IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

MERRILL GARDENS, LLC,

)

)

Defendant.

)

------------------------------)

NATURE OF THE ACTION

CIVIL AC:nPN NO. , ':, ,'1,1]

1 I~'i. 05C ,V o'er"" ~ .,....," ••". "I

.' " I-·,!,;~"!T:.!'·"~T I

TLS
COMPLAINT
JURY TRIAL DEMAND

This is an action under Title VII of the Civil Rights Act of 1964 and Title I of the Civil

Rights Act of 1991 to correct unlawful employment practices on the basis of race and/or color,

and to provide appropriate relief to Caroline Advro, Jaela Brownlee, Debra Edwards, William

Hill, Elizebeth Worthman, and a class of non-Caucasian individuals who were adversely affected

by such practices. The Commission alleges that Merrill Gardens, LLC, had a pattern or practice

of refusing to hire non-Caucasians because of their race and/or color.

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 Sections 706(f)(1) and (3)

and 707 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-5(f)(I) and

(3) and -6 ("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 Northern District of Indiana, Fort Wayne

Division.

----.--.-~~~-~-
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation, and enforcement of Title VII, and is expressly authorized to bring this action by Sections 706(f)(1) and (3) and 707 of Title VII, 42 U.S.C. §§ 2000e-5(f)(1) and (3) and -6. 4. At all relevant times, Defendant, Merrill Gardens, LLC (the "Employer")"has continuously been a Washington corporation doing business in the State ofIndiana and the City of Fort Wayne, and has continuously had at least 15 employees. 5. At all relevant times, Defendant Employer has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701(b), (g), and (h) of Title VII, 42 U.S.c. §§ 2000e(b), (g), and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution ofthis lawsuit, Caroline Advro, Jaela Brownlee, Debra Edwards, William Hill, and Elizebeth Worthman filed charges with the Commission alleging violations of Title VII by Defendant Employer. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. Since at least January 1, 2002, Defendant Employer engaged in unlawful employment practices at its Fort Wayne, Indiana, facility in violation of Section 703(a) of Title VII, 42 U.S.c. § 2000e-2(a). Defendant Employer had a pattern or practice of refusing to hire non-Caucasians because of their race and/or color. 8. The effect of the practice complained of in paragraph 7 above has been to deprive Caroline Advro, Jaela Brownlee, Debra Edwards, William Hill, Elizebeth Worthman, and a class
2

of non-Caucasian individuals of equal employment opportunities and otherwise adversely affect their status as applicants for employment, because of their race and/or color.
9. Since at least January 1,2002, Defendant Employer has failed, in violation of
Section 709(c) of Title VII, 42 u.s.c. § 2000e-8(c), to make and preserve records relevant to the
determination of whether unlawful employment practices have been or are being committed. 10. The unlawful employment practices complained of in paragraphs 7 and 9 above
were intentional. 11. The unlawful employment practices complained of in paragraphs 7 and 9 above
were done with malice or with reckless indifference to the federally protected rights of Caroline Advro, Jaela Brownlee, Debra Edwards, William Hill, Elizebeth Worthman, and a class of nonCaucasian individuals.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant Employer, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in hiring discrimination and any other employment practice which discriminates on the basis of race. B. Order Defendant Employer to institute and carry out policies, practices, and programs which provide equal employment opportunities for minorities, and which eradicate the effects of its past and present unlawful employment practices. C. Order Defendant Employer to make whole Caroline Advro, Jaela Brownlee, Debra Edwards, William Hill, Elizebeth Worthman, and a class of non-Caucasian individuals, by
3

providing appropriate backpay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to rightful place hiring of Caroline Advro, laela Brownlee, Debra Edwards, William Hill, Elizebeth Worthman, and a class of non-Caucasian individuals.
D. Order Defendant Employer to make and preserve all records, in accordance with the provisions of Section 709(c) of Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e8(c), relevant to the determination of whether unlawful employment practices have been or are being committed.
E. Order Defendant Employer to make whole Caroline Advro, laela Brownlee, Debra Edwards, William Hill, Elizebeth Worthman, and a class of non-Caucasian individuals, by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraph 7 above, in amounts to be determined at trial.
F. Order Defendant Employer to make whole Caroline Advro, laela Brownlee, Debra Edwards, William Hill, Elizebeth Worthman, and a class of non-Caucasian individuals by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in paragraph 7 above, including embarrassment, humiliation, and emotional pain and suffering, in amounts to be determined at trial.
G. Order Defendant Employer to pay Caroline Advro, laela Brownlee, Debra Edwards, William Hill, Elizebeth Worthman, and a class of non-Caucasian individuals punitive damages for its malicious and reckless conduct described in paragraphs 7 and 9 above, in amounts to be determined at trial.
4

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

H. Grant such further relief as the Court deems necessary and proper in the public

interest.

1.

Award the Commission its costs of this action.

JURY TRIAL DEMAND

The Commission requests a jury trial on all questions of fact raised by its complaint.

ERIC DREIBAND General Counsel

JAMESL.LEE Deputy General Counsel

GWENDOLYN YOUNG REAMS Associate General Counsel

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
1801 L Street, N.W. Washington D.C. 20507

CHELLE EISELE, #12070-49 Supervisory Trial Attorney
~ttiRD11O~
Senior Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Indianapolis District Office 101 West Ohio Street, Suite 1900 Indianapolis IN 46204-4203 Phone: (317) 226-7204 Fax: (317) 226-5571 Email: Kenneth.Bird@eeoc.gov
5

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

MERRILL GARDENS, LLC,

)

)

Defendant.

)

)

CIVIL ACTION NO. 1:05-CV-004-TLS
COMPLAINT JURY TRIAL DEMAND

NATURE OF THE ACTION

This is an action under Title VII of the Civil Rights Act of 1964 and Title I of the Civil

Rights Act of 1991 to correct unlawful employment practices on the basis of race and/or color,

and to provide appropriate relief to Caroline Aduro, Jaela Brownlee, Debra Edwards, William

Hill, Elizebeth Worthman, and a class of non-Caucasian individuals who were adversely affected

by such practices. The Commission alleges that Merrill Gardens, LLC, had a pattern or practice

of refusing to hire non-Caucasians because of their race and/or color.

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 Sections 706(f)(1) and (3)

and 707 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-5(f)(1) and

(3) and -6 (“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 Northern District of Indiana, Fort Wayne

Division.

PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the “Commission”), is the agency of the United States of America charged with the administration, interpretation, and enforcement of Title VII, and is expressly authorized to bring this action by Sections 706(f)(1) and (3) and 707 of Title VII, 42 U.S.C. §§ 2000e-5(f)(1) and (3) and -6. 4. At all relevant times, Defendant, Merrill Gardens, LLC (the “Employer”) has continuously been a Washington corporation doing business in the State of Indiana and the City of Fort Wayne, and has continuously had at least 15 employees. 5. At all relevant times, Defendant Employer has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701(b), (g), and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g), and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Caroline Aduro, Jaela Brownlee, Debra Edwards, William Hill, and Elizebeth Worthman filed charges with the Commission alleging violations of Title VII by Defendant Employer. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. Since at least January 1, 2002, Defendant Employer engaged in unlawful employment practices at its Fort Wayne, Indiana, facility in violation of Section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a). Defendant Employer had a pattern or practice of refusing to hire non-Caucasians because of their race and/or color. 8. The effect of the practice complained of in paragraph 7 above has been to deprive Caroline Aduro, Jaela Brownlee, Debra Edwards, William Hill, Elizebeth Worthman, and a class
2

of non-Caucasian individuals of equal employment opportunities and otherwise adversely affect their status as applicants for employment, because of their race and/or color.
9. Since at least January 1, 2002, Defendant Employer has failed, in violation of Section 709(c) of Title VII, 42 U.S.C. § 2000e-8(c), to make and preserve records relevant to the determination of whether unlawful employment practices have been or are being committed.
10. The unlawful employment practices complained of in paragraphs 7 and 9 above were intentional.
11. The unlawful employment practices complained of in paragraphs 7 and 9 above were done with malice or with reckless indifference to the federally protected rights of Caroline Aduro, Jaela Brownlee, Debra Edwards, William Hill, Elizebeth Worthman, and a class of nonCaucasian individuals.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant Employer, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in hiring discrimination and any other employment practice which discriminates on the basis of race. B. Order Defendant Employer to institute and carry out policies, practices, and programs which provide equal employment opportunities for minorities, and which eradicate the effects of its past and present unlawful employment practices. C. Order Defendant Employer to make whole Caroline Aduro, Jaela Brownlee, Debra Edwards, William Hill, Elizebeth Worthman, and a class of non-Caucasian individuals, by
3

providing appropriate backpay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to rightful place hiring of Caroline Advro, Jaela Brownlee, Debra Edwards, William Hill, Elizebeth Worthman, and a class of non-Caucasian individuals.
D. Order Defendant Employer to make and preserve all records, in accordance with the provisions of Section 709(c) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e8(c), relevant to the determination of whether unlawful employment practices have been or are being committed.
E. Order Defendant Employer to make whole Caroline Aduro, Jaela Brownlee, Debra Edwards, William Hill, Elizebeth Worthman, and a class of non-Caucasian individuals, by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraph 7 above, in amounts to be determined at trial.
F. Order Defendant Employer to make whole Caroline Aduro, Jaela Brownlee, Debra Edwards, William Hill, Elizebeth Worthman, and a class of non-Caucasian individuals by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in paragraph 7 above, including embarrassment, humiliation, and emotional pain and suffering, in amounts to be determined at trial.
G. Order Defendant Employer to pay Caroline Aduro, Jaela Brownlee, Debra Edwards, William Hill, Elizebeth Worthman, and a class of non-Caucasian individuals punitive damages for its malicious and reckless conduct described in paragraphs 7 and 9 above, in amounts to be determined at trial.
4

H. Grant such further relief as the Court deems necessary and proper in the public
interest.
I. Award the Commission its costs of this action.
JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its complaint.
ERIC DREIBAND General Counsel
JAMES L. LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
1801 L Street, N.W. Washington D.C. 20507
LAURIE A. YOUNG, #11480-49 Regional Attorney
MICHELLE EISELE, #12070-49 Supervisory Trial Attorney
/s/ Kenneth L. Bird KENNETH L. BIRD, #10780-02 Senior Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Indianapolis District Office 101 West Ohio Street, Suite 1900 Indianapolis IN 46204-4203 Phone: (317) 226-7204 Fax: (317) 226-5571 Email: Kenneth.Bird@eeoc.gov
5

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

WILLIAM ANTHONY HILL,

)

ELIZEBETH A. WORTHMAN, and

)

GOLDA BAILEY,

)

On Behalf of Themselves and Others

)

Similarly Situated,

)

)

Plaintiffs, )

)

v.

)

)

MERRILL GARDENS LLC,

)

)

Defendant. )

CASE NO.: 1:04-cv-248

EQUAL EMPLOYMENT OPPORTUNITY)

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

MERRILL GARDENS LLC,

)

)

Defendant. )

CASE NO.: 1:05-cv-004

STIPULATED ORDER GRANTING PRELIMINARY APPROVAL TO CLASS ACTION SETTLEMENT, CONDITIONAL CLASS CERTIFICATION,
AND PROPOSED CONSENT DECREE
This StipUlation is for purposes of both of the above-captioned matters, collectively referred to as the "Litigation."
The first, Hill v. Merrill Gardens LLC (the "Hill Action"), was filed on June 25, 2004. In the Hill Action, the Plaintiffs brought action on behalf of themselves and others allegedly
similarly situated. Specifically, they claimed that they and others allegedly similarly situated

were denied employment at the Georgetowne Place community located at 1717 Maplecrest Road, Fort Wayne, Indiana, owned by Merrill Gardens LLC ("Merrill Gardens"), and that the denial of employment was on the basis of race/color, in violation of Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e, et seq., and § 1981 of the Civil Rights Act of 1866,42 U.S.c. § 1981.
On January 4, 2005, the Equal Employment Opportunity Commission ("EEOC") filed Civil Action No. 1:05-CV-004 against Merrill Gardens (the "EEOC Action") under authority granted by Sections 706(f)(1) and (3) and 707 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) and (3) and -6 ("Title VII"); and § 102 of Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981(a). The EEOC's Complaint and Amended Complaint alleged that Merrill Gardens had a pattern or practice of refusing to hire non-Caucasians because of their race and/or color, in violation of § 703(a) of Title VII, 42 U.S.C. § 2000e-(2)(a); alleged that Merrill Gardens failed, in violation of § 709(c), 42 U.S.C. § 2000e-(8)(c), to make and preserve records relevant to the determination of whether unlawful employment practices have been or are being committed; and sought appropriate relief for Caroline Aduro, Samantha Bolden, Jae1a Brownlee, Debra Edwards, William Anthony Hill, Elizebeth Worthman, and a class of non-Caucasian individuals who were adversely affected by the alleged unlawful empIoyment practl.ces. I
The Parties in the Litigation recognize that the above-captioned lawsuits are overlapping and therefore have negotiated a proposed resolution of the cases together. The Parties to the above-captioned lawsuits request that the lawsuits be consolidated solely for the purposes of approving the requested class relief in the Hill Action and entry of a proposed Consent Decree in
J Each of these individuals is a part of the proposed class in the Hill Action.
2

the EEOC Action. The Parties now request preliminary approval of the requested class relief in
the Hill Action and a proposed Consent Decree in the EEOC Action. The Parties in the Hill
Action and the EEOC Action agree that the payments proposed under the negotiated resolution
for class members is one and the same, despite the fact that it is memorialized in both the Hill
Action proposed Settlement Action and the EEOC Action proposed Consent Decree.
The Parties submit the Settlement Agreement attached as Exhibit "A" (hereinafter referred to as the "Settlement Agreement") in the Hill Action and the Consent Decree attached as Exhibit "B" (hereinafter referred to as the "Consent Decree") in the EEOC Action to this Court
for preliminary approval. In tendering these proposed agreements together, the Parties have
agreed that the resolution proposed in either requires approval by the Court of the other.
The Court now enters this Order Granting Preliminary Approval to Proposed Class
Action Settlement and Proposed Consent Decree ("Preliminary Approval Order") and FINDS,
CONCLUDES, ORDERS, AND ADJUDGES as follows:
I. Preliminary Order Confirming Class Certification and Approving Notice to Members of the Settlement Class A. Class Certification For purposes of the Hill Action, the Court grants conditional class certification to the
following settlement class:
All African Americans and other minorities who: (1) submitted applications for employment at Georgetowne Place, located at 1717 Maplecrest Road, Fort Wayne, Indiana, operated by Merrill Gardens LLC; (2) between February 17, 1998 and April 18, 2005; (3) for vacant positions; (4) and who were denied employment in such vacant position; (5) where the positions were or may have been given to non-minority candidates. The parties identify and seek approval of two subclasses: The "Known Class": Class Members Caroline Aduro, Samantha Bolden, Jaela Brownlee, Debra Edwards, William Anthony Hill, and Elizebeth Worthman ("Known Class Members"), each of whom participated in the Hill Action and/or
3

the EEOC Action on and/or prior to April 18, 2005. Members of the Known Class are identified as "Known Class Members." The "Unknown Class": Class Members, including Golda Bailey, who are not specifically identified as Known Class Members. These individuals did not actively participate in the Hill Action and/or EEOC Action on or prior to April 18, 2005. Members of the Unknown Class are identified as "Unknown Class Members." ("Settlement Class.") The Court finds and concludes that the Settlement Class appears to satisfy all requirements of Fed. R. Civ. P. 23(a) and (b)(2) and (b)(3). The Court preliminarily appoints Plaintiff William Anthony Hill ("Plaintiff Hill") as Class Representative of the Known Class and Golda Bailey ("Plaintiff Bailey") as Class Representative of the Unknown Class.2 The Court conditionally appoints Plaintiff Hill's counsel, John T. Menzie and/or Shane C. Mulholland of the Burt, Blee, Dixon, Sutton & Bloom law firm, as class counsel for the Settlement Class ("Class Counsel"). Class Counsel represents the interests of the Class with respect to the Hill Action. The Court further approves the above-referenced proposed class for purpose of the proposed Consent Decree in the EEOC Action. The EEOC represents the interests of the Settlement Class with respect to the EEOC Action. B. Notice For purposes of both lawsuits, the Court approves the form and content of the Notices to be circulated via print media and the radio at Merrill Gardens' expense during a 30-day period beginning in June 2005 (the "Official Notice Period") pursuant to the schedule attached as
Exhibit "c" and the text and narrative attached as Exhibit "D" (the "Notices"). When potential
Class Members timely contact the EEOC within the Official Notice Period and/or within 14 days thereafter, the EEOC shall send them the appropriate written Notice set forth as Exhibits "A-l
2 Plaintiff Elizebeth Worthman is not being proposed as Class Representative.
4

and A-2" (the "Mailed Notices"). The Notice and Mailed Notices provide sufficient infonnation to infonn members of the Hill Action Settlement Class and EEOC Action Class of the essential tenns of the Settlement Agreement and the Consent Decree, appropriate means for obtaining additional infonnation about the Settlement Agreement and Consent Decree, appropriate infonnation about the procedures for becoming eligible for a payment under the Hill Action Settlement and the EEOC Consent Decree, and appropriate infonnation about their right, and the procedures, to object to the tenns of the Settlement Agreement or exclude themselves from the Hill Action Settlement, if they should wish to do so. The Notice will also fairly and adequately infonn members of the Hill Action Settlement Class that failing to timely obtain, execute, and return the Release attached to this Order as Exhibit "E" (the "Release") will result in them becoming ineligible for payment under the proposed Settlement Agreement and proposed Consent Decree.
If any potential Class Member contacts legal counsel for Merrill Gardens or a manager of Georgetowne Place in response to a notice in the media or based upon some other source, Merrill Gardens will provide the EEOC with contact infonnation as soon as possible but by no later than seven (7) days after receiving the infonnation.
Upon the expiration of the Official Notice Period, counsel for Merrill Gardens shall file a declaration that the Notices have been published in the manner and frequency required by and specified by this Preliminary Approval Order.
The Court hereby finds and concludes that members of the Hill Action Settlement Class will be provided the best notice practicable of the Hill Action Settlement and that such notice satisfies all requirements of due process and Fed. R. Civ. P. 23.
5

C. Persons Excluded from the Settlement Class The Parties may receive requests for exclusion from the Hill Action Settlement Class and will, within seven (7) days of the Fairness Hearing addressed below, file with the Court a list of those persons who have timely elected to be excluded. All persons named in the list filed with the Court as having filed timely exclusions will be excluded from the Hill Action Settlement Class, will not be bound by the terms of the Hill Action Settlement, and will not be eligible for payment under the Consent Decree. II. Preliminary Approval of the Class Action Settlement The Settlement Agreement appears to be fair, reasonable, and adequate and clearly falls within the appropriate range of possible approval. In essence, the Hill Action Settlement provides that each member of the Hill Action Settlement Class and EEOC Consent Decree Class who timely submits an executed Release will receive an amount calculated pursuant to the fair and reasonable formula set forth in the attached Settlement Agreement and proposed Consent Decree. III. Releases, Covenant Not to Sue, and Effect of Settlement Agreement A. Releases by Settlement Class Members The Court preliminarily finds that in consideration of the terms of the Settlement Agreement, all members of the Hill Action Settlement Class, including Plaintiff Hill and Plaintiff Bailey, who do not opt out of the Hill Action Settlement will be found, deemed, and adjudged to have fully, finally, and forever released and discharged all of the following claims they have or may have against Merrill Gardens and each of its past, present and future parents, subsidiaries, affiliated companies, affiliates, predecessors, successors in interest and assigns, and each of their respective past, present and future officers, directors, employees, attorneys and representatives,
6

or any of them, including any person or entity acting on behalf of or at the direction of any of
them ("Released Parties") as set forth in the Release and as set forth below:
In exchange for the valuable Consideration, Plaintiff Hill, Plaintiff Bailey, and each Class Member who has not opted out of the Hill Action Settlement release and forever discharge the Released Parties from any and all claims or causes of action-known or unknown-that were or could have been asserted in the Litigation regarding applications or requests for employment (or any alleged failure to hire) from February 17, 1998 to April 18, 2005 at Merrill Gardens. As part of this Release, Plaintiff Hill, Plaintiff Bailey, and each Class Member who has not opted out of the Hill Action Settlement release, acquit and forever discharge Released Parties from, and shall not now or hereafter institute, maintain or assert against the Released Parties, either directly or indirectly, derivatively, on their own behalf, or on behalf of a class or any other person or entity, any and all causes of action, claims, damages, award, equitable, legal and/or administrative relief, interest, demands, or rights, whether based on federal, state, or local law, statute, contract, common law, or any other source, that have been, could have been, may be or could be alleged or asserted now or in the future by Plaintiff Hill, Plaintiff Bailey, or any Class Member who has not opted out of the Hill Action Settlement against the Released Parties or any of them in the Litigation or in any other court action or proceeding before any administrative body, tribunal, arbitration, panel, or other adjudicatory body arising out of or related to, in whole or in part, applications or requests for employment (or any alleged failure to hire) at Merrill Gardens or its Georgetowne Place facility between February 17, 1998 and April 18, 2005.
B. Covenant Not to Sue
The Court preliminarily finds that in consideration of the terms of the Settlement
Agreement, all members of the Hill Action Settlement Class, including Plaintiff Hill and Plaintiff
Bailey, who do not opt out of the Settlement will be found, deemed, and adjudged to have (1)
covenanted and agreed that neither Plaintiff Hill, Plaintiff Bailey, nor any of the Hill Action
Settlement Class Members, nor anyone authorized to act on behalf of any of them, will
commence, authorize, or accept any benefit from any judicial or administrative action or
proceeding, other than as expressly provided for in the Settlement Agreement and/or Consent
Decree, against the Released Parties, or any of them, in either their personal or corporate
capacity, with respect to any claim, matter, or issue that in any way arises from, is based on, or
7

relates to any alleged loss, harm, or injury allegedly caused by the Released Parties, or any of them, in connection with any application for employment at Merrill Gardens from February 17, 1998, to April 18, 2005; (2) waived any right to any form of recovery, compensation, or other remedy in any such action or proceeding brought by them or on their behalf, other than as expressly provided for in the Settlement Agreement and/or Consent Decree; and (3) agreed that the Hill Action Settlement Agreement shall be a complete bar to any such action.
C. Effect of a Final Judicial Determination of Invalidity or Unenforceability If, after the entry by this Court of Judgment, a notice of appeal of Judgment is timely filed by any party, objector, claimant, or other person or entity, and if an appellate court makes a final determination that Judgment is in any respect invalid, contrary to law, or unenforceable, the Hill Action Settlement Agreement (including Merrill Garden's stipulation to the Hill Action Settlement Class provided for in the Settlement Agreement or to the entry of the proposed Consent Decree in the EEOC Action) shall be null and void, and the parties shall return to their respective positions in the Litigation as those positions existed immediately before the execution of the Hill Action Settlement Agreement and tender of the proposed Consent Decree unless all parties agree in writing to abide by the judgment as modified. IV. No Admission of Liability In entering into this agreement or the agreements referenced herein, Merrill Gardens does not admit that any class member in the Litigation would have been hired but for his/her race and/or color or that he/she was discriminated against on the basis of hislher race and/or color or that any claims are or would be timely. Merrill Gardens entered into this Stipulation and the agreements referenced herein to avoid further litigation.
8

Dated I Dated Dated

By.~,. ~ John T. Menzie Shane C. Mulholland BURT) BLEE, DIXON, SUTTON &BLOOMLLP Suite 1000 200 East Main Street Fort Wayne, Indiana 46802
COUNSEL FOR PLAINTIFFS IN THE HILL ACTION
By __________________________ Michelle Eisele Kenneth L. Bird EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Suite 1900 101 West Ohio Street Indianapolis, IN 46204
COUNSEL FOR THE EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION
~JeJnl~ I~.~ Tiffany L. Gooden BARNES & THORNBURG LLP 600 One Summit Square Fort Wayne, Indiana 46802
COUNSEL FOR MERRILL GARDENS LLC
9

Dated Dated Dated

By ___________________________ John T. Menzie Shane C. Mulholland BURT, BLEE, DIXON, SUTTON &BLOOMLLP Suite 1000 200 East Main Street Fort Wayne, Indiana 46802
COUNSEL FOR PLAINTIFFS IN THE HILL ACTION
~~rvru:iA J_l';;~
By _ __ Michelle Eisele Kenneth L. Bird EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Suite 1900 101 West Ohio Street Indianapolis, IN 46204
COUNSEL FOR THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
By ___________________________ Kathleen M. Anderson Tiffany L. Gooden BARNES & THORNBURG LLP 600 One Summit Square Fort Wayne, Indiana 46802
COUNSEL FOR MERRILL GARDENS LLC
9

APPROVED AND ORDERED

Dated: _ _ _ _ _ _ _ _, 2005

Theresa Springmann Judge, United States District Court Northern District of Indiana

10

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v. MERRILL GARDENS, LLC,
Defendant.

)

)

)

)

)

)

CASE NO. 1:05-CV-4-TLS

)

)

)

)

ENTRY OF CONSENT DECREE

PART ONE: GENERAL PROVISIONS

SECTION 101

Introduction

The Equal Employment Opportunity Commission (the “Commission” or the “EEOC”)

instituted this action, Civil Action No. 1:05-CV-004 (the “EEOC Action”), under the authority

granted by Sections 706(f)(1) and (3) and 707 of Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e-5(f)(1) and (3) and ?6 (“Title VII”); and Section 102 of Title I of

the Civil Rights Act of 1991, 42 U.S.C. § 1981a. The EEOC’s action was brought to correct

alleged unlawful employment practices on the basis of race. The EEOC’s Complaint and

Amended Complaint allege that Merrill Gardens LLC (“Merrill Gardens”) had a pattern or

practice of refusing to hire non-Caucasians because of their race and/or color, in violation of

Sections 703(a) of Title VII, 42 U.S.C. § 2000e-2(a); alleged that Merrill Gardens failed, in

1

violation of Section 709(c), 42 U.S.C. § 2000e-8(c), to make and preserve records relevant to the determination of whether unlawful employment practices have been or are being committed; and sought appropriate relief for Caroline Aduro, Samantha Bolden, Jaela Brownlee, Debra Edwards, William Anthony Hill, Elizebeth Worthman, and a class of non-Caucasian individuals who were adversely affected by the alleged unlawful employment practices.
Two of the individuals on whose behalf the EEOC brought this action, William Anthony Hill and Elizebeth Worthman, previously filed a class-action complaint in Civil Action No. 1:04-CV-248 (the “Hill Action”) on behalf of themselves and others allegedly similarly situated. Specifically, they brought that action on behalf of individuals who were allegedly denied employment with Merrill Gardens because of their race/color, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981.
This Consent Decree and a Class Action Settlement in the Hill Action were negotiated together and are designed, in part, to provide final and preclusive effect to the race claims that were raised in Civil Action Nos. 1:05-CV-004 and 1:04-CV-248 (collectively the “Litigation”). The Consent Decree and Class Action Settlement were preliminarily approved by the Court on June 20, 2005. A Class Action Settlement in the Hill Action has now been approved contemporaneously with the final submission of this Consent Decree.

SECTION 102

Jurisdiction

The Parties hereby stipulate to the jurisdiction of the Court over the Parties and the

subject matter now and for the duration of this Agreement (including any extensions thereof),

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that venue is proper, and that all administrative prerequisites have been met. The Court finds, based on the pleadings and the record as a whole, that the Court has jurisdiction over the Parties and the subject matter of this action, that venue is proper, and that all administrative prerequisites have been met.

SECTION 103

The Effective Date and Duration of the Consent Decree

A. “Effective Date” of the Consent Decree shall mean the day on which the Order

finally approving this Consent Decree becomes final. The Parties have submitted a proposed

form of order (Order Granting Final Approval to Class Action Settlement, Entry of Final

Judgment, and Entry of Consent Decree). For purposes of this Consent Decree, Agreement, the

Final Order shall be deemed to become final on the later of (a) the day following the date on

which the Final Order is no longer subject to review by appeal if no notice of appeal, motion to

correct errors, or similar motion or notice is filed; or (b) if any such notices or motion is filed,

the day following the date on which the Final Order is not subject to further judicial review or

appeal, either by reason of affirmance by a court of last resort or by lapse of time or otherwise.

B. Unless extended by the Court for good cause, the Consent Decree shall continue

in force and effect for a period of forty-two (42) months from the Court’s issuance of the

Stipulated Order Granting Preliminary Approval to Consent Decree, Class Action Settlement,

and Conditional Class Certification (“Preliminary Approval Order”). Prior to the expiration of

the Consent Decree, either party may move the Court for an extension of the obligations of any

part of the Consent Decree that such party contends have not been complied with or completed,

and the Consent Decree shall remain in effect only as to such provisions until the Court rules on

3

the motion or otherwise orders. C. The Court will retain jurisdiction of this cause throughout the period of this
Consent Decree, and any extensions thereof, for purposes of monitoring compliance with the Consent Decree and entry of such further orders or modifications as may be necessary or appropriate.

PART TWO: RELIEF

SECTION 201

Notice of Non-Discrimination

Merrill Gardens affirms that, commencing within seven (7) calendar days following the

Preliminary Approval Order, Merrill Gardens posted in conspicuous locations visible to

applicants and employees throughout its Fort Wayne facility a Notice of Non-Discrimination,

attached as Attachment A. Said notices shall remain posted throughout the term of this Consent

Decree.

SECTION 202

Notice of Non-Discrimination in Hiring

Merrill Gardens affirms that, within seven (7) calendar days following the Preliminary

Approval Order, Merrill Gardens distributed to each of its General Managers, Regional

Directors, Regional Vice Presidents, and all other employees with supervisory authority over a

facility or multiple facilities a Notice of Non-Discrimination in Hiring, attached as Attachment

B. Merrill Gardens shall also distribute this Notice to all General Managers, Regional Directors,

Regional Vice Presidents, and all other employees with supervisory authority over a facility or

multiple facilities who are hired during the duration of this Consent Decree.

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SECTION 203

EEO Training

Within ninety (90) days of the Effective Date of this Agreement, Merrill Gardens will

provide Equal Employment Opportunity training to all employees at the Fort Wayne facility.

This training will cover, at a minimum, non-discrimination in hiring, procedures to report known

or observed discrimination in the workplace, and the non-retaliation provisions of Title VII.

Merrill Gardens will provide like training for new hires throughout the term of this Consent

Decree.

Thirty (30) days before the training, Merrill Gardens shall provide notice to the

Commission of the date, time, and place of the training; and shall send to the Commission a copy

of the training program and all written materials, if any, to be used. The Commission may

provide reasonable input on the content of the training but shall do so no later than ten (10) days

prior to the training.

SECTION 204

EEO Training

Within ninety (90) days of the Effective Date of this Consent Decree, Merrill Gardens

agrees to provide Equal Employment Opportunity training to all managers, supervisors, and any

other employees who are responsible for any portion of the employment selection or hiring

process at the Fort Wayne facility. This training will cover, at a minimum, record retention,

non-discrimination in hiring and job assignment, procedures to correct and report known or

observed discrimination in the workplace, and the non-retaliations provisions of Title VII.

Merrill Gardens will provide like training for all managers and supervisors who are hired for the

Fort Wayne facility during the duration of this Consent Decree.

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Thirty (30) days before the training, Merrill Gardens shall provide notice to the Commission of the date, time, and place of the training; and shall send to the Commission a copy of the training program and all written materials, if any, to be used. The EEOC may provide reasonable input on the content of the training but shall do so no later than ten (10) days prior to the training.

SECTION 205

EEO Training

Within ninety (90) days of the Effective Date of this Agreement, Merrill Gardens agrees

to provide Equal Employment Opportunity training to the General Manager of its Fort Wayne

facility, the Regional Dining Services Director (Southeast) and the Vice President of Operations

of its MidAtlantic Region. This training will cover, at a minimum, non-discrimination in hiring,

procedures to report known or observed discrimination in the workplace, and managerial

obligations to oversee the workplace. Merrill Gardens will provide like training for individuals

hired into these positions during the duration of this Consent Decree.

Thirty (30) days before the training, Merrill Gardens shall provide notice to the

Commission of the date, time, and place of the training; and shall send to the Commission a copy

of the training program and all written materials, if any, to be used. The EEOC may provide

reasonable input on the content of the training but shall do so no later than ten days prior to the

training.

SECTION 206

Policy of Non-Discrimination

Merrill Gardens will not discriminate against any individual on the basis of race and/or

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color and will maintain a work environment for all employees that is free from racial discrimination.
Merrill Gardens will not retaliate or discriminate against any of its employees, former employees, or applicants for employment because the individual (a) has made a charge or opposed an unlawful employment practice under Title VII or any of the laws enforced by the EEOC or (b) has assisted or participated in any manner in an investigation, proceeding, or hearing under Title VII or any of the laws enforced by the EEOC.
Merrill Gardens has in place or adopted a policy of non-discrimination consistent with Title VII. The policy prohibits discrimination based on race or color and explains how individuals may lodge a complaint of discrimination, designating and identifying at least one person outside the Fort Wayne facility as an individual responsible to hear and address complaints of discrimination. As part of the training under Sections 203, 204, and 205 above, Merrill Gardens will educate all trainees on the provisions of this non-discrimination policy and will provide a copy of the policy to all trainees. Merrill Gardens will make copies of the policy readily available to anyone desiring to read or copy the policy.

SECTION 207

Application and Hiring Procedures

The following hiring procedures have been followed at Merrill Gardens’ Georgetowne

Place community since at least August 1, 2005 and will be followed during the term of the

Consent Decree:

A. At the time an applicant submits an application at Georgetowne Place, the

applicant will sign in on an applicant log sheet, indicating name, address, position(s) applied for,

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and the date and time. Applicants may also—on a voluntary basis—indicate their race. B. Applicant log sheets shall be maintained as confidential employee records. When
an applicant signs in on a sheet, the applicant will not be able to read information recorded on the sheet by prior applicants. Further, the applicant log sheets shall not in any way be associated with, or considered in conjunction with, any application for employment.
C. Applications will be reviewed/processed and positions filled, in accordance with the normal business practices of Merrill Gardens except as provided below for Georgetowne Place:
(i) If the applicant is not interviewed or is interviewed and not offered employment, the deciding official will note the reason(s) for rejection on the applicant log sheet.
(ii) If the applicant is offered employment, the deciding official will note the job offered on the applicant log sheet. If the job offered is different than the job sought (as per the applicant log sheet), the deciding official will note the reason(s) therefor.
D. Merrill Gardens will retain all applications to Georgetowne Place throughout the duration of this Consent Decree. While retained, the applications will be filed in chronological order.
E. Within sixty (60) days of the Effective Date of this Consent Decree, Merrill Gardens will advise all recruiting sources for its Fort Wayne facility of Georgetowne Place’s active Equal Employment Opportunity policy, and specifically will state that the company hires without regard to race and/or color.
F. When it advertises employment opportunities at Georgetowne Place, Merrill Gardens will clearly indicate that the facility is an Equal Employment Opportunity employer and does not discriminate on the basis of race and/or color for any position.
PART THREE: KNOWN CLASS MEMBERS
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As partial consideration for this Consent Decree and the Settlement Agreement in the Hill Action, Merrill Gardens will pay Class Members and Class Counsel as provided in this Part, Part Four, and Part Seven.

SECTION 301

Designated Back Pay

Merrill Gardens shall pay $10,000, minus applicable taxes and withholdings, which will

be identified as claimed back pay to each of the following known class members who signed

Releases (Attachment C): Caroline Aduro, Samantha Bolden, Jaela Brownlee, Debra Edwards,

William Anthony Hill, and Elizebeth Worthman (hereinafter referred to as “Known Class

Members”), or to their heirs or assigns in the event of an individual’s death.

SECTION 302

Designated Compensatory Damages

Merrill Gardens shall pay $50,000, which will be identified as claimed compensatory

damages (other than for back pay) to Caroline Aduro, Samantha Bolden, Jaela Brownlee, Debra

Edwards, and William Hill. Merrill Gardens shall pay $14,000 for claimed compensatory

damages (other than for wages) to Elizebeth Worthman. To be eligible for payment under this

Section, a Known Class Member must sign a Release (Attachment C).

SECTION 303

Releases

Within seven (7) days of issuance of the Preliminary Approval Order, the EEOC sent to

Caroline Aduro, Samantha Bolden, Jaela Brownlee, Debra Edwards, William Anthony Hill, and

Elizebeth Worthman the Release form attached here to Attachment C, with instructions

9

regarding the return of executed Releases by no later than seven (7) days before the Fairness Hearing. Each of these individuals was provided the opportunity to discuss, without charge, the release of claims with attorneys John T. Menzie and/or Shane C. Mulholland of the law firm of Burt, Blee, Dixon, Sutton & Bloom, LLP, 200 East Main Street, Suite 1000, Fort Wayne, Indiana.

SECTION 304

Procedures Regarding Known Class Members

The EEOC notified counsel for Merrill Gardens which Known Class Members submitted

executed Releases and completed IRS Forms W-4 and caused copies of such documents to be

forwarded to counsel for Merrill Gardens. Within fourteen (14) days after the Effective Date of

the Final Order, Merrill Gardens shall mail appropriate payments for Known Class Members

who have executed Releases via certified mail, payable to eligible Known Class Members, or to

any appropriate heir or assign in the event of a Known Class Member’s death. Absent alternate

acceptable instruction, checks will be sent to the following addresses:

Caroline Aduro 3410 Hawkechee Drive Fort Wayne IN 46815

Samantha Bolden c/o Shane C. Mulholland/John T. Menzie [or as otherwise timely updated] Burt, Blee, Dixon, Sutton & Bloom, LLP Suite 1000 200 East Main Street Fort Wayne, IN 46802

Jaela Brownlee 6226 Mayfair Road Fort Wayne IN 46818

Debra Edwards

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5405 Scepter Court Fort Wayne IN 46835
William Hill c/o Shane C. Mulholland/John T. Menzie Burt, Blee, Dixon, Sutton & Bloom, LLP Suite 1000 200 East Main Street Fort Wayne, IN 46802
Elizebeth Worthman c/o Shane C. Mulholland/John T. Menzie Burt, Blee, Dixon, Sutton & Bloom, LLP Suite 1000 200 East Main Street Fort Wayne, IN 46802
Merrill Gardens shall prepare the checks in amounts determined under Section 301 and
302 above. Applicable taxes and withholdings shall be subtracted from the back pay amounts
pursuant to IRS Forms W-4 completed and tendered to Merrill Gardens, and will be reported on
appropriate IRS Forms W-2. If a Known Class Member fails to submit a completed IRS Form
W-4 with his/her executed Release, then Merrill Gardens will make the maximum tax
withholdings as set forth by law. Merrill Gardens will not deduct from any amount the
employer’s share of any costs, taxes, or social security required by law to be paid by Merrill
Gardens. Further, Merrill Gardens will not withhold any amounts from the payments under
Section 302 above and shall provide each Class Member at the appropriate time with the
appropriate tax-reporting documentation for tax-filing purposes (IRS Forms 1099).
Merrill Gardens offers no tax advice or opinion regarding the tax consequences of the
payments to any Class Member.
Merrill Gardens shall promptly mail a copy of the checks and proof of their delivery
(signed certified mail receipts) to EEOC and Class Counsel. The EEOC shall promptly provide
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Merrill Gardens with original Releases executed by Class Members. If a Known Class Member did not timely return an executed Release, that individual is
ineligible for any payment under this Consent Decree, and any funds that such Class Member would have received shall be split equally among the Unknown Class Members under this Consent Decree and under the Hill Settlement Agreement.

PART FOUR: UNKNOWN CLASS MEMBERS

SECTION 401

Identification of Class Members

The parties agreed to a thirty (30)-day period of notices in publications and on the radio

to identify individuals who may claim that they would have been hired at Georgetowne Place,

but for their race and/or color. In particular, the parties agreed to the media campaign that is set

forth as Exhibit “C” to the Court’s Preliminary Approval Order, Section I.B. Merrill Gardens

paid for all advertising costs incurred under this section, to an amount that did not exceed

$70,000.

SECTION 402

Report to EEOC

For any individual who has come forward to Merrill Gardens in response to a notice in

the media, Merrill Gardens agreed to provide the EEOC with contact information as soon as

possible and by no later than seven (7) days after receiving the information.

SECTION 403

Determination of Unknown Class Members

Unknown Class Members are individuals other than those identified in Part Three who

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meet the following definition:
All African Americans and other minorities who: (1) submitted applications for employment at Georgetowne Place, located at 1717 Maplecrest Road, Fort Wayne, Indiana, operated by Merrill Gardens LLC; (2) between February 17, 1998 and April 18, 2005; (3) for vacant positions; (4) and who were denied employment in such vacant position; (5) where the positions were or may have been given to non-minority candidates.
The EEOC made the initial determination as to which individuals appear to meet the
definition of Unknown Class Members under this Consent Decree and under the Hill Action
Settlement Agreement and has ensured that such individuals received a copy of the Notice that is
attached hereto as Attachment E. The EEOC notified Merrill Gardens of each person identified
by the EEOC to be Class Members and each person who was issued the Notice attached hereto
as Attachment E.
If the EEOC determined that any individual who came forward is not eligible to share in
class relief, the EEOC so notified Merrill Gardens two (2) weeks before the Fairness Hearing
(Section 408). Merrill Gardens then, within seven (7) days of receiving notice, had the option of
alerting the EEOC to any disagreement with the EEOC’s determination. Merrill Gardens had the
opportunity to lodge an objection with the Court at the Fairness Hearing (Section 408).

SECTION 404

W-4 Forms

The EEOC provided appropriate IRS Forms W-4 to class members who were not known

at the time this Consent Decree was negotiated (“Unknown Class Members”). Applicable taxes

and withholdings shall be subtracted from the back pay amounts pursuant to IRS Forms W-4

completed and tendered to Merrill Gardens, and if a Unknown Class Member fails to submit an

IRS Form W-4, then Merrill Gardens will make the maximum tax withholdings as set forth by

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law.

SECTION 405

Monetary Relief to Unknown Class Members

Merrill Gardens will pay $325,000 to Unknown Class Members as approved in this

action and the Hill Action. The $325,000 will be divided equally among those Unknown Class

Members who timely executed releases (Attachment C).

Unknown Class Members were notified as set forth in Paragraphs I.B and Exhibits “C”,

“D-1,” and “D-2” of the Preliminary Approval Order.

SECTION 406

Computation of Payments to Unknown Class Members

Since the number of eligible Unknown Class Members allows payments of at least

$10,000 to each Unknown Class Member who executes a Release, $10,000 will be identified as

claimed back pay. The remainder will be identified as claimed compensatory damages (other

than back pay).

SECTION 407

Notice

Within twenty-one (21) days of completion of the media campaign pursuant to

Section 401 above, the EEOC provided the Court and Merrill Gardens a list of the individuals

whom the EEOC determined should share in class relief. At the same time, the EEOC sent

(1) notices to the putative class members, stating that the EEOC has identified them as class

members and estimating the amount to which they will be entitled under Section 406 above and

(2) notices to claimants the EEOC determined were not eligible for class relief. The notices to

14

all individuals told them that the Court would conduct a Fairness Hearing and if they disagreed as to their class status or proposed award, they needed to send a letter to the Court stating their objection and the reasons therefor by September 2, 2005.

SECTION 408

Fairness Hearing for Class Members

At the same time as the Fairness Hearing on the related proposed Class Action Settlement

in the Hill Action, the Court conducted a Fairness Hearing to hear and decide any objection from

Merrill Gardens under Section 403 and to hear and decide any objection from an individual

under Section 407. The Court has made or will make all final decisions regarding Class

Members and amounts of any payments to them.

SECTION 409

Distributions

At least thirty (30) days (or as soon as practical) before the Fairness Hearing, the EEOC

sent each individual who may be entitled to monetary relief a Release (Attachment C). Each of

these individuals was provided the opportunity to discuss the release of claims with attorneys

John T. Menzie and/or Shane C. Mulholland of the law firm of Burt, Blee, Dixon, Sutton &

Bloom, LLP, 200 East Main Street, Suite 1000, Fort Wayne, Indiana.

The EEOC notified counsel for Merrill Gardens when it received executed Releases and

forwarded copies of them to counsel. All EEOC-approved Unknown Class Members returned

executed Releases.

Within twenty (20) days after the Effective Date of the Final Order, Merrill Gardens shall

mail checks, payable to the individuals, or to their heirs or assigns in the event of an individual’s

15

death, by certified mail to individuals who have executed Releases. Merrill Gardens shall prepare the checks in amounts calculated under Section 406 above, with any modifications ordered by the Court. Applicable taxes and withholdings shall be subtracted from back pay amounts, for which appropriate IRS Forms W-2 will be issued. Merrill Gardens will not deduct from any amount the employer’s share of any costs, taxes, or social security required by law to be paid by Merrill Gardens. Further, Merrill Gardens will not withhold any amounts from payments for claimed compensatory damages other than back pay, and will issue appropriate IRS Forms 1099 for such claimed compensatory damages.
Merrill Gardens shall promptly mail a copy of the checks and proof of their delivery (signed certified mail receipts) to the Commission. The EEOC shall promptly provide Merrill Gardens with original Releases executed by Class Members.

PART FIVE: RETENTION OF RECORDS

SECTION 501

Retention of Records

Merrill Gardens agrees to maintain all employment records at Georgetowne Place as

required by Section 709(c) of Title VII, 42 U.S.C. § 2000e-8(c), and regulations implementing

Section 709(c), 29 C.F.R. Part 1602.

SECTION 502

Review of Records

Merrill Gardens will maintain for the duration of this Consent Decree applications as

specified in Section 207 above. From time to time, the Commission may request the opportunity

to review all, or a specified portion of, these records or any records maintained at Merrill

16

Gardens’ Fort Wayne facility in compliance with Section 501 above. Within two (2) weeks of such a request, Merrill Gardens will make records available to the Commission at Merrill Garden’s Fort Wayne facility.

SECTION 503

Section 709(c) Payment

For failure to retain records in accordance with Section 709(c) of Title VII, 42 U.S.C.

§ 2000e-8(c), and 29 C.F.R. § 1602.14, Merrill Gardens shall pay $10,000 to the general fund of

the United States Treasury within sixty (60) days of the Effective Date of this Consent Decree.

PART SIX: REPORTING REQUIREMENTS

SECTION 601

Compliance with Decree

In addition to the proofs of payment provided in Sections 304 and 409 above and the

reports required by Section 402 above, Merrill Gardens will submit a report to the EEOC

detailing compliance with this Consent Decree on or before January 21, 2006. Specifically,

Merrill Gardens will:

(i) certify to the EEOC’s Regional Attorney that it has complied with Sections 201 and 202 of this Consent Decree, specifying where the notices are posted and to whom they were distributed;

(ii) notify the EEOC of training, as required by Sections 203, 204, 205, and 206; and

(iii) provide the EEOC with a copy of the policy adopted and implemented pursuant to Section 206.

All reports shall be sent to the attention of Laurie A. Young, Regional Attorney, or her

successor, Equal Employment Opportunity Commission, 101 West Ohio Street, Suite 1900,

Indianapolis IN 46204-4203.

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SECTION 602

Annual Reporting

Merrill Gardens shall submit three (3) annual reports. The first, due January 21,

2006, may be combined with the report under Section 601. In each report, Merrill Gardens shall

include the following information:

(i) the dates and topics of all training programs offered pursuant to this Consent Decree and provided in the previous period;

(ii) a copy of all written materials relied on or disseminated at the training programs pursuant to this Consent Decree in the previous period;

(iii) the name and position of all employees who attended the training programs pursuant to this Consent Decree in the previous period; and

(iv) all employees hired or promoted at the Fort Wayne facility in the previous period, identified by name, position, date of hire or promotion, and race.

All reports shall be sent to the attention of Laurie A. Young, Regional Attorney, or her

successor, Equal Employment Opportunity Commission, 101 West Ohio Street, Suite 1900,

Indianapolis IN 46204-4203.

With each annual report identified above, Merrill Gardens will forward to the EEOC all

applicant logs constructed in the previous period. Merrill Gardens will send the original logs to

the attention of Laurie A. Young, Regional Attorney, or her successor, Equal Employment

Opportunity Commission, 101 West Ohio Street, Suite 1900, Indianapolis IN 46204-4203.

PART SEVEN: ADMINISTRATION OF THE CONSENT DECREE

SECTION 701

Breach of Decree

The EEOC may review compliance with this Consent Decree. As part of such review at

18

Merrill Gardens’ Fort Wayne facility, the EEOC may inspect the Fort Wayne premises, interview employees at the Fort Wayne premises, and examine and copy documents at the Fort Wayne premises.
In the event that the EEOC alleges that a violation of this Consent Decree has occurred, the EEOC shall give notice in writing specifically identifying the alleged violation to Merrill Gardens. Merrill Gardens will have ten (10) business days in which to investigate and respond to the allegation.
If the Commission elects to seek judicial enforcement, such enforcement action shall be filed in the United States District Court for the Northern District of Indiana, Fort Wayne Division. In any proceeding which seeks enforcement of any provision of the Consent Decree, the remedies shall be limited to enforcement of only those terms or provisions of this Consent Decree then in effect which the Court may find to have been violated, and recovery of court costs.

SECTION 702

Expenses/Labor

A. Merrill Gardens paid all expenses (which did not exceed $70,000) associated with

the advertising detailed in Section 401 above.

B. Each party agrees to provide the necessary labor and to pay for all expenses as

needed to fulfill their respective obligations under this Consent Decree.

C. Merrill Gardens has agreed to pay $100,000 in attorney fees to Burt, Blee, Dixon,

Sutton & Bloom, LLP, 200 East Main Street, Suite 1000, Fort Wayne, Indiana, in the Hill

Action. This fee will, in part, pay for any services rendered pursuant to Sections 303 and 409

19

above. D. Merrill Gardens shall pay Unknown Class Member Golda Bailey the amount of
$1,000 as compensation for her preparation and attendance at the final hearing on behalf of Unknown Class Members.

SECTION 703

Dispute Resolution Procedure

In the event that any dispute arises between the Parties regarding the interpretation or

application of this Consent Decree or any provision thereof and the Consent Decree does not

provide for its unilateral resolution by one of the parties, the party claiming a dispute (hereinafter

“Aggrieved Party”) shall notify the other party (hereinafter “Respondent”) in writing of the

nature of the disputed matter, the provision(s) of the Consent Decree to which it relates, and the

factual details forming the basis of such dispute. The Respondent shall have ten (10) business

days from receipt of the written notice to investigate, correct, or refute the position of the

Aggrieved Party; to cure the alleged breach; or to accept the interpretation or contention of the

Aggrieved Party. If the Aggrieved Party is not satisfied with the cure, prior to the

commencement of a court action for breach of this Consent Decree, the parties shall meet and

confer in a joint effort to resolve the dispute. In the event a party does not make itself available

for a meeting within ten (10) business days of notice that a satisfactory cure has not been offered,

the meeting requirement is waived. All such meetings shall be scheduled at a date and time

chosen by mutual agreement of the Parties.

Resort to any of these procedures will not justify the suspension of any other obligation

under this Consent Decree. With respect to a dispute, if the Respondent or the Aggrieved Party

20

determines that, for practical or other reasons, it is more expedient to comply with the other party’s position but nevertheless wishes to obtain a judicial determination with respect to the disputed issue, such party may notify the other party that it will accept the other party’s position “under protest” and that such party intends to seek judicial relief pursuant to the terms of this Consent Decree. The Court, in its discretion, may award either party some or all of its reasonable costs incurred in seeking enforcement of this Consent Decree.

SECTION 704

Ownership and Control

Sections 201 through 207, 502, 601-602, and 701 (inspection provision only) of the

Consent Decree will be in full force and effect and will apply to Merrill Gardens for the duration

of the Consent Decree or as long as Merrill Gardens owns the Georgetowne Place community,

whichever period is shorter.

SECTION 705

Retention of Jurisdiction

As stated in Section 104(C) above, the Court will retain jurisdiction of this cause

throughout the period of this Consent Decree, and any extensions thereof, for purposes of

monitoring compliance with the Consent Decree and entry of such further orders or

modifications as may be necessary or appropriate.

SO ORDERED on October 4, 2005. S/ Theresa L. Springmann
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THERESA L. SPRINGMANN UNITED STATES DISTRICT COURT
Copies to: Kenneth L. Bird EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 101 West Ohio Street, Suite 1900 Indianapolis IN 46204-4203 Kathleen M. Anderson Tiffany L. Gooden BARNES & THORNBURG LLP 600 One Summit Square Fort Wayne IN 46802 John T. Menzie Shane C. Mulholland Burt, Blee, Dixon, Sutton & Bloom, LLP 200 East Main Street, Suite 1000 Fort Wayne IN 46802
22

ATTACHMENT A
NOTICE TO EMPLOYEES AND APPLICANTS
Posted Pursuant to an Agreement Resolving a Charge of Employment Discrimination filed with the U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Indianapolis District Office
This Notice is being distributed and posted by agreement between Merrill Gardens, LLC, and the United States Equal Employment Opportunity Commission, resolving Civil Action No. 1:05-CV-0004 in the United States District Court for the Northern District of Indiana.
Federal law prohibits discrimination against any employee, former employee, or job applicant because of the individual’s sex, race, color, religion, national origin, disability, or age (over 40).
Federal law also prohibits retaliation of any kind against any person who has opposed any practice made unlawful under federal law or because an individual has filed a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.
Merrill Gardens supports and will comply with federal law in all respects and will not take any actions against employees or applicants because they have exercised their rights under the law. Specifically, Merrill Gardens will not refuse to hire or promote individuals because of their race and/or color. Merrill Gardens agrees to adopt and implement a policy of non-discrimination, will conduct training programs on Title VII, and will not retaliate against any individual who files a charge of discrimination.
If you have any complaints of discrimination, you may contact the EEOC at the address or telephone number given below. An employee or applicant has the right, and is encouraged to exercise that right, to report allegations of employment discrimination in the workplace. An employee or applicant may contact the U. S. Equal Employment Opportunity Commission for the purpose of filing a charge of employment discrimination.
Questions concerning this notice may be addressed to: Equal Employment Opportunity Commission 101 West Ohio Street, Suite 1900 Indianapolis, Indiana 46204-4203 Telephone: (317) 226-7212 TTY (317) 226-5162
THIS IS AN OFFICIAL NOTICE AND SHALL NOT BE DEFACED BY ANYONE
23

ATTACHMENT B
NOTICE TO MANAGERS, DIRECTORS, AND VICE PRESIDENTS
Distributed Pursuant to an Agreement Resolving a Charge of Employment Discrimination filed with the U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Indianapolis District Office
This Notice is being distributed by agreement between Merrill Gardens, LLC, and the United States Equal Employment Opportunity Commission, resolving Civil Action No. 1:05-CV-0004 in the United States District Court for the Northern District of Indiana.
Federal law prohibits discrimination against any employee, former employee, or job applicant because of the individual’s sex, race, color, religion, national origin, disability, or age (over 40).
Federal law also prohibits retaliation of any kind against any person who has opposed any practice made unlawful under federal law or because an individual has filed a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.
Merrill Gardens supports and will comply with federal law in all respects and will not take any actions against employees or applicants because they have exercised their rights under the law. Specifically, Merrill Gardens will not refuse to hire or promote individuals because of their race and/or color. Merrill Gardens agrees to adopt and implement a policy of non-discrimination, will conduct training programs on Title VII, and will not retaliate against any individual who files a charge of discrimination.
An employee or applicant has the right, and is encouraged to exercise that right, to report allegations of employment discrimination in the workplace. An employee or applicant may contact the U. S. Equal Employment Opportunity Commission for the purpose of filing a charge of employment discrimination.
Questions concerning this notice may be addressed to:
Equal Employment Opportunity Commission 101 West Ohio Street, Suite 1900 Indianapolis, Indiana 46204-4203 Telephone: (317) 226-7212 TTY (317) 226-5162
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ATTACHMENT C

RELEASE

A. DEFINITIONS. For purposes of this release and waiver (the “Release”), the following terms shall have the meanings set forth below:

1.

The “Hill Action” means the lawsuit captioned Hill, et al. v. Merrill Gardens, LLC; United

States District Court for the Northern District of Indiana, Fort Wayne Division, Case No.

1:04cv248, and all claims that were brought or that could have been brought by William

Anthony Hill, Golda Bailey, or any Class Member (who did not opt out) in this Court, in any

other Indiana state or federal court, or in or before any Indiana administrative agency, or in

any other proceeding, whether brought in an individual or representative capacity regarding

any application for employment at Georgetowne Place located at 1717 Maplecrest Road,

Fort Wayne, Indiana and owned by Merrill Gardens LLC from February 17, 1998 to April

18, 2005. The definition of “Hill Action” does not, however, include the “EEOC Action,”

as defined below.

2. The “EEOC Action” means the lawsuit captioned EEOC v. Merrill Gardens, LLC; United States District Court for the Northern District of Indiana, Fort Wayne Division, Case No. 1:05-cv-004.

3. The “Litigation” refers to the Hill Action and the EEOC Action collectively.

4. “Settlement Agreement” means the proposed Settlement Agreement filed in the Hill Action, including any subsequent amendments thereto and any exhibits to any such amendments.

5. “Consent Decree” means the proposed Consent Decree filed in the EEOC Action, including all exhibits.

6. “Class” and “Class Members” mean all African American and other minority applicants for employment at Georgetowne Place, operated by Merrill Gardens LLC, who submitted applications for employment, and who were denied employment in vacant positions from February 17, 1998 to April 18, 2005.

7. “Final Order and Judgment” means the order in the Hill Action finally certifying the Class for settlement purposes only and approving the settlement and the Settlement Agreement, and a final judgment is signed pursuant to that order.

8. “Court” means the United States District Court for the Northern District of Indiana, Fort Wayne Division.

9. “Plaintiff Hill” means William Anthoney Hill.

10. “Plaintiff Bailey” means Golda Bailey.

11. “Class Counsel” means John T. Menzie, Esquire and/or Shane C. Mulholland at the law firm of Burt, Blee, Dixon, Sutton & Bloom, LLP, Suite 1000, 200 East Main Street, Fort Wayne,

25

Indiana 46802.
12. “Released Parties” means Merrill Gardens LLC and each of its past, present and future parents, subsidiaries, affiliated companies, affiliates, predecessors, successors in interest and assigns, and each of their respective past, present and future officers, directors, employees, attorneys and representatives, or any of them, including any person or entity acting on behalf of or at the direction of any of them.
13. “Consideration” means the consideration approved by the Court in the Final Order and Judgment and as outlined in the Settlement Agreement. The EEOC has estimated that the undersigned Class Member will receive &_________, which is subject to approval and adjustment (lower or higher) by the Court, depending, in part, upon the total number of Class Members deemed eligible for payment.
B. RELEASE TERMS
1. In exchange for the valuable Consideration, Plaintiff Hill, Plaintiff Bailey, and each Class Member who has not opted out of the Hill Action Settlement release and forever discharge the Released Parties from any and all claims or causes of action—known or unknown—that were or could have been asserted in the Litigation regarding applications or requests for employment (or any alleged failure to hire) from February 17, 1998 to April 18, 2005 at Merrill Gardens. As part of this Release, Plaintiff Hill, Plaintiff Bailey, and each Class Member who has not opted out of the Hill Action Settlement release, acquit and forever discharge Released Parties, either directly or indirectly, derivatively, on their own behalf, or on behalf of a class or any other person or entity, any and all causes of action, claims, damages, award, equitable, legal and/or administrative relief, interest, demands, or rights, whether based on federal, state, or local law, statute, contract, common law, or any other source, that have been, could have been, may be or could be alleged or asserted now or in the future by Plaintiff Hill, Plaintiff Bailey, or any Class Member who has not opted out of the Hill Action Settlement against the Released Parties or any of them in the Litigation or in any other court action or proceeding before any administrative body, tribunal, arbitration, panel, or other adjudicatory body arising out of or related to, in whole or in part, applications or requests for employment (or any alleged failure to hire) at Merrill Gardens or its Georgetowne Place facility between February 17, 1998 and April 18, 2005.
2. Without in any way limiting the scope of the Release, this Release covers any and all claims for attorneys’ fees, costs of disbursements in connection with or related in any manner to the Litigation, the settlement of the Litigation and/or the administration of such settlement except to the extent otherwise specified in the Settlement Agreement.
3. In connection with this Release, Plaintiff Hill and each Class Member who has not opted out of the Hill Action Settlement may hereafter discover claims presently unknown or unsuspected, or facts in addition to or different from those which they now know or believe to be true, with respect to the matters released in paragraph 1 above. Nevertheless, Plaintiff Hill and each Class Member who has not opted out of the Hill Action Settlement fully, finally, and forever settle and release all matters released in paragraph 1 above.
4. This Release binds Plaintiff Hill and each Class Member who has not opted out of the Hill
26

Action Settlement and their respective heirs, executors, administrators, successors in interest and assigns. 5. This Release may be raised as a complete defense to, and will preclude, any action or proceedings encompassed by this Release. 6. Nothing in this Release shall preclude any action to enforce the terms of the Settlement Agreement or Consent Decree, including participation in any of the processes detailed therein. 7. The provisions of this Release, individually and collectively, constitute an essential and material term of the Settlement Agreement. 8. This Release is the result of a compromise of a disputed claim and shall never at any time be used as evidence of any admission of liability by Merrill Gardens. 9. This Release shall be interpreted under the laws of the State of Indiana. The undersigned expressly agrees that the foregoing Release applies to him or her and that the foregoing Release shall take effect upon Final Order and Judgment.
____________________________________ Signature of Class Member ____________________________________ Printed Name of Class Member ____________________________________ Address of Class Member ____________________________________ Telephone Number of Class Member ____________________________________ Social Security Number of Class Member
Please return executed Release to: Kenneth Bird, Equal Employment Opportunity Commission, 101 West Ohio Street, Suite 1900, Indianapolis, Indiana 46204-4203. The executed Release is due by no later than September 2, 2005.
27

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

WILLIAM ANTHONY HILL,

)

ELIZABETH A. WORTHMAN, and

)

GOLDA BAILEY,

)

On Behalf of Themselves and Others

)

Similarly Situated,

)

)

Plaintiffs, )

)

v.

)

)

MERRILL GARDENS LLC,

)

)

Defendant. )

_____________________________________

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff, )

)

v.

)

)

MERRILL GARDENS LLC,

)

)

Defendant. )

CASE NO.1:04-CV-248 CAUSE NO.1:05-CV-4

OPINION AND ORDER GRANTING FINAL APPROVAL TO CLASS ACTION SETTLEMENT, ENTRY OF FINAL JUDGMENT,
AND ENTERING CONSENT DECREE The Final Approval to Class Action Settlement and Entry of Final Judgment is for purposes of the above-referenced action, Hill v. Merrill Gardens LLC (the "Hill Action"). The Entry of Consent Decree is for purposes of the above-referenced action, Equal Employment Opportunity Commission v. Merrill Gardens LLC (the "EEOC Action"). Plaintiff William Anthony Hill ("Plaintiff Hill") and Plaintiff Golda Bailey ("Plaintiff Bailey"), on behalf of a Settlement Class (and respective subclasses), and Defendant Merrill Gardens

LLC ("Merrill Gardens") have entered into a settlement agreement (the "Settlement Agreement"). The parties previously submitted the Settlement Agreement in the Hill Action and a proposed Consent Decree to this Court for preliminary approval. On June 16, 2005, this Court entered an Order Granting Preliminary Approval to Class Action Settlement, Conditional Class Certification, and Proposed Consent Decree ("Preliminary Approval Order"). Counsel for Merrill Gardens has filed a declaration confirming the timely dissemination of notices in the media. At the hearing on September 9, 2005, counsel for the EEOC verified timely dissemination of the Notices of Class Action, Proposed Settlement, and Hearing ("Class Notice") required by the Preliminary Approval Order. No exclusion (opt-out) requests were submitted by any Class Member. Now, the matter having come before the Court for hearing on September 9, 2005, on the parties' request for the entry of an Order Granting Final Approval to the Proposed Class Action Settlement and for entry of Final Judgment in the Hill Action and for entry of an Agreed Consent Decree in the EEOC Action, the Court finds that it has jurisdiction over the parties and the subject matter, and finds as follows:
A. Final Order Confirming Class Certification and Approving Notice to Members of the Settlement Class
1. Class Certification In the Preliminary Approval Order, this Court granted conditional class certification to the
following settlement class and subclasses: All African-American and other minorities who: (1) submitted applications for employment at Georgetowne Place, located at 1717 Maplecrest Road, Fort Wayne, Indiana, operated by Merrill Gardens LLC; (2) between February 17, 1998 and April 18, 2005; (3) for vacant positions; (4) and who were denied employment in such vacant position; (5) where the positions were or may have been given to non-minority candidates.
2

The parties identified and sought preliminary approval of two subclasses: The "Known Class": Caroline Aduro, Samantha Bolden, Jaela Brownlee, Debra Edwards, William Anthony Hill, and Elizebeth Worthman ("Known Class Members"), each of whom participated in the Hill Action and/or the EEOC Action prior to April 18, 2005. The "Unknown Class": Class Members, including Golda Bailey, who are not specifically identified as Known Class Members. These individuals did not actively participate in the Hill Action and/or EEOC Action on or prior to April 18, 2005. Members of the Unknown Class are identified as "Unknown Class Members."
("Settlement Class.") The Court preliminarily found and concluded that the Settlement Class satisfied all the requirements of Federal Rule of Civil Procedure 23(a) and (b)(3); appointed Plaintiff Hill as Class Representative of the Known Class and Plaintiff Bailey as Class Representative of the Unknown Class; and appointed Plaintiff Hill's counsel, John T. Menzie and/or Shane C. Mulholland of the Burt, Blee, Dixon, Sutton & Bloom law firm, as class counsel for the Settlement Class ("Class Counsel").
This Court recognizes that even with stipulations of the parties, it has a duty to make an independent determination that each requirement of Rule 23 is satisfied. To this end, this Court has carefully examined the pleadings, record, and evidence before it, and has rigorously analyzed the parties' stipulations and the record relative to class certification.
Having considered all submissions timely filed with the Court pursuant to the Preliminary Approval Order and the Settlement Agreement, and all the evidence and submissions presented at or in conjunction with the September 9, 2005 hearing, the Court now finds and concludes that the proposed Settlement Class and subclasses satisfy all the requirements of Rule 23(a) and (b)(3), gives final approval to Plaintiff Hill and Plaintiff Bailey as the Representatives of the Settlement Class (and respective subclasses), and confirms appointment of Class Counsel in all respects as a part of this Order under Rule 23(a) and (b)(3) and for the purposes of implementing the Class Action
3

Settlement provided for in the Settlement Agreement and entering Final Judgment in the Hill Action. Class Counsel have represented and will represent the interests of Known, Unknown, and absent Class Members. The Court further gives final approval to the proposed Consent Decree in the EEOC Action. The only change that the parties propose, and the Court approves, to the tendered Settlement Agreement is that Elizebeth Worthman, who did not timely return a Release, nonetheless be allowed to retain eligibility for receipt of proceeds since she returned an executed Release before entry of this Order. However, the total amount of the compensatory damages (other than wages) pursuant to Section III.B.1.b of the preliminarily approved Settlement Agreement and Section 302 of the final Consent Decree shall be reduced to $14,000. The Court specifically notes that this minor change is fair to all concerned, is consistent with the requirements of Rule 23, and corresponds with the approval given by Elizebeth Worthman and her attorney, John Menzie.
For the reasons set forth above and detailed more fully below, this Court hereby formally declares the prerequisites of Rule 23 to be fully demonstrated and met, rendering class treatment proper.
2. Findings of Fact and Conclusions of Law a. Numerosity
Over 250 positions were filled at Merrill Gardens from February 1998 to April 2005. Since not all applications were retained by the Georgetowne Place facility during this time period, the specific number of applicants is uncertain and cannot be specifically ascertained, but the number of applicants would certainly well exceed at least two to three times the number of positions filled. Further, in response to media notices the EEOC received contacts from more than 80 individuals.
4

Not all of these individuals who contacted the EEOC were determined to be eligible. However, the number of contacts, viewed in conjunction with the number of vacant positions, supports the conclusion that a sufficient number of Class Members exist to render joinder of all parties impracticable and plaintiffs satisfy the numerosity requirement of Rule 23(a)(1).
b. Commonality There are questions of law or fact common to the class so that Plaintiffs satisfy the
commonality requirements of Rule 23(a)(2). The class alleges a procedure of declining minority applications. Commonality is met.
c. Typicality The claims of the two named Plaintiffs are sufficiently typical of the claims of the Class to
satisfy the typicality requirements of Rule 23(a)(3). Each Plaintiff applied at Georgetowne Place. Plaintiff Hill represents the interests of the Known Class Members. Plaintiff Bailey represents the interests of the Unknown Class Members. No significant conflicts of interest exist between the absent class members and the named representatives to suggest that typicality is lacking. Therefore, typicality is satisfied.
d. Adequate Representation The named Plaintiffs will fairly and adequately protect the interests of the class as required
by Rule 23(a)(4). Counsel for plaintiffs will fairly and adequately represent the interests of the class as required by Rule 23(g) and as previously noted by this Court.
5

e. Grounds Generally Applicable Merrill Gardens allegedly acted on grounds generally applicable to the class in failing to hire
certain minority applicants for a period of time. Therefore, final injunctive relief or corresponding relief with respect to the class as a whole, in the event that Plaintiffs would prevail on the merits, would be appropriate.
f. Predominance and Superiority Questions of law or fact common to the members of the class predominate over any
questions affecting only individual members. Resolution of these common questions, examples of which are stated above in subsection b, will be a substantial step toward disposition of the case. Therefore, the Rule 23(b)(3) requirement of predominance of common questions is met, and a class action is superior to other available methods for the fair and efficient adjudication of this controversy.
g. Manageability Concerns regarding manageability of the class are greatly reduced in this action. Class
Members have been identifiable through an extensive media campaign. Notices were properly and promptly sent pursuant to this Court's preliminary order. No choice of law issues are presented to the Court, as no party contests that federal law is properly applied to the facts in the action. Therefore, concerns regarding manageability and due process notice are noted by the Court, and are found to be properly addressed by the definition and structure of the present action.
6

3. Notice The Preliminary Approval Order approved the form and content of the Notices to be
circulated via print media and the radio pursuant to the schedule attached to this Court's Preliminary Approval Order as Exhibit "C" and the text and narrative attached as Exhibit "D" (the "Notices"). The Notices provided sufficient information and were disseminated with sufficient frequency to meet the notice requirements of Federal Rule of Civil Procedure 23(c) and inform members of the Hill Action Settlement Class and EEOC Action Class of the essential terms of the Settlement Agreement and the Consent Decree, appropriate means for obtaining additional information about the Settlement Agreement and Consent Decree, appropriate information about the procedures for becoming eligible for a payment under the Hill Action Settlement and the EEOC Consent Decree, and appropriate information about their rights, and the procedures, to object to the terms of the Settlement Agreement or exclude themselves from the Hill Action Settlement, if they should wish to do so. The Notices also fairly and adequately informed members of the Hill Action Settlement Class that failing to obtain, execute, and return the Release (that was available from the EEOC and which was attached to this Court's Preliminary Approval Order as Exhibit "E") would result in their ineligibility for payment under the Settlement Agreement and proposed Consent Decree.
Based on the foregoing, the Court hereby finds and concludes that members of the Hill Action Settlement Class have been provided the best notice practicable of the Hill Action Settlement and that such notice satisfies all requirements of due process and Rule 23.
4. Persons Excluded from the Settlement Class
7

No members of the Hill Action Settlement Class requested exclusion from the Hill Action Settlement Class. As such, all persons meeting the definition of a Class Member (see above) are bound by the release in the Hill Action Settlement.
Several individuals have objected to being excluded from the class in this case. To put these claims into perspective, some background may be useful. Because Merrill Gardens did not maintain applicant data or applications from all applicants before approximately April 2004, as part of the resolution of this case the parties agreed to a period to advertise for Unknown Class Members. When individuals came forward in response to that advertising, the EEOC interviewed them to determine if they met the agreed-upon criteria to be a Class Member in this case, criteria that the Court preliminarily approved in its Order of June 20, 2005. Among other things, the EEOC questioned the individuals about the Merrill Gardens' facility in Fort Wayne and the application process. There are other facilities near Georgetowne Place that have commonly been confused with it. Based on an individual's description of the facility or process, the EEOC was able to gain some insight into whether the individual actually applied at Georgetowne Place. Merrill Gardens compiled lists of employee hired and provided those lists to the EEOC, which the EEOC used to see if an open position existed at Georgetown Place at any given time for a particular position, and to see if the position was given to another minority.
The Court received written objections from Lawrence T. Brooks, Sr.; Robert Warren Hagler, Jr.; Vickie Hill; Robert L. Guy, Jr.; Marcus E. Mitchell; Elmo R. Portee, Jr.; Tony Lamar Robertson; and Alexis Smith.
Lawrence T. Brooks did not appear at the fairness hearing. His written objection states that he applied April 15, 2005. The EEOC presented evidence that Mr. Brooks applied for a position as
8

dishwasher and that Merrill Gardens filled that position with an African American on May 9, 2005. Thus, the position for which Mr. Brooks applied was given to a minority, and Mr. Brooks does not meet the criteria to be considered an Unknown Class Member in this case.
Anitera Fowler did not appear at the fairness hearing. In her objection she writes that she applied at Georgetowne Place in 2002. The EEOC presented evidence that Ms. Fowler stated that she applied for a position as receptionist, but that no such position was available in 2002. The EEOC also presented evidence that Ms. Fowler vacillated on the time when she applied, at various times stating that she applied no later than 2000, and after September 2001, and in 2001 or 2002. As a result, the EEOC was unable to determine if there was an open position at the time Ms. Fowler applied. The Court now finds that there was no open position for receptionist at the time Ms. Fowler applied at Merrill Gardens.
Robert Guy testified that he applied for a cook or dishwasher position with Merrill Gardens in June or July 2002 and July or August 2004. He testified that the building was not locked when he applied and that he was allowed to take the applications from the building to fill them out. The EEOC presented evidence that there were no cook or dishwasher positions available in June or July 2002. Further, the EEOC presented evidence that Merrill Gardens hired minorities as cook and dishwashers in July 2004. Finally, the EEOC presented evidence that Merrill Gardens had a uniform policy not to allow applications to be removed from the building and that the facility was protected by a security system, which meant that all persons entering the building had to be buzzed in. The Court now finds that Mr. Guy did not apply for a job with Merrill Gardens and, even if he had applied, there were no cook or dishwasher positions available in June or July 2002, and Merrill Gardens hired minorities as cook and dishwashers in July 2004.
9

Robert Hagler did not appear at the fairness hearing. His written objection states that he applied for a position as cook. The EEOC presented evidence that Mr. Hagler said that he applied for a position as line cook early in 1999, but no such position was then available at Georgetowne Place. Further, the EEOC presented evidence that Mr. Hagler's description of the facility was inaccurate or incorrect. Specifically, Mr. Hagler stated that he walked right into the building, that he could not see any other rooms while in the lobby, and that he sat in the lobby and filled out the application on his lap because there were no tables. The EEOC presented evidence that the building was protected by a security system, which meant that all persons entering the facility had to be buzzed in, that other rooms were visible from the lobby, and that applicants were escorted to one of two rooms at the facility, either a billiards room or a gathering room, where there were tables on which to fill out the application. The Court now finds that Mr. Hagler did not apply for a position with Merrill Gardens, but even if he did, there were no openings at the time he applied for a job as cook.
Vickie Hill appeared at the fairness hearing in person and by counsel, Edward Smith. She testified that she applied to be a server at Merrill Gardens in the spring of 2001. She testified that the building was not locked when she applied, that there was a sliding glass window at the reception area where she got and returned an application, and that she filled out the application in the dining area near the reception desk. The EEOC presented evidence that the building was protected by a security system, which meant that all persons entering the facility had to be buzzed in, that the reception desk was open and had no sliding window of any sort, and that the dining area was on the third floor. The Court now finds that Ms. Hill failed to furnish competent evidence that would support a finding that Ms. Hill applied for a job with Merrill Gardens. Her objection is therefore
10

denied. Marcus Mitchell testified that he applied for a job as dishwasher in April 2005. On May 9,
2005, Merrill Gardens filled that position with an African American. Thus, the position for which Mr. Mitchell applied was given to a minority and Mr. Mitchell does not meet the criteria to be considered a Class Member in this case.
Elmo Portee did not appear at the fairness hearing. His written objection states that he applied at Merrill Gardens in the summer of 2002 for a dietary or housekeeping position. The EEOC presented evidence that no such positions were available in June or July of 2002 and that Mr. Portee stated he got a job by August 2002. Further, the EEOC presented evidence that Mr. Portee claimed he took home an application from Merrill Gardens to fill it out, but Merrill Gardens had a uniform policy not to allow applications to be removed from the building. The Court now finds that Mr. Portee failed to produce competent evidence that supports a finding that Mr. Portee applied for a job with Merrill Gardens. Even if he had applied, however, there were no open dietary or housekeeping positions in June or July 2002. Consequently, Mr. Portee does not meet the criteria to be a Class Member in this case.
Tony Lamar Robertson testified at the fairness hearing that he applied at Merrill Gardens. Among other things, he testified that he applied once in 2003 and perhaps twice in 2004, in November 2004 or later. He stated that he filled out the application in the lobby area, in a chair, perhaps using a clipboard provided by Merrill Gardens. He also stated that the reception area was toward the back of the facility. In contrast, the EEOC presented evidence that Merrill Gardens does not have an application from Mr. Robertson at a time (November 2004 and later) when it appears reasonably certain that Merrill Gardens has retained all applications. Further, the EEOC presented
11

evidence that the uniform policy at Merrill Gardens was to escort applicants to one of two rooms at the facility, either a billiards room or a gathering room, and was not to provide applicants with a clipboard. In addition, the evidence showed that the reception area at Merrill Gardens was not as has been described by Mr. Robertson. Accordingly, the Court concludes that Mr. Robertson failed to produce competent evidence sufficient to support a finding that Mr. Robertson applied for a job with Merrill Gardens.
After the fairness hearing, Mr. Robertson tendered to the Court a letter with which he enclosed a business card from Georgetowne Place. He refers to the business card as "supporting evidence" and states that the receptionist at Georgetowne Place handed the card to him at the time he submitted his application. Yet, the card does not explain any of the deficiencies in Mr. Robertson's presentation that the Court noted in the preceding paragraph. Further, Mr. Robertson did not mention at the fairness hearing that he had further evidence or supporting evidence. Indeed, when the Court asked Mr. Robertson if he had any further evidence to present, Mr. Robertson responded that he did not. He has not shown any reason here to allow the presentation of further evidence, nor have the parties had an opportunity to cross-examine Mr. Robertson regarding the business card. For all of these reasons, and the reasons in the preceding paragraph, the Court denies and overrules Mr. Robertson's objection.
Alexis Smith was called to testify at the fairness hearing, but after diligent search was not found to be present at court. Her written objection alleges that she satisfies the criteria to be a member of the Unknown Class in this case. The EEOC presented evidence that Ms. Smith stated that she applied for a position in dietary or laundry in September 2004 and that Merrill Gardens does not have an application from Ms. Smith. It appears reasonably certain that Merrill Gardens has
12

retained all applications from that time period. The Court concludes that Ms. Smith has failed to produce competent evidence that Ms. Smith applied for a job with Merrill Gardens. Therefore, her objection is denied.
The Court also received a written objection from Rodney Woods, but counsel for the EEOC explained during the fairness hearing that the Commission erroneously sent Mr. Woods notice that he would not be in the class, which was corrected after Mr. Woods filed his objection with the Court. Mr. Woods acknowledged receipt of a notice from the EEOC informing him that he would be a member of the Unknown Class in this case, and the Court so finds him to be. Accordingly, there is nothing for the Court to rule on regarding Mr. Woods' objection.
Chakia Robertson claimed that she sent a written objection to the Court and attorneys on September 2, 2005. However, neither the Court nor any of the attorneys received such an objection. Ms. Robertson appeared at the fairness hearing and testified that she applied at Merrill Gardens in the summer of 2001 and around Christmas 2002. Because she did not present a written objection to the Court in a timely manner, she waived her opportunity to object. But even on the merits, Ms. Robertson's objection fails. Ms. Robertson testified that she saw a "Now Hiring" sign on the gate outside Merrill Gardens. She also testified that she applied just before she graduated from high school, which was in May 2002. The EEOC presented evidence that Ms. Robertson told them that she applied in May 2002 for a position in housekeeping, but that there were no open positions in May and June 2002. Further, the EEOC presented testimony that Merrill Gardens hired a minority in January 2003 in the position for which Ms. Robertson was allegedly applying. The EEOC also presented evidence that Merrill Gardens did not at any time hang a "Now Hiring" sign on its gate. The Court now finds that there were no open positions when Ms. Robertson applied in May 2002
13

and Merrill Gardens hired a minority in the position for which Ms. Robertson applied around Christmas 2002. Thus, Ms. Robertson does not meet the criteria to be a Class Member in this case. Debra Johnson did not file a written objection with the Court, but she appeared at the fairness hearing and testified that she applied for a housekeeping position at Merrill Gardens sometime between 1995 and 2000. Because she did not present a written objection to the Court in a timely manner, she waived her opportunity to object. But even on the merits, Ms. Johnson's claim fails. Ms. Johnson could not identify with any precision when she applied at Merrill Gardens. As a result, the EEOC was unable to determine if there was an open position at the time Ms. Johnson applied. The EEOC presented evidence that Ms. Johnson stated that she applied once when she worked for Parkview Hospital, perhaps as early as 1995, and Ms. Johnson admitted that she may have applied at Merrill Gardens before February 17, 1998. Consequently, the Court now finds that Ms. Johnson has not satisfied the criteria to be a Class Member in this case.
Roszetta Clark submitted an objection to class counsel on September 29, 2005, which class counsel has forwarded to the Court. The Court has reviewed Ms. Clark's objection and the EEOC's Response (also filed September 29th.) Ms. Clark states that she applied "at Georgetowne" in September 2001. She says that the receptionist handed her an application, which she filled out in her car. The evidence at the fairness hearing established that Georgetowne Place had a uniformly enforced policy not to allow applications out of the building. Accordingly, the Court concludes that Ms. Clark failed to produce competent evidence sufficient to support a finding that she applied for a job with Merrill Gardens. Therefore, Ms. Clark's objection is denied.
The Court independently concludes that the EEOC's determinations of Class eligibility by the EEOC are valid. Class Members are only those who meet the definition of Class Members set
14

forth above. Those who submitted objections do not meet each and every component of that definition. Those listed in the listing filed by the EEOC on September 1, 2005 do meet the definition of Class Members and, since these individuals submitted Releases acceptable to the Court and the parties, are entitled to settlement proceeds.
C. Final Approval of the Class Action Settlement In the Preliminary Approval Order, the Court found that the Settlement Agreement appeared
to be fair, reasonable, and adequate and clearly fell within the appropriate range of possible approval. In essence, the Hill Action Settlement provides for each member of the Hill Action Settlement Class and EEOC Consent Decree Class who timely submits an executed Release to receive an amount calculated pursuant to the fair and reasonable formula set forth in the attached Settlement Agreement and proposed Consent Decree.
Therefore, taking into account the consideration set forth in the Settlement Agreement, the defenses asserted by Merrill Gardens (particularly defenses of causation, statute of limitations, and qualifications) and the risks of further litigation, the Settlement Agreement is fair, reasonable, and adequate. Moreover, the parties have reached the Settlement after an extended investigation and negotiation process. No objections were submitted regarding the appropriateness of the settlement. Accordingly, having considered the foregoing, the lack of opposition to the Settlement, the strength and weaknesses of the claims that have been and could be asserted on behalf of the members of the Settlement Class, the strengths and weaknesses of the defenses that have been and could be asserted by Merrill Gardens, the damages that have been and could be claimed on behalf of the members of the Settlement Class, the value of the Settlement, and the complexity, length, expense, and uncertain
15

outcome of continued litigation, and there being no suggestion of improper collusion among the parties, the Court finds that the Settlement is fair, reasonable, and adequate to members of the Settlement Class, and the Court hereby grants final approval of the Settlement Agreement and enters this Judgment implementing its terms. The Court hereby adopts and incorporates the terms of the Settlement Agreement for the purposes of this Order and Judgment, including the Definitions set forth in the Settlement Agreement. The Court also orders that a fully executed copy of the Settlement Agreement, as approved, be filed with the Court.
D. Payments Under the Settlement Agreement The Preliminary Approval Order anticipated payments by Merrill Gardens of an amount for
known class members in the amount of $325,000, and payment of up to $325,000 for class members not known at the time the Settlement Agreement was negotiated.
This Court approved Class Counsel's petition for an award of $100,000 in attorneys' fees and expenses, as negotiated by the parties. Such amount does not come from the amounts negotiated to be paid to known and unknown Class Members.
Now, for the purposes of consummating the administration of the Settlement, the Court orders as follows:
If, after 30 days from the entry by this Court of this Order and Judgment, no notice of appeal of this Judgment or any Order in this case has been filed, so that any right to take an appeal from this Judgment or from any such Order has been waived, or if each such appeal has been finally adjudicated and this Order and Judgment have been upheld in all respects by that final adjudication, Merrill Gardens shall make payments pursuant to the identical formula set forth in the approved
16

Settlement Agreement and the approved Consent Decree which are attached hereto as Exhibits "A" and "B," with the only modification being the $1,000 reduction for Elizebeth Worthman and the $1,000 additional payment to Class Representative Golda Bailey for her services in relation to the final hearing.
If any notice of an appeal from this Order and Judgment is timely filed by any party, objector, claimant, or other person, the Settlement Agreement and Consent Decree will not be or become final or effective, and no payment pursuant to the Settlement Agreement and/or Consent Decree shall be made to any eligible Class Member or Class Counsel, unless and until each such appeal has been finally adjudicated and this Order and Judgment have been upheld in all respects by that final adjudication; or if modified, accepted in writing, by the Class Representatives, Merrill Gardens, and the EEOC, as appropriate.
E. Releases, Covenant Not to Sue, and Effect of Settlement Agreement 1. Releases by Settlement Class Members
In consideration of the terms of the Settlement Agreement, all members of the Hill Action Settlement Class, including Plaintiff Hill and Plaintiff Bailey, who did not opt out of the Hill Action Settlement are hereby found, deemed, and adjudged to have fully, finally, and forever released and discharged all of the following claims they have or may have against Merrill Gardens and each of its past, present and future parents, subsidiaries, affiliated companies, affiliates, predecessors, successors in interest and assigns, and each of their respective past, present and future officers, directors, employees, attorneys and representatives, or any of them, including any person or entity acting on behalf of or at the direction of any of them ("Released Parties") as set forth in the Release
17

set forth in the Court's Preliminary Order and as set forth below:
In exchange for the valuable Consideration, Plaintiff Hill, Plaintiff Bailey, and each Class Member who has not opted out of the Hill Action Settlement release and forever discharge the Released Parties from any and all claims or causes of action—known or unknown—that were or could have been asserted in the Litigation regarding applications or requests for employment (or any alleged failure to hire) from February 17, 1998 to April 18, 2005 at Merrill Gardens. As part of this Release, Plaintiff Hill, Plaintiff Bailey, and each Class Member who has not opted out of the Hill Action Settlement release, acquit and forever discharge Released Parties from, and shall not now or hereafter institute, maintain or assert against the Released Parties, either directly or indirectly, derivatively, on their own behalf, or on behalf of a class or any other person or entity, any and all causes of action, claims, damages, award, equitable, legal and/or administrative relief, interest, demands, or rights, whether based on federal, state, or local law, statute, contract, common law, or any other source, that have been, could have been, may be or could be alleged or asserted now or in the future by Plaintiff Hill, Plaintiff Bailey, or any Class Member who has not opted out of the Hill Action Settlement against the Released Parties or any of them in the Litigation or in any other court action or proceeding before any administrative body, tribunal, arbitration, panel, or other adjudicatory body arising out of or related to, in whole or in part, applications or requests for employment (or any alleged failure to hire) at Merrill Gardens or its Georgetowne Place facility between February 17, 1998 and April 18, 2005.
2. Covenant Not to Sue
In consideration of the terms of the Settlement Agreement, all members of the Hill Action
Settlement Class, including Plaintiff Hill and Plaintiff Bailey, none of whom opted out of the
settlement, are hereby found, deemed, and adjudged to have (1) covenanted and agreed that neither
Plaintiff Hill, Plaintiff Bailey, nor any of the Hill Action Settlement Class Members, nor anyone
authorized to act on behalf of any of them, will hereafter commence, authorize, or accept any benefit
from any judicial or administrative action or proceeding, other than as expressly provided for in the
Settlement Agreement and/or Consent Decree, against the Released Parties, or any of them, in either
their personal or corporate capacity, with respect to any claim, matter, or issue that in any way arises
from, is based on, or relates to any alleged loss, harm, or injury allegedly caused by the Released
Parties, or any of them, in connection with any application of employment at Merrill Gardens from
18

February 17, 1998 to April 18, 2005; (2) waived any right to any form of recovery, compensation, or other remedy in any such action or proceeding brought by them or on their behalf, other than as expressly provided for in the Settlement Agreement and/or Consent Decree; and (3) agreed that the Hill Action Settlement Agreement shall be a complete bar to any such action.
3. Effect of a Final Judicial Determination of Invalidity or Unenforceability If, after the entry by this Court of this Judgment, a notice of appeal of this Judgment is timely
filed by any party, objector, claimant, or other person or entity, and if an appellate court makes a final determination that this Judgment is in any respect invalid, contrary to law, or unenforceable, the Hill Action Settlement Agreement (including Merrill Garden's stipulation to the Hill Action Settlement Class provided for in the Settlement Agreement or to the entry of the Consent Decree in the EEOC Action) shall be null and void, and the Parties shall return to their respective positions in the Litigation as those positions existed immediately before the execution of the Hill Action Settlement Agreement and proposed Consent Decree, unless all Parties agree in writing to abide by the judgment as modified.
F. No Admission of Liability Nothing contained in the Preliminary Approval Order, this Order, or the documents
referenced therein and herein, shall be construed, deemed, or offered as an admission by any of the Parties for any purpose in any action or proceeding of any kind.
G. Entry of Final Judgment and Consent Decree
19

The Court hereby orders the entry of, and enters a Final Judgment of Dismissal With Prejudice in the Hill Action, incorporating the provisions of this Order, including the releases and covenant not to sue, on all claims, counts, and causes of action alleged in this action by Plaintiff Hill and Plaintiff Bailey, on behalf of themselves and the Settlement Class, relating to applications for employment at Georgetowne Place. The Court contemporaneously enters the Consent Decree in the EEOC Action. The Court finds that after the Effective Date, pursuant to the Settlement Agreement and Consent Decree, Merrill Gardens shall pay those individuals identified in the Notice of EEOC's Determination of Class Members filed by the EEOC on September 1, 2005. The Court expressly retains jurisdiction over all matters relating to the administration and consummation of the Settlement Agreement and Consent Decree, including, but not limited to, final disposition of the financial consideration identified in the Settlement Agreement and Consent Decree.
SO ORDERED on October 6, 2005. S/ Theresa L. Springmann
THERESA L. SPRINGMANN UNITED STATES DISTRICT COURT
20

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

WILLIAM ANTHONY HILL,

)

ELIZEBETH A. WORTHMAN, and

)

GOLDA BAILEY,

)

on Behalf of Themselves and Others

)

Similarly Situated,

)

)

Plaintiffs,

)

)

v.

)

)

MERRILL GARDENS LLC,

)

)

Defendant.

)

)

----------------------------------------------------- )

EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

MERRILL GARDENS LLC,

)

)

Defendant.

)

CAUSE NO.:1:04-CV-248-TLS CAUSE NO.: 1:05-CV-4-TLS

JOINT VERIFIED FINAL REPORT AND REQUEST FOR APPROVAL Comes now, Plaintiff, the Equal Employment Opportunity Commission (“EEOC”), Plaintiff William Anthony Hill (“Plaintiff Hill”), and Plaintiff Golda Bailey (“Plaintiff Bailey”), on behalf of themselves and others similarly situated, by counsel, Shane C. Mulholland and John T. Menzie of the law firm of Burt, Blee, Dixon, Sutton & Bloom, LLP, and Defendant Merrill Gardens LLC (“Defendant Merrill Gardens”) and hereby submit this Joint Verified Final Report and Request for Approval.

On October 6, 2005, this Court issued its Opinion and Order Granting Final Approval to Class Action Settlement, Entry of Final Judgment and Entering Consent Decree after conducting a full hearing and opportunity to be heard on September 9, 2005. Said Order:
1. Provided that the proposed Settlement Class and subclass satisfied the requirements of Rule 23(a) and (b)(3), granted final approval to plaintiffs Hill and Bailey as representatives of the settlement class and respective subclass and confirmed the appointment of John T. Menzie and Shane C. Mulholland as Class Counsel for purposes of implementing and carrying out the Class Action Settlement.
2. Gave final approval of the proposed Consent Decree in the EEOC action and gave final approval in the Hill/Bailey action under Rule 23 of the Federal Rules of Civil Procedure.
3. Found that the members of the settlement class were provided the best notice practicable and that such notice satisfied all requirements of due process and Rule 23 of the Federal Rules of Civil Procedure.
4. Provided that no members of the settlement class and/or the respective subclass requested exclusion that all persons met the definition of a class member, the Court making determinations as to individual objections as to exclusion from the settlement class.
5. Made final approval of the class action settlement ordering payment to class and subclass members who had not opted out of the settlement and who had returned timely, executed Releases and approved payment of attorneys’ fees and expenses.
2

Pursuant to the Court’s Order, payment was to be made by Defendant Merrill Gardens to known class members in the amount of Three Hundred Twenty Four Thousand Dollars ($324,000.00), and payment of up to Three Hundred Twenty Six Thousand Dollars and Eight Cents ($326,000.08) for class members not known at the time the settlement agreement was negotiated, payments to be made pursuant to the Class Action Distribution Spreadsheet attached hereto, made a part hereof and incorporated herein as Exhibit “A”. Class Counsel has issued payments to the class members, both known and unknown, pursuant to the Schedule attached hereto as Exhibit “A”.
The parties stipulate that the information and calculations set forth in Exhibit “A” hereto accurately reflect the amounts due to individual class and subclass members pursuant to this Court’s October 6, 2005 Order.
Moreover, Class Counsel represents that class and subclass members have satisfied all conditions precedent to receipt of payments including, but not necessarily limited to, execution of a Settlement Agreement and related documents within the requisite time. Class Counsel and class and subclass members as well as the EEOC agree that Defendant Merrill Gardens has no further contractual obligation to pay any further amounts arising out of, resulting from or related to this litigation and further stipulate and agree that no further payments will be paid or are due by Defendant Merrill Gardens to Class Counsel or any other class or subclass member or representative.
Moreover, by way of this Report, Class Counsel acknowledges receipt of payment for attorneys’ fees and other litigation related expenses as set forth in this Court’s October 6, 2005, Order.
3

Class Counsel further represents by way of this Report that disbursement of all settlement checks were made to all class and subclass members in person by hand-delivering same to each class and subclass member at the offices of Burt, Blee, Dixon, Sutton & Bloom, LLP at which time each class and subclass member executed an acknowledgment of Receipt of Payment with appropriate withholdings made as determined by the information provided by the class and subclass members by way of an Internal Revenue Service W-4 Form which had been submitted by each class and subclass member prior to disbursement contemporaneous with the execution of the Settlement Agreement; with the exception of Known Class Member, Elizebeth Worthman (“Worthman”), whose settlement check was mailed via certified mail, return receipt requested which was mailed on December 9, 2005. Class Counsel further reports that the certified return receipt (“green card”) was received by Class Counsel on December 12, 2005, acknowledging Worthman’s receipt of her settlement proceeds.
By way of this Stipulated Report, the parties hereby represent and agree that the parties have fully complied with the Court’s Order dated October 6, 2005, and the Court-approved settlement agreement between Defendant Merrill Gardens and the Class as well as the Consent Decree between Defendant Merrill Gardens and the EEOC.
The parties hereto further request that this Court acknowledge that the parties have complied with their respective obligations concerning settlement and the disbursement of the settlement proceeds and request that this Court approve this Report and the actions described herein as being in compliance with this Court’s October 6, 2005, Order.
4

VERIFICATION The undersigned attorneys confirm under the penalties for perjury that the foregoing representations are true and accurate.

BARNES & THORNBURG

Respectfully submitted, BURT, BLEE, DIXON, SUTTON & BLOOM, LLP

s/ Kathleen M. Anderson Kathleen M. Anderson, #16351-92 Tiffany L. Gooden, #24199-02 600 One Summit Square Fort Wayne, IN 46802 Telephone: (260) 423-9440 Facsimile: (260) 424-836 ATTORNEY FOR DEFENDANT

s/ Shane C. Mulholland John T. Menzie, #10255-02 Shane C. Mulholland, #20637-57 200 East Main Street, Suite 1000 Fort Wayne, IN 46802 Telephone:(260) 426-1300 Facsimile: (260) 422-2722 CLASS COUNSEL

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
s/ Kenneth Bird Kenneth Bird, #10780-02 101 West Ohio Street, Suite 1900 Indianapolis IN 46204-4203 Telephone: (317) 226-7204 ATTORNEY FOR EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

CERTIFICATE OF FILING 5

I hereby certify that on 2006 April 11 I electronically filed the foregoing Joint Verified Report and Request for Approval with the Clerk of the Court using the CM/ECF system, which sent notice of such filing to the following:
Kathleen M. Anderson Tiffany L. Gooden BARNES & THORNBURG LLP 600 One Summit Square Fort Wayne IN 46802 John T. Menzie, #10255-02 Shane C. Mulholland, #20637-57 200 East Main Street, Suite 1000 Fort Wayne IN 46802
/s/ Kenneth L. Bird Kenneth L. Bird, #10780-02 Senior Trial Attorney Equal Employment Opportunity Commission 101 W. Ohio St., Ste 1900 Indianapolis IN 46204-4203 Phone: (317) 226-7204 Fax: (317) 226-5571 email: Kenneth.Bird@eeoc.gov
6

COURT APPROVAL AND FINAL ORDER The Court approves the above-referenced Report and the actions described therein as being in compliance with this Court’s October 6, 2005, Order. Upon the representations made herein, that Defendant Merrill Gardens has made the requisite payments and that said payments were distributed to class and subclass members and that all attorneys’ fees and litigation related expenses are hereby acknowledged to have been paid and that no other additional payments to Class Counsel or to class and sub class members are required, this Court finds that all terms and conditions finalizing the Class Action Settlement have been completed. APPROVED this 12th day of April, 2006.
s/ Theresa L. Springmann THERESA L. SPRINGMANN UNITED STATES DISTRICT COURT
7

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

WILLIAM ANTHONY HILL,

)

ELIZEBETH A. WORTHMAN, and

)

GOLDA BAILEY,

)

On Behalf of Themselves and Others

)

Similarly Situated,

)

)

Plaintiffs,

)

)

v.

)

)

MERRILL GARDENS LLC,

)

)

Defendant.

)

____________________________________)

)

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

MERRILL GARDENS LLC,

)

)

Defendant.

)

CAUSE: 1:04-CV-248-TLS CAUSE: 1:05-CV-4-TLS

ORDER This matter is before the Court on the Stipulated Order Granting Preliminary Approval to Class Action settlement, Conditional Class Certification, and Proposed Consent Decree (“Stipulation”) proposed by the Defendant, Merrill Gardens, LLC, on June 8, 2005, as Docket Entry 50 in 1:04-CV-248 and Docket Entry 30 in 1:05-CV-4. The Stipulation is for the purposes of both of the above captioned matters, collectively referred to as the “Litigation.”

BACKGROUND The first case, Hill v. Merrill Gardens LLC, 1:04-CV-248 (the “Hill Action”), was filed on June 25, 2004. In the Hill Action, the Plaintiffs brought action on behalf of themselves and others allegedly similarly situated. Specifically, they claimed that they and others allegedly similarly situated were denied employment at the Georgetowne Place community located at 1717 Maplecrest Road, Fort Wayne, Indiana, owned by Merrill Gardens LLC (“Merrill Gardens”), and that the denial of employment was on the basis of race/color, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and § 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981. The second case, EEOC v. Merrill Gardens LLC, 1:05-CV-004 the “EEOC Action”), was filed on January 4, 2005. In the EEOC Action, the Equal Employment Opportunity Commission filed suit against Merrill Gardens (the “EEOC Action”) under authority granted by Sections 706(f)(1) and (3) and 707 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) and (3) and -6 (“Title VII”); and § 102 of Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981(a). The EEOC’s Complaint and Amended Complaint allege that Merrill Gardens had a pattern or practice of refusing to hire nonCaucasians because of their race and/or color, in violation of § 703(a) of Title VII, 42 U.S.C. § 2000e-(2)(a); alleged that Merrill Gardens failed, in violation of § 709(c), 42 U.S.C. § 2000e-(8)(c), to make and preserve records relevant to the determination of whether unlawful employment practices have been or are being committed; and sought appropriate relief for Caroline Aduro, Samantha Bolden, Jaela Brownlee, Debra Edwards, William Anthony Hill, Elizebeth Worthman, and a class of non-Caucasian individuals who were adversely affected by the alleged unlawful employment practices.1
1 Each of these individuals is a part of the proposed class in the Hill Action.
2

As these two lawsuits overlap, the Parties in the Litigation have negotiated a proposed resolution of the cases together. The Parties request that the lawsuits be consolidated solely for the purposes of approving the requested class relief in the Hill Action and entry of a proposed Consent Decree in the EEOC Action.
The Stipulation requests that the Court grant preliminary approval of the requested class relief in the Hill Action and a proposed Consent Decree in the EEOC Action. The Parties agree that the payments proposed under the negotiated resolution for class members is one and the same, despite the fact that it is memorialized in both the Hill Action proposed Settlement Action and the EEOC Action proposed Consent Decree.
The Parties submit the Settlement Agreement attached as Exhibit “A” (hereinafter referred to as the “Settlement Agreement”) in the Hill Action and the Consent Decree attached as Exhibit “B” (hereinafter referred to as the “Consent Decree”) in the EEOC Action to this Court for preliminary approval. In tendering these proposed agreements together, the Parties have agreed that the resolution proposed in either requires approval by the Court of the other.
TERMS OF THE STIPULATION Having carefully reviewed the Parties submissions and finding them in good order, the Court GRANTS Preliminary Approval to Proposed Class Action Settlement, GRANTS the Proposed Consent Decree (“Preliminary Approval Order”) and FINDS, CONCLUDES, ORDERS, AND ADJUDGES as follows:
3

I. Preliminary Order Confirming Class Certification and Approving Notice to Members of the Settlement Class
A. Class Certification
The Court grants conditional class certification to the following settlement class
in the Hill Action and for the purpose of the proposed Consent Decree in the EEOC
Action:
All African Americans and other minorities who: (1) submitted applications for employment at Georgetowne Place, located at 1717 Maplecrest Road, Fort Wayne, Indiana, operated by Merrill Gardens LLC; (2) between February 17, 1998 and April 18, 2005; (3) for vacant positions; (4) and who were denied employment in such vacant position; (5) where the positions were or may have been given to non-minority candidates.
This class consists of two subclasses:
1) The “Known Class”: Class Members Caroline Aduro, Samantha Bolden, Jaela Brownlee, Debra Edwards, William Anthony Hill, and Elizebeth Worthman (“Known Class Members”), each of whom participated in the Hill Action and/or the EEOC Action on and/or prior to April 18, 2005. Members of the Known Class are identified as “Known Class Members.”
2) The “Unknown Class”: Class Members, including Golda Bailey, who are not specifically identified as Known Class Members. These individuals did not actively participate in the Hill Action and/or EEOC Action on or prior to April 18, 2005. Members of the Unknown Class are identified as “Unknown Class Members.”
These two subclasses shall together be referred to as the “Settlement Class.” The Court
finds that the Settlement Class appears to satisfy all requirements of Fed. R. Civ. P. 23(a)
and (b)(2) and (b)(3).
The Court preliminarily appoints Plaintiff William Anthony Hill (“Plaintiff Hill”)
as Class Representative of the Known Class and Golda Bailey (“Plaintiff Bailey”) as
4

Class Representative of the Unknown Class.2 The Court conditionally appoints Plaintiff Hill’s counsel, John T. Menzie and/or Shane C. Mulholland of the Burt, Blee, Dixon, Sutton & Bloom law firm, as class counsel for the Settlement Class (“Class Counsel”). The Class Counsel represents the interests of the Class with respect to the Hill Action.
The EEOC represents the interests of the Settlement Class with respect to the EEOC Action.
B. Notice For purposes of both lawsuits, the Court approves the form and content of the Notices to be circulated via print media and the radio at Merrill Gardens’ expense during a 30-day period beginning in June 2005 (the “Official Notice Period”) pursuant to the schedule attached as Exhibit “C” and the text and narrative attached as Exhibit “D” (the “Notices”).
When potential Class Members timely contact the EEOC within the Official Notice Period and/or within 14 days thereafter, the EEOC shall send them the appropriate written Notice set forth as Exhibits “A-1 and A-2” (the “Mailed Notices”). The Notice and Mailed Notices provide sufficient information to inform members of the Hill Action Settlement Class and EEOC Action Class of the essential terms of the Settlement Agreement and the Consent Decree, appropriate means for obtaining additional information about the Settlement Agreement and Consent Decree, appropriate information about the procedures for becoming eligible for a payment under the Hill Action Settlement and the EEOC Consent Decree, and appropriate information about
2 Plaintiff Elizebeth Worthman is not being proposed as Class Representative.
5

their right, and the procedures, to object to the terms of the Settlement Agreement or exclude themselves from the Hill Action Settlement, if they should wish to do so. The Notice will also fairly and adequately inform members of the Hill Action Settlement Class that failing to timely obtain, execute, and return the Release attached to this Order as Exhibit “E” (the “Release”) will result in them becoming ineligible for payment under the proposed Settlement Agreement and proposed Consent Decree.
If any potential Class Member contacts legal counsel for Merrill Gardens or a manager of Georgetowne Place in response to a notice in the media or based upon some other source, Merrill Gardens will provide the EEOC with contact information as soon as possible but by no later than seven (7) days after receiving the information.
Upon the expiration of the Official Notice Period, counsel for Merrill Gardens shall file a declaration that the Notices have been published in the manner and frequency required by and specified by this Preliminary Approval Order.
The Court hereby finds and concludes that members of the Hill Action Settlement Class will be provided the best notice practicable of the Hill Action Settlement and that such notice satisfies all requirements of due process and Fed. R. Civ. P. 23.
6

C. Persons Excluded from the Settlement Class The Parties may receive requests for exclusion from the Hill Action Settlement Class and will, within seven (7) days of the Fairness Hearing addressed below, file with the Court a list of those persons who have timely elected to be excluded. All persons named in the list filed with the Court as having filed timely exclusions will be excluded from the Hill Action Settlement Class, will not be bound by the terms of the Hill Action Settlement, and will not be eligible for payment under the Consent Decree.
II. Preliminary Approval of the Class Action Settlement The Settlement Agreement appears to be fair, reasonable, and adequate and falls
within the appropriate range of possible approval. In essence, the Hill Action Settlement provides that each member of the Hill Action Settlement Class and EEOC Consent Decree Class who timely submits an executed Release will receive an amount calculated pursuant to the fair and reasonable formula set forth in the attached Settlement Agreement and proposed Consent Decree.
III. Releases, Covenant Not to Sue, and Effect of Settlement Agreement A. Releases by Settlement Class Members The Court preliminarily finds that in consideration of the terms of the Settlement
Agreement, all members of the Hill Action Settlement Class, including Plaintiff Hill and Plaintiff Bailey, who do not opt out of the Hill Action Settlement will be found, deemed, and adjudged to have fully, finally, and forever released and discharged all of the following claims they have or may have against Merrill Gardens and each of its past, present and future parents, subsidiaries, affiliated companies, affiliates, predecessors, successors in interest and assigns, and each of their respective past, present and future
7

officers, directors, employees, attorneys and representatives, or any of them, including any person or entity acting on behalf of or at the direction of any of them (“Released Parties”) as set forth in the Release and as set forth below:
In exchange for the valuable Consideration, Plaintiff Hill, Plaintiff Bailey, and each Class Member who has not opted out of the Hill Action Settlement release and forever discharge the Released Parties from any and all claims or causes of action—known or unknown—that were or could have been asserted in the Litigation regarding applications or requests for employment (or any alleged failure to hire) from February 17, 1998 to April 18, 2005 at Merrill Gardens. As part of this Release, Plaintiff Hill, Plaintiff Bailey, and each Class Member who has not opted out of the Hill Action Settlement release, acquit and forever discharge Released Parties from, and shall not now or hereafter institute, maintain or assert against the Released Parties, either directly or indirectly, derivatively, on their own behalf, or on behalf of a class or any other person or entity, any and all causes of action, claims, damages, award, equitable, legal and/or administrative relief, interest, demands, or rights, whether based on federal, state, or local law, statute, contract, common law, or any other source, that have been, could have been, may be or could be alleged or asserted now or in the future by Plaintiff Hill, Plaintiff Bailey, or any Class Member who has not opted out of the Hill Action Settlement against the Released Parties or any of them in the Litigation or in any other court action or proceeding before any administrative body, tribunal, arbitration, panel, or other adjudicatory body arising out of or related to, in whole or in part, applications or requests for employment (or any alleged failure to hire) at Merrill Gardens or its Georgetowne Place facility between February 17, 1998 and April 18, 2005.
8

B. Covenant Not to Sue The Court preliminarily finds that in consideration of the terms of the Settlement Agreement, all members of the Hill Action Settlement Class, including Plaintiff Hill and Plaintiff Bailey, who do not opt out of the Settlement will be found, deemed, and adjudged to have (1) covenanted and agreed that neither Plaintiff Hill, Plaintiff Bailey, nor any of the Hill Action Settlement Class Members, nor anyone authorized to act on behalf of any of them, will commence, authorize, or accept any benefit from any judicial or administrative action or proceeding, other than as expressly provided for in the Settlement Agreement and/or Consent Decree, against the Released Parties, or any of them, in either their personal or corporate capacity, with respect to any claim, matter, or issue that in any way arises from, is based on, or relates to any alleged loss, harm, or injury allegedly caused by the Released Parties, or any of them, in connection with any application for employment at Merrill Gardens from February 17, 1998, to April 18, 2005; (2) waived any right to any form of recovery, compensation, or other remedy in any such action or proceeding brought by them or on their behalf, other than as expressly provided for in the Settlement Agreement and/or Consent Decree; and (3) agreed that the Hill Action Settlement Agreement shall be a complete bar to any such action.
C. Effect of a Final Judicial Determination of Invalidity or Unenforceability
If, after the entry by this Court of Judgment, a notice of appeal of Judgment is timely filed by any party, objector, claimant, or other person or entity, and if an appellate court makes a final determination that Judgment is in any respect invalid, contrary to law, or unenforceable, the Hill Action Settlement Agreement (including Merrill Garden’s stipulation to the Hill Action Settlement Class provided for in the Settlement Agreement
9

or to the entry of the proposed Consent Decree in the EEOC Action) shall be null and void, and the parties shall return to their respective positions in the Litigation as those positions existed immediately before the execution of the Hill Action Settlement Agreement and tender of the proposed Consent Decree unless all parties agree in writing to abide by the judgment as modified.
D. No Admission of Liability In entering into this agreement or the agreements referenced herein, Merrill Gardens does not admit that any class member in the Litigation would have been hired but for his/her race and/or color or that he/she was discriminated against on the basis of his/her race and/or color or that any claims are or would be timely. Merrill Gardens entered into this Stipulation and the agreements referenced herein to avoid further litigation.
CONCLUSION For the reasons and in the manner stated above, the Court GRANTS the Stipulated Order Granting Preliminary Approval to Class Action settlement, Conditional Class Certification, and Proposed Consent Decree (“Stipulation”) proposed by the Defendant, Merrill Gardens, LLC, as Docket Entry 50 in 1:04-CV-248 and Docket Entry 30 in 1:05-CV-4. SO ORDERED on June 16, 2005.
S/ Theresa L. Springmann THERESA L. SPRINGMANN UNITED STATES DISTRICT COURT
10

 
 Georgetowne Place to Pay $650,000 to Settle EEOC Race Discrimination Lawsuit

Page 1 of 2

The U.S. Equal Employment Opportunity Commission
FOR IMMEDIATE RELEASE June 22, 2005

CONTACT:

Laurie A. Young Regional Attorney (317) 226-7202
Kenneth L. Bird Senior Trial Attorney (317) 226-7204 TTY: (317) 226-5162

GEORGETOWNE PLACE TO PAY $650,000 TO SETTLE EEOC RACE DISCRIMINATION LAWSUIT

Company Marked African Americans' and Other Minorities' Applications for Rejection, Suit Says
INDIANAPOLIS – The owner of senior communities in 14 states will pay $650,000 to settle a race discrimination suit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The EEOC charged that a Fort Wayne senior community refused to hire African Americans and members of other racial groups for many years. The agency also said the facility failed to keep employment records, specifically application papers, as required by law.
According to the EEOC's lawsuit, Civil Action No. 1:05-CV-004, filed in the U.S. District Court for the Northern District of Indiana, Fort Wayne Division, Georgetowne Place, owned and operated by Seattle-based Merrill Gardens LLC, perpetrated a pattern and practice of shunning minorities because of their race and/or color. During the EEOC's investigation, Carol Felger, the former general manager for Georgetowne Place, stated that residents at the facility preferred white employees, and did not want minorities to come into their rooms.
The EEOC said that Felger, who made hiring decisions at Georgetowne Place, instructed her subordinates to mark job applications with post-it notes to inform her that a particular applicant was a minority. Felger herself reportedly placed a mark, which looked like a "Z," in the bottom left-hand corner on one page of applications she received from minorities so as to mark them for rejection. These hiring practices continued for at least nine years at Georgetowne Place, the EEOC charged.
The EEOC filed suit under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex (including sexual harassment or pregnancy), or national origin and protects employees who complain about such offenses from retaliation.
"Employers should know," said Danny Harter, Director of the EEOC's Indianapolis District Office, "that supposed customer preference is no excuse to violate federal anti-discrimination statutes. Even if customers might prefer to be served by individuals who are a particular race or color or sex-or someone who is younger or does not have a disability-the employer is not entitled to commit discrimination."
Laurie A. Young, Regional Attorney of the EEOC's Indianapolis District Office, commented, "This is an egregious case of discrimination made even worse by the failure to keep records as required by law. We are pleased that our lawsuit put a stop to the defendant's practice of race coding its applications."
In addition to the payments to minority applicants, Merrill Gardens will pay for the costs of advertising in newspapers and on radio, up to $70,000, to locate and identify African Americans and other nonwhites who applied at Georgetowne Place between February 17, 1998, and April 18, 2005. Applicants are encouraged to contact the EEOC at (317) 226-7226. The court will conduct a fairness hearing on September 9, 2005, in Fort Wayne to make final decisions regarding the settlement.
The company will also pay $10,000 to the U.S. Treasury for failure to retain employment records and $100,000 to private counsel who filed a separate suit. Merrill Gardens will train all employees at Georgetowne Place on the requirements of Title VII, and, specifically, on non-discrimination in hiring, procedures to report known or observed discrimination in the workplace, and non-retaliation. The company will provide additional training to managers and supervisors. The agreement also requires that Merrill Gardens notify employees, applicants, and recruiting sources that the company will make all hiring decisions without regard to race and/or color. Additionally, the company will maintain employment records and make

http://www.eeoc.gov/press/6-22-05.html

4/1/2007

Georgetowne Place to Pay $650,000 to Settle EEOC Race Discrimination Lawsuit

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reports to the EEOC.
According to the company's web site (www.merrillgardens.com), Merrill Gardens owns and operates senior, assisted-living, and Alzheimer's communities in 14 states, including Georgetowne Place in Fort Wayne. Carol Felger and her husband built the facility in Fort Wayne. Felger became the general manager in 1993, a position she retained after Merrill Gardens acquired the property in 1998. As general manager, she was in charge of the Georgetowne Place facility.
In addition to enforcing Title VII, the EEOC enforces the Age Discrimination in Employment Act of 1967 (ADEA), which protects workers age 40 and older from discrimination based on age; Title I of the Americans with Disabilities Act of 1990 (ADA), which prohibits employment discrimination against people with disabilities in the private sector and state and local governments; and other anti-discrimination statutes. The EEOC's Indianapolis Office is located at 101 W. Ohio Street, Suite 1900. The EEOC's toll free telephone number is (800) 669-4000. More information about the Commission is available at its web site www.eeoc.gov

This page was last modified on June 23, 2005. Return to Home Page

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CASREF, CLASS, TERMED
U.S. District Court Northern District of Indiana [LIVE] USDC Northern Indiana (Fort Wayne)
CIVIL DOCKET FOR CASE #: 1:05-cv-00004-TLS-RBC

Equal Employment Opportunity Commission v. Merrill Gardens LLC Assigned to: Judge Theresa L Springmann Referred to: Magistrate Judge Roger B Cosbey Cause: 42:2000 Job Discrimination (Race)

Date Filed: 01/04/2005 Date Terminated: 10/04/2005 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Plaintiff
Equal Employment Opportunity Commission

represented by Kenneth L Bird Equal Employment Opportunity Commission - Ind/IN 101 W Ohio Street Suite 1900 Indianapolis, IN 46204-4203 317-226-7204 Fax: 317-226-5571 Email: Kenneth.Bird@EEOC.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurie A Young Equal Employment Opportunity Commission - Ind/IN 101 W Ohio Street Suite 1900 Indianapolis, IN 46204-4203 317-226-7947 Fax: 317-226-7203 Email: legal.station@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle F Eisele Equal Employment Opportunity Commission - Ind/IN 101 W Ohio Street Suite 1900 Indianapolis, IN 46204-4203 317-226-7059 Fax: 317-226-5571 Email: michelle.eisele@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Merrill Gardens LLC

represented by Kathleen Marie Anderson Barnes & Thornburg LLP - FW/IN 600 One Summit Square

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Fort Wayne, IN 46802 260-425-4657 Fax: 260-424-8316 Email: kathleen.anderson@btlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tiffany L Gooden Barnes & Thornburg LLP - FW/IN 600 One Summit Square Fort Wayne, IN 46802 260-423-9440 Fax: 260-424-8416 Email: tiffany.gooden@btlaw.com ATTORNEY TO BE NOTICED

Date Filed 01/04/2005 01/04/2005 01/12/2005 02/01/2005 02/01/2005 02/01/2005 02/01/2005
02/01/2005 02/02/2005 02/02/2005 02/02/2005

#

Docket Text

1 COMPLAINT with Jury Demand against Merrill Gardens LLC, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet)(lns, ) (Entered: 01/07/2005)

2 Summons Issued as to Merrill Gardens LLC (CT Corp Systems). (lns, ) (Entered: 01/07/2005)

3 SUMMONS Returned Executed by Equal Employment Opportunity Commission. Merrill Gardens LLC served on 1/10/2005, answer due 1/31/2005. (Bird, Kenneth) (Entered: 01/12/2005)

4 NOTICE of Appearance by Kathleen Marie Anderson on behalf of Merrill Gardens LLC (Anderson, Kathleen) (Entered: 02/01/2005)

5 AGREED NOTICE to extend time to file answer filed by Merrill Gardens LLC ; answer due by February 22, 2005. (Anderson, Kathleen) (Entered: 02/01/2005)

6 NOTICE of Appearance by Tiffany L Gooden on behalf of Merrill Gardens LLC (Gooden, Tiffany) (Entered: 02/01/2005)

7 ORDER Rule 16 Preliminary Pretrial Conference set for 3/9/2005 01:00 PM in Fort Wayne before Magistrate Judge Roger B Cosbey.Signed by Judge Roger B Cosbey on 2/1/05. The Court will discuss at the hearing the setting of this case for a setttlement conference with all other cases where Merrill Gardens is the named defendant.(wsy) Additional attachment(s) added on 2/1/2005 (wsy). (Entered: 02/01/2005)

8 MAGISTRATE CONSENT FORMS sent to all parties (Standard Track). (wsy) (Entered: 02/01/2005)

9 MOTION to Amend/Correct Complaint by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 proposed amended complaint)(Bird, Kenneth) (Entered: 02/02/2005)

10 ORDER granting 9 Motion to Amend/Correct Complaint filed by Pltf Equal Employment Opportunity Commission. Signed by Judge Roger B Cosbey on 2/2/2005. (lns, ) (Entered: 02/03/2005)

11 AMENDED COMPLAINT against Merrill Gardens LLC, filed by Equal

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02/10/2005 02/21/2005 02/22/2005 02/23/2005 02/23/2005
02/24/2005 03/02/2005 03/09/2005 03/09/2005
03/09/2005 04/18/2005 04/18/2005 04/19/2005 05/04/2005 05/04/2005

Employment Opportunity Commission.(lns, ) (Entered: 02/03/2005)
12 CERTIFICATE of Attorney. (Bird, Kenneth) (Entered: 02/10/2005)
13 DISCLOSURE of of Corporate Status filed by Merrill Gardens LLC.(Gooden, Tiffany) (Entered: 02/21/2005)
14 Defendant's ANSWER to 11 Amended Complaint by Merrill Gardens LLC. (Gooden, Tiffany) Modified text to create link on 2/22/2005 (jcp, ). (Entered: 02/22/2005)
15 MOTION for client representative, Michelle Corey, to participate in pretrial conference by telephone by Defendant Merrill Gardens LLC. (Anderson, Kathleen) (Entered: 02/23/2005)
16 ORDER granting 15 Motion that Michelle Corely, Dir of Human Resources for Merrill gardens, be allowed to partic in 3/9/05 conf by telephone and to sv as deft rep for purposes of said conf. Signed by Judge Roger B Cosbey on 2/23/05. (lrm, ) (Entered: 02/23/2005)
17 CERTIFICATE Attorney-Client Certification regarding disclosure of anticipated fees and expenses. (Anderson, Kathleen) (Entered: 02/24/2005)
18 REPORT of Rule 26(f) Planning Meeting. (Bird, Kenneth) (Entered: 03/02/2005)
19 Minute Entry for proceedings held before Judge Roger B Cosbey : Settlement Conference held on 3/9/2005. A further settlement conference will be set by separate order. (wsy) (Entered: 03/09/2005)
20 Minute Entry for proceedings held before Judge Roger B Cosbey : Preliminary Pretrial Conference held on 3/9/2005. All proceedings are STAYED until further order of the Court with the exception of informal discovery as it relates to settlement. Defendant's response to any outstanding discovery is also stayed, the date to respond, if any, to be reset by further order. Settlement Conference set for 4/18/2005 09:00 AM in Fort Wayne before Magistrate Judge Roger B Cosbey. No further deadlines are established.(Tape #68) (wsy) (Entered: 03/09/2005)
21 SCHEDULING ORDER: Settlement Conference set for 4/18/2005 09:00 AM in Fort Wayne before Magistrate Judge Roger B Cosbey.Signed by Judge Roger B Cosbey on 3/9/05. (wsy) (Entered: 03/09/2005)
22 NOTICE. Docket entry reporting case resolution deleted/clerical error. (wsy) (Entered: 04/18/2005)
23 Minute Entry for proceedings held before Judge Roger B Cosbey : Settlement Conference held on 4/18/2005. No Notice of Settlement will be submitted at this time. (wsy) (Entered: 04/19/2005)
24 ORDER Status Conference set for 5/4/2005 08:30 AM in Fort Wayne before Magistrate Judge Roger B Cosbey. Counsel for the EEOC may participate by telephone. No pdf order will follow. (wsy) (Entered: 04/19/2005)
25 Minute Entry for proceedings held before Judge Roger B Cosbey : Status Conference held on 5/4/2005. (Tape #70) (wsy) (Entered: 05/04/2005)
26 ENTRY FOR JUDGE THERESA L SPRINGMANN re [25] Status Conference. Settlement documents and proposed notices are to be submitted to Judge Springmann by 5/17/2005. Telephonic Status Conference set for 5/20/2005 04:00 PM in Fort Wayne before Judge Theresa L Springmann to be held in conjunction

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05/20/2005
06/03/2005 06/08/2005
06/08/2005 06/16/2005 09/01/2005 09/01/2005 09/07/2005 09/08/2005 09/09/2005

with case 1:04CV248TLS. (jjj) Modified case number on 5/9/2005 (jjj). (Entered: 05/04/2005)
27 TELEPHONE STATUS CONFERENCE held on 5/20/2005 before Judge Theresa L Springmann: Status Conference in conjunction with case 1:04CV248TLS regarding preliminary approval of 44 MOTION to Certify Class. Pltf attys Muholland, Bird; Dft atty Anderson present. Court GRANTS Dft oral Motion to Amend Docket to Reflect Dft name Merrill Gardens LLC in case 1:04CV248TLS. Stipulated Order granting Preliminary approval to be submitted by 6/3/2005. Telephonic Status Conference set for 6/3/2005 01:30 PM in Fort Wayne before Judge Theresa L Springmann. IN-PERSON Hearing to be held on 9/9/2005 at 09:00 AM at Fort Wayne before Judge Theresa L Springmann re objections/final approval. (Court Reporter T. Gallucci.) (jjj) (Entered: 05/26/2005)
28 ENTRY FOR JUDGE THERESA L SPRINGMANN. Telephonic Status Conference RESET (in conjunction with cause 1:04CV248) for 6/8/2005 01:30 PM in Fort Wayne before Judge Theresa L Springmann at request and agreement of counsel to review revised documents. (jjj) (Entered: 06/06/2005)
29 TELEPHONE STATUS CONFERENCE held on 6/8/2005 before Judge Theresa L Springmann in conjunction with cause 1:04CV248TLS). Pltf attys Mulholland, Menzie, Bird, Intern Sherman; Dft attys Anderson, Intern Brackey present. Court GRANTS [48] Joint STIPULATION for Addition of Additional Plaintiff filed by William Anthony Hill, Elizabeth A Worthman, Merrill Gardens LLC from cause 1:04CV248TLS. Court to grant Stipulated Order for preliminary approval re class action upon receipt. (Court Reporter T. Gallucci.) (jjj) (Entered: 06/08/2005)
30 STIPULATION /Stipulated Order Granting Preliminary Approval to Class Action Settlement, Conditional Class Certification, and Proposed Consent Decree by Defendant Merrill Gardens LLC. (Attachments: # 1 Exhibit A-1 to A-3# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Anderson, Kathleen) (Entered: 06/08/2005)
31 ORDER granting 30 Stipulation/Stipulated Order Granting Preliminary Approval to Class Action Settlement, Conditional Class Certification, and Proposed Consent Decree by Defendant Merrill Gardens LLC . Signed by Judge Theresa L Springmann on 6/16/2005. (lns, ) (Entered: 06/20/2005)
32 AFFIDAVIT of Cindy L. Harrison by Merrill Gardens LLC. (Attachments: # 1 Exhibit A-F)(Anderson, Kathleen) (Entered: 09/01/2005)
33 NOTICE by Equal Employment Opportunity Commission of Determination of Class Members (Bird, Kenneth) (Entered: 09/01/2005)
34 ENTRY FOR JUDGE THERESA L SPRINGMANN. Telephonic Status Conference set for 9/8/2005 11:00 AM in Fort Wayne before Judge Theresa L Springmann re 9/9/2005 Hearing.(jjj) (Entered: 09/07/2005)
35 TELEPHONE STATUS CONFERENCE held before Judge Theresa L Springmann. Pltfs' attys Mullholland, Bird; Dft attys Anderson Gooden present. Court reviews pre-hearing conference proceedings and issues. (Court Reporter T. Gallucci.) (jjj) (Entered: 09/13/2005)
36 FAIRNESS HEARING held before Judge Theresa L Springmann on 9/9/2005; pltfs by Atty J. Menzie, Atty S. Mulholland, Atty K. Bird, Atty M. Eisele, EEOC rep M. Guest, unnamed class rep G. Bailey; defts by Atty K. Anderson, Atty T. Gooden, and party reps D. Manning and B. Bowman; court hears testimony from parties

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09/12/2005 09/23/2005 09/23/2005
09/29/2005
10/04/2005 10/06/2005 04/11/2006 04/12/2006

having filed objections to proposed class settlement/non-inclusion in class; court calls for testimony of objectors A. Smith, L. Brooks, A. Fowler, R. Hughes, E. Portee, but those individuals are not present; court will consider the written submissions of those parties; EEOC presents evidence; court hears from G. Bailey obo the Unknown Class; court hears from S. Mulholland obo W. Hill, representative of named class, obo named class; court grants final approval of S. Mulholland and J. Menzie to act as class counsel; class counsel request that G. Bailey as rep of unknow class be compensated; cnsl to confer re that possibility; matter of final approval of proposed class settlement TAKEN UNDER ADVISEMENT; counsel to submit revised form of final order of approval; time frame for this submission to be addressed at a TELE CONF set for 9/12/05, 2:00 p.m. before Judge Theresa L Springmann. (Court Reporter Tina Gallucci.) (Entered: 09/13/2005)
37 TELEPHONE STATUS CONFERENCE held before Judge Theresa L Springmann. Pltfs' attys Mulholland, Bird; Dft atty Anderson present. Court to receive proposed order by 9/15/2005 12:00 PM. Final Briefing of general issues by 9/22/2005. (Court Reporter T. Gallucci.) (jjj) (Entered: 09/13/2005)
38 ENTRY FOR JUDGE THERESA L SPRINGMANN - Telephone Conference set for 9/23/2005 09:45 AM in Fort Wayne before Judge Theresa L Springmann re notification. (jjj) (Entered: 09/23/2005)
39 TELEPHONE CONFERENCE held before Judge Theresa L Springmann. Pltfs' attys Menzie, Bird; Dft attys Anderson, Gooden present. Cnsl advised Court as to notification issues. Pltf to mail notification by 9/23/2005 COB with response ddl. Recipient Response to be filed by 9/29/2005. Court to receive notice of status by 9/30/2005. (Court Reporter T. Galucci.) (jjj) (Entered: 09/23/2005)
40 NOTICE by Equal Employment Opportunity Commission Tender of Declaration of Monica Guest, and Response to Objection of Roszetta Clark (Attachments: # (1) Exhibit 1: Objection of Roszetta Clark# 2 Exhibit 2: Declaration of Monica Guest) (Bird, Kenneth) Additional attachment(s) added on 10/4/2005 (lns, ). (Entered: 09/29/2005)
41 ENTRY OF CONSENT DECREE. Signed by Judge Theresa L Springmann on 10/4/2005. (lns) (Entered: 10/06/2005)
42 OPINION AND ORDER granting Final Approval to Class Action Settlement, Entry of Final Judgment, and Entering Consent Decree. Signed by Judge Theresa L Springmann on 10/6/2005. (lns) (Entered: 10/06/2005)
43 Joint MOTION Final Report and Request for Approval by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A - Schedule of payments) (Bird, Kenneth) (Entered: 04/11/2006)
44 COURT APPROVAL AND FINAL ORDER granting 43 Joint Motion for Final Report and Request for Approval by Equal Employment Opportunity Commission. Signed by Judge Theresa L Springmann on 4/12/2006. (lns) (Entered: 04/12/2006)

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