-

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

THE CARTER-JONES LUMBER COMPANY, )

)

Defendant.

)

)

COMPLAINT JURY TRIAL DEMAND

NATURE OF THE ACTION This is an action under Title I of the Americans with Disabilities Act of 1990 and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of disability and to provide appropriate relief to Gerald Price who was adversely affected by such practices. The Commission alleges that Gerald Price is a qualified individual with a disability and that The CarterJones Lumber Company discriminated against Gerald Price because ofhis disability by denying him employment. The Commission further alleges that The Carter-Jones Lumber Company made, and on information and belief, makes illegal disability-based inquires of applicants for employment.

1

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JURISDICTION AND VENUE I. Jurisdiction ofthis Court is invoked pursuantto 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 107(a) ofthe Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12117(a), which incorporates by reference Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e5(f)(1) and (3). 2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the Northern District of Ohio, Eastern Division.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title I ofthe ADA and is expressly authorized to bring this action by Section 107(a) of the ADA, 42 U.S.C. § 12117(a), which incorporates by reference Sections 706(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(l)and (3). 4. At all relevant times, Defendant, The Carter-Jones Lumber Company (the "Employer"), has continuously been a building material retail business with 240 stores in ten states including Norton, Ohio; with headquarters offices in Kent, Ohio; and with a total workforce of approximately 3500 persons. 5. At all relevant times, Defendant Employer has continuously been an employer engaged in an industry affecting commerce under Section 101 (5) ofthe ADA, 42 U.S.C.§ 12111 (5), and Section 101 (7) of the ADA, 42 U.S.c. § 12111 (7), which incorporates by reference Sections
2

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701 (g) and (h) ofTitie VII, 42 U.S.C. §§ 2000e(g) and (h). 6. At all relevant times, Defendant Employer has been a covered entity under Section
101(2) of the ADA, 42 U.S.C. § 12111(2). STATEMENT OF CLAIMS
7. More than thirty days prior to the institution of this lawsuit, Gerald Price filed a charge with the Commission alleging violations of Title I of the ADA by Defendant Employer. All conditions precedent to the institution of this lawsuit have been fulfilled.
8. Since at least on or about November 8, 2002, Defendant Employer has engaged in unlawful employment practices at its facilities, including Norton, Ohio, in violation of Section 102 of Title I of the ADA, 42 U.S.C. Section 12112. The nature of the violations are:
(A) Defendant refused to employ Gerald Price at its Norton, Ohio facility, in approximately April, 2003, because of his disability, physical impairments brought on by diabetes;
(B) Defendant utilized and, on information and belief, still utilizes, questions which were/are likely to elicit disability-related information of applicants, prior to a conditional offer of employment.
9. The effect ofthe practices complained of in paragraph 8, above, has been to deprive Gerald Price of equal employment opportunities and otherwise adversely affect his status as an employee because of his disability. The effect of the practices also has been to deprive applicants for employment of equal employment opportunities.
10. The unlawful employment practices complained of in paragraph 8, above, were intentional.
II. The unlawful employment practices complained of in paragraph 8, above were done
3

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II. The unlawful employment practices complained of in paragraph 8, above were done with malice or with reckless indifference to the federally protected rights of Gerald Price and applicants.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant Employer, its officers, successors, assigns, and all persons in active concert or participation with it, from (1) engaging in disabilitybased discrimination against Gerald Price, (2) failing and refusing to make reasonable accommodation to the physical impairments ofGerald Price; (3) making inquiries ofapplicants, prior to a conditional offer of employment, which are likely to elicit disability-related information and (4) any other employment practice which discriminates on the basis of disability. B. Order Defendant Employer to institute and carry out policies, practices, and programs which provide equal employment opportunities for applicants and for qualified individuals with disabilities, and which eradicate the effects of its past and present unlawful employment practices. C. Order Defendant Employer to make whole Gerald Price, by providing appropriate back pay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to the rightful place hiring of Gerald Price or, in the alternative, the payment of front pay in amounts to be determined at trial.
D. Order Defendant Employer to make whole Gerald Price by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in
4

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paragraph 8, above, including past and future out-of-pocket losses in amounts to be determined at trial.
E. Order Defendant Employer to make whole Gerald Price by providing compensation for past and future non-pecuniary losses resulting from the unlawful practices complained of in paragraph 8, above, including emotional pain, suffering, inconvenience, loss of enjoyment oflife, and humiliation, in amounts to be determined at trial.
F. Order Defendant Employer to pay Gerald Price punitive damages for its malicious and reckless conduct, as described in paragraph 8, above, in amounts to be determined at trial.
G. Grant such further relief as the Court deems necessary and proper in the public interest.
H. Award the Commission its costs of this action. JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its complaint.
ERIC S. DREIBAND General Counsel JAMES L. LEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel

5

,~-7h cy1wL<
Soh'ita A. McMillan (00400 II) Trial Attorney Equal Employment Opportunity Commission Tower City-Skylight Office Tower 1660 West Second St. Suite 850 Cleveland, Ohio 44113-1412 Tel. (216)522-7676 or
(216)522-7453 (voice mail) Fax. (216)522-7430
6

 
 E.E.O.C. v. Carter-Jones Lumber Co., Not Reported in F.Supp.2d (2006)

2006 WL 1489421 Only the Westlaw citation is currently available.
United States District Court, N.D. Ohio, Eastern Division. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al., Plaintiff(s),
v. CARTER-JONES LUMBER COMPANY,
Defendant(s). No. 5:04CV1824, 5:04CV2070. | May 26, 2006.
Attorneys and Law Firms C. Larry Watson, Solvita A. McMillan, Cleveland, OH, Edward L. Gilbert, Slater, Zurz & Gilbert, Akron, OH, for Plaintiffs. Thomas F. Haskins, Michele Morris, Akron, OH, for Defendant. Opinion
MEMORANDUM OPINION and ORDER SCHEDULING STATUS CONFERENCE
DOWD, J.
Resolving Doc. Nos. 51, 66, 77 (Case 1)
Resolving Doc. Nos. 74, 93, 108 (Case 2)
I. INTRODUCTION *1 On September 8, 2004, Plaintiff Equal Employment Opportunity Commission (“EEOC”) filed Case No. 5:04CV1824 (“Case 1”) alleging that in April 2003, unlawful disability discrimination caused Defendant Carter-Jones Lumber Company to refuse to rehire Gerald Price at the lumberyard/home improvement store in

violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. Sec. 12101 et seq.1

1

The EEOC also originally claimed at paragraph 8(b) of

its complaint that there were problems with

Defendant’s employment application procedures. The

EEOC states that those issues have been resolved.

(Doc. No. 64, at n. 1, Case 1).

On October 13, 2004, Plaintiff Gerald Price (“Plaintiff” or “Price”), through counsel, filed his own action, 5:04CV2070 (“Case 2”) alleging that his termination in January 2003 was also prompted by unlawful disability based employment discrimination.2

2

Case 2 was originally assigned to the Honorable John

R. Adams. Case 2 was reassigned to the Court and was

consolidated with Case 1 for all further proceedings

(Doc. No. 10). Plaintiff moved to intervene in Case 1

(Doc. No. 37, Case 2) and the Court denied the motion.

(Doc. 44, Case 2).

After a period of discovery, Defendant filed a motion for summary judgment in both cases (Docket No. 51).3 The EEOC and Plaintiff filed briefs in opposition (Docket No. 64, Case 2 Docket No. 88). Defendant filed a reply brief in support (Docket No. 67).

3

The Court references the docket numbers in Case 1

only. Unless noted specifically, the motions and

responses in Case 2 are duplicates of those filed in Case

1 but with different docket numbers assigned.

Defendant was also granted leave and has filed a document captioned “Supplemental Motion for Summary Judgment” based on newly released social security records (Doc. No. 66). Plaintiffs EEOC and Price have responded to what is in effect a second motion for summary judgment (Docket No. 72, Case 2 Docket No. 97).
The Court heard oral argument on the pending motions on November 2, 2005. After the hearing, Plaintiff filed a motion seeking leave to file an amended complaint instanter (Case 2, Doc. No. 102). The Court granted the motion and Plaintiff has submitted his Second Amended Complaint (Case 2, Docket No. 107). As a result of the
1

E.E.O.C. v. Carter-Jones Lumber Co., Not Reported in F.Supp.2d (2006)

amended complaint, Plaintiff claims that he was laid off because of his disability and adds the allegation that he was not rehired due to his disability.
Defendant renewed its motion for summary judgment in light of the amended complaint which appears on the docket as a third motion for summary judgment (Docket No. 77). Plaintiffs filed response briefs opposing the motion (Docket Nos. 79 and Case 2 Doc. No. 109). The Court granted Defendant leave and Defendant has filed a reply brief in favor of the second supplemental motion for summary judgment (Docket No. 81).
For the following reasons, Defendant’s motions for summary judgment are denied.
II. DISCUSSION
When denying a motion for summary judgment, the Court does not, in the ordinary course, elaborate on the issues presented except to state that there are material facts in dispute that require resolution at trial. Fed.R.Civ.P. 56(c). However, in a close case such as this one, the Court writes in order to enable counsel to evaluate the nature of the evidentiary burden to be presented at trial and to assist with the preparation of jury instructions.
First Motion for Summary Judgment Plaintiff Price worked as a laborer for Defendant at its Norton, Ohio home improvement center. He held the position of “yardman,” a job that required moving building materials and assisting customers with their purchases. Plaintiff also worked on the sales counter, which was less physically taxing. Although they were separate positions, the workers tended to “yo-yo” back and forth between the two jobs.
*2 In December 2002, while he was working for Defendant, Plaintiff was diagnosed with end stage renal failure and entered the hospital in order to commence dialysis of his kidneys. He was terminated in January 2003. During the spring of 2003, Plaintiff claims that Defendant refused to rehire him due to his disability.
The EEOC’s complaint, at paragraph 8, alleges that “Defendant refused to employ Gerald Price at its Norton, Ohio facility, in approximately April, 2003 because of his

disability, physical impairments brought on by diabetes.” (Doc. No. 1, Case 1). Plaintiff also alleges that he was laid off and then not rehired due to unlawful employment discrimination. Docket No. 107, Second Amended Complaint, at para. 25.
The relevant allegations of a disability discrimination claim begin with Plaintiff’s need to allege and support factually a prima facie case of disability discrimination. At trial, Plaintiff will be required to to prove that: “(1) he is an individual with a disability; (2) he is ‘otherwise qualified’ to perform the job requirements, with or without reasonable accommodations; and (3) he was discharged solely by reason of his handicap.” Williams v. London Utility Com’n, 375 F.3d 424, 428 (6th Cir.2004) quoting from Cotter v. Ajilon Servs., 287 F.3d 593, 598 (6th Cir.2002).
After establishing a prima facie case, Defendant must articulate a legitimate, non-discriminatory reason for the discharge. If that burden is met, Plaintiff must demonstrate that this proffered reason is a pretext for discrimination.
The Court also notes that what is or is not reasonable accommodation is a key component of this case. Accommodation of a disabled employee does not require an employer to fundamentally change the essential functions of the position. In Hedrick v. Western Reserve Care System, 355 F.3d 444 (6th Cir.2004), the Court affirmed the district court’s grant of summary judgment to the defendant hospital. Quoting from Burns v. Coca-Cola Enter., Inc., 222 F.3d 247, 256 (6 th Cir.2000), the Court stated:
According to the regulations, an employer need only reassign a disabled employee to a vacant position. Employers are not required to create new jobs, displace existing employees from their positions, or violate other employees’ rights under a collective bargaining agreement or other non-discriminatory policy in order to accommodate a disabled individual.
Hedrick, 355 F.3d at 457 (internal citations omitted).
Although this is a close case, the Court finds that there are
2

E.E.O.C. v. Carter-Jones Lumber Co., Not Reported in F.Supp.2d (2006)

material facts in dispute concerning Plaintiffs’ allegations of wrongful termination and the allegations that Defendant wrongfully refused to rehire Plaintiff.
Second Motion for Summary Judgment An added wrinkle in this case is the fact that Plaintiff was found to be disabled and has received Social Security Disability benefits. As part of the second motion for summary judgment, Defendant cites at length sworn statements made by Plaintiff confirming that he is disabled and unable to obtain gainful employment.
*3 Difficulty for an ADA plaintiff arises when that plaintiff has also filed a contemporaneous application for disability benefits wherein he has made statements, apparently contradictory, that he is totally disabled and unable to work. Demonstrating the second prong of the prima facie case above, showing he or she was “otherwise qualified” to perform the job, becomes seemingly untenable.
In Cleveland v. Policy Mgmt., Sys. Corp., 526 U.S. 795, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999), the United States Supreme Court offered guidance on how to resolve the apparent inconsistency. In Cleveland, the Court determined that an ADA plaintiff was not judicially estopped by her contemporaneous statements proclaiming herself to be totally disabled in order to receive social security disability benefits. The Court found it was possible that one might qualify for disability benefits “and yet, due to special individual circumstances, remain capable of performing the essential functions of her job.” 526 U.S. at 804. The Court noted that the ADA requires employers to make reasonable accommodations for disabled individuals while the application for disability benefits by its general nature could not know the specifics of each applicant’s circumstances in terms of accommodations that could return them to work. Id.
But the conflict between the two statements is not to be ignored. In fact, the Supreme Court in Cleveland held that when it comes to summary judgment:
An ADA plaintiff bears the burden of proving that she is a “qualified individual with a disability”-that is, a person “who, with or without reasonable accommodation can perform the essential functions” of her job. 42 U.S.C. 12111(8). And a plaintiff’s sworn assertion in an application for disability benefits that she is, for example, unable to work will appear to negate an essential element

of her ADA case-at least if she does not offer a sufficient explanation. For that reason, we hold that an ADA plaintiff cannot simply ignore the apparent contradiction that arises from the earlier SSDI total disability claim. Rather, she must proffer a sufficient explanation.
Cleveland, 524 U.S. at 806. Further, it is not sufficient for a plaintiff simply to contradict a previous sworn statement, with the Court comparing the situation to a witness submitting a later affidavit that purports to contradict previous deposition testimony. The apparent contradiction between the two positions must be explained. Id. Finally, the plaintiff’s “explanation must be sufficient to warrant a reasonable juror’s concluding that ... the plaintiff could nonetheless ‘perform the essential functions’ of her job, with or without ‘reasonable accommodation.” ’ Cleveland, 526 U.S. at 807.
Williams v. London Utility Com’n, 375 F.3d 424 (6th Cir.2004) is one of the most recent published Sixth Circuit decisions to address what is or is not a “sufficient explanation” when an ADA plaintiff is confronted with his own apparently contradictory claim that he is totally disabled. In Williams, Plaintiff was terminated on February 28, 2001 and the next day filed for disability benefits under the state retirement system. Plaintiff subsequently filed suit to be reinstated to his position. For his disability discrimination claim, Williams needed to show, at the time of his discharge, that he was otherwise qualified to perform his job requirements with or without accommodation.
*4 The Sixth Circuit affirmed the district court’s granting of summary judgment to defendant. The Court of Appeals found it impossible to understand how Williams could state he became totally unfit to work the day he filed for disability benefits and only one day after his termination. In the absence of a “sufficient explanation,” the claim would not be allowed. Williams, 375 F.3d at 429.
In Griffith v. Wal-Mart Stores, Inc. 135 F.3d 376 (6th Cir.1998), the district court erroneously held that plaintiff’s ADA claim was precluded by statements he made in his social security disability application. The Sixth Circuit held that there were material facts in dispute concerning whether plaintiff could work his previously held sales positions with accommodation.
The Court also noted that although the job description stated that up to 25 lbs. would need to be lifted on a
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E.E.O.C. v. Carter-Jones Lumber Co., Not Reported in F.Supp.2d (2006)

regular basis, there was a dispute of fact as to whether the position was really that physically demanding. Griffith, 135 F.3d at 383, n. 6.
As to the second motion for summary judgment, the Court finds that Plaintiff has provided sufficient evidentiary materials, when viewed in a light most favorable to his cause, to survive Defendant’s second motion for summary judgment which was premised on the admissions Plaintiff made in the Social Security Disability claim.
Third Motion for Summary Judgment The Court granted Defendant leave to file a second supplement to its motion for summary judgment following Plaintiff’s filing of his second amended complaint. In that supplement, which has been docketed as a third motion for summary judgment (Docket No. 77), Defendant for the first time argues that Plaintiff is not disabled. According to Defendant, because the dialysis Plaintiff undergoes three times a week corrects his body’s inability to express waste products, Plaintiff has no major life impairment that qualifies as a disability under the ADA. See Docket No. 81, at 3. Defendant cites, by way of comparison, a case involving nearsighted persons unable to obtain employment as airline pilots and that corrective lenses render them not disabled pursuant to the statute. Defendant asks the Court, by way of summary judgment, to determine that there are no material facts in dispute as to the issue of Plaintiff’s alleged disability.
The Court agrees that it is part of Plaintiff’s prima facie case to submit evidence to show that Plaintiff is an individual with a disability. Plaintiff EEOC cites several cases in which courts have found that dialysis patients with end stage renal failure are in fact disabled. See Kammueller v. Loomis, Fargo & Co., 383 F.3d 779 (8th Cir.2004) and cases cited therein. Further, it seems to the Court that there is at least a factual dispute about Plaintiff’s disability raised by the Social Security Administration’s determination that Plaintiff is disabled. Accordingly, the Court also finds that there are material facts in dispute concerning whether Plaintiff is a person

with a disability and that the second supplemental motion for summary judgment (Docket No. 77) is denied.
Preparing for Trial *5 The Court will conduct a status conference in this case with only counsel present for the purpose of scheduling this matter for trial.
The Court notes that because this is a close case, the Court may entertain a motion pursuant to Fed.R.Civ.P. 50 at the close of Plaintiff’s case if the Court becomes convinced that a directed verdict would be proper.
The Court encourages the parties to give serious consideration to coming to a resolution of this matter. If requested, the Court would also be amenable to referring this matter to Magistrate Judge Gallas for mediation. Another tool to move disputes toward resolution, one that is not available under the Ohio Civil Rules, is Fed.R.Civ.P. 68 which permits Defendant to make an offer of judgment at any time more than 10 days prior to trial. If Plaintiff declines the settlement offer and then fails to obtain a judgment more than the proffered amount, Plaintiff is responsible for the costs of the offering party from the date the offer is made.
III. CONCLUSION
For the foregoing reasons, the Court denies Defendant’s Motion for Summary Judgment in Case No. 5:04CV1824 and Case No. 5:04CV2070. This matter is hereby scheduled for a pretrial status conference with counsel at 9:00 a.m. on Thursday, June 1, 2006 in chambers for the purpose of scheduling this matter for trial.
IT IS SO ORDERED.
	  

4

 
 DOWD, J.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

Equal Employment Opportunity Commission, et al,
Plaintiff(s), v. Carter-Jones Lumber Company,
Defendant.

) ) CASE NO. 5:04 CV 1824 ) ) ) ) JUDGMENT ENTRY ) ) ) )

Gerald Price, Plaintiff,
v. Carter Lumber Company, et al,
Defendant(s).

) ) CASE NO. 5:04 CV 2070 ) ) ) ) JUDGMENT ENTRY ) ) ) )

The jury was impaneled in this case on Wednesday, September 6, 2006. Testimony followed. Following testimony and prior to final argument, the Court provided written jury instructions accompanied by a set of interrogatories numbering ten. Some of the interrogatories had sub-parts. After final argument, the jury began its deliberations on Wednesday, September 13, 2006. On Thursday, September 14, 2006, the jury, consistent with the Court’s instructions, answered only six of the interrogatories namely Interrogatory 1, 2A, 2B, 5A, 5B, and 5C. Copies of the jury’s answers to Interrogatories, 1, 2A, 2B, 5A, 5B and 5C are attached hereto as Appendices I, II, III, IV, V and VI..

(5:04 CV 1824) (5:04 CV 2070)
After the jury returned its answers to the above-described interrogatories, the Court polled the jury and each juror indicated that the Court had correctly read the answers to the six interrogatories and that the answer to the specific interrogatory was the answer of the questioned juror.
The Court then sent the jury back to the jury room and gave counsel the opportunity to review the answers. Counsel thereafter agreed, with the Court, that the answers resulted in a verdict for the defendant Carter-Jones Lumber in each of the two cases.
Wherefore, it is hereby ORDERED, ADJUDGED AND DECREED, that judgment is hereby entered for the defendant Carter-Jones Lumber against the plaintiff EEOC in Case No. 5:04 CV 1824 and judgment is also entered for the defendant Carter-Jones Lumber against the plaintiff Gerald Price in Case No. 5:04 CV 2070.

September 18, 2006 Date

/s/ David D. Dowd, Jr. David D. Dowd, Jr. U.S. District Judge

 
 DOWD, J.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

Equal Employment Opportunity Commission, et al.,
Plaintiff(s), v. Carter-Jones Lumber Company,
Defendant(s).

)

) CASE NOS. 5:04CV1824 (Case 1)

)

5:04CV2070 (Case 2)

)

) ORDER

) Re: Docket No. 116 & 128 (Case 1)

)

Docket No. 191 & 197 (Case 2)

)

)

)

I. INTRODUCTION

Before the Court are Plaintiffs’ Motion (Docket No. 116)1 and Supplemental Motion

(Docket No. 128) to amend the judgment and for a new trial in this matter. Defendant has filed a

brief in opposition to the new trial motion (Docket No. 118) and to the supplemental motion for

a new trial (Docket No. 129). Plaintiffs have filed reply briefs in support of the motion and

supplemental motion for a new trial (See Docket Nos. 122 & 131). For the reasons that follows,

the motion and the supplemental motion for a new trial (Docket Nos. 116 & 128) are denied.

II. DISCUSSION

In this case, Plaintiffs EEOC and Gerald Price allege that Defendant Carter Lumber

engaged in disability discrimination in violation of the Americans with Disabilities Act when

Defendant (1) terminated Mr. Price’s employment in December 2002 and (2) did not rehire Mr.

Price in the spring of 2003. The Court denied Defendant’s motion for summary judgment,

acknowledging that while it was a “close case,” there were sufficient materials facts in dispute

1Because the motions and briefs are the same in both Case One and Case Two, the Court only references the documents from Case 1, 5:04CV1824.

(5:04CV1824, 5:04CV2070) for the matter to go to the jury. See May 26, 2006 Memorandum Opinion and Order, Docket No. 82, at 3, 4, and 8. The Court conducted a jury trial in the above-captioned matter from September 6, 2006 to September 13, 2006. On September 14, 2006 the jury reached its verdict by way of responding to a series of interrogatories. See Docket No. 110. The jury first found that Defendant did not discriminate against Mr. Price when he was terminated in December 2002. With regard to the alleged failure to rehire, the jury found that Mr. Price did not reapply for his position in the spring of 2003. Based on the interrogatory responses, the Court entered judgment in favor of Defendant on both counts of the complaint. See Docket No. 113. Fed. R. Civ. P. 59 provides that a party may file a motion to alter or amend the judgment or for a new trial within 10 days of the verdict in the action. The original motion for a new trial, Docket No. 116, was timely filed. After the transcript was prepared and filed, the Court permitted the parties to supplement their original positions on the motion for a new trial. The parties substantially agree that in order for the Court to exercise its discretion to amend the judgment or order a new trial, the Court must conclude that the jury has reached a “seriously erroneous result” as evidenced by (1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in law; or (4) to prevent manifest injustice. See Sault St. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 371 (6th Cir. 1998). Plaintiffs argue that the first and fourth factor provide cause for the Court to order a new trial and to amend the judgment in this action. Plaintiffs allege seven separate grounds as a basis for the Court to amend the judgment or
2

(5:04CV1824, 5:04CV2070) order a new trial. The Court will deal with each ground as presented in the supplemental motion (Docket No. 128) at 6-15. First, Plaintiffs argue that the jury’s conclusions, based on its responses to the interrogatories, were against the weight of the evidence. With respect to the termination claim, the jury found, Interrogatory No. 2A, that Mr. Price had not requested accommodations at the time he was terminated or laid off. Plaintiffs argue that the weight of the evidence overwhelmingly demonstrated that he did request an accommodation and terms upon which he could return to work. However, the facts concerning Mr. Price’s termination were disputed by the parties. The Defendant argued that Mr. Price was terminated in December 2002 and Plaintiffs took the position that he was laid off in January 2003. Sufficient evidence, based on the testimony of Mr. Collins, see Tr. at 312-319 (Docket No. 120), supports Defendant’s account and supplies sufficient weight to the finding that Mr. Price was unable to work at that period of time, that he did not request accommodation to return to work and that Defendant did not have work available during the slower winter months. Accordingly, with respect to the termination claim, Plaintiffs’ arguments challenging the sufficiency of the evidence are overruled. Plaintiffs also argue that there was insufficient evidence to support all three findings made by the jury with respect to the refusal to rehire claim. The jury first concluded that Defendant required an application from a previously terminated or laid off employee in order to be considered for rehire. See Interrogatory 5A. The jury answered “no” when asked whether Mr. Price submitted an application for a full time job with Defendant in 2003. See Interrogatory 5B.
3

(5:04CV1824, 5:04CV2070) Finally, the jury found Plaintiffs had not shown, by a preponderance of the evidence, that
“Plaintiff Gerald Price sought, by direct or indirect means, a continuation of employment or a return to employment with Defendant in the Spring of 2003.” See Interrogatory 5C. Based on these interrogatory responses, the Court granted judgment in favor of Defendant on the failure to rehire or re-employ claim.
With respect to Interrogatory 5B, there is no evidence in the record to show that Mr. Price submitted an employment application. During the trial, there was a dispute of fact with respect to whether or not Defendant required returning full time employees to complete another application to be considered for re-hire. In this case, there was sufficient evidence for the jury to conclude that it was the practice of Defendant to require an application to be considered for rehire.
Finally, there was conflicting evidence concerning whether or not Mr. Price sought reemployment. Based on the testimony, the jury concluded the contacts between the parties did not include Mr. Price’s request for a return to employment by either direct or indirect means. Again, in this regard, the jury believed the testimony submitted on behalf of Defendant. See Tr. at 332336 (Docket No. 120). Based on these interrogatory responses, the Court granted judgment in favor of Defendant on the failure to rehire or re-employ claim.
Accordingly, the Court finds that Plaintiffs have not demonstrated the jury’s interrogatory responses were against the weight of the evidence and the first of Plaintiffs’ objections is overruled.
Second, Plaintiffs challenge the terms of the Interrogatory No. 5A, which provides:
4

(5:04CV1824, 5:04CV2070) “Do you find that in the year 2003, Carter Jones required an application from a previously terminated or laid off employee in order to be considered for rehire or re-employment as a full time employee?” The jury answered this interrogatory in the affirmative. Plaintiffs argue that because Mr. Price was allegedly told that he was “laid off,” he could have reasonably expected that he would be recalled without the need for completing another employment application. As a result, Plaintiffs argue, the interrogatory misled the jury because a laid off employee could only expect that he would be called back to work. Finally, Plaintiffs argue that it would have been futile for Mr. Price to submit an application based upon Mr. Collins alleged statement that he did not want to “work around Mr. Price’s dialysis schedule.” The Court first notes that Plaintiffs refer to Mr. Collin’s alleged statement in their posttrial briefs on numerous occasions. The Court also points out that Mr. Collins at trial denied ever making the statement regard working around Mr. Price’s dialysis schedule. See Tr. at 350 (Docket No. 120). The jury was in the best position to weigh the credibility of the witnesses on this issue. There was other evidence submitted on behalf of Defendant that in fact it was the policy and practice not to lay off employees and to require applications from former full-time employees who were seeking to return to work. Finally, the jury, in response to Interrogatory 5C, made the finding that Mr. Price did not seek a return to employment, either directly or indirectly, in 2003. The Court concludes that Plaintiffs have not shown prejudice on the issue of whether or not a policy existed to return to work for Defendant, because the jury ultimately concluded, based on the testimony submitted, that Mr. Price had not sought a return to work, either by formal or informal means.
5

(5:04CV1824, 5:04CV2070) Third, with respect to the termination claim, Plaintiffs argue that the Court should not
have included, as part of its instructions on the elements of an Americans with Disabilities Act claim, that Plaintiff needed to request accommodation for his disability or that his disability was so evident to Defendant that Mr. Price need not have requested them. See Interrogatories 2A and 2B. Plaintiffs assume that the only plausible reason for the jury to conclude that Mr. Price did not ask for accommodation at the time he was terminated, or that the need for accommodation was necessary at the time of termination, was because of a breakdown in communication between Mr. Price and Defendant.
However, there was sufficient evidence in the record to demonstrate that at the time of termination, Mr. Price did not request accommodation because he was unable to work and that based on the testimony of Defendant’s witnesses, he was not seeking a return to work. See Tr. at 903-904 (Docket No. 123). Accordingly, Plaintiffs’ third ground for their motion for a new trial is denied.
Fourth, Plaintiffs object to the Court’s instruction related to the requirement that Plaintiff prove that his disability was the sole reason he was terminated and/or not rehired. The Court relied upon existing precedent in the Sixth Circuit to instruct the jury on this issue. See Willliams v. London Utility Com’n, 375 F.3d 424, 428 (6th Cir. 2004). Moreover, the issue never became relevant to the jury’s deliberations in that the jury never reached the issue as the case was decided on other factual issues. The Court agrees with Defendant that the issue of this instruction was moot and disagrees with Plaintiffs that including the instruction prejudiced the jury in any fashion.
6

(5:04CV1824, 5:04CV2070) The fifth and sixth grounds cited by Plaintiffs relate to evidentiary rulings the Court made
during the course of the trial. The Court considered the matter of job descriptions sought to be introduced by Defendant that had not been previously supplied to Plaintiffs. Plaintiffs objected and the Court considered the matter on the record and denied the objection. Plaintiffs have not shown good cause or sufficient prejudice based on the job descriptions to support their motion for a new trial. See also Tr. at 268-270 (Docket No. 119) and Tr. at 293-299 (Docket No. 120).
With respect to the sixth ground, Plaintiffs object to the Court’s denial to permit them to call three of Mr. Price’s former co-workers as hostile witnesses. However, as Defendant points out, the Court permitted counsel for Plaintiffs to use leading questions as needed and upon examination of the record there is no showing of prejudice as a result of the Court’s decisions. Accordingly, Plaintiffs’ fifth and sixth grounds for a motion for a new trial or to alter and amend the judgment are denied.
Seventh, and lastly, Plaintiffs argue that in fact, Mr. Price was seeking either full or part time employment with Defendant in 2003 and that it was error for the jury only to consider whether Mr. Price was seeking a return to full time employment. The Amended Complaint does not allege that Mr. Price was seeking part-time employment. Mr. Price testified that he was seeking only full-time employment at the time he sought re-employment with Defendant in 2003. See Tr. at 963-966 (Docket No.124).
The Court concluded that there was inadequate evidence in the record to support sending a part time instruction to the jury. Further, Interrogatory 5C was broadly worded to determine whether or not Mr. Price “sought, by direct or indirect means, a continuation of employment or a
7

(5:04CV1824, 5:04CV2070) return to employment with Defendant in the Spring of 2003?” No limitation was placed on full or part time employment and the jury concluded that Mr. Price had not sought a return to work. There is evidence in the record upon which the jury could reasonably rely to come to that conclusion, including sworn statements by Mr. Price to the Social Security Administration that he was completely disabled and unable to work. See Tr. at 928 (Docket No. 124). Accordingly, the seventh ground alleged as a basis for a new trial is denied. III. CONCLUSION For the reasons stated, the motions (Docket Nos. 116 & 128) for a new trial or to alter or amend the judgment are denied.
IT IS SO ORDERED.

April 5, 2007 Date

/s/ David D. Dowd, Jr. David D. Dowd, Jr. U.S. District Judge

8

 
 * Rev. 10/04

PLEASE READ CAREFULLY

LEAD COUNSEL IS CHARGED WITH THE DUTY OF READING THIS ORDER WITHOUT DELAY AND WITH PERSONALLY RESPONDING TO ITS DICTATES.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

Equal Employment Opportunity Commission
Plaintiff, v. Carter-Jones Lumber Company
Defendant. Gerald Price
Plaintiff v. Carter Lumber Company, et al
Defendants.

) ) CASE NO. 5:04CV1824 ) ) JUDGE DAVID D. DOWD, JR. ) ) ) ) ) ) ) ) CASE NO. 5:04CV2070 ) ) ) ) ORDER ) ) CASE MANAGEMENT CONFERENCE ) SCHEDULING ORDER ) )

Case number 5:04CV2070 was transferred to this Court as related to 5:04CV1824. To ensure the clarity of the record, the Court finds that consolidation is necessary. Case number 5:04CV2070 is CONSOLIDATED with this case for docketing purposes. Case number 5:04CV1824 shall be designated as the lead case. From this point forward, all filed documents must

contain both case numbers in the caption. The parties shall continue to file all documents electronically in both cases.
DATE OF HEARING: December 8, 2004 LEAD COUNSEL AND PARTIES MUST BE PRESENT UNLESS EXCUSED BY THE COURT UPON WRITTEN MOTION
ELECTRONIC FILING Counsel are advised that the Court hereby orders that all further documents, notices and orders in this matter be filed electronically rather than on paper, except as provided for in the Electronic Filing Policies and Procedures Manual, a copy of which accompanies this order. The Manual governs electronic filing in the Northern District of Ohio and also provides helpful information on system requirements and usage. All service of future pleadings, notices, and orders will be done electronically and not by regular mail.
Reminder: Lead counsel is personally respo2nsible for complying with this order.

If it has not already been done, all counsel shall complete Attorney Registration Forms and return them to the Clerk of Court as soon as possible so that attorney user accounts can be established. A registration form can be found in the Policies and Procedures Manual. In addition, counsel can register online at:
http://www.ohnd.uscourts.gov/Online_Forms/ECF_Attorney_ Registration/ecf_attorney_registration.html
As soon as accounts are established, counsel will be provided with user identification names and passwords which will permit access to the electronic filing system and which shall serve as signatures for any and all documents filed electronically.
Upon receipt of the identification names and passwords, counsel should verify their ability to file and/or retrieve documents electronically using the Court’s test system. Test case numbers 97-5001 through 97-5025 have been established for this purpose. Counsel are encouraged to experiment extensively with the test system prior to filing or retrieving documents from the live system. Both the live and test systems can be accessed at:
http://ecf.ohnd.uscourts.gov
Counsel can choose to receive notice of filings through Netscape or an Internet Service provider. It is the responsibility of each counsel of record to set up his or her user account to receive e-mail notification (see instructions – Attachment # 1) and to check his or her e-mail box on a regular basis.
The Clerk’s Office has established an Electronic Filing Help Desk at 1-800-355-8498 to answer questions and provide assistance should difficulties arise.
DIFFERENTIATED CASE MANAGEMENT This case is subject to the provisions of Differentiated Case Management (DCM) as generally set forth in the Local Rules of the Northern District of Ohio. The Court will evaluate this case in accordance with LR 16.2(a)(1) and assign it to one of the case management tracks described in LR 16.2(a)(2). At the Case Management Conference the Court will decide, after discussion with counsel,
Reminder: Lead counsel is personally responsible for complying with this order.
3

whether or not to impose any specific limitations on discovery. All counsel are expected to familiarize themselves with the Local Rules as well as with the Federal Rules of Civil Procedure.

SCHEDULING OF CASE MANAGEMENT CONFERENCE All counsel and/or parties will take notice that the above-entitled action has been set for a Case Management Conference (“CMC”) on December 8, 2004 , at 12:00 noon , before Judge David D. Dowd, Jr., Chambers, 4th Floor, 402 Federal Building--United States Courthouse, 2 South Main Street, Akron, Ohio. LR 16.3(b) requires the attendance of both parties and lead counsel. “Parties” means either the named individuals or, in the case of a corporation or similar legal entity, that person who is most familiar with the actual facts of the case. “Party” does not mean in-house counsel or someone who merely has “settlement authority.” If the presence of a party or lead counsel will constitute an undue hardship, a written motion to excuse the presence of such person must be filed well in advance of the CMC.

TRACK RECOMMENDATION

Pursuant to LR 16.3(a), and subject to further discussion at the CMC, the Court recommends

the following track:

Expedited

X Standard

Administrative

Complex

Mass Tort

Reserved for CMC

CONSENT TO JURISDICTION OF MAGISTRATE JUDGE Magistrate Judge Gallas has been assigned to assist in this case. The parties are encouraged to discuss and consider consenting to the jurisdiction of the Magistrate Judge.

Reminder: Lead counsel is personally responsible for complying with this order. 4

PREPARATION FOR CMC BY COUNSEL (Planning Conference under Fed. R. Civ. P. 26(f)) The general agenda for the CMC is set by LR 16.3(b)(2). In all cases, including those exempted from initial disclosure by Fed.R.Civ.P. 26(a)(1)(E), counsel (or the party, if unrepresented) must confer prior to the Case Management Conference as required by Fed.R.Civ.P. 26(f). The Rule 26(f) conference shall be completed by no later than November 17, 2004 . Parties represented by counsel are not required to personally participate in this conference. By December 1, 2004 , the parties (through counsel or personally, if unrepresented) shall file a report on their discussion, including a proposed discovery plan, in a form substantially similar to Attachment # 2, signed by all counsel and/or unrepresented parties.
DISCLOSURES UNDER FED. R. CIV. P. 26(a) 1. This is an ERISA case (Employee Retirement Income Security Act of 1974) and, as such, is not subject to disclosures. See Fed. R. Civ. P. 26(a)(1)(E). Counsel shall instead familiarize themselves with the procedure set forth in Wilkins v. Baptist Healthcare System, Inc., 150 F.3d 609, 619 (6th Cir. 1998) (Gilman, J., concurring). This is the procedure that will be followed in all ERISA matters.
X 2. The disclosures mandated by Fed. R. Civ. P. 26(a) (as amended 12/01/00) will all apply as set forth in that Rule.
Absent a showing of good cause, by November 24, 2004 , the plaintiff must serve on opposing parties the initial disclosures required by Fed. R. Civ. P. 26(a)(1), and must certify such service in writing to the Court by the same date.
Absent a showing of good cause, by December 1, 2004 , all other parties must serve on opposing parties the initial disclosures required by Fed. R. Civ. P. 26(a)(1), and must certify such service in writing to the Court by the same date.
Reminder: Lead counsel is personally responsible for complying with this order. 5

FORMAL DISCOVERY STAYED UNTIL CMC The moratorium on formal discovery prior to the Rule 26(f) conference, set forth in Fed. R. Civ. P. 26(d), is hereby extended until after the CMC. Therefore, prior to the CMC, no party or counsel shall conduct any formal discovery except as is necessary and appropriate to support or defend against any challenge to jurisdiction or claim for emergency, temporary, or preliminary relief. This moratorium in no way affects the disclosures required by Fed. R. Civ. P. 26(a).
FILING OF DISCOVERY MATERIALS (Fed. R. Civ. P. 5(d))
Unless otherwise ordered by the Court, disclosures under Fed. R. Civ. P. 26(a)(1) or (2) and the following discovery requests shall not be filed with the Clerk’s Office until they are used in the proceeding or this Court orders filing: (1) depositions; (2) interrogatories; (3) requests for documents or to permit entry upon land; and (4) requests for admission.
If a party intends to rely on deposition testimony in support of its position on a motion, the Court prefers the filing of the entire deposition rather than excerpts, unless the party truly believes that excerpts are sufficient, and with the proviso that any other party who believes the excerpts offered are not sufficient is free to file the entire deposition. In any event, discovery and disclosure material submitted in support of any party’s position shall be filed at the same time as that party’s memorandum setting forth its position.
DEPOSITIONS PRACTICE The Judges of the Northern District of Ohio have adopted LR 30.1 (as amended 9/23/02) which governs the taking of depositions. A copy of the rule is attached (See Attachment # 3). Counsel are expected to comply with the rule in its entirety.
OTHER DIRECTIVES In all cases in which it is anticipated that a party or parties will seek attorney’s fees pursuant to statutory or case-law authority, such party shall file with the Court at or prior to the CMC a preliminary Reminder: Lead counsel is personally responsible for complying with this order.
6

estimate and/or budget of the amount of fees and expenses anticipated to be the subject of any such claim. Such estimate shall include, but not be limited to, the following:

Attorney’s Fees

Preliminary Investigations

& Filing of Complaint

$

Procedural Motions Practice

$

Discovery

$

Dispositive Motions Practice

$

Settlement Negotiations

$

Trial

$

TOTAL FEES

$

Costs

Depositions

$

Experts

$

Witness Fees

$

Other

$

TOTAL COSTS

$

RESOLUTION PRIOR TO CMC In the event that this case is resolved prior to the CMC, counsel should submit a jointly signed stipulation of settlement or dismissal, or otherwise notify the Court that the same is forthcoming.
IT IS SO ORDERED.

November 16, 2004 Date

/s/ David D. Dowd, Jr. David D. Dowd, Jr. U.S. District Judge

Reminder: Lead counsel is personally responsible for complying with this order. 7

 
 Cat03, Gallas, LC2, Lead, Standard, Termed
U.S. District Court Northern District of Ohio (Akron) CIVIL DOCKET FOR CASE #: 5:04−cv−01824−DDD

Equal Employment Opportunity Commission v. Carter−Jones Lumber Company Assigned to: Judge David D. Dowd, Jr Case in other court: 6th Circuit, 07−03790 Cause: 28:451 Employment Discrimination
Plaintiff

Date Filed: 09/08/2004 Date Terminated: 09/19/2006 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Equal Employment Opportunity Commission

represented by C. Larry Watson U.S. Equal Employment Opportunity Commission − Cleveland 3001 AJC Federal Bldg. 1240 East Ninth Street Cleveland, OH 44199 216−522−7455 Fax: 216−522−7430 Email: larry.watson@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donna L. Williams−Alexander U.S. Equal Employment Opportunity Commission − Cleveland 3001 AJC Federal Bldg. 1240 East Ninth Street Cleveland, OH 44199 216−522−7454 Fax: 216−522−7430 Email: Donna.Williams−Alexander@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Solvita A. McMillan U.S. Equal Employment Opportunity Commission − Cleveland 3001 AJC Federal Bldg. 1240 East Ninth Street Cleveland, OH 44199 216−522−7453 Fax: 216−522−7430 Email: solvita.mcmillan@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Gerald Price

represented by Edward L. Gilbert Slater &Zurz Ste. 2210 One Cascade Plaza Akron, OH 44308 330−376−8855 Fax: 330−376−8857 Email: egilbert8@sbcglobal.net ATTORNEY TO BE NOTICED

V. Defendant

Carter−Jones Lumber Company

represented by Thomas F. Haskins 7 West Bowery Street Ste. 604 Akron, OH 44308 330−762−9191 Fax: 330−762−4244 Email: thas0909@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele Morris 301 United Bldg. One South Main Street Akron, OH 44308 330−253−7100 Fax: 330−996−2039 Email: mmorris@mmorrislaw.com ATTORNEY TO BE NOTICED

Date Filed 09/08/2004
09/08/2004 10/26/2004 10/26/2004 10/27/2004
11/16/2004
11/24/2004 11/24/2004 11/24/2004 12/01/2004

#

Docket Text

1 Complaint with jury demand against Carter−Jones Lumber Company (1 waiver and Magistrate Consent Forms issued to counsel). Filed by Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet)(C, BA) (Entered: 09/09/2004)

2 Random Assignment of Magistrate Judge Gallas (C, BA) (Entered: 09/09/2004)

3 Answer to Complaint (Related Doc # 1 ) filed by Carter−Jones Lumber Company. (L, T) (Entered: 10/26/2004)

4 Notice of Magistrate Consent form. (M, D) (Entered: 10/26/2004)

5 Case Management Conference Scheduling Order: CMC to be held on 12/8/2004 at 12:00 p.m. at Chambers 402 before Hon. David D. Dowd Jr.. Recommended Track: Standard. Signed by Judge David D. Dowd Jr. on 10/27/2004. (Attachments: # 1 E−Mail Notification# 2 Discovery Plan# 3 Rule 30.1# 4 Manual# 5 Map)(M, D) Modified on 11/1/2004 to edit text (B, T). (Entered: 10/27/2004)

6 Order consolidating case number 5:04CV2070 with this case and all filed documents must contain both case numbers in the caption and all documents are to be filed electronically in both cases and Case Management Conference Scheduling Order setting case for 12/8/2004 at 12:00 noon. Signed by Judge David D. Dowd Jr. on 11/16/2004. (Attachments: # 1 E−Mail Notification# 2 Discovery Plan# 3 Rule 30.1# 4 Manual# 5)(M, D) (Entered: 11/16/2004)

7 Report of Parties' Planning Meeting filed by parties. (Gilbert, Edward) Modified on 12/1/2004 (N, D). (Entered: 11/24/2004)

8 Preliminary Estimate/Budget of Amount of Fees and Expenses filed by Gerald Price. (Gilbert, Edward) (Entered: 11/24/2004)

9 Notice of Service of Initial Disclosures filed by Gerald Price. (Gilbert, Edward) (Entered: 11/24/2004)

10 Notice of Service of Rule 26(a)(1) Initial Disclosures filed by Equal Employment Opportunity Commission. (McMillan,

12/07/2004 12/08/2004 12/09/2004 12/16/2004 12/16/2004 12/17/2004
01/11/2005 01/12/2005 01/19/2005 01/20/2005
01/20/2005 02/03/2005
02/23/2005 02/23/2005

Solvita) Modified on 12/3/2004 (N, D). Unsigned. Filer notified. (Entered: 12/01/2004)
11 Initial Disclosures filed by Carter−Jones Lumber Company. (Haskins, Thomas) (Entered: 12/07/2004)
Minutes of proceedings(non−document). Case Management Conference held on 12/8/2004 before Judge David D. Dowd Jr. Time: 30 Minutes. (Court Reporter none) (M, D) (Entered: 12/08/2004)
12 Order of Referral to Magistrate Judge Gallas for Mediation. Mediation process to be completed by 1/31/2005. Signed by Judge David D. Dowd, Jr. (M, D) (Entered: 12/09/2004)
13 Notice of Service of First Set of Interrogatories filed by Gerald Price. (Gilbert, Edward) Modified on 12/17/2004 (N, D). (Entered: 12/16/2004)
14 Notice of Service of First Request for Production of Documents filed by Gerald Price. (Gilbert, Edward) Modified on 12/17/2004 (N, D). (Entered: 12/16/2004)
15 Order scheduling mediation for 1/19/2005 at 1:00 p.m. before Magistrate Judge James S. Gallas; Written submissions to be hand−delivered to the Court by 1/12/2005. Signed by Magistrate Judge James S. Gallas on 12/17/2004. (P, J) (Entered: 12/17/2004)
16 Motion for extension of Time until 1/18/05 to File Mediation Statement and Materials filed by Equal Employment Opportunity Commission. (McMillan, Solvita) Modified on 1/12/2005 (N, D). (Entered: 01/11/2005)
17 Marginal order granting plaintiff's motion for extension of time until 1/18/2005 to submit its written submission (Related document # 16 ). Signed by Magistrate Judge James S. Gallas on 1/12/2005.(P, J) (Entered: 01/12/2005)
18 Minutes of proceedings before Magistrate Judge James S. Gallas. Mediation held; Parties did not reach a settlement. Time: 1 hour. (P, J) (Entered: 01/20/2005)
19 Report of Mediator: The mediation was held on 1/19/2005 with counsel and parties present. Parties could not reach settlement and the file is returned to the Court. (Related document # 18 ). Signed by Magistrate Judge James S. Gallas on 1/20/2005. (P, J) (Entered: 01/20/2005)
20 Notice of Service of Second Request for Production of Documents filed by Gerald Price. (Gilbert, Edward) Modified on 1/21/2005 (N, D). (Entered: 01/20/2005)
21 Case Management Conference Plan/Order placing case on standard track; Discovery due by 5/9/2005; Status Conference set for 5/17/2005 at 12:30 p.m. in Chambers 402 before Hon. David D. Dowd Jr. Signed by Judge David D. Dowd Jr. on 2/3/2005. (M, D) (Entered: 02/03/2005)
22 Notice to take Deposition of Michael Pestian on March 19, 2005 (Duces Tecum) filed by Gerald Price. (Gilbert, Edward) (Entered: 02/23/2005)
23 Notice to take Deposition of Dave Taylor and James Collins on March 23, 2005 (Duces Tecum) filed by Gerald Price. (Gilbert, Edward) (Entered: 02/23/2005)

02/23/2005 03/02/2005 03/04/2005 03/07/2005 03/08/2005 03/09/2005
03/16/2005 03/24/2005 03/29/2005 04/05/2005 04/05/2005 04/06/2005 04/07/2005
05/17/2005 05/19/2005

24 Amended Notice to take Deposition of Dave Bailey and James Collins on March 23, 2005 (Duces Tecum) filed by Gerald Price. (Gilbert, Edward) (Entered: 02/23/2005)
25 Subpoena Returned Executed; served upon Carter Lumber Company by Personal Service on March 1, 2005 filed by Gerald Price (Gilbert, Edward) (Entered: 03/02/2005)
26 Amended Notice to take Deposition of Michael McKee and James Collins on March 23, 2005 filed by Gerald Price. (Gilbert, Edward) (Entered: 03/04/2005)
27 Subpoena Returned Executed; served upon Michael Pestian by Certified Mail on 03/01/05 filed by Gerald Price (Attachments: # 1)(Gilbert, Edward) (Entered: 03/07/2005)
28 Motion for extension of discovery cutoff until June 9, 2005 by Gerald Price. (Gilbert, Edward) Modified on 3/10/2005 (N, D). (Entered: 03/08/2005)
29 Order that Court will defer ruling on plaintiff Gerald Price's Motion (Related Document # 28 )to extend discovery until the status conference set for 5/17/2005. Parties are encouraged to complete as much discovery as possible. Signed by Judge David D. Dowd Jr. on 3/9/2005. (M, D) Modified text on 3/9/2005 (M, D). (Entered: 03/09/2005)
30 Amended Notice to take Deposition of Michael Pestian on March 25, 2005 (Duces Tecum) filed by Gerald Price. (Gilbert, Edward) (Entered: 03/16/2005)
31 Motion to intervene as a party filed by Gerald Price. (Attachments: # 1 Exhibit 1)(Gilbert, Edward) (Entered: 03/24/2005)
32 Notice of Service of Second Set of Interrogatories filed by Gerald Price. (Gilbert, Edward) Modified on 3/30/2005 (N, D). (Entered: 03/29/2005)
33 Notice of Service of Plaintiff's Responses to Defendant's First Set of Interrogatories filed by Gerald Price. (Gilbert, Edward) (Entered: 04/05/2005)
34 Notice of Service of Plaintiff's Response to Defendant's First Request for the Production of Documents filed by Gerald Price. (Gilbert, Edward) (Entered: 04/05/2005)
35 Motion for extension of Discovery until Undetermined filed by Carter−Jones Lumber Company. (Haskins, Thomas) (Entered: 04/06/2005)
36 Order the Court will defer ruling on 35 Defendants' Motion for extension of Discovery until the Status Conference scheduled for Tuesday, May 17, 2005. In the meantime, the Court encourages the parties to complete as much discovery as possible prior to Mr. Haskins' surgery and after he has recovered. At the Status Conference the Court will review what discovery the parties have accomplished and determine whether good cause has been shown. Signed by Judge David D. Dowd Jr. on 4/7/05. (Z, M) Modified on 4/11/2005 (N, D). (Entered: 04/07/2005)
Minutes of proceedings (non−document). Status Conference held on 5/17/05 before Judge David D. Dowd Jr. Time: 30 Minutes. (Court Reporter none) (M, D) (Entered: 05/17/2005)
37 Order granting 28 Motion to Extend Deadlines; granting 35 Motion for Extension of Time, denying Motion to intervene as a party. (Related Doc # 31 ). Fact Discovery by 8/31/05.

05/19/2005
05/27/2005
06/23/2005 07/22/2005 07/25/2005
08/02/2005 08/02/2005
08/17/2005 08/19/2005
08/25/2005 08/25/2005 09/06/2005

Dispositive Motions due by 9/16/2005, with responses due 9/30/05; and replies by 10/7/05. Defendant to respond to EEOC's interrogatories by 5/27/05. Plaintiff to provide defendant with report(s) of expert witness(es) by 7/29/05; defendant to provide plaintiff with with report(s) of expert witness(es) by 9/19/05. Depositions of experts completed by 9/16/05. Trial set on a standby basis for the two−week period beginning 11/28/05. (See order for specifics) Signed by Judge David D. Dowd Jr. on 5/17/05.(M, D) (Entered: 05/19/2005)
38 Trial Order scehduling Jury Trial on a standby basis for the two−week period beginning 11/28/2005 in Courtroom 442 before Hon. David D. Dowd Jr. Final Joint Stipulations due 11/21/05. Signed by Judge David D. Dowd Jr. on 5/17/05. (M, D) (Entered: 05/19/2005)
39 Notice of Service of Responses to second set of Interrogatories filed by Plainitff, Gerals Price and Interrogatories and Request for Production filed by EEOC filed by Carter−Jones Lumber Company. Related document(s) 32 . (Haskins, Thomas) (Entered: 05/27/2005)
40 Notice of Service of Response to Defendants' Requests for Admissions filed by Gerald Price. (Gilbert, Edward) Modified on 7/5/2005 (N, D). (Entered: 06/23/2005)
41 Motion for extension of time until August 19, 2005 to Disclose Plaintiffs' Expert Report(s) filed by Equal Employment Opportunity Commission. (McMillan, Solvita) (Entered: 07/22/2005)
Order(non−document) granting 41 Plaintiff EEOC's Motion for Extension of Time to 8/19/05 to file expert reports and defendant's expert report is extended to 9/9/05. Entered on behalf of Judge David D. Dowd Jr. on 7/25/05.(M, D) (Entered: 07/26/2005)
42 Notice to take Deposition of Plaintiff on August 16, 2005 at 8:30 a.m. filed by all defendants. (Morris, Michele) (Entered: 08/02/2005)
43 Notice of Service of Plaintiff EEOC's Response to Defendant's First Set of Interrogatories; Request for Production of Documents and Request for Admissions filed by Equal Employment Opportunity Commission. (McMillan, Solvita) (Entered: 08/02/2005)
44 Motion for extension of September 9, 2005 until September 19, 2005 filed by all defendants. (Morris, Michele) (Entered: 08/17/2005)
Order (non−document) granting 44 Defendant's Motion to Extend Deadlines. Defendant shall produce to Plaintiff its expert report on or before September 19, 2005. Judge David D. Dowd Jr. (Z, M) Modified text 8/23/2005 (C, K A). (Entered: 08/19/2005)
45 Notice to take Deposition of Laura Price on August 30, 2005 filed by all defendants. (Morris, Michele) (Entered: 08/25/2005)
46 Notice of Service 2nd Request of Production of Documents Directed to Plaintiffs filed by all defendants. (Morris, Michele) (Entered: 08/25/2005)
47 Notice of Service upon counsel of record of expert report on 8/19/05, and discovery requests on 8/31/05 filed by Equal Employment Opportunity Commission. (McMillan, Solvita)

09/09/2005 09/13/2005 09/16/2005 09/16/2005 09/16/2005 09/19/2005 09/19/2005 09/19/2005 09/19/2005
09/19/2005 09/19/2005 09/19/2005 09/19/2005 09/19/2005 09/28/2005 09/29/2005

Modified text on 10/4/2005 (H, D). (Entered: 09/06/2005)
48 Letter regarding discovery dispute filed by all defendants. (Morris, Michele) (Entered: 09/09/2005)
49 Order scheduling Status Conference for 9/20/2005 at 12:00 noon in Courtroom 442 before Hon. David D. Dowd Jr. Signed by Judge David D. Dowd Jr. on 9/13/05. (M, D) Modified on 9/13/2005 (M, D). (Entered: 09/13/2005)
50 Order cancelling status conference on 9/20/05. Signed by Judge David D. Dowd Jr. on 9/16/05. (M, D) (Entered: 09/16/2005)
51 Motion for summary judgment filed by all defendants. (Morris, Michele) (Entered: 09/16/2005)
52 Motion for leave to Supplement Motion for Summary Judgment filed by all defendants. (Morris, Michele) (Entered: 09/16/2005)
53 Notice of Service of Expert Report Upon Plaintiffs filed by all defendants. (Morris, Michele) (Entered: 09/19/2005)
54 Deposition of Gerald D. Price taken on 8/16/2005 filed by Carter−Jones Lumber Company. Complete document on file, 106 pages + 6 exhibit pages. Related document(s) 51 . (Attachments: # 1 Notice)(S, T) (Entered: 09/20/2005)
55 Deposition of Laura Ries−Price taken on 8/30/2005 filed by Carter−Jones Lumber Company. Related document(s) 51 . (Attachments: # 1 Notice)(S, T) (Entered: 09/20/2005)
56 Deposition of James Collins taken on 3/23/2005 filed by Carter−Jones Lumber Company. Complete document on file, 126 pages + 52 exhibit pages. Related document(s) 51 . (Attachments: # 1 Notice)(S, T) Modified text 9/22/2005 (C, K A). (Entered: 09/20/2005)
57 Deposition of Michael D. McKee taken on 3/23/2005 filed by Carter−Jones Lumber Company. Complete document on file, 100 pages + 13 exhibit pages. Related document(s) 51 . (Attachments: # 1 Notice)(S, T) (Entered: 09/20/2005)
58 Deposition of David E. Bailey taken on 8/2/2005 filed by Carter−Jones Lumber Company. Complete document on file, 65 pages + 5 exhibit pages. Related document(s) 51 . (Attachments: # 1 Notice)(S, T) (Entered: 09/20/2005)
59 Deposition of James Bailey taken on 8/3/2005 filed by Carter−Jones Lumber Company. Related document(s) 51 . (Attachments: # 1 Exhibits# 2 Notice)(S, T) (Entered: 09/20/2005)
60 Deposition of Michael Pestian taken on 8/23/2005 filed by Carter−Jones Lumber Company. (Attachments: # 1 Exhibits# 2 Notice)(S, T) (Entered: 09/20/2005)
61 Deposition of William Schnering taken on 8/23/2005 filed by Carter−Jones Lumber Company. Related document(s) 51 . (Attachments: # 1 Exhibits# 2 Notice)(S, T) (Entered: 09/20/2005)
62 Motion for leave to File Memorandum in Excess of Twenty Pages filed by Equal Employment Opportunity Commission. (McMillan, Solvita) (Entered: 09/28/2005)
63 Motion for extension of Time to File Memorandum in Opposition to Defendant Carter Lumber's Motion for

09/30/2005
10/03/2005
10/11/2005 10/14/2005 10/14/2005 10/14/2005 10/14/2005 10/20/2005 10/24/2005 10/24/2005 10/25/2005
11/02/2005

Summary Judgment filed by Equal Employment Opportunity Commission. (McMillan, Solvita) (Entered: 09/29/2005)
Order (non−document) granting 62 Motion for leave to exceed page limits, granting 63 Motion to Extend Deadlines for response re 51 Motion for summary judgment; response due 10/3/05; reply still due 10/7/05. Entered on behalf of Judge David D. Dowd Jr. on 9/30/05.(D, S) (Entered: 09/30/2005)
64 Opposition to Motion for summary judgment filed by Equal Employment Opportunity Commission. Related document(s) 51 . (Attachments: # 1 Appendix Part 1# 2 Appendix Part 2# 3 Appendix Part 3# 4 Appendix Part 4# 5 Appendix Part 5)(McMillan, Solvita) Modified text 10/12/2005 (C, K A). Modified text on 10/18/2005 (S, T). (Entered: 10/03/2005)
65 Order granting defendant's Motion for leave to supplement the motion for summary judgment to be included with its reply brief, which is due 10/14/05 (Related Doc # 52 ). Signed by Judge David D. Dowd Jr. on 10/11/05.(M, D) (Entered: 10/11/2005)
66 Supplemental Motion for Summary Judgment filed by Carter−Jones Lumber Company. (Attachments: # 1 Manual Filing Social Security Disability File of Mr. Price)(Morris, Michele) Modified text 10/21/2005 (C, K A). (Entered: 10/14/2005)
67 Reply to response to Motion for summary judgment filed by Carter−Jones Lumber Company. Related document(s) 51 . (Attachments: # 1 Affidavit James Collins)(Morris, Michele) Modified text 10/21/2005 (C, K A). (Entered: 10/14/2005)
68 Declaration of T. Haskins filed by Carter−Jones Lumber Company. (Morris, Michele) Modified text 10/21/2005 (C, K A). (Entered: 10/14/2005)
69 Exhibit A to defendant's Response Brief and Supplemental Motion for summary judgment filed by Carter−Jones Lumber Company. Related document(s) 66 , 67 , 68 . Complete 198 page document on file in the Clerk's office. (S, T) (Entered: 10/17/2005)
70 Order scheduling Oral Argument on Motion for Summary Judgment for 10/27/2005 at 2:00 p.m. in Courtroom 442 before Hon. David D. Dowd Jr. Signed by Judge David D. Dowd Jr. on 10/19/05. (M, D) (Entered: 10/20/2005)
71 Motion to continue filed by Equal Employment Opportunity Commission. (McMillan, Solvita) (Entered: 10/24/2005)
72 Opposition to Motion for summary judgment, Supplemental Motion for summary judgment filed by Equal Employment Opportunity Commission. Related document(s) 51 , 66 . (McMillan, Solvita) (Entered: 10/24/2005)
73 Order granting Plaintiff's Motion to continue oral argument currently set for 10/27/05 (Related Doc # 71 ). Motion Hearing reset for 11/2/2005 at 2:00 p.m. in Courtroom 442 before Hon. David D. Dowd Jr. The Court also requests that counsel be prepared to address issues (see order as to issues). Signed by Judge David D. Dowd Jr. on 10/25/05.(M, D) (Entered: 10/25/2005)
Minutes (non−document) of proceedings. Motion Hearing held on 11/2/05 re 51 Motion for summary judgment before Judge David D. Dowd Jr. Time: 30 Minutes. (Court Reporter

11/17/2005 11/30/2005
12/08/2005 12/13/2005 12/21/2005 12/22/2005 01/25/2006
02/01/2006 02/03/2006 02/03/2006

Lori Callahan)(M, D) (Entered: 11/02/2005)
74 Order granting defendant leave until 11/23/05 to respond to motion to amend complaint in Case No. 5:04CV2070 (Docket #102) and trial set for 11/28/05 is vacated. Signed by Judge David D. Dowd Jr. on 11/17/05. (M, D) (Entered: 11/17/2005)
75 Order granting Plaintiff's Motion for leave to amend complaint(Related Doc # 102 in case number 5:04CV2070). Plaintiff is directed to file the amended complaint forthwith. Defendant is granted leave until December 13, 2005 to supplement its motion for summary judgement in light of the amended complaint. Plaintiffs are granted leave to respond to the motion as supplemented until December 23, 2005. Defendant is granted leave to file a reply brief in support by January 6, 2006. Signed by Judge David D. Dowd Jr. on 11/29/05.(M, D) (Entered: 11/30/2005)
76 Order directing Plaintiff to forthwith refile the amended complaint in a form that does not include the dismissed Defendant Collins (Related documents # 44 and 105 in case #5:04CV2070). Signed by Judge David D. Dowd Jr. on 12/8/05. (M, D) (Entered: 12/08/2005)
77 Second Motion to supplement Motion for Summary Judgment filed by all defendants. Related document(s) 66 , 51 , 67 . (Attachments: # 1Westlaw)(Morris, Michele) Modified text on 12/14/2005 (P, G). (Entered: 12/13/2005)
78 Motion for extension of December 23, 2005 until January 25, 2006 to file reply to second supplemental memorandum in support of motion for summary judgment, (Related document # 51 , 77 ) filed by Equal Employment Opportunity Commission. (Watson, C.) Modified text and created links on 12/22/2005 (P, G). (Entered: 12/21/2005)
Order (non−document) granting 78 Plaintiff EEOC's Motion for leave until 1/25/06 to file its Reply to Defendant Carter's Second Supplemental Memorandum in Support of Its Motion for Summary Judgment. Approved by Judge David D. Dowd Jr. on 12/22/05.(M, D) (Entered: 12/22/2005)
79 Opposition to Second Motion to supplement Motion for Summary Judgment filed by Equal Employment Opportunity Commission. Related document(s) 77 . (Attachments: # 1 Exhibit unpublished opinion Lane# 2 Exhibit unpublished opinion Reese# 3 Exhibit unpublished opinion Rivera# 4 Exhibit unpublished opinion Stanley# 5 Exhibit unpublished opinion Talbot# 6 Exhibit unpublished opinion Williams)(McMillan, Solvita) (Entered: 01/25/2006)
80 Motion for leave to File Reply Brief filed by all defendants. (Attachments: # 1 Reply Brief)(Morris, Michele) Modified text on 2/2/2006 (P, G). (Entered: 02/01/2006)
Order (non−document) granting Defendant's Motion for leave to file Reply Brief Instanter (Related Doc # 80 ). Approved by Judge David D. Dowd Jr. on 2/2/06. (The Clerk will file Reply) (M, D) (Entered: 02/03/2006)
81 Reply Brief to Plaintiffs' Memorandum In Opposition to Defendant's Second Supplement to its Motion for Summary Judgment filed by Carter Lumber Company. (Related document(s) 77 , 51 , 66 ). (M, D) (Entered: 02/03/2006)

05/26/2006
06/01/2006
06/07/2006 06/16/2006
08/23/2006 08/24/2006 08/25/2006 08/29/2006 08/29/2006 08/30/2006 08/30/2006 09/01/2006
09/01/2006 09/01/2006 09/01/2006

82 Memorandum Opinion and Order Denying Defendant's Motion for summary judgment, Defendant's Supplemental Motion for summary judgment and Second Supplemental Motion (Related Docs # 51 , 66 and 77 ). Status Conference set for 6/1/2006 at 9:00 a.m. in Chambers 402 before Hon. David D. Dowd Jr. Signed by Judge David D. Dowd Jr. on 5/25/2006.(M, D) (Entered: 05/26/2006)
Minutes of proceedings [non−document]. A Status Conference was held on 6/1/06 before Judge David D. Dowd Jr. Time: 45 minutes (Court Reporter None.) Associated Cases: 5:04−cv−01824−DDD,5:04−cv−02070−DDD(R, N) (Entered: 06/01/2006)
83 Answer to Price's Second Amended Complaint filed by all defendants. (Morris, Michele) (Entered: 06/07/2006)
84 Order. As discussed at the status conference held on 6/1/06, a Jury Trial has been set for 9/6/2006 at 8:30 AM in Courtroom 442 before Hon. David D. Dowd Jr. Counsel shall pay special attention to the remaining dates outlined in this order. Signed by Judge David D. Dowd Jr. on 6/15/06. Associated Cases: 5:04−cv−01824−DDD,5:04−cv−02070−DDD(R, N) (Entered: 06/16/2006)
85 Proposed Jury Instructions (Preliminary) filed by Gerald Price, Equal Employment Opportunity Commission. (Gilbert, Edward) (Entered: 08/23/2006)
86 Notice of Deposition Cancellation filed by Carter−Jones Lumber Company. (Haskins, Thomas) (Entered: 08/24/2006)
87 Notice of LR 32.1 Certification filed by Gerald Price. (Gilbert, Edward) (Entered: 08/25/2006)
88 Notice of No Objection filed by Carter−Jones Lumber Company. (Haskins, Thomas) (Entered: 08/29/2006)
89 Attorney Appearance of Donna Williams−Alexander by Solvita A. McMillan filed by on behalf of Equal Employment Opportunity Commission. (McMillan, Solvita) (Entered: 08/29/2006)
90 Notice of Furnishing Proposed Stipulation of Facts filed by Carter−Jones Lumber Company. (Haskins, Thomas) Modified text on 8/31/2006 (P, G). (Entered: 08/30/2006)
91 Brief filed by Equal Employment Opportunity Commission. (Attachments: # 1 Plaintiffs' Exhibit List# 2 EEOC's Proposed Jury Instructions# 3 EEOC's Proposed Witness List) (McMillan, Solvita) (Entered: 08/30/2006)
92 Trial Brief (Witness List) filed by all defendants. (Attachments: # 1Index # 2Proposed Jury Interrogatories # 3Proposed Jury Instructions # 4Trial Brief)(Morris, Michele) Modified on 9/5/06 to label attachments;Trial Brief was filed as an attachment and the witness list was filed as main document (P, G). (Entered: 09/01/2006)
93 Motion in limine filed by all defendants. (Morris, Michele) (Entered: 09/01/2006)
94 DUPLICATE FILING OF 93 . Motion in limine filed by all defendants. (Morris, Michele) Modified on 9/5/2006 to note duplicate filing (P, G). (Entered: 09/01/2006)
95 Pre Proposed Jury Instructions Objections filed by all defendants. (Morris, Michele) (Entered: 09/01/2006)

09/01/2006
09/02/2006 09/05/2006 09/05/2006 09/05/2006 09/06/2006 09/06/2006
09/07/2006 09/07/2006
09/08/2006
09/10/2006 09/11/2006

96 Order denying Motion (filed only in case 5:04cv2070) to start trial at 10:30 a.m. (Related Doc on 5:04cv2070 # 139 ). (Read order for details). Signed by Judge David D. Dowd Jr. on 9/1/2006. Associated Cases: 5:04−cv−01824−DDD,5:04−cv−02070−DDD(M, De) (Entered: 09/01/2006)
97 Motion in limine And to Exclude filed by Carter−Jones Lumber Company. (Attachments: # 1 Appendix 1# 2 Appendix 2# 3 Appendix 3# 4 Appendix 4# 5 Appendix 5)(Haskins, Thomas) (Entered: 09/02/2006)
98 Opposition to Motion in limine filed by Equal Employment Opportunity Commission. Related document(s) 93 . (McMillan, Solvita) (Entered: 09/05/2006)
99 Response to Motion in limine And to Exclude filed by Gerald Price, Equal Employment Opportunity Commission. Related document(s) 97 . (Attachments: # 1 Exhibit 1 9/5/06 Letter# 2 Exhibit 2 Letters Regarding Insufficient Discovery Responses)(Gilbert, Edward) (Entered: 09/05/2006)
100 Response to Defendant's Objection to Plaintiffs' Preliminary Jury Instructions [Related document 95 filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit)(McMillan, Solvita) Modified text on 9/6/2006 (P, G). (Entered: 09/05/2006)
101 Stipulation of Facts filed by all parties. (M, De) (Entered: 09/06/2006)
Minutes of proceedings [non−document].Jury Selection, opening statements and trial commenced before Judge David D. Dowd Jr. Trial continued to 9/7/2006 at 8:30 a.m. Time: 6 hours and 45 minutes. (Court Reporter Rich DelMonico) Associated Cases: 5:04−cv−01824−DDD,5:04−cv−02070−DDD(M, De) (Entered: 09/06/2006)
102 Brief in support of allowing submission of Front and Back Pay to the Jury filed by Gerald Price. (Gilbert, Edward) Modified text on 9/8/2006 (P, G). Modified text on 9/8/2006 (P, G). (Entered: 09/07/2006)
Minutes of proceedings [non−document].Jury Trial before Judge David D. Dowd Jr. held on 9/7/2006. 6.5 Hours. Trial continued to 9/8/2006 at 8:15 a.m. with counsel and 8:45 a.m. with the jury. (Court Reporter Rich DelMonico) Associated Cases: 5:04−cv−01824−DDD,5:04−cv−02070−DDD(M, De) (Entered: 09/07/2006)
Minutes of proceedings [non−document].Jury Trial before Judge David D. Dowd Jr. held on 9/8/2006. Trial continued to 9/11/2006 at 9 a.m. with counsel and 10 a.m. with jury. Time: 6.0 hours. (Court Reporter Rich DelMonico) Associated Cases: 5:04−cv−01824−DDD,5:04−cv−02070−DDD(M, De) (Entered: 09/11/2006)
103 Motion for reconsideration of Ruling on Admissibility of Position Statement filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit)(McMillan, Solvita) (Entered: 09/10/2006)
104 Motion for reconsideration and Brief in Support of EEOC's Motion for Reconsideration filed by Gerald Price. Related document(s) 103 . (Attachments: # 1 Exhibit 1 Unreported Case# 2 Exhibit 2 Unreported Case)(Gilbert, Edward)

09/11/2006 09/11/2006
09/12/2006
09/12/2006 09/12/2006 09/12/2006
09/13/2006 09/13/2006
09/14/2006 09/14/2006 09/19/2006 09/19/2006

(Entered: 09/11/2006)
105 Supplemental Proposed Jury Instructions based upon Evidence Submitted to Date filed by Gerald Price, Equal Employment Opportunity Commission. Related document(s) 91 . (Gilbert, Edward) (Entered: 09/11/2006)
Minutes of proceedings [non−document].Jury Trial held on 9/11/2006 before Judge David D. Dowd, Jr. Time: 7.5 hours. Trial continued to 9/12/2006 at 9:00 a.m. (Court Reporter Lori Callahan) Associated Cases: 5:04−cv−01824−DDD,5:04−cv−02070−DDD(M, De) (Entered: 09/12/2006)
106 Order that motion of the defendant to limit the compensatory damages to the date of the unqualified offer to return to employment is Denied. Signed by Judge David D. Dowd Jr. on 9/11/2006. Associated Cases: 5:04−cv−01824−DDD,5:04−cv−02070−DDD(M, De) (Entered: 09/12/2006)
107 Deposition of Dr. Dean Erickson taken on 9/11/06. Complete document on file, 136 pages. Filed by Carter−Jones Lumber Company. (S, He) (Entered: 09/12/2006)
108 Order granting Motions for reconsideration, but adhering to original decision (see order for specifics) Related Doc # 103 104 . Signed by Judge David D. Dowd Jr. on 9/12/2006.(D, S) (Entered: 09/12/2006)
Minutes of proceedings [non−document].Jury Trial before Judge David D. Dowd Jr. held on 9/12/2006. Trial continued to 9/13/2006. Time: 7 hours and 15 minutes. (Court Reporter Lori Callahan) Associated Cases: 5:04−cv−01824−DDD,5:04−cv−02070−DDD(M, De) (Entered: 09/12/2006)
109 Motion for judgment as a matter of law filed by Carter−Jones Lumber Company. (Attachments: # 1Westlaw attachment # 2Appendix II)(Haskins, Thomas) Modified text on 9/14/2006 (P, G). (Entered: 09/13/2006)
Minutes of proceedings [non−document]. Jury Trial before Judge David D. Dowd Jr. held on 9/13/2006. The trial is continued until 9/14/2006 (Court Reporter Lori Callahan.) Associated Cases: 5:04−cv−01824−DDD,5:04−cv−02070−DDD(R, N) (Entered: 09/13/2006)
Minutes of proceedings [non−document]. Jury Trial completed on 9/14/2006 before Judge David D. Dowd Jr. (Court Reporter Lori Callahan) Associated Cases: 5:04−cv−01824−DDD,5:04−cv−02070−DDD(M, De) (Entered: 09/14/2006)
110 Interrogatories of jury. (M, De) (Entered: 09/15/2006)
111 Order directing Court's Exhibits 1 and 2 be filed. Signed by Judge David D. Dowd Jr. on 9/18/2006. (Attachments: # 1 Court's Exhibit 1 and 2)Associated Cases: 5:04−cv−01824−DDD,5:04−cv−02070−DDD(M, De) (Entered: 09/19/2006)
112 Exhibit List of Court's Exhibits 1, 2 and 3 admitted for hearing on 9/12/2006. (Attachments: # 1 Court's Exhibit 1, 2 and 3.)(M, De) (Entered: 09/19/2006)

09/19/2006
09/25/2006 09/25/2006 09/28/2006 10/06/2006 10/11/2006 10/25/2006 10/27/2006 10/27/2006 10/27/2006 11/01/2006

113 Judgment Entry for the defendant Carter−Jones Lumber against the plaintiff EEOC in Case No.5:04 CV 1824 and judgment is also entered for the defendant Carter−Jones Lumber against the plaintiff Gerald Price in Case No. 5:04 CV 2070. Signed by Judge David D. Dowd Jr. on 9/18/2006. (Attachments: # 1 Appendix I# 2 Appendix II# 3 Appendix III# 4 Appendix IV# 5 Appendix V# 6 Appendix VI)Associated Cases: 5:04−cv−01824−DDD,5:04−cv−02070−DDD(M, De) (Entered: 09/19/2006)
114 Non−Appeal Transcript Order Form for proceedings held on 06/06/06 thru 09/14/06 before Judge Dowd, Court Reporter: Lori Callahan. Requested completion date: Ordinary filed by Equal Employment Opportunity Commission. (McMillan, Solvita) (Entered: 09/25/2006)
115 Non−Appeal Transcript Order Form for proceedings held on 09/06/06 thru 09/14/06 before Judge Dowd, Court Reporter: Richard Del Monico. Requested completion date: Ordinary filed by Equal Employment Opportunity Commission. (McMillan, Solvita) (Entered: 09/25/2006)
116 Motion for new trial and Amendment of Judgment filed by Gerald Price. (Attachments: # 1 Exhibit 1 Interrogatories# 2 Exhibit 2 Judgment Entry# 3 Exhibit Unreported Case Hanover# 4 Exhibit 4 Unreported Case Brown# 5 Exhibit 5 Unreported Case Pleban# 6 Exhibit 6 Unreported Case Fox)(Gilbert, Edward) (Entered: 09/28/2006)
117 Motion for extension of October 11, 2006 until October 25, 2006 to file opposition to motion for new trial filed by Carter−Jones Lumber Company. (Morris, Michele) Modified text on 10/10/2006 (P, G). (Entered: 10/06/2006)
Order [non−document] granting 117 Motion for extension of October 11, 2006 until October 25, 2006 to file opposition to motion for new trial. Approved by Judge David D. Dowd Jr. on 10/11/2006.(M, De) (Entered: 10/11/2006)
118 Opposition to Motion for new trial and Amendment of Judgment filed by Carter−Jones Lumber Company. Related document(s) 116 . (Morris, Michele) (Entered: 10/25/2006)
119 Transcript (Volume I) of Trial Proceedings held on 9/6/06 before Judge Dowd filed manually. To obtain a bound copy of this transcript please contact Court Reporter Rich DelMonico at 330−252−6021. Complete document on file, 291 pages. Related document(s) 115 . (S, T) (Entered: 10/27/2006)
120 Transcript (Volume II) of Trial Proceedings held on 9/7/06 before Judge Dowd filed manually. To obtain a bound copy of this transcript please contact Court Reporter Rich DelMonico at 330−252−6021. Complete document on file, 223 pages. Related document(s) 115 . (S, T) (Entered: 10/27/2006)
121 Transcript (Volume III) of Trial Proceedings held on 9/8/06 before Judge Dowd filed manually. To obtain a bound copy of this transcript please contact Court Reporter Rich DelMonico at 330−252−6021. Complete document on file, 195 pages. Related document(s) 115 . (S, T) (Entered: 10/27/2006)
122 Reply to response to Motion for new trial and Amendment of Judgment filed by Gerald Price, Equal Employment Opportunity Commission. Related document(s) 116 . (Gilbert,

11/27/2006 11/27/2006 11/27/2006 11/30/2006
12/04/2006 12/12/2006 12/19/2006 12/20/2006 12/28/2006 04/05/2007 05/31/2007 06/22/2007

Edward) (Entered: 11/01/2006)
123 Transcript of Jury trial Proceedings held on 9/11/06 before Judge Dowd, Jr. filed manually. To obtain a bound copy of this transcript please contact Court Reporter Lori Ann Callahan at 330−252−6022. Complete document on file, 712−920 pages. (R, N) (Entered: 11/27/2006)
124 Transcript of Jury trial Proceedings held on 9/12/06 before Judge Dowd, Jr. filed manually. To obtain a bound copy of this transcript please contact Court Reporter Lori Ann Callahan at 330−252−6022. Complete document on file, 921−1152 pages. (R, N) (Entered: 11/27/2006)
125 Transcript of Jury trial Proceedings held on 9/13/06 before Judge Dowd, Jr. filed manually. To obtain a bound copy of this transcript please contact Court Reporter Lori Ann Callahan at 330−252−6022. Complete document on file, 1153−1283 pages. (R, N) (Entered: 11/27/2006)
126 Order that Plaintiff Price's request of 14 days from the filing of the transcript to supplement its Motion, is granted. See Docket No. 122 . Plaintiff is granted leave until December 12, 2006 to supplement the motion for a new trial. Defendant is granted leave until December 19, 2006 to file its response. Signed by Judge David D. Dowd Jr. on 11/30/2006. (M, De) Modified docket text on 12/1/2006 (R, N). (Entered: 11/30/2006)
127 Transcript of Jury Trial Proceedings held on 9/13 and 9/14/06 before Judge Dowd, Jr. filed manually. To obtain a bound copy of this transcript please contact Court Reporter Lori Ann Callahan at 330−252−6022. Complete document on file, pages 1285−1300. (R, N) (Entered: 12/04/2006)
128 Supplemental Motion for new trial and to amend judgment filed by Gerald Price, Equal Employment Opportunity Commission. (Gilbert, Edward) (Entered: 12/12/2006)
129 Opposition to Supplemental Motion for new trial and to amend judgment filed by Carter−Jones Lumber Company. Related document(s) 128 . (Morris, Michele) (Entered: 12/19/2006)
130 Status Report filed by Gerald Price. (Gilbert, Edward) (Entered: 12/20/2006)
131 Reply to defendant's response to Supplemental Motion for new trial and to amend judgment filed by Gerald Price, Equal Employment Opportunity Commission. Related document(s) 128 . (Gilbert, Edward) Modified text on 12/28/2006 (S, T). (Entered: 12/28/2006)
132 Order. For the reasons stated in this Order, the motions for a new trial or to alter or amend the judgment are denied (Related Doc # 116 and 128 ). Signed by Judge David D. Dowd Jr. on 4/5/07.(R,N) (Entered: 04/05/2007)
133 NOTICE OF APPEAL to the 6th Circuit Court of Appeals from the 132 Order of 4/5/07, filed by Equal Employment Opportunity Commission. Filing fee exempt (McMillan, Solvita). Modified text on 6/5/2007 (H, SP). (Entered: 05/31/2007)
134 Acknowledgment from the USCA for Sixth Circuit of receipt of 133 Notice of Appeal (USCA# 07−3790). Date filed in USCA 6/18/07. (H, SP) (Entered: 06/22/2007)

07/23/2007

135 True copy of order from the USCA for the Sixth Circuit dismissing appeal upon consideration of appellants' voluntary motion to dismiss (USCA #07−3790) (related doc 133 ). Date issued 7/18/07 (C,KA) (Entered: 07/23/2007)

 
 (NeVI r2-V \ No. 07-3790

\'Y~ UNITED STATES COURT OF APPEALS

).

FOR TI IE SIXTH CIRCUIT

FI LED

.
EQUAL EtvlPLOYivlENTOPPORTUNITY COMivlISSION :

JUL 1 8 2007

Plainti rr -Appellant
GERALD PRICE

LEONARD GREEN, Clerk
ORDER

Plaintiff v.

CARTER-JONES LUMBER COMPANY

Defendant - Appellee

In accordance \vith Rule 33. Rules of the Sixth Circuit and upon consideration of the
Appellants' motion to voluntarily dismiss the appeal,
IT IS ORDERED that the appeal be voluntarily dismissed pursuant to 42(b), Federal Rules
of Appellate Procedure.
ENTERED PURSUANT TO RULE 33(d) RULES OF TIlE SIXTH CIRCUIT Leonard Green, Clerk

ATAU~ 0013V

~ ttest:

LEO

EEN, Cletk

B ,_.-

0 uty C~ !erk7--

/

 
 ELG/mjw 12/08/05

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

GERALD PRICE 228 28TH STREET NW BARBERTON, OHIO 44203
Plaintiff,
vs.
CARTER LUMBER COMPANY 1763 WADSWORTH ROAD NORTON, OHIO 44203
Defendant.

)

CASE NO.: 5:04 CV 2070

)

)

JUDGE DOWD

)

)

)

)

PLAINTIFF GERALD PRICE S

)

SECOND AMENDED

)

COMPLAINT

)

(Jury Demand Endorsed Herein)

)

)

)

)

INTRODUCTION

1. The Plaintiff alleges a Title I violation of the Americans With Disability Act of

1990 (ADA).

2. Plaintiff further alleges violation of 4112 of the Ohio Revised Code.

3. Plaintiff further alleges intentional infliction of emotional distress in regards to his

termination.

4. The Plaintiff is seeking reinstatement, monetary damages, and injunctive relief.

1

5. EEOC has filed a separate claim under case number 5:04 CV 1824. JURISDICTION
6. Jurisdiction is evoked under 28 U.S.C. 1331, 1343, and 1367. 7. Jurisdiction is further allowed under the ADA act of 1990.
PARTIES 8. Gerald Price is a US Citizen residing in Barberton, Ohio. 9. Defendant, Carter Lumber Company, is an Ohio Corporation. (Hereinafter called
Carter.) 10. Carter is an employer under the meaning of the act. Carter has an excess of 250
employees. STATEMENT OF THE FACTS
11. Plaintiff states that he was hired on or about March 10, 1998 in the position of back up truck driver and yard/sales person. Plaintiff states that his job performance was excellent. In fact Plaintiff was known for performing duties that were outside his job description for the betterment of Defendant s business.
12. Plaintiff states that suddenly and without notice, on or about December 11th or 12, 2002 he as hospitalized with renal and kidney failure. Plaintiff was released from the hospital on or about December 16, 2002 and immediately, on the way home, informed Collins of his physical condition.
13. Plaintiff informed Defendant s Supervisor and Manager Jim Collins ( Mr. Collins ) that he was on a dialysis schedule of 5:00 p.m. to 9:00 p.m. on Tuesdays, Thursdays, and Saturdays. This dialysis schedule would only require
2

Plaintiff to miss two hours of overtime. 14. Plaintiff states that in December of 2002 his doctor had given Plaintiff limited
medical restrictions to avoid heavy lifting. Plaintiff states that he could still perform the essential functions of his job with reasonable accommodations. 15. Plaintiff states that on or about January 25, 2003 he advised his supervisor, Mr. Collins, that he was released to go back to work with the minor medical restriction of no heavy lifting. Plaintiff states that he could perform all the essential functions of his job with a minor accommodation of assisting in lifting heavy objects through a work dolly or co-worker. 16. Plaintiff states that the practice, at Defendant s business in the past, has always been that employees assisted each other in lifting heavy objects. No employees in the past have been required to lift heavy objects on their own. No employees in the past have been laid off or terminated or denied recall for asking for assistance with lifting objects. 17. Plaintiff states that on or about January 25, 2003 Defendant s Supervisor, Mr. Collins, advised Plaintiff that he was going to be laid off because of lack of work. 18. Plaintiff states that he was the only person laid off. Plaintiff further states that the layoff was discriminatory based upon Plaintiff s disability. Plaintiff was advised he was only going to be laid off and recalled when work picked up. However, on information and belief, Defendant Collins, on behalf of the company, had no intentions of recalling Plaintiff due to discrimination in regards to Plaintiff s
3

disability. 19. Plaintiff further states that he would stop in Defendant s store, at least two to three
times per week, from early January, 2003 through April or May, 2003. Plaintiff constantly asked Collins when he was going to be called back to work. However, Collins kept advising Plaintiff that he would be called back to work when things picked back up. Plaintiff states the reason given by Collins were false and discriminatory based upon Plaintiff s disability. 20. Plaintiff states that in April or May, 2003, after seeing new workers being hired, Plaintiff again confronted Collins, who finally indicated that Plaintiff was not going to be recalled because Carter would not work around his dialysis treatments. 21. Plaintiff states that he was not recalled because of discrimination in regards to his disability. 22. Plaintiff states that he filed a complaint with EEOC. Plaintiff states that on or about February 18, 2004 EEOC found probable cause. 23. Plaintiff states that the action of the Defendants, on or about January 25, 2003, in laying off Plaintiff because of his disability was discriminatory. Plaintiff further states that the actions of the Defendant, in failing to recall Plaintiff, is a further act of discrimination based upon Plaintiff s disability.
FIRST CAUSE OF ACTION 24. Plaintiff incorporates the Statement of the Facts into the First Cause of Action as
if fully rewritten herein.
4

25. Plaintiff states that the actions of the Defendant, in laying off Plaintiff and then the failure of Defendants to recall Plaintiff, is clearly a violation of ADA.
26. Wherefore, Plaintiff demands reinstatement, compensatory damages of $300,000, punitive damages of $100,000, attorney fees, cost and any other relief this Court may deem is fair and equitable. SECOND CAUSE OF ACTION
27. Plaintiff incorporates the Statement of the Facts and the First Cause of Action into the Second Cause of Action as if fully rewritten herein.
28. Plaintiff further states that the act of the Defendant, in laying off Plaintiff, and further the failure to recall Plaintiff is a further violation of Ohio Revised Code 4112 in that said action of Defendant is clearly based upon Plaintiff s disability.
29. Wherefore, Plaintiff demands compensatory damages of $1,000,000, punitive damages of $1,000,000, attorney fees, cost, and any other relief this Court may deem is fair and equitable. THIRD CAUSE OF ACTION
30. Plaintiff incorporates the Statement of the Facts and the First and Second Causes of Action into the Third Cause of Action as if fully rewritten herein.
31. Plaintiff states that Defendant s actions are outrageous. Plaintiff states that the Defendants actions are clearly a violation of law.
32. Plaintiff states that the actions of the Defendant are unconscionable. 33. Plaintiff states that as a result of said actions he suffered serious, emotional
distress.
5

34. Wherefore, Plaintiff demands for intentional infliction of emotional distress, compensatory damages of $1,000,000, punitive damages of $1,000,000, attorney fees, cost and any other relief this Court may deem is fair and equitable. Respectfully submitted, SLATER, ZURZ & GILBERT /s/ Edward L. Gilbert Edward L. Gilbert (0014544) Michael J. Wright (0075221) Attorney for Plaintiff One Cascade Plaza, Suite 825 Akron, Ohio 44308 (330) 376-8855 (330) 376-8857 FAX egilbert8@sbcglobal.net
CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was electronically filed on December 8, 2005. Notice of this filing will be sent to all parties by operation of the Court s electronic filing system. Parties may access this filing through the Court s system.
/s/ Edward L. Gilbert Edward L. Gilbert (0014544) Michael J. Wright (0075221) Attorneys for Plaintiff
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General Docket United States Court of Appeals for the Sixth Circuit
Court of Appeals Docket #: 07-3790 Nature of Suit: 1442 Civil Rights: Jobs EEOC, et al v. Carter-Jones Lumber Appeal From: Northern District of Ohio at Akron

Docketed: 06/18/2007 Termed: 07/18/2007

Case Type Information: 1) Civil 2) United States as party 3) Civil Rights - Title VII

Originating Court Information:

District: 0647-5 : 04-01824

Court Reporter: Lori Callahan

Court Reporter: Richard Delmonico

Trial Judge: David D. Dowd, Junior, U.S. District Judge

Date Filed: 09/08/2004

Date Order/Judgment:

Date NOA Filed:

04/05/2007

05/31/2007

District: 0647-5 : 04-02070 Date Filed: 10/13/2004 Date Order/Judgment: 04/05/2007

Date NOA Filed: 05/31/2007

Lead: 04-01824

Prior Cases: None

Current Cases: None

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Plaintiff - Appellant
GERALD PRICE Plaintiff

Davis Kim [COR LD NTC Government] U.S. Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, N.W. 7th Floor Washington, DC 20507-0000

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v.
CARTER-JONES LUMBER COMPANY Defendant - Appellee

Thomas F. Haskins, Jr. Direct: 330-762-9191 [COR LD NTC Retained] Daily & Haskins 7 W. Bowery Street Suite 604 Akron, OH 44308-0000
Michele Morris [COR Retained] Law Office Firm: 330-253-7100 1 S. Main Street Suite 301 Akron, OH 44308-0000

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff - Appellant
and GERALD PRICE,
Plaintiff v. CARTER-JONES LUMBER COMPANY,
Defendant - Appellee

06/18/2007 06/18/2007 06/18/2007 06/21/2007 06/25/2007
06/26/2007
06/27/2007

Civil Case Docketed. Notice filed by Appellant EEOC. Transcript needed: y The case manager for this case is: laj (Laura Jones). Electronic case filing. District court record can be downloaded electronically. [07-3790] APPEARANCE filed by Attorney Davis Kim for Appellant EEOC. [07-3790] APPEARANCE filed by Attorney Michele Morris for Appellee Carter-Jones Lumber [07-3790] APPEARANCE filed by Attorney Thomas F. Haskins for Appellee Carter-Jones Lumber [07-3790] Mediation Office is involved in this appeal. [07-3790]

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06/27/2007 07/02/2007 07/02/2007 07/18/2007
07/18/2007 07/18/2007

Pre-argument conference has been scheduled for July 25, 2007 at 2:00 pm with Mr. Rack. [07-3790]
TRANSCRIPT ORDER FORM filed by Davis Kim for Appellant EEOC: Transcript on file in district court. [07-3790] [3612968-1]
STATEMENT OF ISSUES filed by Davis Kim for Appellant EEOC. Certificate of Service: 7/2/07. [07-3790]
Appellant MOTION filed to dismiss pursuant to FRAP 42 and local rule 33 [07-3790] . Motion filed by Davis Kim for Appellant EEOC. Certificate of service date 7/12/07 [07-3790]
ORDER filed granting motion to dismiss pursuant to FRAP 42 and local rule 33 [3621460-1] filed by Davis Kim [07-3790] .
LETTER SENT TO district court by PAC sending a certified copy of order filed 7/18/07 . Document number [3621460-1] . [07-3790]

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