Case 2:06-cv-02179-SHM-tmp Document 1-1 Filed 03/24/2006 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v. A & I PRODUCTS, INC.,
Defendant.

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CIVIL ACTION NO.

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C O M P L A I N T

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JURY TRIAL DEMANDED

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NATURE OF THE ACTION This is an action under Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. §§ 2000e et seq., to correct unlawful employment practices based on sexual harassment and retaliation. The Commission alleges that A & I Products, Inc. subjected Ann Boyd and Jennifer Wilson to sexual harassment by a co-worker and retaliated against them after Boyd filed a charge of discrimination with the Commission complaining of the sexual harassment.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. SsSs451, 1331, 1337, 1343, and 1345. This is an action authorized and instituted pursuant to Sections 706(f) (1) and (3) of Title VII and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. 1981a. 2. The unlawful employment practices alleged below were and are now being committed within the jurisdiction of the United States District Court for the Western District of Tennessee.

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PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (“the Commission”), is an agency of the United States of America charged with the administration, interpretation, and enforcement of Title VII and is expressly authorized to bring this action by Ss706(f)(1) and (3) of Title VII, 42 U.S.C. Ss2000-5(f)(1) and (3). 4. At all relevant times, Defendant A & I Products, Inc. (“Employer” or “Defendant”), has continuously been a foreign corporation doing business as A & I Products, Inc. in the State of Tennessee and the City of Memphis, and has continuously had at least fifteen (15) employees. 5. At all relevant times, Defendant Employer has continuously been and is now an employer engaged in an industry affecting commerce within the meaning of Ss701(b), (g), and (h) of Title VII, 42 U.S.C. Ss2000e(b), (g), and (h).
STATEMENT OF CLAIMS 6. More than thirty (30) days prior to the institution of this lawsuit, Ann Boyd (hereinafter “Boyd”) filed a charge of discrimination with the Commission alleging that Defendant Employer engaged in employment practices which violate Title VII. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. Since at least approximately September, 2004, Defendant Employer has engaged in unlawful employment practices at its Memphis, Tennessee facility in violation of Sections 703(a) and 704(a) of Title VII, 42 U.S.C. §2000e-2(a) and 3(a). The unlawful employment practices involved subjecting Ann Boyd and Jennifer Wilson to harassment because of their sex
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and disciplining them in retaliation for opposing practices made unlawful by Title VII. 8. Boyd was hired by Defendant on or around June 2001, as a warehouse worker in
its Memphis, Tennessee facility. 9. Around September 2004, a male co-worker exposed himself and masturbated in
the presence of Boyd and co-worker Jennifer Wilson while they were taking a break in the employee lounge.
10. Boyd and Wilson immediately complained to the Assistant Warehouse Manager, who laughed off the complaint and suggested that Boyd and Wilson enjoyed the male coworker’s behavior.
11. After Boyd and Wilson complained to the Assistant Manager, the male co-worker continued to expose and fondle himself in front of one or the other woman on a frequent basis.
12. On November 5, 2004, Boyd filed a charge of sexual harassment with the Commission.
13. Thereafter, the Warehouse Manager advised Boyd that, per company policy, there was nothing he could do about her allegations without first witnessing the offending conduct.
14. After Boyd filed her charge with the Commission, the male co-worker continued to expose and fondle himself in the presence of Boyd or Wilson, though on a less frequent basis.
15. The first time the male co-worker exposed and fondled himself after Boyd’s charge with the Commission had been filed, she complained directly to the Warehouse Manager.
16. Defendant again took no action to stop the offensive conduct. 17. On December 12, 2004, Boyd and Wilson both received written warnings for deliberately falsifying inventory records. These warnings were the first such disciplines either
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woman had ever received from Defendant. 18. On January 6, 2005, both Boyd and Wilson were suspended for three days
without pay for allegedly falsifying inventory records again. 19. On March 29, 2005, Boyd filed a charge with the Commission alleging that the
written warnings and suspensions had been issued in retaliation for Boyd’s initial charge of sexual harassment.
20. In July, 2005, the male co-worker proposed to pay Boyd $20.00 to watch him masturbate.
21. Boyd reported the male co-worker’s proposition to the Assistant Manager who followed her back to the area where male co-worker was located. The Assistant Manager witnessed the male co-worker fondling his exposed genitalia.
22. Based on the Assistant Manager’s observation and the male co-worker’s otherwise poor job performance, the male co-worker was terminated. The male co-worker’s termination came approximately ten months after Boyd’s first complaint about his conduct.
23. The unlawful employment practices complained of in paragraphs 7 through 22 were intentional.
24. The unlawful employment practices complained of above were done with malice and/or reckless indifference to the federally protected rights of Ann Boyd and Jennifer Wilson.
PRAYER FOR RELIEF WHEREFORE, the Commission respectfully prays that this Court: A. Grant a permanent injunction enjoining Defendant Employer and its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in
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harassment and retaliation and any other employment practice which discriminates on the basis of sex, female or retaliation.
B. Order Defendant Employer to provide mandatory training regarding Title VII and its prohibition against sexual harassment and retaliation to all management and non-management officials in its various facilities
C. Order Defendant Employer to institute and carry out policies, practices and programs to eradicate the effects of its past and present unlawful employment practices.
D. Order Defendant Employer to make whole Ann Boyd and Jennifer Wilson by providing appropriate back pay with prejudgment interest in amounts to be proved at trial and other affirmative relief necessary to eradicate the effects of its unlawful employment practices.
E. Order Defendant to make whole Ann Boyd and Jennifer Wilson by providing compensation for past and future pecuniary losses in amounts to be determined at trial.
F. Order Defendant to make whole Ann Boyd and Jennifer Wilson by providing compensation for non-pecuniary losses, including emotional pain, suffering, mental anguish and humiliation, in amounts to be determined at trial.
G. Order Defendant to pay punitive damages to Ann Boyd and Jennifer Wilson for its malicious and/or reckless conduct, in amounts to be determined at trial.
H. Grant such further relief as the Court deems necessary and proper. I. Award the Commission its costs in this action.
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JURY TRIAL DEMAND The Commission requests a jury trial on all questions of fact raised by its complaint.
Respectfully submitted,
JAMES L. LEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel s/ Adele Rapport (by permission DBT) ADELE RAPPORT Acting Regional Attorney MI Bar No. P44833 s/ Faye A. Williams (by permission DBT) FAYE A. WILLIAMS Supervisory Trial Attorney TN Bar No. 11730 s/ Darin B. Tuggle DARIN B. TUGGLE Trial Attorney NJ Bar No. 048621998 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1407 Union Avenue, Suite 621 Memphis, Tennessee 38104 Telephone: (901) 544-0137
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 Case 2:06-cv-02179-SHM-tmp Document 33 Filed 07/13/2007 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION _________________________________________________________________

EQUAL EMPLOYMENT OPPORTUNITY

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COMMISSION,

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Plaintiff,

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No. 06-2179 Ma/P

v.

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A&I PRODUCTS, INC.,

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Defendant.

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_________________________________________________________________

ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT _________________________________________________________________
Plaintiff, the Equal Employment Opportunity Commission (“the EEOC”), brings suit against Defendant A&I Products, Inc. (“A&I Products”) on behalf of A&I Products employees Ann Boyd (“Boyd”) and Jennifer Wilson (“Wilson”). The EEOC alleges that Boyd and Wilson were subjected to sexual harassment and retaliation in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.
A&I Products filed a motion for summary judgment on April 30, 2007, to which Plaintiff responded on June 4, 2007.1 For the reasons below, A&I Products’ motion is DENIED. I. Jurisdiction

1 On June 18, 2007, the court granted A&I Products’ June 13, 2007 motion for leave to file a reply brief. No reply has been filed.
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The court has jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3) and (4). II. Background
A&I Products is a manufacturer and distributor of agricultural parts. (Van Der Vliet dep., 6:5-6.)2 It maintains ten warehouses in the United States and two in Canada, including one warehouse in Memphis, Tennessee. (Id., 7:1-8.) Each warehouse is staffed by between two and five employees. (Id., 7:9-14.)
Boyd has worked as a shipping clerk for A&I Products in the Memphis warehouse since June 2001. (Boyd dep., 6:14-23, 7:8-13.) Wilson has worked as an order picker3 for A&I Products in the Memphis warehouse since August 2001. (Wilson dep., 6:17-25.) Boyd and Wilson are the only two women who work at the Memphis warehouse. (Waller dep., 32:24-33:6.)4
Anthony Reynolds (“Reynolds”) was the assistant warehouse manager supervising Boyd and Wilson until he was fired in August 2004.5 (Boyd dep., 12:18-19, 14:10-14.) When Reynolds left the company, Kevin Culver (“Culver”) was promoted to assistant
2 Brian Van Der Vliet is an operations manager for A&I Products. (Van Der Vliet dep., 4:3-5.)
3 An order picker fills orders that come into A&I Products by locating, packing, and shipping the ordered parts. (Wilson dep., 7:1-10.) The parties’ submissions suggest that “shipping clerk” and “order picker” refer to the same position.
4 George Waller is the manager of the Memphis warehouse. (Waller dep., 8:14-16.)
5 The parties agree that Reynolds left A&I Products in August 2004, although neither party cites any evidence confirming when Reynolds’ employment ended.
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warehouse manager and became Boyd and Wilson’s supervisor. (Id., 22:24-23:7.) Culver had been working as an employee in the warehouse before he was promoted to assistant warehouse manager. (Waller dep., 20:1-13.) Culver reported to George Waller (“Waller”), the warehouse manager. (Id., 8:14-16, 14:12-16.)
One of Boyd and Wilson’s co-workers was Apolonia Ruiz (“Ruiz”), who went by the nickname Apollo. (Wilson dep., 9:2410:5.) Sometime in 2002, while Reynolds was the assistant warehouse manager, Ruiz began behaving inappropriately at work by making comments about the size of his genitals and by exposing and fondling his genitals in front of Boyd and Wilson. (Boyd dep., 12:2-15; Wilson dep., 19:3-20:25.) Ruiz also made comments about Wilson’s breasts. (Wilson dep., 12:17-21.) Although Ruiz was not fluent in English, his comments were made primarily in English. (Id., 12:10-21.)
Boyd told Reynolds about Ruiz’s behavior, and Ruiz ceased the inappropriate activity. (Boyd dep., 12:18-25.) Boyd does not know what steps Reynolds took to stop Ruiz’s behavior, but she testified that she believes Reynolds took care of the problem appropriately. (Id., 12:19-21, 14:7-9.)
When Reynolds left A&I Products in August 2004, Ruiz again began behaving inappropriately. (Id., 12:23-25.) Nearly every day, Ruiz would sit in the back of the warehouse touching his exposed genitals. (Id., 24:6-22.) Boyd testified that she
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reported Ruiz’s behavior to Culver on one occasion. (Id., 23:2325:9.)6 Culver testified that he did not learn of Boyd and Wilsons’s allegations about Ruiz’s inappropriate behavior until Boyd filed a sexual harassment charge with the EEOC. (Culver dep., 37:1-24.)
In September 2004, Ruiz came into the employee lounge when Boyd and Wilson were there taking a break. (Boyd dep., 26:2-15; Wilson dep., 22:13-17.) Ruiz called to the women to get their attention, and when they turned to look at Ruiz they saw that his genitals were exposed and he was ejaculating. (Boyd dep., 26:1215; Wilson dep., 21:8-14, 22:2-12.)
Boyd and Wilson testified that they immediately reported Ruiz’s conduct to Culver, and Culver responded by laughing and telling Apollo that he was “a nasty motherfucker.” (Boyd dep., 26:16-22; Wilson dep., 21:13-18.) Culver did not take any disciplinary action against Ruiz, instead suggesting that Boyd and Wilson enjoyed Ruiz’s behavior. (Boyd dep., 26:23-25; Wilson dep., 61:25-62:7.) Ruiz’s conduct did not improve after Boyd and Wilson informed Culver of Ruiz’s actions. (Wilson dep., 64:9-12.)
6 Although the parties agree that Culver did not become assistant warehouse manager until August 2004, Boyd testified that she reported Ruiz’s behavior to Culver once in 2003, before an incident that occurred in September 2004. (Boyd dep., 23:22-24:1.) Boyd could not recall relevant dates with specificity and testified that she had reported Ruiz’s behavior to Culver after Reynolds left A&I Products in August 2002 or 2003. (Boyd dep., 14:10-14, 23:15-24.) Viewing the evidence in the light most favorable to the EEOC, it is possible that Boyd reported Ruiz’s behavior to Culver once between the time Culver became assistant warehouse manager and the incident that occurred in September 2004.
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Both before Culver became the assistant warehouse manager and while he held that position, Culver encouraged Ruiz to act inappropriately by telling Ruiz to grab Wilson’s breasts and behind and to expose himself to Wilson and Boyd. (Wilson dep., 20:2-5, 20:22-25, 62:11-23.) Ruiz continued to expose and fondle his genitals on a nearly daily basis in the warehouse after the September 2004 incident. (Boyd dep, 28:17-20, 33:19-34:5.)
Wilson testified that she reported the September 2004 incident to Waller immediately after it occurred. (Wilson dep., 14:24-15:5.) Waller testified that he did not learn about Ruiz exposing himself or masturbating in the employee break room until Boyd filed her EEOC complaint in November 2004. (Waller dep., 51:12-23.)
A&I Products asserts that, in September 2004, Boyd and Wilson each received a verbal warning for failing to conduct manual inventory counts in the warehouse, instead relying on the inventory counts displayed on the company computers. (A&I Products’ April 12, 2005 responses to the EEOC’s Request for Information, question 7.)7 Boyd and Wilson testified that they did not receive verbal warnings in September 2004. (Boyd dep., 27:10-28:4; Wilson dep., 35:6-8.)
On November 5, 2004, Boyd filed a sexual discrimination charge with the EEOC. (Boyd dep., 28:24-29:1.) Wilson later
7 This document is attached as Exhibit 1 to Waller’s deposition.
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participated in the EEOC’s investigation of Boyd’s claim by making a statement to the EEOC investigator.8 (Wilson dep., 32:12-33:1, 57:1-16.)
Shortly after Boyd filed her complaint with the EEOC, Waller, Culver, Boyd, Wilson, Ruiz, and another employee named Eddie Bonner (“Bonner”) met.9 (Wilson dep., 14:17-15:23; Boyd dep., 31:9-33:11.) Wilson testified that, at the meeting, the employees discussed Ruiz’s behavior and Waller stated that he had not been aware of Ruiz’s prior misconduct. (Wilson dep., 15:2516:6.) Ruiz neither admitted nor denied the behavior, instead saying “me no comprende, me no understand.” (Id., 16:7-13.) Waller told the employees that they should inform him if similar incidents happened again. (Id., 26:5-7.) Waller testified that he remembers having a meeting with his employees, but that he does not recall discussing Boyd’s allegations against Ruiz. (Waller dep., 63:21-65:1. 66:20-67:7.)
Boyd testified that Culver and Waller told Wilson about Boyd’s EEOC complaint and that Boyd was unhappy that Culver and Waller had shared her “business” with Wilson. (Boyd Dep., 33:511; 63:25-64:8.) At the meeting, Boyd asked Waller why he had
8 It is not clear from the evidence when Wilson gave the EEOC her statement.
9 Boyd testified that there was not a formal meeting, but that all of the employees and managers at the Memphis warehouse were present in the same place and Boyd’s allegations and EEOC complaint were raised. (Boyd dep., 63:917.)
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told Wilson about Boyd’s complaint, and he replied that he had assumed Boyd had already told Wilson. (Boyd dep., 33:3-11.)
Wilson testified that Culver told her about Boyd’s complaint and stated that Wilson should be on the company’s side or Wilson would lose her job. (Wilson dep., 52:23-53:1.) Culver testified that he did not tell Wilson about Boyd’s EEOC charge. (Culver dep., 39:23-40:11.)
Neither Waller nor Culver took any action against Ruiz after Boyd filed her EEOC charge, and Waller told Boyd that management could not take any action against Ruiz until a supervisor caught him behaving inappropriately. (Boyd dep., 34:6-14.) Waller did not conduct an investigation of Ruiz’s behavior after Boyd filed the discrimination charge because he thought “there was very little investigation [he] could do without accusing somebody of something that [he] had not seen or heard about.” (Waller dep., 53:17-21.) Waller did not ask Ruiz if he had engaged in the behavior that Wilson had alleged, and Waller did not tell Ruiz not to engage in similar behavior in the future. (Id., 54:1-6.)
Shortly after the meeting with Waller about Ruiz’s behavior, in either December 2003 or January 2004, Wilson again saw Ruiz masturbating in the warehouse. (Wilson dep., 23:5-17.) Wilson immediately reported Ruiz’s conduct to Culver, who reported it to
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Waller.10 (Id., 23:19-24.) After that incident, Wilson avoided Ruiz completely, including making sure that Ruiz was not in an area in which she needed to work before entering the area. (Id., 24:9-25.)
Boyd was so upset by Ruiz’s behavior that she would cry every morning before work and throughout the day while at work. (Boyd dep., 21:1-5, 37:14-18.)
On either December 6 or December 12, 2004, Boyd and Wilson received written warnings from Waller for failing to conduct manual inventory counts in the warehouse, instead relying on the company’s computer inventory report. (Wilson dep., 35:23-36:9; A&I Products’ April 12, 2005 responses to the EEOC’s Request for Information, question 7.) They were informed that future errors in inventory count could lead to further disciplinary actions. (Id.) Wilson testified that she had conducted a manual inventory count and that her inventory count was correct. (Wilson dep., 36:6-25.)
Boyd and Wilson testified that they had never received any discipline based on their inventory counts before December 2004. (Boyd dep., 44:10-13; Wilson dep., 35:13-15.) A&I Products states that both Boyd and Wilson had received prior discipline, in that they had received verbal reprimands in September 2004. (A&I
10 Wilson did not testify about what corrective actions, if any, Culver and Waller took against Ruiz in response to Wilson’s complaint.
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Products’ April 12, 2005 responses to the EEOC’s Request for Information, question 7.)
On January 5, 2005, A&I Products discovered that Boyd and Wilson’s inventory counts were incorrect. (Id.) A&I Products asserts that Boyd and Wilson wilfully falsified the counts by relying on the inventory counts on the company computers rather than performing physical counts. (Id.) Boyd and Wilson testified that they had miscounted a shipment of belts, failing to count four belts out of approximately five hundred in the shipment.11 (Boyd dep., 45:20-24; Wilson dep., 38:2-11.) Waller gave Boyd and Wilson written warnings on January 6, 2005 and three-day, nonpaid suspensions for Friday, January 7 through Tuesday, January 11. (Id.)
Other employees occasionally rely on computer inventory numbers instead of conducting manual inventory counts, and Waller sometimes instructs the employees to do so. (Boyd dep., 60:5-24.) For as long as the Memphis warehouse has been open, employees have routinely made errors in counting inventory. (Van Der Vliet dep., 18:19-19:11, Waller dep., 24:1-4.)
When Boyd and Wilson were suspended, the assistant warehouse manager was responsible for investigating any inventory discrepancies. (Waller dep., 21:23-23:5.) If errors were
11 Wilson and Boyd were responsible for counting the same shipments. (Boyd dep., 45-20-46:6.)
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discovered, employees were told to re-count the inventory, but generally were not disciplined. (Bonner dep., 45:13-47:18; Wilson dep., 38:19-25; Waller dep., 25;10-18.) If an employee in the warehouse miscounted when conducting an inventory, Waller would ask the employee about the error and might verbally warn the employee. (Waller dep., 25:10-26:6.) Since approximately April 2006, each employee has been responsible for investigating inventory discrepancies that she discovers. (Id. 23:6-21.) Under that system, Culver and Waller are not notified about or aware of inventory discrepancies. (Culver dep., 23:17-24:22.)
No A&I Products employees except Boyd and Wilson have ever been suspended for falsifying inventory counts, and no other employee in the Memphis warehouse has ever been suspended for any reason. (Van Der Vliet dep., 89:2-15.) None of the employees in the Memphis warehouse has been disciplined for inventory errors since Boyd and Wilson’s suspension. (Culver dep., 23:9-13.)
Since her suspension in January 2005, Wilson has been more careful to ensure that her inventory counts are correct. (Wilson dep., 39:3-14, 67:5-13.) She has not received any further discipline based on her inventory counts. (Id., 39: 19-22.) Boyd has not conducted her inventory counts any differently since her suspension and has not had any further problems with her inventory counts. (Boyd dep., 46:10-18.)
In July 2005, both Culver and Boyd saw Ruiz fondling his
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exposed genitals in the warehouse. (Id., 35:19-23.) Culver also heard Ruiz offer to pay Boyd if she would perform a sexual favor for him.12 (Culver dep., 44:3-5, 48:4-16; Wilson dep., 25:1-17.) Ruiz was fired the same day. (Culver dep., 44:3-5.) No one other than Boyd and Wilson had seen Ruiz masturbate at work until Culver saw Ruiz’s behavior in July 2005. (Boyd dep., 14:21-15:1.)
A&I Products has a one-page sexual-harassment policy, a copy of which it gives to all employees. (Van Der Vliet dep., 90:1991:11; Bosler dep., 20:15-21:12.)13 Boyd and Wilson received a copy of A&I Product’s sexual harassment policy when they were hired. (Boyd dep., 9:23-10:5; Wilson dep., 69:7-17.) Employees do not receive any other harassment training. (Bosler dep., 20:1521:12; Van Der Vliet dep., 90:19-91:11.) III. Summary Judgment Standard
Summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure is appropriate “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 judgment as a matter of law.” Fed. R. Civ. P. 56(c). The party moving for summary judgment “bears the burden of clearly and
12 Culver testified that he heard Ruiz offering Boyd twenty dollars if she would watch him masturbate. (Culver dep., 44:3-17.) Boyd testified that Ruiz offered her money if she would “jack him off.” (Boyd dep., 15:5-10.)
13 Laura Bosler works in the human resources department of A&I Products. (Boyd dep., 30:14-15.)
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convincingly establishing the nonexistence of any genuine issue of material fact, and the evidence as well as all inferences drawn therefrom must be read in a light most favorable to the party opposing the motion.” Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir. 1986). The moving party can meet this burden, however, by pointing out to the court that the respondent, having had sufficient opportunity for discovery, has no evidence to support an essential element of her case. See Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989).
When confronted with a properly supported motion for summary judgment, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. A genuine issue for trial exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party opposing the motion must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmoving party may not oppose a properly supported summary judgment motion by mere reliance on the pleadings. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Instead, the nonmoving party must present “concrete evidence supporting its claims.” Cloverdale Equip. v. Simon Aerials, Inc., 869 F.2d 934,
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937 (6th Cir. 1989). The district court does not have the duty to search the record for such evidence. See Interroyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). Parties have the duty to point out specific evidence in the record that would be sufficient to justify a jury decision in their favor. Id. IV. Analysis A. Hostile Work Environment Claim
A plaintiff can establish a Title VII violation by proving that sex discrimination created a hostile or abusive work environment. Bowman v. Shawnee State Univ., 220 F.3d 456, 462 (6th Cir. 2000). To establish a hostile-work-environment claim, the EEOC must show that: (1) the employee belongs to a protected class; (2) the employee was subjected to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment created a hostile work environment; and (5) the employer is liable. Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724, 733 (6th Cir. 2006)(citing Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999)); Bowman, 220 F.3d at 462-63.
A&I Products does not dispute the first two Randolph factors, but argues that there is insufficient evidence to support a finding that Ruiz’s alleged harassment of Boyd and Wilson was based on their sex, that the harassment created a hostile work environment, or that A&I Products is liable. 1. Based on Sex
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To establish that the harassment complained of was based on sex, the EEOC must show that, but for the fact of Boyd and Wilson’s sex, they would not have been the object of harassment. Williams v. Gen. Motors Corp., 187 F.3d 553, 565 (6th Cir. 1999). Harassing behavior need not be sexually explicit; any harassing behavior motivated by sex-based discriminatory animus will satisfy the “based on sex” requirement. Id.
The record could support a finding that Boyd and Wilson would not have been subjected to the alleged harassment but for their sex. Ruiz’s comments and behaviors were sexually explicit, and he made references to Wilson’s breasts. Wilson has sworn that Culver encouraged Ruiz to grab Wilson’s breasts and behind and to expose himself to Boyd and Wilson, the only two females working in the warehouse. Although none of the male employees had seen Ruiz masturbate until Culver witnessed that behavior on the day Ruiz was fired, Ruiz actively sought Boyd and Wilson’s attention while he was masturbating.
There is no evidence in the record suggesting that Ruiz commented on the physical attributes of his male co-workers or that he purposefully drew their attention to his lewd behavior. Because the harassing behavior was sexual in nature and targeted the only two females working in the Memphis warehouse, a reasonable jury could find that the harassment was based on Boyd and Wilson’s sex.
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2. Hostile Work Environment The fourth Randolph factor requires that the charged sexual
harassment create a hostile work environment. Harassment creates a hostile work environment “[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Randolph, 453 F.3d at 733 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). The test must be met both from the employee’s subjective position and from the objective position of a reasonable person. Id.
The court must consider the totality of the circumstances in determining whether harassment is sufficiently severe or persuasive to constitute a hostile work environment. Id. Specifically, the court must 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 performance.” Bowman, 220 F.3d at 463 (citing Harris, 510 U.S. at 23).
Considering the evidence in a light most favorable to the Plaintiff, Ruiz exposed and fondled his genitals in front of Boyd and Wilson repeatedly over a period of many months and, for a period of time, almost on a daily basis. That harassment is
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“commonplace, ongoing, and continual” indicates that it might be sufficiently pervasive to support a hostile-work-environment claim. Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 252 (6th Cir. 1998). In Abeita, the court of appeals reversed the district court’s grant of summary judgment for the defendant in a case in which the plaintiff described multiple sexual comments that had been made in her presence and stated that similar comments were commonplace. The conduct that the EEOC alleges here is as pervasive as that alleged in Abeita and, because Ruiz’s conduct was not limited to sexual comments, more severe. Certainly, it was more humiliating and exceeded mere offensive utterance. Ruiz’s behavior interfered with Wilson’s ability to perform her job, in that she became so determined to avoid any contact with Ruiz that she would ensure he was not in an area in which she needed to work before she would enter the area. It also interfered with Boyd’s ability to do her job, because she was so upset by Ruiz’s behavior that she cried through the day while at work. For these reasons, a reasonable jury could find that Boyd and Wilson were subjected to a hostile work environment. 3. Employer Liability
The fifth Randolph factor requires employer liability. When a hostile-work-environment claim stems from a coworker’s actions, the plaintiff must show that the employer “knew or should have known of the charged sexual harassment and failed to implement
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prompt and appropriate corrective action.” Williams, 187 F.3d at 561. “In determining whether a response was ‘prompt and appropriate,’ negligence in fashioning a remedy is not sufficient fo the employer to incur liability.” Nievaard v. City of Ann Arbor, 124 F. App’x 948, 954 (6th Cir. 2005). In cases of coworker harassment, an employer is liable only if its response “exhibits such indifference as to indicate an attitude of permissiveness that amounts to discrimination.” McCombs v. Meijer, Inc., 395 F.3d 346, 353 (6th Cir. 2005)(quoting Blankenship v. Parke Care Ctrs., Inc., 123 F.3d 868, 872 (6th Cir. 1997)).14
Questions of material fact remain about when Culver and Waller first learned of Ruiz’s behavior. Although Culver and Waller testified that they did not learn about Ruiz’s behavior until Boyd filed her EEOC complaint in November 2004, Boyd and Wilson’s testimony indicates that Waller and Culver had notice of Ruiz’s harassment in September 2004.
Wilson and Boyd testified that they immediately informed Culver and Waller after Ruiz masturbated in the employee break room in September 2004. Wilson also testified that Culver knew about Ruiz’s history of harassing conduct and that Culver
14 Blankenship has been overruled in part by Burlington Indus. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. Boca Raton, 524 U.S. 775, 808 (1998) as to employer liability in cases of supervisor harassment. Collette v. Stein-Mart, Inc., 126 F. App’x. 678, 684 n.3 (6th Cir. 2005). Blankenship continues to govern cases addressing employer liability in cases of harassment by a co-worker. Rudd v. Shelby County, 166 F. App’x 777, 778 n. 1 (6th Cir. 2006).
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encouraged that conduct both before and after becoming the assistant warehouse manager in August 2004. Although Culver knew about Ruiz’s history of harassing Boyd and Wilson and about the September 2004 incident, no disciplinary action was taken against Ruiz until July 2005. That Culver encouraged Ruiz’s behavior and took no action to discipline Ruiz indicates an “attitude of permissiveness” amounting to discrimination.
Even if Culver and Waller did not learn about Wilson and Boyd’s allegations against Ruiz until November 2004, A&I Products would be liable for its failure to take prompt and appropriate action at that time. Neither Waller nor Culver investigated the allegations in Boyd’s complaint, and Waller indicated that he believed an investigation would be inappropriate because no manager had witnessed Ruiz’s actions. Waller and Culver did not reemphasize or redistribute the company’s anti-harassment policy, nor did they offer Boyd or Wilson any assistance in preventing future harassment. Wilson testified that Culver threatened that Wilson would lose her job if she did not take the company’s side against Boyd on Boyd’s EEOC complaint. These actions do not constitute a prompt and appropriate response to allegations of sexual harassment. Cf. Swanson v. Livingston County, 121 F. App’x 80, 84 (6th Cir. 2005)(employer took prompt and appropriate action to combat co-worker harassment where department promptly began internal investigation regarding employee's allegations and
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meted out disciplinary measures to those individuals found to have violated department policy); Nievaard v. City of Ann Arbor, 124 F. App’x 948, 955 (6th Cir. 2005)(employer took prompt and appropriate action to combat co-worker harassment where city repeatedly met with employees to discuss anti-harassment policy, provided employee with assistance in dealing with harassment, and disciplined employees who had engaged in harassing behavior.)
For eight months, from the time Boyd filed her EEOC complaint until Culver fired Ruiz after seeing him soliciting sexual favors from Boyd, Culver and Waller took no action to remedy or prevent Ruiz’s harassment. Therefore, a reasonable jury could find that A&I Products “knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate corrective action.”
A&I Products asserts that it is entitled to rely on the affirmative defense established in Burlington Indus. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. Boca Raton, 524 U.S. 775, 808 (1998). Under Ellerth and Faragher, an employer is strictly liable for harassment of an employee by the employee’s supervisor if the harassment culminates in a tangible employment action. Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 808. If no tangible employment action is taken, the employer can avoid liability by showing that: (1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing
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behavior, and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 808.
The Ellerth/Faragher defense is available only in cases where the alleged harassment is perpetrated by a supervisor. Here, the EEOC alleges that Boyd and Wilson were subjected to harassment by a co-worker. Therefore, the Ellerth/Faragher defense is inapplicable. A&I Products is liable for Ruiz’s harassment of Boyd and Wilson if it knew or should have known of the alleged harassment and failed to implement prompt and appropriate corrective action.
Because a reasonable jury could find that the EEOC has established each of the five factors of the Randolph test, A&I Products’ motion for summary judgment on the EEOC’s hostile-workenvironment claim is DENIED. B. Retaliation
To establish a prima facie case of retaliation, the EEOC must show that:
1) the employee engaged in protected activity; 2) the employer knew of the protected activity; 3) the employer thereafter took an adverse employment action; 4) there is a causal connection between the protected activity and the adverse action. E.E.O.C. v. SunDance Rehab. Corp., 466 F.3d 490, 501 (6th Cir. 2006). If the plaintiff establishes a prima facie case, the
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burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse action. Johnson v. Univ. of Cincinnati, 215 F.3d 561, 578-79 (6th Cir. 2000) (citations omitted). The plaintiff must then demonstrate that the proffered reason was a mere pretext for discrimination. Id. (citations omitted.)
A&I Products contends that Wilson did not engage in any protected activity, and, therefore, the EEOC cannot establish the first two elements of its prima facie retaliation claim as to Wilson. A&I Products also argues that, assuming the EEOC can establish its prima facie case as to Boyd or Wilson, it cannot rebut A&I Products’ legitimate, non-discriminatory reason for suspending Boyd and Wilson: that they had falsified inventory counts. 1. Protected Activity
A&I Products asserts that, although it knew that Boyd had engaged in an activity protected under Title VII by filing a complaint with the EEOC, Wilson did not file a complaint with the EEOC and, therefore, did not engage in any protected activity.
Title VII provides that: [i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because [the employee] has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
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42 U.S.C. § 2000e-3(a). The first clause, the “opposition clause,” “prohibits an employer from retaliating against an employee who has ‘opposed’ any practice by the employer made unlawful” under the statute. Johnson, 215 F.3d at 578. The second portion, the “participation clause,” “prohibits an employer from retaliating against an employee who has ‘participated’ in any manner in an investigation under Title VII.” Id.
Complaining to management about allegedly unlawful practices qualifies for protection under the opposition clause. Id., 57980. Here, Wilson engaged in protected activity by complaining repeatedly about Ruiz’s behavior to Culver and to Waller. Because her complaints were directed to Culver and Waller, A&I Products knew that Wilson was engaging in protected activity.15 Therefore, the EEOC has established the first two elements of its prima facie retaliation claim on behalf of Wilson.
A&I Products does not dispute the remaining elements of the EEOC’s prima facie retaliation claims. 2. Legitimate, Non-discriminatory Reason
A&I Products argues that, even if the EEOC could establish its prima facie retaliation claim, A&I Products has shown that it suspended Boyd and Wilson for a legitimate, non-discriminatory
15 Wilson also engaged in protected activity under the participation clause because she participated in the EEOC’s investigation of Boyd’s pending EEOC harassment charge. Although Culver indicated that he knew Wilson was named as a witness in Boyd’s complaint, it is not clear whether Wilson participated in the EEOC’s investigation before or after her suspension, nor is it clear when A&I Products knew that Wilson had participated.
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reason. A&I Products asserts that Boyd and Wilson were suspended because they had falsified their inventory counts by relying on computer inventory numbers instead of performing manual inventory checks.
Because it is undisputed that Boyd and Wilson were suspended after Waller discovered their incorrect inventory counts, A&I Products has set forth a legitimate, non-discriminatory reason for their suspensions. 3. Pretext
The EEOC asserts that A&I Products’ proffered reason for suspending Boyd and Wilson is pretextual. Pretext can be established by showing one of the following: (1) that the proffered reason had no basis in fact; (2) that the proffered reason did not actually motivate the adverse action; or (3) that the proffered reason was insufficient to motivate the adverse action. Tuttle v. Metro. Gov’t of Nashville, 474 F.3d 307, 319 (6th Cir. 2007). The EEOC contends that Boyd and Wilson’s inventory count errors were insufficient to motivate their suspensions.
Viewing the evidence in a light most favorable to the EEOC, a reasonable jury could find that A&I Products’ asserted reason for suspending Boyd and Wilson is pretextual. Boyd and Wilson testified that they miscounted a shipment of belts. The discrepancy was minimal. The evidence indicates that inventory
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counting errors are routine and that no other employee has ever been suspended for such errors. Waller testified that he generally responds to inventory discrepancies by talking to the employee who erred and, sometimes, issues a verbal warning. Boyd and Wilson testified that they did not receive verbal warnings before they received written warnings in December 2004 and suspensions in January 2005.
Because employees generally are not disciplined or receive only verbal warnings in response to inventory errors, a reasonable jury could find that Boyd and Wilson’s inventory errors were not sufficient to motivate their suspensions. Because a reasonable jury could conclude that A&I Products’ stated reason for the suspensions was pretextual, A&I Products’ motion for summary judgment on the EEOC’s retaliation claim is DENIED. V. Conclusion
For the foregoing reasons, A&I Products’ motion for summary judgment is DENIED.
So ordered this 13th day of July 2007.
s/ Samuel H. Mays, Jr. SAMUEL H. MAYS, JR. UNITED STATES DISTRICT JUDGE
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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

vs.

)

No.06-02179-Ma/ P

)

A& I PRODUCTS, INC.,

)

)

Defendant.

)

________________________________________________________________________

CONSENT DECREE ________________________________________________________________________

INTRODUCTION

Plaintiff, Equal Employment Opportunity Commission (hereinafter the

“Commission”), instituted this action on behalf of Ann Boyd and Jennifer Wilson,

alleging that Defendant A & I Products, Inc., (hereinafter the “Defendant” or “A & I”),

subjected Boyd and Wilson to sexual harassment and retaliation, in violation of Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.

In the event this proposed Consent Decree is not approved or does not become

final, then it shall not be admissible in evidence in any subsequent proceeding in this

action. Further, this Consent Decree shall not be admissible in any other action now

pending or which may be filed in the future.

This Consent Decree constitutes the complete and exclusive Agreement between

the parties with respect to the matters referred to herein. No waiver, modification or

amendment of any provision of this Consent Decree shall be effective unless made in

writing and signed by both parties. No representations or inducements to compromise

this action have been made, other than those recited or referenced in this Consent Decree. The Court has reviewed the terms of the proposed Consent Decree in light of the
applicable laws and regulations, the statements and representations of counsel for all parties, and hereby approves the Consent Decree.
I. JURISDICTION The United States District Court for the Western District of Tennessee, Western Division, has jurisdiction over the parties and subject-matter of this litigation.
II. GENERAL PROVISIONS This Consent Decree, being entered with the consent of the parties for purposes of settlement, shall not constitute an adjudication on the merits of this lawsuit and shall not be construed as an admission by Defendant of any violation of Title VII.
III. SCOPE AND DURATION OF AGREEMENT A. By entering into this Consent Decree, the parties do not intend to resolve any charges of discrimination currently pending before the Commission other than Charge Nos. 250-2005-01925 and 250-2005-00447 filed by Ann Boyd, which created the procedural foundation for the complaint in this case. B. This Agreement shall not be considered in any manner to be dispositive of any other charges now pending before any office of the Commission, or other lawsuits, if any, pending against Defendant A & I, other than this lawsuit and the above–mentioned charge. C. The provisions of the Consent Decree shall remain in effect for a period of one year from the date of the entry of the decree
2

IV. INJUNCTIVE RELIEF A. Defendant, its officers, agents, management, (including supervisory employees), successors, assigns, are hereby enjoined from knowingly or intentionally violating Title VII by: (i) discriminating against current female employees or female applicants for employment with A & I on the basis of sex in any aspect of employment or application for employment; (ii) engaging in or being a party to any action, policy, or practice, that is intended to or is known to them to have the effect of harassing or intimidating any female employee of A & I on the basis of sex; and (iii) engaging in any employment practice which has the purpose or effect of discriminating against any employee or applicant for employment on the basis of sex pursuant to Title VII. B. Defendant, its officers, agents, management (including supervisory employees), successors, assigns and all persons acting in concert with Defendant are hereby enjoined from knowingly or intentionally engaging in any employment practice which has the purpose or effect of retaliating against any employee or applicant for employment for participating in any proceeding under Title VII or for opposing discriminatory employment practices made unlawful under Title VII.
V. TRAINING Defendant shall provide “employment-discrimination awareness” training to all personnel employed at its Memphis facility, according to the following terms: (a) the training session will include at least two (2) hours of instruction; (b) The training will include the following topics: what constitutes sexual harassment; how to prevent, identify and remedy harassment; what constitutes retaliation in violation of Title VII; Defendant’s policy against sexual harassment
3

and retaliation; and implementation of Defendant’s policy against sexual discrimination, including procedures and responsibilities for reporting, investigating and remedying conduct an employee believes may constitute sexual harassment. (c ) The training will be conducted at Defendant’s Memphis location and will be attended by the Director of Human Resources or the Director of Business Operations. (d) Within forty-five (45) days after execution of this Consent Decree by the parties, Defendant shall submit to the Commission the date of the proposed training session(s) and a detailed outline of the proposed training. The Commission will have forty-five (45) days after the date of receipt of such information to reject the training proposal, with a detailed explanation of the ground(s) for doing so. The Commission will not unreasonably withhold its approval of the proposal. If the Commission does not approve the contents of the training session, the parties shall attempt to resolve the matter, and if unsuccessful, submit the dispute to the Court. (e) The training session will be conducted within one hundred twenty (120) days after the date of the entry of this Consent Decree by the Court or within thirty (30) days of approval of the outline or resolution of disputes relating to same as set forth in (d) above, whichever occurs later. (f) Defendant within 150 days of this Agreement shall provide documentation to the Commission of training compliance for all personnel located at its Memphis facility. This information should be forwarded to Darin Tuggle at the address
4

listed on the signature page of this decree. VI. POSTING AND POLICIES
Within thirty (30) days of the entry of this Consent Decree, Defendant shall post and cause to remain posted for one year at its Memphis, Tennessee facility the notice attached hereto as Exhibit A.
VII. INDIVIDUAL RELIEF A. Defendant has delivered to Ann Boyd a cashier’s check payable to “Ann Boyd” in the amount of $15,000.00. The amount is $14,711.29 in damages and $288.71 in backpay and accrued interest. B. Defendant has delivered to Jennifer Wilson a cashier’s check payable to “Jennifer Wilson” in the amount of $15,000.00. The amount is $14,696.35 in damages and $303.65 in backpay and accrued interest. C. A copy of the checks will be mailed to Darin B. Tuggle, Trial Attorney, at the Commission’s Memphis District Office.
VIII. REPORTING A. Defendant will provide two reports to the Commission. The first report will be submitted within six (6) months of entry of the Decree. The second report will be submitted within twelve (12) months of entry of the Decree. Each report will describe all complaints of sexual harassment, if any, made at the Memphis facility following the entry of the Decree, describe the investigation conducted by Defendant in response to each complaint and indicate how the complaint was resolved. Each report will describe Defendant’s training of all supervisors and managerial personnel as set forth herein. B. Each report will be forwarded to Faye A. Williams, Regional Attorney, at
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the Memphis District Office of the Commission. IX. EXPUNGEMENT
The Defendant shall expunge from the personnel files of both Ann Boyd and Jennifer Wilson any and all disciplines challenged in Charge No. 250-2005-01925. The Defendant will also expunge from the personnel files of both Ann Boyd and Jennifer Wilson any reference to the charge of discrimination and this litigation.
X. COSTS Each party shall bear that party’s own costs, attorneys’ fees, and expenses.
s/ SAMUEL H. MAYS, JR. UNITED STATES DISTRICT JUDGE DATE: November 23, 2007
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FOR DEFENDANT:
s/ Ralph T. Gibson (w/ permission DBT) RALPH T. GIBSON Bar No. 18861 Bateman Gibson 1010 Cotton Exchange Building 64 Union Ave. Memphis, TN 38103

FOR THE COMMISSION:
RONALD S. COOPER General Counsel
JAMES LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel
s/ Faye A. Williams (w/ permission DBT) FAYE A. WILLIAMS Regional Attorney TN Bar No. 1170
s/ Darin B. Tuggle DARIN B. TUGGLE Trial Attorney NJ Bar No. 048621998
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1407 Union Avenue, Suite 901 Memphis, TN 38104 (901) 544-0137
s/ William A. Cash, Jr. (w/ permission DBT) WILLIAM A. CASH, JR. Supervisory Trial Attorney AR Bar No. 88081
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 820 Louisiana Avenue, Suite 200 Little Rock, AR 72201 (501) 324-5539

7

NOTICE
1. This Notice to all employees of A & I Products, Inc., is being posted as part of a mutual agreement between A & I Products, Inc., and the Equal Employment Opportunity Commission in settlement of a complaint of employment discrimination.
2. Federal law requires an employer to maintain a workplace free from harassment based on sex, as well as race, color, religion, national origin, age (40 or older), or disability with respect to working environment or terms and conditions of employment.
3. A & I Products, Inc., supports and will comply with Title VII in all respects and will not take any action against employees because they have opposed employment practices made illegal by Title VII or exercised their rights under the law by filing charges with the Equal Employment Opportunity Commission, or because they testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under Title VII.

______________________________ Date

______________________________ A & I Products, Inc.
.

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U.S. District Court Western District of Tennessee (Memphis) CIVIL DOCKET FOR CASE #: 2:06-cv-02179-SHM-tmp

CLOSED

Equal Employment Opportunity Commission v. A & I Products, Inc. Assigned to: Judge Samuel H. Mays, Jr Referred to: Magistrate Judge Tu M. Pham Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 03/24/2006 Date Terminated: 12/10/2007 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Adele Rapport EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1407 Union Avenue Suite 621 Memphis, TN 38104 901-544-0113 TERMINATED: 08/09/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Darin B. Tuggle EQUAL EMPLOYMENT OPPORTUNITY COMMISSIONMemphis 1407 Union Avenue Ste. 621 Memphis, TN 38104 901-544-0137 Fax: 901-544-0111 Email: darin.tuggle@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Faye A. Williams EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1407 Union Avenue Ste. 621 Memphis, TN 38104 901-544-0088 Email: faye.williams@eeoc.gov LEAD ATTORNEY

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V. Defendant A & I Products, Inc.

ATTORNEY TO BE NOTICED
William A. Cash, Jr. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Little Rock Area Office 820 Louisiana Ste. 200 Little Rock, AR 72201 501-324-5339 Fax: 501-324-5991 Email: William.Cash@eeoc.gov ATTORNEY TO BE NOTICED
represented by Ralph T. Gibson BATEMAN GIBSON & CHILDERS 65 Union Avenue 1010 Cotton Exchange Building Memphis, Tn 38103 901-843-2466 Fax: 901-525-8466 Email: ralph@batemangibson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/24/2006
05/11/2006 05/12/2006 05/30/2006 06/13/2006 06/14/2006

# Docket Text
1 COMPLAINT against A & I Products, Inc. (Filing fee $ waived) , filed by Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet)(agj,) (Entered: 03/24/2006)
2 NOTICE of Appearance by Ralph T. Gibson on behalf of all defendants (Gibson, Ralph) (Entered: 05/11/2006)
3 SETTING LETTER: Scheduling Conference set for 6/15/2006 09:45 AM in Courtroom 6 - Memphis before Tu M. Pham. (bdg, ) (Entered: 05/12/2006)
4 ANSWER to Complaint with Jury Demand by A & I Products, Inc..(Gibson, Ralph) (Entered: 05/30/2006)
5 REPORT of Rule 26(f) Planning Meeting. (Tuggle, Darin) (Entered: 06/13/2006)
6 SCHEDULING ORDER: Amended Pleadings due by 9/15/2006. Discovery due by 12/15/2006. Joinder of Parties due by 9/15/2006. Dispositive Motions due by 1/15/2007. Jury trial to last 3-4 days. The Scheduling Conference set for 6/15/06 is canceled, Signed by Judge Tu M. Pham on 6/14/06. (Pham, Tu) (Entered: 06/14/2006)

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07/31/2006 08/09/2006 11/27/2006 12/06/2006 12/13/2006 12/28/2006
01/04/2007 01/22/2007
03/29/2007

7 MOTION to Substitute Attorney Proposed Order Submitted, MOTION to Withdraw as Attorney Proposed Order Submitted by Equal Employment Opportunity Commission. (Tuggle, Darin) (Entered: 07/31/2006)
8 ORDER granting 7 Motion to Substitute Attorney. Added attorney Faye A. Williams for Equal Employment Opportunity Commission. Attorney Adele Rapport terminated. Signed by Judge Samuel H. Mays Jr. on 8/8/06. (Mays, Samuel) (Entered: 08/09/2006)
9 Joint MOTION to Extend Deadline to modify scheduling order (proposed order submitted) by A & I Products, Inc.. (Attachments: # 1 Memorandum in support of joint motion to modify scheduling order)(Gibson, Ralph) (Entered: 11/27/2006)
10 SETTING LETTER: Jury Trial set for Tuesday, 5/29/2007 at 09:30 AM in Courtroom 2 - Memphis before Samuel H. Mays Jr. Pretrial Conference set for Friday, 5/18/2007 at 02:00 PM. Joint Pretrial order due 5/14/2007. (jl) (Entered: 12/06/2006)
11 SETTING LETTER: Status/Scheduling Conference set for Thursday, 12/28/2006 at 10:30 AM in Courtroom 2 - Memphis before Samuel H. Mays Jr. (jl) (Entered: 12/13/2006)
12 MINUTES: Status/Scheduling Conference held on 12/28/2006 before Judge Samuel H. Mays Jr. Atty Darin Tuggle appeared for pltf; Atty Ralph Gibson appeared for deft. Jury Trial currently set 5/29/2007 with a pretrial conference on 5/18/2007. MOTION 9 to Extend Deadlines & to modify scheduling order GRANTED. Joining parties/amending pleadings ddl 2/15/2007; Discovery due by 3/15/2007 ; Expert disclosures due 1/15/2007 from pltf; 2/15/2007 from deft; dispositive motions due 4/16/2007. Jury Trial RESET to Monday, 8/20/2007 at 9:30 a.m. (est 3-4 days); Pretrial Conference RESET to Friday, 8/10/2007 at 9:30 a.m. Joint Pretrial Order due 8/3/2007. Mediation deadline is 5/15/2007. (Court Reporter Diana Coleman) (jl) Modified on 1/30/2007 (jl, ). (Entered: 01/04/2007)
13 SETTING LETTER: Jury Trial RESET to Monday, 8/20/2007 at 09:30 AM in Courtroom 2 - Memphis before Samuel H. Mays Jr. Pretrial Conference RESET to Friday, 8/10/2007 at 09:30. Joint Pretrial Order due 8/3/2007. (jl) (Entered: 01/04/2007)
14 SCHEDULING ORDER: Conference held 12/28/06 pursuant to motion 9 to modify schedule; motion GRANTED. Amended deadlines established: Joining parties and amending pleadings, 2/15/07; completing discovery, 3/15/07; expert disclosures, plaintiff, 1/15/07; expert disclosures, defendant, 2/15/07; dispositive motions, 4/16/07; mediation, 5/15/07. Pretrial Conference set for 8/10/2007 09:30 AM; Proposed Pretrial Order due by 8/3/2007; Jury Trial set for 8/20/2007 09:30 AM in Courtroom 2 - Memphis before Samuel H. Mays Jr. Trial 3 - 4 days. Signed by Judge Samuel H. Mays Jr. on 1/17/07. (Mays, Samuel) (Entered: 01/22/2007)
15 Joint MOTION for Extension of Time to Complete Discovery and to file dispositive motions (proposed order submitted) by A & I Products, Inc.. (Attachments: # 1 Memorandum in support of joint motion extending deadline to complete discovery and to file dispositive motions)(Gibson, Ralph) (Entered: 03/29/2007)

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04/03/2007 04/30/2007 04/30/2007 04/30/2007 04/30/2007 04/30/2007
04/30/2007 04/30/2007 04/30/2007 06/04/2007
06/04/2007

16 ORDER granting 15 Motion for Extension of Time to Complete Discovery and to File Dispositive Motion. The deadline for discovery and for filing dispositive motion is extended to 4/30/07. Signed by Judge Samuel H. Mays Jr. on 4/2/07. (Mays, Samuel) (Entered: 04/03/2007)
17 DEPOSITION of Brian Van Der Vliet taken on April 13, 2007 by A & I Products, Inc.. (Attachments: # 1 Exhibit to deposition of Vliet)(Gibson, Ralph) (Entered: 04/30/2007)
18 DEPOSITION of George David Waller taken on April 10, 2007 by A & I Products, Inc.. (Attachments: # 1 Exhibit to deposition of Waller)(Gibson, Ralph) (Entered: 04/30/2007)
19 DEPOSITION of Eddie Lee Bonner taken on April 10, 2007 by A & I Products, Inc..(Gibson, Ralph) Modified on 4/30/2007 (fsh, ). (Entered: 04/30/2007)
20 DEPOSITION of Kevin Ray Culver taken on April 10, 2007 by A & I Products, Inc.(Gibson, Ralph) Modified on 4/30/2007 (fsh, ). (Entered: 04/30/2007)
21 COURTESY NOTICE: Pursuant to Rule 5 of the Federal Rules of Civil Procedure, document 19 Deposition filed by A & I Products, Inc.,, 20 Deposition filed by A & I Products, Inc., has been filed. The wrong deponent's name was entered as to the deposition filed. The names have been corrected accordingly in the text of the docket. Filer is not required to resubmit document. (fsh, ) (Entered: 04/30/2007)
22 DEPOSITION of Ann Boyd taken on April 4, 2007 by A & I Products, Inc..(Gibson, Ralph) (Entered: 04/30/2007)
23 DEPOSITION of Jennifer Wilson taken on April 4, 2007 by A & I Products, Inc..(Gibson, Ralph) (Entered: 04/30/2007)
24 MOTION for Summary Judgment by A & I Products, Inc.. (Attachments: # 1 Memorandum in support of motion for summary judgment)(Gibson, Ralph) (Entered: 04/30/2007)
25 RESPONSE in Opposition re 24 MOTION for Summary Judgment (nd Memorandum in Support) filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit No. 1 Brian Van Der Vliet depo excerpts# 2 Exhibit No. 2 Ann Boyd depo excerpts# 3 Errata No. 3 Jennifer Wilson depo excerpts# 4 Exhibit No. 4 Kevin Culver depo excerpts# 5 Exhibit No. 5 George Waller depo excerpts# 6 Errata No. 6 Laura Bosler depo excerpts# 7 Exhibit No. 7 Boyd Charge of Discrimination# 8 Exhibit No. 8 Responses to RFI# 9 Exhibit No. 9 Declaration of Jeannie Robinson Hurt# 10 Errata No. 10 Eddie Bonner depo excerpts# 11 Exhibit No. 11 Harassment Policy# 12 Errata No. 12 Notice of Charge of Discrimination)(Tuggle, Darin) (Entered: 06/04/2007)
26 RESPONSE in Opposition re 24 MOTION for Summary Judgment (Plaintiff's Response to Defendant's Statement of Undisputed Facts) filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit No. 1 Eddie Bonner depo excerpts# 2 Exhibit No. 2 A & I Products Exit Interview (Bates AI 0152-0153)# 3 Exhibit No. 3 George Waller depo excerpts# 4 Exhibit No. 4 Declaration of Jeannie Robinson Hurt# 5 Exhibit No. 5 Jennifer Wilson depo excerpts# 6 Errata No. 6 Ann Boyd depo excerpts# 7 Errata No. & Laura Bosler

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depo excerpts# 8 Exhibit No. 8 Brian Van Der Vliet depo excerpts# 9 Exhibit No. 9 Kevin Culver depo excepts)(Tuggle, Darin) (Entered: 06/04/2007)
27 DEFICIENCY NOTICE: Pursuant to Rule 5 of the Federal Rules of Civil Procedure, document 26 Response in Opposition to Motion, filed by Equal Employment Opportunity Commission, has been filed. However, the following deficiency has been found: Entry 26 is not a Reply to the 24 Motion for Summary Judgement. It is a Response to the Statement of Undisputed Facts which is contained in the body of an attachment to 24 . The document 26 should have been filed as a Notice of Additional Attachments to 25 . If any assistance is needed in filing please call the ECF Help Desk at 901-495-1200. The filer has one business day to correct the deficiency. (cas, ) (Entered: 06/05/2007)
28 NOTICE by Equal Employment Opportunity Commission re 24 MOTION for Summary Judgment -- Plaintiff's Response to Defendant's Statement of Undisputed Facts -- (Attachments: # 1 Exhibit No. 1 - Eddie Bonner depo excerpts# 2 Exhibit No. 2 - A & I Products Exit Interviews Bates # AI 0152-0153# 3 Exhibit No. 3 - George Waller depo excerpts# 4 Exhibit No. 4 Declaration of Jeannie Robinson Hurt# 5 Exhibit No. 5 - Jennifer Wilson depo excerpts# 6 Exhibit No. 6 - Ann Boyd depo excerpts# 7 Exhibit No. 7 - Laura Bosler depo excerpts# 8 Errata No. 8 - Brian Van Der Vliet depo excerpts# 9 Errata No. 9 - Kevin Culver depo excerpts)(Tuggle, Darin) (Entered: 06/06/2007)
29 NOTICE of Appearance by William A. Cash, Jr on behalf of Equal Employment Opportunity Commission (Cash, William) (Entered: 06/08/2007)
30 MOTION for Leave to File Reply Brief (Proposed Order Submitted) by A & I Products, Inc.. (Attachments: # 1 Memorandum in support of Motion for Leave to File Reply Brief)(Gibson, Ralph) (Entered: 06/13/2007)
31 CERTIFICATE of Counsel by Ralph T. Gibson on behalf of A & I Products, Inc. (Gibson, Ralph) (Entered: 06/13/2007)
32 ORDER Granting 30 defendant's Motion for Leave to File Reply in further support of motion for summary judgment. Signed by Judge Samuel H. Mays Jr. on 6/18/07. (Mays, Samuel) (Entered: 06/19/2007)
33 ORDER denying 24 Defendant's Motion for Summary Judgment. Signed by Judge Samuel H. Mays, Jr. on 07/13/2007. (Mays, Samuel) (Entered: 07/13/2007)
34 NOTICE of Appearance by William A. Cash, Jr on behalf of Equal Employment Opportunity Commission (Cash, William) (Entered: 07/18/2007)
35 NOTICE by Equal Employment Opportunity Commission of Filing Plaintiff's Rule 26 (a)(3) Disclosures (Tuggle, Darin) (Entered: 07/23/2007)
36 CERTIFICATE OF SERVICE by A & I Products, Inc. of the filing of Defendant's Rule 26(a)(3) PRETRIAL disclosures (Gibson, Ralph) (Entered: 07/23/2007)
37 MOTION in Limine (proposed order submitted) by Equal Employment Opportunity Commission. (Attachments: # 1 Memorandum in Support of Plaintiff's Motion in Limine# 2 Exhibit 1 Judicial Diversion# 3 Affidavit Declaration of Ann Boyd)(Tuggle, Darin) (Entered: 08/06/2007)

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38 CONSENT DECREE settling case. Signed by Judge Samuel H. Mays Jr. on 11/23/07. (Mays, Samuel) (Entered: 11/28/2007)
39 JUDGMENT, signed by Judge Samuel H. Mays Jr. on 12/07/2007. This action is dismissed in accordance with the Consent Decree, docketed November 28, 2007. Each party shall bear their own costs, attorneys fees and expenses. (Mays, Samuel) (Entered: 12/10/2007)

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