Case 2:03-cv-00201-CAB Document 7 Filed 10/21/2003 Page 1 of 4

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

vs.

)

)

M & N EQUIPMENT, INC., LLC, a

)

Wyomign limited liability company,

)

)

Defendant.

Case No.03-CV-201-B

ORDER DENYING EEOC'S MOTION TO CONSOLIDATE The above-entitled matter having come before the Court on the EEOC's Motion to Consolidate filed herein, and the Court having reviewed the motion and the response thereto and being fully advised in the premises FINDS: 1. This action comes before the Court on the EEOC's claims of discrimination by defendant M & N Equipment against Clifford DeLambert. The plaintiff alleges that the defendant engaged in unlawful employment practices at its Pinedale, Wyoming facility violating Title VII of the Civil Rights Act. The defendant generally denies the same. 2. The EEOC filed this instant motion urging the Court to consolidate the above captioned case with Nicodemus, et al v. M & N Equipment, Civil Action No. 03-CV-68. The EEOC

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Case 2:03-cv-00201-CAB Document 7 Filed 10/21/2003 Page 2 of 4
argues that both cases are based upon "similar sets of operative facts, evidence, and occurred in overlapping time frames." Motion, at 3. In addition, the EEOC asserts that both cases will involve a determination of similar legal issues and will involve many of the same witnesses. Specifically, both lawsuits claim the defendant violated Title VII of the Civil Rights Act when the plaintiffs in both lawsuits were subject to retaliation due to their complaints about harassment and retaliation. The EEOC asserts that "[wJhere the subject matter of the claims made in separate actions arise out of the same transaction and involve common issues of law and fact" consolidation is warranted. Motion, 2-3 (quoting Harris v. Illinois-California Express, Inc., 687 F.2d 1361, 1368 (10th Cir. 1982); FED. R. CIY. P. 42). The EEOC states that it intends to depose many ofthe same individuals that will or have been deposed in Nicodemus. Further, the EEOC argues that no party will be prejudiced as a result of the consolidation. The EEOC contends that it will agree not to unnecessarily duplicate depositions. Consequently, the EEOC moves the Court to grant the instant motion.
3. In its response, the defendant argues that after the initial charge was filed and nearly six months after suit was filed in the Nicodemus case, the EEOC filed an action on behalf of Mr. DeLambert and now seeks to consolidate its case with the Nicodemus case. The "[dJefendant objects to consolidation solely to avoid unnecessary delay and expenses." Response, at 3. The defendant argues that further delay will only increase costs. However, the defendant states that it would be willing to consolidate if the EEOC agreed to the deadlines already established in Nicodemus. The
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Case 2:03-cv-00201-CAB Document 7 Filed 10/21/2003 Page 3 of 4
defendant moves the Court to deny the instant motion, or in the alternative that EEOC be required to live with deadlines already set in Nicodemus.
4. The Court notes that when actions involving common questions oflaw or fact are pending before the court, the court may order a joint trial of any or all of the matters in issue in the actions; it may order all actions consolidated; and it may make such orders to avoid unnecessary costs or delay. FED. R. CIY. P. 42(a). Whether to grant a motion to consolidate is within the court's discretion. Servant s of the Paraclete, Inc. v. Great American Ins. Co., 866 F.Supp. 1560, 1572 (D.N.M. 1994). In deciding whether to grant the motion for consolidation, the Court should initially determine that the cases involve common questions oflaw or fact. If the cases involve common questions of law or fact, the Court should then weigh the interests of judicial convenience in consolidating the cases against the delay, confusion and prejudice that consolidation might cause. Id.
This Court finds that the actions involve common questions oflaw and fact, as the claims in both cases are based on similar facts and issues. However, consolidation ofthe two cases will not result in the efficient adjudication of the cases unless the DeLambert case can follow the same briefing schedule set in Nicodemus. The EEOC argues that it would agree to not unnecessarily duplicate the deposition testimony already obtained, but is unwilling to agree that it will not need to depose anyone already deposed. The Court finds that the DeLambert case may need more in depth discovery than the constraints of the Nicodemus briefing schedule will allow. The Court further
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Case 2:03-cv-00201-CAB Document 7 Filed 10/21/2003 Page 4 of 4
finds that the two cases could have and should have been consolidated long before now. Therefore,
consolidation at this time will result in a substantial delay in the Nicodemus proceedings and would
be contrary to the spirit ofjudicial efficiency. Delay constitutes sufficient grounds for denial of a motion for consolidation. Zapata v. IBP, Inc., No. 93-2366-EEO, 1994 WL 401572, at 2 (D. Kan. July 25,1994).
Finally, the two actions are in completely different stages of proceedings. In the first action, Nicodeumus, 03-CV-068-B, the Order on Initial Pretrial Conference has been issued. Discovery has been ongoing, deadlines have been set, and trial is scheduled to begin in January of 2004. In the DeLambert case, 03-CV-201-B, a pretrial schedule has not even been established.
Consolidation may properly be denied in instances where cases are at different stages of preparedness for trial, even ifthe cases involve common questions oflaw or fact. Zapata v. IBP, Inc., No. 93-2366-EEO, 1994 WL 401572, at 2 (D. Kan. July 25,1994); Servants a/the Paraclete. Inc. v. GreatAmericanIns. Co., 866F.supp.1560, 1573 (D.N.M.1994). Accordingly, consolidation
IS Improper. NOW, THEREFORE, IT IS ORDERED that defendant's motion to consolidate the causes
of action be, ant! the same is hereby DENIED.
I. ~
Dated this.:l day of October, 2003.
. Beaman, U.S. Magistrate Judge
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 Case 2:03-cv-00201-CAB Document 18 Filed 04/02/2004 Page 1 of 2

NANCY A. WEEKS, Supervisory Trial Attorney Equal Employment Opportunity Commission 303 East 17th Avenue, Suite 510 Denver, CO 80203 Telephone (303) 866-1947 Facsimile (303) 866-1375

FILED U.S. DISTRICT COURT DISTRICT OF WYOMING
APR - 2 2004
Detty A. Griess, Clerk Cheyenne

CAROL A. STATKUS Assistant United States Attorney P.O. Box 668 Cheyenne, WY 82003-0668 Telephone (307) 772-2124 Facsimile (307) 772-2907

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING

Civil Action No. 03-CV-201-B

EQUAL EMPLOYMENT OPPORTUNITY

)

)

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

M & N Equipment, LLC, a Wyoming

)

limited liability company,

)

)

Defendant.

)

ORDER GRANTING VOLUNTARY DISMISSAL PURSUANT TO RULE 41
The motion of Plaintiff, the Equal Employment Opportunity Commission ("EEOC") to Dismiss this case is currently pending before this Court. The court rules as follows:
This case is dismissed with prejudice.

Case 2:03-cv-00201-CAB Document 18 Filed 04/02/2004 Page 2 of 2

Each party will bear its own costs and attorneys' fees.

IT IS SO ORDERED.
March 1 , , 2004

~~!~ Clarence A. Brimmer United States District Court Judge

2

 
 0RIGIN/ L
NANCY A. WEEKS, Supervisory Trial Attorney Equal Employment Opportunity Commission 303 East 17th Avenue, Suite 510 Denver, CO 80203 Telephone: (303) 866-1947 Facsimile: (303) 866-1375 Attorneys for Plaintiff
CAROL A. STATKUS Assistant United States Attorney P.O. Box 668 Cheyenne, WY 82003-0668 Telephone (307) 772-2124 Facsimile (307) 772-2907
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING
Civil Action No. 0 8~’~r ~ 20
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
V.
M&N EQUIPMENT, INC., LLC, a Wyoming limited liability company,
Defendant.
COMPLAINT
NATURE OF THE ACTION
This action arises under Title VII of the Civil Rights Act of 1964 ("Title VII"), as
amended, to correct unlawful employment practices on the basis of retaliation for opposing acts

made unlawful under Title VII, and to provide adequate relief to Clinton DeLambert, a former employee of Defendant, M & N Equipment, LLC. As set forth more fully below, the EEOC alleges that Defendant retaliated against Mr. DeLambert and ultimately terminated him from employment for his opposition to sexual harassment and a hostile work environment in violation of Sections 703(a) and 704(a) of Title VII, 42 U.S.C. §§ 2000e-2(a), 2000e-3(a).
JURISDICTION AND VENUE Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343,1345. 2. This action is authorized and instituted pursuant to Sections 706(0(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-5(f)(I) and (3), and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981(a). 3. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the District of Wyoming.
PARTIES 4. Plaintiff, Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII and is expressly authorized to bring this action under Sections 706(0(1) and 707 of Title VII, 42 U.S.C. §§ 2000e-5(f)(1), 2000e-6. 5. At all relevant times, Defendant, M & N Equipment, LLC (hereinafter "M & N

Equipment" or "Defendant"), has continuously been a Wyoming limited liability corporation doing business in the State of Wyoming. The principals are Gary Brus and Mick McMurray. Defendant operates an oil field construction business, including delivery of supplies for digging wells and some aspects of constructing the wells.
6. At all relevant times, Defendant continuously employed at least fifteen employees.
7. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce within the meaning of Section 701 (b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h).
GENERAL ALLEGATIONS 8. More than thirty days prior to the institution of this lawsuit, Mr. DeLambert filed a charge with the Commission alleging violations of Title VII by Defendant. 9. All conditions precedent to the institution of this lawsuit have been fulfilled. 10. Mr. DeLambert was employed by Defendant from on or about July 1, 2000, until he was discharged on March 2, 2001. 11. Throughout the time Mr. DeLambert was employed by Defendant, he worked at Defendant’s facility located at the Jonah Oil Field site near Pinedale, Wyoming. 12. Until February, 2001, Mr. DeLambert’s immediate supervisor was Richard Marx. 13. During his employment with Defendant, Mr. DeLambert engaged in protected

activity under Section 704(a) of Title VII, 42 U.S.C. § 2000e-4(a), by opposing unlawful employment practices at Defendant’s Pinedale, Wyoming work site. On or about December 7, 2000, Mr. DeLambert accompanied several male co-workers, including Mr. Nicodemus and Mr. Schilling, to meet with Mr. Brus and to complain of sexual harassment of a female coworker by two M & N employees, Mr. Winkelman and Mr. Williams. This sexual harassment included, but was not limited to, such actions as male coworkers exposing their genitals and buttocks to the female coworker, telling her "show us your hooters" and attempting to put the female employee’s hand on a male co-workers genitals. The group complained that they had heard that the harassers were to be promoted to foreman and they stated that such a move would be a problem because Mr. Williams and Mr. Winkelman would retaliate against individuals who complained of misbehavior.
14. After Mr. DeLambert complained about the sexual harassment of a female coworker, Defendant, acting through its managers and supervisors, retaliatedagainst Mr. DeLambert because of his protected activity. After his complaints regarding sexual harassment, Defendant began to harass Mr. DeLambert by yelling at and verbally abusing him, arbitrarily changing his work assignments, denying him tools and equipment necessary to perform his duties, and denying his requests for equipment repairs.
15. Karen Stepp, a former M & N employee, reported that, sometime after December 8, 2000, Mr. Winkelman told her that DeLambert had "slit his throat" by making his complaint
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16. After several employees, including Mr. DeLambert complained about sexual harassment and retaliation by Mr. Winkelman and Mr. Williams, both were promoted to a supervisory position in February 2001.
17. Defendant took insufficient actions to investigate Mr. DeLambert’s complaints about retaliation, and instead, increased the harassment the more he complained. Defendant continued to harass Mr. DeLambert by yelling at and verbally abusing him, arbitrarily changing his work assignments, denying him tools and equipment necessary to perform his duties, and denying his requests for equipment repairs.
18, The harassment and retaliation culminated on or about March 2,2001, when Mr. DeLambert was discharged.
19. The events and employment practices alleged in the foregoing paragraphs constitute retaliation in violation of Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a).
20. As a result of Defendant’s unlawful retaliation, Mr. DeLambert has suffered damages, including but not limited to emotional distress, lost earnings and benefits, medical and job search expenses, in amounts subject to proof.
21. The unlawful employment practices complained of in the foregoing paragraphs were intentional, or were committed with reckless disregard for the federally protected rights of Mr. DeLambert.

PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that the Court:
A. Grant a permanent injunction enjoining Defendant, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in retaliation and any other discriminatory employment practice.
B. Order Defendant to institute and carry out policies, practices, and programs that proscribe harassment and retaliation against individuals who oppose unlawful discrimination, and that eradicate the effects of its past and present unlawful employment practices.
C. Order Defendant to make Mr. Clifton DeLambert whole by providing appropriate back pay, including all attendant rights and benefits, with prejudgment interest, in amounts to be determined at trial;
D. Order Defendant to make Mr. Clinton DeLambert whole, by providing compensatory damages for past and future pecuniary losses resulting from the unlawful employment practices described herein, in amounts to be determined at trial.
E. Order Defendant to pay Mr. DeLambert punitive damages, in amounts to be determined at trial, as punishment for Defendant’s intentional conduct carried out with malice or reckless disregard for the federally protected rights of Mr. DeLambert.
F. Grant such other and further relief as the Court deems necessary and

proper in the public interest.

G. Award the Commission its costs in pursuing this action.

Dated: September~, 2003

Respectfully submitted,

JOSEPH H. MITCHELL Regional Attorney

ANCY A. WEEKS upervisory Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Denver District Office 303 East 17th Avenue, Suite 510 Denver, CO 80203 (303) 866-1947

CAROL A. S Assistant United States Attorney P.O. Box 668 Cheyenne, WY 82003-0668 Telephone (307) 772-2124
Facsimile (307) 772-2907

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 CM/ECF-LIVE-District of Wyoming - Docket Report

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U.S. District Court District of Wyoming (Cheyenne) CIVIL DOCKET FOR CASE #: 2:03-cv-00201-CAB

TERMED

Equal Employment Opportunity Commission v. M&N Equipment Inc LLC Assigned to: Honorable Clarence A Brimmer Referred to: Honorable William C Beaman Cause: 28:451 Employment Discrimination

Date Filed: 09/30/2003 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Carol A Statkus US ATTORNEY'S OFFICE P O Box 668 Cheyenne, WY 82003-0668 307/772-2124 Fax: 307/772-2123 Email: carol.statkus@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy A Weeks EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 303 East 17th Avenue, Suite 510 Denver, CO 80203 303/866-1947 Fax: 303/866-1375 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
M&N Equipment Inc LLC a Wyoming limited liability company

represented by Henry F Bailey, Jr BAILEY STOCK & HARMON P O Box 1557 Cheyenne, WY 82003-1557 307/638-7745 Fax: 307/638-7749 Email: dka@baileystockharmon.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy A Weeks (See above for address)

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Date Filed 09/30/2003 09/30/2003 10/07/2003
10/08/2003
10/14/2003 10/16/2003
10/21/2003
10/22/2003 11/14/2003
11/18/2003 11/19/2003
11/19/2003 11/21/2003

LEAD ATTORNEY ATTORNEY TO BE NOTICED

#

Docket Text

1 COMPLAINT (summons(es) issued) (Filing fee waived.) , filed by Equal Employment Opportunity Commission.(jlg, ) (Entered: 10/01/2003)

2 DEMAND for Trial by Jury filed by Plaintiff Equal Employment Opportunity Commission. (jlg, ) (Entered: 10/01/2003)

3 MOTION to Consolidate Cases by Plaintiff Equal Employment Opportunity Commission referred to the Honorable William C Beaman. (No proposed order submitted) (js, ) (Entered: 10/09/2003)

4 ANSWER and Affirmative Defenses to Complaint by Defendants M&N Equipment Inc LLC, M&N Equipment Inc LLC.Adding attorney Henry F Bailey for M&N Equipment Inc LLC.(jlg, ) (Entered: 10/09/2003)

5 RESPONSE and Objection to 3 MOTION to Consolidate Cases filed by Defendant M&N Equipment Inc LLC. (jlg, ) (Entered: 10/15/2003)

6 NOTICE of Initial Pretrial Conference: Initial Pretrial Conference set for 11/19/2003 09:00 AM in Cheyenne before Honorable William C Beaman. (cc: all counsel on 10/16/03.)(js, ) (Entered: 10/16/2003)

7 ORDER by the Honorable William C Beaman denying 3 Motion to Consolidate Cases (cc: all counsel on 10/21/03).(js, ) (Entered: 10/21/2003)

8 SUMMONS Returned Executed ; M&N Equipment Inc LLC served on 10/20/2003, answer due 11/9/2003. (dn, ) (Entered: 10/23/2003)

9 MOTION for Nancy A. Weeks to appear pro hac vice; Check not tendered; by Plaintiff Equal Employment Opportunity Commission (sh, ) (Entered: 11/17/2003)

10 Rule 26 DISCLOSURES by Defendant M&N Equipment Inc LLC. (sdl, ) (Entered: 11/19/2003)

11 ORDER by the Honorable William C Beaman granting 9 Motion to appear pro hac vice admitting Nancy A Weeks for Equal Employment Opportunity Commission (cc: all counsel on 11/19/2003).(sh, ) (Entered: 11/19/2003)

Initial Pretrial Held. (jg, ) (Entered: 11/24/2003)

12 INITIAL PRETRIAL CONFERENCE ORDER by the Honorable William C Beaman : Motions filing deadline is 3/19/2004. Motion response deadline is 4/2/2004. Dispositive Motions Hearing set for 5/14/2004 at 9:15 AM in Cheyenne before Honorable Clarence A Brimmer. Expert Witness Designation-Plaintiff deadline is 2/2/2004. Expert Witness Designation-Defendant deadline is 3/5/2004. Discovery

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12/01/2003 12/01/2003 12/02/2003 03/15/2004 04/02/2004 04/02/2004

due by 3/19/2004. Stipulation Deadline is 3/26/2004. Final Pretrial Conference set for 7/2/2004 at 9:15 AM in Cheyenne before Honorable Clarence A Brimmer. Jury Trial set for 7/26/2004 at 9:30 AM in Cheyenne before Honorable Clarence A Brimmer (#1/4 days).(cc: all counsel on 11/24/2003.)(dn, ) (Entered: 11/24/2003)
13 AMENDED MOTION for Nancy A Weeks to appear pro hac vice; Check not tendered; by Plaintiff Equal Employment Opportunity Commission referred to the Honorable William C Beaman. (Proposed order submitted) (js, ) (Entered: 12/01/2003)
14 AMENDED DECLARATION (AFFIDAVIT) of Nancy A Weeks re 13 MOTION for Nancy A Weeks to appear pro hac vice; Check not tendered; filed by Plaintiff Equal Employment Opportunity Commission. (js, ) (Entered: 12/01/2003)
15 ORDER by the Honorable William C Beaman granting 13 Motion to appear pro hac vice admitting Nancy A Weeks for Equal Employment Opportunity Commission (cc: all counsel on 12/2/03).(js, ) (Entered: 12/02/2003)
16 UNOPPOSED MOTION by Plaintiff Equal Employment Opportunity Commission to Vacate and Reset Certain Dates set forth in the scheduling order; referred to the Honorable William C Beaman. (proposed order requested) (dn, ) (Entered: 03/15/2004)
17 MOTION by Plaintiff Equal Employment Opportunity Commission for Voluntary Dismissal of Case pursuant to Rule 41 (Proposed order submitted) (dn, ) (Entered: 04/05/2004)
18 ORDER by the Honorable Clarence A Brimmer granting 17 Motion for Voluntary Dismissal of Case pursuant to Rule 41; case is dismissed with prejudice, each party to bear its own costs and attorneys' fees. (cc: all counsel 4/5/2004).(dn, ) (Entered: 04/05/2004)

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