IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v. LITHIA MOTORS, INC., d/b/a LITHIA DODGE OF CHERRY CREEK, and LITHIA CHERRY CREEK DODGE, INC. d/b/a LITHIA DODGE OF CHERRY CREEK,
Defendants.
COMPLAINT AND JURY TRIAL DEMAND
NATURE OF THE ACTION This public enforcement action arises 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, African-American or Black. As alleged with greater particularity below, the Equal Employment Opportunity Commission (“Plaintiff” or “Commission”) alleges that Defendants created and tolerated a hostile work environment based on race for James Witherspoon and for other employees at its Cherry Creek Dodge location. In addition, Defendants unlawfully retaliated against James Witherspoon because Mr. Witherspoon complained about improper race-

based conducted carried out at Cherry Creek Dodge. After Mr. Witherspoon followed Defendant’s internal complaint process to raise concerns of racial discrimination, his General Manager increased the harassment, making the work conditions intolerable and forcing Mr. Witherspoon from his employment.
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 Section 706(f)(1) and (3), of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) and (3), and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. 2. The employment practices alleged herein to be unlawful were committed within the jurisdiction of the United States District Court for the District of Colorado.
PARTIES 3. Plaintiff, the Equal Employment Opportunity 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 Section 706(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3). 4. Defendant Lithia Motors, Inc. is a corporation, organized under the laws of Oregon. 5. Defendant Lithia Motors, Inc. operates the following stores in Colorado: Lithia Dodge of Cherry Creek; Lithia Colorado Chrysler Jeep; Lithia Colorado Springs Jeep Chrysler; Lithia Centennial Chrysler Jeep; Lithia Chrysler Jeep Dodge of Forth Collins; Lithia Hyundai of Forth Collins; Lithia Volkswagen of Thornton.
2

6. Defendant Lithia Cherry Creek Dodge, Inc. is a corporation organized under the laws of Colorado.
7. Both Defendants have continuously been doing business in the State of Colorado during all times relevant to this lawsuit, under the name Lithia Dodge of Cherry Creek at 2727 S. Havana Street, Aurora.
8. At all relevant times, each Defendant had at least 15 employees and 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).
9. At all relevant times, Defendants were the employers of the employees who worked at Lithia Dodge of Cherry Creek.
10. Upon information and belief, Defendants are a joint employer of the employees who work at Lithia Dodge of Cherry Creek, or are an integrated enterprise.
11. Upon information and belief, Defendants operate as the alter ego, agent, and/or instrumentality of one another. STATEMENT OF FACTS
12. More than thirty days prior to the institution of this lawsuit, James Witherspoon filed a charge of discrimination with the Commission alleging violations of Title VII by Defendants. All conditions precedent to the institution of this lawsuit have been fulfilled.
13. Since at least 2003, Defendant Lithia Motors Inc. engaged in unlawful employment practices in violation of Section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a).
14. On or about January 2003, Tim Jones transferred from Lithia Centennial Chrysler to
3

Lithia Cherry Creek Dodge, where he became the General Manager. 15. On or about January 6, 2003, General Manager Jones terminated three minority salesmen
Charles Mayes, Roosevelt Williams, and Herman Ortiz for allegedly being late to a sales meeting. 16. On January 6, 2003, car salesman James Witherspoon (African-American) was off work on an authorized leave of absence. 17. On or about January 13, 2003, James Witherspoon returned to work at Cherry Creek Dodge. 18. On or about January 13, 2003, General Manager Jones told Mr. Witherspoon that Witherspoon was “not going to get away with taking “B.P. Time.” When Witherspoon asked what that meant, Jones explained “Black People Time.” Jones also told Witherspoon that “B.P.Time” was the reason I fired “a bunch of you people already.” 19. During Witherspoon's remaining tenure at Cherry Creek Dodge, General Manager Jones afforded Witherspoon less favorable treatment than he afforded Caucasian salesmen. 20. General Manager Jones screamed and yelled obscenities to Witherspoon in the presence of co-workers and displayed more hostility toward Mr. Witherspoon than he displayed to Caucasian salesmen. 21. In contrast to his treatment of Caucasian salesmen, Jones caused Witherspoon’s commissions to be unfairly split with other sales men. 22. Jones deducted an unreasonable amount of pay after wrongly accusing Witherspoon of causing damage to a car. By contrast, a white employee had no pay deducted for
4

significant damage he had caused in a accident. 23. Jones directed that Witherspoon undergo a drug test, when there were no reasonable
grounds for doing so. By contrast, Caucasian employees who were known to be intoxicated at work were not required to submit to drug testing and were not disciplined or discharged. 24. Jones directed Witherspoon to raise the sales price by $5,000 on a car in which an African-American customer was interested, so that the customer was unable to purchase the car. 25. Mr. Witherspoon filed an internal complaint about discrimination and harassment with Lithia Motors, Inc. corporate office on April 29, 2003. 26. After Witherspoon filed his complaint, he was not advised of any investigation, or of the outcome of any investigation. 27. After Witherspoon file his complaint, General Manager Jones’ harassment of Witherspoon only intensified. 28. In addition, Jones yelled at and berated the personnel coordinator at Cherry Creek Dodge, for assisting Mr. Witherspoon in filing an internal charge. 29. With the continued harassment from Jones and no contact from headquarters about his internal complaint, any reasonable person would have felt the conditions had become impossible by the time Witherspoon resigned on May 16, 2003.
5

STATEMENT OF CLAIMS FIRST CLAIM FOR RELIEF
Claim of Discrimination 31. The effect of the practices complained of in the paragraphs above has been to deprive
James Witherspoon, of equal employment opportunities and otherwise adversely affect his status respectively as an employee, because of race, Black, or African American in violation of Sections 703(a), 42 U.S.C. § 2000e-2(a). 32. The unlawful employment practices complained of in the paragraphs above were intentional. 33. The unlawful employment practices complained of in the paragraphs above were done with malice or with reckless indifference to the federally protected rights of James Witherspoon.
SECOND CLAIM FOR RELIEF Claim of Retaliation
34. The effect of the practices complained of in the paragraphs above has been to deprive James Witherspoon, of equal employment opportunities and otherwise adversely affect his status respectively as an employee, because he reasonably believed he opposed practices made unlawful under Title VII in violation of Section 704 of Title VII, 42 U.S.C. § 2000e-3(a).
35. The unlawful reprisal and retaliation complained of in the paragraphs above were intentional.
36. The unlawful reprisal and retaliation complained of in the paragraphs above were done
6

with malice or with reckless indifference to the federally protected rights of James Witherspoon.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendants, their officers, successors, assigns, and all persons in active concert or participation with them, from engaging in race discrimination, retaliation, and any other employment practice which discriminates on the basis of race. B. Order Defendants to institute and carry out policies, practices, and programs at all their Colorado stores that proscribe workplace race discrimination, that prevent and promptly correct racial harassment, that provide equal employment opportunities for African Americans, and which eradicate the effects of its past and present unlawful employment practices. C. Order Defendants to make whole James Witherspoon, by providing appropriate back pay with prejudgment interest, in amounts to be determined at trial, and order other affirmative relief necessary to eradicate the effects of its unlawful employment practices described herein, including, but not limited to, front pay. D. Order Defendants to make whole James Witherspoon, by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in the paragraphs above in amounts to be determined at trial. F. Order Defendants to pay James Witherspoon punitive damages for the malicious and reckless conduct described in the paragraphs above in amounts to be determined at trial.
7

G. Award the Commission its costs of this action.
H. Grant such further relief as the Court deems necessary and proper in the public
interest.
JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by this Complaint.
Dated this thirtieth day of September, 2005.
JAMES L. LEE Deputy General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, DC 20507
JOSEPH H. MITCHELL Regional Attorney
NANCY A. WEEKS Supervisory Trial Attorney
S/ Lynn L. Palma LYNN L. PALMA Trial Attorney (303) 866-1374
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Denver District Office 303 East 17th Avenue, Suite 510 Denver, CO 80203
PLEASE NOTE:
It is sufficient for purposes of service on the Plaintiff Equal
8

Employment Opportunity Commission that pleadings, notices, and any other court document be served upon the Trial Attorney. Therefore, duplicate service is not required on the Deputy General Counsel located in Washington, D.C.
9

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 05-cv-01901-PSF-MJW

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

JAMES WITHERSPOON, v.

Plaintiff, Plaintiff-Intervenor,

LITHIA MOTORS, INC.,

d/b/a

LITHIA DODGE OF CHERRY CREEK, and

LITHIA CHERRY CREEK DODGE, INC.

d/b/a

LITHIA DODGE OF CHERRY CREEK,

Defendants.

Proposed CONSENT DECREE

TABLE OF CONTENTS
I. General Provisions ............................................................................................................. 1 II. Definitions .......................................................................................................................... 4 III. Affirmative Relief .............................................................................................................. 5
3.1 Notice and Posting of Decree Notice ........................................................................... 5 3.2 Injunction ..................................................................................................................... 6 3.3 EEO Coordinator ......................................................................................................... 7 3.4 Outside Consultant ....................................................................................................... 8 3.5 EEO Training ............................................................................................................. 10 3.6 Modification and Implementation of EEO Policies and Procedures ......................... 12 IV. Monetary Relief ............................................................................................................... 13 V. Record-Keeping and Reporting ....................................................................................... 14 VI. Enforcement of Consent Decree ...................................................................................... 17 VII. Notice ............................................................................................................................... 19

I GENERAL PROVISIONS 1.1 This matter was instituted by Plaintiff, EEOC, an agency of the United States
government, alleging that Defendant Lithia Motors, Inc., a corporation organized under the laws of Oregon and Defendant Lithia Cherry Creek Dodge, Inc. (hereafter, “Lithia” or “Defendants”), violated Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e, et. seq., at the facility known as LITHIA DODGE OF CHERRY CREEK, by (1) maintaining a hostile work environment based on race, and (2) retaliating against an employee who complained about alleged discrimination. 1.2 In calendar year 2003, four individuals filed charges with the Equal Employment Opportunity Commission in connection with alleged discriminatory treatment at Lithia Dodge of Cherry Creek: James Witherspoon, Charles Mayes, Herman Ortiz, and Roosevelt Williams. Defendants denied all allegations of the charges. 1.3 Plaintiff EEOC filed the above captioned complaint on September 30, 2005. Before agreeing to the terms of this Consent Decree, Defendants had not yet answered the complaint but would have denied all allegations of the complaint and asserted a number of affirmative defenses. 1.4 The Parties to this Consent Decree (“Parties”) are Plaintiff United States Equal Employment Opportunity Commission (“EEOC”) and Defendants. The Parties, desiring to settle this action by an appropriate Consent Decree (“Decree”), agree for purposes of this Consent Decree to the jurisdiction of this Court over the Parties and the subject matter of this action, and agree to the power of this Court to enter a Consent Decree

CONSENT DECREE
EEO C v. Lithia Motors, Inc. et. al. CA No. 05-CV-1901-PSF-MJW

page 1

enforceable against Defendants. 1.5 This Decree, being voluntarily entered into by the Parties, shall not constitute an
admission or an adjudication of the merits or the damages of this case and will not be construed as an admission by Defendants that it violated Title VII. 1.6 This Decree is final and binding upon the Parties as to the issues resolved, as well as upon their successors and assigns. 1.7 The EEOC and Defendants agree that this Consent Decree fairly resolves the issues arising out of the above-referenced charges, as to acts and practices up to the effective date of this Consent Decree alleged by EEOC in this lawsuit and constitutes a complete resolution of all the EEOC’s claims against Defendants under Title VII that were made or could have been made against Defendants in this action by the EEOC. 1.8 This Decree resolves all claims alleged in this lawsuit by the EEOC, including back pay, compensatory and punitive damages, interest, injunctive relief, attorneys’ fees and costs arising out of the issues in this lawsuit. 1.9 The Court shall retain jurisdiction of this action for the duration of the Decree for the purpose of entering all orders, judgments and decrees which may be necessary to implement the relief provided herein. 1.10 Scope - This Consent Decree covers all Lithia Dodge of Cherry Creek locations, including the location, known as Lithia Cherry Creek Dodge. 1.11 Term of Consent Decree - This Consent Decree shall remain in effect for four years subsequent to the effective date. In the event the terms and obligations outlined in this

CONSENT DECREE
EEO C v. Lithia Motors, Inc. et. al. CA No. 05-CV-1901-PSF-MJW

page 2

Consent Decree are not completed within the four years, the parties shall meet and confer concerning all matters that are alleged to constitute noncompliance. The Commission reserves the right to file an enforcement action under Section VI (“Enforcement of Consent Decree”) of this Decree to ask the Court to extend the Decree for whatever period is necessary to allow Defendants to comply fully with the terms of this Consent Decree. 1.12 Early Termination - Upon Defendants’ satisfactory performance of all obligations under this Consent Decree for a period of three years, and certification of such satisfactory performance by the outside consultant, referenced in paragraph 3.4 below, Defendants may request in the sixth semi-annual report that the EEOC agree to an early termination of the term of the Consent Decree. The EEOC agrees that it will agree to an early termination after three years if Defendant has satisfactorily performed all obligations under the Consent Decree and that such performance has been certified by the outside consultant. 1.13 Compliance with Federal EEO Laws - Nothing in this Consent Decree shall be construed to limit or reduce Defendants’ obligation to comply with the statutes enforced by the Commission.5and which could have been raised or the Charging Parties listed Paragraph IV Monetary Relief in litigation arising out of the above-referenced charges, as to acts and practices up to the effective date of this Consent Decree. 1.14 Complete Consent Decree - This Consent Decree constitutes the complete understanding among the Parties with respect to the matters herein.

CONSENT DECREE
EEO C v. Lithia Motors, Inc. et. al. CA No. 05-CV-1901-PSF-MJW

page 3

1.15 Severability - If one or more provisions of this Consent Decree are rendered unlawful or unenforceable by act of Congress or by decision of the United States Supreme Court, the parties shall attempt to agree upon what amendments to this Consent Decree, if any, are appropriate to effectuate the purposes of this Consent Decree. In any event, the unaffected provisions will remain enforceable.
1.16 Waiver of Commission Claims - Nothing in this Consent Decree shall be construed to preclude the Commission from bringing suit to enforce this Consent Decree in accordance with the enforcement provisions of Section VI (“Enforcement of Consent Decree”) below.
1.17 EEOC Authority - This Consent Decree shall in no way limit the powers of the EEOC in seeking to eliminate unlawful employment practices pursuant to the statutes it is charged with enforcement.
1.18 Amendment - By mutual written consent of the parties, this Consent Decree may be amended in the interest of justice and fairness. Defendants’ consent to amend this Consent Decree can be given only in writing signed by Defendants’ General Counsel.
1.19 Implementation - The Parties agree to take all steps that may be necessary to fully effectuate the terms of this Consent Decree.
1.20 Counterparts - This Agreement may be executed in any number of counterparts, each of which will be considered an original and all of which together will constitute one agreement.

CONSENT DECREE
EEO C v. Lithia Motors, Inc. et. al. CA No. 05-CV-1901-PSF-MJW

page 4

II DEFINITIONS 2.4 Complaint of Discrimination, Harassment, or Retaliation - A complaint of
discrimination, harassment, or retaliation, shall be any complaint which comes to the attention of a supervisor or manager and makes allegations of discrimination, harassment, or retaliation. For example, an employee who complains to a supervisor about being called names derogatory of his race, has made a complaint of an allegation of harassment, regardless of whether the employee complains in writing or expressly uses the terms “discrimination” or “harassment.” By contrast, a complaint by an employee that he was unfairly denied overtime may not necessarily constitute a complaint of an allegation of discrimination, unless the employee articulates that he believes he is being treated differently because of his race. 2.5 EEO - The term “EEO” shall refer to the phrase “equal employment opportunity.” 2.6 EEO Coordinator - Defendants’ employee who is responsible for ensuring compliance with this Consent Decree, as described in paragraph 3.3. 2.7 Outside Consultant - The individual who provides services to Defendants and makes recommendations to the EEOC in connection with Defendants’ obligations and responsibilities under this Consent Decree, as described in paragraph 3.4. 2.8 Effective Date -The Effective Date of this Decree is the date that the clerk of the court enters on the docket sheet that the Court gives approval to the Decree.

CONSENT DECREE
EEO C v. Lithia Motors, Inc. et. al. CA No. 05-CV-1901-PSF-MJW

page 5

III AFFIRMATIVE RELIEF 3.1 Notice and Posting of Decree Notice
3.1.1 Posting - Within forty-five (45) days of the Effective Date of this Decree, Defendants shall conspicuously post the Notice attached hereto as Attachment A, in locations where all other employee-related notices are posted. The Notice shall remain posted for the duration of the Consent Decree. 3.1.2 Further Publication of Notice - Whenever Defendants provide the training set forth in this Consent Decree, even if such training is provided on-line, a copy of the Notice shall be provided to the employee. 3.1.3 Orientation on Consent Decree - Prior to posting the Notice required in the preceding Paragraph 3.1.1, Defendants shall conduct orientation meetings advising all supervisors, managers and human resources employees working at the Defendants’ facilities or who have human resource responsibility of the Defendants’ employees about the terms and conditions of the Decree, with emphasis on the anti-retaliation provisions of the Decree. Defendants shall notify the EEOC of the dates, times and locations at least 10 days prior to each of the orientation meetings, and the EEOC shall have the right to attend and participate in any or all such meetings. In addition, Defendants shall inform its supervisors, managers and human resources employees that any breach of, or failure to comply with, the terms and conditions set forth in this Decree shall subject them to dismissal or other appropriate disciplinary action.

CONSENT DECREE
EEO C v. Lithia Motors, Inc. et. al. CA No. 05-CV-1901-PSF-MJW

page 6

3.2 Injunction 3.2.1 No Discrimination - Defendants shall not discriminate against any employee because of race, color, or national origin. Defendants shall afford all employees the same training and terms and conditions of employment it affords all other employees in similar positions without regard to race, color, or national origin. 3.2.2 No Retaliation - Defendants shall not retaliate against any employee, former employee, charging party, or witness for his or her participation in the EEOC process, the investigation by the EEOC into this matter, participation in this lawsuit, or for asserting any rights under this Decree. 3.3 EEO Coordinator 3.3.1 Barbara Perkins, of Lithia Support Services will serve as EEO Coordinator to oversee Defendants’ compliance with and implementation of this Consent Decree. If Defendants decide to change the EEO Coordinator during the term of this Consent Decree, it will provide written notice and a list of the new coordinator’s qualifications to the EEOC. 3.3.2 The responsibilities of Defendants’ EEO Coordinator will include, but need not be limited to: • coordinating Defendants’ compliance with anti-discrimination laws; • ensuring Defendants’ compliance with this Consent Decree; • maintaining records to be preserved under Section V (“Reporting and Recordkeeping”) of this Decree;

CONSENT DECREE
EEO C v. Lithia Motors, Inc. et. al. CA No. 05-CV-1901-PSF-MJW

page 7

• submitting the reports required under Section V (“Reporting and Recordkeeping”);
• assisting in development and implementation of Defendants’ EEO Training Program, as required under Paragraph 3.5 (“Development of EEO Training Program”) of this Decree;
• assisting in review and revision of Defendants’ policies and procedures, as required under Paragraph 3.6 (“Modification and Implementation of EEO Policies and Procedures”) of this Decree.
C coordinating with the outside consultant described in 3.4 below.

3.4 Outside Consultant 3.4.1 Within 30 days of the effective date of this Consent Decree, Defendants shall select, subject to comment by the EEOC, within 30 days, an outside consultant to assist with reviewing and developing goals and satisfying obligations related to this Consent Decree. The services of the outside consultant shall be paid by Defendants. If Defendants decide to change the outside consultant during the term of this Consent Decree, it will notify the EEOC within 30 days. The EEOC may comment within 30 days of notice. 3.4.2 Within 30 days following the selection of the outside consultant, the outside consultant will review and critique documents, and if necessary conduct witness interviews, relating to the underlying EEOC charges of discrimination, and other

CONSENT DECREE
EEO C v. Lithia Motors, Inc. et. al. CA No. 05-CV-1901-PSF-MJW

page 8

internal complaints, that gave rise to this lawsuit. The EEOC will provide

Defendants materials it believes should be of assistance to the review and critique

by the outside consultant. Based on this review, the outside consultant shall

provide guidance and recommendations to Defendants in order for Defendants to

develop effective policies and procedures to detect, prevent, and promptly correct

discrimination and harassment that is unlawful under any of the laws enforced by

the EEOC. A summary of recommendations by the outside consultant shall be

provided to the EEOC ten days following the review and critique that the outside

consultant provides to Defendant.

3.4.3 The responsibilities of Defendants’ outside consultant will include, but need not

be limited to:

C

consulting with the EEO Coordinator described in 3.3 above, for

compliance with anti-discrimination laws; compliance with minimum

standards under the EEOC Guidance: Vicarious Liability for Supervisory

Harassment (June 1999); and any other applicable guidance of guidelines

of the EEOC; effectiveness of policies and procedures to be reviewed by

Defendants under 3.6 of this Consent Decree; effectiveness of training

required under 3.5 of this Consent Decree;

•

certifying Defendants’ compliance with this Consent Decree in each semi-

annual report;

C

review and consultation on any investigations of discrimination,

CONSENT DECREE
EEO C v. Lithia Motors, Inc. et. al. CA No. 05-CV-1901-PSF-MJW

page 9

harassment, or retaliation, unlawful under any laws enforced by the

EEOC.

C

assisting in development and implementation of Defendants’ EEO

Training Program, as required under Paragraph 3.5 (“Development of

EEO Training Program”) of this Decree;

•

assisting in review and revision of Defendants’ policies and procedures, as

required under Paragraph 3.6 (“Modification and Implementation of EEO Policies

and Procedures”) of this Decree.

3.5 EEO Training 3.5.1 Development of EEO Training Program - Within one-hundred twenty (120) days of the Effective Date of this Decree, Defendants shall submit to the EEOC a proposed EEO training program for new employees, non-supervisory employees, supervisory employees, personnel coordinators, and human resource employees of Lithia Support

Services. Each training program will include the following information: (a) a detailed

agenda; (b) curriculum vitae(s) for the individual(s) who will conduct the training; and (c) a plan to ensure that all employees receive the required training.

3.5.2 Amount of Training Required 3.5.2.01 Non-Supervisory Employees - Within 120 days of the Effective Date of the Decree, defendants will provide non-supervisory employees at least two (2) hours of

EEO training to all such incumbent employees, and also will provide such training within ten (10) days of hire to new non-supervisory employees, and to all such employees on an

CONSENT DECREE
EEO C v. Lithia Motors, Inc. et. al. CA No. 05-CV-1901-PSF-MJW

page 10

annual bases thereafter during the term of the Decree. This training may be by videotape presentation and may be made by qualified human resource employees of Lithia Support Services. 3.5.2.02 Management/Supervisory Employees - Within 120 days of the Effective Date of the Decree, defendants will provide management/supervisory employees at least eight (8) hours of EEO training to all such incumbent employees, and also will provide such training within fourteen (14) days of hire or promotion to new management/supervisory employees, and to all such employees on an annual bases thereafter during the term of the Decree. This training must be conducted live, and may be presented by qualified human resource employees of Lithia Support Services. 3.5.2.03 Personnel Coordinators - Within 120 days of the Effective Date of the Decree, defendants will provide personnel coordinators at least sixteen (16) hours of EEO training to all such incumbent employees, and also will provide such training within thirty (30) days of hire or promotion into the position, and on an annual basis thereafter during the duration of the Consent Decree. This training must be conducted live, and may be presented by qualified human resource employees of Lithia Support Services. 3.5.2.04 Human Resource Employees - Within 120 days of the Effective Date of the Decree, defendants will provide human resource employees at Lithia Support Services at least sixteen (16) hours of EEO training to all such incumbent employees, and also will provide such training within ninety (90) days of hire or promotion into the position, and

CONSENT DECREE
EEO C v. Lithia Motors, Inc. et. al. CA No. 05-CV-1901-PSF-MJW

page 11

on an annual basis thereafter during the duration of the Consent Decree. This training

must be conducted live by qualified individuals not employed by Defendants.

3.5.2.05

Required Subjects of Training - At a minimum, the EEO training

programs shall include the following:

•

instruction on the requirements of all applicable equal employment opportunity

laws including, but not limited to, Title VII of the Civil Rights Act of 1964, as

amended, the Age Discrimination in Employment Act, the Americans with

Disabilities Act, the Equal Pay Act, and the Pregnancy Discrimination Act.

•

a review of Defendants’ non-discrimination employment policies with particular

emphasis on the complaint procedure and prohibitions on retaliation.

•

instruction on any policies prohibiting race, color, national origin discrimination,

hostile work environment, harassment, and retaliation.

•

training for supervisory, management, and human resource employees shall

include instruction on the proper procedures for responding to complaints of

discrimination or harassment.

3.6 Modification and Implementation of EEO Policies and Procedures 3.6.1 Review of Policies - During the first one-hundred twenty (120) days of this Decree, Defendants shall review Defendants’ existing policies and procedures, and, if necessary, develop and implement new and/or revised policies and provisions to ensure equal employment opportunities are afforded to employees without regard to national origin, race, color, sex, religion, age, disability, or

CONSENT DECREE
EEO C v. Lithia Motors, Inc. et. al. CA No. 05-CV-1901-PSF-MJW

page 12

retaliation. Such EEO policies include, without limitation: (A) policies and procedures to report and investigate complaints and/or incidents of discrimination, harassment, and retaliation; (B) policies and procedures to monitor the effectiveness of the antidiscrimination, anti-harassment and, anti-retaliation; (C) policies and procedures to ensure that all complaints are investigated whether or not the complaint is filed only externally with an outside agency or organization; (D) a management performance review procedure that includes compliance with this Consent Decree.
During the remainder of this Decree, Defendants may develop additional policy revisions to ensure equal employment opportunities.
3.6.2 EEOC Input - For any new or revised policy or procedure, the proposed policy or procedure shall be submitted to the EEOC. Within thirty (30) days of receiving the proposal, the EEOC may comment in writing upon the proposed policy.
3.6.3 EEOC Input Not a Waiver - Under no circumstances shall the EEOC, by commenting or electing not to comment upon Defendants’ proposed changes or amendments, be deemed to have waived its right to investigate or litigate any alleged adverse effects of said policy upon equal employment opportunities.

CONSENT DECREE
EEO C v. Lithia Motors, Inc. et. al. CA No. 05-CV-1901-PSF-MJW

page 13

IV MONETARY RELIEF 4.1 Total Monetary Relief. The total amount Defendants will pay under this consent decree
is five hundred sixty-two thousand five hundred dollars ($562,500.00), including payment to three charging parties, individually, and their attorneys: James Witherspoon - $320,000.00; 33 1/3% to attorneys fees; 60% of the remainder to compensatory damages and 40% of the remainder to wage loss. Roosevelt Williams, Jr. - $100,000.00; 33 1/3% to attorneys fees; 60% of the remainder to compensatory damages and 40% of the remainder to wage loss. Charles Mayes - $142,500.00; - 33 1/3% to attorneys fees; 60% of the remainder to compensatory damages and 40% of the remainder to wage loss.

4.2 Payment to Individual Charging Parties and their Attorneys. Charging Parties and their attorneys will receive five hundred sixty-two thousand five hundred dollars ($562,500.00), and copies of such checks will be mailed to the EEOC within ten days of the Effective Date of the Consent Decree. Defendant will issue appropriate IRS forms and will provide copies to the EEOC in the next Periodic Report, as described in ¶ 5.2.2.

V REPORTING AND RECORD KEEPING 5.1 Document Preservation
5.1.1 For the duration of the Decree, and for a two year period following the termination of the Decree, Defendants agrees to maintain the following records as are

CONSENT DECREE
EEO C v. Lithia Motors, Inc. et. al. CA No. 05-CV-1901-PSF-MJW

page 14

necessary to demonstrate its compliance with this Decree:

•

all personnel files including all performance appraisals, discipline and

termination records;

•

all complaints of discrimination or harassment based upon race, color or

national origin and all records of the investigation of those complaints;

and

•

all complaints of retaliation prohibited by statutes enforced by the EEOC

and all records of the investigation of those complaints.

5.2 Reports

5.2.1 Initial Report. Within one-hundred twenty (120) days of the Effective Date of

this Decree, Defendants shall provide the EEOC with an affidavit of compliance

including a narrative description describing the following.

•

Existing policies have been reviewed and revised as necessary to ensure

equal employment opportunities, as required in Paragraph 3.6.

(“Modification and Implementation of EEO Policies and Procedures”)

above.

•

All Defendants’ supervisors, managers, and human resource employees

with supervisory authority over people employed by Defendants at Lithia

Cherry Creek Dodge have attended training on the terms and provisions of

this Decree, as required in Paragraph 3.1. 3 (“Orientation on Consent

Decree”).

CONSENT DECREE
EEO C v. Lithia Motors, Inc. et. al. CA No. 05-CV-1901-PSF-MJW

page 15

•

Proposed EEO training programs are being developed, as required in

Paragraph 3.5 (“EEO Training”), above.

•

Training provided during the reporting period.

•

Verification that the notice remains posted.

5.2.2 Periodic Reports

5.2.2.01

During the term of this Decree, Defendants shall submit eight (8) semi-

annual reports to the EEOC, unless the provisions of ¶ 1.12 apply. With each report,

Defendants shall submit all data in written or electronic form.

5.2.2.02

The first reporting period will begin on the Effective Date of this Decree,

and will end on the last day of the fifth complete calendar month thereafter (e.g., June 16,

2006, through November 30, 2006). Each subsequent reporting period will be six

calendar months.

5.2.2.03

Each report shall contain the following information for the relevant

reporting period:

•

the number of employees employed at Lithia Cherry Creek

Dodge at the start and end of the reporting period,

categorized by race and national origin to the extent known

to Defendants;

C

verification of compliance by the outside consultant;

•

a summary of all complaints, formal or informal, of race,

color, or national origin discrimination, harassment or

CONSENT DECREE
EEO C v. Lithia Motors, Inc. et. al. CA No. 05-CV-1901-PSF-MJW

page 16

retaliation, and copies of the investigative files relating to

each complaint; and

•

verification of employee attendance for all EEO training

conducted during the reporting period.

5.2.3 Other Reports 5.2.3.01 No later than twenty (20) business days prior to holding the orientation meetings required under Paragraph 3.1.2 (“Orientation on Consent Decree”), Defendants shall provide the EEOC with the dates, times and locations of the orientation meetings; 5.2.3.02 No later than twenty (20) days prior to any scheduled training, as required under Paragraph 3.5 (“EEO Training”), above, Defendants shall inform the EEOC of the date, time, and location when the training is scheduled to be conducted. 5.2.4 Additional Data - The EEOC shall have the right to request additional data from Defendants or the outside consultant, so long as the information sought is necessary and consistent with the monitoring of the Decree. Defendants shall comply with a request for additional data within thirty (30) days of the request. 5.2.5 Access to Information - The EEOC shall have reasonable access to review all records maintained by Defendants relating to the implementation or administration of this Consent Decree. Defendants shall ensure that the outside consultant shall promptly provide responses to the EEOC’s reasonable requests for information relating to implementation or administration of this Consent Decree.

CONSENT DECREE
EEO C v. Lithia Motors, Inc. et. al. CA No. 05-CV-1901-PSF-MJW

page 17

VI ENFORCEMENT OF CONSENT DECREE 6.1 No Private Right of Action - There is no private right of action to enforce Defendants’
obligations under the Decree and only the EEOC, Defendants or their successors may enforce compliance with the Decree.

6.2 Burden of Proof on Enforcement - The party bringing an enforcement action shall have the burden to show noncompliance. Any party who responds to an enforcement action by arguing that implementation of the recommendation would cause undue hardship shall have the burden to show the same.
6.3 Requirement of Informal Resolution Efforts 6.3.1 Notice of Dispute - Prior to any party initiating an action to enforce the Decree, the party seeking enforcement will provide written notice to the other party(ies) of the nature of the dispute. This notice shall specify the particular provision(s) believed to have been breached and a statement of the issues in dispute. The notice may also include a reasonable request for documents or information relevant to the dispute. 6.3.2 Response to Notice of Dispute - Within fourteen (14) days after service of the Notice of Dispute, the non-initiating party will provide a written response and provide the requested documents or information. 6.3.3 Service - Service of the Notice of Dispute and any Responses shall be made as provided in Paragraph 7.1 (“Notice”) below. 6.3.4 Meeting - After service of the Response(s), the parties will schedule a telephone

CONSENT DECREE
EEO C v. Lithia Motors, Inc. et. al. CA No. 05-CV-1901-PSF-MJW

page 18

or in-person meeting to attempt to resolve the dispute.
6.3.5 Dispute Resolution Period - If the dispute has not been resolved within thirty
(30) days after service of the Notice of Dispute, an action to enforce the Decree may be
brought in this Court.
VII NOTICE
7.1 Any notice, report or communication required under the provisions of this Consent
Decree shall be sent by certified mail, postage prepaid, to the appropriate party as follows.
Equal Employment Opportunity Commission Joseph H. Mitchell Associate Regional Attorney Lynn L. Palma Senior Trial Attorney Denver Field Office Equal Employment Opportunity Commission 303 E. 17th Avenue, Suite 510 Denver , CO 80203
Lithia Motors, Inc. EEO Coordinator Barbara Perkins Senior Counsel Joe Davis Lithia Support Services 360 E. Jackson Medford, Oregon 97501

CONSENT DECREE
EEO C v. Lithia Motors, Inc. et. al. CA No. 05-CV-1901-PSF-MJW

page 19

While the parties have filed a joint stipulated motion for dismissal of this action concurrently with the submission of this Consent Decree, the court shall retain jurisdiction to enforce any dispute that arises during the term of the Consent Decree.
SO ORDERED, ADJUDGED AND DECREED this ____day of _______________, 2006.
___________________________________ Honorable Phillip S. Figa United States District Judge

CONSENT DECREE
EEO C v. Lithia Motors, Inc. et. al. CA No. 05-CV-1901-PSF-MJW

page 20

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 05-cv-01901-PSF-MJW
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
LITHIA MOTORS, INC., d/b/a LITHIA DODGE OF CHERRY CREEK, and LITHIA CHERRY CREEK DODGE, INC. d/b/a LITHIA DODGE OF CHERRY CREEK,
Defendants.
JAMES WITHERSPOON, Applicant for Intervention.
COMPLAINT UNDER TITLE VII AND JURY TRIAL DEMAND
Plaintiff/Intervenor James Witherspoon, by his undersigned attorneys, complains against
Defendant Lithia Motors, as follows:
NATURE OF THE ACTION
1. This action is brought under (a) Section 1 of the Civil Rights Act of 1866,
42 U.S.C. § 1981 (“Section 1981"), as amended by Title I of the Civil Rights Act of 1991, 42
U.S.C. §1981A (“1991 Act”); and (b) Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e et seq. (“Title VII”), as amended, inter alia, by the 1991 Act, (collectively the “Federal
Statutes”).
2. Plaintiff has been adversely affected by unlawful employment practices taken
against him by Defendant on the basis of his race, African-American, and in retaliation for his
opposition to employment practices made unlawful by the Federal Statutes. As alleged with

greater particularity below, Mr. Witherspoon alleges that Defendants created and tolerated a hostile work environment based on race for James Witherspoon and for other employees at its Cherry Creek Dodge location. In addition, Defendants unlawfully retaliated against James Witherspoon because Mr. Witherspoon complained about improper race-based conducted carried out at Cherry Creek Dodge. After Mr. Witherspoon followed Defendant’s internal complaint process to raise concerns of racial discrimination, his General Manager increased the harassment, making the work conditions intolerable and forcing Mr. Witherspoon from his employment. As redress for the damages he has suffered, and in the future will suffer, Plaintiff seeks legal and equitable remedies sufficient to make him whole, as more fully set forth below.
JURISDICTION AND VENUE 3. This Court's federal question jurisdiction over Plaintiff’s federal statutory claims is invoked pursuant to 28 U.S.C. §§ 1331 and 1343(a)(4). This action is authorized and instituted pursuant to Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. Section 1981, and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) and (3). 4. Venue is proper in this Court pursuant to 42 U.S.C. § 2000e-5(f) (3) and 28 U.S.C. § 1391(b). The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the District of Colorado. Defendant maintains offices and conducts business within the State and District of Colorado.
2

PARTIES 5. Plaintiff is an African American citizen of the United States and a resident of the State of Colorado, and thus is entitled to the rights and privileges protected by Section 1981 and the 1991 Act. 6. Defendant Lithia Motors, Inc. is a corporation, organized under the laws of Oregon. 7. Defendant Lithia Motors, Inc. operates the following stores in Colorado: Lithia Dodge of Cherry Creek; Lithia Colorado Chrysler Jeep; Lithia Colorado Springs Jeep Chrysler; Lithia Centennial Chrysler Jeep; Lithia Chrysler Jeep Dodge of Forth Collins; Lithia Hyundai of Forth Collins; Lithia Volkswagen of Thornton. 8. Defendant Lithia Cherry Creek Dodge, Inc. is a corporation organized under the laws of Colorado. 9. Both Defendants have continuously been doing business in the State of Colorado during all times relevant to this lawsuit, under the name Lithia Dodge of Cherry Creek at 2727 S. Havana Street, Aurora. 10. At all relevant times, each Defendant had at least 15 employees and 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). 11. At all relevant times, Defendants were the employers of the employees who worked at Lithia Dodge of Cherry Creek. 12. Upon information and belief, Defendants are a joint employer of the employees who work at Lithia Dodge of Cherry Creek, or are an integrated enterprise.
3

13. Upon information and belief, Defendants operate as the alter ego, agent, and/or instrumentality of one another.
ADMINISTRATIVE PROCEEDINGS 14. More than thirty days prior to the institution of this lawsuit, James Witherspoon filed a charge of discrimination with the Equal Employment Opportunity Commission alleging violations of Title VII by Defendants. All conditions precedent to the institution of this lawsuit have been fulfilled.
CLAIMS 15. As to each of the following claims for relief, paragraphs 1 through 15 above are incorporated by reference and re-alleged as if fully set forth in each separate claim.
FIRST CLAIM FOR RELIEF AND SUPPORTING FACTUAL ALLEGATIONS [Discrimination Because of Race in Violation of Title VII
of the Civil Rights Act of 1964] Background
16. Since at least 2003, Defendant Lithia Motors Inc. engaged in unlawful employment practices in violation of Section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a).
17. On or about January 2003, Tim Jones transferred from Lithia Centennial Chrysler to Lithia Cherry Creek Dodge, where he became the General Manager.
18. On or about January 6, 2003, General Manager Jones terminated three minority salesmen Charles Mayes, Roosevelt Williams, and Herman Ortiz for allegedly being late to a sales meeting.
4

Discrimination 19. On January 6, 2003, car salesman James Witherspoon was off work on an authorized leave of absence. 20. On or about January 13, 2003, James Witherspoon returned to work at Cherry Creek Dodge. 21. On or about January 13, 2003, General Manager Jones told Mr. Witherspoon that Witherspoon was “not going to get away with taking “B.P. Time.” When Witherspoon asked what that meant, Jones explained “Black People Time.” Jones also told Witherspoon that “B.P.Time” was the reason I fired “a bunch of you people already.” 22. During Witherspoon’s remaining tenure at Cherry Creek Dodge, General Manager Jones afforded Witherspoon less favorable treatment than he afforded Caucasian salesmen. 23. General Manager Jones screamed and yelled obscenities to Witherspoon in the presence of co-workers and displayed more hostility toward Mr. Witherspoon than he displayed to Caucasian salesmen. 24. In contrast to his treatment of Caucasian salesmen, Jones caused Witherspoon’s commissions to be unfairly split with other sales men. 25. Jones deducted an unreasonable amount of pay after wrongly accusing Witherspoon of causing damage to a car. By contrast, a white employee had no pay deducted for significant damage he had caused in a accident. 26. Jones directed that Witherspoon undergo a drug test, when there were no reasonable grounds for doing so. By contrast, Caucasian employees who were known to be intoxicated at work were not required to submit to drug testing and were not disciplined or
5

discharged. 27. Jones directed Witherspoon to raise the sales price by $5,000 on a car in which an
African-American customer was interested, so that the customer was unable to purchase the car. Damages
28. As a result of the actions of defendant, Mr. Witherspoon has suffered and will continue to suffer economic damages, including but not limited to loss of wages and benefits, costs of litigation, and physical and emotional pain and suffering.
Violation of Title VII 29. The effect of the practices complained of in the paragraphs above has been to deprive James Witherspoon, of equal employment opportunities and otherwise adversely affect his status respectively as an employee, because of race, Black, or African American in violation of Sections 703(a), 42 U.S.C. § 2000e-2(a). 30. The unlawful employment practices complained of above were intentional and done with malice or with reckless indifference to the federally protected rights of James Witherspoon.
SECOND CLAIM FOR RELIEF AND SUPPORTING FACTUAL ALLEGATIONS
[Retaliation in Violation of Title VII of the Civil Rights Act of 1964] Background
31. Mr. Witherspoon filed an internal complaint about discrimination and harassment with Lithia Motors, Inc. corporate office on April 29, 2003.
6

Retaliation 32. After Mr. Witherspoon filed his complaint, he was not advised of any investigation, or of the outcome of any investigation. 33. After Mr. Witherspoon filed his complaint, General Manager Jones’ harassment of him intensified. 34. In addition, Jones yelled at and berated the personnel coordinator at Cherry Creek Dodge, for assisting Mr. Witherspoon in filing an internal charge. 35. With the continued harassment from Jones and no contact from headquarters about his internal complaint, any reasonable person would have felt the conditions had become impossible by the time Mr. Witherspoon resigned on May 16, 2003.
Damages 36. As a result of the actions of defendant, Mr. Witherspoon has suffered and will continue to suffer economic damages, including but not limited to loss of wages and benefits, costs of litigation, and physical and emotional pain and suffering.
Violation of Title VII 37. The effect of the practices complained of in the paragraphs above has been to deprive James Witherspoon, of equal employment opportunities and otherwise adversely affect his status respectively as an employee, because he reasonably believed he opposed practices made unlawful under Title VII in violation of Section 704 of Title VII, 42 U.S.C. § 2000e-3(a). 38. The unlawful reprisal and retaliation employment practices complained of above were intentional and done with malice or with reckless indifference to the federally protected rights of James Witherspoon.
7

PRAYER FOR RELIEF A. In view of all of the preceding, Mr. Witherspoon respectfully requests that this Court award, adjudge and decree that:
(1) The conduct alleged is violative of the laws of the United States and of Plaintiff’s rights thereunder;
(2) In accordance with federal law, (a) Defendant pay to Plaintiff an amount – the exact total of which is presently undetermined – comprised of (I) Appropriate backpay with prejudgment interest; (II) The actual past and future pecuniary damages he has and/or will sustain; (III) Front pay; (IV) The actual nonpecuniary damages he has and/or will sustain as a result of such violations; (V) Exemplary or punitive damages; and (VI) Pre-judgment and post-judgment interest. (b) Plaintiff be reinstated to his previous position; (c) Plaintiff be awarded her costs of suit, including reasonable attorneys’ fees and costs; (d) Interest on the above; and
B. Plaintiff have such other, further and different relief as this Court deems just and proper.
8

DEMAND FOR JURY TRIAL In accordance with Fed. R. Civ. P. 38(b), plaintiff/intervenor James Witherspoon hereby demands a trial by jury. DATED this 5th day of December, 2005.

Plaintiff/Intervenor’s Address:
James Witherspoon 2743 Kline Cir. #3 Las Vegas, Nevada 89121

Respectfully submitted,
_____________________________ George Price, Esq. Law Offices of George C. Price 900 Logan Street Denver, CO 80203 Telephone: (303) 861-5500 Facsimile: (303) 863-0180
s/ Patricia S. Bangert
___________________________________ Patricia S. Bangert, Esq. Attorney-At-Law, L.L.C. 3773 Cherry Creek Drive North, Suite 575 Denver, CO 80209 Telephone:(303) 225-2175

9

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 05-cv-01901-PSF-MJW
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
LITHIA MOTORS, INC., d/b/a LITHIA DODGE OF CHERRY CREEK, and LITHIA CHERRY CREEK DODGE, INC. d/b/a LITHIA DODGE OF CHERRY CREEK,
Defendants.
JAMES WITHERSPOON,
Applicant for Intervention. ______________________________________________________________________________
MOTION TO INTERVENE AS PARTY PLAINTIFF ______________________________________________________________________________
James Witherspoon, Applicant, moves for leave to intervene as Plaintiff to assert the
claims set forth in his proposed Complaint, a copy of which is attached. Applicant states as
follows:
1. Applicant is entitled to intervene as a matter of right pursuant to Fed.R.Civ.P.
24(a)(1) and 42 U.S.C. §2000e-5(f)(1), and this application has been timely brought.
2. This action arises out of charges of discrimination filed by James Witherspoon,
who was subject to unlawful employment practices on the basis of race, African-American or
Black, while employed by Defendant.
3. Applicant filed charges with the EEOC alleging that Defendant had violated Title 1

VII of the Civil Rights Act of 1964, as amended, by subjecting James Witherspoon and other employees at its Cherry Creek Dodge location to a hostile work environment based on race, and, further, retaliated against him after he complained about improper race-based conducted carried out at Cherry Creek Dodge by increasing the harassment, making the work conditions intolerable and forcing Mr. Witherspoon from his employment. The EEOC found cause on these charges and filed a Complaint in this Court.
4. The EEOC has filed claims against Defendant for unlawful race-based discrimination and retaliation. However, Mr. Witherspoon has additional claims for relief based on hostile work environment and violations under 42 U.S.C. § 1981.
5. Mr. Witherspoon has a right to bring individual claims of race-based discrimination and retaliation. His claims arise from numerous incidents in which Mr. Witherspoon was subjected to race-based discrimination. For example, there was an incident in which the General Manager told Mr. Witherspoon that Witherspoon was “not going to get away with taking “B.P. Time” after being out on authorized leave, explaining that “B.P. Time” meant “Black People Time.” The General Manager also told Mr. Witherspoon that “B.P.Time” was the reason I fired “a bunch of you people already.” Further, during Mr. Witherspoon's tenure at Cherry Creek Dodge, the General Manager afforded him less favorable treatment than he afforded Caucasian salesmen, for example, he screamed and yelled obscenities at Mr. Witherspoon in the presence of co-workers and displayed more hostility toward Mr. Witherspoon than he displayed to Caucasian salesmen; he caused Mr. Witherspoon’s commissions to be unfairly split with other sales men; he deducted an unreasonable amount of money from Witherspoon’s pay after wrongly accusing him of causing damage to a car; he forced Mr.
2

Witherspoon to undergo a drug test, when there were no reasonable grounds for doing so; and he directed Mr. Witherspoon to raise the sales price by $5,000 on a car in which an AfricanAmerican customer was interested, so that the customer was unable to purchase the car.
6. In addition, after Mr. Witherspoon filed an internal complaint about discrimination and harassment with Lithia Motors, Inc. corporate office, he was not advised of any investigation, or of the outcome of any investigation. Moreover, after Mr. Witherspoon file his complaint, the General Manager yelled at and berated the personnel coordinator at Cherry Creek Dodge, for assisting Mr. Witherspoon in filing an internal charge. In addition, the General Manager’s harassment of Mr. Witherspoon intensified to the point that he was forced to leave the dealership.
7. Mr. Witherspoon also seeks intervention through exercise of this Court’s discretion pursuant to Fed.R.Civ.P. 24(b). Mr. Witherspoon seeks to redress violation of his rights pursuant to 42 U.S.C. §§ 2000e-2 and 2000e-3 and 42 U.S.C. § 1981, as amended, 1991.
8. An employee who is the subject of employer discrimination and of retaliation because of his efforts to vindicate the rights of racial minorities may bring an action under 42 U.S.C. § 1981. Skinner v. Total Petroleum, Inc., 859 F.2d 1439, 1447 (10th Cir. 1988).1 Claims for retaliation are within the scope of a § 1981 claim. See, Ramirez v. Department of Corrections, 222 F.3d 1238, 1244 (10th Cir. 2000)(citing Skinner with approval); Andrews v. Lakeshore Rehabilitation Hospital, 140 F.3d 1405, 1411-13 (11th Cir. 1998).

1

Skinner was decided prior to Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct.

2363 (1989) and before the amendments to 42 U.S.C. § 1981 expanding the definition of the

terms “make and enforce contracts” under the 1991 amendments to the Civil Rights Act.

3

9. Mr. Witherspoon’s claims are supported by law and have common questions of fact and law to the pending Complaint by the EEOC. Ramirez v. Department of Corrections, 222 F.3d 1238, 1244 (10th Cir. 2000); O’Shea v. Yellow Technology Services, Inc., 185 F.3d 1093, 1098 (10th Cir. 1999); Bolden v. PRC, Inc., 43 F.3d 545, 551 (10th Cir. 1994).
10. This legal proceeding is just beginning, with a complaint having only recently been filed. Defendant has not yet filed its Answer. Therefore, permitting the Applicant to intervene will not delay or prejudice the adjudication of rights of the original parties.
D.Colo.L.R. 7.1 Certification 11. Pursuant to D.Colo.L.R. 7.1, counsel for the Applicant for Intervention has consulted with counsel for the Plaintiff and Defendant. Plaintiff does not oppose this Motion for Intervention. Defendant opposes the Applicant’s Motion. WHEREFORE, Applicant respectfully requests this Court to grant this motion and that they he be allowed to file the Complaint attached hereto as Exhibit 1. DATED this 5th day of December, 2005.
Respectfully submitted,
_____________________________ George Price, Esq. Law Offices of George C. Price 900 Logan Street Denver, CO 80203 Telephone: (303) 861-5500 Facsimile: (303) 863-0180
4

s/ Patricia S. Bangert ___________________________________ Patricia S. Bangert, Esq. Attorney-At-Law, L.L.C. 3773 Cherry Creek Drive North, Suite 575 Denver, CO 80209 Telephone:(303) 225-2175 ATTORNEYS FOR INTERVENOR
CERTIFICATE OF SERVICE I hereby certify that on December 5, 2005, I electronically filed the foregoing to the Clerk using the CM/ECF system, which will send notification of such filing to the following: Lynn Palma, EEOC Joseph Davis, Lithia
s/ Patricia S. Bangert _____________________________ Patricia S. Bangert
5

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Phillip S. Figa
Civil Action No. 05-cv-01901-PSF-MJW EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v. LITHIA MOTORS, INC., d/b/a Lithia Dodge of Cherry Creek; and LITHIA CHERRY CREEK DODGE, INC., d/b/a Lithia Dodge of Cherry Creek,
Defendants.
ORDER APPROVING CONSENT DECREE AND DISMISSING ACTION WITH PREJUDICE
This matter comes before the Court pursuant to the parties’ Joint Motion for Approval of Proposed Consent Decree and for Dismissal of this Action with Prejudice (Dkt. # 25) filed March 3, 2006. The Motion is GRANTED.
The proposed Consent Decree (filed as Dkt. # 25-2) is hereby approved and made an Order of this Court. This case is DISMISSED with PREJUDICE pursuant to the parties’ request, although this Court retains jurisdiction to enforce this Consent Decree.
DATED: March 8, 2006 BY THE COURT:
s/ Phillip S. Figa _________________________ Phillip S. Figa United States District Judge

 
 NDISPO, TERMED
U.S. District Court District of Colorado (Denver) CIVIL DOCKET FOR CASE #: 1:05−cv−01901−PSF−MJW

Equal Employment Opportunity Commission v. Lithia Motors, Inc. et al Assigned to: Judge Phillip S. Figa Referred to: Magistrate Judge Michael J. Watanabe Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 09/30/2005 Date Terminated: 03/08/2006 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Equal Employment Opportunity Commission

represented by Lynn L. Palma U.S. Equal Employment Opportunity Commission−Colorado Denver Field Office 303 East 17th Avenue #400 Denver , CO 80203 303−866−1374 Fax: 303−866−1375 Email: lynn.palma@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff James Witherspoon

represented by Patricia S. Bangert Patricia S. Bangert, Attorney at Law, LLC 3773 Cherry Creek Drive North #575 Denver , CO 80209 303−228−2175 Fax: 303−399−6480 Email: trishbang@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Lithia Motors, Inc. doing business as Lithia Dodge of Cherry Creek

represented by Matthew James Costinett Harris, Karstaedt, Jamison &Powers, PC−Englewood 188 Inverness Drive West #300 Englewood , CO 80112 720−875−9140 Fax: 720−875−9141 Email: mcostinett@hkjp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Brice Sullivan Harris, Karstaedt, Jamison &Powers, PC−Englewood 188 Inverness Drive West #300 Englewood , CO 80112 720−875−9708

Defendant
Lithia Cherry Creek Dodge, Inc. doing business as Lithia Dodge of Cherry Creek

Fax: 720−875−9141 Email: msullivan@hkjp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Matthew James Costinett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Brice Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/30/2005 10/04/2005 10/05/2005 10/07/2005 10/11/2005 10/20/2005 11/08/2005
11/14/2005 11/15/2005
11/16/2005
11/28/2005

# Docket Text
1 COMPLAINT and jury trial demand against all defendants Summons Issued, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet # 2 Special Assignment Form)(bpm, ) (Entered: 09/30/2005)
2 MEMORANDUM RETURNING CASE for reassigment by Judge Matsch. (bpm, ) (Entered: 10/05/2005)
3 LETTER REASSIGNING CASE. Case reassigned to Judge Phillip S. Figa for all further proceedings. Judge Richard P. Matsch is no longer assigned to case. (bpm, ) (Entered: 10/05/2005)
4 Letter from CT Corporation to Lynn L. Palma returning the Notice, and 1 Complaint they received. Lithia Motors d/b/a Lithia Dodge of Cherry Creek is not listed on their records or on the records of the State of CO. (lam, ) (Entered: 10/07/2005)
5 ORDER REFERRING CASE to Magistrate Judge Michael J. Watanabe by Judge Figa. (emksl, ) (Entered: 10/11/2005)
6 ORDER: Scheduling Conference set for 11/15/2005 10:00 AM in Courtroom A 502 before Magistrate Judge Michael J. Watanabe. Signed by Magistrate Judge Michael J. Watanabe on 10/20/05. (emksl, ) (Entered: 10/20/2005)
7 WAIVER OF SERVICE Returned Executed by Equal Employment Opportunity Commission. Lithia Motors Support Services, Inc. waiver sent on 10/4/2005, answer due 12/5/2005. (Palma, Lynn) (Modified on 11/14/2005 to correct the name of the entity that signed the waiver) (gms, ). (Entered: 11/08/2005)
8 Docket Annotation re: 7 Waiver of Service Executed. This docket entry was modified to correct the name of the entity that signed the waiver to "Lithia Motors Support Services, Inc." Text only entry − no document attached. (gms, ) (Entered: 11/14/2005)
9 ORDER: Scheduling Conference reset for 12/5/2005 09:00 AM in Courtroom A 502 before Magistrate Judge Michael J. Watanabe. Show Cause Hearing set for 12/5/2005 09:00 AM in Courtroom A 502 before Magistrate Judge Michael J. Watanabe. Signed by Magistrate Judge Michael J. Watanabe on 11/15/05. (emksl, ) (Entered: 11/15/2005)
10 Minute Entry for proceedings held before Judge Michael J. Watanabe : Scheduling Conference held on 11/16/2005: Plaintiff shall show cause why this case should not be dismissed for failure to appear and lack of prosecution at a show cause hearing, scheduled for December 5, 2005 at 9:00 a.m. Rule 16 Scheduling Conference is reset to December 5, 2005 at 9:00 a.m. (Court Reporter FTR− Kathy Preuitt−Parks.) (emksl, ) (Entered: 11/16/2005)
11 Joint MOTION to Vacate 10 Scheduling Conference, and Show Cause Hearing of December 5, 2005, by Plaintiff Equal Employment Opportunity Commission. (Palma, Lynn) (Entered: 11/28/2005)

11/29/2005 11/30/2005
12/05/2005 12/06/2005 12/20/2005 12/20/2005 12/20/2005 12/28/2005 02/07/2006 02/21/2006 02/21/2006
02/22/2006 03/03/2006 03/03/2006 03/08/2006

12 MEMORANDUM referring to Magistrate Judge Watanabe : 11 Joint MOTION to Vacate 10 Scheduling Conference, and Show Cause Hearing of December 5, 2005, filed by Equal Employment Opportunity Commission, by Judge Phillip S. Figa on 11/29/05. (Text Only Entry − No Document Attached) (emksl, ) (Entered: 11/29/2005)
13 Minute ORDER granting Plaintiff's 11 Motion to Vacate and Reschedule. The show cause hearing set on December 5, 2005, at 9:00 a.m. is VACATED. The show cause order dated November 15, 2005, is also VACATED. Scheduling Conference is reset to January 11, 2006, at 9:00 a.m., in Courtroom A502, by Magistrate Judge Michael J. Watanabe on 11/30/05. (emksl, ) (Entered: 11/30/2005)
14 MOTION to Intervene by Interested Party James Witherspoon. (Attachments: # 1 Exhibit 1 (Complaint))(Bangert, Patricia) (Entered: 12/05/2005)
15 MEMORANDUM referring to Magistrate Judge Watanabe : 14 MOTION to Intervene filed by James Witherspoon, by Judge Phillip S. Figa on 12/6/05. (Text Only Entry − No Document Attached) (emksl, ) (Entered: 12/06/2005)
16 MINUTE ORDER granting 14 Witherspoons' Motion to Intervene as Party Plaintiff, by Magistrate Judge Michael J. Watanabe on 12/20/05. (emksl, ) (Entered: 12/20/2005)
17 Unopposed MOTION to Vacate and Reschedule January 11, 2006 Scheduling Conference and Status Report by Plaintiff Equal Employment Opportunity Commission. (Palma, Lynn) (Entered: 12/20/2005)
18 MEMORANDUM referring to Magistrate Judge Watanabe : 17 Unopposed MOTION to Vacate and Reschedule January 11, 2006 Scheduling Conference and Status Report filed by Equal Employment Opportunity Commission, by Judge Phillip S. Figa on 12/20/05. (Text Only Entry − No Document Attached) (emksl, ) (Entered: 12/20/2005)
19 Minute ORDER granting Plaintiff's Status Report and 17 Motion to Vacate and Reschedule 1/11/06 hearing. Scheduling conference is reset to 2/16/06 at 9:30 a.m., by Magistrate Judge Michael J. Watanabe on 12/28/05. (gms, ) (Entered: 12/28/2005)
20 MINUTE ORDER: Parties having settled this matter, Dismissal Paper due by 2/21/2006, Scheduling Conference set for 02/16/06 at 9:30am is VACATED, by Magistrate Judge Michael J. Watanabe on 02/07/06. (rlp, ) (Entered: 02/08/2006)
21 Unopposed MOTION For Extension of Time to File Motion for Dismissal and Proposed Consent Decree by Plaintiff Equal Employment Opportunity Commission. (Palma, Lynn) (Entered: 02/21/2006)
22 MEMORANDUM referring to Magistrate Judge Watanabe : 21 Unopposed MOTION For Extension of Time to File Motion for Dismissal and Proposed Consent Decree filed by Plaintiff Equal Employment Opportunity Commission, by Judge Phillip S. Figa on 2/21/06. (Text Only Entry − No Document Attached)(lam, ) (Entered: 02/22/2006)
23 MINUTE ORDER granting Plaintiff's 21 Motion for Extension of Time to File Motion to Dismiss and Consent Decree, parties have up to and including 03/03/06 to file, by Magistrate Judge Michael J. Watanabe on 02/22/06. (rlp, ) (Entered: 02/22/2006)
24 NOTICE of Entry of Appearance by Michael Brice Sullivan on behalf of all defendants (Sullivan, Michael) (Entered: 03/03/2006)
25 Joint MOTION to Dismiss upon Approval of Proposed Consent Decree by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Proposed Order (PDF Only) Consent Decree)(Palma, Lynn) (Entered: 03/03/2006)
26 ORDER granting Joint 25 Motion for Approval of Consent Decree and to Dismiss with Prejudice, the court retains jurisdiction to enforce this Consent Decree . Signed by Judge Phillip S. Figa on 03/08/06. (rlp2, ) (Entered: 03/08/2006)