IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA
Civil Action No. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Plaintiff,
v. WOODMEN OF THE WORLD LIFE INSURANCE SOCIETY and/or OMAHA WOODMEN LIFE INSURANCE SOCIETY
a Nebraska Corporation, Defendant.
COMPLAINT AND JURY TRIAL DEMAND
NATURE OF ACTION This is an action under Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), and Title I of the Civil Rights Act of 1991 (“CRA”) to correct discrimination based on sex(female), sexual harassment and hostile work environment and retaliation, and to provide appropriate relief to Louella Rollins (“Rollins”). As alleged with greater particularity below, the Commission alleges that Rollins was discriminated against on the basis of her sex (female) by Woodmen of the World Life Insurance Society and/or Omaha Woodmen Life Insurance Society (“Defendant” or “Woodmen”); that Rollins was subjected to discrimination on the basis of gender, including sexual

harassment and a sexually hostile work environment, by Woodmen; that Woodman failed to take corrective action and prevented Rollins from taking any immediate and appropriate corrective actions to eliminate the gender discrimination, sexual harassment and sexually hostile work environment; and, that Woodman retaliated against Rollins for engaging in Title VII protected activities.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343,
and 1345. This action is authorized and instituted pursuant to § 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) ("Title VII") and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981A. 2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the District of Nebraska.
PARTIES 3. Plaintiff Equal Employment Opportunity Commission (“EEOC” or "Commission"),
is an agency of the United States of America charged with the administration, interpretation, and enforcement of Title VII and is expressly authorized to bring this action by 706(f)(1) and (3) of Title VII, as amended, 42 U.S.C. § 2000e-5(f)(1). 4. At all relevant times, Defendant has continuously been a Nebraska corporation doing business in the State of Nebraska and in the City of Omaha, and continuously has employed at least fifteen persons.
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5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce within the meaning of § 701(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e-(b), (g) and (h). STATEMENT OF FACTS
6. More than thirty days before the institution of this lawsuit, Rollins filed a charge of employment discrimination with the Commission alleging violations of Title VII by Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled.
7. Since February, 1999, the Defendant has engaged in unlawful employment practices at its Omaha, Nebraska Colorado facility, and its Pennsylvania facility, violating § 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1). The unlawful practices include: discrimination and harassment based on sex, sexual harassment and hostile work environment; and, retaliation against Rollins for opposing the unlawful conduct. COUNT I. DISCRIMINATION AND HARASSMENT BASED ON SEX
8. Charging Party Louella Rollins is female. 9. Charging Party worked for Defendant starting on or about June of 1989. 10. The harassment complained of began in or around June of 1994 and continued until
Rollins’ demotion in February of 1999. 11. During her tenure as State Manager of Pennsylvania, Rollins supervised Ted
Guminey (“Guminey”) who openly voiced his resentment over having to work for a woman.
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12. Guminey engaged in efforts to remove Rollins from her management position so that he no longer would be supervised by a woman. This included spreading rumors, working less so that Rollins could not meet her sales goals, and discouraging others from coming to work under Rollins.
13. Guminey sexually harassed Rollins to humiliate her and to undermine her authority because he resented working for a woman.
14. Guminey grabbed and slapped Rollins’ buttocks, made kissing gestures towards her, winked suggestively at her, and falsely represented to others that she was involved in a lesbian relationship with a co-worker.
15. During her initial meeting with Guminey and Assistant Field Manager Rick Loftin (“Loftin”), Guminey stated “I have a problem working for a woman and her driving in my car. What would people think?” Loftin failed to take any measures to discipline or otherwise discourage Guminey from making further discriminatory comments or from engaging in discriminatory conduct.
16. In February, 1998, Rollins complained to Olivia Crimiel-Minor (“Crimiel-Minor”), Defendant’s Human Resources Manager, about Guminey’s disparaging conduct and physical harassment. Crimiel-Minor refused to take any corrective action, advising Rollins that Defendant would not investigate her complaint until she filed a formal charge with their EEO Department.
17. In July, 1998, Rollins complained to her supervisor, Danny Cummins (“Cummins”), about Guminey’s demeaning and unwanted touching, including slapping and grabbing her buttocks, as well as his constant efforts to undermine her authority
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because she was a woman. Instead of taking responsive action or conducting any kind of investigation, Cummins told Rollins that she needed to manage her office better. 18. On or about September 21, 1998, when Rollins requested permission from another supervisor, Desi Doise (“Doise”), to fire Guminey, Doise responded that it was time for Charging Party to step down. Doise reasoned that firing Guminey would only make things worse, and therefore denied Rollins the authority to fire him. 19. Woodmen tolerated Guminey’s harassment of Rollins based upon her sex.
COUNT II. SEXUAL HARASSMENT 20. Plaintiff repeats and realleges the allegations of all previous paragraphs as if fully set forth herein. 21. Guminey, on numerous occasions, slapped, rubbed or otherwise handled Rollins buttocks, made kissing gestures towards her, and spread rumors that Rollins was engaging in an intimate relationship with a same-sex coworker. 22. Rollins demoted Guminey, but his harassment continued. 23. Although Rollins complained to her supervisor about the sexual harassment, she was told that she needed to manage her office better. When she requested permission to fire Guminey, she was denied the requisite authority. 24. Rather than allow Rollins to fire Guminey for sexually harassing her, Defendant demoted Rollins.
COUNT III.
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GENDER DISCRIMINATION--DEMOTION
25. Plaintiff repeats and realleges the allegations of all previous paragraphs as if fully set forth herein.
26. On December 4, 1998, Rollins filed a formal complaint with the Defendant’s EEO Department concerning the sexual harassment described above.
27. On December 10, 1998, the Defendant placed Rollins on minimum production requirements – standards that so high that were she could not possibly have met with Guminey acting against her.
28. Rollins was advised that failure to meet these requirements by the end of March of 1999 would result in her termination.
29. However, in February of 1999 the Defendant demoted Rollins to Area Manager. 30. Other similarly situated males were not subjected to the same requirements when
their performance was unsatisfactory. COUNT IV.
RETALIATION- HARASSMENT AND DEMOTION 31. Plaintiff repeats and realleges the allegations of all previous paragraphs as if fully set
forth herein. 32. On or about September 21, 1998, Rollins complained to her supervisor, Desi Doise,
about Guminey’s unwanted touching and efforts to force her from her management position.
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33. During that same conversation, Rollins requested permission to fire Guminey. Doise responded that it was time for Charging Party to step down because, in his opinion, firing Guminey would only make things worse. Doise then denied Rollins the authority to fire Guminey.
34. Doise then made a series of offers to Rollins. The alternative positions, all requiring relocation, provided Rollins with less authority and less attractive compensation packages.
35. On or about December 4, 1998, Rollins filed a formal complaint with Defendant’s EEO Department, alleging that she had been subjected to sexual harassment, gender discrimination and retaliation.
36. Six days later, Defendant placed Rollins on stringent minimum production requirements, which if not met by March, 1999, would result in her termination or demotion.
37. In February of 1999, however, Defendant demoted Rollins. PRAYER FOR RELIEF
WHEREFORE, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant, its officers, successors, assigns,
and all persons in active concert or participation with it, from engaging in discrimination based on sex, sexual harassment, and any other discriminatory employment practice, and from retaliating against employees for engaging in protected activity.
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B. Order Defendant to institute and carry out policies, practices, and programs that proscribe workplace discrimination based on sex and that proscribe retaliation.
C. Order Defendant Employer to make whole Charging Party by providing appropriate backpay with prejudgment interest, compensatory damages in amounts to be proved at trial, and other affirmative and equitable relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to, rightful-place reinstatement or front pay where appropriate.
D. Order Defendant to make Charging Party whole, by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described herein, in amounts to be determined at trial.
E. Order Defendant to make Charging Party whole by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of above, including physical and emotional pain and suffering, inconvenience, loss of enjoyment of life, and medical expenses, in amounts to be determined at trial.
F. Order Defendant to pay Charging Party punitive damages for its malicious conduct and conduct in reckless disregard of the law, 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 the costs of bringing this action. JURY TRIAL DEMAND FOR OMAHA, NEBRASKA
This Commission requests a jury trial on all questions of fact raised by this Complaint. The Commission requests this jury trial in Omaha, Nebraska.
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Dated this 29th day of April 2003. Respectfully submitted, GWENDOLYN REAMS Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, DC 20507
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JOSEPH H. MITCHELL Regional Attorney
NANCY A. WEEKS Supervisory Trial Attorney
s/ Nelson G. Alston NELSON G. ALSTON Trial Attorney (303) 866-1378 (303) 866-1375 Fax
ANN L. FULLER Trial Attorney (303) 866-1319
LYNN L. PALMER Trial Attorney (303) 866-1374
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Denver District Office 303 E. 17th Ave., Suite 510 Denver, CO 80203 (303) 866-1300
PLEASE NOTE: It is sufficient for purposes of service on the EEOC that pleadings, notices and any other court documents be served on the Trial Attorney. Therefore, duplicate service is not required on the General Counsel located in Washington, D.C.
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA
Civil Action No: 8:03CV165 EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Plaintiff,
v. WOODMEN OF THE WORLD LIFE INSURANCE SOCIETY and/or OMAHA WOODMEN LIFE INSURANCE SOCIETY
a Nebraska Corporation, Defendant.
AMENDED COMPLAINT AND JURY TRIAL DEMAND
NATURE OF ACTION This is an action under Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), and Title I of the Civil Rights Act of 1991 (“CRA”) to correct discrimination based on sex(female), sexual harassment and hostile work environment and retaliation, and to provide appropriate relief to Louella Rollins (“Rollins”). As alleged with greater particularity below, the Commission alleges that Rollins was discriminated against on the basis of her sex (female) by Woodmen of the World Life Insurance Society and/or Omaha Woodmen Life Insurance Society (“Defendant” or “Woodmen”); that Rollins was subjected to discrimination on the basis of gender, including sexual harassment and a sexually hostile work environment, by Woodmen; that Woodmen failed to take

corrective action and prevented Rollins from taking any immediate and appropriate corrective actions to eliminate the gender discrimination, sexual harassment and sexually hostile work environment; and, that Woodmen retaliated against Rollins for engaging in Title VII protected activities.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343,
and 1345. This action is authorized and instituted pursuant to § 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) ("Title VII") and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981A. 2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the District of Nebraska.
PARTIES 3. Plaintiff Equal Employment Opportunity Commission (“EEOC” or "Commission"),
is an agency of the United States of America charged with the administration, interpretation, and enforcement of Title VII and is expressly authorized to bring this action by 706(f)(1) and (3) of Title VII, as amended, 42 U.S.C. § 2000e-5(f)(1). 4. At all relevant times, Defendant has continuously been a Nebraska corporation doing business in the State of Nebraska and in the City of Omaha, and continuously has employed at least fifteen persons.
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5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce within the meaning of § 701(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e-(b), (g) and (h). STATEMENT OF FACTS
6. More than thirty days before the institution of this lawsuit, Rollins filed a charge of employment discrimination with the Commission alleging violations of Title VII by Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled.
7. Since February, 1999, the Defendant has engaged in unlawful employment practices at its Omaha, Nebraska Colorado facility, and its Pennsylvania facility, violating § 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1). The unlawful practices include: discrimination and harassment based on sex, sexual harassment and hostile work environment; and, retaliation against Rollins for opposing the unlawful conduct. COUNT I. DISCRIMINATION AND HARASSMENT BASED ON SEX
8. Charging Party Louella Rollins is female. 9. Charging Party worked for Defendant starting on or about June of 1989. 10. The harassment complained of began in or around June of 1994 and continued until
Rollins’ demotion in February of 1999. 11. During her tenure as State Manager of Pennsylvania, Rollins supervised Ted
Guminey (“Guminey”) who openly voiced his resentment over having to work for a woman.
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12. Guminey engaged in efforts to remove Rollins from her management position so that he no longer would be supervised by a woman. This included spreading rumors, working less so that Rollins could not meet her sales goals, and discouraging others from coming to work under Rollins.
13. Guminey sexually harassed Rollins to humiliate her and to undermine her authority because he resented working for a woman.
14. Guminey grabbed and slapped Rollins’ buttocks, made kissing gestures towards her, winked suggestively at her, and falsely represented to others that she was involved in a lesbian relationship with a co-worker.
15. During her initial meeting with Guminey and Assistant Field Manager Rick Loftin (“Loftin”), Guminey stated “I have a problem working for a woman and her driving in my car. What would people think?” Loftin failed to take any measures to discipline or otherwise discourage Guminey from making further discriminatory comments or from engaging in discriminatory conduct.
16. In February, 1998, Rollins complained to Olivia Crimiel-Minor (“Crimiel-Minor”), Defendant’s Human Resources Manager, about Guminey’s disparaging conduct and physical harassment. Crimiel-Minor refused to take any corrective action, advising Rollins that Defendant would not investigate her complaint until she filed a formal charge with their EEO Department.
17. In July, 1998, Rollins complained to her supervisor, Danny Cummins (“Cummins”), about Guminey’s demeaning and unwanted touching, including slapping and grabbing her buttocks, as well as his constant efforts to undermine her authority
4

because she was a woman. Instead of taking responsive action or conducting any kind of investigation, Cummins told Rollins that she needed to manage her office better. 18. On or about September 21, 1998, when Rollins requested permission from another supervisor, Desi Doise (“Doise”), to fire Guminey, Doise responded that it was time for Charging Party to step down. Doise reasoned that firing Guminey would only make things worse, and therefore denied Rollins the authority to fire him. 19. Woodmen tolerated Guminey’s harassment of Rollins based upon her sex.
COUNT II. SEXUAL HARASSMENT 20. Plaintiff repeats and realleges the allegations of all previous paragraphs as if fully set forth herein. 21. Guminey, on numerous occasions, slapped, rubbed or otherwise handled Rollins buttocks, made kissing gestures towards her, and spread rumors that Rollins was engaging in an intimate relationship with a same-sex coworker. 22. Rollins demoted Guminey, but his harassment continued. 23. Although Rollins complained to her supervisor about the sexual harassment, she was told that she needed to manage her office better. When she requested permission to fire Guminey, she was denied the requisite authority. 24. Rather than allow Rollins to fire Guminey for sexually harassing her, Defendant demoted Rollins.
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COUNT III. GENDER DISCRIMINATION--DEMOTION 25. Plaintiff repeats and realleges the allegations of all previous paragraphs as if fully set forth herein. 26. On December 4, 1998, Rollins filed a formal complaint with the Defendant’s EEO Department concerning the sexual harassment described above. 27. On December 10, 1998, the Defendant placed Rollins on minimum production requirements – standards that so high that were she could not possibly have met with Guminey acting against her. 28. Rollins was advised that failure to meet these requirements by the end of March of 1999 would result in her termination. 29. However, in February of 1999 the Defendant demoted Rollins to Area Manager. 30. Other similarly situated males were not subjected to the same requirements when their performance was unsatisfactory.
COUNT IV. RETALIATION- HARASSMENT AND DEMOTION 31. Plaintiff repeats and realleges the allegations of all previous paragraphs as if fully set forth herein. 32. On or about September 21, 1998, Rollins complained to her supervisor, Desi Doise, about Guminey’s unwanted touching and efforts to force her from her management position.
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33. During that same conversation, Rollins requested permission to fire Guminey. Doise responded that it was time for Charging Party to step down because, in his opinion, firing Guminey would only make things worse. Doise then denied Rollins the authority to fire Guminey.
34. Doise then made a series of offers to Rollins. The alternative positions, all requiring relocation, provided Rollins with less authority and less attractive compensation packages.
35. On or about December 4, 1998, Rollins filed a formal complaint with Defendant’s EEO Department, alleging that she had been subjected to sexual harassment, gender discrimination and retaliation.
36. Six days later, Defendant placed Rollins on stringent minimum production requirements, which if not met by March, 1999, would result in her termination or demotion.
37. In February of 1999, however, Defendant demoted Rollins. PRAYER FOR RELIEF
WHEREFORE, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant, its officers, successors, assigns,
and all persons in active concert or participation with it, from engaging in discrimination based on sex, sexual harassment, and any other discriminatory employment practice, and from retaliating against employees for engaging in protected activity.
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B. Order Defendant to institute and carry out policies, practices, and programs that proscribe workplace discrimination based on sex and that proscribe retaliation.
C. Order Defendant Employer to make whole Charging Party by providing appropriate backpay with prejudgment interest, compensatory damages in amounts to be proved at trial, and other affirmative and equitable relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to, rightful-place reinstatement or front pay where appropriate.
D. Order Defendant to make Charging Party whole, by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described herein, in amounts to be determined at trial.
E. Order Defendant to make Charging Party whole by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of above, including physical and emotional pain and suffering, inconvenience, loss of enjoyment of life, and medical expenses, in amounts to be determined at trial.
F. Order Defendant to pay Charging Party punitive damages for its malicious conduct and conduct in reckless disregard of the law, 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 the costs of bringing this action. JURY TRIAL DEMAND FOR OMAHA, NEBRASKA
This Commission requests a jury trial on all questions of fact raised by this Complaint. The Commission requests this jury trial in Omaha, Nebraska.
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Dated this 20th day of May 2003.
Respectfully submitted,
GWENDOLYN REAMS Associate General Counsel
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
1801 L Street, N.W. Washington, DC 20507
JOSEPH H. MITCHELL Regional Attorney
NANCY A. WEEKS Supervisory Trial Attorney
s/Nelson G. Alston NELSON G. ALSTON Trial Attorney (303) 866-1378 (303) 866-1375 Fax
ANN L. FULLER Trial Attorney (303) 866-1319
LYNN L. PALMA Trial Attorney (303) 866-1374
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Denver District Office 303 E. 17th Ave., Suite 510 Denver, CO 80203 (303) 866-1300
PLEASE NOTE: It is sufficient for purposes of service on the EEOC that pleadings, notices and any other court documents be served on
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the Trial Attorney. Therefore, duplicate service is not required on the General Counsel located in Washington, D.C.
10

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v .
WOODMEN OF THE WORLD LIFE INSURANCE SOCIETY and/or OMAHA WOODMEN LIFE INSURANCE SOCIETY,
Defendant. --------------------------------------------------------LOUELLA ROLLINS,
Intervener/Cross-Plaintiff,
v.
WOODMEN OF THE WORLD LIFE INSURANCE SOCIETY and/or OMAHA WOODMEN LIFE INSURANCE SOCIETY,
Cross-Defendant.

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8:03CV165

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) MEMORANDUM AND ORDER

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This matter is before the court on defendant’s motions for summary judgment, Filing Nos. 172 and 173, and motion for continuance, Filing No. 186, filed by the Equal Opportunity Commission (EEOC). Defendant argues that the conduct complained of by the Intervenor Rollins does not rise to the level of severity and pervasiveness to support either a hostile work environment or sexual harassment claim. Second, defendant argues that Rollins was not treated differently than similarly situated males. Third, defendant contends that there is not sufficient evidence to support the retaliation claim, as the “dismal performance” of Rollins is the real reason for the discipline. The EEOC responds arguing

that (1) discovery has not been completed in this case, and in fact, defendant has refused to supply relevant documents to the EEOC which would support its claims of disputed facts, and (2) there are issues of material fact as to severity and pervasiveness, as to treatment of similarly situated male employees, and as to Rollins’ performance.
STANDARD OF REVIEW On a motion for summary judgment, the question before the court is whether the record, when viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1326 (8th Cir. 1995). Where unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate. Id. The burden of establishing the nonexistence of any genuine issue of material fact is on the moving party. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Therefore, if the defendant does not meet its initial burden with respect to an issue, summary judgment must be denied notwithstanding the absence of opposing affidavits or other evidence. Adickes, 398 U.S. at 159-60; Cambee's Furniture, Inc. v. Doughboy Recreational Inc., 825 F.2d 167, 173 (8th Cir. 1987). Once the defendant meets its initial burden of showing there is no genuine issue of material fact, the plaintiff may not rest upon the allegations of his or her pleadings but rather must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. See Fed. R. Civ. P. 56(e); Chism v. W.R. Grace & Co., 158 F.3d 988, 990 (8th Cir. 1998). The party opposing the motion must do more than simply show that there is some metaphysical doubt as to the material facts; he or she must show
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“there is sufficient evidence to support a jury verdict” in his or her favor. Id. Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Facts are viewed in the light most favorable to the nonmoving party, “in order to defeat a motion for summary judgment, the non-moving party cannot simply create a factual dispute; rather, there must be a genuine dispute over those facts that could actually affect the outcome of the lawsuit.” Carter v. St. Louis University, 167 F.3d 398, 401 (8th Cir. 1999); Ghane v. West, 148 F.3d 979, 981 (8th Cir. 1998). In ruling on a motion for summary judgment, a court must not weigh evidence or make credibility determinations. Kenney v. Swift Transp. Co., 347 F.3d 1041, 1044 (8th Cir. 2003).
Summary judgment should seldom be granted in discrimination cases. Heaser v. Toro, 247 F.3d 826, 829 (8th Cir. 2001). In passing on a motion for summary judgment, it is not the court's role to decide the merits. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (on motion for summary judgment, district court should not weigh evidence or attempt to determine truth of matter). The court must simply determine whether there exists a genuine dispute of material fact. Bassett v. City of Minneapolis, 211 F.3d 1097, 1107 (8th Cir. 2000).
The Supreme Court established a three-step framework for analyzing discrimination in the workplace. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (1981). Under the burden-shifting framework, the plaintiff in the present case must establish: (1) that he is a member of a protected class, (2) that he was meeting the employer's legitimate job expectations, (3) that
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he suffered an adverse employment action, and (4) that similarly situated employees outside the protected class were treated differently. Tolen v. Ashcroft, 377 F.3d 879, 882 (8th Cir. 2004). The Eighth Circuit has stated that a plaintiff must establish a prima facie case of discrimination, which creates a presumption that the employer unlawfully discriminated against the employee. Id. The burden then shifts to the employer to show a nondiscriminatory reason for the adverse action and then back to the plaintiff to show that the articulated reason is merely a pretext for discrimination. Id.
DISCUSSION First, with regard to the EEOC’s claim that defendant has failed to produce documents, the court agrees. The defendant has raised these claims and defenses, yet it appears that defendant has refused to produce relevant documents to the EEOC that bear on these same issues.1 Filing No 186, Exs. 3, 4, 5, 6, 7, 8, and 11. The court finds this unacceptable. For this reason alone, the court denies defendant’s motions for summary judgment. However, in the alternative, the court also finds that the questions raised by the defendant in its motions for summary judgment are of a factual nature. The EEOC has submitted sufficient evidence to create a genuine issue of material fact on all issues. Filing Nos. 186, 193, and 194 with attached exhibits. Accordingly, the court will also deny defendant’s motions for summary judgment on this basis that material facts exist which must be decided at trial.
1Motions to compel are currently pending before the Honorable Thomas Thalken. Filing Nos. 190 and 193. The court will not delve into the specifics of those motions. However, for purposes of the summary judgment currently before it, the court finds that defendant has failed to produce relevant, material records to the EEOC.
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The court has previously warned counsel that it is unhappy with the posturing that has occurred in this case. Filing No. 130, p. 3, n.2. The plaintiff filed this case on April 29, 2003. Yet, in the spring of 2007, four years later, the parties are still fighting over discovery issues. This is a very simple employment case. There is no excuse for the 210 filings to date. The magistrate will address these discovery issues over the next few weeks. Thereafter, the court instructs the magistrate to set this case for the earliest, realistic trial date. If at trial the court determines that relevant discovery has not been produced, or if the court determines that inappropriate posturing is occurring, the court will impose appropriate sanctions.
THEREFORE, IT IS ORDERED: 1. Defendant’s motions for summary judgment, Filing Nos. 172 and 173, are denied. 2. The EEOC’s motion for a continuance, Filing No. 186, is denied as moot as it relates to this Memorandum and Order. 3. Filing No. 186 is hereby referred to the magistrate for review and decision as it relates to the failure of the defendant to provide adequate and timely discovery to the EEOC. Once the magistrate has decided all the pending discovery disputes, the magistrate shall set this case for the earliest, realistic trial date. DATED this 28th day of February, 2007.
BY THE COURT:
s/ Joseph F. Bataillon Chief Judge
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

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Plaintiff,

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LOUELLA ROLLINS,

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Plaintiff - Intervenor, )

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vs.

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WOODMEN OF THE WORLD LIFE

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INSURANCE SOCIETY and/or OMAHA )

WOODMEN LIFE INSURANCE SOCIETY, )

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Defendants.

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8:03CV165 ORDER

This matter is before the court on the plaintiffs’ Second Motion to Adequate Responses to Discovery and Request for Reasonable Expenses (Filing No. 193). The plaintiffs filed exhibits attached to the motion. The defendant filed a brief (Filing No. 206) and an index of evidence (Filing No. 207) in opposition to the motion. The plaintiffs then filed a reply brief, with additional exhibits attached (Filing No. 219).

BACKGROUND The EEOC filed this action under Title VII of the Civil Rights Act of 1964, as amended, and Title I of the Civil Rights Act of 1991, alleging gender discrimination, sexual harassment, hostile work environment and retaliation by the defendant against Louella Rollins. See Filing No. 10. The EEOC states Rollins began working for the defendant in June of 1989. Id. ¶ 9. The EEOC alleges the defendant began harassing Rollins in June of 1994, which continued until her demotion in February 1999. Id. ¶10. The complaint alleges Rollins supervised a male who openly voiced his resentment over having to work for a woman, sexually harassed her, undermined her authority, and spread rumors about her. Id. ¶¶ 11-15. Although Rollins had complained about the male, when Rollins sought permission to fire the male, she was demoted. Id. ¶¶ 16-19. On October 7, 2003, the

court granted Rollins leave to intervene. See Filing No. 29. As part of their Answer to the Amended Complaint, the defendant alleges Rollins was demoted based on her performance and that Rollins failed to mitigate her damages. See Filing No. 64.
The plaintiffs seek supplemental responses to (First Set) Interrogatory Nos. 4, 6 and 14 regarding other discrimination complaints against the defendant and comparator information for Rollins. Additionally, the plaintiffs seek supplemental disclosures regarding (First Joint Set) Request for Production Nos. 14, 34 and 35 related to the internal investigations conducted by Olivia Crimiel-Minor. The plaintiffs initially moved to compel discovery related to more requests, but have since withdrawn their motion as to those requests. See Filing No. 219, p. 9. The defendant objects to providing supplemental responses to the disputed discovery requests. The parties have conferred pursuant to NECivR 7.1(i) and are unable to resolve their dispute.
ANALYSIS Parties may discover any relevant, unprivileged information that is admissible at trial or is reasonably calculated to lead to admissible evidence. See Fed. R. Civ. P. 26(b)(1). Relevancy is to be broadly construed for discovery issues and is not limited to the precise issues set out in the pleadings. Relevancy, for purposes of discovery, has been defined by the United States Supreme Court as encompassing “any matter that could bear on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). Discovery requests should be considered relevant if there is any possibility that the information sought is relevant to any issue in the case and should ordinarily be allowed, unless it is clear that the information sought can have no possible bearing on the subject matter of the action. See Burlington Ins. Co. v. Okie Dokie, Inc., 368 F. Supp. 2d 83, 86 (D. D.C. 2005). “All discovery requests are a burden on the party who must respond thereto. Unless the task of producing or answering is unusual, undue or extraordinary, the general rule requires the entity answering or producing the documents to bear that burden.” Continental Illinois Nat’l Bank & Trust Co. of Chicago v. Caton, 136 F.R.D. 682, 684-85 (D. Kan. 1991) (citation omitted). Typically, the burden is on the party resisting
2

discovery to explain why discovery should be limited given that the Federal Rules allow for
broad discovery. See Rubin v. Islamic Republic of Iran, 349 F. Supp. 2d 1108, 1111
(N.D. Ill. 2004). However, the proponent of discovery must make a threshold showing of
relevance before production of information, which does not reasonably bear on the issues
in the case, is required. Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1993).
Mere speculation that information might be useful will not suffice; litigants seeking to
compel discovery must describe with a reasonable degree of specificity, the information
they hope to obtain and its importance to their case. See Cervantes v. Time, Inc., 464
F.2d 986, 994 (8th Cir. 1972). The court may issue a protective order to prevent discovery
where “justice requires to protect a party or person from annoyance, embarrassment,
oppression or undue burden or expense.” Fed. R. Civ. P. 26(c). The District Court “enjoys
considerable discretion over discovery matters” and may limit the scope of discovery, if it
has a good reason to do so. Burlington Ins., 368 F. Supp. 2d at 86.
A. Evidence of Gender-based Harassment or Discrimination
In Interrogatory No. 5, the plaintiffs seek the identity of
each individual who has filed an internal complaint of gender-based (sex) harassment or discrimination during the relevant time period, as defined above, and state:
a. the nature of the case; and b. the eventual disposition and/or status of the case.
See Filing No. 193, Exhibit 5.
Similarly, Interrogatory No. 6 seeks:
From calendar year 1993 to present, state whether Woodmen of the World or any of its related entities or fraternal organizations has ever been named a party to any civil or administrative action involving the alleged discriminatory treatment or discriminatory harassment, as defined above, of any employee. If so, for each action, state:
a. the case caption, including docket number and the court or administrative agency in which the action was commenced;
b. the nature of the case; and c. the eventual disposition and/or status of the case.
Id.
3

The defendant responded by stating: Defendant objects to Interrogatory No. 5 as exceeding the scope of the Federal Rules of Civil Procedure, overly broad, having the tendency of harassing Defendant, and not reasonably calculated to lead to the discovery of relevant information. Information about other allegations of gender discrimination, unknown to Ms. Rollins, bears no relevance to the veracity of Ms. Rollins’ allegations and will not be admissible to prove the truth of Ms. Rollins’ allegation. Defendant further objects to Interrogatory No. 5 to the extent it calls for information protected by the attorney client privilege or work product exception.
Id. The defendant lodged an identical objection to Interrogatory No. 6. Id. The plaintiffs argue they are entitled to discovery regarding evidence of sexual
harassment directed at employees other than the plaintiff as relevant to the claim of hostile work environment. The plaintiffs allege civil or administrative actions concerning complaints of discrimination, harassment and retaliation are relevant to the issue of intent and pretext. Further, the plaintiffs contend country-wide information is particularly relevant in this case because Rollins was a State Manager and subject to supervision and retaliation by officials from the defendant’s Omaha headquarters. Further, the plaintiffs contend Rollins was the second woman in the history of the defendant to hold a State Manager position. The plaintiffs assert Rollins met with considerable hostility from several male subordinates and Rollins’ was prevented from meting out discipline by her superiors.
The defendant argues that information about discrimination actions filed against the entire company sweeps too broadly, particularly where the matter is not a class action and there are not claims alleging a pattern of discrimination. The defendant contends that any discrimination complaints made outside of Rollins’ work environment are irrelevant. Additionally, the defendant states the plaintiff EEOC should have access to administrative actions filed with its agency and other civil actions are public records equally available to all parties.
“[E]vidence of sexual harassment directed at employees other than the plaintiff is relevant to show a hostile work environment.” Hall v. Gus Const. Co., Inc., 842 F.2d
4

1010, 1015 (8th Cir. 1988) (citing Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415-16 (10th Cir. 1987)). Further, “background evidence of an employer's discriminatory policies or practices may be critical for the jury’s assessment of whether a given employer was more likely than not to have acted from an unlawful motive.” McPheeters v. Black & Veatch Corp., 427 F.3d 1095, 1101 (8th Cir. 2005) (internal citations and quotations omitted). However, discovery is typically limited to “the same form of discrimination claimed by plaintiff, to the same department or agency where plaintiff worked, and to a reasonable time before and after the discrimination complained of.” Mitchell v. Nat’l R.R. Passenger Corp., 217 F.R.D. 53, 57 (D. D.C. 2003). Additionally, “in the context of investigating an individual complaint the most natural focus is upon the source of the complained of discrimination the employing unit or work unit. To move beyond that focus the plaintiff and the EEOC must show a more particularized need and relevance.” Marshall v. Westinghouse Elec. Corp., 576 F.2d 588, 592 (5th Cir. 1978); see Onwuka v. Federal Express Corp., 178 F.R.D. 508, 517 (D. Minn. 1997) (“Likewise, Courts have often limited the discovery of company records to the local facility, at which the Plaintiff was employed, in the absence of a showing of particularized need for regional or nationwide discovery.”) (citing Carman v. McDonnell Douglas Corp., 114 F.3d 790, 792 (8th Cir. 1997) (“Company-wide statistics are usually not helpful in establishing pretext in an employment-discrimination case, because those who make employment decisions vary across divisions.”)).
In this case, the plaintiffs have made a showing of particularized need and relevance for nationwide information related to gender-based harassment or discrimination. Furthermore, in this context there is no difference between internal complaints and information related to civil or administrative complaints sought by the plaintiffs. See Barfoot v. Boeing Co., 184 F.R.D. 642, 644 (N.D. Ala. 1999) (other limited EEOC complaints, lawsuits and charges may reveal the existence of patterns of race/national origin discrimination”). Finally, the defendant’s contention that the plaintiffs have access to judicial information in public records is unavailing. The argument that a plaintiff has access to documents is significant only where the court is weighing the relative burden on a defendant of obtaining such documents. Even an objection based on information that
5

the moving party is already in possession of documents or information it seeks is an
insufficient response to discovery requests. See Walt Disney Co. v. DeFabiis, 168 F.R.D.
281, 284 (C.D. Cal. 1996); Cook v. Rockwell Intern. Corp., 161 F.R.D. 103, 105 (D. Colo.
1995). The defendant has failed to sustain its burden of showing the objections to
Interrogatory Nos. 5 and 6 are valid. Therefore, the objections are overruled. The
defendant shall supplement its responses to Interrogatory Nos. 5 and 6 to reflect
responsive information limited to gender-based harassment or discrimination.
The parties rely on their arguments above with regard to Request for Production
Nos. 34 and 35.1 For the reasons stated above, the defendant’s objections are overruled.
Accordingly, the defendant shall also supplement its responses to Request for Production
Nos. 14, 34 and 35.
1
In Request for Production No. 14, the plaintiffs seek Beginning with calendar year 1992, produce “Annual Reports” including the numerical breakdown of the field division position by EEO-1 category and the narrative reports, as described by Designee-Agent Olivia Crimiel-Minor in FRCP 30(b)(6) depositions, to the extent these may be missing from LR6355-LR6841 and/or to the extent that the produced documents do not cover the relevant time frame to the present. (EEO Reports file).
See Filing No. 193, Exhibit 11. The defendant gave the following response. Objection. The Request is overly broad, unduly burdensome, and unlikely to lead to the [sic] discovery relevant to this litigation. Moreover, the data requested can be derived from the documents produced at LR6355 through LR7374.
Id.
In Request for Production No. 34, the plaintiffs seek: Produce the informal log that is maintained by Olivia Crimiel-Minor to record the receipt of discrimination and/or harassment complaints, as described in the Second FRCP 30(b)(6) Corporation deposition on the Faragher Affirmative Defense.
Id. In Request for Production No. 35, the plaintiffs seek: For the relevant time period, produce complete investigative files of the complaints that Olivia Crimiel-Minor records on the informal log, as described in the Second FRCP 30(b)(6) Corporation deposition on the Faragher Affirmative Defense.
Id. The defendant responded the same way to both requests, by stating, “Objection. Request No. 34 is
irrelevant and is unduly burdensome and not likely to lead to the discovery of relevant information.” Id.
6

B. Comparator Evidence
In Interrogatory No. 14, the plaintiffs seek:
For each calendar year from 1989 (when Lou Rollins began working with Woodmen of the World to the present, identify by name, last known address, and job title, gender, each and every employee who performed the duties of a State or of an Area Manager, and state:
a. date of hire, location and date of separation, if any; b. whether the individual had been disciplined, demoted,
involuntarily transferred, involuntarily retired, or terminated for reasons similar to the reasons Woodmen of the World demoted Ms. Rollins; c. factors considered for imposing the discipline, demotion, involuntary transfer, involuntary retirement, or termination; d. the name, job title, and last known address of each individual who participated in or made the decision to discipline, demote, involuntarily transfer, involuntarily retire, or terminate the individual; and e. the identity of each and every document, as defined in 7(c) above, on which you base your answer to this interrogatory.
See Filing No. 193, Exhibit 5. The plaintiffs have since limited the interrogatory to only
State Managers. See Filing No. 219, p. 7.
Initially, the defendant lodged the following objection:
Defendant objects to Interrogatory No. 14 as overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of relevant information. During any year during the time frame set forth in Interrogatory No. 14, the Woodmen employed more than 600 area managers and approximately 100 state managers.
Subject to the foregoing objection, Defendant directs the Plaintiff to the documents produced at LR5345 through LR5352, which is a listing of all state and area managers who were removed from their positions during the relevant time period and the reason the individuals were removed. This listing includes all state and area managers who, like Louella Rollins, were designated as “Not Meeting Requirements” or “NMR” and thus removed from a state or area manager position during the relevant time frame.
See Filing No. 193, Exhibit 5.
7

The plaintiffs contend the defendant failed to produce meaningful information
because the chart produced (Filing No. 193, Exhibit 7) contains only “NMR” rather the
underlying reason for the employment action. The plaintiffs also state the chart is
incomplete because it does not contain all information sought in Interrogatory No. 14 and
inaccurate as compared to the information already known by Rollins. The plaintiffs argue
the defendant failed to provide enough information for the plaintiffs to determine
comparator information independent of the defendant’s assessment.
The defendant states it has “produced all requested information as to every State
Manager employed by the Society during the relevant time period.” See Filing No. 206 p.
8 (citing the chart). The defendant states that
Rollins was demoted for not meeting requirements. Every other State Manager who was similarly treated for similar reasons was disciplined, demoted, transferred, retired or terminated for not meeting requirements. The answer is apparent from the question, and thus, the Society should not have to identify documents in its possession capable of verifying the obvious. That Plaintiffs are without documents sufficient to determine independently which managers were terminated for reasons similar to the reasons for which Rollins was demoted results from an incurable defect in Plaintiffs' interrogatory, and is not the result of any actions or conduct on the part of the Society.
See Filing No. 206, p. 10-11 (emphasis added).
There is no dispute the plaintiffs are entitled to basic comparator information. The
chart provided by the defendant is an insufficient response to the plaintiffs’ Interrogatory
No. 14. The defendant has failed to substantiate its objections to the sections of the
interrogatory for which no response was produced. Further, the defendant’s failure to
either describe the reasons for the employment action beyond merely stating “NMR” or by
providing the underlying documents renders the response inadequate.
Federal Rule of Civil Procedure 33(b)(1) provides: “Each interrogatory shall be
answered separately and fully in writing under oath, unless it is objected to.” Under Rule
33 “answers must be responsive, full, complete and unevasive.” Pilling v. GMC, 45 F.R.D.
366, 369 (D. Utah 1968). “Neither questions nor their answers should be interpreted with
excessive rigidity or technicality, but a rule of reason should be applied as to both. If the
8

respondent is unable to answer for lack of information or for other reason he should indicate the reasons rather than ignore the inquiry in whole or in part; if an interrogatory is deemed in good faith to be improper, objection should be timely filed.” Id. Under Rule 37(a)(3) “evasive or incomplete disclosures and responses to interrogatories and production requests are treated as failures to disclose or respond. Interrogatories and requests for production should not be read or interpreted in an artificially restrictive or hypertechnical manner to avoid disclosure of information fairly covered by the discovery request, and to do so is subject to appropriate sanctions under [Rule 37(a)].” Fed. R. Civ. P. 37, advisory committee notes (1993); see also Omega Eng’g, Inc. v. Omega, S.A., 2001 WL 173765, *4 (D. Conn. Feb 06, 2001). The defendant interpreted Interrogatory No. 14 with excessive rigidity or technicality and responded with a hypertechnical answer, rendering the response inadequate. Accordingly, the defendant shall supplement its response to Interrogatory No. 14 by fully responding and by providing the underlying documents.
C. Sanctions With regard to motions to compel discovery responses, Federal Rule of Civil
Procedure 37(a)(4)(A) provides: If the motion is granted or if the disclosure or requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney’s fees, unless the court finds that the motion was filed without the movant’s first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party’s nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust.
Fed. R. Civ. P. 37(a)(4)(A). The defendant’s failure to provide adequate discovery responses required the plaintiffs to file this motion to compel. The court shall, after the defendant has a chance to respond, grant the plaintiffs’ reasonable expenses for filing such
9

motion, unless the defendant shows substantial and legal justification for the failure to provide discovery responses. See Fed. R. Civ. P. 37(a)(4)(A). Upon consideration,
IT IS ORDERED: 1. The plaintiffs’ Second Motion to Adequate Responses to Discovery and Request for Reasonable Expenses (Filing No. 193) is granted. The plaintiffs’ motion is granted with regard to Interrogatory Nos. 5, 6 and 14, and Request for Production Nos. 14, 34 and 35, the remaining requests having been withdrawn. 2. The defendant shall supplement its responses to these discovery requests as more fully described above on or before April 6, 2007. 3. The defendant shall have to on or before April 6, 2007, to show cause why the plaintiffs should not be awarded reasonable costs and attorney’s fees incurred in bringing this motion to compel, in accordance with Fed. R. Civ. P. 37(a)(4)(A). 4. The court will hold a status telephone conference with counsel on April 13, 2007, at 3:00 p.m. Counsel for the plaintiff shall initiate the telephone conference. DATED this 15th day of March, 2007.
BY THE COURT: s/ Thomas D. Thalken United States Magistrate Judge
10

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

EQUAL EMPLOYMENT OPPORTUNITY, )

COMMISSION,

)

)

Plaintiff,

)

)

LOUELLA ROLLINS,

)

)

Plaintiff - Intervenor, )

)

vs.

)

)

WOODMEN OF THE WORLD LIFE

)

INSURANCE SOCIETY and/or OMAHA )

WOODMEN LIFE INSURANCE SOCIETY, )

)

Defendants.

)

8:03CV165 ORDER

This matter is before the court on the plaintiffs’ Motion to Compel Production of Information Improperly Withheld as Privileged (Filing No. 190). The plaintiffs filed exhibits attached to the motion. The defendant filed a brief (Filing No. 200) and an index of evidence (Filing No. 199) in opposition to the motion. The plaintiffs then filed a reply brief, with additional exhibits attached (Filing No. 208).

BACKGROUND The EEOC filed this action under Title VII of the Civil Rights Act of 1964, as amended, and Title I of the Civil Rights Act of 1991, alleging gender discrimination, sexual harassment, hostile work environment and retaliation by the defendant against Louella Rollins. See Filing No. 10. The EEOC states Rollins began working for the defendant in June of 1989. Id. ¶ 9. The EEOC alleges the defendant began harassing Rollins in June of 1994, which continued until her demotion in February 1999. Id. ¶10. The complaint alleges Rollins supervised a male who openly voiced his resentment over having to work for a woman, sexually harassed her, undermined her authority, and spread rumors about her. Id. ¶¶ 11-15. Although Rollins had complained about the male, when Rollins sought permission to fire the male, she was demoted. Id. ¶¶ 16-19. On October 7, 2003, the

court granted Rollins leave to intervene. See Filing No. 29. As part of their Answer to the Amended Complaint, the defendant alleges Rollins was demoted based on her performance and that Rollins failed to mitigate her damages. See Filing No. 64.
The plaintiffs contest the defendant’s designation of certain documents and testimony as privileged. Specifically, the plaintiffs seek (a) Document Nos. 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 23, 25, 26, 27, 32, 33, and 35, listed on the defendant’s privilege log; (b) the guidelines for investigation described by deponent Olivia CrimielMinor; and (c) for Olivia Crimiel-Minor to respond to the questions she was instructed not to answer and appropriate follow up questioning, at the expense of the defendant. The defendant objects to disclosure of any of the disputed documents. The panties have reasonably conferred pursuant to NECivR 7.1(I) and are unable to resolve their dispute.
On March 13, 2007, the court entered an order requiring the defendant to submit the disputed documents, under seal, for an in camera inspection by the court. See Filing No. 222. The defendant complied. Upon review of the documents and the other evidence submitted by the parties, the court concludes the plaintiffs’ motion to compel should be granted in part and denied in part.
ANALYSIS Parties may discover any relevant, unprivileged information that is admissible at trial or is reasonably calculated to lead to admissible evidence. See Fed. R. Civ. P. 26(b)(1). Because they reduce the amount of information discoverable during the course of a lawsuit, the attorney-client privilege and, to an even greater extent, the attorney workproduct doctrine are narrowly construed. See Ross v. City of Memphis, 423 F.3d 596, 600 (6th Cir. 2005); In re Grand Jury Subpoenas, 454 F.3d 511, 520 (6th Cir. 2006). The federal common law of attorney-client privilege applies to this civil federal question case. See In re Bieter Co., 16 F.3d 929, 935 (8th Cir. 1994).
The attorney-client privilege encourages full and frank communication between attorneys and their clients so that clients may obtain complete and accurate legal advice. But the privilege protecting attorney-client communications does not outweigh society's interest in full disclosure when legal
2

advice is sought for the purpose of furthering the client's on-going or future wrongdoing. In re BankAmerica Corp. Sec. Litig., 270 F.3d 639, 641 (8th Cir. 2001). Additionally, “[t]he attorney-client privilege is strongest where a client seeks counsel's advice to determine the legality of conduct before taking action.” Id. (citing Upjohn Co. v. United States, 449 U.S. 383, 392 (1981). However, communications between attorney and client are not per se privileged. For example, the “crime-fraud” exception provides that the attorney-client privilege “‘does not extend to communications made for the purpose of getting advice for the commission of a fraud or crime.’” Id. (quoting United States v. Zolin, 491 U.S. 554, 563 (1989)). The Supreme Court in Upjohn Co. v. United States, 449 U.S. 383, 394-95 (1981) determined the communications of an employee of a corporation with the corporation’s counsel in order to secure legal advice concerning matters within the scope of the employees’ corporate duties, consistent with the underlying purposes of the attorney-client privilege are protected from disclosure. Such protection has been extended to independent consultants or contractors who are the functional equivalent of an employee. See, e.g., In re Bieter, 16 F.3d at 938. At the same time, the privilege belongs to the client organization. Ross, 423 F.3d at 603-04; United States v. Chen, 99 F.3d 1495, 1502 (9th Cir. 1996). “[T]he power to waive the corporate attorney-client privilege rests with the corporation’s management and is normally exercised by its officers and directors.” Commodity Futures Trading Comm'n v. Weintraub, 471 U.S. 343, 348-49 (1985). The party asserting a privilege to prevent disclosure of information bears the burden of establishing the privilege. United States v. Hatcher, 323 F.3d 666, 675 (8th Cir. 2003); Rabushka ex rel. U.S. v. Crane Co., 122 F.3d 559, 565 (8th Cir. 1997) (holding party “met its burden of providing a factual basis for asserting the privileges when it produced a detailed privilege log stating the basis of the claimed privilege for each document in question, together with an accompanying explanatory affidavit of its general counsel”). Accordingly, the defendant must show all five of the following requirements are met. [T]he attorney-client privilege is applicable to an employee's communication if (1) the communication was made for the purpose of securing legal advice; (2) the employee making the
3

communication did so at the direction of his corporate superior; (3) the superior made the request so that the corporation could secure legal advice; (4) the subject matter of the communication is within the scope of the employee's corporate duties; and (5) the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.
Diversified Indus., Inc., 572 F.2d 596, 609 (8th Cir. 1977) (en banc).
In addition to the attorney-client privilege, the defendant may shield information from
discovery if it is subject to the attorney work product doctrine. The work product doctrine
was established by Hickman v. Taylor, 329 U.S. 495 (1947), and is now codified in Fed.
R. Civ. P. 26(b)(3):
Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for the trial by or for another party or by or for that other party’s representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.1

1

The doctrine was designed to prevent “‘unwarranted inquiries into the files

and mental impressions of an attorney’” and “recognizes that it is ‘essential

that a lawyer work with a certain degree of privacy, free from unnecessary

intrusion by opposing parties and their counsel.’” Simon v. G.D. Searle &

Co., 816 F.2d 397, 402 (8th Cir. 1987) (quoting Hickman v. Taylor, 329

U.S. 495 (1947)).

There are two types of protected work product. “Ordinary” work

product is subject to production only upon a showing of substantial need and

inability to secure the substantial equivalent without undue hardship. In re

Chrysler Motors Corp. Overnight Evaluation Program Litig., 860 F.2d

844, 846 (8th Cir. 1988). . . . See Shelton v. American Motors Corp., 805

F.2d 1323, 1328 (8th Cir. 1986); In re Murphy, 560 F.2d at 336; (Dec. 22,

1993 Order at 4.) “Opinion” work product includes documents that contain

(continued...)

4

Disclosure of documents protected by the work product doctrine to third parties does not necessarily waive the work product immunity. Argument to the contrary confuses the work product doctrine and the attorney-client privilege. See 8 Wright, et al., Federal Practice & Procedure, Civ. 2d § 2024 (1994). Disclosure to third persons only waives the work product immunity if it “substantially increased the opportunities for potential adversaries to obtain the information.” Id. (citing cases).
With regard to claiming privilege or protection of trial-preparation materials, Rule 26(b)(5) states:
When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial-preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection. See Fed. R. Civ. P. 26(b)(5). The plaintiffs divide the information sought into four categories: (1) conversations with counsel during the investigation of Rollins’ internal complaint; (2) investigation procedural guidelines; (3) correspondence with Rollins; and (4) documents listed on the privilege log without sufficient descriptions. The court will address each category seriatim.
1. Conversations with Counsel The plaintiffs seek production of six documents, listed on the defendant’s privilege
log, which were prepared in connection with the defendant’s investigation of Rollins’ internal complaint. Specifically, these are Document Nos. 5-10. Document Nos. 5 and 6
1 (...continued) the mental impressions, conclusions or opinions of an attorney and is discoverable only in “rare and extraordinary circumstances.” In re Chrysler Motors Corp., 860 F.2d at 846; Simon, 816 F.2d at 402 n. 3 (quoting In re Murphy, 560 F.2d 326, 336 n. 20 (8th Cir. 1977)). Opinion work product is virtually absolutely immune from discovery. In re Grand Jury Proceedings, 473 F.2d 840, 848 (8th Cir. 1973).
Bieter Co. v. Blomquist, 156 F.R.D. 173, 179 (D. Minn. 1994).
5

are undated chronologies “prepared at the request of Scott S. Moore2 in anticipation of litigation.” See Filing No. 190, Exhibit 1. One of the chronologies was prepared by Olivia Crimiel-Minor and the other author is listed as “WOW.” Id. Document Nos. 7 and 10 were prepared by Olivia Crimiel-Minor in early 1999, and are described as a “memorandum discussing legal issues” sent to Mark Theisen,3 and a “note summarizing discussion of legal issues with legal counsel” to file. Id. Document No. 8, dated March 9, 1999, is a letter, the first seven pages are from J.R. Breuning4 to Mark Theisen discussing legal issues.5 Document No. 9 is an undated agenda for discussion of legal issues prepared by J.R. Breuning. The defendant alleges these documents are subject to the attorney-client privilege or work product doctrine, excepting them from discovery. The plaintiffs also seek to compel responses to related questions posed to Olivia Crimiel-Minor, during her deposition. Olivia Crimiel-Minor was instructed not to answer the questions by her counsel based on the attorney-client privilege.
The plaintiffs contend the defendant improperly withheld information regarding conversations with counsel, which took place during the investigation of Rollins’ internal complaint. Specifically, the plaintiffs argue the subject documents and communications with counsel are not subject to the attorney-client privilege or work product doctrine because counsel was giving business advice and/or they were conducted or prepared in the regular course of business. Alternatively, the plaintiffs contend the defendant waived any existing privilege by placing the internal investigation at-issue when it lodged the Faragher defense.
In support of their argument, the plaintiffs state the internal investigation conducted by the defendant did not proceed according to the normal procedure. The plaintiffs
2 Mr. Moore is counsel of record for the defendant in this case. 3 Mr. Theisen was General Counsel for the defendant. 4 Olivia Crimiel-Minor testified Mr. Breuning was an attorney working at the law firm currently
representing the defendant. See Filing No. 208, Exhibit 1 p. 168.
5 The last page is from Desi Doise to Olivia Crimiel-Minor and it does not appear the defendant seeks
to claim any privilege with regard to that portion of the document. See Filing No. 190, Exhibit 1.
6

provided the following summary of facts in support of the motion to compel. Initially, Olivia Crimiel-Minor investigated Rollins’ complaint. Olivia Crimiel-Minor completed such investigations as a normal part of her job. Olivia Crimiel-Minor also typically consulted with an attorney representing the defendant during the investigation of all internal discrimination and harassment complaints. With regard to Rollins’ complaint, Olivia Crimiel-Minor deviated from her normal procedure by concluding her participation prior to issuing any conclusions or recommendations. The final disposition of the matter was completed by counsel, J.R. Breuning, for the defendant.
a. Attorney-Client Privilege The defendant has claimed the attorney-client privilege applies to Document Nos. 7-10. However, according to the privilege log no claim of privilege was asserted with regard to page 8 (Bates No. LR0915) of Document No. 8.6 See Filing No. 190. Exhibit 1. The defendant also lodged the attorney-client privilege objection, with an instruction to the deponent not to answer during questioning about Olivia Crimiel-Minor’s meetings and written communications with counsel during the investigation. The plaintiffs argue the above communications and Document Nos. 7-10 are not subject to the attorney-client privilege because they were created during the internal investigation, in early 1999. The plaintiffs argue that if an attorney was involved in the investigation, such involvement was part of the routine investigation, rather than upon request for legal advice. Accordingly, the issue before the court is whether these communications were made for the purpose of seeking legal advice. See Diversified, 572 F.2d at 609 (en banc). Under such analysis, “when a matter is committed to a professional legal advisor, it is ‘prima facie committed for the sake of legal advice and [is], therefore, within the privilege absent a clear showing to the contrary.’” In re Bieter, 16 F.3d at 938 (alteration in original) (quoting Diversified, 572 F.2d at 610). The court has reviewed the transcript of the portion of Olivia Crimiel-Minor’s which was submitted. See Filing No. 190, Exhibit 2; Filing No. 208, Exhibit 1. After review of the
6 Document No. 8 contains a six-page opinion from counsel, page 4 is contained in the document twice, making it a seven-page document.
7

questions placed at issue by the plaintiffs and the deponents responses to those questions, as well as the responses given during the deposition to related questions, the court finds no additional questioning is warranted. For the most part, the deponent answered the questions asked. However, to the extent the deponent refused to respond on the advice of counsel, on the basis of the attorney-client privilege, the objections are sustained.
Similarly, the court has reviewed Document Nos. 7-10 and finds such documents to be subject to the attorney-client privilege. The defendant met its burden of showing such documents are subject to the privilege. Further, the plaintiffs have failed to make a clear showing disputing the defendant’s claim such documents were prepared in response to a request for legal advice. Therefore, the plaintiffs’ motion to compel is denied with respect to Document Nos. 7, 9 and 10 and the questions posed to Olivia Crimiel-Minor regarding communications with counsel about the internal investigation into Rollins’ complaint. Similarly, the plaintiffs’ motion to compel is denied with regard to Document No. 8 (pages 1-7). However, no claim of privilege was made as to page 8 and none appears to apply to the document authored by Olivia Crimiel-Minor and sent to Desi Doise, Assistant Vice President and Assistant Field Manager, on March 8, 1999 (Bates No. LR0915).
b. Work-Product Doctrine The defendant has claimed the work product doctrine applies to Document Nos. 5, 6, 9 and 10. Upon review of the documents, the court finds Document Nos. 5, 6, 9 and 10 are subject to the work-product doctrine. These documents appear to be prepared by counsel, or in consultation with counsel, for the defendant in anticipation of litigation and contain the mental impressions, conclusions or opinions of counsel regarding such litigation.
c. Waiver: Faragher Defense [I]n certain circumstances a party's assertion of factual claims can, out of considerations of fairness to the party's adversary, result in the involuntary forfeiture of privileges for matters pertinent to the claims asserted. The loss of the privilege in
8

these circumstances is sometimes described as implied waiver, sometimes as “at issue” waiver because it results from the party having placed a contention at issue. John Doe Co. v. United States, 350 F.3d 299, 302 (2d Cir. 2003) (citing United States v. Nobles, 422 U.S. 225 (1975) (other citations omitted); see also Baker v. General Motors Corp., 209 F.3d 1051, 1055 (8th Cir. 2000). The attorney-client privilege and work-production doctrine protection may be waived. See United States v. Nobles, 422 U.S. 225, 239 (1975); see also Baker, 209 F.3d at 1055 (applying state law) (“A waiver of the attorney-client privilege may be found where the client places the subject matter of the privileged communication at issue.”); In re Chrysler Motors Corp. Overnight Evaluation, 860 F.2d 844 (8th Cir. 1988). The Eighth Circuit has recognized that the [work-product doctrine] should be applied in a commonsense manner in light of reason and experience as determined on a case-by-case basis. The privilege is designed to balance the needs of the adversary system to promote an attorney's preparation in representing a client against society’s interest in revealing all true and material facts relevant to the resolution of a dispute. Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726, 732 (8th Cir. 2002) (internal quotation omitted) (citing Hickman, 329 U.S. at 510-11; Pittman v. Frazer, 129 F.3d 983, 988 (8th Cir. 1997)). The plaintiffs contend fundamental fairness, under the principles set forth in Pamida, Inc., requires a finding of implied waiver in this matter. The plaintiffs further state the defendant placed the subject documents at issue when the defendant asserted it “exercised reasonable care to prevent and correct promptly any alleged sexually harassing behavior.” See Filing No. 64 - Answer p. 3. The plaintiffs argue the statement reflects the first element of the affirmative defense recognized in Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). Further, the plaintiffs claim the decision making process which was part of the investigation into Rollins’ internal complaint is of central importance because the defendant was demoted even though her complaint was found to have merit. At the same time, her subordinate-harassers, whose internal complaints were found to lack merit, were given written warnings and suffered no economic harm.
9

The defendant asserts it has not waived protection of the subject documents pursuant to Faragher because it has not relied on the adequacy of the investigation as an affirmative defense. See McGrath v. Nassau County Health Care Corp., 204 F.R.D. 240, 243-44 (E.D.N.Y. 2001). Furthermore, the defendant states the plaintiffs have received the full contents of the investigative file. More importantly, the defendant
does not rely on the fact that its internal investigation found insufficient evidence of sex discrimination as a defense to Plaintiffs’ claims. Instead, the Society asserts that adequate procedures for addressing internal complaints of discrimination existed, that Rollins was made fully aware of such procedures, and that during the approximately four years of alleged discrimination, she failed to avail herself these procedures. See Filing No. 200 p. 13-14. Under the circumstance, the court does not find an implied waiver based on the defendant’s affirmative defenses in this matter. The defendant did not waive privilege to the subject documents by alleging it “exercised reasonable care to prevent and correct promptly any alleged sexually harassing behavior.” The court finds that, on balance, fundamental fairness does not require disclosure of the subject documents. The plaintiffs have full and fair access to the true and material facts at issue and the subject documents would not further reveal otherwise unattainable relevant material facts. Accordingly, the plaintiffs are not entitled to production of the documents at issue on the basis of any waiver implied in the assertion of the defendant's seventh affirmative defense.
2. Investigation Procedural Guidelines The plaintiffs state that during the deposition of Olivia Crimiel-Minor, counsel for the
defendant instructed her not to answer questions related to the content of the defendant’s guidelines for conducting investigations. The plaintiffs state the guidelines were provided to the deponent, for her use in the Rollins investigation, and other human resource employees by the defendant. Specifically, during the deposition of Olivia Crimiel-Minor the following exchange took place:
Q. Can you describe what the guidelines cover? [Counsel for the defendant]: I’m going to object. I think
that we’ve established there’s an attorney-client privilege with
10

respect to those guidelines through the witness’s earlier testimony and instruct the witness not to answer. See Filing No. 190, Exhibit 2 - Minor Depo. 34:3-8. The plaintiffs contend the topic of the guidelines was covered by the Fed. R. Civ. P. 30(b)(6) deposition notice and by Request for Production No. 4, which requested “copies of any procedures relating to the course and scope of investigations.” The defendant did not produce the disputed guidelines in response to Request for Production No. 4 or list the document on the privilege log. The defendant asserts that the plaintiffs never “specifically requested production of the Society’s guidelines for investigating internal complaints of employee discrimination.” See Filing No. 200, p. 14. The defendant argues it timely and properly objected to the plaintiffs’ Request for Production No. 4, which was “overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of relevant evidence.” Id. Further, the defendant contends the plaintiffs failed to bring the request within a manageable scope or require the defendant to produce any response documents and that it is premature to debate the privileged or non-privileged nature of any such responsive documents. During a deposition, All objections made at the time of the examination to the qualifications of the officer taking the deposition, to the manner of taking it, to the evidence presented, to the conduct of any party, or to any other aspect of the proceedings shall be noted by the officer upon the record of the deposition; but the examination shall proceed, with the testimony being taken subject to the objections. Fed. R. Civ. P. 30(c). However, “[a]ny objection during a deposition must be stated concisely and in a non-argumentative and non-suggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under Rule 30(d)(4).” Fed. R. Civ. P. 30(d)(1). The defendant provides no legal support for the instruction to Olivia Crimiel-Minor not to answer questions related to the guidelines. Accordingly, the plaintiffs motion to compel further questioning of the deponent, at the defendant’s expense, on this topic is granted.
11

Additionally, it is unclear in the record whether production of the guidelines was requested as part of the deposition. However, production was requested pursuant to Request for Production No. 4. Federal Rule of Civil Procedure 34(b) provides “If objection is made to part of an item or category, the part shall be specified and inspection permitted of the remaining parts.” Further, Federal Rule of Civil Procedure 26(e) requires a party to supplement discovery responses “if the party learns that in some material respect the information disclosed is incomplete.” If the defendant initially failed to realize the guidelines were responsive to Request for Production No. 4, the defendant should have become aware of the materiality of the guidelines during the deposition. The defendant fails to meet its burden of showing any support for its objections to production of the guidelines. Accordingly, the plaintiffs’ motion to compel production of the “Society’s guidelines for investigating internal complaints of employee discrimination” as discussed during Olivia Crimiel-Minor’s deposition is granted.
3. Correspondence with Rollins The plaintiffs seek production of seven documents, listed on the defendant’s
privilege log, which Rollins either authored or received. Specifically, these are Document Nos. 2, 3, 4, 12, 16, 17 and 23. These documents include two letters from Calvin Robinson (Nos. 2 and 12) and a fax cover sheet to James Gleason, transmitting a legal opinion letter (No. 23). Neither Mr. Robinson or Mr. Gleason are identified on the privilege log as legal counsel. The remaining documents are identified on the log as Rollins’ “typewritten notes summarizing legal advice from Mark Theisen” who was General Counsel for the defendant at that time, in 1997. See Filing No. 190, Exhibit 1. The plaintiffs contend there is no remaining privilege with regard to these documents because Rollins is now an adverse party in litigation with the defendant. The plaintiffs agree to enter into a protective order with regard to any of these documents which should be restricted from access outside this litigation. Finally, the plaintiffs argue “the documents may bear on or explain the actions or state of mind of the various individuals whose actions are at issue in this case.” See Filing No. 190, p. 19.
12

The defendant contends these documents are subject to the attorney-client privilege and that such privilege belongs to the defendant and cannot be waived by Rollins. However, the defendant makes no other showing or argument with regard to the specific documents at issue. For example, it is unclear what position is held by Mr. Robinson or Mr. Gleason, or why a fax cover sheet would be subject to the attorney-client privilege. Under the circumstances, neither the court or the other parties are able to assess the applicability of the privilege. Therefore the defendant has failed to meet its burden of showing these documents are subject to the attorney-client privilege by virtue of their argument or the text of the privilege log. Diversified, 572 F.2d at 609.
Furthermore, after review of the documents, the court finds Document No. 2 is a September 22, 1997 letter, with post-script, to Rollins from Calvin E. Robinson in his capacity as Vice President and Associate General Counsel regarding a meeting of Lodge No. 232 held on August 27, 1997. It is unclear who all received a copy of page one, there is no one else listed on the document as a recipient, except that Olivia Crimiel-Minor is hand-written at the top of the document. Page two of the document implies that more copies of page one went out, as page two indicates there were only two copies of page two made due to its confidential nature. Document Nos. 3, 4 and 16 are identical to each other and reflect Rollins’ reaction to Document No. 2 and a conversation between Rollins and Mr. Theisen on that subject. Document No. 17 contains two pages, the second page is identical to Document Nos. 3, 4 and 16. Document No. 17, page 1, contains type written notes dated September 29 and 30, 1997 which reflect conversations between the author (who is unidentified in the document, but said to be Rollins by the defendant) and persons named “Ted” who is a manager, and “Desi” about a situation involving Linda Irvine and Edwin Pena. Page 1 contains no advice from or mention of Mark Theisen. The court finds Document No. 2, both pages, are subject to the attorney-client privilege and need not be produced. However, the defendant fails to meet its burden of showing Document No. 17, page 1 (Bates No. LR1213) is privileged. Accordingly, the plaintiffs’ motion to compel will be granted with regard to Document No. 17, page 1 (Bates No. LR1213), but denied as to Document Nos. 2, 3, 4, 16 and 17, page 2.
13

Document No. 12, page 1, is the same September 22, 1997 letter, without the postscript, as the first page of Document No. 2. Document No. 12 also has appended seven other letters or memos dated between July 1994 and May 23, 1995, regarding various incidents involving internal complaints about the behavior of Ted Guminey, Robert Mathias and Kevin Mathias, and taking steps to eliminate rude or offensive behavior. There is no apparent relationship between page 1 and the rest of the document. Further, it is unclear from the privilege log whether the defendant is claiming the attached documents are subject to any privilege. The July 1994 to May 23, 1995 correspondence has various authors and recipients including Rollins, Olivia Crimiel-Minor, Rick Loftin as an Assistant Field Manager, Steven Douglas as an Underwriting Manager, and “All Region Three Associates.” For the reason stated above, Document No. 12, page one is subject to the attorney-client privilege. However, the defendant fails to meet its burden of showing the attachments to Document No. 12 (Bates Nos. 0962-0968) are privileged. Accordingly, the plaintiffs’ motion to compel will be granted with regard to those latter documents.
Document No. 23 is a fax cover sheet sent to Rollins from Jim Gleason, who is listed as Assistant Vice President and Associate General Counsel. The regarding line says Theodore E Guminey. The document states there were originally 9 other pages send to Rollins, however they are not attached to Document No. 23. Aside from a heading, the date, and a fax number, there is no handwritten comments or other information on the page. The defendant fails to indicate how the fact of the fax cover sheet, or any information contained on the page, is covered by the attorney-client privilege. Therefore, the defendant fails to meet its burden of showing Document No. 23 is privileged. Accordingly, the plaintiffs’ motion to compel will be granted with regard to Document No. 23.
4. Privilege Log The plaintiffs contend the defendant’s privilege log is deficient by failing to provide
adequate descriptions for Document Nos. 5, 6, 10, 11, 14, 15, 25, 26, 27, 32, 33 and 35. Document Nos. 5, 6 and 10 were discussed above and will not be repeated here. Document Nos. 14, 15 and 33 are undated, but described as computer printouts prepared
14

pursuant to request of Lindsay K. Lundholm7 in anticipation of litigation, one with handwritten notes. See Filing No. 190, Exhibit 1. Similarly, Document Nos. 26, 27, 32 and 35 were prepared or represent information compiled in late 2004 “at the request of Lindsay K. Lundholm.” Id. The defendant withheld these documents on the basis of attorney-client privilege and the attorney work product doctrine. Id. The plaintiffs contend the privilege log is insufficient to show privilege exists because the person who prepared the document is not always identified and the document was not sent to “any lawyer.” See Filing No. 190, p. 20-21. However, these documents were identified as being prepared or compiled at the request of counsel after litigation began and will not be compelled.
With regard to Document Nos. 11 and 25, the plaintiffs contend the defendant failed to identify an attorney author or recipient or other information to support the claimed privilege. See Filing No. 190, p. 20-21. Document No. 11, dated December 19, 2001, is described as “e-mails discussing litigation” between Michelle Walker and Olivia CrimielMinor. See Filing No. 190, Exhibit 1. The defendant asserts the document is subject to the attorney-client privilege. Id. Document No. 25, dated November 23, 1999, is described as an “opinion letter” from Angela Pitts to Connie Young. Id. The defendant withheld this document on the basis of attorney-client privilege and the attorney work product doctrine. Id. In response to the motion to compel, the defendant did not clarify the claimed privilege or address the plaintiffs’ contentions with regard to any specific document.
Under the circumstances, neither the court or the other parties are able to assess the applicability of the claimed privilege by reviewing the privilege log with regard to Document Nos. 11 and 25. However, Document No. 11 is a response by Olivia CrimielMinor to an inquiry from Michelle Walker, a legal assistant for the defendant, regarding a subpoena for documents in the “Rollins v. Woodmen matter.” Under such circumstances, Document No. 11 is subject to the attorney-client privilege and need not be produced.
Document No. 25 is a memo to Connie Young from Angela Pitts “RE: Olivia CrimielMinor – Dependent Care Program.” There is no indication about the title of either the author or recipient. Equally unclear to the court, is the relevance to this matter of an
7 Ms. Lundholm is counsel of record for the defendant in this case.
15

opinion about a dependent care flexible spending account that does not reference Rollins. Therefore, although the defendant has failed to meet its burden of showing Document No. 25 is subject to the attorney-client privilege, see Diversified, 572 F.2d at 609, the court will not require production of the document, at this time.
5. Sanctions With regard to motions to compel discovery responses, under Federal Rule of Civil
Procedure 37(a)(4)(C): If the motion is granted in part and denied in part, the court . . . may, after affording an opportunity to be heard, apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.
The defendant’s failure to provide adequate information on the privilege log to allow the plaintiffs to access the nature of the documents, without court intervention, required the plaintiffs to file a motion to compel. The court shall, after defendant has a chance to respond, grant the plaintiffs’ reasonable expenses for filing such motion, unless the defendant shows substantial and legal justification for the failure to provide adequate information on the privilege log or just cause why sanctions should not be imposed. See Fed. R. Civ. P. 37(a)(4)(A). Upon consideration,
IT IS ORDERED: 1. The plaintiffs’ Motion to Compel Production of Information Improperly Withheld as Privileged (Filing No. 190) is granted in part and denied in part.
a. On or before April 6, 2007, the defendant shall produce the “Society’s guidelines for investigating internal complaints of employee discrimination” as discussed during Olivia Crimiel-Minor’s earlier deposition, Document No. 8 (page 8 - Bates No. LR0915), the attachments to Document No. 12 (Bates Nos. 0962-0968), Document No. 17 (page 1 - Bates No. LR1213), 23.
b. On or before April 12, 2007, the defendant, at its own expense, shall produce Olivia Crimiel-Minor for deposition to respond to questions on the topic of the “Society’s guidelines for investigating internal complaints of employee discrimination.”
16

c. The plaintiffs’ motion to compel is denied with regard to Document Nos. 2, 3, 4, 5, 6, 7, 8 (pages 1-7), 9, 10, 11, 12 (page 1), 14, 15, 16, 17 (page 2), 25, 26, 27, 32, 33 and 35, and with regard to deposition questioning of Olivia Crimiel-Minor in relation to the issue of her consultations with counsel.
2. The defendant shall have to on or before April 6, 2007, to show cause why the plaintiffs should not be awarded reasonable costs and attorney’s fees incurred in bringing this motion to compel, in accordance with Fed. R. Civ. P. 37(a)(4)(A).
DATED this 23rd day of March, 2007. BY THE COURT: s/ Thomas D. Thalken United States Magistrate Judge
17

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

and

)

Case No. 8:03CV165

)

LUELLA ROLLINS,

)

)

Plaintiff-Intervenor

)

v.

)

)

WOODMEN OF THE WORLD LIFE

)

INSURANCE SOCIETY and/or OMAHA

)

WOODMEN LIFE INSURANCE SOCIETY,

)

)

Defendant.

)

)

ORDER

The Parties having filed a Joint Motion for Dismissal with Prejudice on July 18, 2007,

pursuant to the Settlement Agreement entered into by and between the Parties,

IT IS HEREBY ORDERED:

1. The case is dismissed with prejudice;

2. Each Party shall bear its own costs and attorneys fees in accordance with paragraph 8 of the Parties’ Settlement Agreement; and

3. This Court shall retain jurisdiction for purposes of enforcing the Settlement Agreement.

IT IS SO ORDERED.

Date: July 24, 2007

/s Joseph F. Bataillon Hon. Joseph Bataillon United States District Judge

 
 330 F.Supp.2d 1049 (2004)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
WOODMEN OF THE WORLD LIFE INSURANCE SOCIETY and/or Omaha Woodmen Life Insurance Society, Defendant.
Louella Rollins, Intervener/Cross-Plaintiff, v.
Woodmen of the World Life Insurance Society and/or Omaha Woodmen Life Insurance Society, Cross-Defendant.
No. 8:03CV165.
United States District Court, D. Nebraska.
August 17, 2004.
10501 *1050 *1051 Ann L. Fuller, Joseph H. Mitchell, Lynn L. Palma, Nancy A. Weeks, Denver, CO, Gwendolyn Reams, Office of General Counsel, Washington, DC, for Plaintiff.
Kirk S. Blecha, Scott S. Moore, Lindsay K. Lundholm, Baird, Holm Law Firm, Omaha, NE, for Defendant.
MEMORANDUM AND ORDER
BATAILLON, District Judge.
INTRODUCTION
Before me now is Woodmen of the World Life Insurance Society's (hereafter "Woodmen") motion to dismiss cross-plaintiff Louella Rollins' (hereafter "Rollins") cross-claim for summary judgment or stay and for oral argument, Filing No. 35, supported by a brief, Filing No. 36, and index of evidence, Filing No. 37. Rollins has filed a brief opposing Woodmen's motion to dismiss or for summary judgment, Filing No. 39. The matter in dispute is whether Rollins is required to arbitrate her Title VII[1] claims against her former employer, pursuant to a clause in 1052 her contract for employment, after the Equal Employment Opportunity Commission (hereafter *1052 "EEOC") filed suit on her behalf and she subsequently intervened into the suit pursuant to Fed. R. Civ. P 24(b).
STANDARDS OF REVIEW
In reviewing a complaint on a Rule 12(b)(6) motion, the court must consider all of the facts alleged in the complaint as true, and construe the pleadings in a light most favorable to the plaintiff. See, e.g., Brotherhood of Maint. of Way Employees v. BNSF R.R., 270 F.3d 637, 638 (8th Cir.2001). A dismissal is not lightly granted. "A complaint shall not be dismissed for its failure to state a claim upon which relief can be granted unless it appears beyond a reasonable doubt that plaintiff can prove no set of facts in support of a claim entitling him to relief." Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir.2001); Carpenter Outdoor Advtg. v. City of Fenton, 251 F.3d 686 (8th Cir.2001). When accepting the facts of the complaint as true, a court will not, however, "blindly accept the legal conclusions drawn by the pleader from the facts.'" Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir.1990) (citing Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987)).
A dismissal under Rule 12(b)(6) is therefore granted "only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief," Schmedding v. Tnemec Co., 187 F.3d 862, 864 (8th Cir.1999), such as a missing allegation about an element necessary to

obtain relief or an affirmative defense or other bar, Doe v. Hartz, 134 F.3d 1339, 1341 (8th Cir.1998). The court does not determine whether the plaintiff will ultimately prevail, but rather whether the plaintiff is entitled to present evidence in support of his claim. Doe v. Norwest Bank, 909 F.Supp. 668, 670 (D.Minn.1995). When "matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." Fed.R.Civ.P. 12(c); Casazza v. Kiser, 313 F.3d 414, 418 (8th Cir.2002). However, "Rule 12(b)(6) motions are not automatically converted into motions for summary judgment simply because one party submits additional matters in support of or [in] opposition to the motion." Missouri ex rel. Nixon v. Coeur D'Alene Tribe, 164 F.3d 1102, 1107, cert denied 527 U.S. 1039, 119 S.Ct. 2400, 144 L.Ed.2d 799 (1999.). If the court looks to matters of public record, it may consider matters outside the pleadings without converting the motion to dismiss to one for summary judgment. Faibisch v. University of Minnesota, 304 F.3d 797, 802 (8th Cir.2002). Because an "EEOC charge is part of the public record," a motion to dismiss is not converted into a motion for summary judgment by the attachment of an EEOC charge. Id.
In the alternative, on a motion for summary judgment the question before the court is whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1326 (8th Cir.1995). Where unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate. Id.
The burden of establishing the nonexistence of any genuine issue of material fact is on the moving party. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Therefore. if the defendant does not meet its initial burden with respect to an issue, summary judgment must be 1053 denied notwithstanding the absence of opposing affidavits or other evidence. Adickes, *1053 398 U.S. at 159-60, 90 S.Ct. 1598; Cambee's Furniture, Inc. v. Doughboy Recreational Inc., 825 F.2d 167, 173 (8th Cir.1987).
Once the defendant meets its initial burden of showing there is no genuine issue of material fact, the plaintiff may not rest upon the allegations of his or her pleadings, but rather must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. See Fed.R.Civ.P. 56(e); Chism v. W.R. Grace & Co., 158 F.3d 988, 990 (8th Cir.1998). The party opposing the motion must do more than simply show that there is some metaphysical doubt as to the material facts; he or she must show "there is sufficient evidence to support a jury verdict" in his or her favor. Id. Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Facts are viewed in the light most favorable to the non-moving party, "but in order to defeat a motion for summary judgement, the non-movant party cannot simply create a factual dispute; rather, there must be a genuine dispute over those facts that could actually affect the outcome of the lawsuit." Carter v. St. Louis University, 167 F.3d 398, 401 (8th Cir.1999); Ghane v. West, 148 F.3d 979, 981 (8th Cir.1998). In ruling on a motion for summary judgment, a court must not weigh evidence or make credibility determinations. Kenney v. Swift Transp. Co., 347 F.3d 1041, 1044 (8th Cir.2003).
BACKGROUND
Rollins began her employment with Woodmen in June 1989. Rollins' employment was governed by written agreements and, in particular, a contract for employment which contained a clause which stated in part that Rollins agreed to "resolve any and all claims, demands, causes of action, charges and disputes of any nature whatsoever ... including claims of wrongful termination or sex discrimination first internally, then through attempts at mediation, and finally through binding arbitration, should prior efforts prove unsuccessful." Filing No. 37, Attachment 1, Affidavit of Danny Cummins (hereafter "Cummins Aff."). Rollins contends that one of Woodmen's employees sexually harassed her for a period of time from 1994 through February 1999. Rollins was the state manager for Pennsylvania and supervised Ted Guminey, who is the individual Rollins contends harassed her. Rollins alleges that during the aforementioned time period, Guminey tried to undermine, humiliate, and cause Rollins' removal from management by openly voicing resentment for having to work for a woman, grabbing, rubbing, or slapping her on the buttocks, making suggestive kissing and winking gestures towards her, and telling others that she was a lesbian and was involved in a relationship with another co-worker. Rollins reported this

behavior to her supervisors, who she alleges told her to "manage her office better." Filing No. 32, at 3, ¶ 17. Rollins contends that she requested authority to fire Guminey from her supervisors, but was told that "it was time for the `Charging Party' to step down" and that firing Guminey would "only make things worse." Id. at ¶ 18. Rollins further contends that on December 10, 1998, Woodmen placed her on "minimum production requirements," and was told that failure to achieve these standards by March 1999 would result in her termination. Id. at 4, ¶ 28.
1054 Rollins' claims that these standards were so high that she could never have *1054 achieved them with Guminey "acting against her." Id. On February 11, 1999, Woodmen demoted Rollins to Area Manager. Id. at ¶ 29. Rollins contends that her demotion was retaliatory in nature. Rollins also alleges that similarly situated males were not subjected to the same requirements. Id. at ¶ 30. On September 20, 1999, Rollins submitted her allegations of discrimination to the Pennsylvania office of the Equal Employment Opportunity Commission (hereafter "EEOC").
In January 2000, Rollins was offered a transfer position in Texas as an alternative to termination. The position in Texas was similar to the demoted position in Pennsylvania. Id. at 5, ¶ 39. Rollins accepted the position in Texas, but ultimately quit because the position was "intolerable." Id.
DISCUSSION
Woodmen "renews, incorporates, and adopts" its objections to the timeliness of Rollins' charge filed with the EEOC found in Filing No. 10. I direct attention to this court's memorandum and order, Filing No. 48, in which I dismissed Woodmen's same objections, and "renew, incorporate, and adopt" my reasoning for doing so here. I now resolve the remaining issues before me.
A. Intervention
Woodmen objects to the Rollins' intervention on the grounds that it exceeds the scope of the EEOC's amended complaint, Filing No. 1, and impermissibly includes allegations for which no charges were filed. Rollins previously filed a motion for intervention, Filing No. 27, which was granted, Filing No. 29, pursuant to Rule 24(b). Fed.R.Civ.P. 24(b) permits the permissive intervention of parties and provides:
Upon timely application anyone may be permitted to intervene in an action: 1) when the statute of the United States confers a conditional right to intervene; or 2) when an applicant's claim or defense and the main action have a question of law or fact in common.... In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. Fed.R.Civ.P. 24(b).
Under Rule 24(b)(2), an applicant must present "1) an independent ground for subject-matter jurisdiction; 2) a claim of defense that has a question of law or fact in common with the main action, and 3) a timely motion." Nationwide Mut. Ins. Co. v. Nat'l REO Mgmt., Inc., 205 F.R.D. 1, 5 (D.D.C.2000). The Eighth Circuit has held that the "decision to grant or deny a motion for permissive intervention is wholly discretionary." South Dakota ex rel. Barnett v. United States Dep't of Interior, 317 F.3d 783, 787 (8th Cir.2003). "The principal consideration in ruling on a Rule 24(b) motion is whether the proposed intervention would unduly delay or prejudice the adjudication." Barnett, 317 F.3d at 787 (citing United States v. Pitney Bowes, Inc., 25 F.3d 66, 73 (2nd Cir.1994)). As stated earlier in Filing No. 29, Rollins has met the burden of Rule 24(b) by showing an independent ground for jurisdiction, common questions of law and fact, and a timely motion. I find that Rollins' intervention pursuant to Rule 24(b) was proper.
B. Rollins' Intervention Impermissibly Expands the Scope of Litigation
Woodmen objects to Rollins' cross-claim which it alleges impermissibly expands the scope of litigation by introducing new issues. An intervener may not introduce issues which are outside the scope of the issues in the main suit. Thompson v. Deal, 49 F.Supp. 366 (D.D.C.1943). Interveners may only argue issues that have been 1055 raised by the principal parties. Nat'l Ass'n of Regulatory Utility *1055 Com'rs v. Interstate Commerce Commission,

41 F.3d 721, 729 (D.C.Cir.1994). An intervening party may join issues only on a matter that has been brought before the court by another party. Illinois Bell Tel. Co. v. FCC, 911 F.2d 776, 786 (D.D.C.1990). Intervention is not proper if it expands the scope and costs of litigation. Marvel Entertainment Group, Inc. v. Hawaiian Triathlon Corp., 132 F.R.D. 143, 146 (S.D.N.Y.1990). Intervention is restricted to the scope of charges filed with the EEOC. EEOC v. American Tel. & Tel. Co., 365 F.Supp. 1105, 1125 (E.D.Pa.1973). An intervening party is admitted to the proceeding as it stands, and in respect of the pending issues, but is not permitted to enlarge those issues. Vinson v. Washington Gas Light Co., 321 U.S. 489, 498, 64 S.Ct. 731, 88 L.Ed. 883 (1944).
Rollins' cross-claim, Filing No. 32, and the original complaint filed by the EEOC, Filing No. 1, contain thirty-seven identical paragraphs. Rollins' cross-claim includes five additional paragraphs, ¶¶ 38-42, which Woodmen alleges are improper as introducing new issues. Paragraph 37 of both Rollins' and the EEOC's document contain allegations of retaliatory demotion by Woodmen. However, Rollins' cross-claim contains two additional paragraphs, ¶¶ 38 and 39, which merely present additional facts related to the alleged demotion of paragraph 37. I find that such paragraphs do not impermissibly expand the scope of litigation because they, while not contained in the EEOC's complaint, Filing No. 1, merely relate an issue already squarely before the court. However, Rollins' cross-claim contains an additional claim, ¶¶ 41 and 42, of Woodmen's alleged violation of a previous court order forbidding illegal conduct relating to civil rights claims for a five-year period. I find this claim improper. Neither the EEOC nor Rollins has previously made any mention of such a violation, and to add such a claim now would improperly expand the scope of the proceedings before this court.
C. Agreement to Arbitrate
Woodmen essentially moves to compel Rollins to arbitrate her claims on the grounds that she signed an agreement to follow Woodmen's dispute resolution procedures. The plaintiff essentially argues that she has a right to pursue litigation regardless of any agreement because the EEOC has filed a lawsuit on her behalf, and further that requiring Rollins to arbitrate her claims would unfairly undermine the EEOC's right to enforce the law.
The Federal Arbitration Act (hereafter "the Act") creates a strong federal policy favoring arbitration. 9 U.S.C. § 2; Moses H. Cone Memorial Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (9 U.S.C. § 1 declares a "liberal federal policy favoring arbitration agreements."). Doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 25, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). The Act states that arbitration agreements "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. Therefore, the Act "leaves no place for the exercise of discretion by the district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed." Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985).
1056 The United States Supreme Court in Mitsubishi Motors Corp. v. Soler Chrysler/Plymouth, Inc.,[2] established a *1056 two-pronged inquiry for determining enforceability of arbitration agreements governed by the Act. First, the district court must determine whether a valid arbitration agreement covers the dispute between the parties. Id. at 628, 105 S.Ct. 3346. In making this determination the court applies ordinary principles of contract law. AT & T Techs., Inc. v. Communications Workers, 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986).[3] Second, the district court must determine if any independent legal constraint renders the agreement to arbitrate unenforceable. Mitsubishi Motors Corp. v. Soler, 473 U.S. 614, 628, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985).
It is well established that discrimination claims are subject to arbitration. Lyster v. Ryan's Family Steak Houses, Inc., 239 F.3d 943, 945-46 (8th Cir.2001).[4] Specifically, "Title VII claims are subject to individual consensual agreements to arbitrate." Patterson v. Tenet Healthcare, Inc., 113 F.3d 832, 837-38 (8th Cir.1997). "State law governs whether an agreement to arbitrate is valid." Barker v. Golf USA, Inc., 154 F.3d 788, 791 (8th Cir.1998).
In the instant case, Rollins does not dispute that the two elements of Mitsubishi are satisfied: (1) that she signed a agreement to arbitrate any and all disputes with her employer; and (2) that her claims fall under the scope of that agreement. Further, Rollins does not challenge the validity of the agreement which stated that Rollins agreed to "resolve any and all claims, demands, causes of action, charges and disputes of any nature whatsoever ...

including claims of wrongful termination or sex discrimination first internally, then through attempts at mediation, and finally through binding arbitration, should prior efforts prove unsuccessful." Filing No. 37, Cummins Aff.
I find that the language of the arbitration agreement effectuated between Rollins and Woodmen clearly shows that Rollins' claims fall under the perimeters of the arbitration clause. Further, Rollins is required to arbitrate her claims under the state laws of both Pennsylvania and Nebraska. See, e.g., 42 Pa. Const. Stat. Ann. § 7304 (on application of a party to a court to stay arbitration proceedings ... the court may stay an arbitration proceeding on a showing that there is no agreement to arbitrate.); Maleski v. Mutual Fire, Marine and Inland Ins. Co., 534 Pa. 575, 633 A.2d 1143, 1145 (1993) (original court action should be stayed pending arbitration.); Neb.Rev.Stat. § 25-2602.01 (written agreement to arbitrate is enforceable).
I note, however, that because the EEOC is not a party to the arbitration agreement between Rollins and Woodmen, they are not required to arbitrate their case against Woodmen. EEOC v. Waffle House, Inc., 534 U.S. 279, 294, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002). A valid arbitration agreement between an employer and employee does not prevent the EEOC from vindicating the public interest. Id. at 296, 122 S.Ct. 754. Therefore, I will not stay the EEOC's action, but will stay Rollins' action against Woodmen pending the conclusion of the arbitration proceeding.
1057 *1057 THEREFORE, IT IS ORDERED:
1. Woodmen's motion to dismiss and/or summary judgment or stay Rollins' cross-claim as time barred, Filing No. 35, is denied.
2. Woodmen's motion to compel Rollins to arbitrate her claims against Woodmen, Filing No. 35, is granted.
3. Woodmen's motion to dismiss and/or summary judgment or stay Rollins' cross-claims as exceeding the scope of litigation, Filing No. 35, is granted in part. Plaintiff's cross-claim relating to violations of previous court orders, Filing No. 32, at 5, ¶¶ 41-42, is dismissed.
4. Woodmen's motion to stay proceedings as to Rollins' action pending arbitration proceedings, Filing No. 35, is granted, but Woodmen's motion to stay proceedings as to the EEOC action pending arbitration proceedings, Filing No. 35, is denied.
[1] 42 U.S.C.A. § 2000e-2 (1994), Rollins alleges sexual harassment, discrimination on the basis of sex, and retaliatory discharge.
[2] 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)
[3] "Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." Id.See also Daisy Mfg. Co. v. NCR Corp., 29 F.3d 389 (8th Cir.1994).
[4] See also Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 21, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991); Desiderio v. NASD, 191 F.3d 198, 206 (2nd Cir.1999); Blair v. Scott Specialty Gases, 283 F.3d 595 (3rd Cir.1995); Matthews v. Rollins Hudig Hall Co., 72 F.3d 50, 54 (7th Cir.1995); Terry v. Labor Ready, Inc., 2002 WL 1477213 (W.D.Tenn.2002).
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 E.E.O.C. v. Woodmen of World Life Ins. Society and/or..., Not Reported in...

2004 WL 534046 Only the Westlaw citation is currently available.
United States District Court, D. Nebraska.
EQUAL EMPLOYMENT, OPPORTUNITY COMMISSION, Plaintiff, v.
WOODMEN OF THE WORLD LIFE INSURANCE SOCIETY AND/OR OMAHA WOODMEN LIFE INSURANCE SOCIETY, Defendant.
No. 8:03CV165. | March 17, 2004.
Attorneys and Law Firms
Ann L. Fuller, Joseph H. Mitchell, Lynn L. Palma, Nancy A. Weeks, Nelson G. Alston, Denver, CO, Gwendolyn Reams, Office of General Counsel, Washington, DC, for Plaintiff.
Michael B. Kratville, Kratville Law Firm, Omaha, NE, for Intervenor Plaintiff.
Kirk S. Blecha, Scott S. Moore, Lindsay K. Lundholm, Baird, Holm Law Firm, Omaha, NE, for Defendant.
Opinion
MEMORANDUM AND ORDER
BATAILLON, J.
INTRODUCTION
*1 This matter is before the court on defendant’s motion to dismiss and for judgment on the pleadings or in the alternative for summary judgment pursuant to Fed.R.Civ.P. 12(b)(6) and 12(c) and Fed.R.Civ.P. 56. Filing No. 15. Plaintiff filed an amended complaint in this case, Filing No. 10, alleging that the defendant discriminated against her on the basis of gender, sexual harassment and hostile work environment and retaliation in violation of Title VII, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981(a). Defendant contends that the plaintiff has failed to timely file a charge of discrimination with the Equal Employment Opportunity Commission and the Nebraska Employment Commission and thus the case should be dismissed. I have carefully reviewed the record, briefs in support and in opposition, and the relevant law,

and I conclude that the motion to dismiss should be denied.
FACTS
Louella Rollins is a female who began her employment with defendant starting in June of 1989. Rollins contends that defendant’s employees harassed her from 1994 through February 1999, at which time she alleges defendant demoted her. Rollins, the state manager in Pennsylvania, supervised Ted Guminey, who is her alleged harasser. Rollins contends that Guminey tried to have her removed from her management position, grabbed and slapped her buttocks, made kissing gestures towards her, winked at her, told others she was involved in a lesbian relationship, and so forth. Rollins reported this behavior to her field manager, the human resources manager, and her supervisor. According to Rollins, no action was taken and she was told to manage her office. Rollins asked for permission to fire Guminey in September 1998. Thereafter, on February 11, 1999, defendant demoted Rollins.
PROCEDURAL HISTORY
Rollins’ demotion occurred on February 11, 1999. On September 20, 1999, Rollins submitted her allegations of discrimination to the Pennsylvania office of the Equal Employment Opportunity Commission (EEOC), and on October 8, 1999, the Philadelphia office received an intake questionnaire. This was 239 days after the February 11, 1999, demotion. On October 14, 1999, the Philadelphia office determined that the employer, Woodmen of the World Life, was located in the State of Nebraska and transferred the file to the Denver office, which was received on November 2, 1999. On November 8, 1999, the file was assigned to an investigator to draft the formal charge of discrimination, known as Form 5. On November 17, 1999, the EEOC sent a notice of the charge of discrimination to the defendant. On January 6, 2000, Rollins signed the EEOC Charge Form. On January 7, 2000, the EEOC sent the charge to the Nebraska Equal Opportunity Commission (NEOC). On January 14, 2000, the Denver office received the charge of discrimination and on January 28, 2000, forwarded the same to the NEOC, stating that pursuant to the worksharing agreement discussed below, the Denver office would initially process the charge. See Attachment H, Form 212, Charge Transmittal. On February 7, 2000, the NEOC notified the EEOC that it considered the charge to be dismissed as untimely, concluding that the charge was
1

E.E.O.C. v. Woodmen of World Life Ins. Society and/or..., Not Reported in...

outside of the 300–day time required to file a charge of discrimination.
*2 On September 22, 1998, the EEOC and the NEOC entered into a worksharing agreement. Such agreement allows for one to accept filings for and act as agent for the other.
STANDARD OF REVIEW—MOTION TO DISMISS
In reviewing a complaint on a Rule 12(b)(6) motion, the court must consider all of the facts alleged in the complaint as true, and construe the pleadings in a light most favorable to the plaintiff. See, e.g., Brotherhood of Maint. of Way Employees v. BNSF R.R., 270 F.3d 637, 638 (8th Cir.2001). A dismissal is not lightly granted. “A complaint shall not be dismissed for its failure to state a claim upon which relief can be granted unless it appears beyond a reasonable doubt that plaintiff can prove no setof facts in support of a claim entitling him to relief.” Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir.2001). When accepting the facts of the complaint as true, a court will not, however, “blindly accept the legal conclusions drawn by the pleader from the facts.” Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir.1990) (citing Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987)). A dismissal under Rule 12(b)(6) is therefore granted “only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief,” Schmedding v. Tnemec Co., 187 F.3d 862, 864 (8th Cir.1999), such as a missing allegation about an element necessary to obtain relief or an affirmative defense or other bar, Doe v. Hartz, 134 F.3d 1339, 1341 (8th Cir.1998). The court does not determine whether the plaintiff will ultimately prevail, but rather whether the plaintiff is entitled to present evidence in support of his claim. Doe v. Norwest Bank, 909 F.Supp. 668, 670 (D.Minn.1995).
Judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c), is permissible where there are no material issues of fact remaining to be resolved and the movant is entitled to judgment as a matter of law. Faibisch v. University of Minnesota, 304 F.3d 797 (8th Cir.2002). The court can consider matters outside of the pleadings; however, the motion then must be treated as one for summary judgment. Casazza v. Kiser, 313 F.3d 414, 417–18 (8th Cir.2002). However, my review of the public documents, such as the EEOC charge, does not convert this motion to one for summary judgment. Faibisch, at 802–03.

DISCUSSION
a. Filing Requirements Defendant argues that the charge in this case had to be filed with the state agency within 180 days of February 11, 1999. Plaintiff argues that Rollins filed her charge of discrimination on September 20, 1999, which is within the 300–day limit required of the EEOC. Pursuant to § 2000e of Title VII,
a charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred ... except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency ... such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred....
*3 42 U.S.C. § 2000e–5(e)(1). Timely filing is a prerequisite to filing a complaint in federal court. National Railroad Passenger Corp. v. Morgan, 536 U.S. 501 (2001). As stated in National Railroad Passenger Corp.:
In a State that has an entity with the authority to grant or seek relief with respect to the alleged unlawful practice, an employee who initially files a grievance with that agency must file the charge with the EEOC within 300 days of the employment practice; in all other States, the charge must be filed within 180 days. A claim is time barred if it is not within these time limits.
Id. at 109.
A charge of discrimination must be filed with the EEOC within 180 days of the occurrence of the last alleged act of unlawful employment practice, unless the 300–day time limit applies. 42 U.S.C. § 2000e-(5)(e). This is not a jurisdictional requirement, but it is an administrative requirement subject to the doctrines of estoppel, waiver, and equitable tolling. Zipes v. Trans World Airlines, 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982); Jennings v. American Postal Workers Union, 672 F.2d 712, 714–15 (8th Cir.1982). The last act of discrimination occurred on February 11, 1999; Rollins filed her affidavit with the EEOC in Pennsylvania on September 20, 1999,
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E.E.O.C. v. Woodmen of World Life Ins. Society and/or..., Not Reported in...

approximately 218 days, or at least by October 8, 1999, 239 days, after the incident. No separate state charge was filed. Thus, argues the defendant, the EEOC’s complaint must be dismissed. Burds v. Union Pacific Corp., 223 F.3d 814, 818 (8th Cir.2000). However, the NEOC and the EEOC have a workshare agreement. Filing No. 19, Ex. D. The EEOC contends, correctly, that the workshare agreement it has with the state allows it to accept filings on behalf of the state. Said agreement designates each agency as the agent for the other for purposes of receiving and drafting charges. Id. at IIA. Consequently, when the EEOC accepted the filing it did so on behalf of itself and on behalf of the State of Nebraska. Because said filing occurred within the 300 day time limit, I conclude that the claim was timely filed.
b. 10–day Notice Requirement Defendant also argues that plaintiff failed to provide it with notice of the charge within the ten days after the charge was made. 42 U.S.C. § 2000e–5(b). The allegations were received on September 20, 1999, but the

notice was not sent until November 7, 1999. The EEOC argues that the time that elapsed because of transfer to Denver caused a delay in notifying the defendant, but that shortly thereafter defendant received notice. I have carefully reviewed the chronology in this case. I do not find that the EEOC’s failure to comply with the 10–day time provision was willful or in bad faith. See Equal Employment, Opportunity Comm’n v. Burlington Northern, Inc., 644 F.2d 717, 720 (8th Cir.1981). Further, I conclude that the 10–day notice of the charge is not jurisdictional. Id. at 718–19. The explanation of the EEOC coupled with the delay itself is not sufficient for me to dismiss this case. The delay, as I have previously found, was caused in large part by the transfer from the Pennsylvania to the Denver office. Additionally, defendant has made no showing that the delay has prejudiced it.
*4 THEREFORE, IT IS ORDERED that the defendant’s motion to dismiss, Filing No. 15, is denied.
	  

3

 
 E.E.O.C. v. Woodmen of the World Life Ins. Soc., Not Reported in F.Supp.2d (2005)

2005 WL 2180071 Only the Westlaw citation is currently available.
United States District Court, D. Nebraska.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
WOODMEN OF THE WORLD LIFE INSURANCE SOCIETY and/or Omaha Woodmen Life Insurance Society, Defendant.
Louella ROLLINS, Intervenor/Cross–Plaintiff, v.
WOODMEN OF THE WORLD LIFE INSURANCE SOCIETY and/or Omaha Woodmen Life Insurance Society, Cross–Defendant.
No. 8:03CV165. | Aug. 25, 2005.
Attorneys and Law Firms
Ann L. Fuller, Joseph H. Mitchell, Kim R. Rogers, Lynn L. Palma, Nancy A. Weeks, Denver, CO, Gwendolyn Reams, Office of General Counsel, Washington, DC, for Plaintiff.
Kirk S. Blecha, Mary L. Swick, Scott S. Moore, Lindsay K. Lundholm, Baird, Holm Law Firm, Omaha, NE, for Defendant and Cross–Defendant.
Patricia S. Bangert, Bangert & Associates, Lynn L. Palma, Denver, CO, for Intervenor/Cross–Plaintiff.
Opinion
MEMORANDUM AND ORDER
BATAILLON, J.
*1 This matter is before the court on defendant Woodmen of the World’s request to issue a second order requiring intervenor/cross-plaintiff Louella Rollins to arbitrate her claims. Filing No. 99. On or about August 17, 2004, this court ordered Rollins to arbitrate her claims. Filing No. 65. The parties then agreed on an arbitration agreement and chose David Blair as the arbitrator. In May 2005, nine months later, Rollins filed a motion for relief from the memorandum and order of August 17, 2004, and then an amended motion for relief and asked that she not be required to arbitrate. Filing Nos. 76 and 94. These motions are also currently before the court. Rollins is primarily concerned with the costs of the arbitration, as her financial situation has made arbitration unaffordable.

Filing No. 77; Filing No. 79, Ex. 1. Rollins contends that her financial situation is newly discovered evidence under Fed.R.Civ.P. 60 and, therefore, her new circumstances should be considered in accordance with its equitable powers by this court. Defendant Woodman has filed a brief in opposition to the request for reconsideration. Filing No. 83. The EEOC has filed a motion to reply to Rollins which the court will grant. Filing No. 98. The court has reviewed the EEOC’s response and has considered the arguments of the EEOC. Rollins, on August 4, 2005, notified this court that she has now filed bankruptcy in the District of Pennsylvania. Filing No. 105.
In general, the burden is on Rollins to show that the cost of arbitration is prohibitive. Green Tree Financial Corp. v. Randolph, 531 U.S. 79, 91, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000). Rollins must show the amount of fees and expenses which she would incur as well as offer evidence of the inability to pay those fees. Faber v. Menard, Inc., 367 F.3d 1048, 1054 (8th Cir.2004); Musnick v. King Motor Co., 325 F.3d 1255 (11th Cir.2003). Rollins first argues that she did not have legal representation to conduct the arbitration on her behalf, as she had discharged her attorney. Rolllins has also offered an exhibit that shows the arbitrator has already assessed $4,000 for reviewing the briefs and documents submitted by the parties. Third Aff. of Rollins, Ex. 5; that the arbitrator intends to charge $1,850 per day for a period of up to ten days for arbitration; Second Aff. of Rollins, Ex. 1, para. 8, and Ex. 2; that the arbitrator in this case requires the attorney to pay for all of the fees and expenses, in the event they are not paid by the parties. Second Aff. of Rollins, Ex. 1, para. 8; and that Rollins would be required to pay substantial sums for arbitration for discovery, witnesses, expert witnesses and briefing. Rollins argues that the total cost to arbitrate will range from $50,000 to $100,000. She alleges that her income at present is $13,000 and she has about $5,000 in checking and savings accounts. She contends that she would not incur such expenses in the lawsuit, as she is merely an intervenor and the plaintiff EEOC will incur most of those costs. In addition, both Rollins and the EEOC now contend that the bankruptcy just filed by Rollins prohibits her going forward with the arbitration. However, it would not prohibit the EEOC from continuing the lawsuit. Equal Employment Opportunity Comm’n v. Rath Packing Co., 787 F.2d 318, 325–26 (8th Cir.1986).
*2 The EEOC has likewise requested that this court halt arbitration in this case. Because Rollins is merely an intervenor, the EEOC believes, separate and apart from the bankruptcy issues, that the court should not allow arbitration, particularly since it believes that Rollins as an intervenor has no right to independently litigate her own claims. The EEOC now vehemently argues that
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E.E.O.C. v. Woodmen of the World Life Ins. Soc., Not Reported in F.Supp.2d (2005)

arbitration is not appropriate and would hinder the EEOC’s ability to litigate this lawsuit. The court is not pleased with the failure of the EEOC to address this issue when it first arose in 2004. It would have been most helpful to the court had the EEOC submitted its argument to the court in a timely manner. However, after reviewing the law, the court believes that the EEOC is correct. EEOC v. Waffle House, Inc. ., 534 U.S. 279, 291, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002).
After reviewing the most recent submissions provided by counsel, the court concludes that the parties will no longer be required to arbitrate. First, Rollins has made a sufficient showing that she does not have the funds to arbitrate this case, particularly when the costs seem to be spiraling. She will apparently be able to piggyback the discovery and litigation costs that will be paid by the EEOC. Second, the court finds the arguments of the EEOC to be credible and persuasive. The EEOC contends that the structure that allows it to pursue its interest on

behalf of the public will be harmed if intervenors are required to arbitrate their claims. Third, Rollins has now filed for bankruptcy and has listed this lawsuit on her schedules. Consequently, the court will grant Rollins’ motion to relieve her from her duty to arbitrate.
IT IS THEREFORE ORDERED:
1. The motion to respond, Filing No. 98, is granted;
2. Woodmen’s motion to compel arbitration, Filing No. 99, is denied;
3. Rollins’ motions for relief, Filing Nos. 76 and 94, are granted. This case is no longer referred for arbitration and the magistrate is instructed to progress the case.
	  

2

 
 E.E.O.C. v. Woodmen of World Life Ins. Soc., Not Reported in F.Supp.2d (2007)

2007 WL 649298 United States District Court,
D. Nebraska.
EQUAL EMPLOYMENT OPPORTUNITY, COMMISSION, Plaintiff,
Louella Rollins, Plaintiff–Intervenor, v.
WOODMEN OF the WORLD LIFE INSURANCE SOCIETY and/or Omaha Woodmen Life Insurance Society, Defendants.
No. 8:03CV165. | Feb. 1, 2007.
Attorneys and Law Firms
Anjuli Kelotra, Nancy A. Weeks, Rita Byrnes Kittle, Equal Employment Opportunity Commission, Denver, CO, Melvin D. Kennedy, Equal Employment Opportunity Commission, St. Louis, MO, for Plaintiff.
Patricia S. Bangert, Banger Law Firm, Rita Byrnes Kittle, EEOC, Denver, CO, for Plaintiff–Intervenor.
Kirk S. Blecha, Mary L. Swick, Scott S. Moore, Lindsay K. Lundholm, Baird, Holm Law Firm, Omaha, NE, for Defendants.
Opinion

Filing No. 10. The EEOC states Rollins began working for the defendant in June of 1989. Id. ¶ 9. The EEOC alleges the defendant began harassing Rollins in June of 1994, which continued until her demotion in February 1999. Id. ¶ 10. The complaint alleges Rollins supervised a male who openly voiced his resentment over having to work for a woman, sexually harassed her, undermined her authority, and spread rumors about her. Id. ¶¶ 11–15. Although Rollins had complained about the male, when Rollins sought permission to fire the male, she was demoted. Id. ¶¶ 16–19. On October 7, 2003, the court granted Rollins leave to intervene. See Filing No. 29. As part of their Answer to the Amended Complaint, the defendant alleges Rollins was demoted based on her performance and that Rollins failed to mitigate her damages. See Filing No. 64.
The defendant now seeks leave to issue subpoenas to fourteen separate non-party entities to obtain financial, medical and personnel information about Rollins. The defendant initially notified the plaintiffs of the intent to issue the subpoenas pursuant to NECivR 45.1. The plaintiffs object to such issuance of the subpoenas based on relevance and contend the information is confidential. The plaintiffs request that if the defendant’s motion is granted a protective order is put in place to protect Rollins’s privacy. The defendant does not oppose such a protective order. The parties have conferred pursuant to NECivR 7.1(i) and are unable to resolve their dispute.

ORDER
THOMAS D. THALKEN, United States Magistrate Judge.
*1 This matter is before the court on the defendant’s Motion for Leave to Issue Subpoenas Duces Tecum (Filing No. 166). The defendant filed a brief (Filing No. 167) and an index of evidence (Filing No. 168) in support of the motion. The plaintiffs filed a joint response (Filing No. 171). The defendant then filed a reply brief (Filing No. 182) with an attachment.
BACKGROUND
The EEOC filed this action under Title VII of the Civil Rights Act of 1964, as amended, and Title I of the Civil Rights Act of 1991, alleging gender discrimination, sexual harassment, hostile work environment and retaliation by the defendant against Louella Rollins. See

ANALYSIS
Parties may discover any relevant, unprivileged information that is admissible at trial or is reasonably calculated to lead to admissible evidence. See Fed.R.Civ.P. 26(b)(1). Relevancy is to be broadly construed for discovery issues and is not limited to the precise issues set out in the pleadings. Non-party subpoenas are subject to the relevancy requirement as discovery from parties in a case. Pointer v. DART, 417 F.3d 819, 821 (8th Cir.2005). Relevancy, for purposes of discovery, has been defined by the United States Supreme Court as encompassing “any matter that could bear on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). Discovery requests should be considered relevant if there is any possibility that the information sought is relevant to any issue in the case and should ordinarily be allowed, unless it is clear that the information sought can have no possible bearing on the subject matter of the action. See Burlington Ins. Co. v. Okie Dokie, Inc., 368 F.Supp.2d 83, 86 (D.D.C.2005). Typically, the burden is on the party resisting discovery to explain why discovery should be
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E.E.O.C. v. Woodmen of World Life Ins. Soc., Not Reported in F.Supp.2d (2007)

limited given that the Federal Rules allow for broad discovery. See Rubin v. Islamic Republic of Iran, 349 F.Supp.2d 1108, 1111 (N.D.Ill.2004). However, the proponent of discovery must make a threshold showing of relevance before production of information, which does not reasonably bear on the issues in the case, is required. Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir.1993). Mere speculation that information might be useful will not suffice; litigants seeking to compel discovery must describe with a reasonable degree of specificity, the information they hope to obtain and its importance to their case. See Cervantes v. Time, Inc., 464 F.2d 986, 994 (8th Cir.1972). The court may issue a protective order to prevent discovery where “justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense.” Fed.R.Civ.P. 26(c). The District Court “enjoys considerable discretion over discovery matters” and may limit the scope of discovery, if it has a good reason to do so. Burlington Ins., 368 F.Supp.2d at 86; Pointer, 417 F.3d at 821.

argue her buying habits after her termination can have no relevance to the issues in this case. The plaintiffs assert the federal rules do not allow the defendant to fish for potential admissions against interest in this manner. Furthermore, the plaintiffs contend the defendant will obtain discovery related to mitigation of damages through the employer subpoenas.
The court finds the defendant has met its threshold burden of showing the relevance of the sought after information from Rollins’s creditors and financial institutions with whom she has done business. The defendant describes with a reasonable degree of specificity, the information it hopes to obtain and the importance to its case. The plaintiffs have failed to show legal justification for refusal to permit the discovery sought. Accordingly, the defendants’ motion will be granted with regard to the financial information. The plaintiffs’ confidentiality and privacy concerns can be adequately protected through the use of a protective order as described by the parties in their briefs.

A. Financial Documents *2 The defendant seeks leave to subpoena eight of Rollins’s creditors and financial institutions with whom she has done business. The defendant seeks “documents pertaining to any and all loans or credit extended to Rollins including but not limited to financial statements, income statements, asset/debit reports, legal descriptions and valuations of all property owned, credit history checks, any and all other documents maintained by each entity pertaining to business conducted with Rollins.” See Filing No. 167 p. 4–5; Filing No. 168 Exhibit A. The defendant contends the information is relevant to the EEOC’s damages claim, the defendant’s defense of failure to mitigate and for potential admissions against interest. The defendant states Rollins placed any statements she made to various financial institutions and credits at issue in this case by alleging she suffered financial harm resulting in bankruptcy. Specifically, the defendant argues that because the plaintiffs assert Rollins’s demotion caused her to be unable to work her financial situation is at issue in this case. The defendant seeks any contradictory statements or statements against interest which Rollins may have made. Finally, the defendant argues Rollins cannot claim the information is private due to Rollins’s decision to file for bankruptcy. The defendant states it has no interest to use any financial information against Rollins in the bankruptcy proceeding. See Filing No. 182 p. 3–4.
The plaintiffs contend the defendant shows no relevance or legal justification for the financial subpoenas. The plaintiffs contend the only logical reason for these subpoenas is to annoy or harass Rollins or use the information in the bankruptcy proceeding. The plaintiffs

B. Medical Documents The defendant seeks leave to subpoena three of Rollins’s health care providers, including mental health care providers. The defendant seeks “documents pertaining to treatment/services provided to Louella Rollins, including but not be limited to handwritten and typewritten counseling records, progress notes, new patient registration information, diagnostic and all other test results, medication record, correspondence from and to attorneys and insurance companies.” See Filing No. 167 p. 5–6; Filing No. 168 Exhibit A. The defendant contends Rollins’s medical records are highly likely to lead to the discovery of information relevant to the EEOC’s damages claim, the defendant’s allegation that Rollins failed to mitigated her damages, and potential admissions against interest. Additionally, the defendant asserts that the plaintiffs have placed Rollins’s mental health and past health history at issue by seeking emotional distress damages. In further support, the defendant states the plaintiffs designated a psychologist to testify as an expert witness and whose report takes into consideration Rollins’s full physical and mental health history. Accordingly, the defendant contends the plaintiffs cannot claim the physical and mental health history is private or privileged.
*3 The plaintiffs respond that they are willing to agree to production of relevant information for the relevant period. Specifically, the plaintiffs seek to limit the subpoenas to health care providers who saw Rollins either during her employment with the defendant or after, and limit the information to that associated with Rollins’s employment. The plaintiffs seek to exclude production from Woodward & Associates who saw Rollins for gynecological
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E.E.O.C. v. Woodmen of World Life Ins. Soc., Not Reported in F.Supp.2d (2007)

examinations and related gynecological problems.
“If a plaintiff by seeking damages for emotional distress places his or her psychological state in issue, the defendant is entitled to discover any records of that state.” Doe v. Oberweis Dairy, 456 F.3d 704, 718 (7th Cir.2006) (affirming discovery of psychiatric records). This is because, “similar to attorney-client privilege that can be waived when the client places the attorney’s representation at issue, a plaintiff waives the psychotherapist-patient privilege by placing his or her medical condition at issue.” Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir.2000). However, an “emotional distress claim does not, however, give Defendants an unfettered right to pursue discovery into [the plaintiff’s] entire medical history.” Manessis v. New York City Dept. of Transp., No. 02 CIV. 359SASDF, 2002 WL 31115032, at *2 (S.D.N.Y. Sept. 24, 2002) (citing cases) (noting waiver of privilege “does not permit discovery of information involving unrelated illnesses and treatment”). The plaintiffs do not dispute that Rollins’s mental health is at issue this case. However, the plaintiffs seek to limit discovery in time and scope.
The court will not limit the discovery to the period beginning with Rollins’s employment with the defendant. The defendant is entitled to discovery regarding Rollins’s mental health prior to her employment to defend against the plaintiffs’ assertion that the defendant’s conduct caused emotional distress at or after the time of employment. The court agrees, information in the records may shed light on other contributing causes of Rollins’ claims of emotional distress. For the same reason, discovery will not be limited to information associated with Rollins’s employment. The court finds, however, the defendant has failed to make the threshold showing at this time of any relevance to this case regarding Rollins’s gynecological history. Therefore, the court will limit discovery by denying leave to issue a subpoena for medical history or information from Woodward & Associates who saw Rollins for gynecological examinations and related gynecological problems, without limiting the remaining health care providers’ subpoenas. If discovery from Rollins’s mental health providers suggests gynecological problems are relevant to issues in this case, the court will reconsider this ruling. The plaintiffs’ confidentiality and privacy concerns can be adequately protected through the use of a protective order as described by the parties in their briefs.
C. Personnel Information *4 The defendant seeks leave to subpoena personnel records from three of Rollins’s current and former employers, for whom Rollins worked subsequent to her employment with the defendant. The defendant seeks “documents pertaining to the employment of Louella M.

Rollins including but not limited to Louella Rollins’ human resource file, contract file, any and all performance evaluations or reviews, documents showing dates of employment and salary history, and any and all EEO Complaints made by Louella Rollins.” See Filing No. 167 p. 3; Filing No. 168 Exhibit A. The defendant contends the information sought is highly likely to lead to discoverable information relevant to the EEOC’s damages claim, the defendant’s defense that Rollins failed to mitigate her damages, and the defendant’s defense that Rollins’s demotion was occasioned by her poor performance. More specifically, the defendant argues Rollins has placed her work history at issue by alleging she suffered damages upon leaving the defendant’s employ. The defendant contends Rollins failed to mitigate her damages by failing to continue work which would pay the same or more than her position with the defendant. Additionally, the defendant contends any statements Rollins made to subsequent employers regarding her employment with the defendant “in resumes, job applications, and job interview notes could be relevant to this litigation and are the most likely source for potential admissions against Rollins’ interest with respect to this suit.” See Filing No. 167 p. 4.
The plaintiffs contend Rollins’s employment information since she left the employ of the defendant is not relevant to the claims or defenses in this matter. The plaintiffs state the defendant has already been provided with tax and other financial information showing her earnings. Therefore, such information from current and former employers would be cumulative. The plaintiffs argue that in terms of mitigation, the only relevant information is whether Rollins left subsequent employment without an adequate reason. Based on that relevance, the plaintiffs “agree to subpoenas for records from companies with whom Rollins worked and from whom she separated, but only to the extent that Defendant sought information relevant to her dates of employment and the reasons for her departure.” See Filing No. 171 p. 5. The plaintiffs disagree her employment records would be relevant to the defense that Rollins was demoted based on poor performance. The plaintiffs contend the subsequent job would have to be identical to her old job for such a comparison. Finally, the plaintiffs contend that the speculative search for statements against interest exceeds the purpose of discovery making the subpoenas abusive.
The defendant relies primarily on an unreported case, Walker v. Northwest Airlines Corp., No. Civ. 00–2604, 2002 WL 32539635 (D.Minn. Oct. 28, 2002). In Walker, the plaintiff alleged termination from employment based on racial discrimination, but the defendant claimed the plaintiff was terminated for cause. Walker, 2002 WL 32539635 at *1. During discovery, the plaintiff refused to sign authorizations for his wage and employment records without narrowing the scope of production by time and scope. Id. at *2. The Walker court concluded the
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E.E.O.C. v. Woodmen of World Life Ins. Soc., Not Reported in F.Supp.2d (2007)

authorization was not overly broad or unnecessarily invasive of the plaintiff’s privacy and that
*5 both past and post-termination wage and employments records are highly relevant to the issue of mitigation and to the computation of damages in this case. Third, other types of employment information such as disciplinary records, resumes, and applications may not be admissible at trial, but are reasonably calculated to lead to admissible evidence.
Id.
In opposition, the plaintiffs rely on McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995) for the proposition that after-acquired evidence of applicant wrongdoing does not constitute a defense to liability. However, the plaintiff’s reliance on McKennon is misplaced. The McKennon Court addressed whether a defendant could avoid liability for discriminatory discharge when evidence was discovered after the plaintiff’s termination, which would have resulted in the plaintiff’s termination from employment had the defendant known about it earlier. McKennon has no application here where the defendant seeks information related only to post-employment records.
The court finds the rationale in Walker persuasive and applicable. The court finds that although the plaintiffs have provided certain financial information, the employment records sought are not cumulative as they may contain additional information. Further, the

employment records may contain information relevant to Rollins’s mitigation of damages. Additionally, Rollins’s general job performance records reasonably bear on the defendant’s stated reason for Rollins’s demotion and is reasonably likely to lead to admissible evidence. The plaintiffs’ confidentiality and privacy concerns can be adequately protected through the use of a protective order as described by the parties in their briefs. Upon consideration,
IT IS ORDERED:
1. The defendant’s Motion for Leave to Issue Subpoenas Duces Tecum (Filing No. 166) is granted in part and denied in part. The defendant’s motion is denied with respect to the subpoena for Woodward & Associates, and granted in all other respects.
2. The parties shall confer regarding a proposed protective order to protect Rollins’s sensitive medical and employment records, prior to the issuance of the subpoenas at issue. The parties may submit the proposed protective order to the undersigned magistrate judge for review and signature. Alternatively, if no agreement can be reached, the plaintiffs shall file a motion for protective order, attaching their proposed order, and filing a brief outlining their position. The defendant will have time to respond pursuant to NECivR 7.1.
Parallel Citations
99 Fair Empl.Prac.Cas. (BNA) 1319
	  

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CLOSED, TRIAL-OMAHA
U.S. District Court District of Nebraska (8 Omaha) CIVIL DOCKET FOR CASE #: 8:03-cv-00165-JFB-TDT

Equal Employment Opportunity Commission v. Woodmen of the World Life Insurance Society Assigned to: Chief Judge Joseph F. Bataillon Referred to: Magistrate Judge Thomas D. Thalken Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 04/29/2003 Date Terminated: 07/24/2007 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Anjuli Kelotra EEOC - DENVER 303 East 17th Avenue Suite 510 Denver, CO 80203 (303) 866-1378 Fax: (303) 866-1375 Email: anjuli_kelotra@hotmail.com TERMINATED: 03/16/2007

Ann L. Fuller U.S. EQUAL EMPLOYMENT OPPORTUNIY COMMISSION 303 East 17th Avenue Suite 510 Denver, CO 80203 (303) 866-1319 Fax: (303) 866-1375 Email: Ann.Fuller@eeoc.gov TERMINATED: 12/05/2006

Gwendolyn Reams EEOC - WASHINGTON Office of General Counsel 1801 L Street, N.W. Washington, DC 20507 (303) 866-1300 Fax: 866-1375 TERMINATED: 08/14/2006

Joseph H. Mitchell EEOC - DALLAS 207 South Houston Street

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3rd Floor Dallas, TX 75202 (303) 866-1370 Fax: (303) 866-1373 Email: JOSEPH.MITCHELL@EEOC.GOV TERMINATED: 12/04/2006
Kim R. Rogers EEOC - DENVER 303 East 17th Avenue Suite 510 Denver, CO 80203 (303) 866-1361 Fax: (303) 866-1375 Email: Kim.Rogers@eeoc.gov TERMINATED: 12/05/2006
Lynn L. Palma EQUAL EMPLOYMENT OPPORTUNITY COMMISSION DENVER 303 East 17th Avenue Suite 510 Denver, CO 80203 (303) 866-1374 Fax: (303) 866-1375 Email: Lynn.Palma@eeoc.gov TERMINATED: 12/05/2006
Melvin D. Kennedy EQUAL EMPLOYMENT OPPORTUNITY COMMISSION MISSOURI 1222 Spruce Street Room 8.100 St. Louis, MO 63103 (314) 539-7915 Fax: (314) 539-7895 Email: Melvin.Kennedy@eeoc.gov ATTORNEY TO BE NOTICED
Nancy A. Weeks EEOC - DENVER 303 East 17th Avenue Suite 510 Denver, CO 80203 (303) 866-1947 Fax: (303) 866-1375 Email: Nancy.Weeks@eeoc.gov
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District of Nebraska
V. Intervenor Plaintiff Lou Rollins
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ATTORNEY TO BE NOTICED
Nelson G. Alston U.S. EQUAL EMPLOYMENT OPPORUNITY COMMISSION 303 East 17th Avenue Suite 510 Denver, CO 80203 (303) 866-1378 Fax: (303) 866-1375 Email: Nelson.Alston@eeoc.gov TERMINATED: 01/12/2004
Rita Byrnes Kittle EEOC - DENVER 303 East 17th Avenue Suite 510 Denver, CO 80203 (303) 866-1347 Fax: (303) 866-1375 Email: Rita.Kittle@eeoc.gov ATTORNEY TO BE NOTICED
represented by Lynn L. Palma (See above for address) TERMINATED: 12/05/2006
Melvin D. Kennedy (See above for address) ATTORNEY TO BE NOTICED
Michael B. Kratville KRATVILLE LAW FIRM 11920 Burt Street Suite 145 Omaha, NE 68154 (402) 391-5153 Fax: (402) 393-0629 Email: KRATVILLELAW@YAHOO.COM TERMINATED: 05/16/2005
Patricia S. Bangert BANGER LAW FIRM Address Updated 10/3/2006 3773 Cherry Creek Drive North
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District of Nebraska
V. Defendant Woodmen of the World Life Insurance Society a Nebraska Corporation also known as Omaha Woodmen Life Insurance Society
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Suite 575 Denver, CO 80209 (303) 228-2175 Fax: (303) 399-6480 Email: trishbang@aol.com ATTORNEY TO BE NOTICED
Rita Byrnes Kittle (See above for address) ATTORNEY TO BE NOTICED
represented by Kirk S. Blecha BAIRD, HOLM LAW FIRM 1500 Woodmen Tower Omaha, NE 68102-2068 (402) 636-8208 Fax: (402) 344-0588 Email: kblecha@bairdholm.com ATTORNEY TO BE NOTICED
Mary L. Swick BAIRD, HOLM LAW FIRM 1500 Woodmen Tower Omaha, NE 68102-2068 (402) 344-0500 Fax: (402) 344-0588 Email: mswick@bairdholm.com ATTORNEY TO BE NOTICED
Melvin D. Kennedy (See above for address) ATTORNEY TO BE NOTICED
Scott S. Moore BAIRD, HOLM LAW FIRM 1500 Woodmen Tower Omaha, NE 68102-2068 (402) 344-0500 Fax: (402) 231-8552 Email: smoore@bairdholm.com ATTORNEY TO BE NOTICED
Lindsay K. Lundholm BAIRD, HOLM LAW FIRM 1500 Woodmen Tower Omaha, NE 68102-2068
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District of Nebraska
Interested Party U.S. Bankruptcy Court
Cross Claimant Lou Rollins
V. Cross Defendant Woodmen of the World Life Insurance Society a Nebraska Corporation
Cross Claimant Lou Rollins
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(402) 636-8240 Fax: (402) 344-0588 Email: llundholm@bairdholm.com ATTORNEY TO BE NOTICED
represented by U.S. Bankruptcy Clerk U.S. BANKRUPTCY COURT - OMAHA Roman L. Hruska Courthouse 111 South 18th Plaza Suite 1125 Omaha, NE 68102 (402) 661-7444 Email: ref-DC-Omaha@neb.uscourts.gov ATTORNEY TO BE NOTICED
represented by Michael B. Kratville (See above for address) TERMINATED: 05/16/2005
Patricia S. Bangert (See above for address) ATTORNEY TO BE NOTICED
represented by Kirk S. Blecha (See above for address) ATTORNEY TO BE NOTICED
Lindsay K. Lundholm (See above for address) ATTORNEY TO BE NOTICED
Mary L. Swick (See above for address) ATTORNEY TO BE NOTICED
Scott S. Moore (See above for address) ATTORNEY TO BE NOTICED
represented by Michael B. Kratville (See above for address) TERMINATED: 05/16/2005
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District of Nebraska

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V.
Cross Defendant
Woodmen of the World Life Insurance Society a Nebraska Corporation

Patricia S. Bangert (See above for address) ATTORNEY TO BE NOTICED
represented by Kirk S. Blecha (See above for address) ATTORNEY TO BE NOTICED
Lindsay K. Lundholm (See above for address) ATTORNEY TO BE NOTICED
Mary L. Swick (See above for address) ATTORNEY TO BE NOTICED
Scott S. Moore (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/29/2003
04/29/2003 04/30/2003
04/30/2003
04/30/2003

# Docket Text
1 COMPLAINT with Jury Demand against Woodmen of the World Life Insurance Society No Summons issued by Attorney Nelson G. Alston on behalf of Equal Employment Opportunity Commission (Attachments: # 1 E-mail to Clerk)(MKR, ) (Entered: 04/30/2003)
2 CIVIL COVER SHEET (MKR, ) (Entered: 04/30/2003)
3 ATTORNEY LETTER by Clerk that Attorney Ann L. Fuller has not registered for admittance to practice and registered for the system. If the requested action is not taken within fifteen (15) days of the date of this letter, this matter will be referred to the assigned magistrate judge for the entry of a show cause order. (MKR, ) (Entered: 04/30/2003)
4 ATTORNEY LETTER by Clerk that Attorney Joseph H. Mitchell has not registered for admittance to practice and registered for the system. If the requested action is not taken within fifteen (15) days of the date of this letter, this matter will be referred to the assigned magistrate judge for the entry of a show cause order. (MKR, ) (Entered: 04/30/2003)
5 ATTORNEY LETTER by Clerk that Attorney Lynn L. Palmer has not registered for admittance to practice and registered for the system. If the requested action is not taken within fifteen (15) days of the date of this letter, this matter will be referred to the assigned magistrate judge for the entry of a show cause order. (MKR, ) (Entered: 04/30/2003)

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District of Nebraska
04/30/2003
05/20/2003 05/20/2003 05/21/2003 05/22/2003 06/02/2003 07/07/2003 07/07/2003 07/10/2003 08/05/2003 08/05/2003 08/05/2003

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6 ATTORNEY LETTER by Clerk that Attorney Gwendolyn Reams has not registered for admittance to practice and registered for the system. If the requested action is not taken within fifteen (15) days of the date of this letter, this matter will be referred to the assigned magistrate judge for the entry of a show cause order. (MKR, ) (Entered: 04/30/2003)
7 STRICKEN - AMENDED COMPLAINT with jury demand against Defendant Woodmen of the World Life Insurance Society, by Attorney Nelson G. Alston on behalf of Equal Employment Opportunity Commission (Alston, Nelson) Modified on 5/21/2003 (KMG) - document is stricken per order 9 . (Entered: 05/20/2003)
8 WAIVER OF SERVICE Returned Executed upon 5/12/03 defendant Woodmen of the World Life Insurance Society. Waiver sent on 5/6/2003. (Alston, Nelson) (Entered: 05/20/2003)
9 ORDER striking document 7 because the incorrect PDF document is attached. The plaintiff shall re-file the amended complaint. Signed by Magistrate Judge Thomas D. Thalken on 5/21/2003. (KMG) (Entered: 05/21/2003)
10 AMENDED COMPLAINT with Jury Demand against Defendant Woodmen of the World Life Insurance Society, by Attorney Nelson G. Alston on behalf of Equal Employment Opportunity Commission (Alston, Nelson) (Entered: 05/22/2003)
11 APPLICATION/ORDER admitting pro hac vice Attorney Ann L. Fuller for Plaintiff Equal Employment Opportunity Commission. Signed by Deputy Clerk on 6/2/2003. (DKM, ) (Entered: 06/03/2003)
12 MOTION for Extension of Time to File Answer or Other Responsive Pleading by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society (Lundholm, Lindsay) (Entered: 07/07/2003)
13 ORDER granting 12 Motion for Extension of Time to Answer. Answer Deadline set for 8/6/03, as to Defendant Woodmen of the World Life Insurance Society. Signed by Deputy Clerk on 7/7/2003. (JSF) (Entered: 07/07/2003)
14 SCHEDULING PACKET; Rule 26 Meeting Report Deadline set for 9/3/2003. Signed by Magistrate Judge Thomas D. Thalken on 7/10/2003. (PAV, ) (Entered: 07/10/2003)
15 MOTION to Dismiss or in the alternative MOTION for Summary Judgment by Attorney Scott S. Moore on behalf of Defendant Woodmen of the World Life Insurance Society (Moore, Scott) (Entered: 08/05/2003)
16 BRIEF In Support Motion to Dismiss 15 or In the Alternative Motion for Summary Judgment by Attorney Scott S. Moore on behalf of Defendant Woodmen of the World Life Insurance Society (Moore, Scott) (Entered: 08/05/2003)
17 INDEX In Support of Motion to Dismiss 15 or In the Alternative Motion for Summary Judgment by Attorney Scott S. Moore on behalf of Defendant Woodmen of the World Life Insurance Society (Moore, Scott) (Entered: 08/05/2003)

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District of Nebraska
08/22/2003 08/22/2003 09/02/2003 09/05/2003 09/05/2003 09/05/2003 09/08/2003 09/09/2003 09/15/2003 10/01/2003 10/01/2003 10/07/2003
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18 BRIEF In Opposition to Motion to Dismiss 15 by Attorney Nelson G. Alston on behalf of Plaintiff Equal Employment Opportunity Commission (Alston, Nelson) (Entered: 08/22/2003)
19 AFFIDAVIT of Nelson Alston regarding MOTION to Dismiss or in the alternative MOTION for Summary Judgment 15 by Attorney Nelson G. Alston on behalf of Plaintiff Equal Employment Opportunity Commission (Attachments: # 1)(Alston, Nelson) (Entered: 08/22/2003)
20 REPORT of Rule 26(f) Planning Meeting by Attorney Nelson Alston on behalf of the EEOC and by Attorney Scott S. Moore on behalf of Defendant Woodmen of the World Life Insurance Society (Moore, Scott) (Entered: 09/02/2003)
21 REPORT of Rule 26(f) Planning Meeting AMENDED by Attorney Nelson G. Alston on behalf of Plaintiff Equal Employment Opportunity Commission (Alston, Nelson) (Entered: 09/05/2003)
22 MOTION for Leave to Submit a Reply Brief by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society (Lundholm, Lindsay) (Entered: 09/05/2003)
23 REPLY BRIEF In Support of Motion to Dismiss 15 or in the Alternative Motion for Summary Judgment by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society (Lundholm, Lindsay) (Entered: 09/05/2003)
24 ORDER granting 22 Defendant's Motion for Leave regarding 15 Motion to Dismiss; REPLY BRIEF 23 IS DEEMED FILED INSTANTER. Signed by Judge Joseph F. Bataillon on 9/8/2003. (SMS, ) (Entered: 09/08/2003)
25 ORDER SETTING SCHEDULE FOR INITIAL PROGRESSION OF A CIVIL CASE; Planning Conference set for 11/10/2003 at 02:30 PM before Magistrate Judge Thomas D. Thalken. Signed by Magistrate Judge Thomas D. Thalken on 9/9/2003. (PAV, ) (Entered: 09/09/2003)
26 APPLICATION/ORDER admitting pro hac vice Attorney Lynn L. Palma for Plaintiff Equal Employment Opportunity Commission. Signed by Deputy Clerk on 9/15/2003. (JSF) (Entered: 09/15/2003)
27 MOTION to Intervene by Attorney Michael B. Kratville on behalf of Intervenor Lou Rollins (MKR, ) (Entered: 10/01/2003)
28 STRICKEN - CROSSCLAIM against Woodmen of the World Life Insurance Society , by Attorney Michael B. Kratville on behalf of Lou Rollins (MKR, ) Modified on 10/7/2003 indicate stricken per order 29 (JAE, ). (Entered: 10/01/2003)
29 ORDER granting 27 Motion to Intervene. Louella Rollins shall have to on or before October 16, 2003, to file herintervention complaint. The Clerk of Court is directed to strike Filing No. 28, the movant's documenttitled "Cross-claim." It was erroneously filed as a pleading rather than as an attachment to themotion to intervene. The Clerk of Court is directed to provide a copy of this order to the movanteither through the United States Postal Service or electronic means. Signed by Magistrate Judge Thomas D. Thalken on 10/7/2003. (JAE, ) (Entered:
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District of Nebraska
10/07/2003
10/08/2003 10/08/2003 10/16/2003 11/03/2003 11/04/2003 11/04/2003 11/04/2003 11/04/2003 11/07/2003
12/01/2003
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10/07/2003)
NOTICE of Docket Text Modification by Deputy Clerk regarding Crossclaim 28 . STRICKEN - CROSSCLAIM against Woodmen of the World Life Insurance Society, by Attorney Michael B. Kratville on behalf of Lou Rollins (MKR, ) Modified on 10/7/2003 indicate stricken per order 29 (JAE, ) (Entered: 10/07/2003)
30 Mail Returned as Undeliverable addressed to nweeks@eeoc.gov regarding Order 29 . NOT RESENT: attorney's system down; filing faxed to 303-866-1375 per request.. (JAE, ) (Entered: 10/10/2003)
31 Mail Returned as Undeliverable addressed to lpalma@eeoc.gov regarding Order 29 . Mail/E-mail resent to NOT RESENT: attorney's system down; filing faxed to 303-866-1375 per request. (JAE, ) (Entered: 10/10/2003)
32 CROSSCLAIM against Woodmen of the World Life Insurance Society , by Attorney Michael B. Kratville on behalf of Lou Rollins.(ADB) (Entered: 10/16/2003)
33 NOTICE of Change of Address e-mail address of Nancy A Week and Lynn Palma by Attorney Nelson G. Alston on behalf of Plaintiff Equal Employment Opportunity Commission (Alston, Nelson) (Entered: 11/03/2003)
34 MOTION to Amend Order Setting Schedule for Initial Progression of a Civil Case 25 by Attorney Nelson G. Alston on behalf of Plaintiff Equal Employment Opportunity Commission (Attachments: # 1 Text of Proposed Order Order by Thalken)(Alston, Nelson) (Entered: 11/04/2003)
35 MOTION to Dismiss Cross-Claim and/or for Summary Judgment or Stay by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society (Lundholm, Lindsay) (Entered: 11/04/2003)
36 BRIEF In Support of Motion to Dismiss 35 Cross-Claim by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society (Lundholm, Lindsay) (Entered: 11/04/2003)
37 INDEX In Support of Motion to Dismiss 35 Cross-Claim by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Lundholm, Lindsay) (Entered: 11/04/2003)
38 ORDER granting 34 the plaintiff's unopposed motion to amend the progression order; the planning conference scheduled for November 10, 2003 is cancelled; discovery in this case is stayed pending the resolution of the defendant's pending motion to dismiss 15 ; the parties shall have 20 days from the date an order is filed on the currently pending motion to dismiss 15 in which to reschedule a planning conference with the court, if necessary; counsel for the plaintiff shall contact the court within such time period to schedule the planning conference. Signed by Magistrate Judge Thomas D. Thalken on 11/7/2003. (MKR, ) (Entered: 11/07/2003)
39 BRIEF Opposition to Motion to Dismiss or for Summary Judgment or Stay Motion to Dismiss 35 by Attorney Michael B. Kratville on behalf of Intervenor
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District of Nebraska
12/01/2003 12/01/2003 12/12/2003 12/12/2003 12/16/2003 01/09/2004 01/12/2004 01/14/2004
03/17/2004 03/25/2004 03/25/2004

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Plaintiff Lou Rollins, Cross Claimants Lou Rollins, Lou Rollins (Kratville, Michael) (Entered: 12/01/2003)
40 INDEX Opposition to Motion to Dismiss or for Summary Judgment or to Stay Motion to Dismiss 35 by Attorney Michael B. Kratville on behalf of Intervenor Plaintiff Lou Rollins, Cross Claimants Lou Rollins, Lou Rollins (Kratville, Michael) (Entered: 12/01/2003)
41 AFFIDAVIT of Louella Rollins regarding MOTION to Dismiss Cross-Claim and/or for Summary Judgment or Stay 35 by Attorney Michael B. Kratville on behalf of Intervenor Plaintiff Lou Rollins, Cross Claimants Lou Rollins, Lou Rollins (Kratville, Michael) (Entered: 12/01/2003)
42 MOTION for Leave to file reply brief by Attorney Scott S. Moore on behalf of Defendant Woodmen of the World Life Insurance Society (Moore, Scott) (Entered: 12/12/2003)
43 BRIEF In Support of Motion to Dismiss in Reply by Attorney Scott S. Moore on behalf of Defendant Woodmen of the World Life Insurance Society (Moore, Scott) (Entered: 12/12/2003)
44 ORDER granting 42 Motion for Leave to File Reply Brief regarding 15 Motion to Dismiss or for Summary Judgment; REPLY BRIEF 43 DEEMED FILED INSTANTER. Signed by Judge Joseph F. Bataillon on 12/16/2003. (SMS, ) (Entered: 12/16/2003)
45 NOTICE of Change of Counsel by Attorney Nancy A. Weeks on behalf of Plaintiff Equal Employment Opportunity Commission (Weeks, Nancy) (Entered: 01/09/2004)
46 MOTION to Withdraw as Attorney by Attorney Nancy A. Weeks on behalf of Plaintiff Equal Employment Opportunity Commission (Weeks, Nancy) (Entered: 01/12/2004)
47 ORDER granting 46 Motion to Withdraw Nelson G. Alston as Attorney for plaintiff. Withdrawing counsel shall comply with NELR 3.3(d). The Clerk of Court shall stop all electronic notices to Mr. Alston regarding thiscase. Signed by Magistrate Judge Thomas D. Thalken on 1/14/2004. (JAE, ) (Entered: 01/14/2004)
48 MEMORANDUM AND ORDER denying 15 Defendant's Motion to Dismiss or in the Alternative for Summary Judgment. Signed by Judge Joseph F. Bataillon on 3/17/2004. (SMS, ) (Entered: 03/17/2004)
49 MOTION to Amend Order on Motion to Dismiss 48 for 28 U.S.C. 1292(b) Certification for Interlocutory Appeal and for Stay by Attorney Kirk S. Blecha on behalf of Defendant Woodmen of the World Life Insurance Society (Blecha, Kirk) (Entered: 03/25/2004)
50 BRIEF In Support of Motion to Amend 49 for 28 U.S.C. 1292 Certification for interlocutory Appeal and for Stay by Attorney Kirk S. Blecha on behalf of Defendant Woodmen of the World Life Insurance Society (Blecha, Kirk) (Entered: 03/25/2004)

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District of Nebraska
03/25/2004 03/26/2004
04/08/2004 04/09/2004 04/13/2004 04/13/2004 04/14/2004 04/15/2004 04/27/2004 04/27/2004 05/25/2004 05/27/2004
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51 MOTION for Extension of Time to File Answer or Otherwise Plead by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society (Lundholm, Lindsay) (Entered: 03/25/2004)
52 ORDER granting 51 Motion for Extension of Time. Defendant Woodmen of the World Life Insurance Society shall have ten days after the court's decision on the defendant'spending motion to amend 49 , to file an answer or otherwise respond to theplaintiff's complaint. Signed by Magistrate Judge Thomas D. Thalken on 3/26/2004. (JAE, ) (Entered: 03/26/2004)
53 BRIEF opposition Motion to Amend 49 Def's Motion for Certification for Interlocutory Appeal and for Stay Pending Appeal by Attorney Lynn L. Palma on behalf of Plaintiff Equal Employment Opportunity Commission (Palma, Lynn) (Entered: 04/08/2004)
54 NOTICE regarding MOTION to Amend Order on Motion to Dismiss 48 for 28 U.S.C. 1292(b) Certification for Interlocutory Appeal and for Stay 49 by Attorney Michael B. Kratville on behalf of Intervenor Plaintiff Lou Rollins, Cross Claimants Lou Rollins, Lou Rollins (Kratville, Michael) (Entered: 04/09/2004)
55 MOTION for Leave to Submit a Reply by Attorney Kirk S. Blecha on behalf of Defendant Woodmen of the World Life Insurance Society (Blecha, Kirk) (Entered: 04/13/2004)
56 REPLY BRIEF In Support of Motion to Amend 49 , Motion for Leave 55 by Attorney Kirk S. Blecha on behalf of Defendant Woodmen of the World Life Insurance Society (Blecha, Kirk) (Entered: 04/13/2004)
57 ORDER granting 55 Motion for Leave to File Reply Brief regarding 49 Motion to Amend Order on Motion to Dismiss; REPLY BRIEF 56 IS DEEMED FILED INSTANTER. Signed by Judge Joseph F. Bataillon on 4/14/2004. (SMS, ) (Entered: 04/14/2004)
58 ORDER that the defendant's motion to certify an immediate appeal of an interlocutory decision, 49 is granted. This case shall be stayed pending appeal. Status Report due by 10/12/2004. Signed by Judge Joseph F. Bataillon on 4/15/2004. (JAE, ) (Entered: 04/15/2004)
59 Letter by Clerk that the petition for permission to appeal has been filed under case number 04-8004. If the petition is granted, the court's docket fee of $255.00 is to be tendered. The district clerk is to forward to certified copies of the docket sheet. (ADB) (Entered: 04/27/2004)
60 Transmittal Letter to Clerk, USCA-8th Circuit of two certified copies of docket sheet. (ADB) (Entered: 04/27/2004)
61 COPY of Order (JUDGMENT) from USCA - 8th Circuit that the petition to take an interlocutory appeal pursuant to 28 U.S.C.section 1292(b) has been considered and is denied. (Attachments: # 1)(DKM, ) (Entered: 05/26/2004)
62 ORDER The stay imposed pending appeal, Filing No. 58 is hereby lifted. Defendant shall have ten days from the date of this order to answer orotherwise respond to plaintiff's complaint. Defendant's motion to dismiss intervenor/cross-plaintiff's cross-claim, FilingNo. 35 , is deemed pending this
3/24/2008 5:08 PM

District of Nebraska
05/28/2004 06/07/2004 08/17/2004 09/07/2004 09/08/2004 09/20/2004 11/22/2004 03/01/2005 03/01/2005
03/03/2005
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date.Discovery in this case is stayed pending the resolution of the defendant'spending motion to dismiss, Filing No. 35 .The parties shall have twenty (20) days from the date an order is filed onthe currently pending motion to dismiss, Filing No. 35 , in which to reschedulea planning conference with the court, if necessary. Counsel for the plaintiffshall contact Magistrate Judge Thalken within such time period to schedulethe planning conference. Signed by Judge Joseph F. Bataillon on 5/27/2004. (DKM, ) (Entered: 05/27/2004)
63 MANDATE/JUDGMENT from USCA - 8th Circuit (04-8004) that the petition to take an interlocutory appeal pursuant to 28 USC section 1292(b) has been considered and is denied. Mandate shall issue forthwith. (Attachments: # 1)(JAE, ) (Entered: 06/01/2004)
64 ANSWER to Amended Complaint by Attorney Kirk S. Blecha on behalf of Defendant Woodmen of the World Life Insurance Society (Blecha, Kirk) (Entered: 06/07/2004)
65 MEMORANDUM AND ORDER denying 35 motion to dismiss; granting motion to compel arbitration; dismissing plaintiff's cross-claim. Signed by Judge Joseph F. Bataillon on 8/17/2004. (SMS, ) (Entered: 08/17/2004)
66 REPORT of Rule 26(f) Planning Meeting Second Amended by Attorney Lynn L. Palma on behalf of Plaintiff Equal Employment Opportunity Commission (Palma, Lynn) (Entered: 09/07/2004)
67 REPORT of Rule 26(f) Planning Meeting (Revised Version of Second Amended) by Attorney Kirk S. Blecha on behalf of Defendant Woodmen of the World Life Insurance Society (Blecha, Kirk) (Entered: 09/08/2004)
68 ORDER SETTING SCHEDULE FOR INITIAL PROGRESSION OF A CIVIL CASE; Planning Conference set for 3/21/2005 at 03:00 PM before Magistrate Judge Thomas D. Thalken. Signed by Magistrate Judge Thomas D. Thalken on 9/20/2004. (PAV, ) (Entered: 09/20/2004)
69 APPLICATION/ORDER admitting pro hac vice Attorney Kim R. Rogers for Plaintiff Equal Employment Opportunity Commission. Signed by Deputy Clerk on 11/22/2004. (JAE, ) (Entered: 11/22/2004)
70 Unopposed MOTION to Withdraw as Attorney by Attorney Michael B. Kratville on behalf of Cross Claimant Lou Rollins(Kratville, Michael) (Entered: 03/01/2005)
71 ORDER - The motion for leave to withdraw of Michael Kratville as counsel for the Lou Rollins 70 is granted. Lou Rollins shall have until March 28, 2005, to have substitute counsel entera formal appearance on her behalf. If no appearance is made by March 28, 2005, Lou Rollins will be deemed to be proceeding pro se and counsel for the other parties may contact Lou Rollins directly. The Clerk of Court shall mail of copy of this order to the intervenor:Lou Rollins115 Southhills DriveHershey, PA 17033. Signed by Magistrate Judge Thomas D. Thalken on 3/1/2005. - (clerk has done as directed) (KBJ) (Entered: 03/01/2005)
72 ORDER - Planning Conference is re-set for 3/28/2005 at 10:15 AM before Magistrate Judge Thomas D. Thalken. Plaintiff's counsel shall initiate the telephoneconference. Signed by Magistrate Judge Thomas D. Thalken on
3/24/2008 5:08 PM

District of Nebraska
03/29/2005 05/16/2005 05/16/2005 05/24/2005 05/24/2005 05/24/2005 05/24/2005 05/24/2005 05/28/2005 05/28/2005 06/03/2005 06/03/2005
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3/3/2005. (PAV, ) (Entered: 03/03/2005)
73 ORDER - Planning Conference re-set for 6/20/2005 at 01:30 PM before Magistrate Judge Thomas D. Thalken. Plaintiff's counsel shall initiate the telephone conference. Signed by Magistrate Judge Thomas D. Thalken on 3/29/2005. (PAV, ) (Entered: 03/29/2005)
74 APPLICATION/ORDER admitting pro hac vice Attorney Patricia S. Bangert for Cross Claimant Lou Rollins, Intervenor Plaintiff Lou Rollins. Signed by Deputy Clerk on 5/16/2005. (ADB) (Entered: 05/16/2005)
75 NOTICE of Appearance by Attorney Patricia S. Bangert on behalf of Intervenor/ Cross Claimant Plaintiff Lou Rollins (KBJ) (Entered: 05/16/2005)
76 MOTION regarding Order on Motion to Dismiss 65 Under Rule 60 by Attorney Patricia S. Bangert on behalf of Intervenor Plaintiff Lou Rollins, Cross Claimant Lou Rollins(Bangert, Patricia) (Entered: 05/24/2005)
77 BRIEF In Support of Motion for Miscellaneous Relief 76 by Attorney Patricia S. Bangert on behalf of Intervenor Plaintiff Lou Rollins, Cross Claimant Lou Rollins(Bangert, Patricia) (Entered: 05/24/2005)
78 INDEX In Support of Motion for Miscellaneous Relief 76 Under Rule 60 by Attorney Patricia S. Bangert on behalf of Intervenor Plaintiff Lou Rollins, Cross Claimant Lou Rollins (Attachments: # 1 Affidavit Declaration of Louella Rollins)(Bangert, Patricia) (Entered: 05/24/2005)
79 DECLARATION regarding MOTION regarding Order on Motion to Dismiss 65 Under Rule 60 76 With Exhibits 1 and 2 by Attorney Patricia S. Bangert on behalf of Intervenor Plaintiff Lou Rollins, Cross Claimant Lou Rollins (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Bangert, Patricia) (Entered: 05/24/2005)
80 Mail Returned as Undeliverable addressed to mkrat@neonramp.com regarding Brief 77 , and MOTION regarding Order on Motion to Dismiss 76 . E-mail NOT RESENT as attorney received electronic notification at secondary e-mail address. This e-mail address is also good. (JAE, ) (Entered: 05/25/2005)
81 DECLARATION regarding MOTION regarding Order on Motion to Dismiss 65 Under Rule 60 76 Exhibit 3, pp.1-5 by Attorney Patricia S. Bangert on behalf of Intervenor Plaintiff Lou Rollins, Cross Claimant Lou Rollins (Attachments: # 1 Exhibit 3, pp.1-5)(Bangert, Patricia) (Entered: 05/28/2005)
82 DECLARATION regarding MOTION regarding Order on Motion to Dismiss 65 Under Rule 60 76 Exhibit 3, pp. 6-10 by Attorney Patricia S. Bangert on behalf of Intervenor Plaintiff Lou Rollins, Cross Claimant Lou Rollins (Attachments: # 1 Certificate of Service)(Bangert, Patricia) (Entered: 05/28/2005)
83 BRIEF In Opposition to Motion for Miscellaneous Relief 76 by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society(Lundholm, Lindsay) (Entered: 06/03/2005)
84 AFFIDAVIT of Lindsay K. Lundholm regarding Brief 83 by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society (Attachments: # 1 Exhibit 1 - Deposition Transcript Excerpt# 2 Exhibit 2 Agreement to Binding Arbitration# 3 Exhibit 3 - Requests for Production of
3/24/2008 5:08 PM

District of Nebraska
06/13/2005 06/13/2005 06/13/2005 06/13/2005 06/13/2005
06/14/2005 06/15/2005 06/15/2005 06/15/2005 06/16/2005 06/19/2005
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Documents# 4 Exhibit 4 - Request from Woodmen (Example 1)# 5 Exhibit 5 Request from Woodmen (Example 2))(Lundholm, Lindsay) (Entered: 06/03/2005)
85 MOTION to Amend MOTION regarding Order on Motion to Dismiss 65 Under Rule 60 76 by Attorney Patricia S. Bangert on behalf of Intervenor Plaintiff Lou Rollins (Attachments: # 1 Amended Motion for Relief)(Bangert, Patricia) (Entered: 06/13/2005)
86 MOTION For Leave to File Repply Brief regarding MOTION regarding Order on Motion to Dismiss 65 Under Rule 60 76 by Attorney Patricia S. Bangert on behalf of Intervenor Plaintiff Lou Rollins(Bangert, Patricia) (Entered: 06/13/2005)
87 REPLY BRIEF In Support of Motion for Miscellaneous Relief 76 from Memorandum and Order of August 17, 2004 by Attorney Patricia S. Bangert on behalf of Intervenor Plaintiff Lou Rollins(Bangert, Patricia) (Entered: 06/13/2005)
88 INDEX In Support of Motion for Miscellaneous Relief 76 from Memorandum and Order of August 17, 2004 by Attorney Patricia S. Bangert on behalf of Intervenor Plaintiff Lou Rollins(Bangert, Patricia) (Entered: 06/13/2005)
89 AFFIDAVIT of Louella Rollins (Third) regarding MOTION regarding Order on Motion to Dismiss 65 Under Rule 60 76 by Attorney Patricia S. Bangert on behalf of Intervenor Plaintiff Lou Rollins (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6)(Bangert, Patricia) Additional attachment added on 6/15/2005 (JSF). (Entered: 06/13/2005)
90 STRICKEN - DISCLOSURE of Rule 26(a)(1) Witnessesby Attorney Kirk S. Blecha on behalf of Defendant Woodmen of the World Life Insurance Society.(ADB) Modified on 6/15/2005; stricken per order 91 ; PDF document to be attached to filing 89 (ADB). (Entered: 06/14/2005)
91 ORDER striking DISCLOSURE 90 filed by Woodmen of the World Life Insurance Society; PDF document should have been attached to filing number 89 asExhibit 7A and not filed as a separate document. Signed by Magistrate Judge Thomas D. Thalken on 6/15/2005. (ADB) (Entered: 06/15/2005)
92 ORDER granting 85 Motion for Leave to Amend Motion for Relief 76 ; counsel is ordered to file Amended Motion within five days. A PDF DOCUMENT IS NOT ATTACHED TO THIS ENTRY. Signed by Judge Joseph F. Bataillon on 6/15/2005. (SMS, ) (Entered: 06/15/2005)
93 ORDER granting 86 Motion to File Reply Briefregarding 76 Motion for Relief from Court's Order. Plaintiff's reply brief due within seven days of this order. A PDF DOCUMENT IS NOT ATTACHED TO THIS ENTRY. Signed by Judge Joseph F. Bataillon on 6/15/2005. (SMS, ) (Entered: 06/15/2005)
94 Amended MOTION for Relief from Memorandum and Order of August 17, 2004 by Attorney Patricia S. Bangert on behalf of Intervenor Plaintiff Lou Rollins(Bangert, Patricia) (Entered: 06/16/2005)
95 REPLY BRIEF In Support of Motion for Miscellaneous Relief 76 for Reconsideration of Memorandum and Order of August 17, 2004, by Attorney Patricia S. Bangert on behalf of Intervenor Plaintiff Lou Rollins(Bangert, Patricia) (Entered: 06/19/2005)
3/24/2008 5:08 PM

District of Nebraska
06/19/2005
06/20/2005 06/23/2005
06/24/2005 06/24/2005 06/24/2005
07/11/2005 07/11/2005 07/18/2005
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96 INDEX In Support of Motion for Miscellaneous Relief 76 for Reconsideration of Memorandum and Order of August 17, 2004, by Attorney Patricia S. Bangert on behalf of Intervenor Plaintiff Lou Rollins (Attachments: # 1 Affidavit of Louella Rollins# 2 Exhibit 1 (E-Mail from Blair)# 3 Exhibit 2 (2003 Tax Return)# 4 Exhibit 3 (2004 Tax Return)# 5 Exhibit 4 (Pay Slip)# 6 Exhibit 5 (Blair bill cover letter)# 7 Exhibit 6 (Blair order 3/13/05))(Bangert, Patricia) (Entered: 06/19/2005)
97 ORDER SETTING SCHEDULE FOR PROGRESSION OF A CIVIL CASE Pretrial Conference set for 9/11/2006 at 09:00 AM in Chambers before Magistrate Judge Thomas D. Thalken. Jury Trial set for 10/16/2006 at 08:30 AM before Chief Judge Joseph F. Bataillon. Signed by Magistrate Judge Thomas D. Thalken on 6/20/2005. (PAV, ) (Entered: 06/20/2005)
98 MOTION for Leave to File EEOC's Position on Intervenor's Reply Brief in Support of Rollins' Amended Motion for Relief from Memorandum and Order re Woodmen of the World Life Insurance Society's Motion to Dismiss Louella Rollins' Cross-Claim by Attorney Lynn L. Palma on behalf of Plaintiff Equal Employment Opportunity Commission (Attachments: # 1 Exhibit Attachment A EEOC's Position on Intervenor's Reply Brief in Support of Rollins' Amended Motion for Relief from Memorandum and Order re Woodmen of the World Life Insurance Society's Motion to Dismiss Louella Rollins' Cross-Claim)(Palma, Lynn) (Entered: 06/23/2005)
99 MOTION to Compel Arbitration and Request for Expedited Relief by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society(Lundholm, Lindsay) (Entered: 06/24/2005)
100 BRIEF In Support of Motion to Compel 99 Arbitration and Request for Expedited Relief by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society(Lundholm, Lindsay) (Entered: 06/24/2005)
101 INDEX In Support of Motion to Compel 99 Arbitration by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society (Attachments: # 1 Exhibit 1 - Agreement to Binding Arbitration# 2 Exhibit 2 (Part I) - Affidavit of Danny Cummins# 3 Exhibit 2 (Part II) - Affidavit of Danny Cummins# 4 Exhibit 3 - Louella Rollins' Statement of Claim# 5 Exhibit 4 - Letter to Arbitrator Blair# 6 Exhibit 5 - Ruling of Arbitrator Blair# 7 Exhibit 6 Deposition Excerpts)(Lundholm, Lindsay) (Entered: 06/24/2005)
102 RESPONSE regarding MOTION to Compel Arbitration and Request for Expedited Relief 99 by Attorney Patricia S. Bangert on behalf of Intervenor Plaintiff Lou Rollins(Bangert, Patricia) (Entered: 07/11/2005)
103 RESPONSE regarding MOTION to Compel Arbitration and Request for Expedited Relief 99 by Attorney Lynn L. Palma on behalf of Plaintiff Equal Employment Opportunity Commission(Palma, Lynn) (Entered: 07/11/2005)
104 REPLY BRIEF In Support of Motion to Compel 99 Arbitration and Request for Expedited Relief by Attorney Lindsay K. Lundholm on behalf of Cross Defendants Woodmen of the World Life Insurance Society, Woodmen of the World Life Insurance Society, Defendant Woodmen of the World Life Insurance
3/24/2008 5:08 PM

District of Nebraska
08/04/2005 08/24/2005 08/25/2005 08/25/2005 09/01/2005
09/02/2005 09/07/2005 09/09/2005 09/09/2005
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Society(Lundholm, Lindsay) (Entered: 07/18/2005)
105 NOTICE regarding Order on Motion to Dismiss 65 re Rollins Bankruptcy Filing by Attorney Lynn L. Palma on behalf of Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Lou Rollins (Attachments: # 1 Exhibit A)(Palma, Lynn) (Entered: 08/04/2005)
106 Joint MOTION to Quash or Modify Proposed Subpoena of Rollins' Financial and Personnel Records or Alternative Mo for Protective Order by Attorney Lynn L. Palma on behalf of Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Lou Rollins (Attachments: # 1 Exhibit A Notice of Intent to Issue Subpoena)(Palma, Lynn) (Entered: 08/24/2005)
107 MEMORANDUM AND ORDER granting 76 & 94 Motions for Relief, granting 98 Motion to Respond; denying Woodmen's 99 Motion to Compel; this case is no longer referred to arbitration. Signed by Judge Joseph F. Bataillon on 8/25/2005. (SMS, ) (Entered: 08/25/2005)
108 ORDER - The defendant shall withhold issuance of subpoenas until the court rules on the pending Joint Motion to Quash or Modify Proposed Subpoena of Rollins' Financial and Personnel Records or Alternative Motion for Protective Order 106 . Any person served with a subpoena ordered to be withheld need not comply with such subpoena until further order of the court. Signed by Magistrate Judge Thomas D. Thalken on 8/25/2005. (KBJ) (Entered: 08/25/2005)
109 ORDER regarding the Joint Notice of Rollins' Bankruptcy Filing Relating to Defendant Woodmen's Motions to Compel Arbitration 105 - Pursuant to NEGenR 1.5(a)(1) and 28 U.S.C. 157, this case is referred to the United States Bankruptcy Court for the District of Nebraska. This case shall be terminated for statistical purposes by the Clerk. The Clerk shall deliver the court file to the Clerk of the Bankruptcy Court for the District of Nebraska. Signed by Magistrate Judge Thomas D. Thalken on 9/1/2005. (JAE, ) (Entered: 09/01/2005)
110 STRICKEN - Joint MOTION for Reconsideration regarding Order,, 109 by Attorney Lynn L. Palma on behalf of Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Lou Rollins(Palma, Lynn) Modified on 9/16/2005 to indicate stricken per order 116 (JAE, ). (Entered: 09/02/2005)
111 STRICKEN - MOTION to Extend Time to respond to the Joint Motion to Quash or Modify 106 by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society (JAE, ) Modified on 9/16/2005 to indicate stricken per order 116 . (JAE, ). (Entered: 09/08/2005)
112 MOTION to Amend Order on Motion for Miscellaneous Relief,,,, Order on Motion for Leave, Order on Motion to Compel 107 by Attorney Mary L. Swick on behalf of Defendant Woodmen of the World Life Insurance Society(Swick, Mary) (Entered: 09/09/2005)
113 BRIEF In Support of Defendant's Motion to Alter or Amend Judgment and/or for Relief from Judgment, Nunc Pro Tunc Motion to Amend 112 , Order on Motion for Miscellaneous Relief,,,, Order on Motion for Leave, Order on Motion to Compel 107 by Attorney Mary L. Swick on behalf of Defendant Woodmen of the World Life Insurance Society(Swick, Mary) (Entered: 09/09/2005)
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District of Nebraska
09/09/2005
09/13/2005 09/16/2005 10/21/2005 10/21/2005 10/21/2005 10/21/2005 10/28/2005 10/31/2005
11/04/2005
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114 INDEX In Support of Defendant's Motion to Alter or Amend Judgment and/or for Relief from Judgment, Nunc Pro Tunc Motion to Amend 112 , Order on Motion for Miscellaneous Relief,,,, Order on Motion for Leave, Order on Motion to Compel 107 , Brief, 113 by Attorney Mary L. Swick on behalf of Defendant Woodmen of the World Life Insurance Society (Attachments: # 1 Exhibit 1, Bankruptcy Court Docket# 2 Exhibit 2, Rollins Voluntary Petition# 3 Exhibit 3, Notice of Chapter 7 Bankruptcy Case# 4 Exhibit 4, Schedule B# 5 Exhibit 5, Schedule C# 6 Exhibit 6, Projection of Economic Loss)(Swick, Mary) (Entered: 09/09/2005)
115 OBJECTION to Order,, 109 under Rule 72(a) of referral to the Bankruptcy Court by Attorney Lynn L. Palma on behalf of Plaintiff Equal Employment Opportunity Commission(Palma, Lynn) (Entered: 09/13/2005)
116 ORDER that the Joint Motion for Reconsideration of September 1, 2005 Order of Magistrate JudgeThalken 110 is stricken, and the Motion for Extension of Time 111 isstricken, subject to filing with the United States Bankruptcy Court for the District of Nebraska. Signed by Magistrate Judge Thomas D. Thalken on 9/16/2005. (JAE, ) (Entered: 09/16/2005)
117 NOTICE of Appeal and Motion for Stay Pending Appeal by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society (Lundholm, Lindsay) (Entered: 10/21/2005)
APPEAL fee paid with receipt number 827425 in the amount of $ 255 regarding Notice (Other) 117 . THIS IS A TEXT ONLY ENTRY. A PDF DOCUMENT IS NOT ATTACHED TO THIS ENTRY. (JAE, ) (Entered: 10/21/2005)
NOTICE OF APPEAL - this event correct Notice (Other) 117 by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society. Filer selected incorrect event. PART 1 OF 2. (JAE, ) (Entered: 10/21/2005)
PART 2 OF 2 - MOTION to Stay pending Notice of Appeal 117 by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society(JAE, ) (Entered: 10/21/2005)
118 REPORT AND RECOMMENDATION that this case be withdrawn from Bankruptcy Signed by Judge Timothy J. Mahoney on 10/27/2005. (Attachments: # 1 Transmittal Letter)(ADB) (Entered: 10/28/2005)
119 RESPONSE regarding MOTION to Stay regarding Notice (Other) 117 Plaintiffs' Joint Response Opposing Defendant's Motion for Stay on Appeal, and Request for Expedited Ruling by Attorney Patricia S. Bangert on behalf of Plaintiff Intervenor Lou Rollins and by Attorney Lynn L. Palma on behalf of Plaintiff Equal Employment Opportunity Commission (Attachments: # 1 Exhibit B, 081905 letter# 2 Exhibit A, 080905 letter)(Palma, Lynn) (Entered: 10/31/2005)
120 ORDER - The Report and Recommendation suggesting that the referral to bankruptcy be withdrawn and that this case be stayed pending a hearing in the USBC-Middle District of PA 118 is adopted. This case is withdrawn from the United States Bankruptcy Court for the District of Nebraska; This case is stayed until November 16, 2005, or until such time as this court lifts the stay or until the
3/24/2008 5:08 PM

District of Nebraska
12/19/2005 12/21/2005 12/27/2005 12/27/2005 12/27/2005 01/09/2006 01/10/2006 01/13/2006 02/01/2006 02/03/2006
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United States Bankruptcy Court for the Middle District of Pennsylvaniarules on the motions for relief from stay; Within seven days of the ruling by the United States Bankruptcy Court for the Middle District of Pennsylvania, counsel for all parties shall file a short brief informing thecourt of the decisions of the bankruptcy court and, additionally, shall include suggestions on how the court should thereafter proceed in this case; and the Clerk of Court shall send a copy of this Order to the United States Bankruptcy Court, Middle District of Pennsylvania, 1:05-bk04445-MDF. Signed by Judge Joseph F. Bataillon on 11/4/2005. (COPIES AS DIRECTED)(KBJ) (Entered: 11/04/2005)
121 REPLY BRIEF In Support of Motion to Stay Pending Appeal by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society(Lundholm, Lindsay) (Entered: 12/19/2005)
122 BRIEF Order on Report and Recommendation,,,, 120 by Attorney Mary L. Swick on behalf of Defendant Woodmen of the World Life Insurance Society (Attachments: # 1 Brief, Part 2)(Swick, Mary) (Entered: 12/21/2005)
123 Joint MOTION to Extend Time In Which To File Report In Response To Order on Report and Recommendation,,,, 120 by Attorney Patricia S. Bangert on behalf of Intervenor Plaintiff Lou Rollins(Bangert, Patricia) (Entered: 12/27/2005)
124 RESPONSE regarding Joint MOTION to Extend Time In Which To File Report In Response To Order on Report and Recommendation,,,, 120 123 by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society (Attachments: # 1 Exhibit 1)(Lundholm, Lindsay) (Entered: 12/27/2005)
125 ORDER granting 123 Joint Motion to Extend Time to 1/9/2006 to File Report Regarding Bankruptcy Court Order. Signed by Judge Joseph F. Bataillon on 12/27/2005. (SMS, ) (Entered: 12/27/2005)
126 Joint MOTION to Extend Plaintiffs' time to file status report on Order on Report and Recommendation,,,, 120 by Attorney Lynn L. Palma on behalf of Plaintiff Equal Employment Opportunity Commission(Palma, Lynn) (Entered: 01/09/2006)
127 ORDER granting 126 Plaintiff EEOC and Intervenor Rollins' Joint Motion for Extension of Time until 1/13/2006 to file their response pursuant to 120 Order on Report and Recommendation. THIS IS A TEXT ONLY ENTRY; A PDF DOCUMENT IS NOT ATTACHED. Signed by Judge Joseph F. Bataillon on 1/10/2006. (SMS, ) (Entered: 01/10/2006)
128 RESPONSE regarding Order on Report and Recommendation,,,, 120 Joint Response by Plaintiff-Intervenor and by Attorney Lynn L. Palma on behalf of Plaintiff Equal Employment Opportunity Commission(Palma, Lynn) (Entered: 01/13/2006)
129 STIPULATED ORDER signed by Bankruptcy Judge Mary France of Bankruptcy Court for the Middle District of Pennsylvania, Case No. 1-05-bk-04445 (MDF). Signed by Judge Joseph F. Bataillon on 2/1/2006. (SMS, ) (Entered: 02/01/2006)
130 MEMORANDUM AND ORDER - The EEOC's objection, 115 , is denied as moot. The Court determines, pursuant to 129 , that the automatic stay is inapplicable with respect to the Title VII litigation in this case, and this court has
3/24/2008 5:08 PM

District of Nebraska
02/10/2006
02/10/2006 02/14/2006 02/15/2006 02/16/2006 02/17/2006 02/22/2006 03/01/2006 03/15/2006
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jurisdiction to enter this order. That 98 , a motion by the plaintiff to join the intervenor, nunc pro tunc, is granted. The court orders the Clerk of Court to re-file 107 , Memorandum and Order entered August 25, 2005, as an attachment to this filing. Filing No. 107 is reissued as of this date and is hereby incorporated by reference in this Order. The defendant's motion to enter a stay, 117 , is denied. The court orders the magistrate to progress this case. Defendant's motion to amend or alter the judgment, 112 , is denied. Signed by Judge Joseph F. Bataillon on 2/3/2006. (Attachments: # 1 Memorandum and Order entered 8/25/05 reissued as of this date) (JAE, ) (Entered: 02/03/2006)
131 NOTIFICATION OF APPEAL AND NOA SUPPLEMENT by Clerk to USCA regarding Notice of Appeal 117 including Memorandum and Order 107 , Order on Motion to Quash 108 , Order 109 , Order on Motion for Reconsideration 116 , Report and Recommendation 118 , Order on Report and Recommendation 120 , Stipulated Order 129 , Memorandum and Order 130 , and docket sheet. Notice of Appeal filed on 10/21/05 by defendant Woodmen of the World Life Insurance Society. (JAE, ) (Entered: 02/10/2006)
***Appeal Receipt of Notice of Appeal and supporting documents transmitted to USCA on: Fri Feb 10 11:23:51 CST 2006 (JAE, ) (Entered: 02/10/2006)
132 NOTICE OF APPEAL Amended by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society. (Lundholm, Lindsay) (Entered: 02/14/2006)
133 Transmittal Letter to USCA - 8th Circuit including two copies of the Amended Notice of Appeal to USCA - 8th Circuit 132 and two certified copies of the docket sheet. (PCV, ) (Entered: 02/15/2006)
134 Letter by Clerk of the 8th Circuit Court of Appeals acknowledging receipt of the appeal Notice of Appeal to USCA 132 (KBJ) (Entered: 02/16/2006)
135 AMENDED ORDER SETTING SCHEDULE FOR PROGRESSION OF A CIVIL CASE - Depositions due 3/1/2007. Pretrial Conference set for 5/25/2007 at 09:00 AM in Chambers before Magistrate Judge Thomas D. Thalken. Jury Trial set for 6/18/2007 at 08:30 AM before Chief Judge Joseph F. Bataillon. Signed by Magistrate Judge Thomas D. Thalken on 2/17/2006. (PAV, ) (Entered: 02/17/2006)
136 Transmittal Letter - the USCA has received certified copies of an amended notice ofappeal and docket entries from the Clerk of the United States DistrictCourt and have filed the amended notice of appeal in the case (PCV, ) (Entered: 02/22/2006)
137 COPY of Order from USCA - 8th Circuit that appellee's motion for an extension of time within which to respond to the appelant's motion for stay is hereby granted until March 6, 2006. (Attachments: # 1 transmittal letter)(PCV, ) (Entered: 03/01/2006)
138 COPY of Order from USCA - 8th Circuit (6-1522) The motion by the Equal Employment Opportunity Commission to be addedas an appellee in this appeal has been considered by the Court and ishereby granted.The motion for stay pending appeal filed by appellant Woodmen of theWorld is denied. (PCV, ) (Entered: 03/15/2006)
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03/15/2006 06/06/2006 06/06/2006
06/06/2006
06/16/2006 06/19/2006 06/19/2006

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139 BRIEF SCHEDULING LETTER from USCA - 8th Circuit as to Notice of Appeal to USCA; Appellate Docket Number: 6-1522. (Attachments: # 1transmittal letter)(PCV, ) (Entered: 03/15/2006)
140 Joint MOTION Order under MRPC Rule 4.2 (Comment 6) by Patricia S. Bangert on behalf of Plaintiff-Intervenor Rollins and by Attorney Lynn L. Palma on behalf of Plaintiff Equal Employment Opportunity Commission(Palma, Lynn) (Entered: 06/06/2006)
141 INDEX Support Plaintiffs Joint Motion for Order under Rule 4.2 Joint MOTION Order under MRPC Rule 4.2 (Comment 6) by Patricia S. Bangert on behalf of Plaintiff-Intervenor Rollins and 140 and by Attorney Lynn L. Palma on behalf of Plaintiff Equal Employment Opportunity Commission (Attachments: # 1 Index to exhibits# 2 Exhibit 1, August 18, 2005 letter Baird Holm to Palma Bangert# 3 Exhibit 2, October 1, 1997 Memorandum# 4STRICKEN- Exhibit 13, Woodmen Initial Disclosures (substituted Exhibit 3 - Crimiel-Minor Deposition - is located at filing 143 # 5 Exhibit 4, Associate complaint - Rollins# 6 Exhibit 5# 7 Errata 6, Armstrong# 8 Exhibit 7, Cardin)(Palma, Lynn) Modified on 6/19/2006, Exhibit 13 stricken per order 144 and substituted with Exhibit 3 at filing 143 (ADB). (Entered: 06/06/2006)
142 INDEX - CONTINUED Support of Plaintiffs' Joint Motion for an Order under MRPC 4.2 for ex parte communications Joint MOTION Order under MRPC Rule 4.2 (Comment 6) by Patricia S. Bangert on behalf of Plaintiff-Intervenor Rollins and 140 and by Attorney Lynn L. Palma on behalf of Plaintiff Equal Employment Opportunity Commission (Attachments: # 1 Exhibit 8, Bob Mathias Interview# 2 Exhibit 9, Disposition Letter - Ted Guminey# 3 Exhibit 10, Disposition letter Bob Mathias# 4 Exhibit Disposition letter - Lou Rollins# 5 Exhibit 12, Woodmen Position Statement# 6 Exhibit 13, Woodmen Initial Disclosures# 7 Exhibit 14, Woodmen Supplemental Disclosures# 8 Exhibit 15, Woodmen Answer to Interrogatory No 7)(Palma, Lynn) (Entered: 06/06/2006)
143 Joint MOTION Substitute Exhibit regarding Joint MOTION Order under MRPC Rule 4.2 (Comment 6) by Patricia S. Bangert on behalf of Plaintiff-Intervenor Rollins and 140 by Attorney Lynn L. Palma on behalf of Plaintiff Equal Employment Opportunity Commission (Attachments: # 1 Exhibit Substituted 3 to Filing No. 141)(Palma, Lynn) (Entered: 06/16/2006)
144 ORDER granting 143 Motion for Leave to Substitute an Exhibit. The Clerk of Court shall strike Filing No. 141, part 4 "Exhibit 13, WoodmenInitial Disclosures" and modify the docket text to reflect the substituted exhibit, Exhibit 3"Crimiel-Minor Deposition," is located at Filing 143. Signed by Magistrate Judge Thomas D. Thalken on 6/19/2006. (ADB) (Entered: 06/19/2006)
145 MOTION to Extend Time to Respond to PLAINTIFF EEOC AND PLAINTIFF-INTERVENOR LOU ROLLINS' JOINT MOTION FOR ORDER UNDER RULE 4.2 PERMITTING EX PARTE COMMUNICATIONS by Attorney Lindsay K. Lundholm on behalf of Cross Defendant Woodmen of the World Life Insurance Society, Defendant Woodmen of the World Life Insurance Society(Lundholm, Lindsay) (Entered: 06/19/2006)

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06/20/2006 06/30/2006 06/30/2006 07/10/2006 07/10/2006 07/13/2006 07/13/2006 07/14/2006 07/16/2006 08/10/2006

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146 ORDER granting 145 Motion to Extend. The defendant shall have an extension from June 23, 2006, until June 30, 2006, to respond to the plaintiffs' MOTION under MRPC Rule 4.2 140 . Signed by Magistrate Judge Thomas D. Thalken on 6/20/2006. NO PDF DOCUMENT IS ATTACHED TO THIS ENTRY.(TRL) (Entered: 06/20/2006)
147 BRIEF In Opposition to Joint MOTION Order under MRPC Rule 4.2 (Comment 6) by Patricia S. Bangert on behalf of Plaintiff-Intervenor Rollins and 140 by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society(Lundholm, Lindsay) (Entered: 06/30/2006)
148 INDEX In Opposition to Joint MOTION Order under MRPC Rule 4.2 (Comment 6) by Patricia S. Bangert on behalf of Plaintiff-Intervenor Rollins and 140 by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society(Lundholm, Lindsay) (Entered: 06/30/2006)
149 MOTION to Extend Time to File Reply to Brief in Opposition to Joint MOTION Order under MRPC Rule 4.2 (Comment 6) by Patricia S. Bangert on behalf of Plaintiff-Intervenor Rollins and 140 by Attorney Nancy A. Weeks on behalf of Plaintiff Equal Employment Opportunity Commission(Weeks, Nancy) (Entered: 07/10/2006)
150 ORDER granting 149 Motion to Extend. The plaintiff shall have until July 17, 2006, to file a reply brief in support of the MOTION under MRPC Rule 4.2 140 . Signed by Magistrate Judge Thomas D. Thalken on 7/10/2006. NO PDF DOCUMENT IS ATTACHED TO THIS ENTRY.(TRL) (Entered: 07/10/2006)
151 MOTION to Extend Time to Respond and Object to Plaintiff's Rule 34 Requests for Production of Documents and Rule 36 Requests for Admissions by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C and D)(Lundholm, Lindsay) (Entered: 07/13/2006)
152 REPLY BRIEF In Support of Joint MOTION Order under MRPC Rule 4.2 (Comment 6) by Patricia S. Bangert on behalf of Plaintiff-Intervenor Rollins and 140 by Attorney Nancy A. Weeks on behalf of Plaintiff Equal Employment Opportunity Commission(Weeks, Nancy) (Entered: 07/13/2006)
153 ORDER granting 151 Motion to Extend. The defendant shall have until July 26, 2006, to respond and object to the plaintiffs' Requests for Production of Documents and Requests for Admissions. Signed by Magistrate Judge Thomas D. Thalken on 7/14/2006. NO PDF DOCUMENT IS ATTACHED TO THIS ENTRY.(TRL) (Entered: 07/14/2006)
154 REPLY regarding Joint MOTION Order under MRPC Rule 4.2 (Comment 6) by Patricia S. Bangert on behalf of Plaintiff-Intervenor Rollins and 140 EEOC by Attorney Patricia S. Bangert on behalf of Intervenor Plaintiff Lou Rollins(Bangert, Patricia) (Entered: 07/16/2006)
155 MOTION to Compel Discovery by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society(Lundholm, Lindsay) (Entered: 08/10/2006)

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08/10/2006 08/10/2006 08/30/2006 08/30/2006 09/06/2006 09/06/2006 09/08/2006 09/15/2006 09/29/2006 10/02/2006
10/26/2006 10/26/2006
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156 INDEX in support of MOTION to Compel Discovery 155 by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5)(Lundholm, Lindsay) (Entered: 08/10/2006)
157 INDEX - CONTINUED in support of MOTION to Compel Discovery 155 by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society (Attachments: # 1 Exhibit 6# 2 Exhibit 7# 3 Exhibit 8# 4 Exhibit 9)(Lundholm, Lindsay) (Entered: 08/10/2006)
158 MOTION to Withdraw Document regarding MOTION to Compel Discovery 155 (Withdrawal of Motion to Compel) by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society(Lundholm, Lindsay) (Entered: 08/30/2006)
159 ORDER granting 158 Motion to Withdraw Document and withdrawing 155 Motion to Compel, without prejudice. Ordered by Magistrate Judge Thomas D. Thalken. NO PDF DOCUMENT IS ATTACHED TO THIS ENTRY.(TRL) (Entered: 08/30/2006)
160 NOTICE of Appearance by Attorney Rita Byrnes Kittle on behalf of Plaintiff Equal Employment Opportunity Commission (Kittle, Rita) (Entered: 09/06/2006)
161 ORDER denying without prejudice 140 Motion for order under Rule 4.2 permitting Ex Parte Communications. Ordered by Magistrate Judge Thomas D. Thalken.(PAV, ) (Entered: 09/06/2006)
162 APPLICATION/ORDER admitting pro hac vice Attorney Anjuli Kelotra for Plaintiff Equal Employment Opportunity Commission. Ordered by Deputy Clerk. (PCV, ) (Entered: 09/08/2006)
163 Transmittal Letter to the USCA 8th Circuit (06-1522) of sending 2 copies of the Order on Motion for Miscellaneous Relief 161 and 2 certified copies of the docket sheet. (JAE, ) (Entered: 09/15/2006)
164 Unopposed MOTION to Amend Order Setting Schedule for Progression of a Civil Case, 135 by Attorney Rita Byrnes Kittle on behalf of Plaintiff Equal Employment Opportunity Commission(Kittle, Rita) (Entered: 09/29/2006)
165 ORDER granting 164 Motion to Amend. The deadline for the plaintiff's expert disclosures is extended to October 16, 2006; the deadline for the defendant's expert disclosures is December 18, 2006; the deadline for disclosure of rebuttal experts is January 26, 2007; and the deadline for Daubert motions is February 14, 2007. Ordered by Magistrate Judge Thomas D. Thalken. NO PDF DOCUMENT IS ATTACHED TO THIS ENTRY.(TRL) (Entered: 10/02/2006)
166 MOTION for Leave to Issue Subpoenas Duces Tecum by Attorney Lindsay K. Lundholm on behalf of Cross Defendants Woodmen of the World Life Insurance Society, Woodmen of the World Life Insurance Society, Defendant Woodmen of the World Life Insurance Society(Lundholm, Lindsay) (Entered: 10/26/2006)
167 BRIEF In Support of MOTION for Leave to Issue Subpoenas Duces Tecum 166 by Attorney Lindsay K. Lundholm on behalf of Cross Defendants Woodmen of the World Life Insurance Society, Woodmen of the World Life Insurance Society,
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10/26/2006 11/13/2006 11/14/2006 11/27/2006 12/01/2006 12/01/2006 12/01/2006
12/01/2006 12/03/2006
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Defendant Woodmen of the World Life Insurance Society(Lundholm, Lindsay) (Entered: 10/26/2006)
168 INDEX In Support of MOTION for Leave to Issue Subpoenas Duces Tecum 166 by Attorney Lindsay K. Lundholm on behalf of Cross Defendants Woodmen of the World Life Insurance Society, Woodmen of the World Life Insurance Society, Defendant Woodmen of the World Life Insurance Society(Lundholm, Lindsay) (Entered: 10/26/2006)
169 Unopposed MOTION to Extend Time to Respond to Defendant's MOTION for Leave to Issue Subpoenas Duces Tecum 166 by Attorney Rita Byrnes Kittle on behalf of Plaintiff Equal Employment Opportunity Commission(Kittle, Rita) (Entered: 11/13/2006)
170 TEXT ORDER granting 169 Motion to Extend. The plaintiffs shall have until November 27, 2006, to respond to the defendant's MOTION for Leave to Issue Subpoenas Duces Tecum 166 . Ordered by Magistrate Judge Thomas D. Thalken. NO PDF DOCUMENT IS ATTACHED TO THIS ENTRY.(TRL) (Entered: 11/14/2006)
171 RESPONSE regarding MOTION for Leave to Issue Subpoenas Duces Tecum 166 by Attorney Patricia S. Bangert on behalf of Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Lou Rollins(Bangert, Patricia) (Entered: 11/27/2006)
172 MOTION for Judgment by Attorney Lindsay K. Lundholm on behalf of Cross Defendants Woodmen of the World Life Insurance Society, Woodmen of the World Life Insurance Society, Defendant Woodmen of the World Life Insurance Society(Lundholm, Lindsay) (Entered: 12/01/2006)
173 MOTION for Summary Judgment by Attorney Lindsay K. Lundholm on behalf of Cross Defendants Woodmen of the World Life Insurance Society, Woodmen of the World Life Insurance Society, Defendant Woodmen of the World Life Insurance Society(Lundholm, Lindsay) (Entered: 12/01/2006)
174 INDEX in support of MOTION for Summary Judgment 173 by Attorney Lindsay K. Lundholm on behalf of Cross Defendants Woodmen of the World Life Insurance Society, Woodmen of the World Life Insurance Society, Defendant Woodmen of the World Life Insurance Society (Attachments: # 1 Exhibit 1# 2 Exhibit A to Exhibit 1# 3 Exhibit B to Exhibit 1# 4 Exhibit C to Exhibit 1# 5 Exhibit D to Exhibit 1# 6 Exhibit E, F, and G to Exhibit 1# 7 Exhibit H to Exhibit 1# 8 Exhibit I and J to Exhibit 1# 9 Exhibit K to Exhibit 1# 10 Exhibit L to Exhibit 1# 11 Exhibit M to Exhibit 1# 12 Exhibit N to Exhibit 1# 13 Exhibit 2# 14 Exhibit 3 and 4)(Lundholm, Lindsay) (Entered: 12/01/2006)
175 BRIEF In Support MOTION for Summary Judgment 173 by Attorney Lindsay K. Lundholm on behalf of Cross Defendants Woodmen of the World Life Insurance Society, Woodmen of the World Life Insurance Society, Defendant Woodmen of the World Life Insurance Society(Lundholm, Lindsay) (Entered: 12/01/2006)
176 MOTION to Substitute Attorney by Attorney Nancy A. Weeks on behalf of Plaintiff Equal Employment Opportunity Commission(Weeks, Nancy) (Entered: 12/03/2006)
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12/04/2006 12/05/2006 12/05/2006 12/05/2006 12/05/2006
12/07/2006 12/13/2006 12/15/2006 12/18/2006
12/26/2006

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177 ORDER granting 176 Motion for Leave to Withdraw Attorneys Joseph H. Mitchell and Nelson G. Alston as counsel for the plaintiff; the Clerk of Court shall stop all electronic notices for this case to Joseph H. Mitchell and Nelson G. Alston Ordered by Magistrate Judge Thomas D. Thalken.(PCV, ) (Entered: 12/04/2006)
178 MOTION to Withdraw as Attorney by Attorney Kim R. Rogers on behalf of Plaintiff Equal Employment Opportunity Commission(Rogers, Kim) (Entered: 12/05/2006)
179 MOTION to Withdraw as Attorney by Attorney Lynn L. Palma on behalf of Plaintiff Equal Employment Opportunity Commission(Palma, Lynn) (Entered: 12/05/2006)
180 MOTION to Withdraw as Attorney by Attorney Ann L. Fuller on behalf of Plaintiff Equal Employment Opportunity Commission(Fuller, Ann) (Entered: 12/05/2006)
181 ORDER granting 178 , 179 , 180 , Motions for leave to withdraw of Kim Rogers, Lynn Palma and Ann L. Fuller as counsel for the plaintiff; the Clerk of Court shall stop all electronic notices for this case to Kim Rogers, Lynn Palma and Ann L. Fuller. Ordered by Magistrate Judge Thomas D. Thalken.(PCV, ) (Entered: 12/05/2006)
182 REPLY BRIEF In Support of MOTION for Leave to Issue Subpoenas Duces Tecum 166 by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society (Attachments: # 1 Exhibit D)(Lundholm, Lindsay) (Entered: 12/07/2006)
183 Transmittal Letter to USCA-8th Circuit (06-1522) of sending the Order on Motion to Withdraw as Attorney 181 , Order on Motion to Substitute Attorney 177 and certified docket sheet. (JAE, ) (Entered: 12/13/2006)
184 MOTION to Extend Progression Order by Attorney Lindsay K. Lundholm on behalf of Cross Defendants Woodmen of the World Life Insurance Society, Woodmen of the World Life Insurance Society, Defendant Woodmen of the World Life Insurance Society(Lundholm, Lindsay) (Entered: 12/15/2006)
185 TEXT ORDER granting 184 Motion to Extend. Amending the Order Setting Schedule for Progression of a Civil Case 135 and TEXT ORDER 165 . The defendant shall have until January 18, 2007, to designate and provide a Fed. R. Civ. R. 26(a)(2) report for any expert witnesses it intends to call at trial. All rebuttal expert disclosures must be made by February 19, 2007. Any motion in limine challenging the admissibility of testimony of an expert witness under Rule 702, Fed. Rules of Evidence shall be filed by April 2, 2007.Ordered by Magistrate Judge Thomas D. Thalken.(TRL) (Entered: 12/18/2006)
186 MOTION Rule 56(f) Continuance regarding MOTION for Judgment 172 by Attorney Rita Byrnes Kittle on behalf of Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Lou Rollins (Attachments: # 1 Rule 56(f) Declaration of Counsel# 2 Exhibit 1# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4# 6 Exhibit 5# 7 Exhibit 6# 8 Exhibit 7# 9 Exhibit 8# 10 Exhibit 9# 11 Exhibit 10# 12 Exhibit 11# 13 Minor Deposition Excerpts)(Kittle, Rita) (Entered: 12/26/2006)

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01/16/2007
01/18/2007 01/19/2007 01/23/2007 01/23/2007 01/25/2007 01/27/2007 01/29/2007 02/01/2007
02/02/2007
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187 BRIEF In Opposition to MOTION Rule 56(f) Continuance regarding MOTION for Judgment 172 186 by Attorney Lindsay K. Lundholm on behalf of Cross Defendants Woodmen of the World Life Insurance Society, Woodmen of the World Life Insurance Society, Defendant Woodmen of the World Life Insurance Society (Attachments: # 1 Exhibit Declaration of Lundholm)(Lundholm, Lindsay) (Entered: 01/16/2007)
188 Joint MOTION to Extend Witness Designation Deadline Pursuant to Amended Order Setting Schedule for Progression of a Civil Case, 135 by Attorney Nancy A. Weeks on behalf of Plaintiff Equal Employment Opportunity Commission(Weeks, Nancy) (Entered: 01/18/2007)
189 TEXT ORDER granting 188 Motion to Extend. The Order Setting Schedule for Progression of a Civil Case 135 paragraph 3(A) is amended to allow the parties until February 2, 2007, to designate witnesses for trial. Ordered by Magistrate Judge Thomas D. Thalken.(TRL) (Entered: 01/19/2007)
190 MOTION to Compel Production of Information Improperly Withheld as Privileged by Attorney Rita Byrnes Kittle on behalf of Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Lou Rollins (Attachments: # 1 Exhibit # 2 Appendix Minor Deposition Excerpts)(Kittle, Rita) (Entered: 01/23/2007)
191 Unopposed MOTION to Extend Time to Reply to Brief, 187 by Attorney Patricia S. Bangert on behalf of Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Lou Rollins(Bangert, Patricia) (Entered: 01/23/2007)
192 TEXT ORDER granting 191 Plaintiffs' Motion to Extend Time until 1/30/2007 to file responsive brief to 187 regarding 172 Motion for Judgment, 186 Motion Pursuant to Fed.R.Civ.P. 56(f). Ordered by Judge Joseph F. Bataillon.(SMS, ) (Entered: 01/25/2007)
193 MOTION to Compel Adequate Responses to Discovery by Attorney Rita Byrnes Kittle on behalf of Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Lou Rollins (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit # 8 Exhibit # 9 Exhibit # 10 Exhibit # 11 Exhibit)(Kittle, Rita) (Entered: 01/27/2007)
194 REPLY BRIEF In Support of MOTION Rule 56(f) Continuance regarding MOTION for Judgment 172 186 by Attorney Rita Byrnes Kittle on behalf of Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Lou Rollins (Attachments: # 1 Exhibit # 2 Exhibit)(Kittle, Rita) (Entered: 01/29/2007)
195 ORDER granting in part and denying in part 166 the defendant's Motion for Leave to Issue Subpoenas Duces Tecum. The defendant's motion is denied with respect to the subpoena for Woodward & Associates, and granted in all other respects. The parties shall confer regarding a proposed protective order, prior to the issuance of the subpoenas at issue. Ordered by Magistrate Judge Thomas D. Thalken.(TRL) (Entered: 02/01/2007)
196 WITNESS LIST (Non-Expert) by Attorney Lindsay K. Lundholm on behalf of Cross Defendants Woodmen of the World Life Insurance Society, Woodmen of the World Life Insurance Society, Defendant Woodmen of the World Life
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02/02/2007 02/02/2007 02/05/2007
02/05/2007 02/08/2007 02/08/2007 02/12/2007 02/12/2007 02/13/2007
02/16/2007

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Insurance Society. (Lundholm, Lindsay) (Entered: 02/02/2007)
197 WITNESS LIST by Attorney Rita Byrnes Kittle on behalf of Plaintiff Equal Employment Opportunity Commission. (Kittle, Rita) (Entered: 02/02/2007)
198 WITNESS LIST of PLAINTIFF/INTERVENOR ROLLINS by Attorney Patricia S. Bangert on behalf of Intervenor Plaintiff Lou Rollins. (Bangert, Patricia) (Entered: 02/02/2007)
199 INDEX OF EVIDENCE IN SUPPORT OF DEFENDANT'S BRIEF IN OPPOSITION TO MOTION to Compel Production of Information Improperly Withheld as Privileged 190 by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Lundholm, Lindsay) (Entered: 02/05/2007)
200 BRIEF In Opposition to MOTION to Compel Production of Information Improperly Withheld as Privileged 190 by Attorney Lindsay K. Lundholm on behalf of Cross Defendants Woodmen of the World Life Insurance Society, Woodmen of the World Life Insurance Society, Defendant Woodmen of the World Life Insurance Society(Lundholm, Lindsay) (Entered: 02/05/2007)
201 Unopposed MOTION for Extension of Time to File Answer and Respond to Defendants' Motion to Compel by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society(Lundholm, Lindsay) (Entered: 02/08/2007)
202 TEXT ORDER granting 201 Motion for Extension of Time. The defendant shall have until February 16, 2007, to respond to the plaintiffs' MOTION to Compel Adequate Responses to Discovery 193 . Ordered by Magistrate Judge Thomas D. Thalken.(TRL) (Entered: 02/08/2007)
203 Unopposed MOTION to Extend Time for Plaintiffs' Reply re: MOTION to Compel Production of Information Improperly Withheld as Privileged 190 by Attorney Nancy A. Weeks on behalf of Plaintiff Equal Employment Opportunity Commission (Attachments: # 1 Exhibit A-Proposed Order)(Weeks, Nancy) (Entered: 02/12/2007)
204 TEXT ORDER granting 203 Motion to Extend. The plaintiffs shall have until February 20, 2007, to file a reply in support of their MOTION to Compel Production of Information Improperly Withheld as Privileged 190 . Ordered by Magistrate Judge Thomas D. Thalken.(TRL) (Entered: 02/12/2007)
205 TEXT NOTICE REGARDING PROPOSED ORDER 203 by Deputy Clerk. Pursuant to Administrative Procedure II, a moving party shall submit a proposed order to the judge. Electronically submitted proposed orders may not be combined with the motion into one document. The proposed order should be e-mailed in WordPerfect format to the assigned judge. This notice is for your information for future filings.(TJS) (Entered: 02/13/2007)
206 BRIEF In Opposition to MOTION to Compel Adequate Responses to Discovery 193 by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society(Lundholm, Lindsay) (Entered: 02/16/2007)

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02/16/2007 02/20/2007
02/26/2007 02/26/2007 02/28/2007 03/01/2007 03/01/2007 03/02/2007
03/02/2007 03/05/2007 03/06/2007

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207 INDEX In Support of Brief 206 by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Lundholm, Lindsay) (Entered: 02/16/2007)
208 REPLY BRIEF In Support of MOTION to Compel Production of Information Improperly Withheld as Privileged 190 by Attorney Rita Byrnes Kittle on behalf of Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Lou Rollins (Attachments: # 1 Appendix Minor depo excerpts)(Kittle, Rita) (Entered: 02/20/2007)
209 Unopposed MOTION to Extend Time to File Reply Regarding MOTION to Compel Adequate Responses to Discovery 193 by Attorney Patricia S. Bangert on behalf of Intervenor Plaintiff Lou Rollins(Bangert, Patricia) (Entered: 02/26/2007)
210 TEXT ORDER granting 209 Motion to Extend. The plaintiffs shall have until March 5, 2007, to file a reply in support of their MOTION to Compel Adequate Responses to Discovery 193 . Ordered by Magistrate Judge Thomas D. Thalken.(TRL) (Entered: 02/26/2007)
211 MEMORANDUM AND ORDER denying 172 & 173 Defendant's Motions for Summary Judgment, denying as moot 186 Motion to Continue. Ordered by Judge Joseph F. Bataillon.(SMS, ) (Entered: 02/28/2007)
212 MOTION to Extend the Deposition Deadline by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society(Lundholm, Lindsay) (Entered: 03/01/2007)
213 APPLICATION/ORDER admitting for full-time admission Attorney Melvin D. Kennedy for Plaintiff Equal Employment Opportunity Commission. Signed by Deputy Clerk. (JAE, ) Modified on 3/2/2007 to correct type of attorney admission. (JAE, ). (Entered: 03/02/2007)
NOTICE of Docket Text Modification by Deputy Clerk regarding Application/Order 213 admitting for full-time admission Attorney Melvin D. Kennedy for Plaintiff Equal Employment Opportunity Commission. Signed by Deputy Clerk. (JAE, ) Modified on 3/2/2007 to correct type of attorney admission. (JAE, ). (Entered: 03/02/2007) (JAE, ) (Entered: 03/02/2007)
214 TEXT ORDER granting 212 Motion to Extend. The Order Setting Schedule for Progression of a Civil Case 135 is amended to allow the parties an extension until April 13, 2007, to complete depositions. Ordered by Magistrate Judge Thomas D. Thalken.(TRL) (Entered: 03/02/2007)
215 Unopposed MOTION to Extend Time to File Reply to Defendant's Response to MOTION to Compel Adequate Responses to Discovery 193 by Attorney Patricia S. Bangert on behalf of Intervenor Plaintiff Lou Rollins(Bangert, Patricia) (Entered: 03/05/2007)
216 TEXT ORDER granting 215 Motion to Extend. The plaintiffs shall have until March 12, 2007, to file a reply in support of their MOTION to Compel Adequate Responses to Discovery 193 .Ordered by Magistrate Judge Thomas D. Thalken.(TRL) (Entered: 03/06/2007)

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03/09/2007 03/09/2007 03/12/2007 03/12/2007 03/12/2007 03/13/2007
03/15/2007
03/15/2007 03/16/2007 03/23/2007
04/06/2007
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217 CERTIFIED copy of Opinion of USCA - 8th Circuit regarding Notice of Appeal to USCA 132 , Notice (Other) 117 , Notice of Appeal to USCA (Attachments: # 1 Transmittal letter)(TJS) (Entered: 03/12/2007)
218 MANDATE/JUDGMENT from USCA - 8th Circuit reversing and remanding the decision of the District Court regarding Notice of Appeal to USCA 132 , Notice (Other) 117 , Notice of Appeal to USCA (Attachments: # 1 Transmittal Letter)(TJS) (Entered: 03/12/2007)
219 REPLY BRIEF In Support of MOTION to Compel Adequate Responses to Discovery 193 by Attorney Patricia S. Bangert on behalf of Intervenor Plaintiff Lou Rollins. (Attachments: # 1 Exhibit Third Declaration of Louella Rollins# 2 Exhibit State Manager Chart)(Bangert, Patricia) (Entered: 03/12/2007)
220 CERTIFIED copy of Opinion of USCA - 8th Circuit regarding Notice (Other) 117 (Attachments: # 1 Letter from USCA)(PCV, ) (Entered: 03/13/2007)
221 MANDATE/JUDGMENT from USCA - 8th Circuit reversing and remanding the decision of the District Court regarding Notice of Appeal to USCA 132 , Notice of Appeal 117 for proceedings consistent wit the opinion of this court. (PCV, ) (Entered: 03/13/2007)
222 ORDER holding in abeyance 190 Motion to Compel. The defendant shall have to on or before March 19, 2007, to submit copiesof the subject documents under seal to chambers for the undersigned magistrate judge. Absent compliance with this order, the plaintiffs' motion will be granted. Ordered by Magistrate Judge Thomas D. Thalken. (PAV) (Entered: 03/13/2007)
223 ORDER granting 193 Motion to Compel. The defendant shall supplement its responses to these discovery requests by April 6, 2007. The defendant shall have to on or before April 6, 2007, to show cause why the plaintiffs should not be awarded reasonable costs and attorneys fees incurred in bringing this motion to compel, in accordance with Fed. R. Civ. P. 37(a)(4)(A). The court will hold a status telephone conference with counsel on April 13, 2007, at 3:00 p.m. Counsel for the plaintiff EEOC shall initiate the telephone conference. Ordered by Magistrate Judge Thomas D. Thalken.(TRL) (Entered: 03/15/2007)
224 MOTION to Withdraw as Attorney by Attorney Anjuli Kelotra on behalf of Plaintiff Equal Employment Opportunity Commission.(Kelotra, Anjuli) (Entered: 03/15/2007)
225 ORDER granting 224 Motion to Withdraw as Attorney. The Clerk of Court shall stop all electronic notices to Anjuli Kelotra regarding this case. Ordered by Magistrate Judge Thomas D. Thalken.(PCV, ) (Entered: 03/16/2007)
226 ORDER granting in part and denying in part 190 Motion to Compel. The defendant shall have until April 6, 2007, to show cause why the plaintiffs should not be awarded reasonable costs and attorney's fees incurred in bringing this motion to compel, in accordance with Fed. R. Civ. P. 37(a)(4)(A). Ordered by Magistrate Judge Thomas D. Thalken.(TRL) (Entered: 03/23/2007)
227 ORDER - The parties request to extend time is granted. All discovery deadlines, hearing dates, and all other deadlines in this action are stayed for a period of fifteen days. The status telephone conference scheduled for April 13, 2007, is
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cancelled. Counsel shall file a joint status report concerning the status of this case on April 23, 2007. Status Report due by 4/23/2007. Ordered by Magistrate Judge Thomas D. Thalken. (JAE, ) (Entered: 04/06/2007)
228 Unopposed MOTION to Extend Deadline to File Status Report by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society.(Lundholm, Lindsay) (Entered: 04/23/2007)
229 TEXT ORDER granting 228 Motion to Extend Deadline to File Status Report, ORDER 227 is amended to allow the parties an extension until 4/30/2007 to file their status report. Ordered by Magistrate Judge Thomas D. Thalken. (PAV) (Entered: 04/23/2007)
230 STATUS REPORT by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society.(Lundholm, Lindsay) (Entered: 05/01/2007)
231 ORDER that the parties shall file a joint stipulation for dismissal (or other dispositive stipulation) with the clerk of the court which will fully dispose of the case on or before May 10, 2007. The pretrial conference and trial previously scheduled are cancelled upon the representation that this case is settled. Ordered by Magistrate Judge Thomas D. Thalken. (ADB, ) (Entered: 05/02/2007)
232 Joint MOTION to Extend Deadline to File Joint Stipulation for Dismissal by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society.(Lundholm, Lindsay) (Entered: 05/10/2007)
233 TEXT ORDER granting 232 Motion to Extend. The Order 231 is amended to extend the deadline for filing dismissal documents as set forth herein. Counsel shall file the dismissal documents or a joint status report concerning the status of this case on June 21, 2007. Ordered by Magistrate Judge Thomas D. Thalken. (TRL) (Entered: 05/10/2007)
234 MANDATE/JUDGMENT from USCA - 8th Circuit (06-1522) In accordance with the opinion and judgment of 03/09/2007, and pursuant to the provisions of Federal Rule of Appellate Procedure 41(a), the formal mandate is hereby issued in the above-styled matter. (KBJ) (Entered: 05/17/2007)
235 STATUS REPORT by Attorney Lindsay K. Lundholm on behalf of Defendant Woodmen of the World Life Insurance Society.(Lundholm, Lindsay) (Entered: 06/21/2007)
236 TEXT ORDER regarding Status Report 235 . The Order 231 is amended to extend the deadline for filing dismissal documents. Counsel shall file the dismissal documents or a joint status report concerning the status of this case by July 20, 2007. Ordered by Magistrate Judge Thomas D. Thalken. (TRL) (Entered: 06/22/2007)
237 Joint MOTION to Dismiss with Prejudice by Attorney Melvin D. Kennedy on behalf of Plaintiff Equal Employment Opportunity Commission, Intervenor Plaintiff Lou Rollins, Defendant Woodmen of the World Life Insurance Society.(Kennedy, Melvin) (Entered: 07/18/2007)

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238 ORDER - The Joint Motion to Dismiss 237 is granted. The case is dismissed with prejudice. Each Party shall bear its own costs and attorneys fees in accordance with paragraph 8 of the Parties' Settlement Agreement; and this Court shall retain jurisdiction for purposes of enforcing the Settlement Agreement. Ordered by Judge Joseph F. Bataillon. (KBJ) (Entered: 07/24/2007)

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General Docket Eighth Circuit Court of Appeals

Court of Appeals Docket #: 06-1522 Nsuit: 1442 Jobs EEOC, et al. v. Woodmen of the World Appeal From: District of Nebraska - Omaha

Case Type Information: 1) Civil 2) United States as a party 3) null

Originating Court Information: District: 0867-8 : 8:03-cv-165-JFB Trial Judge: Joseph F. Bataillon, U.S. District Judge Date Filed: 04/29/2003 Date Order/Judgment: 02/03/2006

Date NOA Filed: 02/10/2006

Prior Cases: 04-8004 Date Filed: 04/26/2004 Date Disposed: 05/25/2004 Disposition: Denied

Filed: 02/16/2006 Termed: 03/09/2007

Current Cases: None

Equal Employment Opportunity Commission Plaintiff - Appellee

Vince Blackwood Direct: 202-663-4727 [COR LD NTC Government] EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Headquarters Firm: 202-663-4900 1801 L Street, N.W. Washington, DC 20507-0000
Lorraine C. Davis Direct: 202-663-4720 [COR LD NTC Government] EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Headquarters Firm: 202-663-4900 1801 L Street, N.W. Washington, DC 20507-0000

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Louella Rollins Intervenor plaintiff - Appellee
v. Woodmen of the World Life Insurance Society, and/or Omaha Woodmen Life Insurance Society
Defendant - Appellant

Paul D. Ramshaw Direct: 202-663-4737 [COR LD NTC Government] EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Headquarters Firm: 202-663-4900 1801 L Street, N.W. Room 7040 Washington, DC 20507-0000
Patricia S. Bangert Direct: 303-288-2175 [COR LD NTC Retained] 3773 Cherry Creek Drive N. Suite 575 Denver, CO 80209-0000
Lynn L. Palma Direct: 303-866-1374 [COR LD NTC Government] EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 303 E. 17th Avenue Suite 510 Denver, CO 80203-0000
Kirk S. Blecha Direct: 402-344-0500 [COR LD NTC Retained] BAIRD & HOLM Firm: 402-344-0500 1500 Woodmen Tower Omaha, NE 68102-0000
Lindsay Lundholm Direct: 402-344-0500 [COR LD NTC Retained] BAIRD & HOLM Firm: 402-344-0500 1500 Woodmen Tower Omaha, NE 68102-0000
Scott S. Moore Direct: 402-344-0500 [COR LD NTC Retained] BAIRD & HOLM Firm: 402-344-0500

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1500 Woodmen Tower Omaha, NE 68102-0000
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; Plaintiff - Appellee
LOUELLA ROLLINS Intervenor Plaintiff - Appellee

v.
WOODMEN OF THE WORLD LIFE INSURANCE SOCIETY, and/or Omaha Woodmen Life Insurance Society
Defendant - Appellant

02/16/2006 02/16/2006
02/17/2006 02/17/2006 02/17/2006
02/17/2006
02/21/2006
03/01/2006
03/01/2006
03/01/2006 03/06/2006
03/07/2006

Civil Case Docketed. Dist. Ct. Office: Omaha, Nebraska
CERTIFIED copies notice of appeal (containing a motion for stay), docket entries, order dated 8/25/05 and 2/3/06. [06-1522] [2010760]
APPEARANCE for appellant, attorney Lindsay Kay Lundholm [06-1522] [2011360]
APPEARANCE for appellant, attorney Kirk S. Blecha [06-1522] [2011362]
MOTION of aplnt, Woodmen of the World, for stay pending appeal. [06-1522] [2011363] w/service 2/16/06
RECORDS received: Appendix filed by Appellant Woodmen of the World in support of motion for stay pending appeal consisting of 1 Volume(s), 3 Copies. [06-1522]
CERTIFIED copies of amended notice of appeal, with updated docket entries. [06-1522] [2012154]
MOTION of aplee, Louella Rollins , for extension of time to file a response until 3/6/06 . [06-1522] [2015450] w/service 3/1/06
ORDER filed:granting appellee motion extension of time to file a response until 3/6/06. [2015450-1] [06-1522] [2015451]
APPEARANCE for appellant, attorney Scott S. Moore [06-1522] [2015762]
RESPONSE of aplee, Louella Rollins, in opposition to appellant motion for stay filed by Woodmen of the World [2011363-1] [06-1522] [2017516] . TO COURT
ATTORNEY motion, filed by Paul D. Ramshaw , to add EEOC as party to this appeal. with service on 3/7/06. [06-1522] [2018000]

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03/07/2006 03/09/2006 03/15/2006 03/15/2006 03/15/2006
03/15/2006 03/16/2006 03/16/2006 03/23/2006 03/27/2006 04/24/2006 04/24/2006 05/15/2006 05/17/2006 06/07/2006 06/07/2006 06/12/2006 06/20/2006 06/26/2006 06/27/2006 07/10/2006

RECEIVED EEOC opposition to stay pending appeal filed by Paul D. Ramshaw. [06-1522]
APPEARANCE for appellee, attorney Patricia S. Bangert [06-1522] [2021281]
APPEARANCE for appellee, attorney Paul D. Ramshaw [06-1522] [2020836]
RESPONSE of aplee, EEOC, in opposition to appellant motion for stay filed by Woodmen of the World [2011363-1] [06-1522] [2020837] .
JUDGE ORDER: granting attorney motion to add party EEOC as appellee. [2018000-1] [06-1522] [2020842], denying appellant motion for stay [2011363-1] filed by Woodmen of the World [06-1522] [2020842]
BRIEFING SCHEDULE: [06-1522] Joint Apndx due on 4/24/06 ; Aplnt brief due on 4/24/06 ; Aplee brief due on 5/24/06 ; Reply brief due on 6/7/06 ;
MOTION of aplnt, Woodmen of the World, for reconsideration of order of March 15, 2006 [06-1522] [2021931] w/service 3/15/06
REPLY filed by Woodmen of the World to responses of appellees to motion for stay. [06-1522]
JUDGE ORDER: denying appellant motion for reconsideration [2021931-1] filed by Woodmen of the World [06-1522] [2024058]
DESIGNATION of record received from Appellant Woodmen of the World. Type of appendix: separate [06-1522]
RECORDS received: Appendix filed by Appellant Woodmen of the World consisting of 1 Volume(s), 4 Copies. [06-1522]
BRIEF FILED - Brief of Appellant- Woodmen of the World 30 pages w/addendum 10 copies - w/service 4/21/06 w/diskette . [06-1522] [2039078]
MOTION of aplee, EEOC, Louella Rollins , for extension of time to file brief until 6/7/06 . [06-1522] [2046029] w/service 5/15/06
ORDER filed:granting appellee motion extension of time to file brief [2046029-1] [2046030] Aplee brief now due on 6/7/06 .
RECORDS received: Appendix filed by Appellee Louella Rollins consisting of 2 Volume(s), 3 Copies. [06-1522]
BRIEF FILED - Brief of Appellee - Louella Rollins. 8672 words - 10 copies - w/service 6/6/06 . w/diskette [06-1522] [2054382]
BRIEF FILED - Brief of Appellee - EEOC. 3536 words - 10 copies - w/service 6/7/06 no diskette [06-1522] [2056636]
TO SCREENING to rw. [06-1522]
RETURNED from Screening (15) [06-1522]
BRIEF FILED - Reply brief - Woodmen of the World . 4718 words 10 copies - w/service 6/26/06 . w/diskette [06-1522] [2062808]
MOTION of aplee, Louella Rollins , to file sur-reply. [06-1522] [2067771] w/service 7/8/06

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07/10/2006 07/10/2006 07/13/2006 07/19/2006 07/19/2006 09/19/2006 10/13/2006 11/13/2006 11/17/2006
12/15/2006 12/15/2006 12/18/2006 03/09/2007 03/09/2007 04/20/2007 04/23/2007
05/17/2007

DOCUMENT TENDERED: sur-reply . Document rec'd on 7/10/06. [06-1522]
RECORD TENDERED: Supplemental Appendix filed by Appellee Louella Rollins consisting of 1 Volume(s), 3 Copies . [06-1522]
RESPONSE of aplnt, Woodmen of the World, in opposition to appellee motion to file reply filed by Louella Rollins [2067771-1] [06-1522] [2067779] .
ORDER filed: Appellee's motion for leave to file sur-reply brief shall be taken with the case for consideration by the panel to which this case is submitted for disposition on the merits. [2068854]
Corrected disk rec'd for brief of EEOC [06-1522]
CERTIFIED copies of district court order of 9/6/06 regarding denial or joint motion for order under Rule 4.2 permitting ex parte communications, with updated docket entries. [06-1522] [2091763]
*SET FOR ARGUMENT* - November in St. Louis.
28(j) citation received and filed from Appellee EEOC TO COURT [06-1522] [2108959]
ARGUED AND SUBMITTED IN ST. LOUIS, MO TO JUDGES William J. Riley, David R. Hansen, Lavenski R. Smith . Kirk S. Blecha for Appellant Woodmen of the World. Patricia S. Bangert for Intervenor/Appellee Louella Rollins. Paul D. Ramshaw for Appellee EEOC. Rebuttal by: Mr. Blecka . RECORDED. [06-1522]
Originating court document filed consisting of docket entries (two certified copies). [06-1522]
Originating court document filed consisting of originating court order of 12/04/2006, which grants plaintiff's counsel (Joseph H. Mitchell and Nelson G. Alston) to withdraw. [06-1522]
Originating court document filed consisting of originating court order of 12/05/2006, granting motions for leave to withdraw of Kim Rogers, Lynn Palma, and Ann L. Fuller as counsel for the plaintiff. [06-1522]
OPINION FILED - THE COURT: WILLIAM JAY RILEY ; DAVID R. HANSEN ; LAVENSKI R. SMITH. David R. Hansen, Authoring Judge (PUBLISHED) [3286531] [06-1522]
JUDGMENT FILED - The judgment of the originating court is REVERSED and REMANDED in accordance with the opinion. WILLIAM JAY RILEY ; DAVID R. HANSEN ; LAVENSKI R. SMITH [3286548] [06-1522]
MOTION of Appellee Ms. Louella Rollins, on behalf of Appellee EEOC, and Appellant Woodmen of the World Life Insurance, for extension of time to file petition for rehearing until 05/07/2007 w/service 04/20/2007. [3301674] [06-1522]
CLERK ORDER:Granting [3301674-2] motion for 14-day extension of time to file rehearing filed by Appellees EEOC, Ms. Louella Rollins and Appellant Woodmen of the World Life Insurance Society. Petition for Rehearing due on 05/07/2007 [3301899] [06-1522]
MANDATE ISSUED. [06-1522]

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 479 F.3d 561 (2007)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; Louella Rollins, Appellees, v.
WOODMEN OF THE WORLD LIFE INSURANCE SOCIETY, and/or Omaha Woodmen Life Insurance Society, Appellant.
No. 06-1522.
United States Court of Appeals, Eighth Circuit.
Submitted: November 17, 2006. Filed: March 9, 2007.
5623 *562 *563 Kirk S. Blecha, argued, Omaha, NE (Lindsay Kay Lundholm, Baird & Holm, on the brief), for appellant.
Patricia S. Bangert, argued, Denver, CO, for appellee Rollins.
Paul D. Ramshaw, argued, Equal Employment Opportunity Commission, Washington, DC, for appellee E.E.O.C.
Before RILEY, HANSEN, and SMITH, Circuit Judges.
HANSEN, Circuit Judge.
The Woodmen of the World Life Insurance Society (Woodmen) sought to compel its employee, Louella Rollins, to arbitrate her Title VII claims and to stay the cross-claims she brought as an intervenor in the Equal Employment Opportunity Commission's (EEOC) enforcement action filed against Woodmen. See 42 U.S.C. § 2000e-5(f). The district court ultimately denied Woodmen's motion, and it allowed Rollins to intervene in the EEOC action despite her agreement to arbitrate. Woodmen appeals, and we reverse.
I.
Louella Rollins worked for Woodmen from 1989 to 2001 pursuant to a written employment agreement that included an agreement "to resolve any and all claims, demands, causes of action, charges and disputes of any nature whatsoever, . . . in any way related to the relationship established by this contract, based on any theory . . . including . . . any claims of or for . . . discrimination based on . . . sex . . . under any state or federal law . . ." through alternative dispute resolution, including binding arbitration. (Add. at 5.) Rollins filed a charge of sex discrimination with the EEOC on September 20, 1999, alleging that Woodmen had failed to remedy a hostile 564 work environment created by her male subordinates and ultimately demoted *564 Rollins after she complained to Woodmen's Equal Employment Opportunity office about the hostile environment.
The EEOC commenced a Title VII enforcement action against Woodmen in April 2003, and the district court granted Rollins' motion to intervene in that action in October 2003. Concurrent with the motion to intervene, Rollins filed a cross-claim against Woodmen that was nearly identical to the EEOC's enforcement action. In August 2004, the district court granted Woodmen's motion to compel Rollins to arbitrate the individual claims that she raised as an intervenor against Woodmen in the Title VII action. The district court also stayed Rollins' participation in the EEOC's enforcement action. Thereafter, Woodmen and Rollins entered into an agreement in November 2004 entitled "Agreement to Binding Arbitration," which set out the procedural details of the arbitration. Discovery proceeded concurrently in the EEOC enforcement action and in the arbitration proceeding, and an arbitration hearing was set to begin on May 24, 2005. Prior to the hearing, Rollins filed a motion seeking relief from the district court's order compelling arbitration on the basis that the cost of the arbitration made it inequitable to force her to arbitrate. Woodmen filed a renewed motion to compel arbitration. The district court granted Rollins' motion and denied Woodmen's renewed motion in an August 25, 2005, order, allowing Rollins to avoid arbitration and to proceed in the EEOC suit.

Meanwhile, Rollins filed a Chapter 7 bankruptcy petition in July 2005 in the Middle District of Pennsylvania. In October 2005 the district court stayed the EEOC's current suit pending action by the Bankruptcy Court, which lifted the automatic stay as it applied to this litigation in December 2005. On February 3, 2006, the district court denied Woodmen's motion to amend the court's August 25, 2005, order denying the motion to compel arbitration, and the district court reissued the August 2005 order. Woodmen appeals. We have jurisdiction over the appeal of the denial of a motion to compel arbitration pursuant to 9 U.S.C. § 16(a)(1)(C).
II.
The issue before this court is whether the district court properly excused Rollins from arbitrating her individual discrimination claims and allowed her to proceed in the EEOC's enforcement action as an intervenor. The district court granted Rollins' requested relief on three bases: (1) because Rollins could not afford arbitration, (2) because forcing Rollins to arbitrate would interfere with the EEOC's ability to pursue its interests on behalf of the public, and (3) because Rollins had filed for bankruptcy protection, listing the lawsuit in her bankruptcy schedules. [1] On appeal, Rollins asserts that once the EEOC filed its enforcement action, she lost any right to litigate her 565 individual claims other than as an intervenor in the EEOC action, leaving nothing for her to *565 arbitrate. Rollins further asserts that the "external circumstances" of her inability to pay for the arbitration proceeding foreclose enforcement of the arbitration agreement. Woodmen contends that Rollins should be bound by her agreements to arbitrate.
We review de novo the district court's denial of Woodmen's motion to compel arbitration. Suburban Leisure Ctr., Inc. v. AMF Bowling Prods., Inc., 468 F.3d 523, 525 (8th Cir.2006). Under the Federal Arbitration Act (FAA), "[a] written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. "[T]he FAA's purpose [was] `to reverse the longstanding judicial hostility to arbitration agreements . . . and to place arbitration agreements upon the same footing as other contracts.'" Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 89, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000) (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (ellipses in original)). The federal policy manifested by the FAA "is at bottom a policy guaranteeing the enforcement of private contractual arrangements." Mitsubishi Motors v. Soler ChryslerPlymouth, 473 U.S. 614, 625, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) (internal marks omitted). Arbitration agreements encompassing federal statutory claims are enforceable as long as the potential litigant can effectively vindicate her statutory rights through arbitration. Green Tree, 531 U.S. at 90, 121 S.Ct. 513; see also Lyster v. Ryan's Family Steak Houses, Inc., 239 F.3d 943, 946 (8th Cir.2001) ("Title VII claims are subject to individual consensual agreements to arbitrate."). In the Civil Rights Act of 1991, Congress encouraged the use of alternative dispute resolution, including arbitration, "to resolve disputes arising under the Acts or provisions of Federal law amended by this title," including Title VII. See Civil Rights Act of 1991, Pub.L. No. 102-166, § 118, 105 Stat. 1071, 1081 (Congressional Note on the interpretation of Title VII contained within the 1991 amendments to 42 U.S.C. § 2000e). In addressing a motion to compel arbitration then, courts generally "ask only (1) whether there is a valid arbitration agreement and (2) whether the particular dispute falls within the terms of that agreement." Faber v. Menard, Inc., 367 F.3d 1048, 1052 (8th Cir.2004).
The validity of the arbitration agreement is determined by state contract law. Id. We construe the district court's reliance on Faber as raising a concern about the conscionability of the arbitration agreement based on the fee structure. Id. at 1051 (noting that the arbitration agreement at issue required the parties to each pay one half of the arbitrator's fees and their own attorney's fees). The Faber court looked to Iowa contract law to determine whether the fee-splitting provision in the arbitration agreement there at issue was unconscionable, thus invalidating the agreement under state contract law. Id. at 1053. Both the original arbitration agreement contained in Rollins' employment contract and the subsequent "Agreement to Binding Arbitration" provide that the parties will share the costs of arbitration. Rollins introduced evidence in the district court about the costs associated with the private arbitrator chosen to conduct the arbitration proceeding and about her impending bankruptcy. The district court determined that the spiraling costs, coupled with Rollins' financial situation, relieved her of her

566 obligation to continue the *566 arbitration, particularly where she could piggyback on the EEOC's discovery and litigation and avoid incurring those expenses personally.
Under Nebraska law, "the term `unconscionable' means manifestly unfair or inequitable." Myers v. Neb. Inv. Council, 272 Neb. 669, 724 N.W.2d 776, 799 (Neb.2006). Further, "[a] contract is not substantively unconscionable unless the terms are grossly unfair under the circumstances that existed when the parties entered into the contract." Id. Nebraska courts also consider whether a contract is "procedurally unconscionable," an essential element of which includes "the disparity in respective bargaining positions of parties to a contract." Id. Although Rollins signed a standard Woodmen employment agreement, "adhesion contracts are not automatically unconscionable or void" under Nebraska law. Kosmicki v. Nebraska, 264 Neb. 887, 652 N.W.2d 883, 893 (Neb.2002); see also Faber, 367 F.3d at 1053 (holding that "inequality in bargaining power . . . is not enough by itself to overcome the federal policy favoring arbitration," citing Gilmer, 500 U.S. at 33, 111 S.Ct. 1647 ). Rollins does not argue that splitting the costs of the arbitration is fundamentally unfair, an issue to be determined based on the circumstances that existed at the time the original employment contract was entered, and the district court did not rely on such a conclusion. Indeed, the district court did not analyze the contract under Nebraska contract law at all. Rollins argues only that her current inability to afford the arbitration costs, including both the arbitration fees and her own litigation costs, should relieve her of her agreement to arbitrate. Considering the circumstances that existed at the time the two arbitration agreements were entered, we conclude that neither arbitration agreement is unconscionable under Nebraska law.
To the extent that Green Tree provides a basis for avoiding an arbitration agreement beyond that allowed by general state contract law, Rollins has failed to meet that standard as well. Cf. Pro Tech Indus., Inc. v. URS Corp., 377 F.3d 868, 873 (8th Cir.2004) (noting that Green Tree addressed the arbitration of federal statutory claims rather than the unconscionability of an arbitration agreement under state law). In Green Tree, the plaintiff claimed that the potential for excessive fees she could incur if she was required to go to arbitration prevented her from vindicating her statutory rights. The Supreme Court recognized that "claims arising under a statute designed to further important social policies may be arbitrated so long as the prospective litigant effectively may vindicate [her] statutory cause of action in the arbitral forum." Green Tree, 531 U.S. at 90, 121 S.Ct. 513 (internal marks omitted). Nonetheless, the Court refused to invalidate an arbitration agreement based on the risk of excessively prohibitive fees where the arbitration agreement was silent on the allocation of the fees and the record was devoid of any evidence of the costs that would be imposed on the plaintiff. Id. at 90-91, 121 S.Ct. 513. To invalidate an arbitration agreement based on speculation "would undermine the `liberal federal policy favoring arbitration agreements.'" Id. at 91, 121 S.Ct. 513 (quoting Moses H. Cone Mem'l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)). The party seeking to invalidate an arbitration agreement based on prohibitively expensive costs that would preclude the vindication of statutory rights "bears the burden of showing the likelihood of incurring such costs." Id. at 92, 121 S.Ct. 513.
567 The arbitration agreements here at issue allocate the costs of arbitration equally between the parties, and Rollins *567 has introduced evidence of what those costs will be relative to her financial position. However, Woodmen has agreed to waive the fee-splitting provision and pay the arbitrator's fees in full. Further, the arbitration agreement contained in Rollins' employment agreement includes a severability clause, such that the fee-splitting provision can be severed and the remainder of the arbitration agreement enforced, even absent Woodmen's offer. See Faber, 367 F.3d at 1054 (ordering district court to sever fee-splitting provision on remand if court determines that the provision would preclude Faber from vindicating his statutory rights); Dobbins v. Hawk's Enters., 198 F.3d 715, 717 (8th Cir.1999) (ordering the district court to determine whether a reduced arbitration fee is unreasonable, and if it is, to accept the appellant's offer to pay the fee in full). Thus, Rollins has failed to establish that the costs of arbitration will preclude her from vindicating her statutory rights.
We also reject Rollins' claim that the attorney's fees and litigation costs associated with the arbitration proceeding make the agreement unconscionable. We note first the obvious0907that "attorney's fees are not unique to arbitration." Faber, 367 F.3d at 1054. Excessive arbitration costs can make an arbitration agreement unconscionable because a litigant does not face fees for the decision-maker similar to arbitration costs when she proceeds in federal court. She does, however, face attorney's fees and litigation costs in court. Thus, the fact that a party will incur litigation costs and attorney's fees in an arbitral forum does not make that forum

unconscionable; she would generally face those fees regardless of the forum. See Faber, 367 F.3d at 1054 (analyzing attorney's fee agreement separately from fee-splitting arrangement).
Rollins asserts that unique circumstances0907the arbitrator's requirement that each party's attorney personally guarantee payment of the arbitrator's fees0907make it nearly impossible for her to obtain the services of a contingency fee-based attorney, thus greatly increasing her out-of-pocket costs. However, Woodmen's offer to pay the arbitrator's fees in full negates the underlying premise of Rollins' argument. Paying one's own attorney's fees and related litigation costs, particularly where there is no impediment to a contingency fee arrangement, cannot be said to be unconscionable.
The district court relied on the fact that Rollins could piggyback on the EEOC's discovery and litigation to avoid duplicative costs in relieving Rollins of her agreement to arbitrate. While it may be more convenient and efficient to allow Rollins to proceed in the EEOC's case as an intervenor rather than requiring her to arbitrate, that does not make the arbitration agreement unconscionable, and thus invalid, which is the proper standard for allowing a party to avoid her contractual obligation. See Faber, 367 F.3d at 1054-55 (rejecting district court's reliance on policy grounds for invalidating an arbitration agreement). We therefore hold that the arbitration agreements are valid, and we "follow the federal presumption in favor of arbitration." Id. at 1055.
Rollins next argues that the dispute at issue, which she characterizes as her rights as an intervenor in the EEOC's enforcement action, does not fall within the terms of the arbitration agreement. She claims that she has no individual claims to pursue in arbitration because the EEOC preempted her individual cause of action by bringing its enforcement action. See EEOC v. Waffle House, 534 U.S. 279, 291, 122 S.Ct. 754, 151 L.Ed.2d 755 568 (2002) ("If, however, the EEOC files suit on its own, *568 the employee has no independent cause of action. . . ."). The district court determined that requiring Rollins to arbitrate her claims would interfere with the EEOC's ability to pursue its enforcement action.
First, we reject the district court's conclusion that requiring Rollins to arbitrate her claims would interfere with the EEOC's ability to pursue its enforcement action. The Supreme Court specifically held in Waffle House that an arbitration agreement between an employer and an employee did not prevent the EEOC from seeking all remedies available to it in its enforcement action, including victim-specific relief. See id. at 295-96, 122 S.Ct. 754. In this appeal, the EEOC seeks only to ensure that its enforcement action will not be stayed in the event we reverse the district court's judgment relieving Rollins of her obligation to arbitrate her claims. Under Waffle House, we agree that the arbitration agreement and any related proceedings have no bearing on the EEOC's ability to pursue its enforcement action, and we place no limitations on the EEOC's continuation of its enforcement action.
We also reject Rollins' assertion that once the EEOC filed its enforcement action she lost any claim to pursue in arbitration. Rollins places more weight on a single statement in Waffle House 0907that "an employee has no independent cause of action"0907than that statement can bear.[2]Cf. Comer v. Micor, Inc., 436 F.3d 1098, 1104 n. 10 (9th Cir.2006) ("We note in passing that Waffle House made a number of categorical statements that cannot be taken at face value."). In Waffle House, the Supreme Court stated, in explaining the federal enforcement mechanism under Title VII, that once the EEOC files an enforcement action, "the employee has no independent cause of action, although the employee may intervene in the EEOC's suit," citing § 2000e-5(f)(1). Waffle House, 534 U.S. at 291, 122 S.Ct. 754. The Supreme Court was explaining the EEOC's importance in enforcing Title VII rights and its independent duty to vindicate the public's interest in preventing discrimination in the workplace. Thus, during the pendency of the EEOC's enforcement action, the statutory scheme prevents the employee from bringing a separate federal cause of action for a violation of Title VII. However, it is clear that the employee does not lose her substantive statutory rights under Title VII when the EEOC files an enforcement action. Indeed, as noted by the Supreme Court, the employee is entitled to intervene in the EEOC's suit for the very purpose of preserving her substantive rights. Those rights, which may be protected by intervening in the EEOC's suit, continue to exist after the EEOC has filed its suit. Indeed, those rights formed the basis for Rollins' cross-claims against Woodmen.
That an employee does not lose her substantive Title VII rights is made clear by comparing the Title VII enforcement scheme to the scheme applicable to claims under the Age Discrimination in Employment Act 569 (ADEA). Under the ADEA, *569 once the EEOC files an enforcement action, "the right of any person to bring

such an action shall terminate upon the commencement of an action by the [EEOC]." 29 U.S.C. § 626(c)(1) (emphasis added); see also EEOC v. Pan Am. World Airways, Inc., 897 F.2d 1499, 1507 (9th Cir.) (noting that once the EEOC files suit, the employee no longer has any ADEA rights to pursue), cert. denied, 498 U.S. 815, 111 S.Ct. 55, 112 L.Ed.2d 31 (1990). The same is not true under Title VII, which does not terminate an employee's rights. See Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 326, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980) ("The EEOC's [Title VII] civil suit was intended to supplement, not replace, the private action."); see also Vines v. Univ. of La. at Monroe, 398 F.3d 700, 707 (5th Cir.2005) ("[T]he enforcement scheme of Title VII does not terminate the rights of the employee once the EEOC brings a suit."), cert. denied, ___ U.S. ___, 126 S.Ct. 1019, 163 L.Ed.2d 852 (2006); E.E.O.C. v. U.S. Steel Corp., 921 F.2d 489, 494 n. 4 (3d Cir.1990) (noting that in terminating the employee's private cause of action in an ADEA claim once the EEOC filed suit, the framers of the ADEA consciously departed from Title VII, which had no similar feature). Further, the ADEA does not provide a statutory right to intervene in the EEOC enforcement action, leaving employees to establish that their interest in the EEOC's enforcement action meets the requirements of Federal Rule of Civil Procedure 24(a)(2). By contrast, Title VII explicitly preserves the employee's unconditional right to vindicate her own interests by intervening in the EEOC's enforcement action. See § 2000e-5(f); Fed.R.Civ.P. 24(a)(1) (allowing intervention as a matter of right where a federal statute confers an unconditional right to intervene).
A complete reading of the Supreme Court's analysis in Waffle House convinces us that the Supreme Court did not place the same significance on the statement upon which Rollins relies as does Rollins. The Supreme Court recognized that an employee's conduct, such as the failure to mitigate damages or the acceptance of a settlement, may limit the relief that the EEOC ultimately may obtain in its enforcement action. Waffle House, 534 U.S. at 296, 122 S.Ct. 754. The Supreme Court contemplated that the employee retained some type of claim, or there would be nothing for the employee to settle with the employer. Thus, even though Title VII makes the EEOC the master of the federal cause of action, nothing in Title VII purports to preclude an employee from entering into settlement negotiations.
The Court also noted that "[i]t is an open question whether a settlement or arbitration judgment would affect the validity of the EEOC's claim or the character of relief the EEOC may seek." Id. at 297, 122 S.Ct. 754. In explaining why the arbitration agreement at issue in Waffle House did not apply to the EEOC, which was not a party to the arbitration agreement, the Supreme Court noted that "the FAA enables [the employer] to compel [the employee] to arbitrate his claim, but it does not expand the range of claims subject to arbitration beyond what is provided in the agreement." Id. at 293 n. 9, 122 S.Ct. 754. The Supreme Court also found "the statutory language [to be] clear; the EEOC has the authority to pursue victim-specific relief regardless of the forum that the employer and employee have chosen to resolve their disputes." Id. at 295, 122 S.Ct. 754. Had the Supreme Court intended to preclude an employee from asserting claims in arbitration against the employer concurrently with the EEOC enforcement action by its statement that the employee has no independent cause of action once the EEOC filed 570 its enforcement action, it *570 would not have had occasion or need to discuss the possible ramifications of an arbitration award.
An employee indisputably has a right to intervene in an EEOC enforcement action, see 42 U.S.C. § 2000e-5(f) (1), but she also has a right to contract for an arbitral forum within which to litigate her claims. While employers cannot require their employees to prospectively give up their substantive statutory rights, see Rappaport, Hertz, Cherson & Rosenthal, P.C., 448 F.Supp.2d 458, 460 (E.D.N.Y.2006) ("It is well settled that although parties may agree to arbitrate federal statutory claims, `a party does not forgo the substantive rights afforded by the statute. . . .'" (quoting Gilmer, 500 U.S. at 26, 111 S.Ct. 1647)), the key distinction is that intervening in the EEOC's enforcement action is a procedural, not a substantive, right, see Canatella v. California, 404 F.3d 1106, 1113 (9th Cir.2005) ("Intervention as of right is merely a procedural means for entering an existing federal action."). As noted by the Supreme Court, arbitration agreements are merely forum selection clauses. Waffle House, 534 U.S. at 295, 122 S.Ct. 754.
Considering the Title VII enforcement regime as a whole, as well as the complete analysis in the Waffle House opinion, we conclude that neither Title VII nor Waffle House precludes Rollins from arbitrating her dispute with Woodmen, and that the FAA compels her to arbitrate the dispute. The FAA provides that suits pending in federal court based on issues referable to arbitration "shall [be] . . . stay[ed] . . . until such arbitration has been had." 9 U.S.C. § 3. Rollins can bring all of the cross-claims she asserted as an intervenor in the arbitration proceedings.

In fact, by entering into the arbitration agreements, she has bound herself to do so. Just as an employee's agreement to arbitrate her claims mandates that claims that could be brought in an original Title VII federal action be decided in an arbitral rather than a judicial forum, so too does that agreement mandate that the cross-claims that Rollins attempts to bring as an intervenor in the EEOC's enforcement action be decided in the arbitral forum.
III.
The district court's judgment denying Woodmen's motion to compel arbitration is reversed, and the case is remanded to the district court for entry of an order compelling arbitration of the cross-claims and such further proceedings as are necessary. Pursuant to § 3 of the FAA, the district court shall stay Rollins' cross-claims filed in the EEOC's action, but there is no basis for staying the EEOC's enforcement action itself.
[1] The district court's reasoning based on Rollins' bankruptcy filing was part of its August 25, 2005, order. As noted, the Bankruptcy Court for the Middle District of Pennsylvania subsequently determined that, to the extent it applied, the automatic stay would be modified with respect to the Title VII action to the extent necessary to litigate the case. In reinstating its August 25, 2005, order, the district court noted that the bankruptcy stay would not prevent litigation of the case. (Add. at 26, Dist. Ct. Order Feb. 3, 2006, at 3.) Thus, Rollins' bankruptcy proceeding could no longer form part of the district court's reasoning for granting relief to Rollins in its February 3, 2006, order, despite reinstatement of the August 25, 2005, order, and we do not further address the impact of Rollins' bankruptcy proceedings.
[2] Rollins is not alone in her thinking. See EEOC v. Physician Servs., P.S.C., 425 F.Supp.2d 859, 861-62 (E.D.Ky.2006) (relying on the same statement in Waffle House to relieve an employee of her agreement to arbitrate Title VII disputes). For the reasons stated herein, we respectfully disagree, and we are not alone in doing so. See EEOC v. Hooters of Am., Inc., No. 06-CV-6138CJS, 2007 WL 64163, at *5 (W.D.N.Y. Jan.9, 2007) (disagreeing with Physician Services, finding that the intervening Title VII plaintiff's independent claims were subject to arbitration, and staying the intervening action while allowing the EEOC's case to proceed); EEOC v. Rappaport, Hertz, Cherson & Rosenthal, 273 F.Supp.2d 260, 264-65 (E.D.N.Y.2003) (same).
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