivial remarks of a sexual nature do not satisfy the definition of sexual harassment: the offensive conduct
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must be persistent.” Rennie, 3 F.3d at 1107 (internal quotations marks omitted) (alteration in original).
A hostile work environment is defined by the Seventh Circuit as “hellish.” Id. “When the harassment moves beyond the sort of casual contact which (if it were consensual) might be expected between friendly co-workers, and manifests in more intimate, intrusive forms of contact, it becomes increasingly difficult to write the conduct off as a pedestrian annoyance.” Hostetler, 218 F.3d at 807. Second-hand harassment, although not given as much weight as direct harassment, is relevant to the hostile work environment inquiry. See Hildebrandt v. Illinois Dept. of Natural Res., 347 F.3d 1014, 1035 (7th Cir. 2003) (holding that second-hand harassment, that is, comments not directed to the plaintiff, do not have the same impact as harassment directed at the plaintiff); Patt v. Family Health Sys., 280 F.3d 749, 754 (7th Cir. 2002) (holding that second-hand harassment claims are relevant to the plaintiff’s claim).
There is no “mathematically precise” test to determine a hostile work environment as it is a fact-intensive inquiry. Robinson v. Sappinton, 351 F.3d 317, 329 (7th Cir. 2003). Analyzing a hostile work environment claim is often a very difficult process as there is no bright line test. See, e.g., Kriescher, 384 F.3d at 912 (summary judgment is appropriate because the employee was not subjected to unwanted physical contact nor were disparaging comments directed at her); Robinson, 351 F.3d at 317 (noting that the defendant made several sexually overt comments, took inappropriate interest in plaintiff’s dating life, made gestures “that when put in the larger context, served as a constant reminder of [his] interest in her, sexually suggestive incidents occurred on an almost weekly basis and that “she could not avoid personal conduct and still do her job”); Patt, 280 F.3d at 749 (summary judgement was affirmed as eight comments over the course of employment were too sporadic to be severe or pervasive); Hostetler, 218 F.3d at 812 (reversing summary judgment because
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a reasonable person could find that a forcible kiss, unfastening a female employee’s bra, and describing his effective oral sex technique created a hostile work environment); Adusumilli v. City of Chicago, 164 F.3d 353 (7th Cir. 1998) (holding that scattered and offhand statements were not enough to create a hostile work environment). As the Seventh Circuit noted in Baskerville v. Culligan:
On one side lie sexual assaults; other physical contact, whether amorous or hostile, for which there is no consent express or implied; uninvited sexual solicitations; intimidating words or acts; obscene language or gestures; pornographic pictures. On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of coarse and boorish workers . . . . It is not a bright line, obviously, this line between a merely unpleasant working environment on one hand and a hostile or deeply repugnant one on the other . . . .” 50 F.3d 428, 430 (7th Cir. 1995) (internal citations omitted). The Court finds that a reasonable person in the position of the female employees at U.S. Bell could find that their workplace was hostile and abusive. See Harris, 510 U.S. at 21-22. This case encompasses more than a few off-hand comments with sexual connotations. Much of Norvil’s actions fall on the side of the line that divides abusive behavior from that which is merely vulgar or mildly offensive. Norvil exposed himself to Roby and sucked on her fingers. He also rubbed the shoulders of numerous women and touched the breasts of others. Norvil made comments every day about how the female employees’ bodies and clothing looked, he repeatedly solicited different employees for sex, and several times every week he would tip the chairs of female employees to look down their shirts. In addition, Norvil frequently made sexual jokes, commented on his sex life, and requested dates repeatedly from the same individuals. A reasonable person in the position of these women might find Norvil’s behavior humiliating, even intimidating. Norvil also intimidated the women by making them feel that their jobs were in jeopardy if they complained about his behavior. The repeated nature of his comments and touching, combined with the solicitations of sex, created
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a constant barrage that had to be endured by all of the female employees. Both the severity and frequency of the behavior could lead a reasonable person to determine a hostile work environment existed at U.S. Bell.
Several women testified that they were uncomfortable due to Norvil’s invariant sexual harassment. In fact, upon Norvil’s return from his suspension, many female employees testified they were humiliated and had to leave work early. This leads into the inquiry of whether the behavior unreasonably interfered with the employees’ job performance. Having female employees leave work early or even resign due to the presence of Norvil unreasonably interferes with the ability to perform. Further, the employees were subjected to Norvil tipping their chairs while they tried to fulfill their telemarketer’s duties.
Because the line between actionable conduct and that which is vulgar or mildly offensive is often difficult to define, it is instructive to compare Norvil’s actions with those of harassers in various cases in which the Seventh Circuit has held that a reasonable person could find that the alleged conduct was severe or pervasive.
In EEOC v. Indiana Bell Telephone Company, the harasser’s behavior included repeatedly exposing his penis to female employees, making comments with sexual connotations, making remarks about female employee’s bodies, and rubbing their shoulders along with other behavior. See EEOC v. Indiana Bell Tel. Co., 214 F.3d 813, 816-17 (7th Cir. 2000), rev’d on other grounds, 256 F.3d 516 (7th Cir. 2000). The court determined that all of the employees were disturbed by this behavior and that the alleged conduct was enough to establish both an objective and subjective hostile work environment. Id. at 822. The female employees at U.S. Bell were all complaining about a similar pattern of sexual harassment. Although not as frequently as the harasser in Indiana Bell, Norvil exposed his penis to Roby and later bragged to Johnson that Roby and Maxwell had
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performed oral sex on him to keep their jobs. He also placed Roby’s fingers in his mouth and kissed and sucked on them. Norvil directly solicited sex from the female employees and told other female employees which of their co-workers he would have sex with or who he could get. Norvil made comments about the women’s clothing, underwear, breast size, panty lines, about the size of his penis, and about his desire to have sex with particular women. Norvil often rubbed the shoulders of female employees, even though the touching was unwelcome, and Norvil would tip the women’s chairs back to look down their shirts and watch their breasts jiggle. As in Indiana Bell, the U.S. Bell female employees were disturbed and uncomfortable because of Norvil’s behavior, and it is reasonable to find that U.S. Bell was both subjectively and objectively a hostile work environment.
In Quantock v. Shared Marketing Services, Cathey Quantock was propositioned for sex three times, all of which she refused, during a meeting by the president of the company. 312 F.3d at 902; see also Wyninger, 361 F.3d at 977. The Seventh Circuit held that summary judgment was inappropriate, in part, because the solicitation of sex rose to the level of actionable sexual harassment, reasoning that the direct propositions combined with the president’s position of authority and the close working conditions could be viewed by a reasonable jury as hostile. Quantock, 312 at 902 (noting that the supervisor solicited sex “in a crude and shocking manner,” which along with other actions could constitute a hostile work environment); see also Smith v. Northwest Financial Acceptance, Inc., 129 F.3d 1408, 1414 (10th Cir. 1997) (reasoning that the “intimate office setting” of the plaintiff’s small office, which contained no partitions or walls, increased her humiliation and, therefore, the severity of the discriminatory conduct). In Quantock, only one woman was propositioned for sex whereas at U.S. Bell, Norvil solicited several women for sex, including for threesomes and oral sex. The working conditions at U.S. Bell were open and intimate as all of the telemarketers worked in an open room where everyone could hear and see what was happening
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around them; there was no privacy. The U.S. Bell working environment, like the close working conditions in Quantock, combined with the high frequence of sexual comments and propositions made by Norvil, could be viewed as leading to heightened humiliation and a hostile environment.
In Hostetler, the Seventh Circuit reversed the district court’s grant of summary judgment for the employer when the harasser, over a two-day period, had stuck his tongue down the plaintiff’s throat, attempted to kiss her, unfastened four snaps on her brassiere, said he would unfasten it completely, and stated that he could perform oral sex on her so effectively that she would do cartwheels. 218 F.3d at 808. The court held that, although there were a limited number of acts involved so that the conduct might not be pervasive, the behavior could “readily be described as a hostile working environment” because two of the acts involved physical contact of an intimate nature and that the lewd remark “was more than a casual obscenity.” Id. at 807-08. As discussed above, Norvil’s physical contact with the women was of an intimate nature and his lewd remarks were more than a casual obscenity because he was actively seeking sexual encounters with the women. Unlike in Hostetler, in which the conduct was limited to two acts, Norvil’s conduct was also pervasive in that his comments and actions were directed at multiple women over the course of his employment.
Accordingly, the Court finds that a reasonable juror could find that the workplace at Buzz was both subjectively and objectively hostile and abusive.
Finally, the fourth prong of the sexual harassment analysis addresses the issue of employer liability. The Seventh Circuit has held that an employer can be liable, notwithstanding any affirmative defenses, if a supervisor has engaged in sexual harassment. Rhodes, 359 F.3d at 506. However, the plaintiff must demonstrate that the harasser was her supervisor with direct power to affect the terms and conditions of her employment. Id. The power to affect the terms and conditions is often considered to encompass the power to “hire, fire, promote, demote, discipline or transfer .
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. . .” Id. It is not enough to show that the harasser merely had the power to oversee aspects of another employee’s job. Id. To fulfill the fourth prong, Norvil must have been the complaining female employees’ supervisor. Neither the EEOC nor U.S. Bell in their briefs challenge the assumption that Norvil was in fact a supervisor for all of the plaintiffs. Norvil could and did have the power to affect the conditions of the workplace as he personally oversaw the sales floor. Norvil had the power to discipline, to fire or at a minimum to recommend termination, and to recommend hiring. Accordingly, there is a basis for employer liability.
Based on the foregoing analysis of the four-part test for hostile work environment, the Court finds that a reasonable jury could determine that Norvil’s behavior created such conditions at U.S. Bell so as to create a hostile work environment in violation of Title VII.
C. Ellerth/Faragher Affirmative Defense In the Motion for Summary Judgment, U.S. Bell argues that, if the Court finds that the EEOC has met its burden of demonstrating a hostile work environment, U.S. Bell should nevertheless be granted summary judgment because it can establish the affirmative defense set forth in Burlington Industries v. Ellerth, 524 U.S. 742 (1998) and Faragher v. Boca Raton, 524 U.S. 775, 807 (1998). The EEOC argues that U.S. Bell waived the affirmative defense by failing to assert it in its answer and that, even if U.S. Bell had properly raised the defense, it is not entitled to rely on the defense.
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1. Waiver Federal Rule of Civil Procedure 8(c) requires that a defendant, in a responsive pleading, raise
all affirmative defenses that will defeat the allegations in the complaint. See Fed. R. Civ. P. 8(c); Castro v. Chicago Hous. Auth., 360 F.3d 721, 735 (7th Cir. 2004). The purpose of this Rule is to “avoid surprise and undue prejudice to the plaintiff by providing her notice” and an opportunity to respond. Venters v. City of Delphi, 123 F.3d 956, 967 (7th Cir. 1997). If a defendant does not raise a defense at the time of filing an answer, the defense is deemed waived. Castro, 350 F.3d at 735; Johnson v. Sullivan, 922 F.2d 346, 355 (7th Cir. 1990); Pinto Trucking Serv., Inc. v. Motor Dispatch, Inc., 649 F.2d 530, 534 (7th Cir. 1981). A defendant may seek leave to amend an answer to assert an affirmative defense once the availability of an affirmative defense is reasonably apparent, but the defendant must alert the parties and the court of the intent to pursue that defense. Venters, 123 F.3d at 967. A failure to amend the answer raises the risk that the court will find the defense to have been waived. Id. at 967-68. However, a defendant may be allowed to raise an affirmative defense late in the proceedings if the plaintiff is not prejudiced by the late notice and has an opportunity to respond. See Williams v. Lampe, 399 F.3d 867, 871 (7th Cir. 2005).
In Venters v. City of Delphi, the Seventh Circuit held that an affirmative defense raised in the reply brief in support of a motion for summary judgment was deemed waived when the defense was not raised in the answer and no amended answer had been filed. Venters, 123 F.3d at 968. The court reasoned that “if Rule 8(c) is not to become a nullity, we must not countenance attempts to invoke such defenses at the eleventh hour, without excuse and without adequate notice to the plaintiff.” Id. at 969. The court focused on the defendant’s failure to assert the defense even though the parties had endured a long discovery process, the plaintiff did not have an opportunity to respond, and the scheduled trial date was in a month. Id. at 968.
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In contrast, in Williams v. Lampe, the Seventh Circuit allowed a defendant to assert an affirmative defense even though the defendant failed to properly plead the affirmative defense. 399 F.3d at 871. Reasoning that the plaintiff was given an opportunity to respond to the late affirmative defense, unlike the plaintiff in Venters, the court held the plaintiff was not prejudiced by the late notice. Id. The court further held that a plaintiff, after an opportunity to respond to the defense, “cannot establish prejudice merely by showing that the case has progressed significantly since the defendant answered [the] complaint.” Id.
Although U.S. Bell had ample opportunity and notice that the affirmative defense was available, U.S. Bell nevertheless failed to follow the Federal Rules of Civil Procedure and properly amend the Answer. U.S. Bell’s first assertion of the defense was in the Motion for Summary Judgment. As in Williams, and unlike in Venters, the EEOC had an opportunity to respond to the affirmative defense raised by U.S. Bell in the motion for summary judgment and the EEOC did so in its opposition brief. The EEOC has not made any showing that it was prejudiced in its ability to respond to the late-asserted affirmative defense, such as an inability to conduct relevant discovery. Therefore, the Court will allow U.S. Bell to assert the affirmative defense, and the Court will consider the defense on the merits.
2. The Defense When no tangible employment action has been taken by the employer against the employee,
an employer is entitled to assert the Ellerth/Faragher affirmative defense, which encompasses two elements: (1) that the employer had “exercised reasonable care to prevent and correct promptly any sexually harassing behavior” and (2) that the employee “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”
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Pennsylvania State Police v. Suders, 124 S. Ct. 2342, 2346 (2004) (citing Faragher v. Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus. v. Ellerth, 524 U.S. 742, 765 (1998)). In Suders, the United States Supreme Court further explains that the employee “who alleges no tangible employment action has the duty to mitigate harm.” 124 S. Ct. at 2346. However, it is the defendant’s burden to “prove the plaintiff unreasonably failed to avoid or reduce harm.” Id. at 2354.
An exception to the defense is recognized by the Seventh Circuit. An employer is not able to avoid liability if the offending employee is “within that class of an employer organization’s officials who may be treated as the organization’s proxy.” See Johnson v. West, 218 F.3d 725, 730 (7th Cir. 2000) (citing Faragher, 524 U.S. at 789).7 The following officials may be considered an employer’s proxy: “a president, owner, proprietor, partner, corporate officer or supervisor ‘hold[ing] a sufficiently high position in the management hierarchy of the company for his actions to be imputed automatically to the employer.’” Johnson, 218 F.3d at 730 (quoting Faragher, 524 U.S. at 789-90). In West, although the harasser had an important title, it was not enough to find that he was a proxy for his employees. Noting that the defendant had no less than two supervisors and that the plaintiff answered to other supervisors, the court held “if automatic vicarious liability is warranted for Williams, there would be little or nothing left of the [Ellerth/Faragher] affirmative defense.” Id.
Application of the exception in this case is similarly inappropriate. Norvil answered not only to the owners of U.S. Bell, Kurtis and Keanan, but he also had to discuss his behavior with Brzycki,
7 Other circuits have affirmed this exception to the Ellerth/Faragher defense. See, e.g., Ackel v. National Communications, Inc., 339 F.3d 376, 383-84 (5th Cir. 2003) (citing the Seventh Circuit decision in Johnson v. West and holding that an employer is vicariously liable when the “harassing employee is a proxy for the employer”); MallinsonMontague v. Pocrnick, 224 F.3d 1224, 1233 (10th Cir. 2000) (recognizing that the United States Supreme Court created an “alter ego” exception to the affirmative defense); Dees v. Johnson Controls, 168 F.3d 417, 421-22 (11th Cir. 1999) (noting an employer can be held vicariously liable if the supervisor holds “such a high position in the company that he could be considered the employer’s ‘alter ego’”).
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the company’s Ethics Officer, and the termination of employees was processed through Cripe.8 Despite his title as Vice President of Expansion, it does not appear that Norvil spoke for the company nor was he in a “significantly high position” within the company. See id. Further, if U.S. Bell would be held automatically liable for a low-level executive, the Ellerth/Faragher defense would be extinct in the manner against which the Seventh Circuit explicitly warned.
Although U.S. Bell did not move for summary judgment on the EEOC allegations of constructive discharge, the EEOC has not yet proven that claim. Therefore, for the purposes of analyzing the applicability of the affirmative defense, the Court will assume, without deciding, that no tangible employment action was taken by the company against the female employees.
Under the first prong of the Ellerth/Faragher defense, the Court must analyze whether U.S. Bell had “exercised reasonable care to prevent and correct promptly any sexually harassing behavior.” Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807. An effective sexual harassment policy “must provide for ‘effective grievance mechanisms’ and have a ‘meaningful process’ for employees to seek redress for their concerns.” Durkin v. City of Chicago, 341 F.3d 606, 612 (2003) (citing Gentry v. Export Packaging Co., 238 F.3d 842, 847 (7th Cir. 2001)). Although U.S. Bell “is in the best position to know what remedial procedures it offers to employees and how those procedures operate,” Suders, 124 S.Ct. at 2354 n. 7, U.S. Bell does not provide any explanation in its brief as to how it exercised reasonable care to prevent and correct promptly any sexually harassing behavior.9
8 Unlike the claim by the EEOC that Norvil made “all of the sales decisions, including which employees to hire and fire,” it is not clear from the evidence that Norvil held these powers solely. Pl. Br., p. 28.
9 U.S. Bell limits its argument on the affirmative defense in its opening brief to showing that none of the employees suffered a tangible employment action and that the EEOC cannot prove a hostile work environment.
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U.S. Bell took few steps to prevent sexual harassment within the workplace as it had no widely disseminated sexual harassment policy. Only a few management-level employees, including Norvil, Robertson-Smith, and Cripe, remember being asked to sign a policy stating sexual harassment would not be tolerated when they began their employment. Although Brzycki wrote a sexual harassment policy, it does not appear that it was distributed to the other employees or posted within the workplace. None of the employees testified that the policy was published or placed out in view of the employees, nor were employees fully aware of complaint procedures in direct contrast to the requirements of Durkin. Nor did U.S. Bell conduct any sexual harassment training for its employees. There was also confusion among U.S. Bell upper management regarding who would handle the sexual harassment complaints. The reports were given or made to Cripe, Brzycki, and Robertson-Smith, but they were not always taken seriously or investigated. Sometimes Norvil would be talked to about the complaints and other times the complaints were ignored and never investigated. Further, Robertson-Smith testified that no one did anything about sexual harassment other than write reports.
The second part of the first prong demands that U.S. Bell demonstrate that they promptly corrected any sexually harassing behavior. Although U.S. Bell claims it did promptly correct Norvil’s behavior and Kurtis’ testimony supports his claim that he thoroughly investigated and took action against Norvil once he learned about the wide-spread nature of the complaints, there is a question of fact as to the extent of the management’s knowledge prior to March 2002 and the action or inaction that followed that knowledge. Norvil notified his employers of his termination from two previous employments due to sexual harassment by placing a letter in his personnel file shortly after he began working for U.S. Bell in late 2000. Cripe, Brzycki, and Keanan then began receiving
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complaints from women in 2001 regarding Norvil’s behavior, as well as Sims’ complaint in January 2002. Little action was taken except for the occasional meeting with Keanan or Brzycki. It is unclear from the record how early Kurtis knew of the complaints from Sims after she made them in January 2002 and what action, if any, he took with Norvil based on those complaints prior to Norvil’s suspension in March 2002. It is also unclear to what extent Keanan, the secretary and treasurer, knew about the various harassments early on, as Lacefield testified that she told Keanan about the harassment in the fall of 2001, and what his role in the management of the company was.
U.S. Bell asserts that it took corrective action against Brzycki and Cripe for their failure to fully investigate complaints; however, the only tangible action taken against Norvil was a paid suspension after complaints were received from thirteen different female employees. U.S. Bell does not assert that the suspension was an adequate response to the sexual harassment. After a few months’ suspension, during which time Norvil continued to work for the company and was occasionally on the telemarketing floor, Norvil was reinstated, which made the female employees uncomfortable and upset. Person testified that Norvil was “back to his old self” after the EEOC conducted its interviews at Buzz.
The second prong of the Ellerth/Faragher defense asks whether the employees unreasonably failed to take advantage of the policy provided by the employer or to otherwise avoid harm. See id. at 2347. U.S. Bell did not address this prong of the defense in its brief either, despite its burden to prove the defense. See id. at 2354 n. 7. From all accounts, female employees were seemingly not unreasonable when they failed to report sexual harassment. Although the women could have reported to Cripe, they were warned by Norvil not to. As the facts demonstrate, the female employees were repeatedly intimidated and threatened by Norvil so that they would not complain
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about Norvil to the higher management. Norvil threatened that he would fire anyone who complained and made it clear that employees should not go over his head. There was a perception by some employees, such as Bernard, that complaints about Norvil were made and that those complaining employees were then fired or quit immediately after voicing their complaints. In addition to Norvil’s intimidation, the female employees also had no faith that any action would be taken even if they did complain. Due to the intimidation and confusion, along with the lack of a readily accessible policy, a reasonable jury could find that it was not unreasonable for the employee’s failure to report the sexual harassment more frequently, earlier, or to higher management.
In conclusion, the Court finds that U.S. Bell has failed to prove either prong of the Ellerth/Faragher defense at this stage of the litigation. Because the Court finds that a reasonable jury could determine that Norvil’s actions created a hostile work environment at U.S. Bell and that U.S. Bell has failed to establish that it took steps to prevent and correct sexual harassment, summary judgment on the EEOC’s hostile work environment claim is inappropriate.
B. Quid Pro Quo Sexual Harassment, Retaliation, and Constructive Discharge Claims Federal Rule of Civil Procedure 56(e) provides that summary judgment should be granted,
if appropriate, when the adverse party fails to respond. Fed. R. Civ. P. 56(e); Johnson v. Gudmundsson, 35 F.3d 1104, 1112 (7th Cir. 1994). Further, if issues raised in the motion for summary judgment are not responded to by the non-moving party, the issues are deemed waived. Palmer v. Marion County, 327 F.3d 588, 597-98 (7th Cir. 2003) (holding a plaintiff who failed to state a negligence claim in his brief in opposition to summary judgment was abandoned); Laborers’
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Int’l Union of N. Am. v. Caruso, 197 F.3d 1195, 1197 (7th Cir. 1996) (stating that arguments not presented to the district court in response to summary judgment motions are waived.).
In its Complaint, in addition to hostile work environment, the EEOC asserts quid pro quo sexual harassment, retaliation, and constructive discharge claims against U.S. Bell on behalf of four individuals–Tiffany Sims, Renee Roby, Joshua Childs, and Beatrice Johnson. U.S. Bell moved for summary judgment on all of the EEOC’s claims with the exception of constructive discharge:
A. The plaintiff cannot establish that Tiffany Sims, Beatrice Johnson or Renee Roby were subjected to hostile work environment sexual harassment and quid pro quo sexual harassment. B. U.S. Bell did not terminate or take any adverse job action against any employee in retaliation for making a claim of sexual discrimination or harassment. C. U.S. Bell did not engage in a pattern or practice of discrimination based on sex and retaliation. D. U.S. Bell exercised reasonable care to prevent and promptly correct workplace harassment, and the class representatives, as well as the class members, unreasonably failed to take advantage of corrective opportunities that were available. Def. Br., p. 2. Just as the motion does not address constructive discharge, U.S. Bell’s Brief in Support does not address constructive discharge either. The EEOC does reassert its claim for constructive discharge in its response brief. Therefore, any claims of constructive discharge asserted by the EEOC in its Complaint remain for trial. However, U.S. Bell did move for summary judgment on the issues of retaliation and quid pro quo as to Tiffany Sims, Renee Roby, Joshua Childs, and Beatrice Johnson, and the EEOC did not respond to the substantive merits of these arguments. In its response, the EEOC addresses these claims by noting that U.S. Bell has settled with the intervenor plaintiffs on all of their claims and that, therefore, the quid pro quo and retaliation claims are no longer at issue in this case as to the Intervenor Plaintiffs. The EEOC does not address the retaliation and quid pro quo arguments raised
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in its own Complaint. Therefore, it appears that the EEOC concedes that the settlement by U.S. Bell with the individuals is not only as to the Intervenor Complaint but also as to the quid pro quo and retaliation claims set forth in the EEOC’s Complaint on behalf of those individuals–Tiffany Sims, Beatrice Johnson, Joshua Childs, and Renee Roby–and for whom individual relief was sought by the EEOC on the basis of retaliation and quid pro quo sexual harassment. At a minimum, by not responding to U.S. Bell’s arguments, the EEOC has waived its claims of quid pro quo and retaliation, if any such claims remained after U.S. Bell’s settlement with the Intervenor Plaintiffs.
Accordingly, summary judgment is granted in favor of U.S. Bell on the EEOC’s quid pro quo and retaliation claims in the Complaint. Summary Judgment on the claim of constructive discharge in the EEOC’s complaint has not been sought by U.S. Bell, and, therefore, the EEOC’s claim of constructive discharge remains for trial.
C. Scope of the EEOC’s Complaint In the Brief in Support of Defendants’ Motion for Summary Judgment, U.S. Bell argues that this Title VII lawsuit does not contain allegations that are like or reasonably related to allegations contained in the EEOC charges filed by the individual women and that there is no nexus between the initial charges by those women and the subsequent allegations brought by the EEOC in this federal Complaint, citing Cheek v. Western & Southern Life Insurance Co., 31 F.3d 497, 501 (7th Cir. 1994); EEOC v. Caterpillar, Inc., 336 F. Supp. 2d 858, 863-64 (N.D. Ill. 2004); EEOC v. Jillian’s of Indianapolis, Indiana, Inc., 279 F. Supp. 2d 974, 979 (S.D. Ind. 2003). It appears that U.S. Bell is arguing that the EEOC’s Complaint should be dismissed for a failure to have exhausted administrative remedies.
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However, as argued by the EEOC, a lawsuit “brought by the EEOC is not limited to discriminations that the charging party had standing to raise.” EEOC v. Gurnee Inn Corp., 914 F.2d 815, 819 n. 6 (7th Cir. 1990) (internal quotation marks and citation omitted). The EEOC may allege in its Complaint whatever unlawful conduct it uncovers during the course of its investigation, “provided there is a reasonable nexus between the initial charge and the subsequent allegations in the complaint.” EEOC v. Harvey L. Walner & Assocs., 91 F.3d 963, 968 (7th Cir. 1996). First, it appears that all of the allegations brought in the EEOC’s Complaint arose directly out of the investigation commenced after the filing of EEOC charges by various employees. Second, there is a reasonable nexus between the charges filed by the individual female employees and the subsequent allegations in the EEOC Complaint as both deal solely with the alleged conduct of Norvil.
CONCLUSION Based on the foregoing, the Court now hereby GRANTS in part and DENIES in part the Defendant’s Motion for Summary Judgment [DE 142]. The Court GRANTS the Defendants’ Motion for Summary Judgment on the claims of quid pro quo sexual harassment and retaliation. The Court DENIES the Motion for Summary Judgment on the claim of hostile work environment. Summary Judgment was not sought on the claim of constructive discharge and remains for trial. The Court REAFFIRMS the Trial Setting of August 15, 2005 and the Final Pretrial Conference set for August 4, 2005, at 9:00 a.m. So ORDERED this 19th day of July, 2005.
s/ Paul R. Cherry MAGISTRATE JUDGE PAUL R. CHERRY UNITED STATES DISTRICT COURT
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