Case 2:16-cv-00225-CB Document 1 Filed 03/01/16 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

U.S. EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION,

)

)

Plaintiff,

) CIVIL ACTION NO.

)

v.

)

)

SCOTT MEDICAL HEALTH CENTER, )

P.C.,

)

)

Defendant.

)

______________________________________ )

NATURE OF THE ACTION

This is an action under Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), and Title I of the Civil Rights Act of 1991, to correct unlawful employment practices on the basis of sex (male) to provide appropriate relief to Dale Baxley. As alleged with greater particularity in paragraphs 11(a) through (h) below, the Commission alleges that Defendant subjected Baxley to a sexually hostile work environment perpetuated by Defendant’s telemarketing manager, Robert McClendon. Defendant constructively discharged Baxley as a result of the intolerable working conditions and Defendant’s failure to take prompt and effective action to prevent or alleviate it.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) and (3) (“Title VII”) and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. 2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the Western District of Pennsylvania.

Case 2:16-cv-00225-CB Document 1 Filed 03/01/16 Page 2 of 7
PARTIES 3. Plaintiff, the U.S. Equal Employment Opportunity Commission (the “Commission”), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Section 706(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3). 4. At all relevant times Defendant Scott Medical Health Center, P.C. (“Defendant”), a Pennsylvania professional corporation, has continuously been doing business in the Commonwealth of Pennsylvania and the City of Pittsburgh, and has continuously had at least 15 employees. 5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Charging Parties Libby Eber, Brittany Fullard, Allyssa Griffie, Donna Mackie and Kaitlyn Wieczorek filed charges of discrimination with the Commission alleging violations of Title VII by Defendant. During the course of its investigation of the aforementioned charges of discrimination, the Commission uncovered the violations of Dale Baxley’s rights under Title VII that are reflected in paragraphs 11(a) through (h) of this Complaint. 7. On July 22, 2015, the Commission issued to Defendant a Letter of Determination finding reasonable cause to believe that Title VII was violated, including the violations of Dale Baxley’s rights under Title VII that are reflected in paragraphs 11(a) through (h) of this Complaint, and inviting Defendant to join with the Commission in informal methods of conciliation to endeavor to eliminate the discriminatory practices and provide appropriate relief.
2

Case 2:16-cv-00225-CB Document 1 Filed 03/01/16 Page 3 of 7
8. The Commission engaged in communications with Defendant to provide Defendant the opportunity to remedy the discriminatory practices described in the Letter of Determination.
9. The Commission was unable to secure from Defendant a conciliation agreement acceptable to the Commission.
10. On September 15, 2015, the Commission issued to Defendant a Notice of Failure of Conciliation.
11. Since at least May 2013, Defendant has engaged in unlawful employment practices at its Pittsburgh, Pennsylvania facility, in violation of Section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1). These unlawful practices include, but are not limited to, the following:
(a) Dale Baxley is a gay male. He was previously employed by Defendant in a telemarketing position.
(b) At all relevant times, Robert McClendon was the Telemarketing Manager for Defendant, a supervisor with authority to hire and fire employees who reported to him. Defendant is vicariously liable for his harassing conduct.
(c) Defendant has engaged in sex discrimination against Baxley by subjecting him to a continuing course of unwelcome and offensive harassment because of his sex (male). Such harassment was of sufficient severity and/or pervasiveness to create a hostile work environment because of his sex (male).
(d) From at least mid-July 2013 until on or about August 19, 2013, Robert McClendon routinely made unwelcome and offensive comments about Baxley, including but not limited to regularly calling him “fag,” “faggot,” “fucking faggot,” and “queer,” and making statements such as “fucking queer can’t do your job.” McClendon directed these harassing comments at Baxley at least three to
3

Case 2:16-cv-00225-CB Document 1 Filed 03/01/16 Page 4 of 7
four times each week. (e) From at least mid-July 2013 until on or about August 19, 2013, McClendon
routinely made other unwelcome and offensive sexual comments to Baxley. For instance, upon learning that Baxley is gay and had a male partner (and to whom he is now married), McClendon made highly offensive statements to Baxley about Baxley’s relationship with the partner such as saying, “I always wondered how you fags have sex,” “I don’t understand how you fucking fags have sex,” and “Who’s the butch and who is the bitch?” (f) From at least mid-July 2013 until on or about August 19, 2013, McClendon frequently screamed and yelled at Baxley. (g) On or about August 19, 2013, Defendant constructively discharged Baxley because of his sex (male). Baxley reported McClendon’s sex discriminatory behavior to Defendant’s president, Dr. Gary Hieronimus, but Hieronimus expressly refused to take any action to stop the harassment. Baxley resigned in response to Defendant’s creation of, and refusal to discontinue, a sexually hostile work environment. Defendant knowingly created and permitted working conditions that Baxley reasonably viewed as intolerable and that caused him to resign. (h) McClendon’s aforementioned conduct directed at Baxley was motivated by Baxley’s sex (male), in that sexual orientation discrimination necessarily entails treating an employee less favorably because of his sex; in that Baxley, by virtue of his sexual orientation, did not conform to sex stereotypes and norms about males to which McClendon subscribed; and in that McClendon objected generally to males having romantic and sexual association with other males, and objected
4

Case 2:16-cv-00225-CB Document 1 Filed 03/01/16 Page 5 of 7
specifically to Baxley’s close, loving association with his male partner. 12. The effect of the practices complained of in paragraphs 11(a) through (h) above has been to deprive Baxley of equal employment opportunities and otherwise adversely affect his status as an employee because of his sex. 13. The unlawful employment practices complained of in paragraphs 11(a) through (h) above were intentional. 14. The unlawful employment practices complained of in paragraphs 11(a) through (h) above were done with malice or with reckless indifference to Baxley’s federally protected rights.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant, its officers, agents, servants, employees, attorneys, and all persons in active concert or participation with them, from engaging in sex-based harassing conduct and other employment practices which discriminate on the basis of sex. B. Order Defendant to institute and carry out training, policies, practices, and programs which provide equal employment opportunities based on sex, and which ensure that its operations are free from the existence of a sexually hostile work environment. C. Order Defendant to make Baxley whole, by providing appropriate backpay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to front pay. D. Order Defendant to make Baxley whole by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in
5

Case 2:16-cv-00225-CB Document 1 Filed 03/01/16 Page 6 of 7
paragraphs 11 (a) through (h) above, such as debt-related expenses, job search expenses, medical expenses and other expenses incurred by Baxley, which were reasonably incurred as a result of Defendant's conduct, in amounts to be determined at trial.
E. Order Defendant to make Baxley whole by providing compensation for past and future non-pecuniary losses resulting from the unlawful practices complained of in parabrraphs 11 (a) through (h) above, including emotional pain, suffering, inconvenience, loss of enjoyment oflifo, an<l humiliation. in amounts to be dctcnninc<l at trial.
F. Or<lcr Defendant to pay Baxley punitive <lamagcs for its malicious and reckless conduct described in paragraphs 11 (a) through (h) above. in amounts to he <letem1ined at trial.
G. Grant such further relief us the Court deems necessary and proper in the public interest.
H. Award the Commission its costs of this action. JURY TRlAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its complaint. Respectfully submitted, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION P. DAVID LOPEZ
GENERAL COUNSEL
JAMES L. LEE
DEPUTY GENERAL COUNSEL GWENDOLY'll YOUNG REAMS ASSOCIATE GEl\ERAL C OUNSEL
WASHINGTON, D.C.
.f ~ /DEBRA M. LAWRENCE REGIONAL ATIORNEY
6

Case 2:16-cv-00225-CB Document 1 Filed 03/01/16 Page 7 of 7
EEOC - Philadelphia District Office City Crescent Building, 3rd Floor I0 South Howard Street Baltimore, MD 2120 I (410) 209-2734 (410) 962-4270 (facsimile)
/2, ./)~
RONALD L. PHILLIPS
SUPERVISORY TRIAL ATTORNEY
EEOC - Baltimore Field Office City Crescent Building, 3rd Floor I 0 South Howard Street Bahimorc. \!ID 2120 I (410) 209-2737 (-H 0) 962-4270 (facsimile) ronald.phillips@eeoc.gov
~
DEBORAH A. KANE
SENIOR TRIAL ATTORNEY
Pa. I.D. No. 92531 EEOC - Pittsburgh Area Office 1000 Liberty Avenue, Suite 1112 Pittsburgh, PA 15222 (412) 395-5866 (412) 395-5749 (facsimile) deborah.kane@eeoc.gov
7

 
 Case 2:16-cv-00225-CB Document 48 Filed 11/04/16 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

U.S. EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

SCOTT MEDICAL HEALTH CENTER, )

P.C.,

)

)

Defendant.

)

Civil Action No. 16-225 Judge Cathy Bissoon

MEMORANDUM ORDER The United States Equal Employment Opportunity Commission (“the EEOC” or “the Commission”) brings this action pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”) on behalf of Dale Baxley, a gay male employed and allegedly constructively discharged by Scott Medical Health Center, P.C., (“Defendant”), due to an allegedly sexually hostile work environment perpetuated by Defendant’s telemarking manager, Robert McClendon. See generally, Compl. (Doc. 1). Defendant moves to dismiss Plaintiff’s Complaint on two grounds -first, that pursuant to Federal Rule of Civil Procedure 12(b)(1), the “Court lacks jurisdiction to hear this matter due to Plaintiff’s failure to comply with the procedural requirements of Title VII,” (Def’s Mot. (Doc. 11) at ¶ 2), and second, that pursuant to Federal Rule of Civil Procedure 12(b)(6), Plaintiff has failed to establish a claim on which relief can be granted because, Defendant argues, Title VII does not protect discrimination on the basis of sexual orientation. Id. at ¶ 10. For the reasons below, Defendant’s Motion to Dismiss will be denied.

Case 2:16-cv-00225-CB Document 48 Filed 11/04/16 Page 2 of 14
I. MEMORANDUM BACKGROUND
From mid-July until on or about August 19, 2013, Dale Baxley was employed by Defendant in a telemarketing position. (Doc. 1) at ¶ 11(a) and (g). At all times relevant to the Complaint, Robert McClendon was Defendant’s telemarketing manager. Id. at ¶ 11(b). The Commission alleges that, through Mr. McClendon’s discriminatory behavior, Defendant “engaged in sex discrimination against Baxley by subjecting him to a continuing course of unwelcome and offensive harassment because of his sex.” Id. at ¶ 11(c). Furthermore, Plaintiff alleges, the “harassment was of sufficient severity and/or pervasiveness to create a hostile work environment because of [Mr. Baxley’s] sex.” Id.
Specifically, the Complaint alleges Mr. McClendon “routinely made unwelcome and offensive comments about [Mr.] Baxley, including but not limited to regularly calling him ‘fag,’ ‘faggot,’ ‘fucking faggot,’ and ‘queer,’ and making statements such as ‘fucking queer can’t do your job.’” Id. at ¶ 11(d). Plaintiff alleges these type of harassing comments were made “at least three to four times a week.” Id. Additionally, according to the allegations in the Complaint, “upon learning that [Mr.] Baxley is gay and had a male partner …, [Mr.] McClendon made highly offensive statements to [Mr.] Baxley about [Mr.] Baxley’s relationship with the partner such as saying, ‘I always wondered how you fags have sex,’ ‘I don’t understand how you fucking fags have sex,’ and ‘Who’s the butch and who is the bitch?’” Id. at ¶ 11(e).
On March 1, 2016, the EEOC instituted this action following an investigation of charges of discrimination brought by five of Mr. Baxley’s female former co-workers (the “Charges”). Id. at ¶ 6. In those Charges, the employees alleged they had been subjected to discrimination because of sex. Specifically, the Charges allege that Mr. McClendon subjected the
2

Case 2:16-cv-00225-CB Document 48 Filed 11/04/16 Page 3 of 14
“Complainants to sexual harassment and unwanted touching so frequently and severely that it created a hostile and offensive work environment and resulted in adverse employment decisions being taken against them.” Fullard EEOC Charge, (Doc. 12-1) at ¶ 9; see also Griffie, Mackie, Wieczorek and Eber EEOC Charges (Docs. 12-2 – 12-5).
During the course of the EEOC’s investigation of these Charges, it learned that this alleged harassment extended to Mr. Baxley, and learned of Mr. Baxley’s allegation of constructive discharge. (Doc. 1) at ¶ 6. On July 22, 2015, the Commission issued Letters of Determination to Defendant “finding reasonable cause to believe that Title VII was violated” with regards to the Charging parties, and also stating:
Investigation also revealed that [Mr.] McClendon harassed a male employee because of sex, specifically and repeatedly referring to the male employee as a “faggot,” and repeatedly asking about the employee’s sexual experiences and preferences. The investigation revealed that [Mr.] McClendon targeted this male employee because he did not conform to what [Mr.] McClendon believed was acceptable or expected behavior for a male because of his association with members of the same sex rather than the opposite sex. The harassment created a work environment that was both subjectively and objectively hostile and intolerable because of sex, male. The male employee complained about [Mr.] McClendon’s conduct directly to the President/Chief Executive Officer, who shrugged it off and took no action at all to stop the harassment, which continued. [Defendant’s] failure to engage in prompt and effective action in response to the ongoing harassment resulted in the male employee’s constructive discharge when he quit in August 2013. Fullard Determination, (Doc. 12-6) at 2; see also Griffie, Mackie, Wieczorek and Eber Determination Letters (Docs. 12-7 – 12-10). The EEOC then provided Defendant an opportunity to remedy the discriminatory practices described in the Letter of Determination. (Doc. 1) at ¶ 8. According to the Complaint, the EEOC was unable to reach a conciliation agreement with Defendant that the EEOC found acceptable. Id. at ¶ 9. On September 15, 2015, the EEOC issued to Defendant a Notice of Failure of Conciliation. Id. at ¶ 10. This lawsuit followed.
3

Case 2:16-cv-00225-CB Document 48 Filed 11/04/16 Page 4 of 14
ANALYSIS Defendant’s first basis for urging the Court to dismiss Plaintiff’s case relates to what
Defendant believes are the EEOC’s procedural deficiencies in bringing this suit – deficiencies, Defendant argues, that render the Court unable to hear the dispute for want of subject matter jurisdiction. See Def.’s Br. (Doc. 12) at 4-11. Defendant argues that the EEOC can only litigate claims that have been subjected to the full administrative process required by Title VII and that the EEOC did not abide by the proper process in this case. As part of that procedural deficiency, Defendant argues, the EEOC’s suit is untimely.
The Supreme Court has clarified that the “EEOC is not acting as a proxy for discrimination victims but instead acts on its own authority to vindicate the public interest in eliminating workplace discrimination.” EEOC v. Waffle House, Inc., 534 U.S. 279, 286-88, 296 (2002). Title VII establishes a number of preconditions that must occur in order for the Commission to bring a lawsuit on its own behalf. 42 U.S.C. § 2000e-5(b), (f)(1). First, the EEOC must receive a charge filed on behalf of an employee alleging workplace discrimination. Id. Next, the EEOC must provide notice of the charge to the employer. Id. Then, the EEOC must conduct an investigation into the charge. Id. After its investigation, the EEOC must make a reasonable cause determination. Id. And finally, if the EEOC determines reasonable cause exists, it must engage in conciliation efforts. Id. Only once all of these preconditions have been met can the EEOC file suit. Id. The EEOC has completed each of these prerequisites in the instant case. (Doc. 1) at ¶¶ 6-10.
Defendant would have this Court apply an interpretation of Title VII that imposes identical procedural requirements on the EEOC suing in its own name as the statute imposes on
4

Case 2:16-cv-00225-CB Document 48 Filed 11/04/16 Page 5 of 14
private plaintiffs. The statute does not support such a reading.1 See EEOC v Caterpillar, Inc.,
409 F.3d 831 (7th Cir. 2005); EEOC v. General Electric Co., 532 F.2d 359 (4th Cir. 1976);
EEOC v. Hearst Corp., Seattle Post-Intelligencer Div., 553 F.2d 579 (9th Cir. 1976); EEOC v.
Huttig Sash & Door Co., 511 F.2d 453 (5th Cir. 1975).
Rather, the case law clearly provides that the EEOC’s authority is defined by the
“reasonable investigation” standard. See EEOC v. Kronos, 620 F.3d 287, 297 (3d Cir. 2010)
(“Once the EEOC begins an investigation, it is not required to ignore facts that support additional
claims of discrimination if it uncovers such evidence during the course of a reasonable
investigation of the charge.”) (citing Gen. Tel. Co. of the N.W., Inc. v. EEOC, 446 U.S. 318, 331
(1980) (“Any violations that the EEOC ascertains in the course of a reasonable investigation of
the charging party's complaint are actionable.”) and EEOC v. General Electric, Co., 532 F.2d
359, 364-65 (4th Cir. 1976) (“[T]he original charge is sufficient to support action by the EEOC
… for any discrimination stated in the charge itself or developed in the course of a reasonable
investigation of that charge…”)). Here, the EEOC learned of Mr. McClendon’s alleged
1 To the contrary, the Court of Appeals for the Seventh Circuit has explained:
The difference between the two classes of case is that exhaustion of administrative remedies is an issue when the suit is brought by a private party but not when the Commission is the plaintiff. Were the private party permitted to add claims that had not been presented in the administrative charge filed with the EEOC, the Commission’s informal procedures for resolving discrimination charges … would be by-passed, in derogation of the statutory scheme. That is not an issue when the EEOC itself is the plaintiff, which is why a suit by the EEOC is not confined “to claims typified by those of the charging party,” and why Caterpillar is mistaken to think that the EEOC’s complaint must be closely related to the charge that kicked off the Commission’s investigation. “Any violations that the EEOC ascertains in the course of a reasonable investigation of the charging party’s complaint are actionable.” The charge incites the investigation, but if the investigation turns up additional violations the Commission can add them to its suit. EEOC v Caterpillar, Inc., 409 F.3d 831, 832-33 (7th Cir. 2005) (internal citations omitted).
5

Case 2:16-cv-00225-CB Document 48 Filed 11/04/16 Page 6 of 14
harassment of Mr. Baxley in the course of its “reasonable investigation” into charges of discrimination and harassment brought by his co-workers.
Defendant argues that the EEOC must file a new charge on behalf of a claimant when the allegations raised in the original charge are different from the alleged wrongdoing the EEOC has uncovered through its investigation, “such as racial discrimination claims discovered in the course of investigating a disability discrimination charge.” (Doc. 38) at 7. Defendant misses the mark. Mr. Baxley’s claims do not involve a different type of discrimination. The EEOC alleges that Mr. McClendon discriminated against and harassed Mr. Baxley “because of sex.” The original charges that led to the EEOC’s investigation alleged the very same. That the precise form of the sex discrimination and/or harassment may have differed from individual to individual does not alter this conclusion.
Defendant also argues that the EEOC did not file its Complaint within the appropriate timeframe. (Doc. 12) at 13-16. Defendant further contends that, due to the delay, it had insufficient notice of the investigation into Mr. McClendon’s discrimination of Mr. Baxley and that it “was denied fundamental fairness, as it did not receive prompt notice, and it was not given an opportunity to gather and preserve evidence in anticipation of potential court action.” (Doc. 12) at 16. The Commission responds by noting that the only timeframe discussed in the statute applies to private litigants, not the EEOC itself. See Pl.’s Br. (Doc. 16) at 24-25.2
The Court agrees with the EEOC that there is no relevant statute of limitations when the EEOC sues in its own name. See Occidental Life Ins. Co. v. EEOC, 432 U.S. 355 (1977) (finding no time limitation imposed on the EEOC when filing a suit on its own behalf in an action where the EEOC filed suit approximately three years after the initial Charge and five
2 The Court’s citations to Plaintiff’s briefing reference the ECF Docket page number rather than the page number on the document itself.
6

Case 2:16-cv-00225-CB Document 48 Filed 11/04/16 Page 7 of 14
months after conciliation efforts failed). As discussed, the only preconditions to the EEOC filing suit are those five that are discussed above. The EEOC has alleged sufficient facts in its Complaint that establish it has fully complied with those statutory prerequisites.
Moreover, Defendant’s contention that it had insufficient notice of the EEOC’s investigation into Mr. McClendon’s alleged harassment of Mr. Baxley is belied by the facts asserted by the Commission. The Commission responds that, not only did the EEOC put Defendant on notice regarding the potential for a suit related to Mr. Baxley in its reasonable cause determination letters, but the EEOC’s investigator requested Mr. Baxley’s personnel file in connection with the investigation, met with Defendant’s Chief Executive Officer to ask questions about Mr. Baxley’s complaints, and informed Defendant’s counsel that additional victims, including Mr. Baxley, had been uncovered during the course of the investigation and provided those names. See Rodia Declaration (Doc. 16-2) at ¶¶ 6-9 (“I specifically informed Mr. Saul that I was recommending that the cause of the finding include harassment of Mr. Baxley because of his sex in violation of Title VII.”) Assuming arguendo that Title VII imposes notice requirements beyond the statutory prerequisites (and the Court notes that Defendant has provided no authority that it does), the Court views the notice alleged here to be more than sufficient to alert Defendant to the likelihood of a suit on behalf of Mr. Baxley.3
Accordingly, Defendant’s Motion to Dismiss on the ground that this Court lacks subject matter jurisdiction will be denied.
Defendant additionally asks the Court to dismiss Plaintiff’s Complaint for failure to state a cause of action, arguing that Title VII does not prohibit discrimination based on sexual orientation. (Doc. 12) at 17. Defendant cites Bibby v. Philadelphia Coca-Cola Bottling, Co., 3 It also should be noted that, to the extent that any notice is required – and the Court is not persuaded that it is – the amount of notice provided to Defendant is an issue of fact, in any event.
7

Case 2:16-cv-00225-CB Document 48 Filed 11/04/16 Page 8 of 14
260 F.3d 257 (3d Cir. 2001) and Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3d Cir. 2009) in support of its position, arguing the Court of Appeals for the Third Circuit has consistently held Title VII cannot be extended in this fashion. (Doc. 12) at 17. The EEOC responds that “[t]he lack of an express reference to sexual orientation in the statutory text is not controlling.” (Doc. 16) at 5. The EEOC puts forth what it sees to be three lines of analysis to demonstrate why Title VII covers the type of sexual harassment that Mr. Baxley was subjected to in this matter:
(1) [Mr.] Baxley was targeted because he is a male, for had he been female instead of a male, he would not have been subject to discrimination for his intimate relationships with men; (2) [Mr.] Baxley was targeted and harassed because of his intimate association with someone of the same sex, which necessarily takes Baxley’s sex into account; and (3) [Mr.] Baxley was targeted because he did not conform to his harasser’s concepts of what a man should be or do. Id. The Court views this as the same argument articulated in three different ways, with the singular question being whether, but for Mr. Baxley’s sex,4 would he have been subjected to this discrimination or harassment. The answer, based on these allegations, is no. The Court holds Title VII’s “because of sex” provision prohibits discrimination on the basis of sexual orientation. Accordingly, the EEOC’s Complaint stating that Mr. Baxley was discriminated against for being gay properly states a claim for relief. The Court sees no meaningful difference between sexual orientation discrimination and discrimination “because of sex.” The Supreme Court has consistently applied a broad interpretation of the “because of sex” language in Title VII. Incremental changes have over time broadened the scope of Title
4 The Court, fully acknowledging the terms “sex” and “gender” are meaningfully different, for the purposes of this Memorandum Order, will use the terms interchangeably, noting that much of the precedent interpreting this provision of Title VII similarly conflates the two terms.
8

Case 2:16-cv-00225-CB Document 48 Filed 11/04/16 Page 9 of 14
VII’s protections of sex discrimination in the workplace. See Newport News Shipbuilding and Dry Dock Co. v. EEOC, 462 U.S. 669, 682 (1983) (“Male as well as female employees are protected against discrimination.”); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986) (“[P]laintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment”); Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 82 (1998) (“[W]e conclude that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII.”); Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) (“In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a women cannot be aggressive, or that she must not be, has acted on the basis of gender.”); see also Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004) (applying Title VII’s prohibition on sex stereotyping to harassment of a transgender individual).
In Oncale, the Supreme Court acknowledged that while same sex-harassment likely was not contemplated by Congress when enacting Title VII, it is nonetheless covered under the “because of sex” provision. 523 U.S. at 79-82. “[S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Id. at 79; see also Harris v. Forklift Systems, Inc., 510 US 17, 25 (1993) (GINSBURG, J., concurring) (“The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”).
9

Case 2:16-cv-00225-CB Document 48 Filed 11/04/16 Page 10 of 14
The Supreme Court’s decision in Price Waterhouse, informs and controls the instant analysis.5 In Price Waterhouse, the Supreme Court evaluated whether Price Waterhouse acted
impermissibly in denying promotion to Ann Hopkins because she was too “macho.” 490 U.S. at
235. Ms. Hopkins was told that in order to attain partner status she needed to “walk more
femininely, talk more femininely, dress more femininely, wear make-up, have [her] hair styled,
and wear jewelry.” Id. Put simply, Ms. Hopkins did not conform to the partnership’s
expectations of what a woman should be. As the Supreme Court noted, “if an employee’s flawed
interpersonal skills can be corrected by a soft-hued suit or a new shade of lipstick, perhaps it is
the employee’s sex and not her interpersonal skills that has drawn the criticism.” Id. at 256.
Thus:
We are beyond the day when an employer could evaluate employees by assuming or insisting that [employees] matched the stereotype associated with their group, for “‘[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’”
Id. at 251 (citing Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 707, n. 13
(1978)).
There is no more obvious form of sex stereotyping than making a determination that a
person should conform to heterosexuality. As the EEOC states, “[d]iscriminating against a
5 The Court also finds compelling EEOC and amici curiae’s arguments that the same standard and reasoning that applies when examining cases involving interracial associations also applies in this context. See e.g., Floyd v. Amite Cnty. Sch. Dist., 581 F.3d 244, 249 (5th Cir. 2009) (“This court has recognized that § 1981 and Title VII prohibit discrimination against an employee on the basis of a personal relationship between the employee and a person of a different race.”); Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d. Cir. 2008) (same); Parr v. Woodmen of World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986) (same); see also Price Waterhouse, 490 at 243, n.9 (noting that Title VII “on its face treats each of the enumerated categories exactly the same”). That this rationale is not discussed more fully in no way implies that the Court rejects this line of reasoning. The opposite is true. Only because the Court finds the sex stereotyping rationale sufficiently compelling and dispositive, does it not examine fully the “association” line of cases and how they would apply here.
10

Case 2:16-cv-00225-CB Document 48 Filed 11/04/16 Page 11 of 14
person because of the sex of that person’s romantic partner necessarily involves stereotypes about ‘proper’ roles in sexual relationships – that men are and should only be sexually attracted to women, not men.” (Doc. 16) at 11-12. This discriminatory evil is more than reasonably comparable to the evil identified by the Supreme Court in Price Waterhouse. Indeed, the Court finds discrimination on the basis of sexual orientation is, at its very core, sex stereotyping plain and simple; there is no line separating the two. Contra Prowel, 579 F.3d at 291 (“[T]he line between sexual orientation discrimination and discrimination “because of sex” can be difficult to draw.”). It is, in the view of the undersigned, a distinction without a difference. Forcing an employee to fit into a gendered expectation – whether that expectation involves physical traits, clothing, mannerisms or sexual attraction –constitutes sex stereotyping and, under Price Waterhouse, violates Title VII. Simply put, Mr. McClendon’s alleged conduct toward Mr. Baxley “stemmed from an impermissibly cabined view of the proper behavior” of men. Price Waterhouse, 490 U.S. at 236-37.
Moreover, and for reasons discussed more fully infra, the Court does not view Bibby as dispositive. C.f. Bibby, 260 F.3d at 261 (“Title VII does not prohibit discrimination on the basis of sexual orientation.”). As noted by the EEOC, the Court of Appeals in Bibby was not presented with the same arguments or analytical framework as that put forth by the EEOC in this case. (Doc. 16) at 20. The Bibby plaintiff did not make any argument that sexual orientation discrimination is sex stereotyping. See generally Brief for Appellant, 2001 WL 34117874. Additionally, the Plaintiff in Bibby failed to raise the question of how the impact of interracial association case law could impact the analysis of a sexual orientation discrimination case. Id. “In other words, it appears that in Bibby all parties simply assumed there was a legal distinction between discrimination “because of sex” and sexual orientation discrimination.” (Doc. 16) at 20.
11

Case 2:16-cv-00225-CB Document 48 Filed 11/04/16 Page 12 of 14
Additionally, since the publications of Bibby and Prowel, district courts throughout the country have endorsed an interpretation of Title VII that includes a prohibition on discrimination based on sexual orientation. See Isaacs v. Felder Services, LLC, 2015 WL 6560655, *1193 (M.D. Ala. Oct. 29, 2015) (holding claims of sexual orientation-based discrimination cognizable under Title VII); Terveer v. Billington, 34 F. Supp. 3d 100 (D.D.C. 2014) (same); Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1222 (D. Or. 2002) (“Nothing in Title VII suggests that Congress intended to confine the benefits of that statute to heterosexual employees alone.”); see also Videckis v. Pepperdine Univ., 2015 WL 8916764 (C.D. Cal. Dec. 15, 2015) (finding sex discrimination necessarily includes sexual orientation discrimination under Title IX).
Furthermore, there have been significant intervening legal developments that call into question how the Court evaluated Title VII in Bibby. First, the principles of statutory interpretation relied on by the Court of Appeals in Bibby have since been revisited and revised, rendering suspect Bibby’s statutory analysis. Bibby relied heavily on Congressional inaction on the Employment Non-Discrimination Act, which would have explicitly covered sexual orientation discrimination, as a means of justifying its ultimate conclusion that Title VII does not cover sexual orientation discrimination. However, subsequent Third Circuit decisions have questioned the value of reliance on Congressional inaction. See In re Visteon Corp., 612 F.3d 210, 230 (3d Cir. 2010) (“Evidence of congressional inaction is generally entitled to minimal weight in the interpretive process.”) But, perhaps more importantly, much of the Title VII precedent relied on by the Court of Appeals in Bibby either predated Price Waterhouse or contained little to no analysis, merely accepting as a given that Title VII did not cover sexual orientation discrimination. See generally Bibby 260 F.3d at 261.
12

Case 2:16-cv-00225-CB Document 48 Filed 11/04/16 Page 13 of 14

The Supreme Court’s recent opinion legalizing gay marriage demonstrates a growing recognition of the illegality of discrimination on the basis of sexual orientation. See Obergefell v. Hodges, 135 S.Ct. 2584, 2590 (2015) (“[N]ew insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.”). That someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate. Because this Court concludes that discrimination on the basis of sexual orientation is a subset of sexual stereotyping and thus covered by Title VII’s prohibitions on discrimination “because of sex,” Defendant’s Motion to Dismiss on the ground that the EEOC’s Complaint fails to state a claim for which relief can be granted will be denied.6

II. ORDER For the reasons stated above, Defendant’s Motion to Dismiss (Doc. 11) is DENIED. IT IS SO ORDERED.

November 4, 2016

s/Cathy Bissoon Cathy Bissoon United States District Judge

6 Moreover, the Court would be remiss to ignore the very sexual nature of several of the comments allegedly made by Mr. McClendon to Mr. Baxley. Even leaving everything discussed above aside, these comments are of the type that routinely have been found to give rise to actionable sexual harassment claims under Title VII. See Andrews v. City of Phila., 895 F.2d 1469, 1482 n. 3 (3d Cir.1990) (“the intent to discriminate on the basis of sex in cases involving ... sexually derogatory language [ ] should be recognized as a matter of course.”); Steiner v. Showboat Operating Co., 25 F.3d 1459, 1463 (9th Cir. 1994) (finding comments that were “sexually explicit, offensive, highly derogatory, and publicly made” created an impermissibly hostile work environment under Title VII).
13

Case 2:16-cv-00225-CB Document 48 Filed 11/04/16 Page 14 of 14 cc (via ECF email notification): All Counsel of Record
14

 
 Case 2:16-cv-00225-CB Document 68 Filed 09/13/17 Page 1 of 2

IN THE UNITED FOR THE WESTERN

STATES DISTRICT COURT DISTRICT OF PENNSVL VANIA

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Civil Action: 2: 16-cv-00225-CB

Plaintiff,
V,

SCOTT MEDICAL HEALTH CENTER, P.C. Defendant.

JUDGE CATHY BISSOON

MOTION FOR DEFENDANT

LI0AYE SCOTT

TO WITHDRAW AS MEDICAL HEALTH

COUNSEL J'OR CENTER, P.C.

AND NOW, come MARGOLIS EDELSTEIN, CHARLES H. SAUL, ESQUIRE, and
KYLE T. MCGEE, ESQUIRE to file the within Motion for Leave to Withdraw as Counsel for Defendant Scott Medical Health Center, P.C, ("Scott Medical") as follows:

I.

Margolis Edelstein, Charles II. Saul, Esquire, and Kyle T. McGee were retained

by Scott Medical for legal representation in the above captioned action.

2.

The attorney-client relationship has been irretrievably broken,

3. unpaid.

The undersigned's current billing invoices to Scott Medical have remained

4.

On June 7, 2017, Scott Medical filed a Voluntary Petition for Relief Under

Chapter II of the United States Code, which petition is pending in the United States Bankruptcy

Court for the Westem District of Pennsylvania under Case Number 17-22357.

5.

The undersigned are unable to continue representing Scott Medical without timely

payment for legal services rendered.

6.

Scott Medical has been advised that there are irreconcilable differences and that

the undersigned would be petitioning this Court for leave to withdraw as counseL

Case 2:16-cv-00225-CB Document 68 Filed 09/13/17 Page 2 of 2

7. A succeeding attorney is not known.

8.

Scott Medical has been advised by the undersigned and understands that a lack of

legal representation in this matter could result in a default judgment against Scott Medical.

9. A copy ofthis Motion is being served on Scott Medical.

WHEREFORE, Margolis Edelstein and Charles H. Saul, Esquire, <md Kyle T. McGee, Esquire respectfully request that this Court grant their Motion for Leave to Withdraw as Counsel and grant them leave to withdraw their appearance for Scott Medical in this action. CONSENTED TO:

LTH CENTER, LLC

Scott Medical Health Center, P.C. 2275 Swallow Hill Road Pittsburgh, PA 15220
412-279-4522

Respectfully submitted, MARGOLIS EDELSTEIN

Is/ Charles H. Saul

·--

CHARLES H. SAUL, ESQUIRE

Pa.l.D. #19938

Is! Kyle 1'. McGee

KYLE T. MCGEE, ESQUIRE

Pa.l.D. #205661

Henry W. Oliver Building

535 Smithfield Street, Suite 1100

Pittsburgh, PA 15219

(412) 355-4961

csaulcillmargolisedelstein.com

k•ll<,;g(:>:cfkHI<ll'!ll!Jii?ed£1\t ~,i•l&L'Dl Counselfor Defendant

 
 Case 2:16-cv-00225-CB Document 80 Filed 11/16/17 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

U.S. EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

SCOTT MEDICAL HEALTH CENTER, P.C., )

)

Defendant.

)

Civil Action No. 16-225 Judge Cathy Bissoon

FINDINGS OF FACT AND CONCLUSIONS OF LAW
Based on the evidence presented at the Hearing on Damages held on October 30, 2017, the Court hereby makes the following findings, which are supported by a preponderance of the evidence:
I. FINDINGS OF FACT 1. Dale Massaro was employed by Defendant Scott Medical Health Center, P.C. as a telemarketer from July 24, 2013 to August 16, 2013. (Doc. 77, Tr. at 8:5-6, 20:15-21:7). At the time of his employment, Massaro was known by his unmarried name, Dale Baxley. (Tr. at 4:185:21). 2. Massaro moved to the Pittsburgh area in July 2013. (Tr. at 5:22-6:8). 3. Massaro was excited to move to the Pittsburgh area, because he believed it was an area that would be more accepting of his sexual orientation than the community where he

Case 2:16-cv-00225-CB Document 80 Filed 11/16/17 Page 2 of 16
previously resided, and he had started a new relationship with Anthony Massaro, who lived in the Pittsburgh area. (Tr. at 6:18-7:6, 16:1-5, 23:2-7).1
4. Massaro’s employment with Defendant was his first job after moving to the Pittsburgh area. (Tr. at 7:17-21).
5. Massaro was paid $11.00 per hour, and was scheduled to work 38 hours per week. (Tr. at 8:12-16; Doc. 75, Employee Details; Doc. 79-2, Exhibit A – Back Pay Calculation).2
6. Prior to working for Defendant, Massaro was consistently outgoing and active. He enjoyed spending time with friends. (Tr. at 15:9-18, 15:22-25, 24:9-12, 25:2-5).
7. Prior to working for Defendant, Massaro had lost a significant amount of weight following lap-band surgery and weighed about 180 pounds when he started his telemarketing job. (Tr. at 15:9-14, 28:16-21).
8. Almost immediately after starting work with Defendant, Massaro was subjected to sex-based harassment in the form of anti-gay slurs and comments directed at him by his supervisor, Robert McClendon, including being repeatedly referred to as “faggot” and having to endure offensive questioning about his sex life and relationships. (Tr. at 8:7-9, 8:22-9:15).
9. Massaro reported the harassment to Gary T. Hieronimus, Defendant’s owner and chief executive officer, but Hieronimus refused to take action to stop the harassment, instead stating that McClendon “was just doing his job.” (Tr. at 9:25-10:2, 11:23-12:11, 35:22-36:1).
10. After his report to Hieronimus, the harassment continued, and consequently Massaro decided to quit his job. (Tr. at 12:19-13:12).
1 Unless otherwise indicated, Dale Massaro is referred to herein as “Massaro” and Anthony Massaro is referred to herein by his full name, “Anthony Massaro.” 2 The payroll records show that Dale Massaro took half-hour unpaid breaks when he worked Monday through Thursday.

Case 2:16-cv-00225-CB Document 80 Filed 11/16/17 Page 3 of 16
11. As a consequence of the harassment he endured while employed by Defendant, Massaro became frustrated and distraught about the harassment, to the point of often crying. (Tr. at 25:22-26:1, 33:13-21).
12. As a consequence of the harassment he endured while employed by Defendant, Massaro became irritable, lashing out at his then-boyfriend, Anthony Massaro. Massaro also stopped socializing with friends. (Tr. at 17:11-18, 26:11-19, 30:5-10, 30:17-24).
13. As a consequence of the harassment he endured while employed by Defendant, Massaro began overeating, gaining as much as fifteen (15) pounds in a few weeks. (Tr. at 27:22, 28:2-7).
14. As a consequence of the harassment he endured and being forced to resign his employment, Massaro felt depressed. (Tr. at 16:6-9). After Massaro resigned his position, he isolated himself from family and friends, and experienced changes to his sleeping habits. (Tr. at 16:16-25, 27:1-6, 29:20-30:4, 34:17-24). He felt like he was not himself anymore, felt abused and unfairly treated, and hated himself. (Tr. at 16:11-15).
15. Massaro’s feelings of depression and other emotional distress resulting from the harassment and loss of employment also manifested themselves as adverse changes in his appearance and personal habits, such as his manner of dress and personal hygiene. (Tr. at 24:717; 26:11-25, 28:22-29:6, 29:10-16). Additionally, in the six months after his resignation, Massaro also experienced a substantial weight gain resulting from overeating caused by his emotional distress. (Tr. at 17:1-10, 27:7-28:15, 34:17-24).
16. Massaro’s depression and irritability caused by the harassment and job loss also negatively affected his relationship with his future spouse, Anthony Massaro, to the point that

Case 2:16-cv-00225-CB Document 80 Filed 11/16/17 Page 4 of 16
they briefly ended their relationship between December 2013 and January 2014. (Tr. at 17:1118, 30:17-24).
17. In late 2013, Massaro started receiving counseling for his depression through an employee assistance program (EAP). He spoke with an EAP counselor by phone once or twice a week for a couple of months. (Tr. at 17:19-18:2, 18:10-20).
18. Massaro also received medical treatment for his emotional distress from his family physician, Dr. Berge, which included a prescription for Lexapro, an anti-depressant, and Ativan, a medication for sleep issues.3 (Tr. at 18:21-19:3). Massaro recalls receiving those prescriptions in early 2014. (Tr. at 19:19-20:2). He had never been prescribed such medications before, nor had he been treated for depression or anxiety before. (Tr. at 19:19-20:14 34:10-16).
19. Other than the harassment he suffered while working at Defendant, there was nothing else occurring in Massaro’s life to explain his depression and other emotional distress. (Tr. at 19:4-9; 34:25-35:3).
20. After leaving Defendant’s employ on August 16, 2013, Massaro was unemployed until he started a job working with people with intellectual disabilities with PA Mentor on September 15, 2013, where he earned $10.25 per hour. He remained employed with PA Mentor through January 2016. (Tr. at 13:13-14:8).
21. Massaro began working for Mainstay Life Services on December 1, 2015, again working with people with intellectual disabilities, earning $11.50 per hour. (Tr. at 14:12-20).
22. Defendant, through its owner and chief executive officer Gary T. Hieronimus, was at all relevant times aware that sex-based harassment was unlawful. (Tr. at 39:7-18).
3 The transcript misspells the physician’s name as “Berkey.”

Case 2:16-cv-00225-CB Document 80 Filed 11/16/17 Page 5 of 16

23. Indeed, Defendant’s anti-harassment policies in effect at the time of Massaro’s

employment stated that harassment because of sexual orientation was unlawful. (Tr. at 37:17-

39:6, 39:20-42:3).

24. Although Defendant had an anti-harassment policy, Massaro was never trained on

the policy, and was not permitted to read or have a copy of the policy. (Tr. at 10:11-11:11; Ex.

A).

25. Robert McClendon, as the manager of the telemarketing department, was

responsible for hiring and training employees in his department. (Tr. at 42:4-10, 43:1-16).

26. Hieronimus did not train Robert McClendon on Defendant’s anti-harassment

policy and could not identify anyone who would have provided such training. (Tr. at 42:16-24).

27. Defendant did not assert a “good faith” defense pursuant to Kolstad v. Am. Dental

Ass’n, 527 U.S. 526 (1999). (Doc. 50, Defendant’s Answer).

28. At all relevant times, Defendant has employed less than 101 employees.

(Defendant’s Answer at ¶4 (admitting that it employed at least 15 employees); Tr. at 36:19-

37:15).

29. The Court entered a default judgment on liability against Defendant and in favor

of Plaintiff, the U.S. Equal Employment Opportunity Commission (“EEOC”), on September 25,

2017. (Doc. 72).

II. CONCLUSIONS OF LAW

Back Pay and Prejudgment Interest

I.

Title VII authorizes back pay relief to victims of discrimination. 42 U.S.C.

§2000e-5(g) (establishing entitlement to back pay less “[i]nterim earnings or amounts earnable

with reasonable diligence by the person or person discriminated against”). In determining a back

Case 2:16-cv-00225-CB Document 80 Filed 11/16/17 Page 6 of 16

pay award, a district court has wide latitude to “locate ‘a just result’” for the purpose of

effectuating the “make whole remedy of Title VII in light of the circumstances of a particular

case.” Taxman v. Board of Educ., 91 F.3d 1547, 1565 (3d Cir. 1996) (quoting Albermarle).

There is a strong presumption in favor of back pay awards where discrimination has been found.

Albermarle, 422 U.S. at 421 n.12. As such, back pay should be denied “only for reasons which,

if applied generally, would not frustrate the central statutory purposes of eradicating

discrimination throughout the economy and making persons whole for injuries suffered through

past discrimination.” Id.

II.

Prejudgment interest on back pay awards is appropriate to ensure that victims of

discrimination are made whole. West Virginia v. United States, 479 U.S. 305, 311 n.2 (1987)

(“Prejudgment interest serves to compensate for the loss of use of money due as damages from

the time the claim accrues until judgment is entered, thereby achieving full compensation for the

injury those damages are intended to redress.”). Prejudgment interest “serves to compensate a

plaintiff for the loss of the use of money that the plaintiff otherwise would have earned had he

not been unjustly discharged.” Booker v. Taylor Milk Co., 64 F.3d 860, 868 (3d Cir. 1995); see

also Arco Pipeline Co. v. SS Trade Star, 693 F.2d 280, 281 (3d Cir. 1982) (“The purpose of

prejudgment interest is to reimburse the claimant for the loss of the use of its investment or its

funds from the time of the loss until judgment is entered.”). The Third Circuit has acknowledged

that “[a]s with the back pay award, prejudgment interest helps to make victims of discrimination

whole.” Booker, 64 F.3d at 868. Use of the adjusted prime rate, pursuant to 26 U.S.C. §6621, is

appropriate in calculating prejudgment interest on back pay awards. Taxman, 91 F.3d at 1566.

3. The Court finds that EEOC, has proven by preponderance of the evidence that

Dale Massaro is entitled to a back pay award. The Court adopts EEOC’s back pay calculation,

Case 2:16-cv-00225-CB Document 80 Filed 11/16/17 Page 7 of 16
submitted at trial, which includes prejudgment interest using the adjusted prime rate. The Court therefore awards Massaro back pay in the amount of $5,500.43. Compensatory Damages
4. Compensatory damages are recoverable from a covered entity that has committed intentional discrimination in violation of Title VII, such as sex harassment and constructive discharge. 42 U.S.C. §1981a(a)(2). The compensatory damages available include recovery for “future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses.” 42 U.S.C. § 1981a(b)(3). A discrimination victim’s testimony may be sufficient, standing alone, to justify an award of compensatory damages. See Shesko v. Coatesville, 324 F. Supp. 2d 643, 652 (E.D. Pa. 2004) (denying motion for remittitur of a compensatory damages award, holding that plaintiff’s own testimony about her sadness and depression, and the difficulty of seeing another person promoted to the position she wanted, was sufficient to support the award).
5. By operation of 42 U.S.C. §1981a(b)(3), non-pecuniary compensatory and/or punitive damages available for violations of Title VII are subject to a maximum limit on awards, depending on the number of employees. Defendant at all relevant times had fewer than 101 employees, therefore the applicable statutory limit on compensatory and/or punitive damages is $50,000.00. 42 U.S.C. §1981a(b)(3)(A).
6. The Court finds that EEOC has proven by a preponderance of the evidence that Massaro is entitled to an award of non-pecuniary compensatory damages. The witness testimony in this matter demonstrates that Massaro sustained significant emotional distress caused by McClendon’s severe harassment of Massaro and his resulting loss of employment (constructive

Case 2:16-cv-00225-CB Document 80 Filed 11/16/17 Page 8 of 16
discharge), including depression, anxiety, social isolation, changes to his sleeping patterns, and significant weight gain.
7. Based on the aforementioned facts, the Court finds that EEOC has proven that Massaro sustained compensatory damages in excess of the $50,000.00 statutory damages limit set forth at 42 U.S.C. §1981a(b)(3)(A). Although an award above $50,000.00 would be consistent with other cases where comparable emotional distress was found, see, e.g., Ridley v. Costco Wholesale Corp., 217 F. App’x 130, 137 (3d Cir. 2007) (upholding $200,000 emotional distress award in Title VII retaliation case, where plaintiff and his wife testified about his emotional distress, including difficulty sleeping, weight loss, and social isolation); Gagliardo v. Connaught Labs., 311 F.3d 565, 573-74 (3d Cir. 2002) (in disability discrimination case brought under both federal and state law, upholding $2 million compensatory damages award for plaintiff with multiple sclerosis who presented testimony that her discharge transformed her from a happy and confident person to one who was withdrawn and indecisive); Tureaud v. Grambling State Univ., 294 Fed. App’x 909, 916, 2008 WL 4411438, at *7 (5th Cir. 2008) (holding $140,000 compensatory award in Title VII discharge case not excessive; plaintiff testified to weight gain and feeling depressed and humiliated); Hall v. Pa. Dep’t of Corrections, No. 3V-02-1255, 2006 WL 2772551, at *20-23 (M.D. Pa. Sep. 25, 2006) ($75,000 compensatory award, reduced from $300,000, where sole damages evidence was plaintiff’s testimony that she felt “embarrassed” by verbal harassment, but continued working; no evidence of need for counseling or other treatment or that plaintiff’s relationships had been affected by hostile work environment); see also Bolden v. SEPTA, 21 F.3d 29, 33-34 (3d Cir. 1994) (affirming award of $250,000 for compensatory damages in a Section 1983 claim, where the plaintiff, his wife and daughter testified about how he had changed after being discharged following an unconstitutional drug test), in conformity

Case 2:16-cv-00225-CB Document 80 Filed 11/16/17 Page 9 of 16
with the maximum award authorized by statute, the Court cannot award more than $50,000.00 in compensatory damages. Punitive Damages
8. Punitive damages may be awarded upon a showing that the covered entity has “engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. §1981a(b)(1). “The employer’s conduct need not be independently ‘egregious’ to satisfy §1981a’s requirements for a punitive damages award, although evidence of egregious misconduct may be used to meet the plaintiff’s burden of proof.” Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 546 (1999). An employer may be vicariously liable for the discrimination of its employee if the employee was serving in a “managerial capacity” and committed the wrong while “acting in the scope of his employment.” Id. at 542-44, 45.
9. The Court finds that EEOC has proven by a preponderance of the evidence that Massaro is entitled to an award of punitive damages. The uncontroverted evidence shows that Defendant was aware that federal law prohibited sex-based harassment. McClendon was the telemarketing manager, responsible for hiring as well as training the employees in his department. The uncontroverted evidence also shows that Defendant ignored Massaro’s report of harassment, and instead, through its chief executive officer, stated that the harasser was “just doing his job.” In other words, Defendant, acting through an alter ego or proxy of the corporation, tolerated and ratified the Title VII violation in this case, affirmatively allowing a manager to create and perpetuate a sexually hostile working environment in the face of its obligation to prevent and correct such an environment.
10. An employer may establish an affirmative defense to punitive damages by

Case 2:16-cv-00225-CB Document 80 Filed 11/16/17 Page 10 of 16
proving that a managerial employee’s discriminatory conduct was contrary to the employer’s good faith efforts to comply with Title VII’s prohibitions. See Romano v. U-Haul Int’l, 233 F.3d 655, 670 (1st Cir. 2000) (“The defendant . . . is responsible for showing good faith efforts to comply with the requirements of Title VII”); Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 385 (2d Cir. 2001) (referring to the defense as an affirmative defense that “requires an employer to establish both that it had an antidiscrimination policy and made good faith effort to enforce it”). However, in its Answer, Defendant failed to plead the “good faith efforts” affirmative defense to punitive damages, see Defendant’s Answer (Doc. 50), and that defense was therefore waived, e.g., Fed. R. Civ. P. 8(c)(1). Defendant has not presented any evidence to support such a defense.
11. Furthermore, the uncontested evidence presented by EEOC, which this Court credits, demonstrates that Defendant did not, in fact, make good faith efforts to comply with Title VII. To the contrary, EEOC’s evidence shows that Defendant, acting through its owner and CEO Hieronimus, not only failed to take corrective action in response to Massaro’s complaint of a sexually hostile work environment, but actually ratified the harasser’s conduct and intentionally permitted the harassment to persist, resulting in Massaro’s constructive discharge. The good faith efforts defense to punitive damages is unavailable for discriminatory acts committed by company officials who are of sufficient authority within the organization that they are deemed alter egos or proxies of the organization under agency principles, such as owners or corporate officers. Passantino v. Johnson & Johnson Consumer Products, Inc., 212 F.3d 493, 516 (9th Cir. 2000) (employees with positions sufficiently high up in the company are considered proxies and thus prevent the company from asserting a vicarious liability defense to punitive damages); see also Hightower v. Roman, Inc., 190 F. Supp. 2d 740, 753-54 (D.N.J.

Case 2:16-cv-00225-CB Document 80 Filed 11/16/17 Page 11 of 16
2002) (denying summary judgment where issue of fact remained about alleged harasser’s role in the company and whether he was sufficiently senior to be a proxy). Additionally, Massaro testified that he was not informed of the contents of Defendant’s anti-harassment policy, never received a copy, and was never trained about harassment in the workplace. Hieronimus placed McClendon, the telemarketing manager, in charge of informing employees in his department of the company’s policies, yet was unaware of whether McClendon had received training on those policies, and did not train McClendon himself.
12. The Court therefore finds that EEOC has proven by a preponderance of the evidence entitlement to an award of punitive damages. Some relevant factors to consider in determining the amount of punitive damages that should be awarded include: 1) whether the defendant employer should be punished for the conduct; 2) whether punitive damages are necessary to deter future similar wrongful conduct by the defendant; 3) whether an award of punitive damages will deter others from engaging in similar wrongful conduct; 4) the degree to which a defendant should be punished, or the degree to which a punitive damages award will act as a deterrent; and 5) the financial resources of the defendant. See, e.g., Third Circuit Model Jury Instructions For Employment Discrimination Claims Under Title VII, Instruction 5.4.2 – Punitive Damages (last updated March 2017).
13. Applying the aforementioned factors, the Court finds that punitive damages in the amount of $75,000.00 would be warranted by the evidence. The discrimination for which Defendant has been found liable was intentional and egregious and warrants punishment. Furthermore, to the best of this Court’s knowledge, Defendant’s business operations are ongoing, and its discriminatory conduct proven by EEOC must be deterred in the future for the protection of Defendant’s current and future workforce. Defendant’s discriminatory conduct that was

Case 2:16-cv-00225-CB Document 80 Filed 11/16/17 Page 12 of 16
established by EEOC included not only the sex harassment committed by McClendon but also Hieronimus’s ratification of that harassing conduct, actions that reflect a substantial deviation from the requirements of Title VII. Given that Hieronimus remains the owner and CEO of Defendant, there also remains a significant risk of future violations of Title VII that must be deterred. A punitive damages award in the amount identified is likely to serve as a substantial deterrent to Defendant and other employers from engaging in similar violations of Title VII in the future. While the EEOC has not presented evidence of the financial resources of Defendant, the Court is aware that Defendant has filed a Chapter 11 bankruptcy petition, a factor that the Court has considered; however, the fact of potential insolvency or limited resources does not, by itself, immunize an employer from punitive damages, particularly in view of the important Title VII objective of general deterrence of other employers from engaging in similar violations of law.
14. Notwithstanding the view of the Court that $75,000 would be an appropriate punitive damages award in this case, by operation of the statutory damages cap the aggregate amount awarded for compensatory damages for emotional distress and punitive damages combined cannot exceed $50,000.00. 42 U.S.C. § 1981a(b)(3). Injunctive Relief
15. The standard for awarding injunctive relief is set out clearly in Title VII: If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate. 42 U.S.C. § 2000e-5(g)(1). In Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), the

Case 2:16-cv-00225-CB Document 80 Filed 11/16/17 Page 13 of 16
Supreme Court held that Section 706(g)(1) not only permits the issuance of injunctions, but in fact imposes upon district courts a “duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.” Id. at 418 (emphasis added).4 The Court of Appeals for the Third Circuit has recognized this duty to issue appropriate injunctive relief in order to advance the twin goals of Title VII, remediation and prevention. See Mardell v. Harleysville Life Insurance Co., 31 F.3d 1221, 1238-39 (3d Cir. 1994), amended on other grounds, 65 F.3d 1072 (3d Cir. 1995).
16. It is not necessary for a plaintiff to prove ongoing discrimination, or a pattern or practice of discrimination, to justify injunctive relief. See EEOC v. Frank’s Nursery & Crafts, Inc., 177 F.3d 448, 468 (6th Cir. 1999) (“It is clear that the EEOC may obtain relief that protects a class of persons from unlawful employment discrimination without citing numerous instances of such discrimination. While the right to such relief is not absolute, and the power to order it rests in the hands of the lower courts, the EEOC may seek it upon proof even of just one instance of discrimination that violates Title VII. In exercising its discretion to determine the extent of injunctive relief warranted the district court must be guided by the purposes of Title VII, a primary purpose being prophylaxis, i.e., deterrence of future violations of law. See, e.g., North Hudson Regional Fire & Rescue, 665 F.3d at 86; Evans v. Harnett Cty. Bd. of Educ., 684 F.2d
4 In eBay Inc. v. MercExchange, LLC, 547 U.S. 388 (2006), the Supreme Court articulated a familiar four-factor test to determine permanent injunctive relief, which in that case involved injunctive relief for violations of the Patent Act: (1) that [the plaintiff] has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and the defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. Id. at 291. These factors inform the Court’s discretion, though as the Supreme Court earlier instructed in Albemarle Paper, they are to be applied with due regard to the affirmative duty of the district court to enter a decree that eradicates present effects of past discrimination and prevents future violations of Title VII.

Case 2:16-cv-00225-CB Document 80 Filed 11/16/17 Page 14 of 16
304, 306 (4th Cir. 1982) (citing Albemarle Paper, holding district court erred by not enjoining unlawful practices, and stating, “[Plaintiff] and other black applicants are entitled to be considered for future appointments free of the taint of the invidious discrimination that the district court found”); EEOC v. Conn-X, LLC, Civil Case No. L-09-2881, 2012 WL 456870, at *1-2 (D. Md., Feb. 9, 2012) (citing preventive purpose of Title VII and the public interest in preventing future discrimination, enjoining defendant from any further religious harassment or discrimination though victims no longer employed).
18. To avoid injunctive relief after a finding of a Title VII violation, the burden is on the employer to demonstrate that the type of violation at issue is unlikely to recur under the circumstances. See, e.g., EEOC v. Service Temps, Inc., 679 F.3d 323, 338 (5th Cir. 2012) (holding injunction presumptively appropriate upon finding Title VII violation and disregarding defendant’s argument that EEOC failed to adduce evidence showing need for injunction); EEOC v. Goodyear Aerospace Corporation, 813 F.2d 1539, 1544-1545 (9th Cir. 1987) (“If the EEOC proves its case, and [the defendant] fails to prove the violation will likely not recur, the EEOC will be entitled to an injunction); EEOC v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244, 1253-54 (11th Cir. 1997) (reversing district court denial of injunction as abuse of discretion and remanding case to enable court to grant such relief unless it “finds persuasive reasons to deny particular items of relief”).
19. Upon a finding that an injunction is warranted, the terms of that injunction should be formulated so as to be no broader or more burdensome than are necessary to achieve its objectives and secure complete relief. See, e.g., Milliken v. Bradley, 433 U.S. 267, 279-80 (1977).

Case 2:16-cv-00225-CB Document 80 Filed 11/16/17 Page 15 of 16
20. The Court finds that EEOC has proven that an injunction against Defendant is warranted in this case. The likelihood of future violations may be inferred from past unlawful conduct, see, e.g., United States v. Rx Depot, Inc., 290 F. Supp.2d 1238, 1247 (N.D. Okla. 2003) (citing authorities). Defendant committed an intentional violation of Title VII by subjecting Massaro to a hostile work environment because of his sex and constructively discharging him as a result of its refusal to take action to stop the harassment and correct its work environment.
21. Furthermore, an injunction is warranted where individuals who were involved in the discrimination (whether through direct participation in the unlawful conduct or by condoning or tolerating the conduct) remain employed by the defendant and in positions of authority. See, e.g., EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569, 1579 (7th Cir. 1996) (affirming injunction where decision-makers regarding unlawful denial of religious accommodation remained primary decision-makers regarding accommodations); Bundy v. Jackson, 641 F.2d 934, 946 n.13 (D.C. Cir. 1981) (reversing denial of injunctive relief in a sexual harassment case in part on the grounds that the individuals who perpetrated the violations remained employed); EEOC v. Red River Beverage Co., No. Civ. A. 3:99-CV-1685, 2003 WL 21317861, at *1 (N.D. Tex., Mar. 7, 2003) (noting manager who terminated aggrieved person remained employed and was promoted by defendant; ordering three-year injunction); Sherman v. Kasotakis, 314 F. Supp. 2d 843, 879 (N.D. Iowa 2004) (issuing permanent injunction in Title II public accommodations case, where plaintiffs were subjected to racist statements by restaurant server, server was known to make such statements in the past, supervisor took no action, and defendant took unyielding position at trial that its actions were reasonable, all evidence to the contrary); Sanchez v. Miami Beach, 720 F. Supp. 974, 982 (S.D. Fla. 1989) (issuing permanent injunction in favor of plaintiff female police officer in sexual harassment case, where current police officers testified at trial that they

Case 2:16-cv-00225-CB Document 80 Filed 11/16/17 Page 16 of 16

believed objectively offensive pictures and posters were just “jokes,” and defendant city

implicitly condoned the conduct by taking no disciplinary action against the perpetrators). See

also EEOC v. KarenKim, Inc., 698 F.3d 92, 100-01 (2d Cir. 2012) (holding district court abused

discretion by not issuing injunction barring defendant from reemploying terminated harasser and

barring defendant from allowing him on premises; noting continuing ability of harasser to have

access to store). In this case, the testimony demonstrates that Gary Hieronimus, Defendant’s

owner and chief executive officer, not only tolerated but in fact ratified the violations of Title

VII in this case, and Hieronimus remains the owner and chief executive of Defendant, thus

presenting a significant risk of recurring violations of the type at issue in this case.

22. Finally, there is no evidence that Defendant has subsequently undertaken any

training, policies or programs geared specifically to preventing the violations that occurred in

this case from recurring. An injunction is warranted in such circumstances. See, e.g., Bundy v.

Jackson, 641 F.2d 934, 946, n.13 (D.C. Cir. 1981) (reversing denial of injunctive relief in a

sexual harassment case on the grounds the evidence showed that the employer had demonstrated

no action taken to prevent recurrence of the Title VII violations).

* * *

Based on the foregoing, the Court finds that Plaintiff has demonstrated its entitlement to back

pay, compensatory and punitive damages on behalf of Mr. Massaro, as well as to injunctive

relief. An appropriate Judgment Order will follow.

November 16, 2017
cc (via ECF email notification): All counsel of record

s\Cathy Bissoon Cathy Bissoon United States District Judge

 
 Case 2:16-cv-00225-CB Document 81 Filed 11/16/17 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

U.S. EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

SCOTT MEDICAL HEALTH CENTER, P.C., )

)

Defendant.

)

Civil Action No. 16-225 Judge Cathy Bissoon

JUDGMENT ORDER Based on the findings of fact and conclusions of law in this action, it is hereby ORDERED that: 1. Defendant, its owners, officers, directors, employees, and any successors are PERMANENTLY ENJOINED from engaging in any employment practice that discriminates because of sex in violation of Title VII of the Civil Rights Act of 1964, as amended, including creating, facilitating or tolerating the existence of a work environment that is hostile to employees because of sex. In accordance with this Court’s prior ruling in this Action, see Doc. 48, the term “sex” as used in this Order includes sexual orientation, sex or gender stereotypes, or association with an individual of a certain sex; AND 2. Defendant shall furnish to the EEOC a written report regarding each complaint or allegation (whether formal or informal, verbal or written) or charge of sex harassment made by any employee (whether made directly to Defendant or communicated to Defendant by another manner) at any time during a period of five (5) years from the entry of this Order. The written report shall contain the following: (1) the name, last known home address, last known home

Case 2:16-cv-00225-CB Document 81 Filed 11/16/17 Page 2 of 3
telephone number and cell phone number (as applicable), and job title of the person making the complaint, allegation or charge; (2) the date of the complaint, allegation or charge; (3) a verbatim recitation of the specific allegations of harassment that were made; (4) the name(s), last known home addresses, last known home telephone numbers and cell phone numbers (as applicable), and job titles of any person(s) accused of such harassment and any potential witnesses; (5) a verbatim recitation of any statements made by each alleged perpetrator and each witness who was interviewed as part of an investigation; (6) a detailed description of all actions taken to investigate the complaint; and (7) a description of Defendant’s conclusions regarding the complaint and any corrective action in response to the complaint. Defendant shall append to such reports any and all complaint, allegation or charge documents and any other documents generated or received by Defendant in relation to the complaint, allegation or charge, including but not limited to investigative memoranda, interview notes, employment records, disciplinary records, and any other material of any character. Such reports must be served on the EEOC counsel of record within ten (10) days of Defendant’s knowledge of any sex harassment complaint, allegation or charge and updated each thirty (30) days thereafter until Defendant takes final action on the complaint, allegation or charge.
3. Judgment is entered, in favor of Plaintiff and against Defendant, in the amount of $55,500.43. Specifically, the Court awards:
$5,500.43 Back pay $25,000.00 Compensatory damages, pursuant to cap $25,000.00 Punitive damages, pursuant to cap -------------$55,500.43 Total

Case 2:16-cv-00225-CB Document 81 Filed 11/16/17 Page 3 of 3

The Court, having resolved all matters before it, will enter herewith an Order under Federal Rule 58 and mark this case closed.
IT IS SO ORDERED.

November 16, 2017
cc (via ECF email notification): All counsel of record

s\Cathy Bissoon Cathy Bissoon United States District Judge

 
 Case: 2:16-cv-225 As of: 05/22/2018 10:27 AM EDT 1 of 13
CLOSED,DJOPT,RL
U.S. District Court Western District of Pennsylvania (Pittsburgh) CIVIL DOCKET FOR CASE #: 2:16−cv−00225−CB

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. SCOTT MEDICAL HEALTH CENTER, P.C. Assigned to: Judge Cathy Bissoon related Case: 2:15−cv−01682−CB Cause: 42:1981 Civil Rights
Plaintiff

Date Filed: 03/01/2016 Date Terminated: 11/16/2017 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

represented by Deborah A. Kane United States Equal Employment Opportunity Commission William S. Moorhead Federal Building 1000 Liberty Avenue, Suite 1112 Pittsburgh, PA 15222 (412) 395−5866 Email: DEBORAH.KANE@EEOC.GOV LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine N. Sellers U.S. Equal Employment Opportunity Commission Baltimore Field Office George H. Fallon Federal Building 31 Hopkins Plaza, Suite 1432 Baltimore, MD 21201 410−209−2233 Fax: 410−209−2221 Email: catherine.sellers@eeoc.gov ATTORNEY TO BE NOTICED

Ronald L. Phillips U.S. Equal Employment Opportunity Commission − Baltimore Fie City Crescent Building, 3rd Floor, 10 S. Howard Street Baltimore, MD 21201 410−209−2737 Fax: 410−962−4270 Email: ronald.phillips@eeoc.gov ATTORNEY TO BE NOTICED

V.
Defendant
SCOTT MEDICAL HEALTH CENTER, P.C.

represented by SCOTT MEDICAL HEALTH CENTER, P.C. PRO SE
Charles H. Saul Margolis Edelstein 535 Smithfield Street Suite 1100 Pittsburgh, PA 15222 (412) 281−4256 Email: csaul@margolisedelstein.com TERMINATED: 09/13/2017

Case: 2:16-cv-225 As of: 05/22/2018 10:27 AM EDT 2 of 13

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kyle T. McGee Margolis Edelstein 535 Smithfield Street Suite 1100 Pittsburgh, PA 15222 (412) 281−4256 Fax: (412) 642−2380 Email: kmcgee@margolisedelstein.com TERMINATED: 09/13/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA ACLU of Pennsylvania

represented by Sara Rose ACLU 247 Fort Pitt Boulevard Pittsburgh, PA 15222 (412) 681−7864 Fax: (412) 681−8707 Email: srose@aclupa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
AMERICAN CIVIL LIBERTIES UNION

represented by Ria Tabacco Mar American Civil Liberties Union 125 Broad Street, 18th Floor New York, NY 10004−2400 212−549−2627 Email: rmar@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lenora Lapidus American Civil Liberties Union 125 Broad St., 18th Fl. New York, NY 10004 212−549−2668 Email: llapidus@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA

represented by Ria Tabacco Mar (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lenora Lapidus (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
9TO5 NATIONAL ASSOCIATION OF WORKING WOMEN

represented by Ria Tabacco Mar (See above for address) LEAD ATTORNEY

Case: 2:16-cv-225 As of: 05/22/2018 10:27 AM EDT 3 of 13

PRO HAC VICE ATTORNEY TO BE NOTICED

Lenora Lapidus (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
CALIFORNIA WOMENS LAW CENTER

represented by Ria Tabacco Mar (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lenora Lapidus (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus A BETTER BALANCE

represented by Ria Tabacco Mar (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lenora Lapidus (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus EQUAL RIGHTS ADVOCATES

represented by Ria Tabacco Mar (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lenora Lapidus (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
FEMINIST MAJORITY FOUNDATION

represented by Ria Tabacco Mar (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lenora Lapidus (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus GENDER JUSTICE

represented by Ria Tabacco Mar (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:16-cv-225 As of: 05/22/2018 10:27 AM EDT 4 of 13

Amicus LEGAL VOICE
Amicus NATIONAL WOMENS LAW CENTER
Amicus SOUTHWEST WOMENS LAW CENTER
Amicus WOMENS LAW CENTER OF MARYLAND
Amicus WOMEN'S LAW PROJECT WESTERN PENNSYLVANIA

Lenora Lapidus (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Ria Tabacco Mar (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lenora Lapidus (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Ria Tabacco Mar (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lenora Lapidus (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Ria Tabacco Mar (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lenora Lapidus (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Ria Tabacco Mar (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lenora Lapidus (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Ria Tabacco Mar (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Lenora Lapidus

Case: 2:16-cv-225 As of: 05/22/2018 10:27 AM EDT 5 of 13

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Amicus
LAMBDA LEGAL DEFENSE AND EDUCATION FUND

represented by Gregory R. Nevins Lambda Legal 730 Peachtree Street, NE Suite 1070 Atlanta, GA 30308 (404) 897−1880 Fax: (404) 897−1884 Email: gnevins@lambdalegal.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Omar Gonzalez−Pagan Lambda Legal Defense and Education Fund, Inc. 120 Wall Street, 19th Floor New York, NY 10005 (212) 809−8585 Fax: (212) 809−0055 Email: ogonzalez−pagan@lambdalegal.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Tracie L. Palmer Kline & Specter, PC 1525 Locust Street The Nineteenth Floor Philadelphia, PA 19102 215−772−1000 Fax: 215−735−0937 Email: tracie.palmer@klinespecter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

David C. Williams Kline & Specter, P.C. 1525 Locust Street 19th Floor Philadelphia, PA 19102 215−772−1000 Fax: 215−735−5827 Email: David.Williams@klinespecter.com PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 03/01/2016 03/03/2016
03/03/2016

# Docket Text
1 COMPLAINT against SCOTT MEDICAL HEALTH CENTER, P.C., filed by U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Civil Cover Sheet) (plh) (Entered: 03/01/2016)
2 First MOTION for attorney Ronald L. Phillips to Appear Pro Hac Vice, (Filing fee $40, Receipt # 0315−3882603) by U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Affidavit Declaration of Ronald Phillips, # 2 Proposed Order) (Kane, Deborah) (Entered: 03/03/2016)
3 ORDER denying as moot 2 Motion for Ronald L. Phillips, Esq., to Appear Pro Hac Vice on behalf of the EEOC. Pursuant to this District's policies, non−contract lawyers

Case: 2:16-cv-225 As of: 05/22/2018 10:27 AM EDT 6 of 13

03/03/2016
03/04/2016 03/04/2016 03/07/2016 03/09/2016 03/09/2016 03/10/2016 05/02/2016 05/02/2016 05/09/2016 05/09/2016
05/09/2016
05/10/2016

appearing on behalf of federal agencies are not required to secure pro hac vice admission. Instructions for requesting a return of the $40 pro hac vice fee are available on the Court's website, at http://www.pawd.uscourts.gov/sites/pawd/files/PayGovRefundInstructions.pdf. Signed by Judge Cathy Bissoon on 3/3/16. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (dcd) (Entered: 03/03/2016)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 2 Motion to Appear Pro Hac Vice. ERROR: Signature on document and filer do not match. CORRECTION: Attorney advised of signature requirements. Attorney to resubmit the document using the Errata event. This message is for informational purposes only. (plh) (Entered: 03/04/2016)
4 NOTICE of Appearance by Charles H. Saul on behalf of SCOTT MEDICAL HEALTH CENTER, P.C.. (Saul, Charles) (Entered: 03/04/2016)
5 NOTICE of Appearance by Ronald L. Phillips on behalf of U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Phillips, Ronald) (Entered: 03/04/2016)
6 WAIVER OF SERVICE Returned Executed by U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. SCOTT MEDICAL HEALTH CENTER, P.C. waiver sent on 3/1/2016, answer due 5/2/2016. (Kane, Deborah) (Entered: 03/07/2016)
7 DISTRICT JUDGE OPTION by U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION to have this case randomly assigned to a U.S. District Judge. (Kane, Deborah) (Entered: 03/09/2016)
8 NOTICE of Appearance by Kyle T. McGee on behalf of SCOTT MEDICAL HEALTH CENTER, P.C.. (McGee, Kyle) (Entered: 03/09/2016)
9 Disclosure Statement identifying None as corporate parent or other affiliate, by SCOTT MEDICAL HEALTH CENTER, P.C.. (Saul, Charles) (Entered: 03/10/2016)
10 Stipulation for Extension of Time to Answer by SCOTT MEDICAL HEALTH CENTER, P.C. Answer due from SCOTT MEDICAL HEALTH CENTER, P.C. on 5/9/2016. (McGee, Kyle) (Entered: 05/02/2016)
Update Answer Deadline: Answer due 5/9/2016 from SCOTT MEDICAL HEALTH CENTER, P.C. (plh) (Entered: 05/03/2016)
11 MOTION to Dismiss re: 1 Complaint pursuant to Fed.R.Civ P. 12 (b)(1) and (6), by SCOTT MEDICAL HEALTH CENTER, P.C.. (Attachments: # 1 Proposed Order) (Saul, Charles) Modified on 5/10/2016. (plh) (Entered: 05/09/2016)
12 BRIEF in Support re 11 Motion to Dismiss re: 1 Complaint pursuant to Fed.R.Civ.P. 12 (b)(1) and (6) filed by SCOTT MEDICAL HEALTH CENTER, P.C. (Attachments: # 1 Exhibit 1 Fullard Charge, # 2 Exhibit 2 Griffie Charge, # 3 Exhibit 3 Mackie Charge, # 4 Exhibit 4 Wieczorek Charge, # 5 Exhibit 5 Eber Charge, # 6 Exhibit 6 Fullard Determination, # 7 Exhibit 7 Griffie Determination, # 8 Exhibit 8 Mackie Determination, # 9 Exhibit 9 Wieczorek Determination, # 10 Exhibit 10 Eber Determination, # 11 Exhibit 11 Hieronimus Determination, # 12 Exhibit 12 EEOC Press Release) (Saul, Charles) Modified on 5/10/2016. (plh) (Entered: 05/09/2016)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 11 Motion to Dismiss for Failure to State a Claim, Motion to Dismiss/Lack of Jurisdiction. ERROR: Document incorrectly linked. CORRECTION: Linked to appropriate document. This message is for informational purposes only. CLERK'S OFFICE QUALITY CONTROL MESSAGE. ERROR: Multiple Motions not filed. CORRECTION: Motion to Dismiss to State a Claim. This message is for informational purposes only. (plh) (Entered: 05/10/2016)
13 ORDER Response re 11 Motion to Dismiss. Consistent with the undersigned's Practices and Procedures (http://www.pawd.uscourts.gov/sites/pawd/files/bissoon_pp.pdf), Plaintiff's response is due by 5/31/16. All future motions in this case will be governed by the undersigned's Practices and Procedures, and no briefing schedule will issue. If the parties consent to

Case: 2:16-cv-225 As of: 05/22/2018 10:27 AM EDT 7 of 13

05/27/2016 05/27/2016
05/31/2016 06/06/2016 06/06/2016 06/07/2016 06/07/2016
06/07/2016
06/07/2016 06/07/2016 06/07/2016

the jurisdiction of a magistrate judge in this case, the parties must file a stipulation consenting to such jurisdiction on or before 5/20/16. If any party declines to consent, no stipulation or other filing is required. Signed by Judge Cathy Bissoon on 5/10/16. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (jwr) (Entered: 05/10/2016)
14 Consent MOTION for Leave to File Excess Pages for Memorandum in Opposition to Defendant's Motion to Dismiss by U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Proposed Order) (Kane, Deborah) (Entered: 05/27/2016)
15 ORDER granting in part and denying in part 14 Plaintiff's Motion for Leave to File Memorandum in Excess of Page Limitations. Plaintiff is granted leave to file a Responsive Memorandum of no more than 40 pages inclusive of any factual summaries and tables. Signed by Judge Cathy Bissoon on 5/27/16. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (jwr) (Entered: 05/27/2016)
16 BRIEF in Opposition re 11 Motion to Dismiss re: 1 Complaint filed by U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Kane, Deborah) Modified on 6/1/2016. (plh) (Entered: 05/31/2016)
17 MOTION for Extension of Time to File Response/Reply as to 16 Brief in Opposition to Motion by SCOTT MEDICAL HEALTH CENTER, P.C.. (Attachments: # 1 Proposed Order) (Saul, Charles) (Entered: 06/06/2016)
18 ORDER granting 17 Defendant's Unopposed Motion for Extension of Time to File its Reply Brief. Defendant's Reply is due on or before 6/20/2016. Signed by Judge Cathy Bissoon on 6/6/16. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (jwr) (Entered: 06/06/2016)
19 MOTION for Leave to File Brief Amici Curiae in Support of re: 16 Plaintiff EEOC's Opposition to Defendant's Motion to Dismiss by AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA. (Attachments: # 1 Exhibit Amicus Brief, # 2 Exhibit Corporate Disclosure Statement, # 3 Proposed Order) (Rose, Sara) Modified on 6/8/2016. (plh) (Entered: 06/07/2016)
20 MOTION for attorney Lenora M. Lapidus to Appear Pro Hac Vice, (Filing fee $40, Receipt # 0315−3983883) by AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA, 9to5, National Association of Working Women, California Womens Law Center, A Better Balance, Equal Rights Advocates, Feminist Majority Foundation, Gender Justice, Legal Voice, National Womens Law Center, Southwest Womens Law Center, Womens Law Center of Maryland, Women's Law Project Western Pennsylvania. (Attachments: # 1 Affidavit of Lenora M Lapidus in Support of Motion for Admission Pro Hac Vice, # 2 Proposed Order (Lapidus, Lenora) (Entered: 06/07/2016)
21 MOTION for attorney Ria Tabacco Mar to Appear Pro Hac Vice, (Filing fee $40, Receipt # 0315−3983902) by 9to5, National Association of Working Women, A Better Balance, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA, California Womens Law Center, Equal Rights Advocates, Feminist Majority Foundation, Gender Justice, Legal Voice, National Womens Law Center, Southwest Womens Law Center, Women's Law Project Western Pennsylvania, Womens Law Center of Maryland. (Attachments: # 1 Affidavit, # 2 Proposed Order) (Tabacco Mar, Ria) (Entered: 06/07/2016)
22 MOTION to File Amicus Brief in Support of re: 16 Plaintiff's Opposition to Defendant's Motion to Dismiss by Lambda Legal Defense and Education Fund. (Attachments: # 1 Exhibit Brief, # 2 Proposed Order) (Palmer, Tracie) Modified on 6/8/2016. (plh) (Entered: 06/07/2016)
23 Disclosure Statement identifying None as corporate parent or other affiliate, by Lambda Legal Defense and Education Fund. (Palmer, Tracie) (Entered: 06/07/2016)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 22 Motion to File Amicus Brief. ERROR: Document incorrectly linked. CORRECTION: Linked to appropriate document. This message is for informational purposes only. (plh) (Entered:

Case: 2:16-cv-225 As of: 05/22/2018 10:27 AM EDT 8 of 13

06/07/2016 06/08/2016 06/08/2016 06/10/2016
06/10/2016
06/10/2016 06/10/2016 06/10/2016 06/10/2016 06/10/2016

06/08/2016)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 19 Motion for Leave to File. ERROR: Document incorrectly linked. CORRECTION: Linked to appropriate document. This message is for informational purposes only. (plh) Modified on 7/5/2016. (tt) (Entered: 06/08/2016)
24 MOTION for attorney Omar Gonzalez−Pagan to Appear Pro Hac Vice, (Filing fee $40, Receipt # 0315−3985410) by LAMBDA LEGAL DEFENSE AND EDUCATION FUND. (Attachments: # 1 Affidavit, # 2 Proposed Order) (Gonzalez−Pagan, Omar) (Entered: 06/08/2016)
25 MOTION for attorney Gregory R. Nevins to Appear Pro Hac Vice, (Filing fee $40, Receipt # 0315−3985420) by LAMBDA LEGAL DEFENSE AND EDUCATION FUND. (Attachments: # 1 Affidavit, # 2 Proposed Order) (Nevins, Gregory) (Entered: 06/08/2016)
26 ORDER granting 19 Motion for Leave to File Brief Amici Curiae by the American Civil Liberties Union; American Civil Liberties Union of Pennsylvania; 9to5, National Association of Working Women; A Better Balance; California Womens Law Center; Equal Rights Advocates; Feminist Majority Foundation; Gender Justice; Legal Voice; National Womens Law Center; Southwest Womens Law Center; Womens Law Center of Maryland; and Womens Law Project. IT IS FURTHER ORDERED that any brief filed must be done in accordance with the undersigned's Practices and Procedures (http://www.pawd.uscourts.gov/sites/pawd/files/bissoon_pp.pdf). Signed by Judge Cathy Bissoon on 6/10/16. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (jwr) (Entered: 06/10/2016)
27 ORDER granting 22 Motion to File Amicus Brief by Lambda Legal Defense and Education Fund, Inc. IT IS FURTHER ORDERED that any brief filed must be done in accordance with the undersigned's Practices and Procedures (http://www.pawd.uscourts.gov/sites/pawd/files/bissoon_pp.pdf). Signed by Judge Cathy Bissoon on 6/10/16. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (jwr) (Entered: 06/10/2016)
28 ORDER granting 20 Motion for Lenora M. Lapidus to Appear Pro Hac Vice. Signed by Judge Cathy Bissoon on 6/10/16. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (jwr) (Entered: 06/10/2016)
29 ORDER granting 21 Motion for Ria Tabacco Mar to Appear Pro Hac Vice. Signed by Judge Cathy Bissoon on 6/10/16. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (jwr) (Entered: 06/10/2016)
30 ORDER granting 24 Motion for Omar Gonzalez−Pagan to Appear Pro Hac Vice. Signed by Judge Cathy Bissoon on 6/10/16. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (jwr) (Entered: 06/10/2016)
31 ORDER granting 25 Motion for Gregory R. Nevins to Appear Pro Hac Vice. Signed by Judge Cathy Bissoon on 6/10/16. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (jwr) (Entered: 06/10/2016)
32 BRIEF in Support of 16 Brief in Opposition to Motion to Dismiss filed by 9TO5 NATIONAL ASSOCIATION OF WORKING WOMEN, A BETTER BALANCE, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA, CALIFORNIA WOMENS LAW CENTER, EQUAL RIGHTS ADVOCATES, FEMINIST MAJORITY FOUNDATION, GENDER JUSTICE, LEGAL VOICE, NATIONAL WOMENS LAW CENTER, SOUTHWEST WOMENS LAW CENTER, WOMEN'S LAW PROJECT WESTERN PENNSYLVANIA, WOMENS LAW CENTER OF MARYLAND. (Rose, Sara) (Entered: 06/10/2016)

Case: 2:16-cv-225 As of: 05/22/2018 10:27 AM EDT 9 of 13

06/13/2016 06/13/2016 06/14/2016 06/17/2016 06/20/2016 06/20/2016
06/20/2016 06/20/2016 06/21/2016 06/21/2016
06/27/2016 06/29/2016
06/29/2016 07/29/2016

33 BRIEF in Support of 16 Brief in Opposition to Motion to Dismiss filed by LAMBDA LEGAL DEFENSE AND EDUCATION FUND. (Gonzalez−Pagan, Omar) Modified on 6/14/2016. (plh) This document removed from public view for signature requirements. (Entered: 06/13/2016)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 33 Brief in Support − Other. ERROR: Signature on document and filer do not match. CORRECTION: Attorney advised of signature requirements. Attorney to resubmit the document using the Errata event. This message is for informational purposes only. (plh) (Entered: 06/14/2016)
34 Errata re 33 Brief in Support − Other of 16 Brief in Opposition to Motion to Dismiss by LAMBDA LEGAL DEFENSE AND EDUCATION FUND. Reason for Correction: Fixing signature to match filer. (Gonzalez−Pagan, Omar) (Entered: 06/14/2016)
35 MOTION for Leave to File Excess Pages by SCOTT MEDICAL HEALTH CENTER, P.C.. (Attachments: # 1 Proposed Order) (Saul, Charles) (Entered: 06/17/2016)
36 ORDER granting 35 Motion for Leave to File Excess Pages, Defendant permitted to file reply brief up to 13 pages. Signed by Judge Cathy Bissoon on 6/20/16. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (jhi) (Entered: 06/20/2016)
37 MOTION for attorney David C. Williams to Appear Pro Hac Vice, (Filing fee $40, Receipt # 0315−3996972) by LAMBDA LEGAL DEFENSE AND EDUCATION FUND. (Attachments: # 1 Affidavit, # 2 Proposed Order, # 3 Exhibit Good Standing Certificate, # 4 Supplement Certificate of Service) (Williams, David) Modified on 6/21/2016. (plh) SEE ERRATA at Doc # 40 for correction. (Entered: 06/20/2016)
38 REPLY BRIEF re 16 Brief in Opposition to Motion to Dismiss Complaint filed by SCOTT MEDICAL HEALTH CENTER, P.C.. (Attachments: # 1 Exhibit Supplemental Declaration) (Saul, Charles) (Entered: 06/20/2016)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 37 Motion to Appear Pro Hac Vice. ERROR: Typed name omitted by s/. CORRECTION: Attorney advised of signature requirements. Attorney to resubmit with signature, using Errata event. This message is for informational purposes only. (plh) (Entered: 06/21/2016)
39 ORDER granting 37 Motion for David C. Williams to Appear Pro Hac Vice. Signed by Judge Cathy Bissoon on 6/21/16. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (rld) (Entered: 06/21/2016)
40 Errata re 37 Motion to Appear Pro Hac Vice, David C. Williams by LAMBDA LEGAL DEFENSE AND EDUCATION FUND. Reason for Correction: s/ to Attorney signatures. (Attachments: # 1 Affidavit, # 2 Proposed Order, # 3 Exhibit Good Standing Certificate, # 4 Certificate of Service) (Williams, David) (Entered: 06/21/2016)
41 MOTION for Leave to File Sur−reply Brief in Opposition to Defendant's Rule 12(b)(1) and 12(b)(6) Motion to Dismiss by U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Exhibit Sur−reply Brief, # 2 Proposed Order) (Kane, Deborah) (Entered: 06/27/2016)
42 ORDER granting 41 Plaintiff's Motion for Leave to File Sur Reply Brief in Opposition to Defendant's Motion to Dismiss. Aside from Plaintiffs Sur Reply Brief, no additional briefing will be accepted. Signed by Judge Cathy Bissoon on 6/29/16. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (jwr) (Entered: 06/29/2016)
43 Sur−Reply Brief re 11 Motion to Dismiss for Failure to State a Claim, Motion to Dismiss/Lack of Jurisdiction, filed by U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Kane, Deborah) (Entered: 06/29/2016)
44 MOTION for Judicial Notice re 11 MOTION to Dismiss re: 1 Complaint pursuant to Fed.R.Civ.P. 12 (b)(1) and (6) by SCOTT MEDICAL HEALTH CENTER, P.C. by SCOTT MEDICAL HEALTH CENTER, P.C.. (Attachments: # 1 Proposed Order) (Saul, Charles) Modified on 8/1/2016. (plh) (Entered: 07/29/2016)

Case: 2:16-cv-225 As of: 05/22/2018 10:27 AM EDT 10 of 13

08/01/2016 10/12/2016
10/17/2016
11/04/2016 11/10/2016
11/18/2016 11/18/2016 12/29/2016 12/29/2016 01/04/2017 01/05/2017 04/03/2017
04/05/2017 04/05/2017

45 ORDER granting 44 Defendant's Motion for Judicial Notice. Signed by Judge Cathy Bissoon on 8/1/16. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (jwr) (Entered: 08/01/2016)
46 MOTION for Judicial Notice re 11 MOTION to Dismiss re: 1 Complaint pursuant to Fed.R.Civ.P. 12 (b)(1) and (6) filed by SCOTT MEDICAL HEALTH CENTER, P.C. by U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Exhibit 1, # 2 Proposed Order) (Kane, Deborah) Modified on 10/13/2016. (plh) (Entered: 10/12/2016)
47 ORDER granting 46 Plaintiff's Motion for Judicial Notice. The Court hereby takes judicial notice that the appellate decision by the Seventh Circuit in Hively v. Ivy Tech Cmty. College, 2016 U.S. App. LEXIS 13746 (7th Cir. 2016) has been vacated in light of that court's order granting en banc review. Signed by Judge Cathy Bissoon on 10/17/16. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (jwr) (Entered: 10/17/2016)
48 ORDER. For the reasons stated in the Memorandum Order filed herewith, Defendant's Motion to Dismiss (Doc. 11 ) is DENIED. Signed by Judge Cathy Bissoon on 11/4/16. (jwr) (Entered: 11/04/2016)
49 ORDER. Defendant is reminded of its obligations pursuant to Federal Rule of Civil Procedure 14(a)(4)(A) to answer the Complaint no more than 14 days after the date of this Court's Order denying the motion to dismiss. Therefore, Defendant's answer is due on or before 11/18/16. Signed by Judge Cathy Bissoon on 11/10/16. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (jwr) (Entered: 11/10/2016)
50 ANSWER and Affirmative Responses to 1 Complaint by SCOTT MEDICAL HEALTH CENTER, P.C. (Saul, Charles) (plh) (Entered: 11/18/2016)
51 ORDER, setting Case Management Conference before Judge Cathy Bissoon, more fully stated in said order. Signed by Judge Cathy Bissoon on 1/4/17. (jhi) (Entered: 11/18/2016)
52 REPORT of Rule 26(f) Planning Meeting. (Kane, Deborah) (Entered: 12/29/2016)
53 STIPULATION selecting ADR process by U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Kane, Deborah) (Entered: 12/29/2016)
54 Minute Entry for proceedings held before Judge Cathy Bissoon: Case Management Conference held on 1/4/2017. (Court Reporter: none). Order to follow. (jwr) (Entered: 01/04/2017)
55 CASE MANAGEMENT ORDER. See contents of this filing for detailed instructions and deadlines. Signed by Judge Cathy Bissoon on 1/5/17. (jwr) (Entered: 01/05/2017)
56 ORDER, at request of counsel, a telephone conference re: Discovery is now set for 4/5/2017 at 11:00 AM before Judge Cathy Bissoon. Counsel for the Plaintiff shall initiate the conference call. Signed by Judge Cathy Bissoon on 4/3/17. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (jhi) (Entered: 04/03/2017)
57 Minute Entry for proceedings held before Judge Cathy Bissoon: Telephone Conference re Discovery held on 4/5/2017. (Court Reporter: none) Order to follow. (jhi) (Entered: 04/05/2017)
58 ORDER. Consistent with discussions during today's Telephone Conference re Discovery, the Court hereby ORDERS the following: Defendant may depose Ms. Rodia on (a) what was said by her and Mr. Baxley during Ms. Rodia's interview of Mr. Baxley; and (b) other issues involving her investigation, such as whether she spoke to other Scott Medical employees concerning Mr. Baxley's allegations, and if so, what was stated. IT IS FURTHER ORDERED that as to Mr. Baxley's medical records from Dr. Berge's office, the parties will work to determine what additional records exist. As to Dr. Vasil, Defendant is entitled to all of Mr. Baxley's medical records created January 1, 2010 and thereafter. Moreover, if requested, Defendant is entitled to medical release authorizations signed by Mr. Baxley. IT IS FURTHER ORDERED that Defendant is entitled to discovery of materials from Mr. Baxley's personnel file

Case: 2:16-cv-225 As of: 05/22/2018 10:27 AM EDT 11 of 13

04/06/2017 04/07/2017
05/03/2017 05/03/2017 06/14/2017 09/07/2017 09/08/2017
09/11/2017 09/11/2017
09/11/2017 09/13/2017 09/13/2017

from his immediate subsequent employer limited to the following two categories of material: any materials in Mr. Baxley's personnel file that concern Mr. Baxley's application for employment as a well as any references in the personnel file that deal with any incidents of counseling. Signed by Judge Cathy Bissoon on 4/5/17. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (jwr) (Entered: 04/05/2017)
59 STIPULATED PROTECTIVE ORDER by U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Kane, Deborah) (Entered: 04/06/2017)
60 ORDER adopting the parties' Stipulated Order Regarding Confidentiality of Discovery Material (Doc. 59 ) subject to the following revisions. Paragraph 2(b) is AMENDED to include the following language: Requests to file under seal also shall comply with this Court's ECF Ps & Ps regarding the same. See web page −− http://www.pawd.uscourts.gov/sites/pawd/files/ECFPolProcAmended062013.pdf −− at 8; moreover, paragraph 4 is AMENDED to include the following language: Any requests for judicial intervention also are governed by § III.B.3 of Judge Bissoon's Ps & Ps (see web page at http://www.pawd.uscourts.gov/sites/pawd/files/bissoon_pp.pdf) (requiring telephonic conference before proceeding to motions practice). Signed by Judge Cathy Bissoon on 4/7/17. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (jwr) (Entered: 04/07/2017)
61 Minute Entry for proceedings held before Judge Cathy Bissoon: Telephone Conference held on 5/3/2017. (Court Reporter: none) Order to follow. (jhi) (Entered: 05/03/2017)
62 ORDER SETTING TRIAL. A jury trial in this matter is scheduled to commence December 4, 2017 at 9:00 AM. See contents of this filing for detailed instructions and deadlines. Signed by Judge Cathy Bissoon on 5/3/17. (jwr) (Entered: 05/03/2017)
63 ORDER. The jury trial scheduled for 12/4/17 at 9:00 a.m. is RESCHEDULED to commence on 12/11/17 at 9:00 a.m. All other deadlines and instructions in the Final Pretrial Order (Doc. 62 ) remain UNAFFECTED. Signed by Judge Cathy Bissoon on 6/14/17. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (dcd) (Entered: 06/14/2017)
64 MOTION to Withdraw as Attorney by SCOTT MEDICAL HEALTH CENTER, P.C. (Attachments: # 1 Proposed Order) (Saul, Charles) (Entered: 09/07/2017)
65 ORDER. The Motion to Withdraw as Attorney by DEFENDANT SCOTT MEDICAL HEALTH CENTER, P.C.'s Attorneys is DENIED without prejudice to refilling in accordance with the applicable local rule. See LCvR 83.2.C.4. Signed by Judge Cathy Bissoon on 9/8/2017. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (jwr) (Entered: 09/08/2017)
66 Unopposed MOTION for Status Conference by U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Proposed Order) (Kane, Deborah) (Entered: 09/11/2017)
67 ORDER. Plaintiff's unopposed Motion for a Status Conference 66 is hereby GRANTED. The Conference will be held by telephone on 9/13/17 at 10:30 AM. All participants shall contact the undersigned's Chambers (412.208.7460) on a single telephone line, and Plaintiff's counsel shall coordinate the call. Signed by Judge Cathy Bissoon on 9/11/17. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (rdl) (Entered: 09/11/2017)
Status Conference set for 9/13/2017 10:30 AM before Judge Cathy Bissoon. See text order entered today. (rdl) (Entered: 09/11/2017)
68 MOTION to Withdraw as Attorney by SCOTT MEDICAL HEALTH CENTER, P.C.. (Attachments: # 1 Proposed Order) (Saul, Charles) (Entered: 09/13/2017)
69 Minute Entry for proceedings held before Judge Cathy Bissoon: Telephone Conference held on 9/13/2017. (Court Reporter: None) Once the motion to withdraw is granted, the EEOC intends to pursue a default judgment against Scott Medical as it is

Case: 2:16-cv-225 As of: 05/22/2018 10:27 AM EDT 12 of 13

09/13/2017
09/14/2017 09/25/2017 09/26/2017 10/30/2017 10/30/2017 10/30/2017 11/02/2017
11/13/2017 11/13/2017

now clear that Scott Medical does not intend to secure new legal counsel and cannot proceed in the case without legal counsel. (jhi) (Entered: 09/13/2017)
70 ORDER granting 68 Motion to Withdraw as Attorney. Attorneys Kyle T. McGee and Charles H. Saul terminated. Scott Medical understands that it cannot proceed without counsel as it is a corporate entity. See Evanston Ins. Co. v. Layne Thomas Builders, Inc., 2010 WL 1213433, *2 (D. Del. Mar. 26, 2010) (holding same, citation omitted); Thompson v. Wyrks Tool and Mach. Ltd, 2010 WL 3008608 (W.D. Pa. 2010) ("[C]orporations may not proceed in federal court 'pro se.'"). Scott Medical has indicated that it does not intend to retain new counsel in this matter. Signed by Judge Cathy Bissoon on 9/13/17. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (rdl) (Entered: 09/13/2017)
71 MOTION for Default Judgment against SCOTT MEDICAL HEALTH CENTER, P.C. by U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Proposed Order) (Kane, Deborah) (Entered: 09/14/2017)
72 ORDER granting Plaintiff's Motion for Default Judgment as to liability and setting hearing as to damages. Plaintiff's Motion for Default Judgment (Doc. 71 ) is hereby GRANTED as to liability. A damages hearing is scheduled for 10/30/17 at 2:15 p.m. in Courtroom 3A before Judge Cathy Bissoon. Signed by Judge Cathy Bissoon on 9/25/2017. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (kg) (Entered: 09/25/2017)
73 NOTICE of Appearance by Catherine N. Sellers on behalf of U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Sellers, Catherine ) (Entered: 09/26/2017)
74 Minute Entry for proceedings held before Judge Cathy Bissoon: Motion Hearing held on 10/30/2017 re 71 MOTION for Default Judgment against SCOTT MEDICAL HEALTH CENTER, P.C. filed by U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Court Reporter: Deborah Rowe) Order to follow. (jhi) (Entered: 10/30/2017)
75 SUPPLEMENT by U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Kane, Deborah) (Entered: 10/30/2017)
76 ORDER. As further stated in the contents of this filing, Plaintiff shall file proposed findings of fact and conclusions of law, along with a supporting brief, no later than November 13, 2017. In addition to filing, Plaintiff shall email an editable Microsoft Word copy of the proposed findings of fact and conclusions of law to: bissoon_external@pawd.uscourts.gov. Signed by Judge Cathy Bissoon on 10/30/17. (rdl) (Entered: 10/30/2017)
77 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings re MOTION HEARING held on October 30, 2017 before Judge Cathy Bissoon. Court Reporter Deborah Rowe, Telephone number 412−471−2510. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely, electronically available to the public without redaction after 90 calendar days. For redaction purposes, or otherwise, during this 90 day period a copy of the transcript may be purchased from the court reporter or viewed at the clerk's office public terminal. Any Notice of Intent to Request Redaction and Redaction Request must be separately mailed to the court reporter of said proceedings. Notice of Intent for Redaction of Personal Data Identifiers due by 11/9/2017. Redaction Request due 11/24/2017. Redacted Transcript Deadline set for 12/4/2017. Release of Transcript Restriction set for 1/31/2018. (dsr) (Entered: 11/02/2017)
78 Proposed Findings of Fact and Conclusions of Law by U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Kane, Deborah) (Entered: 11/13/2017)
79 BRIEF in Support re 78 Proposed Findings of Fact and Conclusions of Law by U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Affidavit, # 2 Exhibit A − Back Pay Calculation, # 3 Exhibit B − Prejudgment Interest Rates) (Kane, Deborah) Modified on 11/14/2017 to correct title of event selected and add document linkage. (ept) (Entered: 11/13/2017)

Case: 2:16-cv-225 As of: 05/22/2018 10:27 AM EDT 13 of 13

11/16/2017 11/16/2017
11/16/2017 11/20/2017 12/18/2017

80 FINDINGS OF FACT AND CONCLUSIONS OF LAW. See filing attached at this docket entry. Signed by Judge Cathy Bissoon on 11/16/17. (rdl) (Entered: 11/16/2017)
81 JUDGMENT in favor of Plaintiff and against Defendant as further elaborated in the Judgment Order attached at this docket entry. Deft is hereby Permanently Enjoined from violating provisions as stated more fully in said Order. Judgment is entered, in favor of pltf and against deft, in the amount of $55,500.43. The Court, having resolved all matters before it, will enter herewith an Order under Federal Rule 58 and mark this case closed. Signed by Judge Cathy Bissoon on 11/16/17. (rdl) Modified on 12/7/2017. (tt) (Entered: 11/16/2017)
82 JUDGMENT ORDER. FINAL JUDGMENT is hereby entered pursuant to Rule 58 of the Federal Rules of Civil Procedure. This case has been marked closed. Signed by Judge Cathy Bissoon on 11/16/17. (rdl) (Entered: 11/16/2017)
83 BILL OF COSTS by U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION in the amount of $1913.05 against Scott Medical Health Center, P.C.. (Kane, Deborah) (Entered: 11/20/2017)
84 Letter from the Clerk of Court calling for objections to the Bill of Costs. Objections to Bill of Costs due by 1/2/2018. (plh) (Entered: 12/19/2017)