2:16-cv-12146-PDB-MKM Doc # 1 Filed 06/13/16 Pg 1 of 19 Pg ID 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

____________________________________

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

STATE OF MICHIGAN AND

)

MICHIGAN DEPARTMENT

)

OF CORRECTIONS,

)

)

Defendants.

)

)

____________________________________)

CIVIL NO. 2:16-cv-12146 JURY TRIAL DEMANDED

COMPLAINT

Plaintiff United States of America (“United States”) alleges:

NATURE OF THE ACTION

1. This action is brought on behalf of the United States to enforce the

provisions of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.

§§ 2000e, et seq. (“Title VII”).

JURISDICTION AND VENUE

2. This Court has jurisdiction over this action under 42 U.S.C. § 2000e-

5(f), § 2000e-6, and 28 U.S.C. §§ 1331, 1343(a) and 1345.

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3. Venue is proper in this judicial district under 42 U.S.C. § 2000e5(f)(3), § 2000e-6(b), and 28 U.S.C. § 1391(b) because it is where a substantial part of the events or omissions giving rise to the cause of action occurred.
PARTIES 4. Defendants Michigan Department of Corrections (“MDOC”) and the State of Michigan are public employers. 5. Defendant MDOC is a governmental agency created pursuant to the laws of the State of Michigan, and Defendant State of Michigan is a state government within the meaning of 42 U.S.C. § 2000e(a). 6. Defendants are “persons” within the meaning of 42 U.S.C. § 2000e(a) and are “employers” within the meaning of 42 U.S.C. § 2000e(b). 7. Defendant MDOC administers and operates Defendant State of Michigan’s correctional system and prison facilities, which encompass over 30 correctional facilities, house over 43,000 inmates, and employ over 7,300 Correctional Officers (“COs”). Of those COs, approximately 6,077 (83%) of MDOC COs system-wide are male and 1,292 (17%) are female. 8. Defendants employ COs who are responsible for, among other things, maintaining custodial care and control of inmates housed in correctional facilities in the State of Michigan.
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9. MDOC currently administers and operates one correctional facility for

adult female inmates, Women’s Huron Valley Correctional Facility (“WHV”).

WHV is located in the City of Ypsilanti, Washtenaw County, Michigan and

within the jurisdiction of this Court. WHV houses over 2,200 female inmates

and employs over 330 COs. Of those COs, approximately 85% are female.

10. The Equal Employment Opportunity Commission (“EEOC”) received

timely charges of discrimination from 28 women employed as COs at WHV

alleging MDOC discriminated against them based on sex because MDOC: (1)

maintained an overly broad female-only assignment policy without sufficient

justification for a bona fide occupational qualification (“BFOQ”) exception for

such assignments; and (2) denied transfers to female COs in order to staff its

female-only assignments. Since the time of their charges, some of the Charging

Parties have stopped working at WHV or have left employment with

Defendants altogether. The 28 Charging Parties are set forth below:

NAME Margaret Sharpe

EEOC CHARGE NO.
471-2010-03165

DATE CHARGE FILED
August 5, 2010

Rita Wise

471-2010-03331

September 10, 2010

Lorrie Stanton

471-2011-01130

February 11, 2011

Megan Littrup-Dean

471-2011-01129

February 24, 2011

Kathleen Mathis

471-2011-01133

March 9, 2011

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Jeannine Street-Ostrewich Amy Morton Roxanne Weatherly Dana Starks Kenesha Thomas Latonya Dalton Crystal Socier Brandi Odom Vernithia Parker Michelle Mattox Joyce Paige Terri Williams Patricia Rhodes-Reeves Aleika Buckner Jennifer Nielsen Tia Shidler Kellee Hill Sharon Ernest Sierra Long

471-2011-01134 471-2011-01367 471-2011-01311 471-2011-01321 471-2011-01317 471-2011-01312 471-2011-01322 471-2011-01379 471-2011-01382 471-2011-01380 471-2011-01219 471-2011-01364 471-2011-01328 471-2011-01793 471-2011-01839 471-2011-01366 471-2011-01787 471-2011-01785 471-2011-02089

March 10, 2011 March 15, 2011 March 18, 2011 March 18, 2011 March 18, 2011 March 19, 2011 March 23, 2011 March 28, 2011 March 29, 2011 April 4, 2011 April 11, 2011 April 19, 2011 April 21, 2011 April 21, 2011 April 25, 2011 April 25, 2011 April 27, 2011 May 2, 2011 May 6, 2011

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Monique Joyce
Shiryl Gentry (now deceased) Jennifer Edwards
Orlinda Mallett-Godwin

471-2011-02084 471-2011-01790 471-2011-02093 471-2011-01832

May 16, 2011 May 17, 2011 May 17, 2011 May 20, 2011

11. Pursuant to Section 706 of Title VII, 42 U.S.C. § 2000e-5, the EEOC investigated the charges, found reasonable cause to believe that Title VII violations had occurred with respect to these 28 female COs and similarly situated individuals, and unsuccessfully attempted to conciliate the charges. The EEOC then referred these charges to the United States Department of Justice.
12. On February 11, 2016, the United States notified Defendants of its intent to file a complaint against them for violating Title VII with respect to the allegations raised in the referred EEOC charges, including allegations of a pattern or practice of discrimination.
13. All conditions precedent to the filing of this Complaint have been performed or have occurred.

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FACTUAL ALLEGATIONS COMMON TO ALL CLAIMS Prior Litigation Regarding MDOC’s Treatment of Female Inmates 14. Before 2008, MDOC primarily housed its adult female inmates in three female-only correctional facilities. 15. During the 1990s, female inmates filed lawsuits in both state and federal court against MDOC alleging numerous constitutional and federal statutory violations emanating from acts of sexual abuse that included sexual misconduct, sexual harassment, and violations of privacy. The female inmates’ claims for monetary and injunctive relief were resolved by settlement agreements reached in each case. 16. The United States brought a lawsuit against Defendants in 1997, under the Civil Rights of Institutionalized Persons Act, 42 U.S.C. §§ 1997, et seq., alleging that Defendants were violating the constitutional rights of female inmates by failing to protect them from sexual misconduct and unlawful invasions of privacy. The parties entered into a settlement agreement resolving these claims. 17. As a result of these lawsuits, their resulting settlement agreements, and expert reports and recommendations, MDOC explored approaches for increasing the presence of female COs in certain components of its female
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correctional facilities as a means of addressing sexual abuse against female inmates.
18. The United States is not challenging any corrective actions MDOC took pursuant to these settlement agreements.
MDOC’s 2000 Female-Only Assignments 19. In August 2000, MDOC sought approval from the Michigan Civil Service Commission (“MCSC”) to designate 267 assignments, the vast majority of which were in the housing units, as female-only assignments such that only female employees could serve in these assignments. With its application, MDOC submitted supporting documentation, including internal data and studies, and expert reports. 20. In August 2000, MCSC granted MDOC’s request to certify the 267 assignments as female only. 21. The United States is not challenging the female-only assignments certified in 2000.
MDOC’s 2009 Female-Only Assignments 22. In 2008, MDOC consolidated its three adult female correctional facilities into one, WHV. 23. On or about March 27, 2009, MDOC applied to the MCSC for 11 additional female-only assignments including, but not limited to: (1) Food
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Service Officer; (2) Yard Control Officer; (3) Property Room Officer; and (4) Electronic Monitor Officer. These assignments are not located within WHV’s housing units, and are not within the scope of the earlier settlement agreements or the 2000 female-only assignments.
24. In its application, MDOC claimed that given its history of litigation regarding sexual abuse and its desire to maximize safety and security, it demonstrated a need to expand the number of female-only assignments at WHV. Further, MDOC contended that each assignment “is either an isolated position, involves potential privacy concerns on the part of the prisoners, or requires an officer to conduct pat-down searches on female prisoners.”
25. With its application, MDOC included job descriptions for each of the assignments. Aside from the job descriptions, MDOC did not submit any additional supporting documentation.
26. In April 2009, MCSC granted MDOC’s request to certify sex as a BFOQ for the 11 additional assignments at WHV.
27. Shortly thereafter, MDOC designated the 11 job assignments as female only, including, but not limited to, Food Service Officer, Yard Control Officer, Property Room Officer, and Electronic Monitor Officer.
28. The Food Service Officer monitors inmate workers and outside contractor workers who receive, store, prepare, and serve food to inmates. The
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assignment is generally staffed by two COs, and is located in a public area of WHV where other COs are also present. The assignment was designated as female only in 2009.
29. The Yard Control Officer monitors the yard areas and makes rounds of the buildings that comprise WHV. There are approximately ten Yard Control Officers on first and second shifts and approximately five officers on third shift. Approximately half of the assignments on each shift were designated female only in 2009. The remainder of the assignments could be staffed by either male or female COs.
30. The Property Room Officer monitors inmate workers, ensures the safety of incoming inmate purchases, maintains files of inmate purchases, and prevents the introduction of contraband. The assignment is generally staffed by two COs. The assignment was designated as female only in 2009.
31. The Electronic Monitor Officer monitors WHV through cameras and microphones in the Control Center. There are other COs and supervisory staff in the Control Center. The Electronic Monitor Officer typically does not leave the Control Center, and generally does not interact with inmates. The assignment has been designated as female only since 2009.
32. Based on representations from MDOC, beginning in or around June 2016, MDOC lifted the female-only restriction from some, but not all, of the
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2009 female-only assignments, including Food Service Officer, Yard Control Officer, and Property Room Officer.
33. Prior to 2009, male COs worked in the Food Service Officer, Yard Control Officer, Property Room Officer, and Electronic Monitor Officer assignments and successfully performed the primary functions of the job for these assignments.
34. MDOC’s implementation of the 2009 female-only assignments for Food Service Officer, Yard Control Officer, Property Room Officer, and Electronic Monitor Officer has required and continues to require female COs at WHV to work excessive, mandatory overtime hours in order to staff MDOC's female-only assignments and has impeded and continues to impede female COs from transferring from WHV to other MDOC facilities.
35. Charging Parties and similarly situated employees at WHV have suffered emotional distress and economic harm as a result of the unjustified 2009 female-only assignments.
MDOC’s Transfer Policy 36. Section 8(b) of MDOC’s employee handbook and Article 15 of MDOC’s collective bargaining agreement (“CBA”) with the Service Employees International Union Local 526 M, AFL-CIO, govern transfers, including seniority-based transfers, of COs between MDOC facilities.
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37. Under Article 15 of the CBA, all non-probationary employees have an opportunity to apply for seniority-based transfers. Eligible employees may sign up to be on the transfer list. Management is required to select the most senior qualified employee whose name has been on the list for at least 30 calendar days.
38. In August 2005, MDOC instituted a freeze on all CO transfers out of its female correctional facilities. In February 2008, MDOC reiterated that the freeze was still in effect.
39. In April 2016, MDOC sought five female COs at WHV to transfer to its Detroit Reentry Center to fill five female-only assignments at that facility. This limited transfer opportunity did not otherwise affect or alter the ongoing transfer freeze.
40. Since the 2009 female-only assignment policy was implemented, MDOC officials have routinely granted the requests of eligible male COs to transfer from WHV to other MDOC facilities pursuant to Article 15 of the CBA despite the transfer freeze.
41. Since the 2009 female-only assignment policy was implemented, MDOC officials have routinely denied the requests of eligible Charging Parties and similarly situated eligible female COs to transfer from WHV to other MDOC facilities.
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42. Since the 2009 female-only assignment policy was implemented, MDOC officials have routinely required female COs to find a female CO replacement as a condition of transfer from WHV to another MDOC facility while not requiring this condition of male COs who receive transfers.
43. As a result of MDOC’s transfer denials, Charging Parties and similarly situated employees have been denied the opportunity to: (1) move from WHV to MDOC facilities closer to their homes; (2) gain additional experience at other MDOC facilities, which is beneficial for promotion; (3) experience other job opportunities not available at WHV; and (4) move from WHV to a more desirable facility.
44. As a result of MDOC’s transfer denials, Charging Parties and similarly situated employees at WHV have been required and continue to be required to work excessive amounts of overtime that are hazardous to their health.
45. Charging Parties and similarly situated employees have suffered emotional distress and economic harm as a result of the discriminatory denial of transfers.
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CLAIMS FOR RELIEF COUNT I
MDOC’s 2009 Female-Only Assignments for Food Service Officer, Yard Officer, Property Room Officer, and Electronic Monitor Officer Constitute a Facially Discriminatory Policy which Discriminates on the Basis of Sex Under Sections 703, 706, and 707 of Title VII, 42 U.S.C. §§ 2000e-2(a), 2000e-5(f) &
2000e-6 46. Plaintiff re-alleges and incorporates by reference the allegations set forth in paragraphs 1 through 45 above. 47. MDOC’s 2009 female-only assignments for Food Service Officer, Yard Control Officer, Property Room Officer, and Electronic Monitor Officer have constituted and/or continue to constitute a facially discriminatory policy which discriminates on the basis of sex. 48. Defendants cannot establish that:
a. designating the Food Service Officer, Yard Control Officer, Property Room Officer, and Electronic Monitor Officer assignments as female only was reasonably necessary to the normal operation of its business;
b. designating these four assignments as female only related to the essence or central mission of its business; and
c. no reasonable alternatives existed to designating these four assignments as female only.
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49. The 2009 female-only assignments of Defendants described in paragraphs 47 and 48 also constitute a pattern or practice of discrimination on the basis of sex in violation of Title VII. Defendants have pursued, and continue to pursue, policies and practices that discriminate on the basis of sex. Under both Sections 706 and 707 of Title VII, 42 U.S.C. §§ 2000e-5(f) & 2000e-6(a), the United States has authority to bring a civil action requesting relief.
COUNT II MDOC’s 2009 Female-Only Assignments for Food Service Officer, Yard Officer, Property Room Officer, and Electronic Monitor Officer Discriminate Based on Sex and Constitute a Pattern or Practice of Discrimination Based on Sex Under Sections 703, 706, and 707 of Title VII, 42 U.S.C. §§ 2000e-2(a),
2000e-5(f) & 2000e-6 50. Plaintiff re-alleges and incorporates by reference the allegations set forth in paragraphs 1 through 45 above. 51. In violation of Title VII, 42 U.S.C. § 2000e-2(a), MDOC discriminated against Charging Parties and similarly situated female COs, on the basis of sex, with respect to their terms, conditions, or privileges of employment at WHV by unlawfully designating the Food Service Officer, Yard Control Officer, Property Room Officer, and Electronic Monitor Officer assignments as female only. 52. Defendants cannot establish that:
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a. designating the Food Service Officer, Yard Control Officer, Property Room Officer, and Electronic Monitor Officer assignments as female only was reasonably necessary to the normal operation of its business;
b. designating these four assignments as female only related to the essence or central mission of its business; and
c. no reasonable alternatives existed to designating these four assignments as female only. 53. The 2009 female-only assignments of Defendants described in paragraphs 51 through 52 also constitute a pattern or practice of discrimination on the basis of sex in violation of Title VII. Defendants have pursued, and continue to pursue, policies and practices with respect to terms, conditions, or privileges of employment that discriminate against women and that deprive or tend to deprive women of employment opportunities because of their sex. Under both Sections 706 and 707 of Title VII, 42 U.S.C. §§ 2000e-5(f) & 2000e-6(a), the United States has authority to bring a civil action requesting relief.
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COUNT III MDOC’s Transfer Practice Discriminates Based on Sex and Constitutes a Pattern or Practice of Discrimination Based on Sex Under Sections 703, 706
and 707 of Title VII, 42 U.S.C. §§ 2000e-2(a), 2000e-5(f) & 2000e-6 54. Plaintiff re-alleges and incorporates by reference the allegations set forth in paragraphs 1 through 45 above. 55. In violation of Title VII, 42 U.S.C. § 2000e-2(a), MDOC has discriminated on the basis of sex at WHV in terms of transfers among other ways, by:
a. denying transfers or imposing additional conditions for transfers of eligible Charging Parties and similarly situated female COs at WHV; and
b. granting transfers of male COs with less seniority than eligible Charging Parties and similarly situated female COs at WHV and/or not imposing additional conditions on male COs’ transfer requests.
56. The acts and practices of Defendants described in paragraph 55 also constitute a pattern or practice of discrimination on the basis of sex in violation of Title VII. Defendants have pursued, and continue to pursue, policies and practices with respect to terms, conditions, or privileges of employment that discriminate against women and that deprive or tend to deprive women of employment opportunities because of their sex. Under both Sections 706 and
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707 of Title VII, 42 U.S.C. §§ 2000e-5(f) & 2000e-6(a), the United States has authority to bring a civil action requesting relief.
PRAYER FOR RELIEF WHEREFORE, Plaintiff United States prays that this Court grant the following relief: A. Enjoin Defendants from further discrimination in job assignments on the basis of sex at WHV; B. Enjoin Defendants from further discrimination in the grant of transfer requests against Charging Parties and similarly situated female COs at WHV; C. Order Defendants to develop and implement appropriate and effective measures to prevent discrimination, including, but not limited to, policies, procedures, and training for employees and officials; D. Require Defendants to adopt Title VII-compliant job assignment and transfer policies; E. Award damages to Charging Parties and similarly situated female COs to compensate them for the pain and suffering and economic harm caused by the discriminatory conduct, pursuant to and within the statutory limitations of Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a; and F. Award such additional relief as justice may require, together with the United States’ costs and disbursements in this action.
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JURY DEMAND The United States hereby demands a trial by jury of all issues so triable pursuant to Rule 38 of the Federal Rules of Civil Procedure and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981(a).
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Dated: June 13, 2016
Respectfully submitted,
BARBARA L. McQUADE United States Attorney Eastern District of Michigan
BY: /s/ Sarah Karpinen SARAH KARPINEN, P63289 Assistant United States Attorney 211 W. Fort Street Suite 2001 Detroit, Michigan 48226 (313) 226-9595 Sarah.Karpinen@usdoj.gov

VANITA GUPTA Principal Deputy Assistant Attorney General Civil Rights Division
BY: DELORA L. KENNEBREW Chief Employment Litigation Section Civil Rights Division United States Department of Justice
/s/ Clare Geller CLARE GELLER (NY Reg. No. 4087037) Deputy Chief
/s/ Carol A. Wong CAROL A. WONG (IL Bar. No. 6294123) LISA WILSON EDWARDS (DC Bar No. 421480) TARYN WILGUS NULL (DC Bar No. 985724) Trial Attorneys Employment Litigation Section Civil Rights Division United States Department of Justice 601 D Street, NW Patrick Henry Building Washington, DC 20579 Telephone: (202) 514-3831 Facsimile: (202) 514-1105 Email: Carol.Wong@usdoj.gov

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

____________________________________

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

STATE OF MICHIGAN AND

)

MICHIGAN DEPARTMENT

)

OF CORRECTIONS,

)

)

Defendants.

)

)

____________________________________)

CIVIL NO. 2:16-cv-12146 JURY TRIAL DEMANDED

AMENDED COMPLAINT

Plaintiff United States of America files this Amended Complaint pursuant to

Federal Rule of Civil Procedure 15(a)(1) and Local Rule 15.1. Rule 15(a)(1)

permits a party to “amend its pleading once as a matter of course” before a

responsive pleading is served. The United States filed its original Complaint on

June 13, 2016, and accordingly, is required to serve Defendants State of Michigan

and Michigan Department of Corrections by September 11, 2016. Fed. R. Civ. P.

4(m). To date the United States has not served Defendants and Defendants have

not filed a responsive pleading. The United States respectfully files the attached

Amended Complaint as a matter of course.

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In its Amended Complaint, the United States of America (“United States”) alleges:
NATURE OF THE ACTION 1. This action is brought on behalf of the United States to enforce the provisions of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq. (“Title VII”).
JURISDICTION AND VENUE 2. This Court has jurisdiction over this action under 42 U.S.C. § 2000e5(f), § 2000e-6, and 28 U.S.C. §§ 1331, 1343(a) and 1345. 3. Venue is proper in this judicial district under 42 U.S.C. § 2000e5(f)(3), § 2000e-6(b), and 28 U.S.C. § 1391(b) because it is where a substantial part of the events or omissions giving rise to the cause of action occurred.
PARTIES 4. Defendants Michigan Department of Corrections (“MDOC”) and the State of Michigan are public employers. 5. Defendant MDOC is a governmental agency created pursuant to the laws of the State of Michigan, and Defendant State of Michigan is a state government within the meaning of 42 U.S.C. § 2000e(a). 6. Defendants are “persons” within the meaning of 42 U.S.C. § 2000e(a) and are “employers” within the meaning of 42 U.S.C. § 2000e(b).
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7. Defendant MDOC administers and operates Defendant State of Michigan’s correctional system and prison facilities, which encompass over 30 correctional facilities, house over 43,000 inmates, and employ over 7,300 Correctional Officers (“COs”). Of those COs, approximately 6,077 (83%) of MDOC COs system-wide are male and 1,292 (17%) are female.
8. Defendants employ COs who are responsible for, among other things, maintaining custodial care and control of inmates housed in correctional facilities in the State of Michigan.
9. MDOC currently administers and operates one correctional facility for adult female inmates, Women’s Huron Valley Correctional Facility (“WHV”). WHV is located in the City of Ypsilanti, Washtenaw County, Michigan and within the jurisdiction of this Court. WHV houses over 2,200 female inmates and employs over 330 COs. Of those COs, approximately 85% are female.
10. The Equal Employment Opportunity Commission (“EEOC”) received timely charges of discrimination from 28 women employed as COs at WHV alleging MDOC discriminated against them based on sex because MDOC: (1) maintained an overly broad female-only assignment policy without sufficient justification for a bona fide occupational qualification (“BFOQ”) exception for such assignments; and (2) denied transfers to female COs in order to staff its female-only assignments. Since the time of their charges, some of the Charging
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Parties have stopped working at WHV or have left employment with

Defendants altogether. The 28 Charging Parties are set forth below:

NAME Margaret Sharpe

EEOC CHARGE NO.
471-2010-03165

DATE CHARGE FILED
August 5, 2010

Rita Wise

471-2010-03331

September 10, 2010

Lorrie Stanton

471-2011-01130

February 11, 2011

Megan Littrup-Dean

471-2011-01129

February 24, 2011

Kathleen Mathis

471-2011-01133

March 9, 2011

Jeannine Street-Ostrewich 471-2011-01134

March 10, 2011

Amy Morton

471-2011-01367

March 15, 2011

Roxanne Weatherly

471-2011-01311

March 18, 2011

Dana Starks

471-2011-01321

March 18, 2011

Kenesha Thomas

471-2011-01317

March 18, 2011

Latonya Dalton

471-2011-01312

March 19, 2011

Crystal Socier

471-2011-01322

March 23, 2011

Brandi Odom

471-2011-01379

March 28, 2011

Vernithia Parker

471-2011-01382

March 29, 2011

Michelle Mattox

471-2011-01380

April 4, 2011

Joyce Paige

471-2011-01219

April 11, 2011

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Terri Williams Patricia Rhodes-Reeves Aleika Buckner Jennifer Nielsen Tia Shidler Kellee Hill Sharon Ernest Sierra Long Monique Joyce Shiryl Gentry (now deceased) Jennifer Edwards Orlinda Mallett-Godwin

471-2011-01364 471-2011-01328 471-2011-01793 471-2011-01839 471-2011-01366 471-2011-01787 471-2011-01785 471-2011-02089 471-2011-02084 471-2011-01790 471-2011-02093 471-2011-01832

April 19, 2011 April 21, 2011 April 21, 2011 April 25, 2011 April 25, 2011 April 27, 2011 May 2, 2011 May 6, 2011 May 16, 2011 May 17, 2011 May 17, 2011 May 20, 2011

11. Pursuant to Section 706 of Title VII, 42 U.S.C. § 2000e-5, the EEOC investigated the charges, found reasonable cause to believe that Title VII violations had occurred with respect to these 28 female COs and similarly situated individuals, and unsuccessfully attempted to conciliate the charges. The EEOC then referred these charges to the United States Department of Justice.

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12. On February 11, 2016, the United States notified Defendants of its intent to file a complaint against them for violating Title VII with respect to the allegations raised in the referred EEOC charges, including allegations of a pattern or practice of discrimination.
13. All conditions precedent to the filing of this Amended Complaint have been performed or have occurred.
FACTUAL ALLEGATIONS COMMON TO ALL CLAIMS Prior Litigation Regarding MDOC’s Treatment of Female Inmates 14. Before 2008, MDOC primarily housed its adult female inmates in three female-only correctional facilities. 15. During the 1990s, female inmates filed lawsuits in both state and federal court against MDOC alleging numerous constitutional and federal statutory violations emanating from acts of sexual abuse that included sexual misconduct, sexual harassment, and violations of privacy. The female inmates’ claims for monetary and injunctive relief were resolved by settlement agreements reached in each case. 16. The United States brought a lawsuit against Defendants in 1997, under the Civil Rights of Institutionalized Persons Act, 42 U.S.C. §§ 1997, et seq., alleging that Defendants were violating the constitutional rights of female inmates by failing to protect them from sexual misconduct and unlawful
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invasions of privacy. The parties entered into a settlement agreement resolving these claims.
17. As a result of these lawsuits, their resulting settlement agreements, and expert reports and recommendations, MDOC explored approaches for increasing the presence of female COs in certain components of its female correctional facilities as a means of addressing sexual abuse against female inmates.
18. The United States is not challenging any corrective actions MDOC took pursuant to these settlement agreements.
MDOC’s 2000 Female-Only Assignments 19. In August 2000, MDOC sought approval from the Michigan Civil Service Commission (“MCSC”) to designate 267 assignments, the vast majority of which were in the housing units, as female-only assignments such that only female employees could serve in these assignments. With its application, MDOC submitted supporting documentation, including internal data and studies, and expert reports. 20. In August 2000, MCSC granted MDOC’s request to certify the 267 assignments as female only. 21. The United States is not challenging the female-only assignments certified in 2000.
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MDOC’s 2009 Female-Only Assignments 22. In 2008, MDOC consolidated its three adult female correctional facilities into one, WHV. 23. On or about March 27, 2009, MDOC applied to the MCSC for 11 additional female-only assignments including, but not limited to: (1) Food Service Officer; (2) Yard Control Officer; (3) Property Room Officer; and (4) Electronic Monitor Officer. These assignments are not located within WHV’s housing units, and are not within the scope of the earlier settlement agreements or the 2000 female-only assignments. 24. In its application, MDOC claimed that given its history of litigation regarding sexual abuse and its desire to maximize safety and security, it demonstrated a need to expand the number of female-only assignments at WHV. Further, MDOC contended that each assignment “is either an isolated position, involves potential privacy concerns on the part of the prisoners, or requires an officer to conduct pat-down searches on female prisoners.” 25. With its application, MDOC included job descriptions for each of the assignments. Aside from the job descriptions, MDOC did not submit any additional supporting documentation. 26. In April 2009, MCSC granted MDOC’s request to certify sex as a BFOQ for the 11 additional assignments at WHV.
8

2:16-cv-12146-PDB-MKM Doc # 6 Filed 07/27/16 Pg 9 of 20 Pg ID 36
27. Shortly thereafter, MDOC designated the 11 job assignments as female only, including, but not limited to, Food Service Officer, Yard Control Officer, Property Room Officer, and Electronic Monitor Officer.
28. The Food Service Officer monitors inmate workers and outside contractor workers who receive, store, prepare, and serve food to inmates. The assignment is generally staffed by two COs, and is located in a public area of WHV where other COs are also present. The assignment was designated as female only in 2009.
29. The Yard Control Officer monitors the yard areas and makes rounds of the buildings that comprise WHV. There are approximately ten Yard Control Officers on first and second shifts and approximately five officers on third shift. Approximately half of the assignments on each shift were designated female only in 2009. The remainder of the assignments could be staffed by either male or female COs.
30. The Property Room Officer monitors inmate workers, ensures the safety of incoming inmate purchases, maintains files of inmate purchases, and prevents the introduction of contraband. The assignment is generally staffed by two COs. The assignment was designated as female only in 2009.
31. The Electronic Monitor Officer monitors WHV through cameras and microphones in the Control Center. There are other COs and supervisory staff
9

2:16-cv-12146-PDB-MKM Doc # 6 Filed 07/27/16 Pg 10 of 20 Pg ID 37
in the Control Center. The Electronic Monitor Officer typically does not leave the Control Center, and generally does not interact with inmates. The assignment has been designated as female only since 2009.
32. Based on representations from MDOC, beginning in or around June 2016, MDOC lifted the female-only restriction from some, but not all, of the 2009 female-only assignments, including Food Service Officer, Yard Control Officer, and Property Room Officer.
33. Prior to 2009, male COs worked in the Food Service Officer, Yard Control Officer, Property Room Officer, and Electronic Monitor Officer assignments and successfully performed the primary functions of the job for these assignments.
34. MDOC’s implementation of the 2009 female-only assignments for Food Service Officer, Yard Control Officer, Property Room Officer, and Electronic Monitor Officer has required and continues to require female COs at WHV to work excessive, mandatory overtime hours in order to staff MDOC's female-only assignments and has impeded and continues to impede female COs from transferring from WHV to other MDOC facilities.
35. Charging Parties and similarly situated female COs at WHV who were unable to work the excessive, mandatory overtime hours were subjected to discipline, including suspension without pay.
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2:16-cv-12146-PDB-MKM Doc # 6 Filed 07/27/16 Pg 11 of 20 Pg ID 38
36. Charging Parties and similarly situated employees at WHV have suffered emotional distress and economic harm as a result of the unjustified 2009 female-only assignments.
MDOC’s Transfer Policy 37. Section 8(b) of MDOC’s employee handbook and Article 15 of MDOC’s collective bargaining agreement (“CBA”) with the Service Employees International Union Local 526 M, AFL-CIO, govern transfers, including seniority-based transfers, of COs between MDOC facilities. 38. Under Article 15 of the CBA, all non-probationary employees have an opportunity to apply for seniority-based transfers. Eligible employees may sign up to be on the transfer list. Management is required to select the most senior qualified employee whose name has been on the list for at least 30 calendar days. 39. In August 2005, MDOC instituted a freeze on all CO transfers out of its female correctional facilities. In February 2008, MDOC reiterated that the freeze was still in effect. 40. In April 2016, MDOC sought five female COs at WHV to transfer to its Detroit Reentry Center to fill five female-only assignments at that facility. This limited transfer opportunity did not otherwise affect or alter the ongoing transfer freeze.
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41. Since the 2009 female-only assignment policy was implemented, MDOC officials have routinely granted the requests of eligible male COs to transfer from WHV to other MDOC facilities pursuant to Article 15 of the CBA despite the transfer freeze.
42. Since the 2009 female-only assignment policy was implemented, MDOC officials have routinely denied the requests of eligible Charging Parties and similarly situated eligible female COs to transfer from WHV to other MDOC facilities.
43. Since the 2009 female-only assignment policy was implemented, MDOC officials have routinely required female COs to find a female CO replacement as a condition of transfer from WHV to another MDOC facility while not requiring this condition of male COs who receive transfers.
44. Since the 2009 female-only assignment policy was implemented, Charging Parties and similarly situated female COs have been dissuaded from applying for transfers as a result of MDOC’s transfer denials.
45. As a result of MDOC’s transfer denials, Charging Parties and similarly situated employees have been denied the opportunity to: (1) move from WHV to MDOC facilities closer to their homes; (2) gain additional experience at other MDOC facilities, which is beneficial for promotion; (3)
12

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experience other job opportunities not available at WHV; and (4) move from WHV to a more desirable facility.
46. As a result of MDOC’s transfer denials, Charging Parties and similarly situated employees at WHV have been required and continue to be required to work excessive amounts of overtime that are hazardous to their health.
47. Charging Parties and similarly situated female COs at WHV who were unable to work the excessive, mandatory overtime hours were subjected to discipline, including suspension without pay.
48. Charging Parties and similarly situated employees have suffered emotional distress and economic harm as a result of the discriminatory denial of transfers.
CLAIMS FOR RELIEF COUNT I
MDOC’s 2009 Female-Only Assignments for Food Service Officer, Yard Officer, Property Room Officer, and Electronic Monitor Officer Constitute a Facially Discriminatory Policy which Discriminates on the Basis of Sex Under Sections 703, 706, and 707 of Title VII, 42 U.S.C. §§ 2000e-2(a), 2000e-5(f) &
2000e-6 49. Plaintiff re-alleges and incorporates by reference the allegations set forth in paragraphs 1 through 48 above.
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2:16-cv-12146-PDB-MKM Doc # 6 Filed 07/27/16 Pg 14 of 20 Pg ID 41
50. MDOC’s 2009 female-only assignments for Food Service Officer, Yard Control Officer, Property Room Officer, and Electronic Monitor Officer have constituted and/or continue to constitute a facially discriminatory policy which discriminates on the basis of sex.
51. Defendants cannot establish that: a. designating the Food Service Officer, Yard Control Officer,
Property Room Officer, and Electronic Monitor Officer assignments as female only was reasonably necessary to the normal operation of its business;
b. designating these four assignments as female only related to the essence or central mission of its business; and
c. no reasonable alternatives existed to designating these four assignments as female only. 52. The 2009 female-only assignments of Defendants described in paragraphs 50 and 51 also constitute a pattern or practice of discrimination on the basis of sex in violation of Title VII. Defendants have pursued, and continue to pursue, policies and practices that discriminate on the basis of sex. Under both Sections 706 and 707 of Title VII, 42 U.S.C. §§ 2000e-5(f) & 2000e-6(a), the United States has authority to bring a civil action requesting relief.
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COUNT II MDOC’s 2009 Female-Only Assignments for Food Service Officer, Yard Officer, Property Room Officer, and Electronic Monitor Officer Discriminate Based on Sex and Constitute a Pattern or Practice of Discrimination Based on Sex Under Sections 703, 706, and 707 of Title VII, 42 U.S.C. §§ 2000e-2(a),
2000e-5(f) & 2000e-6 53. Plaintiff re-alleges and incorporates by reference the allegations set forth in paragraphs 1 through 48 above. 54. In violation of Title VII, 42 U.S.C. § 2000e-2(a), MDOC discriminated against Charging Parties and similarly situated female COs, on the basis of sex, with respect to their terms, conditions, or privileges of employment at WHV by unlawfully designating the Food Service Officer, Yard Control Officer, Property Room Officer, and Electronic Monitor Officer assignments as female only. 55. Defendants cannot establish that:
a. designating the Food Service Officer, Yard Control Officer, Property Room Officer, and Electronic Monitor Officer assignments as female only was reasonably necessary to the normal operation of its business;
b. designating these four assignments as female only related to the essence or central mission of its business; and
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c. no reasonable alternatives existed to designating these four assignments as female only. 56. The 2009 female-only assignments of Defendants described in paragraphs 54 through 55 also constitute a pattern or practice of discrimination on the basis of sex in violation of Title VII. Defendants have pursued, and continue to pursue, policies and practices with respect to terms, conditions, or privileges of employment that discriminate against women and that deprive or tend to deprive women of employment opportunities because of their sex. Under both Sections 706 and 707 of Title VII, 42 U.S.C. §§ 2000e-5(f) & 2000e-6(a), the United States has authority to bring a civil action requesting relief.
COUNT III MDOC’s Transfer Practice Discriminates Based on Sex and Constitutes a Pattern or Practice of Discrimination Based on Sex Under Sections 703, 706
and 707 of Title VII, 42 U.S.C. §§ 2000e-2(a), 2000e-5(f) & 2000e-6 57. Plaintiff re-alleges and incorporates by reference the allegations set forth in paragraphs 1 through 48 above. 58. In violation of Title VII, 42 U.S.C. § 2000e-2(a), MDOC has discriminated on the basis of sex at WHV in terms of transfers among other ways, by:
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2:16-cv-12146-PDB-MKM Doc # 6 Filed 07/27/16 Pg 17 of 20 Pg ID 44
a. denying transfers or imposing additional conditions for transfers of eligible Charging Parties and similarly situated female COs at WHV; and
b. granting transfers of male COs with less seniority than eligible Charging Parties and similarly situated female COs at WHV and/or not imposing additional conditions on male COs’ transfer requests.
59. The acts and practices of Defendants described in paragraph 58 also constitute a pattern or practice of discrimination on the basis of sex in violation of Title VII. Defendants have pursued, and continue to pursue, policies and practices with respect to terms, conditions, or privileges of employment that discriminate against women and that deprive or tend to deprive women of employment opportunities because of their sex. Under both Sections 706 and 707 of Title VII, 42 U.S.C. §§ 2000e-5(f) & 2000e-6(a), the United States has authority to bring a civil action requesting relief.
PRAYER FOR RELIEF WHEREFORE, Plaintiff United States prays that this Court grant the following relief: A. Enjoin Defendants from further discrimination in job assignments on the basis of sex at WHV;
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2:16-cv-12146-PDB-MKM Doc # 6 Filed 07/27/16 Pg 18 of 20 Pg ID 45
B. Enjoin Defendants from further discrimination in the grant of transfer requests against Charging Parties and similarly situated female COs at WHV;
C. Order Defendants to develop and implement appropriate and effective measures to prevent discrimination, including, but not limited to, policies, procedures, and training for employees and officials;
D. Require Defendants to adopt Title VII-compliant job assignment and transfer policies;
E. Award damages to Charging Parties and similarly situated female COs to compensate them for the pain and suffering and economic harm caused by the discriminatory conduct, pursuant to and within the statutory limitations of Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a;
F. Award appropriate monetary relief, including prejudgment interest, to Charging Parties and similarly situated female COs to make them whole for the losses they have suffered as a result of the discrimination against them as alleged in this Amended Complaint; and
G. Award such additional relief as justice may require, together with the United States’ costs and disbursements in this action.
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JURY DEMAND The United States hereby demands a trial by jury of all issues so triable pursuant to Rule 38 of the Federal Rules of Civil Procedure and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981(a).
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Dated: July 27, 2016
Respectfully submitted,
BARBARA L. McQUADE United States Attorney Eastern District of Michigan
BY: /s/ Sarah Karpinen SARAH KARPINEN, P63289 Assistant United States Attorney 211 W. Fort Street Suite 2001 Detroit, Michigan 48226 (313) 226-9595 Sarah.Karpinen@usdoj.gov

VANITA GUPTA Principal Deputy Assistant Attorney General Civil Rights Division
BY: DELORA L. KENNEBREW Chief Employment Litigation Section Civil Rights Division United States Department of Justice
/s/ Clare Geller CLARE GELLER (NY Reg. No. 4087037) Deputy Chief
/s/ Carol A. Wong CAROL A. WONG (IL Bar. No. 6294123) LISA WILSON EDWARDS (DC Bar No. 421480) TARYN WILGUS NULL (DC Bar No. 985724) Trial Attorneys Employment Litigation Section Civil Rights Division United States Department of Justice 601 D Street, NW Patrick Henry Building Washington, DC 20579 Telephone: (202) 514-3831 Facsimile: (202) 514-1105 Email: Carol.Wong@usdoj.gov

20

 
 Case 2:16-cv-12146-PDB-MKM ECF No. 66 filed 10/09/18 PageID.1916 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

____________________________________

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

v.

)

)

STATE OF MICHIGAN AND

)

MICHIGAN DEPARTMENT

)

OF CORRECTIONS,

)

)

Defendants.

)

)

____________________________________)

CIVIL NO. 2:16-cv-12146 Hon. Paul D. Borman Maj. Judge Mona K. Majzoub

STIPULATED ORDER HOLDING ALL DEADLINES IN ABEYANCE

Plaintiff United States of America and Defendants State of Michigan and

Michigan Department of Corrections (“MDOC”) hereby stipulate and agree to hold

all deadlines in abeyance pending a settlement agreement being submitted to the

Court for review and entry, given that the parties reached an agreement in principle

to settle this case on August 17, 2018 and are currently working on drafting a full

settlement agreement. If a settlement agreement is not submitted to the Court

within ninety (90) days after the entry of this Stipulation, the parties will update the

Court on the status of the agreement.

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Case 2:16-cv-12146-PDB-MKM ECF No. 66 filed 10/09/18 PageID.1917 Page 2 of 3
IT IS ORDERED that the current scheduling order is suspended and all deadlines in this case are held in abeyance pending the submission of a settlement agreement to the Court.

Date: October 9, 2018

s/Paul D. Borman PAUL D. BORMAN District Court Judge U.S. District Court

The parties, through their respective counsel, stipulate to the entry of the above

order.

Dated: October 5, 2018
Respectfully submitted,
DELORA L. KENNEBREW Chief Employment Litigation Section Civil Rights Division United States Department of Justice
CLARE GELLER (NY Reg. No. 4087037)
/s/ Taryn Wilgus Null TARYN WILGUS NULL (DC Bar No. 985724) LISA WILSON EDWARDS (DC Bar No. 421480) NADIA E. SAID (DC Bar No. 1016598) JENNIFER M. SWEDISH (D.C. Bar No. 977746) Senior Trial Attorneys Employment Litigation Section Civil Rights Division United States Department of Justice 601 D Street, NW
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Case 2:16-cv-12146-PDB-MKM ECF No. 66 filed 10/09/18 PageID.1918 Page 3 of 3
Patrick Henry Building Washington, DC 20579 Telephone: (202) 616-3874 Facsimile: (202) 514-1105 Email: taryn.null@usdoj.gov
SAIMA S. MOHSIN Attorney for the United States Acting Under Authority Conferred by 28 U.S.C. § 515 Eastern District of Michigan
/s/ Susan K. DeClercq SUSAN K. DECLERCQ (P60545) Assistant United States Attorney 211 W. Fort Street, Suite 2001 Detroit, Michigan 48226 (313) 226-9149 Susan.DeClercq@usdoj.gov
Counsel for Plaintiff United States of America
/s/ James E. Long Jeanmarie Miller (P44446) James E. Long (P53251) Denise C. Barton (P41535) Assistant Attorneys General Attorneys for Defendants, State of Michigan & Michigan Department of Corrections Michigan Department of Attorney General Civil Litigation, Employment & Elections Div. P.O. Box 30736 Lansing, MI 48909 (517) 373-6434
Counsel for Defendants State of Michigan and Michigan Department of Corrections
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 Case 2:16-cv-12146-PDB-MKM ECF No. 72 filed 12/17/18 PageID.1932 Page 1 of 6

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

UNITED STATES OF AMERICA,

No. 2:16-cv-12146

Plaintiff,

HON. PAUL D. BORMAN

v
STATE OF MICHIGAN and MICHIGAN DEPARTMENT OF CORRECTIONS,
Defendants.

MAG. MONA K. MAJZOUB
DEFENDANTS’ RESPONSE TO INTERVENING PLAINTIFFS’ MOTION

Susan K. DeClercq (P60545) Assistant United States Attorney Co-Attorney for Plaintiff 211 W. Fort Street, Ste 2100 Detroit, MI 48226 (313) 226-9149
Nadia Elizabeth Said (D.C. Bar No. 1016598) Co-Attorney for Plaintiff U.S. Department of Justice Civil Rights Division United States Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C. 20530 (202) 616-2988
Jennifer M. Swedish (D.C. Bar No. 977746) U.S. Department of Justice Employment Litigation Section Civil Rights Division 601 D Street, N.W. – Patrick Henry Building, Room 4912 Washington, DC 20579 (202) 305-4069

Lisa Wilson Edwards (D.C. Bar No. 421480) Co-Attorney for Plaintiff U.S. Department of Justice Employment Litigation Section Civil Rights Division 950 Pennsylvania Ave., N.W. PHB 4520 Washington, DC 20530 (202) 514-5695
Taryn W. Null (D.C. Bar No. 985724) Co-Attorney for Plaintiff Employment Litigation Section U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave., N.W. Washington, DC 20530 (202) 616-3874

Case 2:16-cv-12146-PDB-MKM ECF No. 72 filed 12/17/18 PageID.1933 Page 2 of 6
Jeanmarie Miller (P44446) James E. Long (P53251) Denise C. Barton (P41535) Assistant Attorneys General Attorneys for Defendants, State of MI & Michigan Department of Corrections Michigan Dept of Attorney General Civil Litigation, Employment & Elections Division P.O. Box 30217 Lansing MI 48909 (517) 373-6434
/
DEFENDANTS’ RESPONSE TO INTERVENING PLAINTIFFS’ KENESHA THOMAS, AMY MORTON, CRYSTAL SOCIER AND
MONIQUE JOYCE’S MOTION TO INTERVENE
As this court is aware, the parties placed a proposed settlement on
the record in open Court on August 17, 2018. The general terms of the
settlement were as follows:
• BFOQ Review: MDOC will develop, through an interactive process with the United States, a Title VII-compliant system for review of bona-fide occupational qualification (“BFOQ”) job assignments for non-housing positions at WHV before they are submitted to the Michigan Civil Service Commission. All nonhousing positions at WHV that are currently designated as BFOQ will be reviewed through this system after it is finalized.
• Staffing Plan: MDOC will develop and implement, through an interactive process with the United States, a staffing plan for WHV that complies with Title VII and results in the removal of BFOQ designation from the positions at issue in this case that do not require a female-only job function.
• Limiting Transfer Freeze: Upon WHV reaching sufficient staffing levels, MDOC will lift the transfer freeze and allow
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eligible female Corrections Officers (“COs”) to transfer out of WHV in accordance with the provisions of MDOC’s Employee Handbook and the terms of the applicable Collective Bargaining Agreement with the Michigan Corrections Organization. MDOC could reinstate a non-discriminatory transfer freeze upon the occurrence of a “triggering event,” such as a vacancy rate that jeopardizes WHV’s safety and security. Factors used to implement a transfer freeze at other MDOC facilities will generally be the same factors used at WHV.
• Recruitment and Retention: MDOC will develop recruitment and retention efforts, through an interactive process with the United States, with the goal of avoiding the triggering event that would require reinstatement of the transfer freeze. In order to encourage qualified females to apply for CO positions at WHV, MDOC will engage in recruitment efforts.
• Priority Transfers: MDOC agrees to provide fifteen (15) priority transfers over three (3) years for eligible female COs at WHV who wanted to transfer to other MDOC facilities from 2009 to the present when the transfer freeze was in place. The Parties shall discuss and come to agreement regarding how these fifteen priority transfers will take place. For example, these could be evenly spaced as five per year, or could be arranged as four priority transfers the first year, then five the year after, and six the final year, if it would be helpful to phase them in more slowly. Nothing precludes MDOC from providing these priority transfers over a time period that is less than three years.
• Compensatory Damages: MDOC agrees to provide a total of $750,000 into a settlement fund that will be distributed as compensatory damages to eligible female COs who worked at WHV between 2009 and the present who submit Interest-in-Relief Forms, who are found by the United States to be eligible for monetary relief, and who sign acceptance of relief and release of claim forms.
• Dispute Resolution: The parties will attempt to resolve informally any disputes that may occur under the settlement
3

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agreement. Upon request of any party, the parties, through their counsel, will make themselves available for a telephone conference to discuss any dispute within ten (10) days of such a request. If the United States and MDOC are unable to reach agreement after informally seeking to resolve a dispute, the issue may be submitted by any party to the Court for resolution upon at least thirty (30) days written notice to the other parties. Individuals Kenesha Thomas, Amy Morton, Crystal Socier and Monique Joyce have now sought to intervene in this matter 2 years after the Complaint was filed and after the proposed settlement was placed on the record. Their reason for requesting intervention is that they have individual damage claims that have not been addressed. However, the settlement placed on the record as described above does contain an individual damage component. Additionally, the settlement provides a structure for any individual to place any individual objections they may have to the individual relief awards. Under the procedures agreed to by the parties, once the settlement agreement is entered by the parties, Interest in Relief forms will be emailed to all eligible claimants. Those individuals will be notified of the proposed individual award allocated to each interested party. Thereafter, a Fairness Hearing will be held where the parties can submit any objections to the proposed individual relief awards. The
4

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Court will then consider all objections that the parties could not resolve on their own.
Given the above procedure, Defendants request that motion to intervene be held in abeyance until after the interested individuals are notified of their proposed individual damage awards and they are given an opportunity to object under the procedures agreed to by the parties. If intervention is allowed at this point in time, the intervention should be allowed for the limited purpose of advocating for the individuals during the Fairness Hearing.

Dated: December 17, 2018

Respectfully submitted,
Bill Schuette Attorney General
/s/Jeanmarie Miller Jeanmarie Miller (P44446) Attorneys for Defendants, State of Michigan & Michigan Department of Corrections Michigan Department of Attorney General Civil Litigation, Employment & Elections Division P.O. Box 30217 Lansing MI 48909 (517) 373-6434 Millerj51@michigan.gov P44446

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CERTIFICATE OF SERVICE I hereby certify that on December 17, 2018, I electronically filed the above document(s) with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel of record.
/s/Jeanmarie Miller Jeanmarie Miller Attorneys for Defendants, State of Michigan & Michigan Department of Corrections Michigan Department of Attorney General Civil Litigation, Employment & Elections Division P.O. Box 30217 Lansing MI 48909 (517) 373-6434 Millerj51@michigan.gov P44446
6

 
 Case 2:16-cv-12146-PDB-MKM ECF No. 87 filed 03/29/19 PageID.2167 Page 1 of 19

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

CIVIL ACTION NO. 16-cv-12146

v.

DISTRICT JUDGE PAUL D. BORMAN

STATE OF MICHIGAN AND MICHIGAN DEPARTMENT OF CORRECTIONS,

MAGISTRATE JUDGE MONA K. MAJZOUB

Defendants. ________________________________/

OPINION AND ORDER DENYING PROPOSED INTERVENING PLAINTIFFS’ MOTION TO INTERVENE [68]
This matter comes before the Court on a Motion to Intervene filed by Proposed Intervening Plaintiffs Kenesha Thomas, Amy Morton, Crystal Socier, and Monique Joyce. (Docket no. 68.) Plaintiff United States of America and Defendants State of Michigan and Michigan Department of Corrections (MDOC) filed Responses to the Motion, to which Proposed Intervening Plaintiffs replied. (Docket nos. 72, 73, 74.) With leave of court, Plaintiff has filed a sur-reply brief. (Docket nos. 83, 84.) The Motion has been referred to the undersigned for consideration. (Docket no. 70.) The Court has reviewed the pleadings and dispenses with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f)(2). The Court is now ready to rule pursuant to 28 U.S.C. § 636(b)(1)(A). I. BACKGROUND
Twenty-eight charging parties, including Proposed Intervening Plaintiffs, filed charges against Defendants with the Equal Employment Opportunity Commission (EEOC) between

Case 2:16-cv-12146-PDB-MKM ECF No. 87 filed 03/29/19 PageID.2168 Page 2 of 19
August 5, 2010, and May 20, 2011, alleging, inter alia, that Defendants (1) discriminated against them on the basis of sex by maintaining an overly-broad female-only assignment policy without sufficient justification for a bona fide occupational qualification (BFOQ) exception for such assignments; and (2) denied transfers to female corrections officers in order to staff the femaleonly assignments at Women’s Huron Valley Correctional Facility (WHV), the State’s only female prison. (See docket no. 73 at 4-5.) Following unsuccessful conciliation efforts, the EEOC referred the charges to the Department of Justice (DOJ). (See id. at 5.) Plaintiff subsequently initiated this employment civil rights action against Defendants on June 13, 2016, asserting claims of sex discrimination in violation of Sections 703, 706, and 707 of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e, et seq. (Docket nos. 1, 6.) Over the next couple years, the parties engaged in extensive discovery efforts and settlement negotiations, and on August 17, 2018, they reached an “agreement in principle” to settle the case. (See docket no. 73 at 8, 9-10.) On October 9, 2018, the court entered a stipulated order holding all deadlines in abeyance pending the submission of a written settlement agreement to the court for review and entry within ninety days. (Docket no. 66.) II. THE MOTION TO INTERVENE
Proposed Intervening Plaintiffs, who are four of the individuals that filed charges with the EEOC, filed the instant Motion to Intervene on December 3, 2018.1 (Docket no. 68.) In the Motion, Proposed Intervening Plaintiffs contend that they had believed that their interests were being represented by the DOJ attorneys, that they had recently had little to no contact with the DOJ attorneys, and that they had learned of the settlement negotiations through the media but were not
1 In the reply brief, Proposed Intervening Plaintiffs’ counsel indicates that he now represents fifteen of the twentyeight charging parties and expects to represent more in the future. (Docket no. 74 at 2 n.1.) The eleven additional individuals do not expressly seek to join in the instant Motion.
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consulted regarding and are not aware of the terms of the settlement. (Id. at 2.) Proposed Intervening Plaintiffs assert that they do not wish to settle their claims without adequate representation of counsel and that they have a right to intervene in this matter to pursue their individual interests. (Id. at 2-3.) They further assert that they clearly have a different interest in this matter than that of the EEOC and that while they haven’t consulted, consented, or participated in any of the settlement discussions, they will seek different relief than the relief provided by the settlement, for example, a transfer to a different correctional facility or financial redress. (Id. at 5.) Additionally, the proposed intervenors contend that they would have brought this Motion sooner if they had understood the legal intricacies of this case. (Id.) Instead, they assert that they incorrectly believed that their interests and those of the EEOC were one and the same, but after consulting with an attorney on December 3, 2018, they learned that the government does not represent them individually, and they promptly filed the instant Motion to Intervene the same day. (Id.)
Defendants respond that the settlement agreement in principle that was placed on the record on August 17, 2018, contains an individual damage component and provides a structure for any individual to object to the proposed individual relief awards at a Fairness Hearing. (Docket no. 72 at 2-5.) They therefore ask that Proposed Intervening Plaintiffs’ Motion to Intervene be held in abeyance until after the interested individuals are notified of their damage awards and have had the opportunity to object to those awards under the procedures agreed to by the parties. (Id. at 5.) Alternatively, Defendants assert that if intervention is allowed, it should be only for the limited purpose of advocating for the individuals at the Fairness Hearing. (Id.)
Plaintiff responds that Proposed Intervening Plaintiffs erroneously claim to have had little to no contact with the DOJ and to have only recently learned that the DOJ does not represent them
3

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individually. (Docket no. 73 at 12.) As discussed in further detail below, Plaintiff asserts that DOJ representatives have been in regular contact with all of the charging parties prior to and throughout this litigation to update them regarding the status of the case, to inform them that the DOJ does not represent them individually but represents the interests of the United States, to notify them of their right to intervene, and to provide them with contact information for the DOJ should they have any questions. (Id. at 5-11.) Plaintiff also points out that the Motion evinces confusion regarding the role of the EEOC in this matter. (Id. at 13.) Plaintiff clarifies that the EEOC’s jurisdiction ended with its referral of the charges to the DOJ and that the DOJ represents the United States in this case. (Id.)
Plaintiff opposes unlimited intervention in this lawsuit by the Proposed Intervening Plaintiffs on the basis that the Motion to Intervene is untimely where the lawsuit is on the precipice of resolution through settlement, the proposed intervenors’ purpose for intervening aligns with Plaintiff’s purpose in this matter, the proposed intervenors have known that their interests may be affected by this suit since its inception, the parties will be significantly prejudiced if the agreement in principle to settle is disturbed, and relief to the victims of Defendants’ discrimination will be further delayed by the intervention. (Docket no. 73 at 2, 4.) Nevertheless, Plaintiff does not oppose limited intervention similar to that suggested by Defendants, for the purpose of providing the proposed intervenors with the right to advocate for maximizing their individual relief awards within the parameters of the settlement agreement in principle. (Id.) III. GOVERNING LAW
Federal Rule of Civil Procedure 24 governs intervention and “is broadly construed in favor of potential intervenors.” Purnell v. City of Akron, 925 F.2d 941, 950 (6th Cir. 1991) (citations omitted). Subsection (a) governs intervention as of right and provides, in relevant part, that “[o]n
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timely motion, the court must permit anyone to intervene who: (1) is given an unconditional right
to intervene by a federal statute.” Fed. R. Civ. P. 24(a)(1).2 Courts evaluate five factors in
determining the timeliness of a motion to intervene:
(1) the point to which the suit has progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenors knew or should have known of their interest in the case; (4) the prejudice to the original parties due to the proposed intervenors’ failure to promptly intervene after they knew or reasonably should have known of their interest in the case; and (5) the existence of unusual circumstances militating against or in favor of intervention.
Stupak-Thrall v. Glickman, 226 F.3d 467, 473 (6th Cir. 2000) (quoting Jansen v. City of
Cincinnati, 904 F.2d 336, 340 (6th Cir. 1990)). “No single factor is determinative; instead,
timeliness ‘should be evaluated in the context of all relevant circumstances.’” Equal Employment
Opportunity Comm’n v. R.G. & G.R. Harris Funeral Homes, Inc., No. 16-2424, 2017 WL
10350992, at *1 (6th Cir. Mar. 27, 2017) (quoting Stupak-Thrall, 226 F.3d at 472-73).
Additionally, a motion to intervene “must state the grounds for intervention and be accompanied
by a pleading that sets out the claim or defense for which intervention is sought.” Fed. R. Civ. P.
24(c).
IV. ANALYSIS
Proposed Intervening Plaintiffs and Plaintiff agree that Section 706(f)(1) of Title VII grants
Proposed Intervening Plaintiffs the unconditional statutory right to intervene in this case based on
2 Plaintiff and Proposed Intervening Plaintiffs identify four elements that they assert must be satisfied before intervention as of right will be granted: “(1) timeliness of the application to intervene, (2) the applicant’s substantial legal interest in the case, (3) impairment of the applicant’s ability to protect that interest in the absence of intervention, and (4) inadequate representation of that interest by parties already before the court.” (Docket no. 73 at 15 (citing Stupak-Thrall v. Glickman, 226 F.3d 467, 471 (6th Cir. 2000); docket no. 74 at 2.) However, the three factors other than timeliness are only applicable to an intervention analysis under Rule 24(a)(2), which requires a court to permit anyone to intervene on timely motion who “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.” See Cuyahoga Valley Ry. Co. v. Tracy, 6 F.3d 389, 395 (6th Cir. 1993) (referring to the last three elements as the “Rule 24(a)(2) factors”).
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the charges that they filed with the EEOC. (Docket no. 68 at 5-6; docket no. 73 at 14-15.) Indeed, under that statute, “[t]he person or persons aggrieved shall have the right to intervene in a civil action brought by the [EEOC] or the Attorney General in a case involving a government, governmental agency, or political subdivision.”3 42 U.S.C. § 2000e-5(f)(1). Thus, the principal issue is whether the Motion to Intervene was timely filed. Plaintiff argues that all five timeliness factors weigh in favor of denying the Motion, and Proposed Intervening Plaintiffs argue that all five factors weigh in their favor. (Docket no. 73 at 16; docket no. 74 at 3-9.) The Court will address each of the factors in turn below.
A. The Point to which the Suit has Progressed Plaintiff contends that unlimited intervention is inappropriate given how close this case is to conclusion. (Docket no. 73 at 16-18.) “If the litigation has ‘made extensive progress in the district court before the [proposed intervenors] moved to intervene’ then this factor weighs against intervention.” United States v. Tennessee, 260 F.3d 587, 592 (6th Cir. 2001) (quoting StupakThrall, 226 F.3d at 475). Here, as Plaintiff points out, in the nearly two and a half years that this case had been pending before the Motion to Intervene was filed, the parties engaged in more than two years of active litigation, including what Plaintiff characterizes as a “vigorous” exchange of written discovery, fifteen depositions, submission of Plaintiff’s expert report, and nine months of settlement negotiations, which culminated in an agreement in principle to settle the case that was placed on the record on August 17, 2018. At the time the instant Motion was filed, the parties were in the process of drafting a written settlement agreement, which was due to be submitted to
3 Plaintiff indicates in its sur-reply brief that five of the eleven additional individuals represented by Proposed Intervening Plaintiffs’ counsel at the time of the reply brief were not charging parties. (Docket no. 84 at 6.) And there are no facts on record that otherwise indicate that the five individuals are “persons aggrieved” under the statute such that they would have an unconditional statutory right to intervene in this case had they joined in the instant Motion.
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the court one month later. (See docket no. 66.) Proposed Intervening Plaintiffs cannot and do not dispute that the parties have made extensive progress in this case.
Instead, Proposed Intervening Plaintiffs argue that the case has not progressed to a point where intervention would be inappropriate because no formal or final settlement agreement has been reached or approved. (Docket no. 74 at 3-4.) Sixth Circuit precedent undermines the validity of this argument. In United States v. Tennessee, supra, the Sixth Circuit held that this first timeliness factor weighed strongly against intervention where, at the time the motion to intervene was filed, the initial settlement had been conditionally approved, all substantive issues had been resolved, and all that remained was judicial approval of the final settlement. 260 F.3d at 592-93 (emphasis added). In United States v. BASF-Inmont Corp., the motion to intervene was filed a year after the proposed consent decree was submitted to the district court; seven months after that, the district court denied the motion as untimely and approved the consent decree. 52 F.3d 326 (Table), 1995 WL 234648, at *1 (6th Cir. 1995). The Sixth Circuit held that the district court properly found the first timeliness factor to weigh against intervention because only one step in the litigation remained: the district court’s approval of the proposed consent decree. Id. at *3. The Sixth Circuit reasoned that motions to intervene filed during a proceeding’s final stages are not favorably viewed because “the purpose of the timeliness inquiry is to prevent ‘a tardy intervenor from derailing a lawsuit within sight of the terminal.’” Id. at *2 (quoting United States v. South Bend Community Sch. Corp., 710 F.2d 394, 396 (7th Cir. 1983)). See also S.H. v. Stickrath, 251 F.R.D. 293, 298-99 (S.D. Ohio 2008) (first timeliness factor militated against intervention where motion to intervene was filed three and a half years after the complaint was filed, three years into settlement negotiations, three months after the close of discovery, two months after the parties
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began drafting the settlement agreement, and two weeks before the settlement agreement was finalized and approved).
In this case, after nine months of settlement negotiations, the parties reached an agreement in principle to settle and recorded that agreement on August 17, 2018. On October 9, 2018, the parties stipulated to hold all deadlines in abeyance so that they could continue working on drafting a full settlement agreement, which was due to be submitted to the court by January 7, 2019.4 Like the cases discussed above, this case “was approaching the terminus thanks to a settlement that was the culmination of years of fact-finding and painstaking negotiations” when Proposed Intervening Plaintiffs filed their Motion to Intervene. See Stickrath, 251 F.R.D. at 298-99. All that remained was the submission and approval of the final settlement agreement. The extensive progress made by the parties combined with the fact that the case is on the “cusp of resolution” weighs against intervention. See id. at 299.5
B. The Purpose for which Intervention is Sought Plaintiff correctly points out that Proposed Intervening Plaintiffs failed to comply with Rule 24(c) by submitting with the instant Motion a pleading that sets out the claim or defense for which intervention is sought. (Docket no. 73 at 12.) As a result, Plaintiff argues, it is not entirely clear what role Proposed Intervening Plaintiffs seek to play in this case. (Id.) The Sixth Circuit takes a lenient approach to the procedural requirements of Rule 24(c), League of Women Voters of
4 This case was stayed from December 28, 2018, to February 5, 2019, due to the federal government shutdown that occurred between December 22, 2018, and January 25, 2019. (See docket nos. 77, 80, 85.) The parties resumed work on the details of the agreement in principle shortly thereafter. (See docket no. 85.) 5 Proposed Intervening Plaintiffs also argue under this factor that “the mere fact that a proposed settlement may be impending is irrelevant because the Proposed Intervenors were unaware that any settlement negotiation was taking place.” (Docket no. 74 at 4.) Proposed Intervening Plaintiffs’ argument is unavailing. Proposed Intervening Plaintiffs’ awareness of the parties’ settlement negotiations or the settlement agreement in principle is irrelevant to an analysis of this factor regarding the progression of the case, as their awareness of the settlement does not change the fact that this case has progressed to the point that a settlement agreement in principle has been reached.
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Michigan v. Johnson, 902 F.3d 572, 580 (6th Cir. 2018) (quoting Providence Baptist Church v. Hillandale Comm., Ltd., 425 F.3d 309, 314 (6th Cir. 2005)), and has excused a prospective intervenor’s failure to submit the required pleading when the motion to intervene sets out the claim or defense for which intervention is sought and neither party has claimed that any prejudice would result from granting the motion despite the absence of the pleading. Providence, 425 F.3d at 314.
In the instant Motion, Proposed Intervening Plaintiffs “demand a right to participate in the settlement and litigation process and determine their own fate in this litigation.” (Docket no. 68 at 5.) They assert that they have a different interest in this lawsuit than that of the EEOC and that they will seek different, victim-specific relief for the employment discrimination that they allegedly suffered at the hands of Defendants. (Id. at 1, 5.) For example, they may seek financial redress or a transfer to another facility that is not based on sex. (Id. at 5.)
Plaintiff acknowledges that courts have found that intervention is justified under the second timeliness factor when charging parties seek to protect their individual rights against the EEOC or the United States. (Docket no. 73 at 19 (citing EEOC v. SFI of Tenn., No. 14-02740, 2016 WL 8312159, at *2 (W.D. Tenn. Mar. 9, 2016); EEOC v. Spitzer Mgmt., Inc., Nos. 1:06-CV-02337, 1:08-CV-01326, 1:08-CV-01542, 2009 WL 10690282, at *2 (N.D. Ohio Feb. 24, 2009)).) But, Plaintiff argues, it is not clear whether there is any conflict of interests between Plaintiff and Proposed Intervening Plaintiffs in this case because the parties’ agreement in principle to settle includes significant individual relief in the form of monetary awards and priority transfers. (Id.)
Proposed Intervening Plaintiffs reply that their interests are not adequately represented by the agreement in principle. (Docket no. 74 at 4-5.) Under the terms of the agreement, Defendant MDOC agrees, among other things, to deposit $750,000 into a settlement fund that will be distributed to eligible female corrections officers who worked at WHV from 2009 to the present.
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(Docket no. 72 at 3; docket no. 73 at 10.) Plaintiff estimates that there are nearly 750 correctional officers who have worked at WHV since 2009. (Docket no. 73 at 24.) Proposed Intervening Plaintiffs assert that where the $750,000 will be split among 750 aggrieved women, “it strains credulity to label this as ‘significant individual relief,’ as Plaintiff has.” (Docket no. 74 at 4-5.) They further assert that because they suffered for years, it is reasonable to estimate that each of their cases has a value grossly in excess of $1,000, and the agreement in principle is therefore inadequate. (Id. at 5.)
Plaintiff is correct that the Motion to Intervene and the reply brief do not make clear the extent of the role that Proposed Intervening Plaintiffs seek to play in this case. The Court will address this issue below in its analysis of the fourth timeliness factor. However, it is clear from the Motion that Proposed Intervening Plaintiffs’ purpose in intervening is to vindicate their individual rights related to their claims of employment discrimination. This is enough to excuse their procedural failure to comply with Rule 24(c). Proposed Intervening Plaintiffs have also sufficiently demonstrated that their individual rights may not be adequately represented by the parties’ agreement in principle. Accordingly, this factor weighs in favor of intervention.
C. The Length of Time Preceding the Application during which the Proposed Intervenors Knew or Should Have Known of their Interest in the Case
Plaintiff asserts that this factor weighs against granting the Motion to Intervene because Proposed Intervening Plaintiffs have known or should have known that their interests may be affected by this case since its inception and have known of their interests in the terms of the proposed settlement since August 2018. (Docket no. 73 at 20-23.) Plaintiff argues that Proposed Intervening Plaintiffs cannot claim that they were unaware of the lawsuit, that they only recently learned of the settlement, or that Plaintiff and the DOJ did not represent them individually, given the numerous communications made by Plaintiff and the DOJ to the charging parties since the
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lawsuit began. (Id.) Plaintiff has submitted with its Response to the instant Motion the unsworn
declarations made pursuant to 28 U.S.C. § 1746 of Cecily Crawford, a DOJ paralegal who serves
as a point of contact with the charging parties who filed the underlying EEOC complaints, and
documentary evidence of the DOJ’s communications with the charging parties. (Docket nos. 73-
1, 84-1.) The following of those communications are particularly relevant to this factor:
• On March 4, 2016, March 7, 2016, and March 9, 2016, DOJ representatives contacted each of the Proposed Intervening Plaintiffs by telephone to notify them of the impending lawsuit and their preservation obligations. Ms. Crawford declares that during these telephone calls, DOJ representatives inquired as to whether each of the Proposed Intervening Plaintiffs had retained her own counsel, notified those without counsel that they would soon be receiving a letter regarding a litigation hold, informed them that the DOJ is not their lawyer and does not represent them personally in any case to be filed, and provided them with contact information should they have any questions. (Docket no. 73-1 ¶¶ 7, 9.)
• On March 25, 2016, Plaintiff sent the aforementioned letter to Proposed Intervening Plaintiffs to notify them of the impending lawsuit and their preservation obligations. (Docket no. 73-1 ¶ 8; docket no. 73-3.)
• On June 22, 2016, Plaintiff sent a letter to all of the charging parties, including Proposed Intervening Plaintiffs, which informed them of the filed lawsuit and enclosed a copy of the Complaint. This letter explicitly stated:
We wish to inform you that under Section 706(f) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f), you have the right to intervene in this action, if you choose to do so. We also wish to inform you that the Department of Justice represents the interests of the United States in this case and does not represent you individually. However, whether or not you chose to intervene, the United States will pursue this case in a manner it deems appropriate.
The letter also invited the charging parties to contact DOJ senior counsel if they had any questions. (Docket no. 73-1 ¶¶ 10-11; docket no. 73-4.)
• Ms. Crawford asserts that the DOJ received questions from the charging parties following the filing of the lawsuit, in response to which DOJ representatives utilized a script that included the following language: “DOJ is not your lawyer and does not represent you. Your decision to hire a lawyer to represent you with respect to this lawsuit is your personal choice. You can of course hire a lawyer, but it is not required. I cannot make a recommendation as to whether you should retain an attorney for yourself.” (Docket no. 73-1 ¶ 12; docket no. 84-1 ¶ 18.)
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• On August 23, 2018, August 24, 2018, and August 25, 2018, Ms. Crawford spoke with Ms. Joyce, Ms. Socier, and Ms. Thomas, respectively, and notified them of the agreement in principle to settle the case and that it includes $750,000 in compensatory damages and other provisions regarding changes to be made at WHV. Ms. Crawford further advised that the parties were working on the details of the settlement and that the DOJ would be in touch by mail and email once the details were finalized. Ms. Crawford also called and left a voicemail for Ms. Morton on August 24, 2018, regarding the same, but Ms. Morton did not return Ms. Crawford’s call. (Docket no. 73-1 ¶ 18.)
Proposed Intervening Plaintiffs assert that they were “wholly unaware” that their interests
were different than the DOJ’s until they sought independent counsel in December 2018, and the
Motion to Intervene was filed that same day. (Docket no. 74 at 5-7.) They admit that Plaintiff
informed them on several occasions that the DOJ “represents the interests of the United States in
this case and does not represent [Proposed Intervening Plaintiffs] individually.” But they assert
that the DOJ’s message in this regard was not clear. They explain that as non-lawyers, who often
do not grasp the implications of statutory or legal language, they reasonably interpreted the DOJ’s
message to mean that the DOJ represented their interests as a class. Proposed Intervening Plaintiffs
also contend that they were unaware of the ways in which their interests diverged from those of
the United States and that they mistakenly believed that the DOJ was representing their interests
as well. Proposed Intervening Plaintiffs claim that they relied on the DOJ to their detriment, who
never advised them to retain independent counsel.6 Proposed Intervening Plaintiffs claim that had
they known that the DOJ only represented the interests of the United States, which diverged
6 Proposed Intervening Plaintiffs suggest that the DOJ’s failure to advise them to seek independent counsel might constitute a violation of the ethics rules, e.g., Michigan Rule of Professional Conduct (MRPC) 1.8. (Docket no. 74 at 6-7.) This is a bold and unsupported accusation that is without merit. As Plaintiff points out, Proposed Intervening Plaintiffs do not explain why they believe that MRPC 1.8 required the DOJ to advise them to retain independent counsel, and Plaintiff argues that the relevance of the rule to the issue is not readily apparent. (Docket no. 84 at 2.) Indeed, MRPC 1.8 relates to conflicts of interest and prohibited transactions between lawyer and client and does not address the current issue. Plaintiff further points out that the comment to MRPC 4.3 provides that “[d]uring the course of a lawyer’s representation of a client, the lawyer should not give advice to an unrepresented person other than the advice to obtain counsel,” which, according to a Michigan court, “does not impose an affirmative duty on a lawyer to advise an unrepresented person to consult an attorney.” (Docket no. 84 at 2-3 n.1 (quoting Suck v. Sullivan, No. 207488, 1999 WL 33437564, at *2 n.4 (Mich. Ct. App. Aug. 27, 1999)).)
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sharply from their own, they would have sought independent counsel long ago. They conclude by arguing that “[T]he critical fact…is that…the motion to intervene was made as soon as it became clear to the respondent that the interests of [the respondent] would no longer be protected by [the other party].” (Docket no. 74 at 7 (quoting Clarke v. Baptist Mem’l Healthcare Corp., 641 Fed. Appx. 520, 523 (6th Cir. 2016) (quoting United Airlines, Inc. v. McDonald, 432 U.S. 385, 394 (1977))).)7
A prospective intervenor “that is aware that its interests may be impaired by the outcome of the litigation is obligated to seek intervention as soon as it is reasonably apparent that it is entitled to intervene.” United States v. Tennessee, 260 F.3d 587, 594 (6th Cir. 2001) (citing NAACP v. New York, 413 U.S. 345, 367 (1973); Cuyahoga Valley Ry. Co. v. Tracy, 6 F.3d 389, 396 (6th Cir. 1993); Stotts v. Memphis Fire Dep’t, 679 F.2d 579, 584 & n.3 (6th Cir. 1982) (applicants “should have attempted to intervene when they first became aware of the action, rather than adopting a ‘wait-and-see’ approach”)).
Proposed Intervening Plaintiffs do not dispute that they were aware at this lawsuit’s inception that it would implicate their interests, they dispute the timing of when they became aware that their interests would be impaired by the outcome of the lawsuit, i.e., when they became aware that their interests and those of the United States were not “one and the same” and that the DOJ did not represent their interests. On June 22, 2016, nine days after filing the Complaint in this matter, the DOJ explicitly informed Proposed Intervening Plaintiffs that the DOJ “represents the interests of the United States in this case and does not represent you individually.” The DOJ further informed Proposed Intervening Plaintiffs that they have a right to intervene in the action
7 The unpublished Sixth Circuit case cited by Proposed Intervening Plaintiffs for their conclusion above, Clarke v. Baptist Mem’l Healthcare Corp., supra, is non-binding and inapplicable here, as it narrowly relates to the timeliness of post-judgment motions to intervene for the limited purpose of appealing the denial of a class certification.
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under Section 706(f) of Title VII, but “the United States will pursue this case in a manner it deems appropriate” regardless of whether they choose to intervene. Also, a copy of the Complaint was enclosed with the June 22, 2016 communication sent to Proposed Intervening Plaintiffs, which, as Plaintiff points out, repeatedly states that the case was brought on behalf of the twenty-eight charging parties and similarly situated individuals. (Docket no. 84 at 4 (citing docket no. 1 ¶¶ 11, 35, 41, 43-45, 51, 55).) The June 22, 2016 communication and the Complaint were sufficient to make Proposed Intervening Plaintiffs aware that their interests may be impaired by the outcome of the litigation and that they were entitled to intervene. See United States v. Tennessee, supra. Accordingly, Proposed Intervening Plaintiffs should have moved to intervene shortly after receiving the DOJ’s June 22, 2016 communication.
Proposed Intervening Plaintiffs assert that their status as laypersons prevented them from understanding that the interests of the United States were different from theirs and that the DOJ did not represent their interests. Ms. Socier, Ms. Scott, and Ms. Joyce attest in almost identical affidavits that they did not fully grasp how severely their interests diverged from the DOJ’s interests until they met with independent counsel in December 2018. (Docket no. 74-1 ¶ 11; docket no. 74-2 ¶ 11; docket no. 74-3 ¶ 11.) Nevertheless, to excuse Proposed Intervening Plaintiffs’ failure to file a timely motion to intervene on the basis that they are laypersons and were unrepresented by counsel creates a slippery slope of allowing all laypeople to cry ignorance or misunderstanding of the law at the eleventh hour to the detriment or prejudice of the parties, and it alleviates their inherent responsibility to diligently pursue their own interests. Notably, nothing prevented Proposed Intervening Plaintiffs from contacting the DOJ attorneys to inquire about the meaning and implications of the June 22, 2016 communication or from consulting with
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independent counsel within a reasonable time after they received the June 22, 2016 communication.
Even if Proposed Intervening Plaintiffs were reasonably unaware that their interests may be impaired by the outcome of this case based on their purported misunderstanding of the DOJ’s June 22, 2016 communication and misguided reliance on the DOJ to represent their interests, Proposed Intervening Plaintiffs admit in their reply brief that they learned that their interests were impaired when they read about the August 17, 2018 agreement in principle in a news article and learned that the monetary award would be split amongst hundreds of other women. (See docket no. 74 at 5.) Proposed Intervening Plaintiffs do not indicate which news article they read or when they read it. Plaintiff, however, has produced two news articles regarding the agreement, one that was published by Gongwer, a website regarding Michigan policy and politics, on August 18, 2018, and an article published by the Detroit Free Press on August 31, 2018. (Docket nos. 73-1 ¶¶ 1921, 73-5, 73-6; docket no. 84 at 5.) Additionally, as noted above, Ms. Crawford notified Ms. Joyce, Ms. Socier, and Ms. Thomas of the settlement agreement in principle on August 23, 2018, August 24, 2018, and August 25, 2018, respectively. This demonstrates that Proposed Intervening Plaintiffs had constructive and/or actual notice of the terms of the settlement agreement in principle and its impact on their individual interests at the end of August, yet they did not seek the advice of independent counsel or move to intervene until the beginning of December.
Proposed Intervening Plaintiffs knew or reasonably should have known of their interests in this case, that their interests may be impaired by the outcome, and that they were entitled to intervene in June 2016, but they did not move to intervene until December 2018, approximately two and a half years later. This factor militates against intervention.
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D. The Prejudice to the Original Parties due to the Proposed Intervenors’ Failure to Promptly Intervene after they Knew or Reasonably Should Have Known of their Interest in the Case
Proposed Intervening Plaintiffs assert that the parties would experience no prejudice if intervention is permitted because nearly no time passed between when Proposed Intervening Plaintiffs learned that they had independent, unrepresented interests in this case and when they moved to intervene. (Docket no. 74 at 7-8.) As discussed above, however, Proposed Intervening Plaintiffs reasonably should have known that their individual interests would be implicated and possibly impaired by the outcome of this case in June 2016, two and a half years before they moved to intervene. During this time, the parties engaged in years of extensive discovery and months of settlement negotiations to reach a resolution. Notably, Proposed Intervening Plaintiffs could have participated in all of that had they moved to intervene in June 2016 or shortly thereafter. Instead, Proposed Intervening Plaintiffs moved to intervene in this matter at the eleventh hour, after a prospective settlement had been reached and one month before the final written settlement was due. They seek leave to “participate in the settlement and litigation process,” but the extent to which they want to “participate” is vague. Thus, if intervention is permitted, it could require the parties to relitigate this entire matter, from which the resulting prejudice is obvious. Even if Proposed Intervening Plaintiffs seek to only participate in the settlement negotiations, their intervention could require the parties to reexamine issues previously settled by the agreement in principle, and as Plaintiff points out, the intervention has the potential to destroy the agreement. (See docket no. 73 at 24.) The delay created by renegotiating the terms of the settlement would not only prejudice the parties but also the corrections officers who stand to benefit from the settlement. See United States v. BASF-Inmont Corp., 819 F. Supp. 601, 607 (E.D. Mich. 1993), aff’d, 52 F.3d 326 (6th Cir. 1995). Accordingly, this factor weighs against intervention.
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E. The Existence of Unusual Circumstances Militating Against or in Favor of Intervention
Plaintiff points out that the Sixth Circuit has considered the length of time that a case has been pending and the amount of time spent in settlement negotiations as additional factors to be weighed in determining the timeliness of a motion to intervene. (Docket no. 73 at 26 (citing Stotts, 679 F.2d at 585).) As Proposed Intervening Plaintiffs point out, however, the Sixth Circuit later stated that “[t]he absolute measure of time between the filing of the complaint and the motion to intervene is one of the least important of these circumstances.” (Docket no. 74 at 8 (citing StupakThrall, 226 F.3d at 475).) The Stupak court explained that the “more critical factor is what steps occurred along the litigation continuum during this period of time.” Stupak-Thrall, 226 F.3d at 475 (emphasis in original). This “more critical factor” is discussed extensively in section A above and militates against intervention. Despite the lessened importance of the two and a half years that the case had been pending and the nine months of settlement negotiations that had taken place when the instant Motion was filed, those factors still militate against intervention. Neither Proposed Intervening Plaintiffs nor the parties assert the existence of any other unusual circumstances related to the propriety of intervention, and the Court finds none.
F. Limited Intervention Rule 24 provides for limited-in-scope intervention, so “courts are not faced with an all-ornothing choice between grant or denial.” United States v. City of Detroit, 712 F.3d 925, 931-32 (6th Cir. 2013) (citing Fed. R. Civ. P. 24, advisory committee’s note, 1966 amendment (“Intervention of right ... may be subject to appropriate conditions or restrictions responsive among other things to the requirements of efficient conduct of the proceedings.”)). As noted above, Plaintiff asserts that it would not oppose intervention for the limited purpose of providing Proposed Intervening Plaintiffs with the right to advocate for maximizing their individual relief awards
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within the parameters of the existing agreement in principle. (Docket no. 73 at 26-27.) According to Plaintiff, this would mitigate the timeliness concerns caused by the delayed filing of the Motion to Intervene, preserve Proposed Intervening Plaintiffs’ ability to participate with regard to their individual rights, and ensure the efficient conduct of the remaining proceedings. (Id. at 27-28.) Defendants assert that if intervention is allowed, it should be for the limited purpose of advocating for the individuals at the Fairness Hearing. (Docket no. 72 at 5.) Proposed Intervening Plaintiffs do not indicate the amount of intervention that they seek, and they did not respond to the parties’ suggestions of limited intervention.
The August 17, 2018 settlement agreement in principle, as described by Defendants, contains an individual damage component and provides a structure for any individual to object to the proposed individual relief awards at a Fairness Hearing. (See docket no. 72 at 4-5.) Seemingly, the limited intervention that the parties suggest would not provide Proposed Intervening Plaintiffs with any additional rights or abilities than those awarded by the settlement agreement. A grant of the proposed limited intervention would therefore be an exercise in futility. The Court does not find any other form of limited intervention to be appropriate in this matter.
Having found that four of the five timeliness factors militate against intervention and that the limited intervention proposed by the parties would be futile, the Court will deny Proposed Intervening Plaintiffs’ Motion to Intervene as untimely.
IT IS THEREFORE ORDERED that Proposed Intervening Plaintiffs’ Motion to Intervene [68] is DENIED.
18

Case 2:16-cv-12146-PDB-MKM ECF No. 87 filed 03/29/19 PageID.2185 Page 19 of 19

NOTICE TO THE PARTIES Pursuant to Federal Rule of Civil Procedure 72(a), the parties have a period of fourteen days from the date of this Order within which to file any written appeal to the District Judge as may be permissible under 28 U.S.C. § 636(b)(1).

Dated: March 29, 2019

s/ Mona K. Majzoub MONA K. MAJZOUB UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE

I hereby certify that a copy of this Opinion and Order was served upon counsel of record on this date.

Dated: March 29, 2019

s/ Leanne Hosking Case Manager

19

 
 U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:16−cv−12146−PDB−MKM

United States of America v. Michigan Department of Corrections et al Assigned to: District Judge Paul D. Borman Referred to: Magistrate Judge Mona K. Majzoub Cause: 42:2000 Job Discrimination (Sex)
Plaintiff

Date Filed: 06/13/2016 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

United States of America

represented by Jennifer M. Swedish U.S. Department of Justice, Civil Rights Division Patrick Henry Building − Room 4912 950 Pennsylvania Avenue NW Washington, DC 20530 202−305−4069 Email: jennifer.swedish@usdoj.gov ATTORNEY TO BE NOTICED

Lisa Wilson Edwards U.S. Department of Justice Employment Litigation Section − Civil Rights Division 950 Pennsylvania Ave., N.W., PHB 4520 Washington, DC 20530 202−514−5695 Fax: 202−514−0655 Email: lisa.w.edwards@usdoj.gov ATTORNEY TO BE NOTICED

Nadia E. Said U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave. NW Washington, DC 20530 202−616−2988 Email: nadia.said@usdoj.gov ATTORNEY TO BE NOTICED

Sarah Pring Karpinen U.S. Attorney's Office 211 W. Fort Street Suite 2100 Detroit, MI 48226 313−226−9595 Email: skarpinen@osc.gov TERMINATED: 03/23/2018 ATTORNEY TO BE NOTICED

Susan K. DeClercq U.S. Attorney's Office 211 W. Fort Street Suite 2001 Detroit, MI 48226 313−226−9149 Email: Susan.DeClercq@usdoj.gov ATTORNEY TO BE NOTICED

Taryn W. Null U.S. Department of Justice Civil Rights Division − Employment

V. Intervenor Plaintiff Kenesha Thomas TERMINATED: 03/29/2019
Intervenor Plaintiff Crystal Socier TERMINATED: 03/29/2019
Intervenor Plaintiff Amy Morton TERMINATED: 03/29/2019
Intervenor Plaintiff Monique Joyce TERMINATED: 03/29/2019
V. Defendant Michigan Department of Corrections

Litigation Section 950 Pennsylvania Ave., NW Washington, DC 20530 202−616−3874 Fax: 202−514−1005 Email: taryn.null@usdoj.gov ATTORNEY TO BE NOTICED
Carol Wong U.S. Department of Justice Civil Rights Division − Employment Litigation Section 601 D Street, NW − Patrick Henry Building Washington, DC 20579 202−514−4286 Fax: 202−514−1105 Email: carol.wong@usdoj.gov TERMINATED: 11/22/2017 ATTORNEY TO BE NOTICED
represented by Jonathan R. Marko Marko Law 1300 Broadway Suite 500 Detroit, MI 48236 313−777−7529 Fax: 313−771−5785 Email: jon@jmarkolaw.com ATTORNEY TO BE NOTICED
represented by Jonathan R. Marko (See above for address) ATTORNEY TO BE NOTICED
represented by Jonathan R. Marko (See above for address) ATTORNEY TO BE NOTICED
represented by Jonathan R. Marko (See above for address) ATTORNEY TO BE NOTICED
represented by Bryan William Beach MI Attorney General's Office 525 W. Ottawa Street P.O. Box 30736 Lansing, MI 48909 517−373−6434 Fax: 517−373−2454 Email: beachb@michigan.gov LEAD ATTORNEY

Defendant Michigan, State of

ATTORNEY TO BE NOTICED
Scott A. Mertens MI Dept of Attorney General MDOC Division 525 W Ottawa PO Box 30217 Lansing, MI 48909 517−335−3550 Fax: 517−335−7157 Email: mertenss@michigan.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denise C. Barton MI Dept of Atty Gen Public Employment, Elections and Torts Division P.O. Box 30736 525 W. Ottawa St. Lansing, MI 48909−8236 517−373−6434 Fax: 517−373−2454 Email: AG−PEET@michigan.gov TERMINATED: 12/28/2018 ATTORNEY TO BE NOTICED
Jeanmarie Miller State of Michigan Department of Attorney General P.O. Box 30736 525 W. Ottawa St. Lansing, MI 48909 517−373−6434 Fax: 517−373−2454 Email: MillerJ51@michigan.gov ATTORNEY TO BE NOTICED
represented by Bryan William Beach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott A. Mertens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Denise C. Barton (See above for address) TERMINATED: 12/28/2018 ATTORNEY TO BE NOTICED
Jeanmarie Miller (See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/13/2016

# Docket Text
1 COMPLAINT filed by United States of America against All Defendants with Jury Demand. No summons requested. No Fee Required − US Government. County of 1st Plaintiff: USA − County Where Action Arose: Washtenaw − County of 1st Defendant:

06/14/2016 06/15/2016 06/17/2016 07/14/2016
07/27/2016
08/17/2016 08/17/2016
08/29/2016
08/30/2016
10/04/2016 10/05/2016 10/06/2016 10/06/2016 10/06/2016
10/13/2016 11/28/2016 12/01/2016 05/30/2017 05/31/2017
06/21/2017

Washtenaw. [Previously dismissed case: No] [Possible companion case(s): None] (Wong, Carol) (Entered: 06/13/2016)
2 NOTICE of Appearance by Sarah Pring Karpinen on behalf of United States of America. (Karpinen, Sarah) (Entered: 06/14/2016)
3 ATTORNEY APPEARANCE: Lisa Wilson Edwards appearing on behalf of United States of America (Edwards, Lisa) (Entered: 06/15/2016)
4 NOTICE of Appearance by Taryn W. Null on behalf of United States of America. (Null, Taryn) (Entered: 06/17/2016)
5 ORDER OF DESIGNATION OF DISTRICT JUDGE TO HEAR AND DETERMINE CASE NO. 2:16−CV−12146 UNDER 42 U.S.C. § 2000e−6(b). Signed by District Judge Denise Page Hood. (DPar) (Entered: 07/14/2016)
6 AMENDED COMPLAINT with Jury Demand filed by United States of America against United States of America. NO NEW PARTIES ADDED. (Wong, Carol) (Entered: 07/27/2016)
7 CERTIFICATE of Service/Summons Returned Executed. Michigan, State of served on 8/8/2016, answer due 8/29/2016. (Wong, Carol) (Entered: 08/17/2016)
8 CERTIFICATE of Service/Summons Returned Executed. Michigan Department of Corrections served on 8/8/2016, answer due 8/29/2016. (Wong, Carol) (Entered: 08/17/2016)
9 ANSWER to Complaint with Affirmative Defenses with Jury Demand −Reliance on Jury Demand with Certificate of Service by Michigan Department of Corrections, Michigan, State of. (Miller, Jeanmarie) (Entered: 08/29/2016)
10 NOTICE TO APPEAR: Scheduling Conference set for 10/17/2016 04:00 PM before District Judge Paul D. Borman *SEE NOTICE FOR FURTHER INFORMATION* (DTof) (Entered: 08/30/2016)
11 DISCOVERY plan jointly filed pursuant to Federal Rules of Civil Procedure 26(f) (Wong, Carol) (Entered: 10/04/2016)
TEXT−ONLY NOTICE: Scheduling Conference set for 10/17/2016 is Cancelled. (DTof) (Entered: 10/05/2016)
12 STIPULATION AND ORDER Regarding Discovery and ESI. Signed by District Judge Paul D. Borman. (DTof) (Entered: 10/06/2016)
13 STIPULATION AND ORDER Regarding Bifurcation of Discovery and Trial. Signed by District Judge Paul D. Borman. (DTof) (Entered: 10/06/2016)
14 SCHEDULING ORDER as to Liability: Fact Discovery due by 7/17/2017; Dispositive Motion Cut−off set for 1/12/2018 − Signed by District Judge Paul D. Borman. (Refer to image for additional dates) (DTof) (Entered: 10/06/2016)
15 NOTICE of Appearance by Nadia E. Said on behalf of United States of America. (Said, Nadia) (Entered: 10/13/2016)
16 Joint MOTION for Protective Order by United States of America. (Edwards, Lisa) (Entered: 11/28/2016)
17 STIPULATED PROTECTIVE ORDER − Signed by District Judge Paul D. Borman. (DTof) (Entered: 12/01/2016)
18 Joint MOTION TO EXTEND Deadlines by United States of America. (Null, Taryn) (Entered: 05/30/2017)
19 ORDER Granting 18 Joint MOTION TO EXTEND Deadlines filed by United States of America ( Fact Discovery due by 9/15/2017; Dispositive Motion Cut−off set for 3/13/2018); see order for further deadlines. Signed by District Judge Paul D. Borman. (DTof) (Entered: 05/31/2017)
20 Joint MOTION to Amend Protective Order by United States of America. (Said, Nadia) (Entered: 06/21/2017)

06/23/2017 06/23/2017 06/26/2017 06/26/2017 07/07/2017
07/24/2017
07/31/2017
08/02/2017 08/03/2017 09/07/2017 09/14/2017 09/14/2017 09/14/2017 09/27/2017 09/28/2017 10/26/2017 11/07/2017

21 STIPULATED AMENDED PROTECTIVE ORDER − Signed by District Judge Paul D. Borman. (DTof) (Entered: 06/23/2017)
22 ORDER REFERRING OTHER MATTERS to Magistrate Judge Majzoub : Settlement Conference. Signed by District Judge Paul D. Borman. (DTof) (Entered: 06/23/2017)
23 NOTICE AND ORDER TO APPEAR: Settlement Conference set for 9/7/2017 09:30 AM before Magistrate Judge Mona K. Majzoub (LBar) (Entered: 06/26/2017)
24 CORRECTED NOTICE TO APPEAR: Settlement Conference set for 9/7/2017 09:30 AM before Magistrate Judge Mona K. Majzoub (LBar) (Entered: 06/26/2017)
25 MOTION to Compel Discovery by All Plaintiffs. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5, # 7 Exhibit Exhibit 6, # 8 Exhibit Exhibit 7, # 9 Exhibit Exhibit 8, # 10 Exhibit Exhibit 9, # 11 Exhibit Exhibit 10, # 12 Exhibit Exhibit 11, # 13 Exhibit Exhibit 12, # 14 Exhibit Exhibit 13, # 15 Exhibit Exhibit 14, # 16 Exhibit Exhibit 15, # 17 Exhibit Exhibit 16, # 18 Exhibit Exhibit 17, # 19 Exhibit Exhibit 18, # 20 Exhibit Exhibit 19, # 21 Exhibit Exhibit 20, # 22 Exhibit Exhibit 21, # 23 Exhibit Exhibit 22) (Edwards, Lisa) (Entered: 07/07/2017)
26 RESPONSE to 25 MOTION to Compel Discovery with Certificate of Service filed by Michigan Department of Corrections, Michigan, State of. (Attachments: # 1 Index of Exhibits 1−2, # 2 Exhibit 1 − Retention Schedule, # 3 Exhibit 2 − Vallad Deposition Transcript) (Miller, Jeanmarie) (Entered: 07/24/2017)
27 REPLY to Response re 25 MOTION to Compel Discovery filed by United States of America. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Ex. 1− P. Nelson Deposition Transcript, # 3 Exhibit Ex. 2− Notice of Charge of Discrimination) (Wong, Carol) (Entered: 07/31/2017)
28 Joint MOTION TO EXTEND Deadlines by United States of America. (Wong, Carol) (Entered: 08/02/2017)
29 ORDER Granting 28 Joint MOTION TO EXTEND Deadlines filed by United States of America. ( Fact Discovery due by 1/29/2018) − Signed by District Judge Paul D. Borman. (DTof) (Entered: 08/03/2017)
30 AMENDED NOTICE AND ORDER TO APPEAR: Settlement Conference re−set for 11/7/2017 09:30 AM before Magistrate Judge Mona K. Majzoub (LBar) (Entered: 09/07/2017)
31 ORDER REFERRING MOTION to Magistrate Judge Mona K. Majzoub: 25 MOTION to Compel Discovery filed by United States of America. Signed by District Judge Paul D. Borman. (DTof) (Entered: 09/14/2017)
32 Notice of Determination of Motion Without Oral Argument re 25 MOTION to Compel Discovery. Joint statement of resolved/unresolved issues due 10/26/17. (LHos) (Entered: 09/14/2017)
Set Deadline as to 25 MOTION to Compel Discovery. Statement of Resolved/Unresolved Issues due by 10/26/2017 (LHos) (Entered: 09/14/2017)
33 Joint MOTION TO EXTEND Expert Disclosure Deadlines by United States of America. (Null, Taryn) (Entered: 09/27/2017)
34 ORDER granting 33 Motion to Extend. Signed by District Judge Paul D. Borman. (DTof) (Entered: 09/28/2017)
35 Joint STATEMENT of Resolved/Unresolved Issues re: Plaintiff's Motion to Compel by United States of America (Attachments: # 1 Exhibit Lyman Deposition Transcript Excerpts) (Said, Nadia) (Entered: 10/26/2017)
Minute Entry for proceedings before Magistrate Judge Mona K. Majzoub: Settlement Conference held on 11/7/2017. Disposition: No settlement reached (LHos) (Entered: 11/07/2017)

11/20/2017 11/22/2017 11/27/2017 11/28/2017 11/30/2017
12/08/2017
12/12/2017 12/13/2017
12/13/2017
12/18/2017 12/18/2017 12/21/2017 01/03/2018

36 NOTICE by United States of America of Substitution of Counsel (Swedish, Jennifer) (Entered: 11/20/2017)
37 ORDER of Attorney Substitution. Signed by District Judge Paul D. Borman. (DTof) (Entered: 11/22/2017)
38 NOTICE by United States of America of withdrawal of 25 MOTION to Compel Discovery . (Swedish, Jennifer) (Entered: 11/27/2017)
39 Joint MOTION TO EXTEND Deadlines by United States of America. (Said, Nadia) (Entered: 11/28/2017)
40 SCHEDULING ORDER:( Discovery due by 5/18/2018, Dispositive Motion Cut−off set for 6/29/2018, Final Pretrial Conference set for 2/19/2019 02:00 PM before District Judge Paul D. Borman, Jury Trial set for 3/18/2019 10:00 AM before District Judge Paul D. Borman), Motions GRANTED: 39 Joint MOTION TO EXTEND Deadlines filed by United States of America. Signed by District Judge Paul D. Borman. (Refer to image for additional dates) (DTof) (Entered: 11/30/2017)
41 SEALED EXHIBIT by United States of America. (Attachments: # 1 Document Continuation Brief in support of Motion To Seal, # 2 Index of Exhibits Index of Exhibits, # 3 Exhibit Ex 1: Depo of A. Stewart, # 4 Exhibit Ex 2: Depo of J. Patterson, # 5 Exhibit Ex 3: Depo of L. Evans, # 6 Exhibit Ex 4: 2015 Post Orders, # 7 Exhibit Ex 5: 2016 Post Orders, # 8 Exhibit Ex 6: Depo of M. Warren, # 9 Exhibit Ex 15: 2017 Post Orders, # 10 Exhibit Ex 16: Custodial Staff Assignment Sheets, # 11 Exhibit Ex 17: Depo of J. DeAngelo−Kipp) (Edwards, Lisa) (Entered: 12/08/2017)
42 ORDER Granting Joint Motion to Seal Exhibits. Signed by District Judge Paul D. Borman. (DTof) (Entered: 12/12/2017)
43 MOTION for Sanctions by United States of America. (Attachments: # 1 Document Continuation Brief Supporting Motion For Sanctions, # 2 Index of Exhibits Index of Exhibits, # 3 Exhibit Ex 7: EEOC Charges, # 4 Exhibit Ex 8: Letter to MDOC from EEOC, # 5 Exhibit Ex 9: EEOC Letter of Determination, # 6 Exhibit Ex 10: Letter from MDOC to DOJ, # 7 Exhibit Ex 11: Depo Transcript of P Nelson, # 8 Exhibit Ex 12: Letter from DOJ to MDOC, # 9 Exhibit Ex 13: State Rec. Retention, Gen. Sch. 5, # 10 Exhibit Ex 14: Retention Sch. for Correctional Fac. Item 33661) (Edwards, Lisa) (Entered: 12/13/2017)
44 SEALED EXHIBIT re 43 MOTION for Sanctions by United States of America. (Attachments: # 1 Exhibit Ex 1: Depo Transcript of A Stewart, # 2 Exhibit Ex 2: Depo Transcrip of J Patterson, # 3 Exhibit Ex 3: Depo Transcript of L Evans, # 4 Exhibit Ex 4: 2015 Post Orders, # 5 Exhibit Ex 5: 2016 Post Orders, # 6 Exhibit Ex 6: Depo Transcript of M Warren, # 7 Exhibit Ex 15: 2017 Post Orders, # 8 Exhibit Ex 16: Custodial Staff Assignment Sheets, # 9 Exhibit Ex 17: Depo Transcript of J DeAngelo−Kipp) (Edwards, Lisa) (Entered: 12/13/2017)
45 ORDER REFERRING MOTION to Magistrate Judge Mona K. Majzoub: 43 MOTION for Sanctions filed by United States of America. Signed by District Judge Paul D. Borman. (DTof) (Entered: 12/18/2017)
46 Notice of Determination of Motion Without Oral Argument re 43 MOTION for Sanctions (LHos) (Entered: 12/18/2017)
47 STIPULATED ORDER EXTENDING TIME FOR RESPONSE AND REPLY BRIEFING IN REFERENCE TO PLAINTIFF'S MOTION FOR SANCTIONS 43 . Response due by 1/3/2018 and Reply due by 1/17/2018 − Signed by Magistrate Judge Mona K. Majzoub. (LHos) (Entered: 12/21/2017)
48 RESPONSE to 43 MOTION for Sanctions with Certificate of Service filed by Michigan Department of Corrections, Michigan, State of. (Attachments: # 1 Index of Exhibits 1−11, # 2 Exhibit 1 − Settlement Agreement, # 3 Exhibit 2 − Settlement Agreement, # 4 Exhibit 3 − Settlement Agreement, # 5 Exhibit 4 − March 27, 2009 letter from J. Stephens, # 6 Exhibit 5 − excerpts of Transcript Deposition of Warren, # 7 Exhibit 6 − excerpts of Transcript Deposition of Evans, # 8 Exhibit 7 − excerpts of Transcript of Deposition of Curtis, # 9 Exhibit 8 − Buckner v MDOC, 11/30/2016 Order, # 10 Exhibit 9 − Buckner v MDOC, 10/26/2016 Order, # 11 Exhibit 10 − March 22, 2016 letter from T. Lopez, # 12 Exhibit 11 − Custodial Satff Assignment

01/10/2018 01/12/2018
01/17/2018 03/07/2018 03/12/2018
03/22/2018 03/23/2018 04/23/2018 04/30/2018 06/06/2018 06/07/2018 06/11/2018 06/13/2018
06/29/2018
07/02/2018 07/12/2018 07/12/2018

Sheets) (Miller, Jeanmarie) (Entered: 01/03/2018)
49 Joint MOTION TO EXTEND Deadlines by United States of America. (Null, Taryn) (Entered: 01/10/2018)
50 SCHEDULING ORDER: Facilitation information due by 4/16/2018; Fact Discovery due by 6/21/2018; Dispositive Motion Cut−off set for 8/31/2018; Final Pretrial Conference set for 4/9/2019 02:00 PM; Jury Trial set for 4/23/2019 10:00 AM before District Judge Paul D. Borman − Signed by District Judge Paul D. Borman. (Refer to image for additional dates) (DTof) (Entered: 01/12/2018)
51 REPLY to Response re 43 MOTION for Sanctions filed by United States of America. (Swedish, Jennifer) (Entered: 01/17/2018)
52 Joint MOTION TO EXTEND Deadlines by United States of America. (Null, Taryn) (Entered: 03/07/2018)
53 ORDER Extending Scheduling Order Deadlines ( Discovery due by 8/9/2018; Dispositive Motion Cut−off set for 10/18/2018; , Final Pretrial Conference set for 5/14/2019 02:00 PM; , Jury Trial set for 5/28/2019 10:00 AM before District Judge Paul D. Borman) − Signed by District Judge Paul D. Borman. (DTof) (Entered: 03/12/2018)
54 NOTICE by United States of America of Substitution of Counsel (DeClercq, Susan) (Entered: 03/22/2018)
55 ORDER of Attorney Substitution. Signed by District Judge Paul D. Borman. (DTof) (Entered: 03/23/2018)
56 ORDER REFERRING OTHER MATTERS to Magistrate Judge Majzoub : Settlement Conference. Signed by District Judge Paul D. Borman. (DTof) (Entered: 04/23/2018)
57 NOTICE AND ORDER TO APPEAR: Settlement Conference set for 6/6/2018 at 09:30 PM before Magistrate Judge Mona K. Majzoub in Courtroom 642 (LHos) (Entered: 04/30/2018)
Minute Entry for proceedings before Magistrate Judge Mona K. Majzoub: Settlement Conference held on 6/6/2018. (LHos) (Entered: 06/07/2018)
58 MOTION TO EXTEND Time to File Expert Witness Reports and Modify Scheduling Order by Michigan Department of Corrections, Michigan, State of. (Barton, Denise) (Entered: 06/07/2018)
59 RESPONSE to 58 MOTION TO EXTEND Time to File Expert Witness Reports and Modify Scheduling Order filed by United States of America. (Null, Taryn) (Entered: 06/11/2018)
60 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 7/12/2018 at 10:00 AM before Magistrate Judge Mona K. Majzoub. Plaintiff shall initiate the conference call and then include the Court when all parties are available by calling 313−234−5205. (LHos) (Entered: 06/13/2018)
61 ORDER REFERRING MOTION to Magistrate Judge Mona K. Majzoub: 58 MOTION TO EXTEND Time to File Expert Witness Reports and Modify Scheduling Order filed by Michigan Department of Corrections, Michigan, State of. Signed by District Judge Paul D. Borman. (DTof) (Entered: 06/29/2018)
62 Notice of Determination of Motion Without Oral Argument re 58 MOTION TO EXTEND Time to File Expert Witness Reports and Modify Scheduling Order (LHos) (Entered: 07/02/2018)
Minute Entry for proceedings before Magistrate Judge Mona K. Majzoub: Telephonic Status Conference held on 7/12/2018. (LHos) (Entered: 07/12/2018)
63 OPINION AND ORDER GRANTING IN PART DEFENDANTS' MOTION FOR ENLARGEMENT OF TIME TO FILE EXPERT WITNESS REPORTS AND MODIFY SCHEDULING ORDER 58 . Dispositive Motion Cutoff re−set for 12/3/2018; Expert Discovery Cutoff re−set for 9/24/18. (Refer to image for additional dates) − Signed by Magistrate Judge Mona K. Majzoub. (LHos) (Entered:

07/12/2018 07/23/2018 08/17/2018 08/17/2018 10/09/2018 12/03/2018 12/03/2018 12/03/2018 12/10/2018
12/13/2018 12/17/2018 12/17/2018
12/21/2018 12/26/2018 12/28/2018
12/28/2018 01/28/2019 01/29/2019 02/05/2019

07/12/2018)
64 STIPULATED ORDER STAYING CASE − Signed by District Judge Paul D. Borman. (DTof) (Entered: 07/12/2018)
65 NOTICE AND ORDER TO APPEAR: Settlement Conference set for 8/17/2018 at 09:30 AM before Magistrate Judge Mona K. Majzoub in Courtroom 642 (LHos) (Entered: 07/23/2018)
Minute Entry for proceedings before Magistrate Judge Mona K. Majzoub: Settlement Conference held on 8/17/2018. Disposition: Settlement reached. (Court Reporter: Digitally Recorded) (LHos) (Entered: 08/17/2018)
Minute Entry for proceedings before Magistrate Judge Mona K. Majzoub: Motion for Sanctions 43 withdrawn on the record by United States of America. (Court Reporter: Digitally Recorded) (LHos) (Entered: 08/17/2018)
66 STIPULATED ORDER Holding all Deadlines in abeyance. Signed by District Judge Paul D. Borman. (DTof) (Entered: 10/09/2018)
67 NOTICE of Appearance by Jonathan R. Marko on behalf of Kenesha Thomas, Crystal Socier, Amy Morton, Monique Joyce. (Marko, Jonathan) (Entered: 12/03/2018)
68 MOTION to Intervene by Monique Joyce, Amy Morton, Crystal Socier, Kenesha Thomas. (Marko, Jonathan) (Entered: 12/03/2018)
69 CERTIFICATE OF SERVICE re 68 MOTION to Intervene by Monique Joyce, Amy Morton, Crystal Socier, Kenesha Thomas Certificate of Compliance (Marko, Jonathan) (Entered: 12/03/2018)
70 ORDER REFERRING MOTION to Magistrate Judge Mona K. Majzoub: 68 MOTION to Intervene filed by Kenesha Thomas, Monique Joyce, Amy Morton, Crystal Socier. Signed by District Judge Paul D. Borman. (DTof) (Entered: 12/10/2018)
71 Notice of Determination of Motion Without Oral Argument re 68 MOTION to Intervene (LHos) (Entered: 12/13/2018)
72 RESPONSE to 68 MOTION to Intervene filed by Michigan Department of Corrections, Michigan, State of. (Miller, Jeanmarie) (Entered: 12/17/2018)
73 RESPONSE to 68 MOTION to Intervene filed by United States of America. (Attachments: # 1 Crawford Declaration, # 2 Exhibit A to Crawford Decl., # 3 Exhibit B to Crawford Decl., # 4 Exhibit C to Crawford Decl., # 5 Exhibit D to Crawford Decl., # 6 Exhibit E to Crawford Decl.) (Swedish, Jennifer) (Entered: 12/17/2018)
74 REPLY to Response re 68 MOTION to Intervene filed by Monique Joyce, Amy Morton, Crystal Socier, Kenesha Thomas. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Marko, Jonathan) (Entered: 12/21/2018)
75 MOTION to Stay Case in Light of Lapse of Appropriations by United States of America. (Swedish, Jennifer) (Entered: 12/26/2018)
76 ORDER of Attorney Substitution with stipulation. Attorney Scott A. Mertens,Bryan William Beach for Michigan Department of Corrections,Scott A. Mertens,Bryan William Beach for Michigan, State of added. Signed by District Judge Paul D. Borman. (DTof) (Entered: 12/28/2018)
77 ORDER granting 75 Motion to Stay. Signed by District Judge Paul D. Borman. (DTof) (Entered: 12/28/2018)
78 MOTION to Stay Motion to Lift Stay by United States of America. (Edwards, Lisa) (Entered: 01/28/2019)
79 Amended MOTION Unopposed Lift Stay Of Case by United States of America. (Edwards, Lisa) (Entered: 01/29/2019)
80 ORDER granting 79 Motion to lift stay. Signed by District Judge Paul D. Borman. (DTof) (Entered: 02/05/2019)

02/05/2019 02/06/2019 02/07/2019
02/07/2019 02/11/2019 03/14/2019 03/29/2019

81 MOTION for Leave to File Surreply to Motion to Intervene by United States of America. (Attachments: # 1 Exhibit Proposed Surreply to Motion to Intervene, # 2 Exhibit Second Crawford Declaration) (Null, Taryn) (Entered: 02/05/2019)
82 ORDER REFERRING MOTION to Magistrate Judge Mona K. Majzoub: 81 MOTION for Leave to File Surreply to Motion to Intervene filed by United States of America. Signed by District Judge Paul D. Borman. (DTof) (Entered: 02/06/2019)
83 ORDER GRANTING UNITED STATES' MOTION FOR LEAVE TO FILE SURREPLY TO PROPOSED INTERVENING PLAINTIFFS' REPLY TO DEFENDANTS' RESPONSE AND PLAINTIFF'S MEMORANDUM IN RESPONSE TO INTERVENING PLAINTIFFS' MOTION TO INTERVENE 81 . The United States will file its previously submitted surreply filed as an attachment to the Motion for Leave as a separate docket entry by February 11, 2019 − Signed by Magistrate Judge Mona K. Majzoub. (LHos) (Entered: 02/07/2019)
84 SUR−REPLY re 68 MOTION to Intervene filed by United States of America. (Attachments: # 1 Exhibit) (Null, Taryn) (Entered: 02/07/2019)
85 NOTICE by United States of America Joint Statement Regarding Status of Settlement Agreement (Edwards, Lisa) (Entered: 02/11/2019)
86 MOTION for Order for Immediate Consideration of Proposed Plaintiffs' Motion to Intervene by Monique Joyce, Amy Morton, Crystal Socier, Kenesha Thomas. (Marko, Jonathan) (Entered: 03/14/2019)
87 OPINION AND ORDER DENYING PROPOSED INTERVENING PLAINTIFFS' MOTION TO INTERVENE 68 − Signed by Magistrate Judge Mona K. Majzoub. (LHos) (Entered: 03/29/2019)