Case 2:06-cv-02069-KHV-GLR Document 3 Filed 03/09/2006 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

)

Plaintiff,

)

)

CIVIL ACTION NO.

v.

)

2:06-CV-2069

)

BURLINGTON NORTHERN SANTA FE

)

RAILWAY CO. and

)

TRANSPORTATION COMMUNICATIONS )

INTERNATIONAL UNION,

)

)

Defendants.

)

FIRST AMENDED COMPLAINT

Nature of the Action

This is an action under the Age Discrimination in Employment Act to correct unlawful

employment practices on the basis of age and to provide appropriate relief to Ellen Foste, Erma

Gossage and other similarly situated individuals who were discriminated against because of their

age. Plaintiff alleges that Defendant Burlington Northern Santa Fe Railway Co. and Defendant

Transportation Communications International Union eliminated covered employees' protected

status under the collective bargaining agreement at age seventy because of their age. Plaintiff

further alleges that Defendant Burlington Northern Santa Fe Railway Co. failed and refused to

allow otherwise eligible employees to participate in Voluntary Reserve Board Programs because

of their age.

Jurisdiction and Venue

Case 2:06-cv-02069-KHV-GLR Document 3 Filed 03/09/2006 Page 2 of 8
1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 7(b) of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 626(b) (the "ADEA"), which incorporates by reference Sections 16(c) and 17 of the Fair Labor Standards Act of 1938 (the "FLSA"), as amended, 29 U.S.C. §§216(c) and 217.
2. The employment practices alleged to be unlawful were and are being committed within the jurisdiction of the United States District Court for the District of Kansas.
Parties 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of the ADEA and is expressly authorized to bring this action by Section 7(b) of the ADEA, 29 U.S.C. § 626(b), as amended by Section 2 of Reorganization Plan No. 1 of 1978, 92 Stat. 3781, and by Public Law 98-532 (1984), 98 Stat. 2705. 4. At all relevant times, Defendant, Burlington Northern Santa Fe Railway Co. ("BNSF") has continuously been a Delaware Corporation doing business in the State of Kansas and the County of Johnson and has continuously had at least 20 employees. 5. At all relevant times, Defendant BNSF has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 11(b), (g) and (h) of the ADEA, 29 U.S.C. §§ 630(b), (g) and (h).
6. At all relevant times, Defendant Transportation Communications International Union ("TCU") has continuously been an association of participating employees which deals
2

Case 2:06-cv-02069-KHV-GLR Document 3 Filed 03/09/2006 Page 3 of 8
with employers concerning terms and conditions of employment, and has continuously had at least 25 members. At all relevant times, TCU has been a recognized collective bargaining representative for employees of the Defendant BNSF.
7. At all relevant times, Defendant TCU has continuously been a labor organization engaged in an industry affecting commerce within the meaning of Sections 11(d) and (e) of the ADEA, 29 U.S.C. §§ 630(d) and (e).
Conciliation 8. Prior to institution of this lawsuit, the Commission's representatives attempted to eliminate the unlawful employment practices alleged below and to effect voluntary compliance with the ADEA through informal methods of conciliation, conference and persuasion within the meaning of Section 7(b) of the ADEA, 29 U.S.C. § 626(b).
Statement of Claims 9. Since at least November 22, 1988, Defendant BNSF and Defendant TCU have engaged in unlawful employment practices at BNSF's facilities throughout the United States, including those in Kansas City, Kansas, in violation of Section 4(d) of the ADEA, 29 U.S.C. § 623 (d). Defendant BNSF and the Defendant TCU were and are parties to a Mediation Agreement that amends the collective bargaining agreement covering clerical employees to eliminate a covered employee's protected status when he/she becomes eligible for an annuity at age seventy.
10. Since at least November 22, 1988, Defendant BNSF has engaged in unlawful
3

Case 2:06-cv-02069-KHV-GLR Document 3 Filed 03/09/2006 Page 4 of 8
employment practices at its facilities throughout the United States, including those in Kansas City, Kansas, in violation of Section 4(d) of the ADEA, 29 U.S.C. § 623 (d). Defendant BNSF has failed and refused to allow otherwise eligible employees to participate in Voluntary Reserve Board Programs, which it has offered to clerical employees in certain of its facilities, because of their age.
11. The effect of the practices complained of in paragraphs 10 and 11 above has been to deprive certain of Defendant BNSF's employees of equal employment opportunities and otherwise adversely affect their status as employees, because of their age.
12. The unlawful employment practices complained of in paragraphs 10 and 11 above were willful within the meaning of Section 7(b) of the ADEA, 29 U.S.C. §626(b).
Prayer for Relief Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant BNSF, its officers, successors, assigns and all persons in active concert or participation with it, from:
(1) eliminating covered employees' protected status under the collective bargaining agreement because of their age.
(2) refusing to allow otherwise eligible employees from participating in any Voluntary Reserve Board Program offered to employees because of their age; and
(3) engaging in any other employment practice which discriminates on the basis of age against individuals 40 years of age and older.
B. Grant a permanent injunction enjoining Defendant TCU, its officers, successors,
4

Case 2:06-cv-02069-KHV-GLR Document 3 Filed 03/09/2006 Page 5 of 8
assigns and all persons in active concert or participation with it, from eliminating covered employees' protected status under the collective bargaining agreement because of their age and any other employment practice which discriminates on the basis of age against individuals 40 years of age and older.
C. Order Defendant BNSF to institute and carry out policies, practices and programs which provide equal employment opportunities for individuals 40 years of age and older, and which eradicate the effects of its past and present unlawful employment practices.
D. Order Defendant TCU to institute and carry out policies, practices and programs which provide equal employment opportunities for individuals 40 years of age and older, and which eradicate the effects of its past and present unlawful employment practices.
E. Grant a judgment requiring Defendant BNSF to pay appropriate back wages in an amount to be determined at trial, an equal sum as liquidated damages or prejudgment interest in lieu thereof to individuals whose wages are being unlawfully withheld as a result of the acts complained of above, including but not limited to those employees named on Exhibit A, attached hereto, and all other employees who were otherwise eligible but who were denied the opportunity to participate in Voluntary Reserve Board Programs because of their age.
F. Order Defendant BNSF to make whole all individuals adversely affected by the unlawful practices described above, by providing the affirmative relief necessary to eradicate the effects of its unlawful practices including but not limited to permitting those employees named on Exhibit A, attached hereto, and all other employees who were otherwise eligible but who were denied the
5

Case 2:06-cv-02069-KHV-GLR Document 3 Filed 03/09/2006 Page 6 of 8
opportunity to participate in a Voluntary Reserve Board Program because of their age to participate in a Voluntary Reserve Board Program or to obtain the benefits of such a program.
G. Order Defendant TCU to make whole all individuals adversely affected by the unlawful practices described above, by providing affirmative relief necessary to eradicate the effects of its unlawful practices including but not limited to reinstating the protected status under the collective bargaining agreement for Ellen Foste and all other employees whose protected status under the collective bargaining agreement was eliminated because of their age.
H. Grant such further relief as the Court deems necessary and proper in the public interest.
I. Award the Commission its costs of this action. Designation of Place of Trial
Plaintiff designates Kansas City, Kansas as the place of trial of this action. Respectfully submitted, JAMES L. LEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel
/s/ Robert G. Johnson ROBERT G. JOHNSON Regional Attorney
/s/ Barbara A. Seely BARBARA A. SEELY Supervisory Trial Attorney
6

Case 2:06-cv-02069-KHV-GLR Document 3 Filed 03/09/2006 Page 7 of 8
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION St. Louis District Office Robert A. Young Federal Bldg. 1222 Spruce Street, Room 8.100 St. Louis, MO 63103 (314) 539-7914 ATTORNEYS FOR PLAINTIFF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
EXHIBIT A 7

Case 2:06-cv-02069-KHV-GLR Document 3 Filed 03/09/2006 Page 8 of 8
Ellen Foste Erma Gossage Robert N. Couchillon Jackie L. Byars Billie J. Turrentine John M. McCright Ron C. Anderson Joyce D. Schoenfled John B. Huss Perry L. Skinner Anthony R. Bagzis Henry E. Ruane Larry E. Baysden Carol L. Young Gary W. Humbarger Wesley E. McKinley Richard L. Smith Hal C. Matter Donald J. Perkins Jean A. Wilson Jerrald L. Williams Larry G. Kelly Ray E. Porrino William L. Martin Dorothy L. Sherretts John S. Stell Pricscilla J. Peters Mary A. Grcia Nancy J. Blott Karin L. Martin Phyllis L. Peterson Robert D. Starr Douglas M. Brier
8

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

CIVIL ACTION NO. 06-CV-2069 KHV/DJW

v.

)

)

BURLINGTON NORTHERN SANTA FE

)

RAILWAY CO. and

)

TRANSPORTATION COMMUNICATIONS )

INTERNATIONAL UNION,

)

)

Defendants.

)

Nature of the Action

This is an action under the Age Discrimination in Employment Act to correct unlawful

employment practices on the basis of age and to provide appropriate relief to Ellen Foste, Erma

Gossage and other similarly situated individuals who were discriminated against because of their

age. Plaintiff alleges that Defendant Burlington Northern Santa Fe Railway Co. and Defendant

Transportation Communications International Union eliminated covered employees' protected

status under the collective bargaining agreement at age seventy because of their age. Plaintiff

further alleges that Defendant Burlington Northern Santa Fe Railway Co. failed and refused to

allow otherwise eligible employees to participate in Voluntary Reserve Board Programs because

of their age.

Jurisdiction and Venue

1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337,

1343 and 1345. This action is authorized and instituted pursuant to Section 7(b) of the Age

Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 626(b) (the "ADEA"),

which incorporates by reference Sections 16(c) and 17 of the Fair Labor Standards Act of 1938 (the "FLSA"), as amended, 29 U.S.C. §§216(c) and 217.
2. The employment practices alleged to be unlawful were and are being committed within the jurisdiction of the United States District Court for the District of Kansas.
Parties 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of the ADEA and is expressly authorized to bring this action by Section 7(b) of the ADEA, 29 U.S.C. § 626(b), as amended by Section 2 of Reorganization Plan No. 1 of 1978, 92 Stat. 3781, and by Public Law 98-532 (1984), 98 Stat. 2705. 4. At all relevant times, Defendant, Burlington Northern Santa Fe Railway Co. ("BNSF") has continuously been a Delaware Corporation doing business in the State of Kansas and the County of Johnson and has continuously had at least 20 employees. 5. At all relevant times, Defendant BNSF has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 11(b), (g) and (h) of the ADEA, 29 U.S.C. §§ 630(b), (g) and (h). 6. At all relevant times, Defendant Transportation Communications International Union ("TCU") has continuously been an association of participating employees which deals with employers concerning terms and conditions of employment, and has continuously had at least 25 members. At all relevant times, TCU has been a recognized collective bargaining representative for employees of the Defendant BNSF.
2

7. At all relevant times, Defendant TCU has continuously been a labor organization engaged in an industry affecting commerce within the meaning of Sections 11(d) and (e) of the ADEA, 29 U.S.C. §§ 630(d) and (e).
Conciliation 8. Prior to institution of this lawsuit, the Commission's representatives attempted to eliminate the unlawful employment practices alleged below and to effect voluntary compliance with the ADEA through informal methods of conciliation, conference and persuasion within the meaning of Section 7(b) of the ADEA, 29 U.S.C. § 626(b).
Statement of Claims 9. Since at least July 2003, Defendant BNSF and Defendant TCU have engaged in unlawful employment practices at BNSF's facilities throughout the United States, including those in Kansas City, Kansas, in violation of Section 4(d) of the ADEA, 29 U.S.C. § 623 (d). Defendant BNSF and the Defendant TCU were and are parties to a Mediation Agreement that amends the collective bargaining agreement covering clerical employees to eliminate a covered employee's protected status when he/she becomes eligible for an annuity at age seventy. 10. Since at least July 2003, Defendant BNSF has engaged in unlawful employment practices at its facilities throughout the United States, including those in Kansas City, Kansas, in violation of Section 4(d) of the ADEA, 29 U.S.C. § 623 (d). Defendant BNSF has failed and refused to allow otherwise eligible employees to participate in Voluntary Reserve Board Programs, which it has offered to clerical employees in certain of its facilities, because of their age.
3

11. The effect of the practices complained of in paragraphs 10 and 11 above has been to deprive certain of Defendant BNSF's employees of equal employment opportunities and otherwise adversely affect their status as employees, because of their age.
12. The unlawful employment practices complained of in paragraphs 10 and 11 above were willful within the meaning of Section 7(b) of the ADEA, 29 U.S.C. §626(b).
Prayer for Relief Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant BNSF, its officers, successors, assigns and all persons in active concert or participation with it, from:
(1) eliminating covered employees' protected status under the collective bargaining agreement because of their age.
(2) refusing to allow otherwise eligible employees from participating in any Voluntary Reserve Board Program offered to employees because of their age; and
(3) engaging in any other employment practice which discriminates on the basis of age against individuals 40 years of age and older.
B. Grant a permanent injunction enjoining Defendant TCU, its officers, successors, assigns and all persons in active concert or participation with it, from eliminating covered employees' protected status under the collective bargaining agreement because of their age and any other employment practice which discriminates on the basis of age against individuals 40 years of age and older.
4

C. Order Defendant BNSF to institute and carry out policies, practices and programs which provide equal employment opportunities for individuals 40 years of age and older, and which eradicate the effects of its past and present unlawful employment practices.
D. Order Defendant TCU to institute and carry out policies, practices and programs which provide equal employment opportunities for individuals 40 years of age and older, and which eradicate the effects of its past and present unlawful employment practices.
E. Grant a judgment requiring Defendant BNSF to pay appropriate back wages in an amount to be determined at trial, an equal sum as liquidated damages or prejudgment interest in lieu thereof to individuals whose wages are being unlawfully withheld as a result of the acts complained of above, including but not limited to those employees named on Exhibit A, attached hereto, and all other employees who were otherwise eligible but who were denied the opportunity to participate in Voluntary Reserve Board Programs because of their age.
F. Order Defendant BNSF to make whole all individuals adversely affected by the unlawful practices described above, by providing the affirmative relief necessary to eradicate the effects of its unlawful practices including but not limited to permitting those employees named on Exhibit A, attached hereto, and all other employees who were otherwise eligible but who were denied the opportunity to participate in a Voluntary Reserve Board Program because of their age to participate in a Voluntary Reserve Board Program or to obtain the benefits of such a program.
G. Order Defendant TCU to make whole all individuals adversely affected by the unlawful practices described above, by providing affirmative relief necessary to eradicate the effects of its unlawful practices including but not limited to reinstating the protected status under
5

the collective bargaining agreement for Ellen Foste and all other employees whose protected
status under the collective bargaining agreement was eliminated because of their age.
H. Grant such further relief as the Court deems necessary and proper in the public
interest.
I. Award the Commission its costs of this action.
Designation of Place of Trial
Plaintiff designates Kansas City, Kansas as the place of trial of this action.
Respectfully submitted,
JAMES L. LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel
/s/ Robert G. Johnson ROBERT G. JOHNSON Regional Attorney
/s/ Barbara A. Seely BARBARA A. SEELY Supervisory Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION St. Louis District Office Robert A. Young Federal Bldg. 1222 Spruce Street, Room 8.100 St. Louis, MO 63103 (314) 539-7914
ATTORNEYS FOR PLAINTIFF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
6

Ellen Foste Erma Gossage Robert N. Couchillon Jackie L. Byars Billie J. Turrentine John M. McCright Ron C. Anderson Joyce D. Schoenfled John B. Huss Perry L. Skinner Anthony R. Bagzis Henry E. Ruane Larry E. Baysden Carol L. Young Gary W. Humbarger Wesley E. McKinley Richard L. Smith Hal C. Matter Donald J. Perkins Jean A. Wilson Jerrald L. Williams Larry G. Kelly Ray E. Porrino William L. Martin Dorothy L. Sherretts John S. Stell Pricscilla J. Peters Mary A. Grcia Nancy J. Blott Karin L. Martin Phyllis L. Peterson Robert D. Starr Douglas M. Brier

EXHIBIT A

7

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

)

Plaintiff,

)

)

Case No. 06-2069-JWL-GLR

)

BURLINGTON NORTHERN SANTA FE

)

RAILWAY CO. and

)

TRANSPORTATION COMMUNICATIONS )

INTERNATIONAL UNION,

)

)

Defendants.

)

PARTIAL CONSENT DECREE

Plaintiff Equal Employment Opportunity Commission (“EEOC”) instituted this

action against Defendant Burlington Northern Santa Fe Railway Co. (“BNSF”) and

Defendant Transportation Communications International Union (“TCIU”) by filing a

First Amended Complaint alleging, in Paragraph 9, that Defendants are parties to a

collective bargaining agreement which discriminates against certain employees age

seventy and older because of age by eliminating “a covered employee’s protected status

when he/she becomes eligible for an annuity at age seventy,” in violation of the Age

Discrimination in Employment Act of 1967 (“ADEA”). The First Amended Complaint

alleged additional violations of the ADEA by BNSF alone.

For purposes of settlement and compromise only, and with no admission of

liability by Defendants, the parties have advised the Court that they wish to settle the

above-referenced allegations set forth in Paragraph 9 of the First Amended Complaint

without the expense, delay and burden of further litigation as to this issue. The parties do

not intend that any other claims made by the EEOC in its First Amended Complaint be resolved by this Partial Consent Decree, and Defendants do not intend to waive any defenses to any such other claims.
THEREFORE, it is the finding of this Court, made on the pleadings, the record as a whole, and upon agreement of the parties that (i) this Court has jurisdiction over the parties to and the subject matter of this action; (ii) the requirements of the ADEA will be carried out by the implementation of this Decree; (iii) this Partial Consent Decree is intended to and does resolve all claims made by Plaintiff against Defendant TCIU; (iv) this Partial Consent Decree is intended to and does resolve all claims for injunctive relief for Defendant BNSF’s alleged violation of the ADEA as set forth in Paragraph 9 of Plaintiff’s First Amended Complaint; and (v) the terms of this Partial Consent Decree constitute a fair and equitable settlement of the claims issue raised in Paragraph 9 of the First Amended Complaint.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED as follows: I. General Provisions
1. This Partial Consent Decree is being entered with the consent of the parties for purposes of settlement and shall not constitute an adjudication on the merits of this lawsuit or be construed as an admission by Defendants of any violation of the ADEA or any other executive order, law, rule or regulation dealing with age discrimination in employment.
II. Injunctive Relief 2. Within sixty (60) days of the Court’s entry of the Partial Consent Decree, Defendants shall amend Appendix 9 of the agreement between BNSF and TCU effective
2

July 1, 2000, to delete the following language from the first sentence of Article II, Section 1: “or he becomes eligible for an annuity at Age 70 under the Railroad Retirement Act.”
3. Within ninety (90) days of the Court’s entry of the Partial Consent Decree, Defendants shall notify in writing all clerical employees covered by the Collective Bargaining Agreement referred to in Paragraph 4 above that, pursuant to a Partial Consent Decree entered in the above-captioned action, Appendix 9 of the agreement between BNSF and TCU effective July 1, 2000, has been amended to delete the following language from the first sentence of Article II, Section 1: “or he becomes eligible for an annuity at Age 70 under the Railroad Retirement Act.”
III. Reporting and Monitoring 4. Within seventy five (75) days of the Court’s entry of the Partial Consent Decree, Defendants shall provide written notice to the EEOC of compliance with the requirements set forth in Paragraph 4 above to Barbara A. Seely, Supervisory Trial Attorney, Equal Employment Opportunity Commission, 1222 Spruce St., Room 8.100, St. Louis, Missouri 63103. Such notice shall include copies of any and all documents memorializing any and all relevant amendments to the Collective Bargaining Agreement. 5. Defendant shall provide a copy of the written notice referred to in Paragraph 5 above to Barbara A. Seely, Supervisory Trial Attorney, Equal Employment Opportunity Commission, 1222 Spruce St., Room 8.100, St. Louis, Missouri 63103 at the time it is given to all clerical employees. 6. Within thirty (30) days of the provision of the notices referred to in paragraphs 6 and 7 above, TCU shall be dismissed as a defendant in this matter, unless
3

within that time period the EEOC files with the Court an objection to such a dismissal, based on claimed non-compliance with this agreement. The merits of such an objection will be resolved by the Court.
IV. Term and Effect of Decree 7. By entering into this Partial Consent Decree, the parties do not intend to resolve any charges of discrimination other than the charge filed by Ellen Foste, to the extent that her charge provided the jurisdictional foundation for the claims made by Plaintiff in Paragraph 9 of its First Amended Complaint against Defendant BNSF. 8. This Partial Consent Decree does not resolve Plaintiff’s claims against Defendant BNSF for monetary relief for Ellen Foste and any other current or former employee who was denied the opportunity to participate in a Voluntary Reserve Board Program offered by Defendant BNSF at any since from November 22, 1988, because he was eligible for an annuity at age seventy and was therefore not a protected employee under the Collective Bargaining Agreement. 9. This Partial Consent Decree shall be binding upon the parties hereto, their successors and assigns. 10. The Court will retain jurisdiction solely for the purpose of enforcing this Partial Consent Decree. 11. The parties shall bear their own costs and attorneys’ fees.
4

FOR DEFENDANT BNSF:
/s/ Donald J. Munro DONALD J. MUNRO Attorney for Burlington Northern Santa Fe Railway Co.
FOR DEFENDANT TCIU:
/s/ Mitchell M. Kraus MITCHELL M. KRAUS General Counsel Transportation Communications International Union

FOR PLAINTIFF:
RONALD S. COOPER General Counsel
JAMES L. LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel
/s/ Robert G. Johnson ROBERT G. JOHNSON Regional Attorney
/s/ Barbara A. Seely BARBARA A. SEELY Supervisory Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION St. Louis District Office 1222 Spruce St., Room 8.100 St. Louis, MO 63103 (314) 539-7914 (314) 539-7895 (Facsimile)

Date: August 28, 2006

s/ John W. Lungstrum UNITED STATES DISTRICT JUDGE

5

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v. BURLINGTON NORTHERN SANTA FE RAILWAY CO.,
Defendant.

)

)

)

)

)

)

CIVIL ACTION NO.

)

2:06-CV-2069 JWL-GLR

)

)

)

)

)

SECOND AMENDED COMPLAINT

Nature of the Action

This is an action under the Age Discrimination in Employment Act to correct unlawful

employment practices on the basis of age and to provide appropriate relief to Ellen Foste, Erma

Gossage and other similarly situated individuals who were discriminated against because of their

age. Plaintiff alleges that Defendant Burlington Northern Santa Fe Railway Co. failed and

refused to allow otherwise eligible employees to participate in Voluntary Reserve Board

Programs on the same terms and conditions as younger employees because of their age.

Jurisdiction and Venue

1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337,

1343 and 1345. This action is authorized and instituted pursuant to Section 7(b) of the Age

Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 626(b) (the "ADEA"),

which incorporates by reference Sections 16(c) and 17 of the Fair Labor Standards Act of 1938

(the "FLSA"), as amended, 29 U.S.C. §§216(c) and 217.

2. The employment practices alleged to be unlawful were and are being committed within the jurisdiction of the United States District Court for the District of Kansas.
Parties 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of the ADEA and is expressly authorized to bring this action by Section 7(b) of the ADEA, 29 U.S.C. § 626(b), as amended by Section 2 of Reorganization Plan No. 1 of 1978, 92 Stat. 3781, and by Public Law 98-532 (1984), 98 Stat. 2705. 4. At all relevant times, Defendant, Burlington Northern Santa Fe Railway Co. ("BNSF") has continuously been a Delaware Corporation doing business in the State of Kansas and the County of Johnson and has continuously had at least 20 employees. 5. At all relevant times, Defendant BNSF has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 11(b), (g) and (h) of the ADEA, 29 U.S.C. §§ 630(b), (g) and (h).
Conciliation 6. Prior to institution of this lawsuit, the Commission's representatives attempted to eliminate the unlawful employment practices alleged below and to effect voluntary compliance with Defendant BNSF through informal methods of conciliation, conference and persuasion within the meaning of Section 7(b) of the ADEA, 29 U.S.C. § 626(b).
Statement of Claims 7. Since at least November 22, 1988, Defendant BNSF has engaged in unlawful employment practices at its facilities throughout the United States, including those in Kansas
2

City, Kansas, in violation of Section 4(d) of the ADEA, 29 U.S.C. § 623 (d). Defendant BNSF has failed and refused to allow otherwise eligible employees age 60 and older to participate in Voluntary Reserve Board Programs, which it has offered to clerical employees in certain of its facilities, because of their age. In addition, Defendant BNSF has failed and refused to allow otherwise eligible clerical employees between the ages of 57 and 60 to participate in Voluntary Reserve Board Programs on the same terms and conditions as younger employees.
8. The effect of the practices complained of in paragraph 7 above has been to deprive certain of Defendant BNSF's employees of equal employment opportunities and otherwise adversely affect their status as employees, because of their age.
9 The unlawful employment practices complained of in paragraph 7 above were willful within the meaning of Section 7(b) of the ADEA, 29 U.S.C. §626(b).
Prayer for Relief Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant BNSF, its officers, successors, assigns and all persons in active concert or participation with it, from:
(1) refusing to allow otherwise eligible employees from participating in any Voluntary Reserve Board Program offered to employees because of their age;
(2) refusing to allow otherwise eligible employees between the ages of 57 and 60 from participating in any Voluntary Reserve Board Program on the same terms and conditions as younger employees; and
(3) engaging in any other employment practice which discriminates on the basis of age against individuals 40 years of age and older.
3

B. Order Defendant BNSF to institute and carry out policies, practices and programs which provide equal employment opportunities for individuals 40 years of age and older, and which eradicate the effects of its past and present unlawful employment practices.
C. Grant a judgment requiring Defendant BNSF to pay appropriate back wages in an amount to be determined at trial, an equal sum as liquidated damages or prejudgment interest in lieu thereof to individuals whose wages are being unlawfully withheld as a result of the acts complained of above, including but not limited to those employees named on Exhibit A, attached hereto, and all other employees who were otherwise eligible but who were denied the opportunity to participate in Voluntary Reserve Board Programs because of their age or who were denied to participate in Voluntary Reserve Board Programs on the same terms and conditions as younger employees.
D. Order Defendant BNSF to make whole all individuals adversely affected by the unlawful practices described above, by providing the affirmative relief necessary to eradicate the effects of its unlawful practices including but not limited to permitting those employees named on Exhibit A, attached hereto, and all other employees who were otherwise eligible but who were denied the opportunity to participate in a Voluntary Reserve Board Program because of their age to participate in a Voluntary Reserve Board Program or who were denied the opportunity to participate in a Voluntary Reserve Board Program on the same terms and conditions as younger employees to obtain the benefits of such a program.
E. Grant such further relief as the Court deems necessary and proper in the public interest.
F. Award the Commission its costs of this action.
4

Designation of Place of Trial Plaintiff designates Kansas City, Kansas as the place of trial of this action.
Respectfully submitted, RONALD S. COOPER General Counsel JAMES L. LEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel
/s/ Robert G. Johnson ROBERT G. JOHNSON Regional Attorney
/s/ Barbara A. Seely BARBARA A. SEELY Supervisory Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION St. Louis District Office Robert A. Young Federal Bldg. 1222 Spruce Street, Room 8.100 St. Louis, MO 63103 (314) 539-7914
5

Ellen Foste Erma Gossage Robert N. Bouchillon Jackie L. Byars Billie J. Turrentine John M. McCright Ron C. Anderson Joyce D. Schoenfeld John B. Huss Perry L. Skinner Anthony R. Bagzis Henry E. Ruane Larry E. Baysden Carol L. Young Gary W. Humbarger Richard L. Smith Donald J. Perkins Jean A. Wilson Jerrald L. Williams Larry G. Kelly Ray E. Porrino William L. Martin Dorothy L. Sherretts John S. Stell Priscilla J. Peters Mary A. Garcia Nancy J. Blott Karin L. Martin Phyllis L. Peterson Robert D. Starr Douglas M. Brier John L. McFarland Bennie Thompson Michael R. Mossler Linda Lambing Richard L. Smith Hal C. Matter Donald W. Ferguson Harmon Henderson Wesley E. McKinley

EXHIBIT A 6

7

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

v.

) Case No. 06-2069-JAR-GLR

)

BURLINGTON NORTHERN SANTA FE

)

RAILWAY CO. and

)

TRANSPORTATION COMMUNICATIONS )

INTERNATIONAL UNION,

)

)

Defendants.

)

__________________________________________)

STIPULATED ORDER OF DISMISSAL This Court entered a Partial Consent Decree (Docket Entry No. 27) settling the allegations in Paragraph 9 of the First Amended Complaint on August 28, 2005. The sole allegations against the involved labor organization, Transportation•Communications International Union (TCU), are contained in the above-referenced paragraph of the Amended Complaint. Defendants have fully complied with the terms of the Partial Consent Decree. Accordingly, it is ordered, consistent with paragraph 6 of the Partial Consent Decree, that TCU is hereby dismissed as a Defendant in this action. The parties shall bear their own costs and attorney fees.

FOR DEFENDANT BNSF:
/s/ Donald J. Munro DONALD J. MUNRO Attorney for Burlington Northern Santa Fe Railway Co.
FOR DEFENDANT TCIU:
/s/ Mitchell M. Kraus MITCHELL M. KRAUS General Counsel Transportation Communications International Union
Date: February 27, 2007

FOR PLAINTIFF:
RONALD S. COOPER General Counsel
JAMES L. LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel
ROBERT G. JOHNSON Regional Attorney
/s/ Barbara A. Seely BARBARA A. SEELY Supervisory Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION St. Louis District Office 1222 Spruce St., Room 8.100 St. Louis, MO 63103 (314) 539-7914 (314) 539-7895 (Facsimile)
S/ Julie A. Robinson UNITED STATES DISTRICT JUDGE

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
BURLINGTON NORTHERN SANTA FE RAILWAY CO.,
Defendant.

)

)

)

)

)

CIVIL ACTION NO.

)

2:06-CV-2069

)

)

)

)

)

)

CONSENT DECREE I. Introduction
The parties to this Consent Decree are Plaintiff Equal Employment Opportunity Commission (“EEOC”) and Defendant Burlington Northern Santa Fe Railway Company (now known as BNSF Railway Company (“BNSF”)).
The EEOC instituted this action against BNSF and the Transportation Communications International Union (“TCU”), which represents individuals in the clerical craft or class employed by BNSF. The EEOC alleged in its First Amended Complaint that a collective bargaining agreement between BNSF and TCU discriminated against certain clerical employees age seventy and older because of their age by eliminating a covered employee’s protected status when he/she becomes eligible for an annuity at age seventy, in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”). This claim was resolved pursuant to a Partial Consent Decree that was previously entered by the Court. Pursuant to that Partial Consent Decree, TCU was dismissed from this action.
The EEOC further alleged in its First Amended Complaint that BNSF had failed and refused to allow otherwise eligible clerical employees represented by TCU to participate in certain early retirement programs because of their age, also in violation of the ADEA.

BNSF denied that any of its early retirement programs offered to TCU-

represented clerical employees violated the ADEA, and further asserted various

affirmative defenses.

After extensive discovery and comprehensive settlement

negotiations, the parties have agreed that it is in their mutual interest to settle in order to

avoid the expense, delay, uncertainty and burden of further litigation. Accordingly, for

purposes of settlement and compromise only, and with no admission of liability by

BNSF, the parties have advised the Court that they wish to resolve this matter as set forth

below.

Having carefully examined the terms and provisions of this Decree, and based on

the pleadings, record , and stipulations of the parties, the Court finds as follows:

(i) this Court has jurisdiction over the parties to and the subject matter of this

action;

(ii) the requirements of the ADEA will be carried out by the implementation of

this Decree;

(iii) this Decree is intended to and does resolve all remaining matters in

controversy in this lawsuit among the parties; and

(iv) the terms of this Decree constitute a fair and equitable settlement of all issues

remaining in this lawsuit.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED as follows:

II. General Provisions 1. Effect: This Decree fully and completely resolves all claims arising under the ADEA pertaining to the early retirement programs (“ERPs”), as defined herein, of BNSF and its predecessor railroads, as well as any and all claims arising out of or contained in EEOC Charge Nos. 281-2003-03361 (Foste) and 281-2005-00548 (Gossage). This Decree is being entered with the consent of the parties for purposes of settlement and shall not constitute an adjudication on the merits of this lawsuit or be

2

construed as an admission by BNSF of any violation of the ADEA or any other executive order, law, rule or regulation dealing with age discrimination in employment.
2. Term: This Decree shall become effective immediately upon the date on which the Court enters it. This Decree shall be binding for a period of two (2) years.
3. Non-Retaliation: Defendant shall not discriminate against any employee or former employee because such employee has opposed any practices alleged in this lawsuit to be unlawful under the ADEA, has participated in an investigation related to this lawsuit, and/or has benefited in any way as a result of this Decree.
4. Definitions: (a) BNSF: The remaining defendant named in Civil Action No. 2:06CV-2069 following the dismissal of the TCU, together with its predecessors, successors, agents, officers, employees and assigns. (b) RRA: The Railroad Retirement Act, 45 U.S.C. § 231, et seq. (c) Early Retirement Program (“ERP”): Any lump sum or voluntary reserve board program offered by BNSF or its predecessors between 1988 and the effective date of this Consent Decree to clerical employees represented by TCU in Havre, MN, Springfield, MO, Alliance, NE, Topeka, KS, Kansas City, KS and Fort Worth, TX and any lump sum or voluntary reserve board offered to clerical employees represented by TCU during the same period pursuant to or modeled after the Master Implementing Agreement designed to induce clerical employees to retire. (d) C lass Members: All individuals identified by EEOC as persons who were not permitted to participate in any ERP, as defined herein, because of eligibility for an unreduced annuity under the RRA, or who were not permitted to participate in any ERP for the
3

maximum period under the terms of the offer because of intervening eligibility for an unreduced annuity under the RRA. III. Monetary Relief for Class Members 5. Within sixty (60) days of the effective date of this Consent Decree, BNSF shall pay a total of eight hundred thousand dollars ($800,000) in backpay to the Class Members listed in Attachment A in the amounts listed therein. BNSF shall make applicable deductions for income taxes and railroad retirement taxes and shall issue a Form W-2 to each Class Member in the amount of his/her portion of the settlement amount. The Class Members who receive funds pursuant to this Consent Decree are solely responsible for all income tax obligations associated therewith. 6. Acting in its sole discretion, subject to the approval of the Court, the EEOC has determined the portion of the gross settlement amount to be allocated to each class member pursuant to this Consent Decree. In making such determinations, the EEOC considered evidence that it deemed appropriate, including evidence received by the EEOC from Class Members and evidence received from BNSF in connection with the litigation of this action. In particular, the EEOC considered the following: (a) whether Class Members remained employed by BNSF and continued to earn wages after being denied the opportunity to participate in an ERP and, if so, for how long; and (b) the amount of benefits Class Members who participated in an ERP received before their benefits were cut off because they became eligible for an unreduced annuity. BNSF did not participate in those determinations and did not and does not have a right to object to them.
IV. Injunctive Relief
7. Defendant shall not offer any voluntary retirement incentive to TCU-
represented clerical employees in the future that discriminates on the basis of age.
4

8. Defendant shall be permitted to offer voluntary retirement incentives to TCU-represented clerical employees that include one or more of the following:
(a) Voluntary retirement incentives that are available to all employees regardless of age or seniority and that provide the same lump sum amount to any employee who elects to participate;
(b) Voluntary retirement incentives that are only available to employees who are within a fixed window of time prior to eligibility for an unreduced annuity under the RRA and that provide monthly payments until such time as the participating employee becomes eligible for an unreduced annuity under the RRA, in accordance with 29 U.S.C. § 623(l)(1)(B)(i);
(c) Voluntary retirement incentives that are only available to employees who are within a fixed window of time prior to attaining the number of years of service necessary to obtain the maximum possible unreduced annuity under the RRA and that provide monthly payments until such time as the participating employee attains that number of years of service, in accordance with 29 U.S.C. § 623(i)(2).
Any voluntary retirement incentive offered by BNSF to clerical employees represented by TCU may be offered in seniority order (from higher to lower) or on a first-come, first-served basis.
9. Notwithstanding the preceding provisions of this Consent Decree, the EEOC is not precluded from pursuing charges under the ADEA with respect to any voluntary retirement incentive offered by BNSF after the effective date of this Decree that does not comply with this Decree and the ADEA.
10. Within thirty (30) days of the entry of this Decree and for the two (2) year duration of this Decree, Defendant shall post and cause to remain posted copies of the Notice attached hereto as Attachment B at each of its facilities in the United States where
5

Defendant displays the EEOC posters, Workers’ Compensation posters, and other information relating to employee rights as required by law.
V. Reporting and Monitoring 11. Within seventy-five (75) days of the Court’s entry of this Decree, Defendant shall provide copies of the checks issued and mailed to the Class Members listed on Attachment A pursuant to the requirements set forth in Paragraph 5 above to Barbara A. Seely, Supervisory Trial Attorney, Equal Employment Opportunity Commission, 1222 Spruce St., Room 8.100, St. Louis, Missouri 63103. 12. Defendant shall provide a copy of the written notice referred to in Paragraph 10 above to Barbara A. Seely, Supervisory Trial Attorney, Equal Employment Opportunity Commission, 1222 Spruce St., Room 8.100, St. Louis, Missouri 63103 within fifteen (15) days of its posting. 13. Defendant shall provide copies of any and all documents setting forth the terms and conditions of any and all voluntary retirement incentives which it offers to TCU-represented clerical employees during the life of this Decree to Barbara A. Seely, Supervisory Trial Attorney, Equal Employment Opportunity Commission, 1222 Spruce St., Room 8.100, St. Louis, Missouri 63103, within ten (10) days of the date upon which it is offered. 14. For the duration of this Decree, Defendant shall allow representatives of the EEOC to review Defendant’s compliance with such Decree by inspecting and photocopying relevant documents and records, and/or interviewing employees and management officials. Such review of compliance shall be initiated by written notice to the Defendant’s attorney of record at least fifteen (15) business days in advance of any EEOC compliance review.
6

VI. Miscellaneous Provisions 15. By entering into this Decree, the parties do not intend to resolve any charges of discrimination currently pending before the EEOC other than the charges that created the procedural foundation for the complaint in this case. 16. This Decree shall be binding upon the parties hereto, their successors, and assigns. Defendant shall affirmatively notify any purchasers of the obligations of this Consent Decree prior to any sale which may take place during the two (2) year duration of this Decree. 17. The Court shall retain jurisdiction of this case for purposes of compliance and enforcement. 18. Each party shall bear its own costs and attorneys’ fees.

FOR DEFENDANT BNSF:
JOHN J. FLEPS Vice President Labor Relations Burlington Northern Santa Fe Railway Co.
/s/ Donald J. Munro Attorney for Burlington Northern Santa Fe Railway Co.

FOR PLAINTIFF:
RONALD S. COOPER General Counsel l JAMES L. LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel
/s/ Robert G. Johnson ROBERT G. JOHNSON Regional Attorney
/s/ Barbara A. Seely BARBARA A. SEELY Supervisory Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION St. Louis District Office 1222 Spruce St., Room 8.100 St. Louis, MO 63103 (314) 539-7914 (314) 539-7895 (Facsimile)
7

Date: March 30, 2007

S/ Julie A. Robinson UNITED STATES DISTRICT JUDGE

8

Erma Gossage Jo Foste Jerrald Williams John S. Stell Dorothy L. Sherretts Jean A.Wilson Richard L. Smith Mary A. Garcia Carol L. Young Gary W. Humbarger Priscilla J. Peters John M. McCright Larry E. Baysden Perry L. Skinner Marvin T Ashlock Richard E. Hart Karin L. Martin Ray E. Porrino Donald J. Perkins Douglas M. Brier P. L. Peterson Robert D. Starr Nancy J. Blott Wesley E. McKinley Henry E. Ruane Anthony R. Bagzis

ATTACHMENT A
$50,894.00 50,894.00 23,698.00 28,228.50 28,228.50 20,213.00 28,925.50 20,213.00 28,925.50 28,577.00 28,577.00 26,486.00 26,486.00 25,092.00 11,152.00 20,910.00 6,000.00 6,000.00 6,000.00 6,000.00 6,000.00 6,000.00
6,000.00 6,000.00 6,000.00 6,000.00

Joyce Schoenfeld Billy J. Turrentine Robert Bouchillon Ronald C. Anderson Jackie L. Byers Richard H. Moody Edwin L. Hibbs James Castleman Barbara A. Dooly Robert Olson Bobby Decker Allen Welch James Oestreich John Welchhans Charles Harth Ken Lomax Theodore Bingham Judy Barr Judy Etherton Billy Bourne Floyd Ragsdale Zelma Hofrock Stanley Adams Roger Bardsley Robert Redding John Dwyer Horace Mallard

6,000.00 6,000.00 6,000.00 6,000.00 6,000.00 6,000.00 6,000.00 6,000.00 6,000.00 4,500.00
4,500.00 4,500.00 4,500.00 4,500.00 4,500.00 4,500.00 4,500.00 4,500.00 4,500.00 4,500.00 4,500.00 4,500.00 4,500.00 4,500.00 4,500.00 4,500.00 4,500.00

Levvie Holmes Robert Mercer Rex Huston Mike Byttner, Jr. Mark Taylor Strethen Bryant James Schoenfeld George Reynolds Judith Edes Carole Haynes Gregory Warren John Swain James Lacy Lawrence Gurganious Lowell Wiley Kirk Scott Juanita Stone John Cunningham Jesse Benson Marilyn Dechand Herbert Kessler Richard Wolfe Robert Humphries Judy Rainey Robert Barncord Ronald Damon E. Ione Henderson

4,500.00 3,000.00 3,000.00 3,000.00 3,000.00 3,000.00 3,000.00 3,000.00 3,000.00 3,000.00 3,000.00 3,000.00 3,000.00 3,000.00 3,000.00 3,000.00 3,000.00 3,000.00 3,000.00 3,000.00 3,000.00 3,000.00 3,000.00 3,000.00 3,000.00 3,000.00 3,000.00

Stephen Hopkins Georgie Stephens Amil Murray Foriest Rasco Travis Sander Terry Salle Donald Beseau Gary McPhail Dennis Kraft Olga Esquivel David Epperson Nolen Cruisenberry Delta Johnson James Mercer Alton Howell Allan Frank Barbara Grau Richard Glissman Larry Cushinberry Gerald Simecka Trenton Decker George Stewart Joyce Baldwin Dixie Hertel John Dye Roger Brunmeier Frank Dillon

3,000.00 3,000.00 3,000.00 3,000.00 3,000.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00

Linda Nolting Kent Davis Ada Mitchell Gregg Tolin Philip Weaver Beverly Northcutt Roberta Oestreich Mary Randol David Hall Eugene Boden Gerald Coffey Richard Daggett Thomas Holeman Jacqueline McCoy Gerald McGraw Doris Thelen Georgia Trammel Leo Weyland Franklin Barker Tommie Gary Shawn O’Neill Linda Gardner Oldrich Valusek James Culver Pat Gersema Stanley Haas John Read

1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00 1,500.00

Shirley Olsen Cheryl Cress Darrel Whiteside

1,500.00 1,500.00 1,500.00

ATTACHMENT B
(On Company Letterhead)
NOTICE TO EMPLOYEES
This notice is being posted pursuant to a Consent Decree entered to resolve claims of age discrimination in the case of Equal Employment Opportunity Commission v. Burlington Northern Santa Fe Railway Co., No. 2:06-CV-2069, on file in the United States District Court for the District of Kansas.
Federal laws prohibit discrimination against any employee or applicant for employment because of the individual’s disability, race, national origin, color, religion, sex, or age (forty and over) with respect to hiring, promotion, firing, compensation, or other terms, conditions or privileges of employment. Such laws also prohibit retaliation against employees because they have reported or opposed practices that they believe discriminate on the basis of disability, race, national origin, color, religion, sex, or age (40 and over), have filed charges with the Equal Employment Opportunity Commission (“EEOC”) or other government agency, or have participated in or cooperated with an investigation by the EEOC or other government agency.
In particular, Federal law prohibits an employer from discriminating against employees based on age. BNSF supports and will comply with such laws and, further, will not take any action against any employees for exercising their rights under such laws. BNSF will not tolerate age discrimination or retaliation against any employees who report or oppose age discrimination.
Employees are free to make inquiries or complaints about possible age discrimination to the EEOC, St. Louis District Office, 1222 Spruce, 8th Floor, Room 8100, St. Louis, Missouri, 63103, 314-539-7800.

 
 District of Kansas - Docket Report

https://ecf.ksd.uscourts.gov/cgi-bin/DktRpt.pl?404442242773896-L_35...

U.S. District Court District of Kansas (Kansas City) CIVIL DOCKET FOR CASE #: 2:06-cv-02069-JAR-GLR

CLOSED

Equal Employment Opportunity Commission v. Burlington Northern Santa Fe Railway Company et al Assigned to: District Judge Julie A. Robinson Referred to: Magistrate Judge Gerald L. Rushfelt Cause: 29:621 Job Discrimination (Age)

Date Filed: 02/28/2006 Date Terminated: 02/27/2007 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Barbara A. Seely Equal Employment Opportunity Commission- St Louis Robert A. Young Federal Bldg. 1222 Spruce - Room 8.100 St. Louis, MO 63103 314-539-7916 Fax: 314-539-7895 Email: barbara.seely@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert G Johnson Equal Employment Opportunity Commission- St Louis Robert A. Young Federal Bldg. 1222 Spruce - Room 8.100 St. Louis, MO 63103 314-539-7910 Fax: 314-539-7895 Email: robert.johnson@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant Burlington Northern Santa Fe Railway Company

represented by Donald J. Munro Goodwin Procter LLP 901 New York Avenue NW Washington, DC 20001 202-346-4000 Fax: 202-346-4444 Email: dmunro@goodwinprocter.com LEAD ATTORNEY

1 of 8

5/29/2007 3:49 PM

District of Kansas - Docket Report

Defendant
Transportation Communications International Union TERMINATED: 02/27/2007

Date Filed

#

2 of 8

https://ecf.ksd.uscourts.gov/cgi-bin/DktRpt.pl?404442242773896-L_35...
ATTORNEY TO BE NOTICED
Jack D. Rowe Lathrop & Gage, LC - KC 2345 Grand Boulevard, Suite 2800 Kansas City, MO 64108 816-292-2000 Fax: 816-292-2001 Email: jrowe@lathropgage.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Ian Rosenstein Goodwin Procter LLP 901 New York Avenue NW Washington, DC 20001 202-346-4000 Fax: 202-346-4444 Email: jrosenstein@goodwinprocter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Charles R. Schwartz Blake & Uhlig, P.A. 475 New Brotherhood Building 753 State Avenue Kansas City, KS 66101 913-321-8884 Fax: 913-321-2396 Email: crs@blake-uhlig.com TERMINATED: 02/27/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mitchell M. Kraus Transportation Communications International Union 3 Research Place Rockville, MD 20850 301-840-8776 Fax: 301-330-7662 Email: krausm@tcunion.org TERMINATED: 02/27/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Docket Text
5/29/2007 3:49 PM

District of Kansas - Docket Report

https://ecf.ksd.uscourts.gov/cgi-bin/DktRpt.pl?404442242773896-L_35...

02/28/2006 02/28/2006 03/09/2006 03/27/2006 03/29/2006
04/04/2006 04/04/2006 04/04/2006
04/04/2006 04/13/2006 04/13/2006 04/18/2006

1 COMPLAINT (No Summons Issued) with trial location of Kansas City, Kansas, filed by Equal Employment Opportunity Commission.(kao) (Entered: 02/28/2006)
2 ORDER REASSIGNING CASE. Case reassigned to Judge Gerald L. Rushfelt for all further pretrial proceedings. Judge David J. Waxse no longer assigned to case. Entered by deputy clerk on 2/28/06. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (ll) (Entered: 02/28/2006)
3 FIRST AMENDED COMPLAINT against all defendants, filed by Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 03/09/2006)
4 CONSENT MOTION for Extension of Time to File Answer re 3 Amended Complaint by Defendant Burlington Northern Santa Fe Railway Company. (Rowe, Jack) (Entered: 03/27/2006)
5 CLERK'S ORDER extending time until 4/13/06 for Defendants Burlington Northern Santa Fe Railway Company to answer or otherwise plead. Document 4 was filed as a motion and per Magistrate Judge Gerald L. Rushfelt is being construed as a Clerk's Extension. Motion is termed. Signed by deputy clerk on 3/29/06.(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)(ck ) (Entered: 03/29/2006)
6 MOTION for attorney Donald J. Munro to appear pro hac vice by Defendant Burlington Northern Santa Fe Railway Company. (Attachments: #(1) Affidavit) (Rowe, Jack) (Entered: 04/04/2006)
7 MOTION for attorney Joshua Rosenstein to appear pro hac vice by Defendant Burlington Northern Santa Fe Railway Company. (Attachments: #(1) Affidavit) (Rowe, Jack) (Entered: 04/04/2006)
PRO HAC VICE FEE PAID: On 4/4/06 in the amount of $100.00 re: 7 MOTION for attorney Joshua Rosenstein to appear pro hac vice, 6 MOTION for attorney Donald J. Munro to appear pro hac vice. Receipt Number K4631002178. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (kao) (Entered: 04/04/2006)
8 ORDER OF RECUSAL. Judge Kathryn H. Vratil recused. Case reassigned to Judge John W. Lungstrum for all further proceedings. By Judge Kathryn H. Vratil on 4/4/06.(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)(ls) (Entered: 04/04/2006)
9 CORPORATE DISCLOSURE STATEMENT by Burlington Northern Santa Fe Railway Company identifying Burlington Northern Santa Fe Corporation as corporate parent. (Rowe, Jack) (Entered: 04/13/2006)
10 ANSWER to Amended Complaint by Burlington Northern Santa Fe Railway Company.(Rowe, Jack) (Entered: 04/13/2006)
11 ORDER granting 6 and 7 Motions to Appear Pro Hac Vice. Attorneys Donald J. Munro and Joshua Ian Rosenstein are granted leave to appear pro hac vice on behalf of Burlington Northern Santa Fe Railway Company. If pro hac vice counsel has not already done so, counsel is directed to immediately register for electronic notification pursuant to the court's Administrative Procedures by completing a CM/ECF Electronic Filing Registration Form at

3 of 8

5/29/2007 3:49 PM

District of Kansas - Docket Report

https://ecf.ksd.uscourts.gov/cgi-bin/DktRpt.pl?404442242773896-L_35...

04/28/2006 05/08/2006 05/09/2006 05/26/2006
06/14/2006 06/14/2006 06/15/2006 08/15/2006 08/16/2006 08/16/2006 08/17/2006

http://www.ksd.uscourts.gov/forms/index.php. Signed by Magistrate Judge Gerald L. Rushfelt on 04/18/06. (mg) (Entered: 04/18/2006)
12 ANSWER to Amended Complaint by Transportation Communications International Union. (Schwartz, Charles) (Entered: 04/28/2006)
13 MOTION for attorney Mitchell M. Kraus to appear pro hac vice by Defendant Transportation Communications International Union. (Attachments: #(1) Affidavit) (Schwartz, Charles) (Entered: 05/08/2006)
PRO HAC VICE FEE PAID: on 5/9/06 re: 13 MOTION for attorney Mitchell M. Kraus to appear pro hac vice in the amount of $50.00. Receipt Number 1002756. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (jb) (Entered: 05/09/2006)
14 ORDER granting 13 Motion to Appear Pro Hac Vice. Mitchell M. Kraus is granted leave to appear pro hac vice on behalf of Transportation Communications International Union. If pro hac vice counsel has not already done so, counsel is directed to immediately register for electronic notification pursuant to the court's Administrative Procedures by completing a CM/ECF Electronic Filing Registration Form at http://www.ksd.uscourts.gov/forms/index.php. Signed by Magistrate Judge Gerald L. Rushfelt on 05/25/06. (mg) (Entered: 05/26/2006)
15 JOINT STIPULATION to Amend 10 Answer to Amended Complaint by Burlington Northern Santa Fe Railway Company. (Rowe, Jack) (Document title modified on 6/15/2006. (mg)) (Entered: 06/14/2006)
16 AMENDED ANSWER to First Amended Amended Complaint per Joint Stipulation Doc#15 3 Amended Complaint by Burlington Northern Santa Fe Railway Company. (Rowe, Jack) (Entered: 06/14/2006)
17 ORDER SETTING SCHEDULING CONFERENCE: Telephone Scheduling Conference set for 8/15/2006 at 02:15 PM before Magistrate Judge Gerald L. Rushfelt. Report of Parties Planning Meeting deadline 8/8/2006. Signed by Magistrate Judge Gerald L. Rushfelt on 6/15/06. (ll) (Entered: 06/15/2006)
Minute Entry for Telephone Scheduling Conference held before Magistrate Judge Gerald L. Rushfelt on 8/15/2006. Written Scheduling Order to follow. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (ll) (Entered: 08/15/2006)
18 CERTIFICATE OF SERVICE of Plaintiff EEOC's First Interrogatories to Defendant BNSF by Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 08/16/2006)
19 CERTIFICATE OF SERVICE of Plaintiff EEOC's First Request for Production of Documents to Defendant BNSF by Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 08/16/2006)
20 SCHEDULING ORDER from Scheduling Conference held before Magistrate Judge Gerald L. Rushfelt on 8/15/2006. Discovery deadline 5/15/2007. Dispositive motion deadline set for 5/15/2007. Confidential settlement reports due 1/31/2007. Proposed Pretrial Order due by 5/15/2007. Final Pretrial Conference set for 5/22/2007 at 10:00 AM before Magistrate Judge Gerald L. Rushfelt. Status Conference set for 1/16/2007 at 02:00 PM before Magistrate

4 of 8

5/29/2007 3:49 PM

District of Kansas - Docket Report

https://ecf.ksd.uscourts.gov/cgi-bin/DktRpt.pl?404442242773896-L_35...

08/21/2006 08/21/2006 08/25/2006 08/25/2006 08/28/2006 08/28/2006 08/28/2006 09/06/2006 09/11/2006
09/11/2006 09/11/2006 09/19/2006
09/21/2006

Judge Gerald L. Rushfelt. Court Trial set for 11/6/2007 at 09:30 AM before Chief Judge John W. Lungstrum. Estimated trial time 2 weeks. (SEE SCHEDULING ORDER FOR FURTHER DEADLINES.) Signed by Magistrate Judge Gerald L. Rushfelt on 8/17/2006.(jm) (Entered: 08/17/2006)
21 JOINT STIPULATION Regarding Inadvertent Disclosure of Privileged Materials by Burlington Northern Santa Fe Railway Company. (Rowe, Jack) (Modified on 8/22/2006. (mg)) (Entered: 08/21/2006)
22 CERTIFICATE OF SERVICE of Defendant BNSF's First Set of Interrogatories and First Request for Production of Documents by Burlington Northern Santa Fe Railway Company. (Rowe, Jack) (Entered: 08/21/2006)
23 NOTICE OF SERVICE by Burlington Northern Santa Fe Railway Company of Rule 26(a) Initial Disclosures. (Rowe, Jack) (Entered: 08/25/2006)
24 CERTIFICATE OF SERVICE of Plaintiff's Initial Disclosures Made Pursuant to Rule 26 (a)(1) by Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 08/25/2006)
25 CERTIFICATE OF SERVICE of Plaintiff EEOC's Second Request for Production of Documents to Defendant BNSF by Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 08/28/2006)
26 CERTIFICATE OF SERVICE of Plaintiff's Notice of Rule 30(b)(6) Deposition by Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 08/28/2006)
27 PARTIAL CONSENT DECREE. Signed by Judge John W. Lungstrum on 08/28/2006.(ses) (Entered: 08/28/2006)
28 MOTION to Amend Complaint re 1 Complaint by Plaintiff Equal Employment Opportunity Commission. (Attachments: #(1)) (Seely, Barbara) (Entered: 09/06/2006)
29 ORDER granting 28 Plaintiff's unopposed Motion for Leave to File Second Amend Complaint. Plaintiff shall electronically file its Second Amended Complaint within ten (10) days of the date of this Order. Signed by Magistrate Judge Gerald L. Rushfelt on 9/11/2006. (byk) (Entered: 09/11/2006)
30 SECOND AMENDED COMPLAINT Second Amended Complaint against Burlington Northern Santa Fe Railway Company, filed by Equal Employment Opportunity Commission.(Seely, Barbara) (Entered: 09/11/2006)
31 ANSWER to Second Amended Complaint by Burlington Northern Santa Fe Railway Company.(Rowe, Jack) (Entered: 09/11/2006)
32 CERTIFICATE OF SERVICE of BNSF's Responses to Plaintiff's First Set of Interrogatories and BNSF's Responses to Plaintiff's First Request for Production of Documents by Burlington Northern Santa Fe Railway Company. (Rowe, Jack) (Entered: 09/19/2006)
33 CERTIFICATE OF SERVICE of Plaintiff EEOC's Answers and Objections to Defendant's First Interrogatories to Plaintiff EEOC by Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 09/21/2006)

5 of 8

5/29/2007 3:49 PM

District of Kansas - Docket Report

https://ecf.ksd.uscourts.gov/cgi-bin/DktRpt.pl?404442242773896-L_35...

09/21/2006 09/21/2006 09/21/2006
09/25/2006 09/26/2006
10/13/2006 10/17/2006 10/17/2006 10/31/2006 11/02/2006 11/07/2006 11/08/2006 11/08/2006 11/14/2006

34 CERTIFICATE OF SERVICE of Plaintiff EEOC's Responses and Objections to Defendant's First Request for Production by Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 09/21/2006)
35 CERTIFICATE OF SERVICE of Plaintiff EEOC's Privilege Log for its Responses and Objections to Defendant's First Request for Production by Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 09/21/2006)
36 CERTIFICATE OF SERVICE of Plaintiff EEOC's Amended Privilege Log for its Responses and Objections to Defendant's First Request for Production by Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 09/21/2006)
37 CERTIFICATE OF SERVICE of Defendant BNSF's privilege log regarding Defendant's responses to Plaintiff's First Request for Production by Burlington Northern Santa Fe Railway Company. (Rowe, Jack) (Entered: 09/25/2006)
38 CERTIFICATE OF SERVICE of Defendant's Responses and Objections to Plaintiff's Second Interrogatories and Defendant's Responses to Plaintiff's Second Request for Production of Documents by Burlington Northern Santa Fe Railway Company. (Rowe, Jack) (Entered: 09/26/2006)
39 CERTIFICATE OF SERVICE of Notice of Deposition (Birmingham) by Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 10/13/2006)
40 CERTIFICATE OF SERVICE of this Defendant's Supplemental to Plaintiff's First Request for Production of Documents by Burlington Northern Santa Fe Railway Company. (Rowe, Jack) (Entered: 10/17/2006)
41 CERTIFICATE OF SERVICE of this Defendant's Amended Privilege Log by Burlington Northern Santa Fe Railway Company. (Rowe, Jack) (Entered: 10/17/2006)
42 CERTIFICATE OF SERVICE of Plaintiff's Notice of Rule 30(b)(6) Deposition by Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 10/31/2006)
43 CERTIFICATE OF SERVICE of Plaintiff EEOC's Second Interrogatories to Defendant BNSF by Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 11/02/2006)
44 CERTIFICATE OF SERVICE of Defendant's Additional Responses to the EEOC's Request for Production by Burlington Northern Santa Fe Railway Company. (Rowe, Jack) (Entered: 11/07/2006)
45 CERTIFICATE OF SERVICE of Plaintiff EEOC's Third Request for Production of Documents to Defendant BNSF by Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 11/08/2006)
46 CERTIFICATE OF SERVICE of Plaintiff EEOC's Third Interrogatories to Defendant BNSF by Equal Employment Opportunity Commission. (Seely, Barbara) (Entered: 11/08/2006)
47 Joint MOTION to Stay Deadlines and Extension of Time by Defendant Burlington Northern Santa Fe Railway Company. (Rowe, Jack) (Entered: 11/14/2006)

6 of 8

5/29/2007 3:49 PM

District of Kansas - Docket Report

https://ecf.ksd.uscourts.gov/cgi-bin/DktRpt.pl?404442242773896-L_35...

11/15/2006
11/20/2006 11/21/2006 11/30/2006 02/03/2007 02/13/2007 02/15/2007
02/27/2007 03/30/2007

48 ORDER granting in part and denying in part 47 the parties' Motion to Stay and Extension of Time. Discovery deadline 6/6/2007. Dispositive motion deadline set for 2/23/2007. Proposed Pretrial Order due by 6/12/2007. Final Pretrial Conference set for 6/19/2007 at 02:00 PM before Magistrate Judge Gerald L. Rushfelt. Status Conference set for 2/13/2007 at 11:15 AM before Magistrate Judge Gerald L. Rushfelt. (SEE ORDER FOR FURTHER DEADLINES.) Signed by Magistrate Judge Gerald L. Rushfelt on 11/15/2006.(jm) (Entered: 11/15/2006)
49 CERTIFICATE OF SERVICE of Defendant's Objections and Responses to the Plaitniff's Third Request for Production of Documents by Burlington Northern Santa Fe Railway Company. (Rowe, Jack) (Entered: 11/20/2006)
50 CERTIFICATE OF SERVICE of Defendant's Objections and Responses to Plaintiff's Third and Fourth Sets of Interrogatories by Burlington Northern Santa Fe Railway Company. (Rowe, Jack) (Entered: 11/21/2006)
51 CERTIFICATE OF SERVICE of Defendant's Second Requests for Production and Second Set of Interrogatories by Burlington Northern Santa Fe Railway Company. (Rowe, Jack) (Entered: 11/30/2006)
52 ORDER REASSIGNING CASE. Case reassigned to Judge Julie A. Robinson for all further proceedings. Judge John W. Lungstrum no longer assigned to case. Signed by Judge John W. Lungstrum on 2/02/2007.(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)(ses) (Entered: 02/03/2007)
53 ORDER: The Telephone Status Conference set for 2/13/2007 is hereby rescheduled for 2/15/2007 at 11:15 AM before Magistrate Judge Gerald L. Rushfelt. Entered by Magistrate Judge Gerald L. Rushfelt on 2/13/07. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (ll) (Entered: 02/13/2007)
54 Minute Entry for Telephone Status Conference held before Magistrate Judge Gerald L. Rushfelt on 2/15/2007: Plaintiff appeared through counsel Barbara A. Seely. Defendant Burlington Northern Santa Fe Railway Company appeared through counsel Donald J. Munro, Joshua I. Rosenstein and Jack D. Rowe. Defendant Transportation Communications International Union appeared through counsel Mitchell M. Kraus. Upon the oral motion of defendant Burlington Northern Santa Fe Railway Company and without objection, the deadlines for discovery on liability issues and dispositive motions on liability issues are extended to 4/23/2007. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (ll) (Entered: 02/16/2007)
55 STIPULATED ORDER OF DISMISSAL re 27 partial Consent Decree. SEE ORDER FOR DETAILS. Signed by Judge Julie A. Robinson on 2/27/2007.(mkc) (Entered: 02/27/2007)
56 CONSENT DECREE. The court shall retain jurisdiction of this case for purposes of compliance and enforcement and each party shall bear its own costs and attorneys' fees. SEE CONSENT DECREE FOR FURTHER DETAILS. Signed by Judge Julie A. Robinson on 3/30/2007.(mkc) (Entered: 03/30/2007)

7 of 8

5/29/2007 3:49 PM

District of Kansas - Docket Report

https://ecf.ksd.uscourts.gov/cgi-bin/DktRpt.pl?404442242773896-L_35...

PACER Service Center

Transaction Receipt

PACER Login:
Description:
Billable Pages:

05/29/2007 15:51:29

hs0328 Client Code: eeoc

Docket Report

Search Criteria:

2:06-cv-02069-JAR-GLR

5

Cost:

0.40

8 of 8

5/29/2007 3:49 PM