Case 6:01-cv-00339-KKC Document 82 Filed 03/30/2006 Page 1 of 3

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
LONDON DIVISION

CIVIL ACTION NO. 1-339

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

APPELLEE

v.

OPINION AND ORDER

WAL-MART STORES, INC.

APPELLANT

* * * * * * * * * * *

The Equal Employment Opportunity Commission (“EEOC”) filed a Motion to Bifurcate the

Trial and Discovery in this action.[R. 64] After reviewing both parties’ submissions on the issues,

the court GRANTS the motion to bifurcate the trial, DENIES the motion to bifurcate discovery and

continues the question as to the proper stage for considering punitive damages.

On August 24, 2001, the EEOC filed a complaint, alleging that Wal-Mart Stores, Inc. (“Wal-

Mart”) had engaged in a pattern of hiring discrimination based on gender at its store in London,

Kentucky in violation of Section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1). The EEOC is

litigating this case as a “pattern and practice” action, and thus all trial considerations must be

considered in light of this fact.

The EEOC has requested a number of alterations to the current trial schedule. One of their

requests is that this court schedule a telephone conference in order to determine future scheduling

issues. This motion for a conference is GRANTED, but the court will require the parties to appear

by counsel in FRANKFORT, Kentucky on July 24, 2006 at 10:00 a.m. The Plaintiff EEOC has

also requested that this court bifurcate the trial into two stages, a Stage 1 “liability” phase and a Stage

2 “damages” phase. In its response, Wal-Mart agrees that such a bifurcation should occur, and thus

Case 6:01-cv-00339-KKC Document 82 Filed 03/30/2006 Page 2 of 3
the court will grant the motion to proceed at trial in two distinct stages. The EEOC however also asks that discovery in this case be bifurcated, with class member
discovery being stayed until after the Stage 1 liability trial is completed. The Commission contends that it is unnecessary for Wal-Mart to take discovery of or even know, the class as a whole. In addition, it argues that identification at this point would be impractical and that deposing these class members would be too costly. As support for this proposition, the EEOC cites Teamsters v. United States, 431 U.S. 324, 360-61, which holds that the Government is not required to offer evidence at the liability phase that each person in the class was a victim of the policy in question.
While the Commission is correct that it is not required to prove individual damages at Stage 1, that does not mean that defendants do not have a right to know the identity of the parties that the Commission claims were discriminated against. In a “pattern and practice” case, it is up to the plaintiff to provide proof by a preponderance of the evidence that an employer has regularly followed a policy of discrimination. See Teamsters, 431 U.S. at 336. In order for a defendant to counter the evidence, it must be able to show that the policy was not in place as the plaintiff contends. If defendant is limited to deposing only those individuals hand selected by plaintiff (and thus presumably favorable to its case), the defense is necessarily limited.
This is not to suggest that the defendant will be able to counter each individual plaintiff brought forward by the Commission at trial with evidence of the specific reason they were not hired or discharged. These individual determinations are Stage 2 questions and are not to be used to determine the initial liability. However the defendant is entitled to know what it is up against in terms of class size and potential claimants. This is essential not only for its defense, but for an understanding of the scope of the case before the Court.
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Case 6:01-cv-00339-KKC Document 82 Filed 03/30/2006 Page 3 of 3
Many of the Commission’s worries, such as the abuse of the discovery process or the cost of multiple depositions by the defendant done in order to delay the case, will be monitored and controlled through this Court’s supervision of the discovery process. Allowing the defendant to understand the scope of the class size does not give it carte blanche to delay the proceedings and obstruct the movement of the case. But at this point, defendant is entitled to know the full extent of the Commission’s claims and the size of the potential class. These issues may not be relevant evidence at trial, but can be crucial in pre-trial preparation.
Because the nature of this case has changed, it is necessary to reschedule many of the dates and deadlines. [R. 66, 80, 81] Thus the Court GRANTS the motion of the plaintiff to set a scheduling conference. This conference will be part of a hearing, set for July 24, 2006. At that time, both parties should be prepared to argue the issue of punitive damages and their appropriate place in bifurcated proceedings.
The Motion to Bifurcate the trial is thus GRANTED, the Motion to Bifurcate discovery is DENIED and the issue of punitive damages will be determined at a later date. The Court notes that all counsel are located in Louisville, Kentucky and Indianapolis, Indiana. Accordingly, the status/scheduling conference will be conducted in FRANKFORT, KENTUCKY.
This the 30th day of March, 2006.
3

 
 Case 6:01-cv-00339-KKC Document 123 Filed 01/04/2007 Page 1 of 3

CIVIL NO. 01-339-KKC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION LONDON

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

VS:

ORDER COMPELLING PRODUCTION

BY KENTUCKY OFFICE OF EMPLOYMENT

AND TRAINING

PLAINTIFF

WAL-MART STORES, INC.

DEFENDANT

* * * * *

Plaintiff EEOC has moved to compel production of documents concerning “job orders,”

which the EEOC sought under subpoena from third-party Kentucky Office of Employment and

Training “KOET.” KOET, a state executive agency, objected to production of the job order forms

under KRS § 151B.280(3)(a) and an administrative reg passed, in part, under that statute. Defendant

Wal-Mart, Inc., the affected employer, filed a written response in support of the objection. All

parties appear to concede that records exist that a) would be responsive to the EEOC subpoena and

b) would relate to job vacancies and/or qualifications for jobs with Defendant during the time period

relevant to the EEOC’s action. See DEs #108, 110, 111 & 112.

It is true that the reg, 787 KAR 2:020(2), classifies the job order forms as “confidential and

not subject to disclosure” under state law. The statute itself provides that the relevant cabinet

secretary shall promulgate rules to protect the “confidential nature” of “all” KOET records that

would identify a program “client.” The Court accepts, without deciding, that the regulation properly

makes the classification. That designation is not effective to thwart discovery in this case.

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Case 6:01-cv-00339-KKC Document 123 Filed 01/04/2007 Page 2 of 3
This is a federal action in which federal law alone defines the parties’ rights and obligations. In such a case, federal civil and evidentiary rules, and federal common law, govern access to and discoverability of information. See Fed.R.Evid. 501; see also Pearson v. Miller, 211 F.3d 57, 61 (3rd Cir. 2000)(“[D]iscovery disputes in federal courts are governed by federal law. . . . [S]tate statutory confidentiality provisions . . . do not directly govern[.]”). The EEOC makes a proper showing of relevance, since the job order forms may have information related to available openings, job descriptions, and candidate criteria.
The state statute cannot, in and of itself, bar discovery in this case. Indeed, a federal court is in no way bound by state confidentiality rules in evaluating a discovery request relative to a federal claim. Here, no one advocates that the confidentiality provision reflects a true “privilege.” Rather, Wal-Mart, arguing on behalf of the KOET, makes practical arguments concerning the purposes of KOET and its need for full disclosure from cooperating employers. Such is not the contour of a federal privilege. Notably, KOET nowhere describes the confidentiality issue as involving a privilege.1
The Court has considered relevant authority on the issue, and notes that the federal common law privilege analysis is a narrow one; this type of confidentiality statute would not support a privilege finding. See Pearson, 211 F.3d at 67-70; see also EEOC v. Ill. Dep’t of Employment, 995 F.2d 106, 107-08 (7th Cir. 1993)(rejecting privilege based on state confidentiality statute making unemployment compensation hearing confidential and stating: “When federal law governs, as it does here, only privileges recognized by the national government matter. “).
1
Thus, neither KOET or Wal-Mart characterizes the statute or reg as involving a confidential communication, which would be a traditional privilege hallmark.
2

Case 6:01-cv-00339-KKC Document 123 Filed 01/04/2007 Page 3 of 3
Additionally, the Court notes that the statute itself permits broad interagency sharing. The statute also generally, and without textual limitation, allows disclosure “insofar as disclosure may be permitted under state or federal law.” KRS § 151B.280(3)(a)(2). The default federal rule permits discovery of relevant material, and Rule 45 is a proper discovery avenue. See Fed. R. Civ. P. 26; 45. Further, the Court notes that, in the investigative context, federal law assures EEOC access to evidence “relevant to” a charge under investigation. See 42 U.S.C. § 2000e-8(a). The state interest in nondisclosure cannot trump the primary federal interest in discovery in this context.
The Court does respect the values reflected in the state confidentiality statute and will, to the extent reasonably necessary, protect those values. The Court orders that KOET promptly produce any documents2 responsive to the subpoena that KOET withheld under authority of KRS § 151B.280 and/or 787 KAR 2:020. If Defendant finds that the information produced truly contains material that it considers proprietary and in need of protection, the Court will entertain a timely motion to restrict the use or dissemination of the produced material to the instant action.
The Court hereby rules on a nondispositive matter under 28 U.S.C. § 636(b)(1)(A). Said statute provides the relevant appeal rights and provisions concerning such a ruling.
This the 4th day of January, 2007.
2
This Order thus extends to the job orders themselves and any other documents withheld by KOET based on its confidentiality objection.
3

 
 Case 6:01-cv-00339-KKC Document 129 Filed 01/18/2007 Page 1 of 6

CIVIL NO. 01-339-KKC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION LONDON

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

PLAINTIFF

VS:

ORDER

WAL-MART STORES, INC.

DEFENDANT

* * * * * *

The Court addresses cross-filings related to the proper scope of deposition questions,

precipitated by events at the deposition of Mike Giles, a manager for Defendant Wal-Mart Stores,

Inc. See DE## 117, 119, & 125. The Court has considered an emergency motion and a motion to

compel, along with related papers, filed by Plaintiff EEOC. The Court also has considered a motion

for protective order, along with related documents, filed by Defendant.

The Court originally set this matter for a telephonic conference perceiving a fairly narrow

issue. Since then, the filings have made it apparent that the parties disagree fundamentally about

the scope of the liability phase of this case, at least from a temporal standpoint. The Court has

attempted to process all of the relevant arguments, which are voluminous and invite reference to the

entire record in the case.

The discovery dispute involves whether the EEOC should be permitted to inquire of defense

witnesses concerning events occurring outside the time period of 1998 through February 2005. Wal-

Mart contends that the parties have agreed to limit the scope of the case to that period, and that any

deposition questions targeting events or occurrences outside that period should be forbidden in

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Case 6:01-cv-00339-KKC Document 129 Filed 01/18/2007 Page 2 of 6
discovery. Wal-Mart further objects to deposition questions concerning any distribution center other than DC 6097, maintaining that the Complaint at issue encompasses only hiring at the designated distribution center. The parties’ positions reveal a critical dispute that involves not just the scope of discovery, but the scope of the overall liability question presented in this action.
The Court, as stated in the teleconference, cautions Wal-Mart that the option of instructing a witness not to answer a question is intended as a very limited and particularized remedy under Rule 30. Absent a privilege or prior court order, the Court expects any such instruction to result in an immediate and well-founded motion for a protective order.1 The Court views the dispute as a legitimate one, particularly since it brought to the surface a critical debate regarding the scope of the liability case.
The Court believes that, on the record of this case, the parties effectively have limited the liability analysis to the period of 1998 through February of 2005 (referenced as “1998-2005”). The parties have represented to the Court that experts will substantially drive the liability proof. See DE# 89 (Transcript of July 2006 hearing), at 7 (“[A] lot of this case depends upon the expert report.”). Further, the Court has ordered expert disclosures tied to the stipulated 1998-2005 time frame. See DE# 62 (July 2005 order directing Plaintiff’s expert disclosure in two phases covering period from “1998 to 2001" and from “2002 through February 2005”). Finally, the parties have abided by a self-imposed demarcation tying applicant info to the period stated. For example, WalMart has not provided information, such as applications, for any period after February of 2005. The
1
The Court is satisfied, in this instance, that Wal-Mart timely raised the scope issue via a motion for protective order. Although the EEOC properly questions the burden showing often inherent in the Rule 26(c)/30(d)(4) analysis, the Court finds that Wal-Mart’s concern over the possible effect of the scope issues on discovery across the case warrants consideration by the Court.
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Case 6:01-cv-00339-KKC Document 129 Filed 01/18/2007 Page 3 of 6
parties chose that demarcation to permit preparation of a finite expert report. See Tr. at 5 (“The parties made the decision we would stop production [of applications] February of 2005, simply because if we continued production every month we would never get an expert report.”).
The EEOC’s expert report, now due March 1, 2007, will cover only the 1998-2005 period. The EEOC, which anticipates identifying all class members as a consequence or as a part of that report, see Tr. at 7, could, by definition, only identify class members from the pool of applications provided, a group that could not include applicants after the 2/2005 production cut off.
The EEOC suggests that it has held open the potential liability period by miscellaneous references to possible post-2/2005 claimants. Indeed, the EEOC has mentioned that it may seek a mechanism to account for alleged discrimination by Wal-Mart that occurred after 2/2005. The problem, to the Court, lies in the proof, the applicable liability standards, and the practical requirement that the class ultimately close. As the parties and Court have postured the case, the EEOC must prove that Wal-Mart intentionally discriminated under the Teamsters framework; if the EEOC prevails, in Stage 1, the “individual” stage of the case will apply that general finding to the circumstances of specific class members. If the EEOC has no applications, no expert report, and thus no proof applicable to discrimination between 2/2005 and trial–and it is clear that the EEOC does not have that proof based on the parties’ statements–then there could be no basis for a jury to find liability as to that period and there could be no Stage 2 as to applicants during that period. The EEOC’s reference to a “projection” and “exchange of applications” at the damage stage does not fit with the Court’s understanding of how the proof and bifurcation will unfold.
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Case 6:01-cv-00339-KKC Document 129 Filed 01/18/2007 Page 4 of 6
This case now is almost six years old. For trial and ultimate resolution to occur, if ever it will, the class of potential claimants must be finite. Indeed, the District Court already ruled that the EEOC must, as a part of Stage 1 discovery, identify all class members to Wal-Mart. See DE #82. Holding possible class membership open would defeat the proof procedures in place in this case and would frustrate application of the Teamsters paradigm to this action.
This Court cannot, and does not, finally rule that the liability period is limited to the 19982005 period. Such a ruling would be in the nature of a dispositive finding, and the District Court has not referred such a matter to the undersigned. Still, for purposes of resolving the discovery dispute, which necessarily turns on defining what proof is relevant to the dispute, the Court references what it believes the proper and intended scope to be.
Although the Court does believe, as Wal-Mart contends, that the liability period is 19982005, the Court does not agree with the categorical discovery limitations that Wal-Mart derives from the defined period. The EEOC correctly argues that Wal-Mart’s limitation is artificial. The Court finds, under the standards of Rule 26, that some inquiry into matters occurring outside the defined period, and indeed outside the geographic limitation of DC 6097, would be proper.
The permissible extra-temporal or geographic evidence would, in the Court’s view, be such evidence as is relevant to the liability question for the 1998-2005 period. Thus, even though questions might implicate post-2/2005 events or might involve experiences at another DC, the questions would be legitimate if they are probative as to Wal-Mart’s knowledge, awareness, or intent, related to gender animus, for the 1998-2005 period. Thus, the Court will permit the EEOC to inquire into the personal experiences of Wal-Mart’s decision makers--experiences both at DC 6097 and elsewhere--to the extent those personal experiences rationally reflect on whether Wal-Mart
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Case 6:01-cv-00339-KKC Document 129 Filed 01/18/2007 Page 5 of 6
acted with a gender animus, as its standard operating procedure, at DC 6097 from 1998-2005. Further, the EEOC may inquire about events and instances since 2/2005 at DC 6097 that would be probative as to Wal-Mart’s gender animus for the 1998-2005 period at DC 6097. Permitted topics would include changes in policy; training; actions indicating cognizance of prior discrimination; allegations of discrimination that surfaced post 2/2005 but related to the 1998-2005 period; and, allegations of bias, regardless of time frame, directly involving Wal-Mart’s DC 6097 decision makers for the 1998-2005 period.
As the Court stated in conference, it expects the lawyers involved in this case, all of whom are highly skilled, to apply these parameters in good faith and with a reasonable view toward cooperatively completing discovery. The Court should not have to approve, by line-item, deposition questions. To guide the parties, however, the Court views almost all2 of the objected-to questions as valid, under the terms of this Order. Further, based on the EEOC’s estimate of limited further deposition proof, Wal-Mart should carefully evaluate whether to bar a witness from answering a question, under this Order, or whether to simply reserve objection for further resolution, if necessary.
Finally, the Court does not view Wal-Mart’s conduct as warranting an imposition of fees or costs, under Rules 26(c) and 37. The Court does expect Wal-Mart to carry the economic burden of presenting Mr. Giles, at the EEOC’s reasonable convenience, for the continuation of his deposition. If the parties can agree that the Giles deposition will conclude as part of an otherwise-
2
Matters outside the parameters, addressed in the listed questions, would be a) questions about empirical observations at another DC; and b) questions about post 2/2005 gender complaints, unless those complaints involved or implicated pre-2/2005 conduct at DC 6097 during the 1998-2005 period or involved decision makers for such period.
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Case 6:01-cv-00339-KKC Document 129 Filed 01/18/2007 Page 6 of 6
scheduled event in the case, then Wal-Mart shall produce him as agreed. If the parties cannot agree, then Wal-Mart must take such other steps as may be reasonable to produce Mr. Giles either at a place convenient to the EEOC or, if the EEOC agrees, by video conference as mentioned to the Court. To be clear, the EEOC is entitled to examine Mr. Giles concerning matters permissible within the scope of this Order, and it is Wal-Mart’s burden to present Mr. Giles for conclusion of the deposition in a manner economically convenient to the EEOC.
The terms of this Order apply to the continuation of the Giles deposition and to such other depositions, including that of Andy Glover, as may occur. The motions for protective orders and motion to compel are denied in part and granted in part, in accordance with the terms of this Order.
IT IS SO ORDERED. The docketing clerk may terminate docket entries 117, 119 and 125. The Court issues this Order resolving a non-dispositive pretrial matter under 28 U.S.C. § 636(b)(1)(A). Any party objecting to this Order should consult said statute concerning its right of reconsideration before the District Court. This the 18th day of January, 2007.
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 CIVIL NO. 01-339-KKC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION LONDON

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

PLAINTIFF

vs:

ORDER

WAL-MART STORES, INC.

DEFENDANT

* * * * * *

The Court considers several issues implicating privilege and proper discovery scope. The

motions at issue are the following:

a. The EEOC’s motion for a protective order concerning the subject matter of represented class member depositions. See DE ##167/168, 170 (Wal-Mart Response), 173 (EEOC Reply).

b. Wal-Mart’s complimentary motion to compel answers to questions/production of documents affected by the scope topic. See DE ##171/172, 174 (EEOC Response), 179 (Wal-Mart Reply). This category also encompasses Wal-Mart’s effort to discover the identity of a man in attendance at a previous depo prep session on July 16, 2007 apparently involving some of the represented class members.

The Court and parties discussed the issues as part of the January 31, 2008 status hearing in this case,

and the Court applies the Rule 26 and 37 standards for compelling or protecting a party from

discovery.

Based on the record, the hearing, and a review of applicable authority, the Court rules as

follows on the issues presented by these motions.

1

1. Confidential communications between the EEOC and represented class members come within the attorney-client privilege. Federal common law determines application of the attorney-client privilege in a matter
arising under federal law. See Fed. R. Evid. 501. Professor Wigmore’s classic formulation provides:
where (1) legal advice is sought (2) from a professional legal advisor in his capacity as such, (3) a communication relating to that purpose, (4) made in confidence, (5) by the client (or attorney), (6) is at his instance permanently protected, (7) from disclosure by himself or the legal advisor, (8) except if the privilege is waived. In re Rivastigimine Patent Litig., 239 F.R.D. 351, 357 (S.D.N.Y. 2006); see also In re VisionAmerica, Inc. Sec. Litig., 2002 WL 31870559, *2 (W.D. Tenn. Dec. 18, 2002)(citing United States v. Goldfarb, 328 F.2d 280, 281 (6th Cir.1964).
The Sixth Circuit further endorses consideration of drafted (but not enacted) FRE 503 as a useful starting point for privilege analysis. See Ross v. City of Memphis, 423 F.3d 596, 600-02 (6th Cir. 2005); see also Proposed Rule 503 reprinted at 56 F.R.D. 183, 235-237 (1973). The privilege proponent bears the burden of establishing privilege applicability, and a court must narrowly construe any privilege, as a matter blocking otherwise legitimate discovery. See Laethem Equipment Co. v. Deere and Co.,. 2007 WL 2873981, *5 (E.D. Mich. Sep. 24, 2007). Still, serving the underlying purpose of the doctrine – candor between client and lawyer – must inform a court’s approach. See Ross, 423 F.3d at 600-02.
The EEOC’s role in Title VII litigation complicates the analysis. In one sense, the EEOC acts to exonerate general principles reflected in the statute. However, Title VII and Supreme Court precedent recognize that the EEOC also acts to pursue private relief for qualifying claimants. See 42 U.S.C. § 2000e-5(f); see also Int’l Brotherhood of Teamsters v. United States, 97 S. Ct. 1843,
2

1851 (1977); Gen. Tel. Co. of the Nw., Inc. v. EEOC, 100 S. Ct. 1698, 1704 (1980)(“When the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination.”). A Title VII claimant may independently pursue relief, but there plainly is a general identity of interests between an individual asserting discrimination and the EEOC asserting discrimination against the same employer concerning the same set of circumstances. See Gen. Tel., 100 S. Ct. at 1703 (“We do no more than follow a straightforward reading of the statute, which seems to us to authorize the EEOC to sue in its own name to enforce federal law by obtaining appropriate relief for those persons injured by discriminatory practices forbidden by the Act.”)
The Court finds that, under the Wigmore/503 formulation, the attorney-client privilege does protect communications between the EEOC and represented class members in this case. Once a woman has sought or requested legal guidance from the EEOC, concerning a claim against WalMart, she has triggered the protections of the attorney-client privilege with respect to communications salient to such guidance. The key to privilege analysis is the client’s expectations, as draft Rule 503 reflects. Thus, if a “person . . . consults a lawyer with a view to obtaining professional legal services” a privilege exists as to “confidential communications made for the purpose of facilitating the rendition of professional legal services to the client.” See Proposed Rule 503; see also E.E.O.C. v. Johnson & Higgins, Inc., 1998 WL 778369, *4 (S.D.N.Y. Nov. 6, 1998)(“Whether a privileged attorney-client relationship exists rests upon the client's intent to seek legal advice and the client's belief that he is consulting an attorney, i.e., someone who will keep the
3

communications confidential.”).1 The Rule defines “client” based on communicant expectations,
not lawyer conduct.
It would undercut the expectations of the advice-seeking claimants, and do great harm to the
EEOC’s full statutory charge, to permit exploration of confidential exchanges between the
individuals seeking legal guidance and the EEOC. Wal-Mart may not inquire into post-
representation, confidential communications between the EEOC and any claimant the EEOC
represents. Representation commences (or commenced) upon a woman requesting or seeking legal
advice from the EEOC regarding the/a claim against Wal-Mart.
The Court has reviewed all of the cited cases that assess this question. Interestingly, the
question is never “if” a privilege ultimately exists between the EEOC and a claimant, but rather
“when” the protection attaches. Thus,
If an individual has indicated an intention to be a class member with the expectation that the EEOC would represent him or her, then there exists an attorney-client relationship.
E.E.O.C. v. Joslin Dry Goods Co., 2007 WL 433144, *5 (D.Colo. Feb. 2, 2007); E.E.O.C. v.
Collegeville/Imagineering Ent., 2007 WL 158735, *1 (D.Ariz. Jan. 17, 2007)(“The Court has
1
Wal-Mart’s focus is on the EEOC’s conduct – relative to, e.g., the Rules of Professional Conduct or the discovery rules – and thus is somewhat misplaced. Whether the EEOC acts like the women represented are traditional clients, in every sense of the word and for all purposes, does not define whether the women are clients for purposes of the attorney-client privilege. However, the Court shares Wal-Mart’s dismay over practical inconsistencies in the EEOC’s handling. Certainly, it is reasonable to expect the EEOC to facilitate necessary appearances by the class members it represents in this case. The EEOC may not have the control or responsibility one would attach to a traditional representative relationship, but the EEOC owes a level of courtesy and responsiveness reflective of its status as the party formally seeking available relief for all class members. The EEOC cannot cry privilege at one turn and then act like any of the represented class members are unaffiliated third parties at the next, when burdens of litigation management arise. The Court expects fair accountability by the EEOC in balancing its duties.
4

reviewed the cases cited by both Plaintiffs and Defendants to discern when an attorney-client relationship begins in a Title VII lawsuit brought by the EEOC.”)(emphasis added); E.E.O.C. v. TICThe Indus. Co., 2002 WL 31654977, *3 (E.D.La. Nov. 21, 2002)(“The case law is not definitive regarding the moment when the EEOC enters into an attorney-client relationship with the members of the class it seeks to represent.”)(emphasis added); E.E.O.C. v. Morgan Stanley & Co., Inc., 206 F. Supp.2d 559, 561 (S.D.N.Y.2002)(same).
The Court has found no case rejecting the attachment of a privilege to a Title VII claimant actually seeking advice and representation from the EEOC, and the Court has found no case endorsing the broad and invasive right of examination Wal-Mart advocates. Application of the Wigmore elements establishes, in the Court’s view, that if a Title VII claimant seeks legal advice from the EEOC, then confidential communications concerning rendition of advice by the EEOC fall within the traditional attorney-client privilege, absent waiver. The Court therefore GRANTS the EEOC’s motion for a protective order, upon good cause, to the extent that the Court restricts WalMart from inquiring into or discovering confidential exchanges between the EEOC and a represented class member from the point at which the particular member sought legal guidance from the EEOC. 2. The Court cannot determine, on this record, whether the presence of a third-party waived the
attorney client privilege and/or applicable work product protection. Wal-Mart seeks the identity of a man present for a deposition prep session involving the EEOC and some of the represented class members.2 Although discovery of the man’s “identity”
2
The Court agrees that the EEOC’s refusal to provide the identity, in this context, frames the matter properly for a motion to compel. Wal-Mart plainly sought information via deposition that raises a ripe issue for consideration.
5

is one issue, the next step in the topic would certainly be discovery from the identified person and/or discovery as to the specific meeting. As such, the Court turns to the substantive analysis.
The Court already has ruled that the attorney-client privilege would cloak confidential communications between the EEOC and represented class members. However, communications in the presence of a true third-party likely would not be confidential, or, to phrase it differently, the third-party’s presence may effect privilege waiver. See E.E.O.C. v. Texas Hydraulics, Inc., 246 F.R.D. 548, 556 (E.D.Tenn. 2007)(“Voluntary disclosure of privileged communications to a third party is considered a waiver of the attorney-client privilege because it is inconsistent with the notion of confidentiality.”)(citing In re Grand Jury Proceedings Oct. 12, 1995, 78 F.3d 251, 254 (6th Cir.1996)). However, the reason for the third-party’s presence matters. Thus: “[W]here a third party is present during attorney-client communications, as either the party's or the attorney's agent, in order to facilitate the effective rendition of legal services, the protection of the privilege remains intact.” Oxyn Telecomm., Inc. v. Onse Telecom, 2003 WL 660848, *2 (S.D.N.Y. Feb. 27, 2003). The record does not identify the man present for the session or explain why he was in the room.
Even if waiver may have occurred, in whole or part, as to the subject matter of the particular meeting, the work product doctrine might continue to protect the meeting content from discovery. The work product doctrine emanates from Hickman v. Taylor, 67 S.Ct. 385 (1947), partially codified within Rule 26. Materials produced or created by counsel or a party “because of” litigation fall within the doctrine’s protection. See United States v. Roxworthy, 457 F.3d 590, 593 (6th Cir. 2006).
The Rule itself protects only “documents and tangible things,” see Rule 26(b)(3), but the doctrine foundationally extends beyond the tangible. See United States v. One Tract of Real Prop., 95 F.3d 422, 428 n.10 (6th Cir. 1996)(“When applying the work product privilege to such non-
6

tangible information, the principles enunciated in Hickman apply, as opposed to Rule 26(b)(3) of the Federal Rules of Civil Procedure, which applies only to ‘documents and tangible things.’”); U.S. Info. Sys., Inc. v. IBEW, 2002 WL 31296430, *5 (S.D.N.Y. Oct. 11, 2002).
While a showing of substantial need, and no reasonable alternative information source, may permit a party access to factual work product, the law jealously and wholly protects from review the mental impressions and theories of counsel. See Rule 26(b)(3)(noting that ordering court “must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative of a party concerning the litigation”). Attorney mental impressions are sacrosanct. See In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289, 294 (6th Cir. 2002)(“However, absent waiver, a party may not obtain the ‘opinion work product of his adversary; i.e., ‘any material reflecting the attorney's mental impressions, opinions, conclusions, judgments, or legal theories.’”)(quotation omitted)(emphasis added).
There is little doubt that a deposition prep session centrally involves an attorney’s case assessment, discussion of important facts/theories, and expert anticipation of adversarial testing:
The questions and comments by a lawyer and his client's employees as they discuss legal and factual questions that have arisen in litigation or prepare for a deposition are at the heart of a lawyer's preparation and surely the attorney must be permitted to do that in peace, free from the intrusion of opposing counsel. Banks v. Office of Senate Sergeant-at-Arms, 241 F.R.D. 376, 382 (D.D.C. 2007). The framework and content of such a meeting would demonstrate, indeed largely would be comprised of, the conducting attorneys’ opinion work product. As such, the only possible basis for discovery of the content of that meeting would be waiver. Unlike the attorney-client privilege, a party waives work-product protection only by a disclosure that “substantially increases the opportunity for potential adversaries to obtain the
7

information.” JA Apparel Corp. v. Abboud, 2008 WL 111006, at *3 (S.D.N.Y. Jan. 10, 2008)(quotation omitted). The Sixth Circuit has expressly recognized that disclosure must be to an “adversary” to effect waiver in the work product context. See In re Columbia, 289 F.3d at 306 (“Other than the fact that the initial waiver must be to an ‘adversary, there is no compelling reason for differentiating waiver of work product from waiver of attorney-client privilege.”)(emphasis added).
The record simply does not provide enough information to make this determination. If the third person was a claimant’s spouse or family member, no work-product waiver likely occurred. However, the Court simply cannot make a finding based on the lack of empirical evidence. As such, the Court ORDERS that, within ten (10) days of the date of this order, the EEOC provide the following information in a sealed filing with the Court:
a. The name of the third-party present for the July 16, 2007 depo prep session;3 b. The identities of the other meeting participants; c. The connection of the third-party to the case or to any meeting participant; and d. The reason for the third-party’s presence at the meeting. Based on its in camera review of the filing, the Court will evaluate whether it needs further development to formulate a ruling.
3
The identity of the person likely is not protectable, and the Court would anticipate identifying the person. However, if the identity itself were to reveal strategy – e.g., that the person had particular expertise or was a consultant – the answer might change.
8

3. Deposition scope must comport with the structure of the case and with the substance of this Order. As to the remaining scope issues, Wal-Mart should have more latitude with the EEOC-
identified Stage I/direct-knowledge witnesses than it will have with respect to the general class member depositions. See DE # 163 at 10 (order referencing limited scope/duration). However, that latitude is subject to the bifurcated nature of the trial. Additionally, the privilege rulings in this Order further affect deposition subject matter. Thus, the Court GRANTS the EEOC’s motion for a protective order, for good cause, on the following terms:
As to the Stage I/direct-knowledge witnesses: a) Wal-Mart may confirm that the EEOC represents the witness and may reasonably
attempt to determine when the representation commenced, i.e., when the witness initially sought representation/advice from the EEOC concerning a potential claim against Wal-Mart. Wal-Mart may not seek to discover or ask questions about any EEOC/claimant communications following that established point-in-time. b) Wal-Mart may query a witness’s general understanding of her relationship with the EEOC, but again, Wal-Mart may not delve into or discover post-representation communications. c) Unless Wal-Mart did not hire or promote a particular deponent because of prior representations from her concerning work history, Wal-Mart may briefly (not to exceed thirty (30) minutes of deposition time) survey a witness’s current employment status and employment history, identifying prior employers and periods/duties/requirements of employment. If Wal-Mart made an employment
9

decision as to a particular witness on the basis of her representations concerning work history, the time limitation stated does not apply. This ruling recognizes the impeachment/bias values Wal-Mart asserts but further reaffirms that Stage I will not involve a series of mini-trials and that the Court has deferred any damage considerations to potential Stage II.
CONCLUSION On the terms stated, the Court therefore: a. GRANTS the EEOC’s motion for a protective order. See DE ##167/168; and b. DENIES, consistent with the privilege ruling and scope analysis, Wal-Mart’s
corresponding motion to compel answers to questions/production of documents. See DE ##171/172. Wal-Mart’s discovery access, as relevant, is as defined by this Order; and c. DEFERS Wal-Mart’s motion concerning the third-party’s identity pending the EEOC’s supplementation of the record for in camera review, as specified herein.
* * * This order resolves various nondispositive pre-trial matters, per 28 U.S.C. § 636(b)(1)(A). The parties should consult said statute and Rule 72(a) for applicable appeal rights and mechanics. This the 19th day of February, 2008.
G:\01 judge\W-Meeoc\privilege.wpd
10

 
 CIVIL NO. 01-339-KKC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION LONDON

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

PLAINTIFF

vs:

ORDER

WAL-MART STORES, INC.

DEFENDANT

* * * * * *

The Court considers Plaintiff EEOC’s motion for a protective order. See DE #192/193. The

specific matter involves the manner by which Defendant Wal-Mart has contacted and will

prospectively contact unrepresented class members in this gender discrimination class action. The

matter is fully briefed, and the parties presented argument to the Court at a January 31, 2008 hearing.

See DE ##196 Wal-Mart Response, 197 Wal-Mart in camera proffer, 203 EEOC Reply.

Part of the issue involves the proper balance between Wal-Mart’s general right to contact

unrepresented persons and the persons’ right to fair notice of the posture and purpose of such

contact. The Court already addressed that balance, setting a protocol for contact. See DE # 126 at

13. Wal-Mart’s in camera submissions demonstrate that Wal-Mart is properly following the Court’s

order.

The specific genesis for the current motion comes from Wal-Mart’s inadvertent contact with

a represented class member. That contact resulted from confusion or misinformation about the

person’s name and difficulty in status verification from the represented party list(s) provided by the

EEOC. Again, it is the EEOC’s duty to fairly notify Wal-Mart of women identified as “off limits”

1

to ex parte contact. If such a person has a name change due to marriage, divorce, or other reasons, the EEOC would need to notify Wal-Mart reasonably of the relevant change(s).
The Court will not grant a protective order, finding inadequate cause under Rule 26(c). However, the Court clarifies its prior ruling as to class member contact, in light of the unexpected event leading to this motion.
Wal-Mart may not knowingly contact a class member the EEOC represents, and Wal-Mart shall continue to consult diligently the EEOC disclosure(s) of represented class members prior to contacting any class member. When contacting an apparently unrepresented class member, WalMart shall, prior to any substantive questioning about that person’s relevant knowledge and as early in any contact as it reasonably can, ask the person whether the Equal Employment Opportunity Commission is currently representing her in a claim against Wal-Mart, including whether she considers the EEOC to be “her lawyer.” If the person confirms that the EEOC represents her, or indicates that she considers the EEOC as “her lawyer,” the contact by Wal-Mart shall immediately end. If the person communicates that the EEOC does not represent her and does not act as “her lawyer,” Wal-Mart may continue the contact so long as it complies with the Court’s prior protocol order. Of course, it goes without saying that the Rules of Professional Conduct likewise apply in this and every contact scenario.
The foregoing clarification aside, the Court DENIES the motion for a protective order. This order resolves a nondispositive pre-trial matter, per 28 U.S.C. § 636(b)(1)(A). The parties should consult said statute and Rule 72(a) for applicable appeal rights and mechanics.
2

This the 19th day of February, 2008.
G:\01 judge\W-Meeoc\pocontactNEW.wpd
3

 
 CIVIL NO. 01-339-KKC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION LONDON

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

PLAINTIFF

vs:

ORDER CONFIRMING WORK

PRODUCT PROTECTION

WAL-MART STORES, INC.

DEFENDANT

* * * * * *

The Court previously analyzed application of the work-product doctrine to a deposition prep

session involving the EEOC and several represented class members. Wal-Mart sought discovery

concerning an alleged third party1 in attendance at that session. See DE ## 171 Wal-Mart Motion

to Compel; 174 EEOC Response; 179 Wal-Mart Reply. In the prior ruling, the Court determined

that the work-product doctrine blocks Wal-Mart’s access to information about the prep session,

unless waiver occurred. See DE #209 Order. The order deferred full waiver analysis pending ex

parte supplementation by the EEOC. The EEOC has supplemented as directed, and the Court now

issues its ruling on the question of waiver.

1
In essence, Wal-Mart sought the identity of the third person, contact information concerning the person, and permission from the Court to discover “the entirety of the information shared” at the prep session. See DE #171 Wal-Mart’s Motion to Compel. At oral argument, Wal-Mart suggested that it seeks only identity, but the briefing reveals that the ultimate goal, of course, is access to the substance of the prep session.
1

As the Court already noted, work-product waiver is in some respects distinct from waiver of the attorney-client privilege. While attorney-client protection necessarily hinges on intended full confidentiality and resultant promotion of lawyer-client candor, the work-product doctrine exists to foster the adversarial system. Thus, disclosure to a third party normally works a waiver of the attorney-client privilege, but waiver is less categorical as to protectible work product. See id. at 8. As previously held, for work-product waiver to occur, disclosure must be to an adversary or under circumstances likely to reach or apprise an adversary. See id.; see also Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product Doctrine 404 (3rd ed. 1997)(“The essential question concerning waiver of the work-product doctrine by disclosure is whether the material has been kept from adversaries. . . . [T]he focus . . . is on the extent to which the relationship [of disclosure] is an adversarial one and what efforts were made to keep adversaries from obtaining the material.”).
The Court ordered supplementation because of sparsity in the record concerning the necessary analysis. The EEOC’s ex parte document indicates that a third party did attend a July 2007 deposition prep session involving several represented class members. The third party, a male, is in a close personal relationship with a represented class member and has no affiliation with WalMart. The EEOC’s tender confirms that it described the meeting as confidential to all persons present and admonished all against subsequent disclosure.
Based on the record, as supplemented, the Court finds that no waiver of work-product protection2 occurred. Whether or not the EEOC acted incautiously by admitting a third party to the
2
The Court already noted that presence of a third party could waive the attorney-client privilege. See DE #209 at 6. However, complex questions exist over application of waiver in the context of group representation – including issues as to waiver scope; power to waive; and extent of waiver among privilege claimants. Based on the effect of the work-product decision, which precludes discovery of the prep session, the Court finds it unnecessary to resolve these questions.
2

depo prep session, the particular circumstances did not result in waiver. The third party has no tie to Wal-Mart. Indeed, the third party was present because of his intimate personal relationship with a represented class member. Finally, the EEOC took steps to communicate that the meeting was a confidential event and that participants should not later disclose items discussed. Including the third party obviously was not a disclosure to Wal-Mart, and the character of the session and specifics of the individual indicate that discovery by Wal-Mart was not a likely consequence. Based on the recognized limits for waiver in the context of the work-product doctrine, the doctrine’s protection remains intact. The Court DENIES Wal-Mart’s efforts to seek discovery related to the depo prep session. See DE #171.
The lone remaining issue is whether the Court should identify the man involved. The EEOC continues to contend that even his identity is protected. However, witness identity normally is not protected by the work-product doctrine or the attorney-client privilege. The Court has noted and applied that principle before in this case, see DE #163 at 6, 8, and the Court would block identification here only to the extent that revealing a person’s name might also reveal protected litigation strategy. The third party’s identity betrays no tactical choices by the EEOC in this case.
The EEOC maintains that Wal-Mart cannot establish relevancy, even as to the name of the third party. The Court disagrees for two reasons. First, as a generic matter, a discussion about the merits or strategy of the Wal-Mart/EEOC case, involving important witnesses, surely offers the reasonable potential for discoverable information. If Wal-Mart’s counsel and managers held a casestrategy meeting at which a third party attended, it is difficult for the Court to believe that the EEOC
Even if the meeting participants waived the attorney-client privilege as to themselves and/or as to that meeting, the protection of the work-product doctrine would bar discovery.
3

would not view the identity of that third party as “relevant” under the scope of Rule 26. Such a meeting – just like the prep session here – might involve a discussion of factual and legal strengths and weaknesses in the dispute. Plainly, the content would be relevant (though not likely discoverable). Second, and building on the first, identity here blends directly with the ultimate privilege analysis. Thus, if the prep session is not protected by privilege, then the third party is a person with discoverable knowledge; however, if the prep session is protected, the person’s knowledge is not “discoverable” under Rule 26(b)(1). As the Court’s analysis shows, the person’s role and identity here contribute significantly to a continued finding of privilege. Wal-Mart must be “enabled[d] to assess the [privilege] claim” by having sufficient specifics as to the basis for protection. See Rule 26(b)(5)(A). The Court believes that, in fairness and in compliance with the Rules, Wal-Mart is entitled to know the man’s name and his connection to the class.
The Court will give the EEOC an opportunity to block identification via a timely appeal to the District Judge. Failing a timely appeal, the Court will file a notice in the record that simply names the third party and states his connection to the class. That is, the Court will provide his name, the identified class member, and their relationship as stated in the EEOC’s ex parte supplement.
To be clear, when/if the person is identified, Wal-Mart shall not contact or seek discovery from him, directly or indirectly. Wal-Mart may not pursue additional discovery from or concerning the third party absent express, advance permission from the Court. Unless an appeal effects a change in the status of the rulings, the Court will not permit discovery from the third party.
4

The Court issues this Order resolving a non-dispositive pretrial matter under 28 U.S.C. § 636(b)(1)(A). Any party objecting to this Order should consult said statute and Rule 72(a) concerning its right of and mechanics for reconsideration before the District Court.
This the 6th day of March, 2008.
G:\01 judge\W-Meeoc\waiverissue.wpd
5

 
 CIVIL NO. 01-339-KKC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION LONDON

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

PLAINTIFF

vs:

ORDER REGARDING PENDING

DISCOVERY ISSUES

WAL-MART STORES, INC.

DEFENDANT

* * * * * *

The Court, upon referral, addresses the discovery issues raised at a July 24, 2006 status

conference and/or reflected in the parties’ cross-filings relative to Defendant’s written discovery

requests. The Court also addresses Defendant’s access to proof via deposition.

Plaintiff Equal Employment Opportunity Commission (EEOC) and Defendant Wal-Mart

Stores, Inc. (Wal-Mart Stores, Inc.) disagree over the proper scope of discovery in this now-

bifurcated Title VII pattern and practice class action. At the July 24, 2006 Scheduling Conference,

the parties disputed the number of class members Defendant may depose to prepare its defense at

the liability stage of the trial. See Tr. at 7-22. The parties further disagreed as to whether Defendant

may contact class members ex parte. The District Court took these issues under advisement. See

id. at 20.

The Defendant also filed a Motion to Compel Plaintiff to respond to written discovery

requests. See DE#86, 87. The EEOC submitted a response concerning the issues. See DE# 97, 98.

The EEOC’s response includes an analytically-related request to limit discovery in the first stage

1

of the case. See DE#98. Wal-Mart replied to the substance of the argument. See DE# 107. These filings all address the central matter of proper discovery scope for Stage 1 of the case.
The Court has considered all of the filings, which are extensive, in attempting to craft an appropriate resolution. At the outset, the Court notes the following principles that it applies in evaluating the discovery arguments.
First, the District Court has already set the broad contours for litigation of this case. The District Court denied the EEOC’s motion to bifurcate discovery. See DE# 82. That motion would have deferred all discovery of individual claimants to Stage 2, see DE #64, at 1, and the Court rejected the request.
Further, in the March 2006 Order, the District Court expressly protected Defendant from unfair surprise, preserving an adequate discovery right tailored to the structure of the case. Among other things, the Court dismissed limiting Defendant to discovery of witnesses “hand selected” by Plaintiff, found the Defendant “entitled to know what it is up against in terms of class size and potential claimants,” and noted Defendant’s right “to know the full extent of the Commission’s claims and the size of the potential class.” See DE# 82, at 2-3.
On the other hand, the Court did bifurcate the trial into liability and damage phases.1 That bifurcation necessarily and by design defers most of the individual proof issues to Stage 2, as the District Court noted. Further, bifurcation invites appropriate limits on Stage 1 discovery, “through this Court’s supervision of the discovery process.” See id.
1
The Court will address the stage assignment for punitive damages by separate ruling. 2

Finally, Court discretion in discovery management exists in all cases, and particularly in a bifurcated action, per Rule 42(b), of this scope and potential magnitude. The Court exercises that discretion in an effort to preserve efficiency and judicial economy, while protecting both parties from prejudice. By this Order, the Court will 1) define the permitted deposition range and the proper scope of written class-member discovery; and 2) address Defendant’s ex parte contact with class members not represented by the EEOC.
1. Deposition numerosity and written discovery The chief discovery issue raised at the July 24, 2006 hearing involved the permissible number of class member depositions by Defendant. Wal-Mart contends that, at a minimum, it needs and is entitled to depose 10% of the class, or roughly 450 persons. See Tr. at 11. The EEOC replies that taking 450 depositions will undermine the efficiencies gained in bifurcating the trial and is grossly unnecessary since Stage 1 focuses on class-wide discrimination, not individual hiring decisions. The EEOC proposes that Defendant may depose the class members selected as witnesses by Plaintiff and an additional five to fifteen persons. Plaintiff suggests that such discovery limitations are customary for bifurcated pattern and practice discrimination cases. Similar arguments attend the written discovery served by Defendant, which prompted a flurry of objections and cross-filings by the parties. Defendant characterizes its written discovery, which theoretically applies to the entire class, as seeking “routine information.” The discovery does seek some general, identifying data (name, address, social security #), but the discovery also seeks extensive background information. The Court thus must sift through the requests and define the proper scope, taking into account all factors.
3

As Wal-Mart contends, there are no strict limits on the types of evidence that employers may use to refute an inference of discrimination at the first stage of a pattern and practice case. See Int’l Bhd. of Teamsters v. United States, 97 S.Ct. 1843, 1867 n.46 (1977). To an extent, a defendant may rebut a plaintiff’s prima facie showing by reliance on anecdotal or illustrative evidence relating to specific and individual charges of discrimination. See E.E.O.C. v. Fed. Reserve Bank of St. Louis, 84 F.R.D. 337, 341 (W.D. Tenn. 1979)(providing a defendant “must be afforded the opportunity to ... present evidence relating to specific charges of individual discrimination” to rebut a showing of discriminatory practices at the first stage); E.E.O.C. v. McDonnell Douglas Corp., 960 F.Supp. 203, 205 (E.D. Mo. 1996)(stating that defendant may introduce anecdotal and illustrative evidence of individual dismissals that bears on the issue of whether a pattern of discrimination existed).
The Court notes that the plaintiff’s mode and manner of proof in a case of this nature largely defines, or at least informs, a defendant’s rebuttal options. Thus, the degree to which a plaintiff relies on anecdotal or individual proof necessarily expands a defendant’s need to counter with anecdotal or individual proof. The courts recognize that “the strength of rebuttal evidence that the defendant must produce. . . depends, as in any case, on the strength of the plaintiffs’ proof.” Flavel v. Svedala Indus., Inc., 868 F. Supp. 1422, 1461 (E.D. Wis. 1994). Further, as the Supreme Court itself characterized, “The employer’s defense must, of course, be designed to meet the prima facie case of the plaintiffs.” Teamsters, 97 S. Ct. at 1867 n. 46 (emphasis added). In other words, “[D]efendants’ rebuttal evidence is tailored to the plaintiffs’ prima facie case.” Flavel, 868 F. Supp. at 1461. In rebuttal, defendant may challenge the “source, accuracy, or probative force” of statistical proof; a defendant may also present competing statistics and “present anecdotal and other non-
4

statistical evidence tending to rebut the inference of discrimination.” See Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 159 (2d. Cir. 2001)(citation omitted).
Plaintiff, who expects to designate a 4500+ member class with a 10% “shortfall,” forecasts relying on both expert, statistical proof and some level of individual testimony. See Tr. at 8 (“We expect we are talking about 15 to 20 women, maximum.”). Defendant must have an adequate opportunity to develop its own corresponding proof relative to this expansive class, which could include anecdotal or contrary illustrative proof tailored to match testimony from the EEOC’s representative witnesses.
The Court reminds the litigants that the ultimate proof issue–for both parties--relates to Defendant’s alleged policy of discrimination, i.e., whether Wal-Mart engaged in discrimination as a standard operating procedure. See Teamsters, 97 S. Ct. at 1855. “Isolated” or “sporadic discriminatory acts” will not suffice. See id. Still, limited resort to proof of individual treatment may, in a statistically-laden case, bring “cold numbers . . . to life.” See id. at 1856. The Court and parties must manage the discovery and trial proof allowing for legitimate anecdotal or illustrative proof while keeping the ultimate liability question in focus.
The Court, of course, may reasonably control the amount of specific evidence on both sides. See Robinson, 267 F.3d at 168 (“[T]o ensure that the liability phase remains manageable, the district court may limit the anecdotal evidence as it deems appropriate.”); McDonnell Douglas Corp., 960 F.Supp. at 205 (“Defendant will not be able to present evidence regarding each individual termination at the liability trial.”); Sperling v. Hoffmann-La Roche, Inc., 924 F.Supp. 1346, 1354 (D.N.J. 1996)(noting that defendant cannot offer evidence, at stage one, that each individual plaintiff was lawfully discharged). Demonstrating whether each individual claimant was denied an
5

employment opportunity for lawful reasons is the employer’s burden at the remedial stage. See Teamsters, 975 S.Ct. at 1868. Making that plenary inquiry at the liability stage would completely undermine the framework for pattern and practice cases designed by the Supreme Court in Teamsters. The District Court already has recognized this value, stating:
This is not to suggest that the defendant will be able to counter each individual plaintiff brought forward by the Commission at trial . . . These individual determinations are Stage 2 questions and are not to be used to determine the initial liability. DE# 82, at 2. Similarly, lower courts find that a defendant’s right to present some evidence of individual circumstances at the liability stage is not a license to conduct unlimited discovery of each plaintiff. See E.E.O.C. v. Rent-a-Center, Inc., No. 99-2427, 2002 WL 1482534, at *2 (W.D. Tenn. 2002)(finding the depositions of seventy additional class members should be deferred until after the liability stage of a bifurcated trial); EEOC v. Nebco Evans Distrib., No. 96-00644, 1997 WL 416423, at *3 (D. Neb. 1997)(“[T]here is no need for the defendant to depose each of the individual applicants and prepare for the remedial phase before liability has been determined.”). By limiting the scope of the first stage, it is unnecessary for Defendant to engage in extensive discovery by deposing each plaintiff until liability has been determined. See Nebco Evans Distrib., 1997 WL 416423, at *2-*3. One of the primary purposes of trial bifurcation is to defer such costly and potentially unnecessary discovery and trail preparation. See Fed. R. Civ. P. 42(b); see also Ellingson Timber Co. v. Great N. Ry. Co., 424 F.2d 497, 499 (9th Cir. 1970). Nebco Evans involved an alleged pattern and practice of hiring discrimination involving roughly 150-200 claimants. At the liability stage, the court in Nebco Evans permitted the defendant to depose only fifteen individuals, in addition to those appearing as witnesses at the first stage for
6

the EEOC. See Nebco Evans Distrib., 1997 WL 416423, at *3. The court determined that such a limitation did not prejudice the defendant at the first stage because the defendant could determine from the employment applications, in its possession, which individuals to depose to rebut an inference of discrimination. See id.
With respect to the written discovery, the Court has taken into account the District Court’s statements concerning scope, the bifurcation and its effects, and the requests actually made by Defendant. The Court does believe that Wal-Mart already possesses much of what it seeks. After all, this is an intentional discrimination action. The basis for any hiring decision surely rests, primarily, with the hiring actor.2 As such, much of the discovery seems duplicative or not warranted, as a practical matter. Further, Wal-Mart will, as described in part 2 hereof, have some access to class members ex parte, which would permit extensive development of information independent of the EEOC.
Upon review, therefore, the Court hereby orders the following with respect to further Stage 1 proceedings: Written Discovery
As to Stage 1,
2
The Teamsters Court recognized that “the employer was in the best position to show why an individual employee was denied an employment opportunity.” Company records “were the most relevant item of proof” and the company “knew best what those [hiring factors] were.” Teamsters, 97 S. Ct. at 1867 n.45.
7

A) Plaintiff shall provide the following information for all class members: -full name; -social security number; -last address and telephone number known to the EEOC.
B) If Defendant identifies particular class member(s) that Defendant contends it did not hire because of falsity by the applicant or a discrepancy in qualifications surfacing during and at the time of the application process, then Plaintiff shall be required to provide individual information about the identified member related to Wal-Mart’s stated basis for nonhiring. Further, if Defendant disputes whether a person named a class member actually applied to Wal-Mart, Plaintiff must provide written discovery calculated to develop the issue of applicant identity.
C) Finally, to the extent Plaintiff is (or at any time prior to trial becomes) aware that a class member(s) has knowledge or information directly relevant to Defendant’s alleged gender animus concerning the subject matter of this action, Plaintiff must identify the class member(s) to Defendant and detail that knowledge. In other words, Plaintiff must specifically notify Defendant of any class member(s), known to Plaintiff, that possesses tangible evidence and/or has knowledge directly related to the allegation of intentional discrimination by Defendant that is at issue in this case.3
3
This does not require the EEOC to contact every class member. Rather, the EEOC must identify class members with knowledge if the EEOC knows or becomes aware of such a class member during the litigation of this action.
8

Class member depositions As to Stage 1,
D) Defendant shall be permitted to depose all class members identified by the EEOC as
likely Stage 1 witnesses, and the EEOC shall identify such potential witnesses as
promptly as practicable.
E) Defendant further may identify and depose an additional seventy-five (75) class members.4 The Defendant will limit each such deposition, in this subpart E, to an
examination of the witness’s personal experience related to applying for employment
with Wal-Mart at DC 6097 and any anecdotal or other knowledge the witness may
have directly related to the allegation of intentional discrimination by Defendant that
is at issue in this case.
F) Defendant also may depose, and access the tangible proof of, any class member
identified by the EEOC, per this Order in Subpart C.
* * *
The Court denies the remainder of the motion to compel and, except as to the ex parte
contact discussed further, correspondingly grants the remainder of the motion to limit discovery.
Damage discovery properly applies only to Stage 2. Evidence of an individual claimant’s
background and education would matter only if something about those categories actually affected
4
This is a figure the Court has struggled to designate. Though far less than the 10% of the entire class sought by Wal-Mart, the figure, when combined with depositions of EEOC witnesses and others identified as having direct knowledge gives Wal-Mart access to approximately 100 class members, by deposition. That range is nearly the total amount of class members the EEOC has contacted and seems a strong basis for Wal-Mart to survey the class for anecdotal or illustrative proof. That level of access to information certainly compares favorably with the Plaintiff’s discovery opportunity, particularly given the Court’s ruling on ex parte contact.
9

Wal-Mart’s employment decision at the time of the decision. The Court preserves Wal-Mart’s
opportunity to identify those scenarios, per subpart B, and thus access additional, relevant
information.
Wal-Mart’s mastery of the hiring process and possession of the relevant application
documents greatly undercuts the need for blanket written discovery. The requirement that the EEOC
identify the full class, disclose any witnesses with direct knowledge, and provide further information
where directly relevant to the hiring process protects Wal-Mart from surprise and permits it to
prepare a defense. Further, the deposition range ensures that Wal-Mart will access all witnesses
with direct knowledge and all EEOC trial witnesses, and further gives Wal-Mart a chance to survey
a broad section of the class for further proof germane to Stage 1. 2. Scope of Contact Between Defendant and Class Members Defendant contends that it is entitled to informally contact class members not officially
represented by the EEOC. See Tr. at 10, 17-18. The EEOC suggests that any ex parte
communication with potential class members by Wal-Mart would be unethical or raise privilege
concerns. See DE#97, Pl. Response to Def. Motion to Compel at 24-25. The EEOC believes that
a “quasi attorney-client privilege” exists between it and all potential class members, even if those class members are unaware of the EEOC and its lawsuit. See id.5
The issue of privilege, however, is not nearly as clear as the EEOC contends. See E.E.O.C.
5
The parties do not clearly designate whether this is as an attorney-client privilege issue or an ex parte contact issue under Model Rule 4.2 (or its state counterpart, SCR 3.130 (4.2)). In Kentucky, a lawyer may not, without permission, communicate about a matter with a person the lawyer knows to be represented as to that matter. Kentucky law construes this provision narrowly. See, e.g., Humco, Inc. v. Noble, 31 S.W.3d 916, 920 (Ky. 2000)(defining contours of rule with respect to contact with former employees of represented company and limiting application, in context, to “prevent[ing] disruption of the attorney-client relationship”).
10

v. Morgan Stanley & Co., 206 F.Supp.2d 559, 561-62 (S.D.N.Y. 2002). The privilege attachment and analysis may depend on the statutory basis for the action, the amount of contact between the EEOC and the class members, and/or the relationship of the class members to the defendantemployer.
Generally, courts require that class members consent to or at least contact the EEOC about representation before any privilege attaches in Title VII enforcement actions. See E.E.O.C. v. TIC, No. 01-1776, 2002 WL 31654977, at *4-*5 (E.D. La. 2002). As the court in Nebco Evans explains, the Title VII action, by itself, does not create a privilege relationship because persons meeting the class definition are not precluded by the EEOC lawsuit from bringing separate actions.6 See EEOC v. Nebco Evans Distrib., No. 96-00644, 1997 WL 416423, at *4 (D. Neb. 1997); see also TIC, 2002 WL 31654977, at *2-*3.
On the other hand, the court in Morgan Stanley recognized that all persons who meet the class definition of a Title VII action are represented by the EEOC “to some degree.” Morgan Stanley & Co., 206 F.Supp.2d at 561. In that case, however, the defendant attempted to engage in ex parte communications with its current employees before they consented to join the EEOC’s lawsuit. Recognizing an “inherent” possibility of coercion by the defendant-employer, the court imposed certain restrictions on the defendant’s freedom to discuss the case with its employees. See
6
Compare this result to enforcement actions under the ADEA where the EEOC is held to represent class members from the time the ADEA suit is initiated. See E.E.O.C. v. United States Steel Corp., 921 F.2d 489, 495 (3rd Cir. 1990). This is because, unlike Title VII, the right to bring a private action under the ADEA terminates upon the commencement of a lawsuit by the EEOC. See E.E.O.C. v. TIC, No. 01-1776, 2002 WL 31654977, at *2-*3 (E.D. La. 2002). Thus, “the conclusion that the EEOC is the individual’s representative in ADEA suits ... seems inescapable.” United States Steel Corp., 921 F.2d at 495.
11

id. at 564.
Notably, the reasoning in Morgan Stanley does not extend attorney-client protection to a
significant number of individuals in this case who were not hired, and thus are not employed, by
Wal-Mart. See TIC, 2002 WL 31654977, at *5-*6. For the same reason, the court in TIC permitted
the defendant-employer, in a pattern and practice hiring discrimination case, to engage in ex parte
communications with potential and unidentified claimant-applicants because they were not in
contact with the EEOC and were not employed by the defendant. See id. at *6. Moreover, as a
fairness measure, the court in TIC addressed the “unusual and difficult circumstances ... [that the
potential and unidentified] class members have not had the opportunity to request representation by
the EEOC because they are unaware” of the lawsuit, as raised by Plaintiff in its response. See
DE#97, Pl. Response to Def. Motion to Compel at 25. In this respect, the court required the
defendant-employer to inform potential class members of the pending lawsuit, their right to join the action, and to contact the EEOC for further information.7 See TIC, 2002 WL 31654977, at *6.
7
Although TIC is unreported, it is persuasive to this Court on the issue of privilege due to the factual similarities between the two cases. TIC involved an alleged pattern and practice of hiring discrimination. See TIC, 2002 WL 31654977, at *1. Thus, the potential claimants were not employed by the defendant. See id. at *6. In addition, many of the potential claimants remained unidentified, and as a result, were unaware of the lawsuit. See id. at *1. The defendant-employer desired to engage in ex parte communications with potential claimants. See id. The EEOC replied by invoking privilege on behalf of all potential and unidentified claimants. See id. Other than the five individuals who filed charges with the EEOC, the court found no authority to stop the defendant from contacting and discussing the case with the remaining claimants, until those claimants consented to the EEOC’s representation. See id. at *5-*6. Since potential claimants may have been unaware of the lawsuit and their right to join, however, the court required the defendant to apprise potential claimants of that information. See id. at *6.
12

In sum, this case involves a Title VII enforcement action. It appears that the vast majority of potential class members have neither consented to EEOC representation or had contact with the EEOC. Indeed, the EEOC admits that most class members are unaware of the case. See July 24, 2006 Scheduling Conference at 13 (stating the EEOC has spoken with 113 of the estimated 4,500 class members). Under these circumstances, this Court concludes that there is no current attorneyclient relationship precluding Wal-Mart from contacting other potential class members. The EEOC shall promptly identify, and regularly continue to identify, those class members that have consented to the EEOC’s representation. Defendant shall not ex parte contact any class member so identified by Plaintiff.
In order to protect the potential class member’s rights, Defendant shall, for any such contact: 1. Clearly identify the reason for contact and the identity, role, and defense-relationship
of the person making such contact; 2. Inform any person contacted that the EEOC has initiated suit, summarize the nature
of the claims involved, identify each claimant’s right to join the action, and instruct such persons to contact the EEOC for additional information; and 3. Furthermore, Defendant may only discuss facts relevant to the particular witness or the class allegations, and Defendant may not attempt to influence a decision to contact the EEOC, join this action, or bring a separate suit. See TIC, 2002 WL 31654977, at *7. IT IS SO ORDERED. The docketing clerk may term Docket Entries 86, 95, and 98. The Court issues this Order resolving a non-dispositive pretrial matter under 28 U.S.C. § 636(b)(1)(A). Any party objecting to this Order should consult said statute concerning its right of
13

reconsideration before the District Court. This the 9th day of January, 2007.
14

 
 CIVIL NO. 01-339-KKC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION LONDON

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

PLAINTIFF

VS:

ORDER

WAL-MART STORES, INC.

DEFENDANT

* * * * *

The Court considers discovery motions filed by the EEOC herein, specifically a motion to

quash certain subpoenas and a motion to compel the occurrence of certain depositions. Defendant

Wal-Mart has responded. See DE## 153 (motion to quash), 155 (emergency motion) and ___

(undocketed responses of Wal-Mart) .

Based on the imminent character of the issues, the Court promptly conducted a hearing at

which both parties had ample opportunity at argument. For the reasons stated on the record, the

Court orders the following:

1. The Court grants in part and denies in part the motion to quash. Categories 1-5 on the list of documents concern tangible evidence regarding the particular witness’s hiring experience, relationship to Wal-Mart, or knowledge of gender animus and therefore are appropriate for class member deponents in this action. The Court denies the motion as to those categories. The Court grants the motion as to Categories 6-7 except to the extent those categories seek responsive documents from an unrepresented class member or seek responsive documents that came into existence prior to commencement of the representation of a class member by the EEOC.

Category 8 purports to impose duties with respect to assertion of a privilege, and the Court would limit those duties to any imposed by the Civil Rules.

2. After discussion with the parties, the depositions set for the remainder of this week, beginning August 1, shall occur as scheduled, thus resolving prospective issues raised in DE# 155.
3. The EEOC shall not direct a witness served with a subpoena not to produce documents or answer questions based only on the manner of service by Wal-Mart.
4. The Court does not purport to resolve, by this Order, any privilege issues. The Court encourages the parties to consider thoughtfully the proper contours of a privilege before blocking testimony or discovery based on assertion of such privilege, and the parties must cooperate to create a meaningful basis for evaluation in the event of a privilege assertion.
5. The parties will convene for the previously-scheduled status conference on August 3, 2007 at 1:30 p.m.
This the 31st day of July, 2007.

 
 CIVIL NO. 01-339-KKC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION LONDON

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

PLAINTIFF

VS:

COMPREHENSIVE DISCOVERY ORDER

AND STATUS REPORT

WAL-MART STORES, INC.

DEFENDANT

* * * * * *

The Court issues this order as both a Comprehensive Discovery Order and as a Status Report

to the District Judge. The Order identifies all pending matters, resolves the discovery/procedural

matters referred to the undersigned, and references the prospective procedural steps in the case. The

Court anticipates that the parties will be filing proposed schedules for disposition of the case by

August 27, 2007. See DE# 161 (minute order directing filing of proposed schedules). Those

proposals should dovetail with this Order to provide an avenue for issuance of a final schedule for

resolution of Stage I of this case.

The Court has carefully considered the parties’ detailed briefing as to all issues, and the

plenary status conference held on August 3, 2007 in London greatly assisted in clarifying and

defining the matters pending.

1

Pending Motions/Matters The following list identifies all currently pending items in this action. Listed matters 1 and 2 are for resolution by the District Judge.1 The remainder of the list involves discovery and procedural matters, which the Court will address in the balance of this Order. 1. Phase assignment for punitive damages. The parties have fully briefed and argued this issue, including recent supplemental filings. See DE## 64 (bifurcation motion); 65 (brief in support); 71 (Wal-Mart response); 72 (EEOC reply); 89 (transcript concerning phase-assignment argument); 95 (EEOC supplemental brief); 96 (WalMart supplemental citations); 102 (Wal-Mart response to #95); 135 (Wal-Mart supplemental authority); and 137 (EEOC response to #135). The proper assignment of punitive damages in this bifurcated action is ripe for decision. 2. Appeal of the January 18, 2007 discovery order. The undersigned issued a discovery order on January 18, 2007. See DE# 129. The EEOC filed objections to that order, and the matter stands briefed and submitted to the District Judge. See DE## 131 (EEOC objections); 132 (Wal-Mart responses). 3. Wal-Mart’s motion to strike Dr. Bielby as an EEOC expert. The briefing on this issue appears as follows. See DE## 133 & 134 (Wal-Mart motion to strike/brief); 136 (EEOC response); 138 (Wal-Mart reply).
1
Issue 1 is not subject to a referral order, and it involves a critical issue concerning the structure of the Stage I trial. Issue 2, as an appeal of a prior discovery order, plainly is for Judge Caldwell’s evaluation.
2

4. The EEOC’s motion to compel answers to 5th set of interrogatories. The briefing on this issue appears as follows. See DE## 139 (EEOC motion to compel/brief); 140 (Wal-Mart’s response); 144 (EEOC reply). 5. Wal-Mart’s motion to extend expert deadlines. The briefing on this issue appears as follows. See DE## 141 (Wal-Mart motion/brief); 145 (EEOC response); 151 (Wal-Mart reply). 6. Wal-Mart’s motion to amend and enforce January 9, 2007 discovery order. The briefing on this issue appears as follows. See DE## 142 & 143 (Wal-Mart’s motion/brief); 146 (EEOC response); 150 (Wal-Mart reply).
Resolution of Enumerated Discovery and Procedural Motions Again referencing the enumeration provided above, the Court addresses the pending discovery and procedural motions. 3. Wal-Mart’s motion to strike Dr. Bielby as an EEOC expert & 5. Wal-Mart’s motion to extend expert deadlines. The Court considers together Wal-Mart’s motion to strike Dr. Bielby and Wal-Mart’s motion to extend expert deadlines, because both motions implicate Wal-Mart’s preparation and presentation of expert evidence in this case. Further, permitting or striking Bielby plainly impacts the time WalMart reasonably requires to complete its expert proof. The Court does find that the EEOC failed to timely identify Dr. Bielby. The expertdisclosure deadline called for disclosure of reports by the EEOC in July of 2005, and the EEOC did not identify Dr. Bielby or disclose his report until March 1, 2007. The EEOC’s efforts to construe prior orders as making the disclosure timely are not convincing. The delay permitted by the Court, as to the EEOC disclosure, related only to delay in the report concerning Part II of the application
3

periods at issue. See DE# 62 (initially bifurcating report into 1998-2001 period and 2002-2005 period); see, e.g., DE# 115 (extending bifurcated date). The EEOC did not request, and the Court did not authorize, delayed identification of its expert or delayed disclosure of a global expert report. Further, the EEOC consistently referenced its expert in the singular, plainly indicating that it had one expert, already identified, and that the EEOC simply needed more time to complete Part II of the disclosure. See DE# 109 at ¶6 (referencing “his [the expert’s] database”).
The EEOC, while not formally requesting leave to make the Bielby disclosure late, does marshal arguments related to Wal-Mart’s lack of prejudice. The EEOC also notes that the case does not yet have a discovery deadline or trial schedule, making it inequitable to hold the EEOC to a firm deadline that passed two years prior.
The Court agrees that the scope of the case, the lack of a fixed discovery and trial schedule, and the mutability of deadlines to date support allowance of Bielby’s report. This is so primarily because the Court can reasonably avoid any prejudice to Wal-Mart without imposing the harsh sanction of excluding the EEOC’s proffered expert. Although Wal-Mart generally complained that inclusion of Bielby would dramatically alter the case, counsel had difficulty articulating how prior discovery would have changed if Bielby, or his report, had been identified and disclosed in 2005 instead of in 2007. Further, and significantly, Wal-Mart has confronted and continues to deal with Dr. Bielby as an adversarial expert in comparable litigation pending in the Ninth Circuit. As such, Wal-Mart would have efficiencies in processing and rebutting Bielby’s opinions that might not otherwise exist.
The Court is reluctant to excuse the EEOC’s tardy disclosure, but the rules plainly require an evaluation of prejudice relative to a party’s failure to disclose evidence in a timely fashion. See
4

Fed. R. Civ. P. 37(c)(requiring evaluation of harm, absent substantial justification for failure). Because of the current indeterminacy of the discovery and trial schedule, and the particular scenario involving Bielby, the Court simply cannot say that permitting the EEOC to utilize Bielby will harm Wal-Mart or affect the prospective disposition of the case.
Much of the harm analysis hinges on resolution of Wal-Mart’s expert deadline request. As stated at the August 3, 2007 status conference, the EEOC is the recipient of not-insubstantial grace, as to Bielby, so its protests about additional time for Wal-Mart should be muted. The Court has considered Wal-Mart’s request, in the context of its ruling regarding Dr. Bielby, and also has considered the extensive period the EEOC has enjoyed to finalize its disclosures and reports.
After discussion at the status conference, and based on the record, the Court orders the following concerning Wal-Mart’s expert disclosures:
a) Wal-Mart shall identify its expert(s) responsive to Dr. Barnow’s opinions by no later than November 5, 2007, and shall provide the full Rule 26(a)(2) report for such identified expert(s) by no later than January 7, 2008.
b) Wal-Mart shall identify its expert(s) responsive to Dr. Bielby’s opinions by no later than January 7, 2008, and shall provide the full Rule 26(a)(2) report for such identified expert(s) by no later than March 4, 2008.
c) If Wal-Mart intends to use any expert(s) not within the categories a)-b) just listed, it shall identify them and provide the full Rule 26(a)(2) expert reports as to each by no later than November 5, 2007.
Wal-Mart shall make any expert reasonably available for deposition in the 60 (sixty) days following disclosure of such expert’s report. Further, the EEOC shall make any supplemental Rule 26(a)(2)
5

report(s) that are in the nature of rebuttal within 75 (seventy-five) days of the date that Wal-Mart discloses the report prompting and subject to such rebuttal.
According to this schedule, all expert proof in the matter, as to Stage I of the case, should be fully concluded by mid-2008.
4. The EEOC’s motion to compel answers to 5th set of interrogatories. The EEOC seeks to compel disclosure, by interrogatory answer, of certain information related to witnesses. The Court has evaluated the full briefing, reviewed the EEOC’s tendered “fifth set,” and had the benefit of helpful argument at the August 3 status conference. Plainly, the identification of persons with knowledge is a matter discoverable under the rules. See Fed. R. Civ. P. 26(b)(1)(listing as properly discoverable “the identity and location of persons having knowledge of any discoverable matter”). The scope of discovery extends to any non-privileged matter “relevant to the claim or defense of any party.” See id. Direct knowledge impacting discriminatory animus, both pro and con, surely fits within that broad category in a Title VII gender case. Rule 26(a) itself requires automatic–and periodic supplemental–disclosure and identification of “each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses . . . identifying the subjects of the information.” Wal-Mart’s protestations to the contrary, the attorney-client privilege or work-product doctrine does not traditionally block discovery of witness identification. See, e.g., Mazur v. Lampert, 2007 WL 917271, at *3 (S.D. Fla. March 25, 2007)(“[U]nder the plain language of the operative Rule in this matter, a claim of work product protection in response to an interrogatory asking for the identity of specific witnesses . . . must fail.”)(citing Hickman v. Taylor, 67 S. Ct. 385 (1947)); see also 8
6

Federal Practice & Procedure § 2013 (2007)(noting that “courts have repeatedly allowed discovery of the names and locations of persons with knowledge of the facts” and that work product objections “ordinarily provide no ground for refusing discovery”).
The EEOC legitimately has asked Wal-Mart to identify unrepresented class members with direct information related to gender animus. The EEOC also has sought identification of “potential” trial witnesses and the provision of “updated” contact information for unrepresented class members.
Considering Interrogatories No. 3 & 4, the Court grants the EEOC’s motion in part and on the specific terms outlined in this order. Wal-Mart shall respond to the interrogatories by providing, to the extent the information is available and known to Wal-Mart, the name and current contact information for any unrepresented class member that has knowledge or information directly relevant to Wal-Mart’s alleged gender animus concerning the subject matter of this action. By this designation, the Court intends to encompass only those witnesses with personal or anecdotal knowledge that directly tends to prove or directly tends to disprove a gender animus by Wal-Mart during the period at issue in this case. Thus, witnesses that heard or heard about gender-specific comments, statements, or attitudes would be included, but witnesses with only inferentially relevant knowledge (e.g., a witness with an ostensibly gender-neutral interview experience that might, through personal characteristics or history, fit a pro-defense or pro-plaintiff model of this case) would not be included. The former category–Has this person heard, personally or anecdotally, a gender-specific remark or seen a gender-specific attitude expressed?–reveals only factual knowledge, a subject of proper discovery. The latter category, which essentially would require counsel to reveal, on a witness-by-witness basis, whether a witness “helps” or “hurts” the case, would invade work product and not be a subject of proper discovery.
7

To be clear, the Court is not ordering and likely would not permit discovery of true work product, including the content of witness interviews or information beyond the generic and categorical identification ordered hereunder. Both parties should have access to the names of people that have direct knowledge, and that can be accomplished, as the rules envision, without invading work product or the mental impressions of counsel.
The Court does deny the motion as to Interrogatory No. 1. That interrogatory seeks updated contact information, in Wal-Mart’s possession, of any unrepresented class member. This essentially would require Wal-Mart to divulge the scope and manner by which it has sampled, or sought to sample, the unrepresented class members. Providing the information in total would reveal counsel’s mental impressions relative to the preparatory step of designing and managing class contact. See E.E.O.C. v. Collegeville/Imagineering Ent., 2007 WL 1089712, at *1 (D. Az. April 10, 2007)(“[D]iscovery designed to find witnesses with knowledge does not run afoul of the work product protection while discovery designed to trace the steps of opposing counsel does.”). Remember, the EEOC still gets the contact information for any persons identified under the terms of this Order, but the Court is not willing to force Wal-Mart to answer Interrogatory No. 1. This is particularly true since both parties pursued the information through the same equally-available public avenues, based on representations of counsel at the status conference and in the briefing.
Finally, as to Interrogatory No. 2, the Court will not specifically require a Rule 26(a)(3) disclosure from Wal-Mart at this stage. That disclosure would require identification of witnesses Wal-Mart “may present at trial.” Still, Wal-Mart and the EEOC remain subject to Rule 26(a)(1), which requires identification of individuals “likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment.” The
8

structure of the rules makes it unlikely that a witness appearing on a Rule 26(a)(3) disclosure would not also properly have appeared on an earlier Rule 26(a)(1) listing. The Court would scrutinize closely, for surprise and prejudice to the EEOC, any initial appearances on Wal-Mart’s ultimate Rule 26(a)(3) list.
6. Wal-Mart’s motion to amend and enforce January 9, 2007 discovery order. Wal-Mart seeks to expand the number of class member depositions that it may conduct in this case. The briefing and argument as to this issue demonstrates that an unexpected spike in the number of represented class members has diminished Wal-Mart’s access to informal proof in the case. As such, and as a matter of fairness, the Court will modify, to some extent, the number of class member depositions permitted. The class size now numbers about 4,000 members. When the Court issued its January 8, 2007 discovery order, the EEOC represented only about 113 class members. Although the EEOC initially tried to block Wal-Mart from contacting any class members ex parte, the Court permitted Wal-Mart to contact, in a fair manner, unrepresented class members. That opportunity was an important avenue for defense preparation and an alternative to the number of depos Wal-Mart originally sought. The Court did bar Wal-Mart from contacting represented class members. See DE# 126, at 13 (requiring identification of represented members and barring ex parte contact of represented members, but permitting ex parte contact, with safeguards, of unrepresented class members). Now, the EEOC purports to represent over 1300 class members. The effect is to deny WalMart informal access to these women, leaving Wal-Mart with no way, except via the limited depositions previously permitted, to sample a large segment of the class. Wal-Mart still can contact
9

the 2700 unrepresented members, but Wal-Mart now cannot informally seek discovery from over
30% of the class.
The Court will, based on this change in status, increase the deposition number in ¶ E of the
January 9, 2007 from 75 (seventy-five) to 120 (one hundred twenty). When combined with the other
permitted depositions–as specified in that January 9 order, which this Order otherwise does not
affect–Wal-Mart will have access to over 10% of the represented class, if it chooses to spend its
depositions entirely on that group. Wal-Mart can continue to contact informally the unrepresented
class members. Thus, this provides Wal-Mart the functional equivalent of the entire access it
originally sought when the EEOC balked at any ex parte contact and Wal-Mart sought permission
to depose 10% of the class. All such depositions are subject to the scope limit provided in ¶ E.
Further, the Court formally limits the length of any such deposition, under that paragraph, to 60 minutes of questions and answers, exclusive of objections or colloquy between counsel.2
As to the scope of the identification duty under ¶ C of the January 9 Order, the Court intends
for that scope to be coexistensive with that defined in this Order addressing the EEOC’s motion to
compel, relative to persons with “knowledge or information directly relevant to Defendant’s alleged
gender animus concerning the subject matter of this action.” This makes the duties and obligations
as to identification of witnesses with knowledge equivalent and properly reciprocal.
2
The EEOC argues that Stage I should not devolve into a collection of mini-trials, and the Court certainly agrees. As stated in the January 9 Order, however, Wal-Mart is to have a fair chance to learn about and gather anecdotal or individual proof, in an effort to respond to the EEOC’s Stage I case. The Court continues attempting to preserve the efficiencies of bifurcation while meeting the requirement of mutual fairness.
The Court does note that the EEOC’s potential number of individuals called at Stage I now apparently has grown to 31, double the prediction from last July. This suggests that individual proof will be an important component of both presentations at Stage I.
10

The Court issues this Order resolving non-dispositive pretrial matters under 28 U.S.C. § 636(b)(1)(A). Any party objecting to this Order should consult said statute and Rule 72(a) concerning its right of reconsideration before the District Court.
This the 14th day of August, 2007.
11

 
 M
 1iutern JJistrlcV 01 ~~ntucky F I LED

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY AUG? 4- 2001

LONDON DIVISION

O/-S3Q
EQUAL EMPLOYMENT OPPORTUNITY '- )

COMMISSION,

)

AT LONDON LESLIE G WHITMER ClERK U.S. DISTRICT COURT

Plaintiff,

)

CIVIL ACTION NO.

)

)

v.

)

WAL-MART STORES, INC.,

)

COMPLAINT

)

)

)

Defendants.

)

)

JURY TRIAL DEMAND

NATURE OF THE ACTION The United States Equal Employment Opportunity Commission (the "Commission") brings this action against Wal-Mart Stores, Inc. ("Wal-Mart") pursuant to Title VII ofthe Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991 in order to correct Wal-Mart's unlawful employment practices on the basis of gender and to provide appropriate relief to Janice Smith ("Smith") and a class of similarly situated female applicants (the "Class"), all of whom were adversely affected by such practices. As alleged in paragraph seven below, the Commission alleges that Wal-Mart subjected Smith and the Class to disparate treatment based on gender.
JURISDICTION AND VENUE 1. JurisdictionofthisCourtisinvokedpursuantt028U.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) (nTitle
VIlli) and S&Ction 102 of the Civil Rights Act of 1991, 42 U.S.c. § 1981 a.

2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the Eastern District of Kentucky, London Division.
PARTIES 3. Plaintiff, 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)(l) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(l) and (3). 4. Defendant, Wal-Mart, is a corporation and at all relevant times has continuously been a corporation doing business in the Commonwealth of Kentucky and the City of London, and has continuously had at least 15 employees. 5. At all relevant times, Wal-Mart has been an employer engaged in an industry affecting commerce within the meaning of Sections 70l(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, Smith filed a charge with the Commission alleging violations of Title VII by Wal-Mart. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. Since at least January 1, 1998, Wal-Mart engaged in unlawful employment practices within Wal-Mart Distribution Center No. 6097, in London, Kentucky, in violation of Section 703(a)(l) of Title VII, 42 U.S.C. § 2000e-2(a)(I). Specifically, Smith and the Class were.
2


•

subjected to disparate treatment based on gender when Wal-Mart failed to hire Smith and the Class into vacant positions within its London, Kentucky, facility.
8. The effect of the practice complained of in paragraph 7 above has been to deprive Smith and the Class of equal employment opportunities because oftheir gender.
9. The unlawful employment practices complained of in paragraph 7 above were intentional and done with malice or reckless indifference to Smith and the Class's federally protected rights.
PAAYER FOR RELIEF
 WHEREFORE, the Commission respectfully requests that this Court:
 A. Grant a permanent injunction enjoining Wal-Mart, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in discrimination based on gender. B. Order Wal-Mart to institute and carry out policies, practices, and programs which provide equal employment opportunities for females and which eradicate the effects of its past and present unlawful employment practices based on gender. C. Order Wal-Mart to make Smith and the Class whole by providing appropriate back-pay with prejudgment interest in amounts to be determined at trial and other affirmative relief necessary to eradicate the effects of its unlawful employment practices.
3

•

D. Order Wal-Mart to make Smith and the Class whole by providing each of them compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraph 7 above in amounts to be determined at trial.
E. Order Wal-Mart to make Smith and the Class whole by providing each of them compensation for past and future non-pecuniary losses resulting from the unlawful practices complained of in paragraph 7 above, including emotional pain, suffering, inconvenience, loss of enjoyment of life, embarrassment and humiliation, in amounts to be determined at trial.
F. Order Wal-Mart to pay Smith and the Class punitive damages for its malicious and reckless conduct described in paragraph 7 above, in amounts to be determined at trial.
G. Grant such further relief as the Court deems necessary and proper in the public interest.
H. Award the Commission its costs of this action.
4

•

JURY TRIAL DEMAND The Commission requests a jury trial on all questions of fact raised by its Complaint.
Respectfully submitted, GWENDOLYN YOUNG REAMS Associate General Counsel

,

EQUAL PLOYMENT OPP

Y

COMMISSION

Louisville Area Office

600 Martin Luther King, Jr. Place

Suite 268

Louisville, Kentucky 40202-2285

(502) 582.6308 (Direct Dial)

(502) 582.5437 (Facsimile)

Email: bobby.simpson@eeoc.gov

5


 
 Case 6:01-cv-00339-KKC Document 409 Filed 07/15/2009 Page 1 of 45

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION LONDON

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
PLAINTIFF v. WAL-MART STORES, INC.
DEFENDANT

) ) ) ) ) ) CASE NO. 01-339 ) ) ) )

-----------------.)

WAL-MART'S MOTION FOR SUMMARY JUDGMENT

Defendant, Wal-Mart Stores, Inc, pursuant to Fed. R. Civ. P. 56(b), hereby moves

the Court to enter summary judgment on all claims asserted in the Complaint of

Plaintiff Equal Employment Opportunity Commission (EEOC). The EEOC cannot meet

its burden of proving that Wal-Mart engaged in a standard and deliberate pattern or

practice of intentional disparate treatment in hiring at Wal-Mart Distribution

Center 6097 on the basis of gender. There is no genuine dispute of material fact that the

EEOC does not present sufficient evidence to establish its required prima facie case of

gender discrimination. Accordingly, the Court should grant Wal-Mart's Motion for

Summary Judgment on the EEOC's claims in their entirety. A Memorandum of Law in

support of this Motion is submitted herewith and a tendered Order attached hereto.

{··'.:)nned

Case 6:01-cv-00339-KKC Document 409 Filed 07/15/2009 Page 2 of 45
Respectfully submitted,
WOODWARD, HOBSON & FULTON, L.L.P.
~~~KathrynA.Q ErinM. Roar 2500 National City Tower 101 South Fifth Street Louisville, Kentucky 40202 (502) 581-8000 Counsel for Defendant, Wal-Mart Stores, Inc.
CERTIFICATE OF SERVICE It is hereby certified that a true and correct copy of the foregoing was served, via the method indicated below, to the following, on this the 15th day of July, 2009:
Nancy Dean Edmonds Equal Employment Opportunity Commission Indianapolis District Office 101 West Ohio Street, Suite 1900 Indianapolis, Indiana 46204 Counsel for Plaintiff (Service via fax and First Class u.S. Mail)
Aimee L. McFerren Equal Employment Opportunity Commission 600 Dr. Martin Luther King, Jr. Place, Suite 268 Louisville, Kentucky 40202 Counsel for Plaintiff (Service via fax)
2

Case 6:01-cv-00339-KKC Document 409 Filed 07/15/2009 Page 3 of 45

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION LONDON

F i I Eastl!lrn Ol~lt It:! of K(lp\udW E;r~ . ;l<. ~ ~~ ~t;.:;.';

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION

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PLAINTIFF

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v.

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WAL-MART STORES, INC.

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DEFENDANT

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JUL 15 2009
A1 Fj.~l\N}<FO!:~T LESLIE G. i,!VHITf~i1Ek CLERK: U,S, DiSTHiCT COURT
CASE NO. 01-339

WAL-MART'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT
Defendant Wal-Mart Stores, Inc., by counsel, pursuant to Fed. R. Civ. P.56, moves this Court to enter summary judgment, as a matter of law, for Wal-Mart on the Equal Employment Opportunity Commission's claims against it.
INTRODUCTION To survive summary judgment, the EEOC must establish each essential element of its case and demonstrate that there is a genuine issue for trial. It cannot. For nearly eight years, the EEOC has searched for evidence to support its claim that Wal-Mart engaged in a pattern or practice of intentional gender discrimination at hiring at its Distribution Center No. 6097 (DC 6097) in London. Now, after Wal-Mart's production of hundreds of thousands of pages of job applications and interview notes, voluminous written discovery, ~nd hundreds .pf depositions, the EEOC has no more proof than when it started. It cannot
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meet its "higher burden" of establishing a prima facie case that Wal-Mart's "standard operating procedure" was to intentionally discriminate against female job applicants. See Int'[ Bhd. of Teamsters v. United States, 431 U.s. 324, 360 (1977); EEOC v. Jordan Graphics, Inc., 769 F. Supp. 1357, 1382 (W.D.N.C. 1991). First, the EEOC's claims impermissibly exceed the scope of its investigation into gender discrimination in Wal-Mart employee transfers to the DC 6097 orderfiller job, thus depriving the Court of subject matter jurisdiction over all claims but those related to transfer applicants for the orderfiller position. Further, it is undisputed that the EEOC has no proof whatsoever that Wal-Mart knew, much less took into consideration, the gender of the vast majority of class members when it declined their application at the prescreening stage -- the most basic element of establishing its prima facie case of intentional gender discrimination.
Even if the EEOC could overcome this huge deficit, it is undisputed that the EEOC cannot otherwise raise an inference that Wal-Mart engaged in a pattern or practice of intentional gender discrimination. Its statistical evidence does not eliminate nondiscriminatory explanations for alleged gender disparities in hiring at DC 6097. Indeed, the EEOC's statistical expert admits that his purported disparity in male-female hiring rates at DC 6097 is either non-existent or inaccurate for the relevant time period. Moreover, both the EEOC and its statistical expert have admitted that the database upon which the so-called gender disparity derives is inaccurate because the expert ignored key variables that affect male-female offer rates and because the variables that the EEOC did attempt to capture are, by and large, erroneously collected and coded.
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Even if the EEOC's statistical evidence were sufficient to establish a reliable and statistically significant disparity in hiring males and females at DC 6097, the EEOC presents no proof that the purported disparity is the result of deliberate, standardized gender discrimination by the more than 130 interviewers involved in hiring decisions at DC 6097 during the relevant time period. The EEOC's"social science" expert admits that he is unable to determine which DC 6097 employment decisions, if any, were based on gender bias; in fact, he concludes that unspecified gender stereotypes, if they exist, were unconscious and unintentional -- the polar opposite of purposeful and deliberate gender discrimination. Nor can the EEOC's largely inadmissible, unreliable and isolated anecdotal proof support its prima facie case.
The EEOC asks the Court to conclude, without evidentiary support, that because more men than women were hired as orderfillers at DC 6097, Wal-Mart must have engaged in a pattern or practice of purposeful gender discrimination in hiring. But its prima facie case is like a three-legged stool that ultimately has not a single leg to stand on. Thus, Wal-Mart's Motion for Summary Judgment should be granted.
STATEMENT OF UNDISPUTED FACTS I. DC 6097 and the Orderfiller Job. This lawsuit rests on an administrative charge filed by Janice Hagans Smith, a Wal-Mart employee at the retail store in London, who in October 1998 was denied a transfer to DC 6097 as a freezer department orderfiller. Ms. Smith filed a charge with the EEOC alleging that she had been discriminated against because of her gender when her transfer application was denied. (See EEOC Notice of Charge, attached as Ex. 1).
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Like other Wal-Mart grocery distribution centers, DC 6097, located in London, receives, bundles and ships to Wal-Mart retail grocery stores bulk perishable and nonperishable food items, such as cereal, bottled juices and water, canned goods, produce, and frozen meats. DC 6097 stocks the inventory of Wal-Mart grocery stores in parts of Kentucky, Tennessee and Ohio.
Housed in an 864,000 square foot warehouse, DC 6097 comprises various departments, including non-perishable food storage, meat and produce storage, dairy/deli food storage, and shipping and receiving, as well as personnel, quality assurance, maintenance, data processing, asset protection, and transportation. (Barrett 1/7/08 Rep. at 9, Ex. A).
Most hiring at DC 6097 is for an entry-level job known as an "orderfiller." (Barnow 3/1/07 Rep. at 8, Ex. B). The strenuous nature of the job and its duties is undisputed. An orderfiller works shifts of 10 to 11 hours loading crates, bags, and boxes of bulk food items from the warehouse £loor onto pallets, which rest on motorized pallet jacks. (Barrett 1/7/08 Rep. at 3, 7-8, 16). An orderfiller must stand, walk, stoop, bend, and routinely lift over 50 pounds, up to 100 pounds. (Id. at 3,5-10). Significant upper body strength is essential to removing goods from storage locations on the warehouse £loor, lifting them, and stacking them on the pallets over 6-feet high. (Id. at 5, 10). Orderfillers must work fast with the added pressure of required accuracy. (Id. at 6-7, 16-17).
Performing highly repetitive tasks, an orderfiller is randomly assigned" trips" by a computerized headset. (Id. at 4). Via headset, the orderfiller is directed to specific
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areas of the warehouse and told to pull, lift, and stack a specific quantity of each item onto a pallet. Once an orderfiller stacks the specified quantity of the item, he or she pulls or pushes the motorized pallet jack as directed by the computer headset to the next designated slot, then pulls, lifts, and stacks the next item, continuing this process until the end of the trip order is complete. (See, EEOC DVD of orderfiller job, 9/26/02, attached as Ex. 2). One trip order typically fills two full pallets up to a height of six feet. (Barrett 1/7/08 Rep. at 5). The orderfiller then delivers the stacked goods to be shrinkwrapped by a machine as a "column" of crates and shipped by freight truck to retail stores. (ld. at 4-6). Orderfillers perform dozens of trips during each shift, requiring not only exceptional upper body strength, but also endurance and durability. (ld. at 3-4, 10, 13, 16-17). Because the goods are promptly shipped to stores awaiting merchandise, orderfillers must be accurate, fast and efficient. (ld. at 9-10, 16).
Orderfillers work in extreme environmental conditions. The non-perishable food area of the warehouse is not climate-controlled and, depending on outside temperatures, can range from cold to very hot. (ld. at 7, 9). The frozen food area involves working in extremely cold temperatures of 22° below zero. (ld. at 7). The remaining perishable food sections of the warehouse are cooled to approximately 55° F. (ld. at 7, 9).
Wal-Mart's grocery distribution system is a model of efficiency in the industry and it requires qualified, diligent workers. 1 DC 6097 is besieged by job applicants for a relatively small number of jobs. Within the six year time period studied by the EEOC's
1 The EEOC's expert William Bielby acknowledged that "physical ability to lift heavy weights" is a valid job criterion for the orderfiller job, as are prior warehouse experience, prior heavy lifting work, stable work history, comfort in working in a warehouse environment, good attitude, team work and enthusiasm. (Bielby Dep. at 161, 167, 172-174).
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statistical expert, DC 6097 received 24,949 job applications, only 1,512 of which resulted job offers.2 (Barnow 4/30/09 Supplemental Rep. Ex. B2 at 6-9, Ex. C). Fully 94 percent of all applications, from both males and females, were rejected. Further, as many as 82 percent of applications from females during the relevant time period were rejected in the pre-screening phase of the hiring process based on application alone, with no proof that Wal-Mart decision-makers knew the gender of the applicants or that there is a statistically significant disparity between males and females rejected at that stage. See discussion, infra, at Argument II.
II. Janice Smith's Charge and EEOC Investigation Into Transfer Process. As a transfer applicant from the London store, Ms. Smith was interviewed in accordance with Wal-Mart's transfer policy; her application was denied after she told the interviewer that she was not "confident" she could work as an orderfiller in the freezer for the required six months before becoming eligible for internal transfer to another DC 6097 job. (See Janice Smith's Interview Comment Sheet, bates labeled WMJT9800189, attached as Ex. 3). Ms. Smith filed an administrative charge with the EEOC alleging gender discrimination in failing to hire her as a "Filler in the Freezer Department." (Charge, Ex. 1). Following its investigation into her charge, the EEOC issued a Determination stating that, "[e]vidence obtained during the investigation supports Uanice Smith's] allegations. Furthermore, there is evidence that females as a
2 Pursuant to Magistrate Wier's January 18/ 2007 Order (D. #129)/ the relevant time period of this case is 1998 to February 15, 2005; the EEOC has not contested that the temporal scope of such a suit is determined by the foundational charge, rendering the start of the relevant time April 18, 1998. See, Marquis v. Tecumseh Products Co./ 206 F.R.D. 132/ 161 (E.D. Mich. 2002). Barnow declined to analyze the applications received from 1/1/05 to 2/15/05. (Barnow 3/1/07 Rep. at 2 fn. 3).
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class were not hired as Order Fillers [sic] because of their sex in violation of Title VII." (EEOC Determination, attached as Ex. 4). Conciliation efforts to resolve the allegation of gender discrimination in hiring orderfillers were unsuccessful. (Complaint ~ 6, D. #1). This lawsuit followed.
III. EEOC's Complaint Expands Beyond Smith's EEOC Charge. On August 24, 2001, the EEOC filed the Complaint on behalf of a class of women who were not hired "into vacant positions" at DC 6097. (Complaint ~ 7). Although Ms. Smith's administrative charge alleged only discrimination in the transfer process and although the EEOC Determination asserts that its investigation obtained evidence only of discrimination in hiring for the orderfiller position, the EEOC broadened its Complaint to allege gender discrimination in hiring for myriad "vacant positions" at DC 6097. (Complaint ~7). On September 20, 2001, Wal-Mart filed its Answer to the EEOC's Complaint denying any and all allegations of discrimination. (Answer ~~ 3, 8-10, D. #3). WalMart reiterated that "all employment decisions were made for legitimate nondiscriminatory reasons" and that it "maintains strict policies prohibiting discrimination in any form, including on the basis of gender." (Answer ~~ 18, 20). Discovery is now complete and, despite years of effort, the EEOC has been unable to develop proof to establish a prima facie case.
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SUMMARY JUDGMENT STANDARD REQUIRES SUMMARY JUDGMENT FOR WAL-MART
Summary judgment is appropriate where the record evidence shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party "bears the burden of clearly and convincingly establishing the non-existence of any genuine issue of material fact, and the evidence as well as all inferences drawn therefrom must be read in a light most favorable to the party opposing the motion." Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir. 1986). "The moving party can meet this burden by pointing out to the court that the respondents, having had sufficient opportunity for discovery, have no evidence to support an essential element of their case." EEOC v. Aut020ne, Inc., 2006 WL
2524093, *1 (W.D. Tenn. 2006) (citing Street v. J. C. Bradford & Co., 886 F.2d 1472, 1479 (6th
Cir. 1989)). The EEOC "must come forward with more persuasive evidence to support [its] claim than would otherwise be necessary" and must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.s. 574, 586-587 (1986). Where the defendant demonstrates that after a reasonable period of discovery, the plaintiff is unable to produce sufficient evidence beyond the bare allegations of the Complaint to support an essential element of its case, summary judgment should be granted. Celotex Corp. v. Catrett, 477 U.s. 317, 323 (1986).
The burden of proof at this stage, as well as the ultimate burden of persuading the fact-finder that Wal-Mart engaged in a routine practice of intentional discrimination against the class of female applicants, rests squarely on the EEOC. Texas Dep't of
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Community Affairs v. Burdine, 450 U.s. 248, 253 (1981). Because the EEOC fails to establish a prima facie case of intentional discrimination, Wal-Mart is entitled to summary judgment.
ARGUMENT AND AUTHORITIES I. The EEOC's Claims Impermissibly Exceed the Scope of Its
Investigation, Thus Depriving the Court of Subject Matter Turisdiction. In filing this suit, the EEOC impermissibly expanded this litigation beyond the allegations in Ms. Smith's charge, its investigation, and its Determination. This expansion violates the procedural requirements of Title VII and deprives the Court of subject matter jurisdiction over the EEOC's claims that Wal-Mart discriminated against new hire applicants and applicants for "vacant positions" other than orderfiller. The Sixth Circuit Court of Appeals has consistently held that "[t]he clearly stated rule in this Circuit is that the EEOCs complaint is 'limited to the scope of the EEOC investigation reasonably expected to grow out of the charge of discrimination.'" EEOC v. Bailey Co., Inc., 563 F.2d 439, 446 (6th Cir. 1977) (disapproved of on other grounds, Christiansburg Garment Co. v. EEOC, 434 U.s. 412, 418 (1978)). The Court likened this "rule" to a due process right because it affords an employer "notice of the allegation, an opportunity to participate in a complete investigation of such allegation, and an opportunity to participate in meaningful conciliation discussions should reasonable cause be found following the EEOC investigation." Id. at 448,450. "Claims that are not within the scope of the EEOC investigation must be dismissed for lack of subject matter jurisdiction." Mohamed v. Air Serv Corp., 2005 WL 1868791, *3 (E.D. Ky. 2005) (emphasis added); EEOC v. Allegheny Airlines, 436 F. Supp. 1300, 1307 (W.D. Pa. 1977) (stating that
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EEOC may not litigate an issue that was not investigated); EEOC v. Brown Transp. Corp., 1976 WL 13236, * 3 (N.D. Ga. 1976) (granting partial motion for summary judgment and limiting scope of civil action to issues that were subject matter of conciliation efforts between EEOC and employer; II [i]It should be emphasized that the EEOC is not free to manipulate the scope of a case beyond the bounds herein expressed.").
Section 706 of Title VII sets forth a series of procedural steps the EEOC must take before bringing a pattern or practice lawsuit. 42 U.s.c. § 2000e-5(b) (2000). These steps include, inter alia, (1) filing of charge; (2) notice to the respondent; (3) investigation of the charge; (4) a determination of reasonable cause; and (5) an unsuccessful attempt at conciliation with the employer. Id. These statutory steps are mandatory and must be followed prior to the EEOC's initiation of a lawsuit. EEOC v. Westvaco Corp., 372 F. Supp. 985, 992-994 (D. Md. 1974).
When the EEOC's investigation uncovers discrimination unrelated to the original charge, the EEOC is required to comply with the procedural prerequisites of Section 706 by filing a commissioner charge. Bailey Co., Inc., 563 F.2d at 448. See also 42 U.s.c. § 2000e-6(e); EEOC v. United Airlines, Inc., 1975 WL 194, *2 (N.D. Ill. 1975) (stating that EEOC's authority to initiate pattern or practice suit must "be exercised in accordance with procedures set forth in section 706(b), which includes efforts to conciliate with the respondent prior to the institution of suit"); Westvaco Corp., 372 F. Supp. 985 at 994 (holding EEOC to higher standard than private litigant and granting summary judgment for employer where sex discrimination claim was not subject of reasonable cause finding or conciliation efforts).
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The EEOC may not expand the scope of the litigation to include additional employment actions that are outside the scope of the underlying charge, the EEOC's investigation, or the EEOC's conciliation efforts. See, e.g., Nelson v. General Elec. Co., 2 Fed. Appx. 425, 428 (6th Cir. 2001) (affirming summary judgment for employer on failure-to-promote claims not asserted in charge alleging discriminatory layoff); Green v. Elixir Indus., Inc., 152 Fed. Appx. 838,841 (11th Cir. 2005) (affirming summary judgment for employer on hostile work environment claim because plaintiff's charge was limited to claim of racially discriminatory termination).
Here, Ms. Smith's EEOC charge alleged that she was discriminated against in seeking a job transfer to an orderfiller position at DC 6097, and does not mention any allegation of discrimination in Wal-Mart's outside hiring procedures (Charge, Ex. 1). The EEOC's Complaint, however, seeks relief for new hire applicants who allegedly were discriminated against by Wal-Mart's hiring procedures for non-Wal-Mart employees at DC 6097. (Complaint ~7). It is undisputed that Wal-Mart's criteria, process and procedures for considering, accepting and rejecting transfer applicants are completely different from those for new hire applicants. (See Wal-Mart Associate Transfer Policies, WMDP00067-71, WMDP00075-81, WMDP01340-WMDP01342, attached as Ex. 5).3
Furthermore, Ms. Smith applied for and interviewed exclusively for an orderfilling job at DC 6097. (See Janice Smith's Transfer Application, WMJT9800195, attached as Ex. G)
3 Because such policies are proprietary and were produced pursuant to the parties' Agreed Protective Order, Wal-Mart tenders a Motion to place this exhibit under seal.
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(redacted pursuant to LR 5.7). Although the EEOC's Determination is limited to the hiring of "orderfillers," the Complaint seeks relief on behalf of applicants for all "vacant positions" at DC 6097. (Complaint ,-r7). 4 The EEOC's Determination does not assert allegations concerning positions other than the orderfiller position. Moreover, there was no investigation of alleged discrimination in hiring for positions other than orderfiller and the EEOC therefore made no conciliation efforts with respect to jobs other than orderfiller. (Complaint ,-r6). Wal-Mart's first notice of allegations concerning vacant jobs other than orderfiller was its receipt of the Complaint.
Because the EEOC did not follow procedural mandates required by Title VII before asserting that Wal-Mart discriminated against new-hire applicants, as opposed to transfer applicants, and for "vacant jobs" other than orderfiller, the EEOC has deprived the Court of subject matter jurisdiction over those claims. They should be dismissed.
II. The EEOC Has No Proof of Discrimination for the Vast Majority of Class Members.
Even if the EEOCs claims were properly before the Court, they still fail because the EEOC cannot establish the most basic element of its proof -- that Wal-Mart knew the gender of the vast majority of the class members when it rejected them for hire. To establish a prima facie case of treatment, the plaintiff must show that the defendant had knowledge that the plaintiff belonged to a protected class. See Johnson v. Northwest
4 The EEOC has apparently recognized this overexpansion and has attempted to rein in its claims, now saying that its allegations focus on "entry-Ievel warehouse positions," not all "vacant positions." (See EEOC Brief in Opposition to Wal-Mart's Motion to Exclude the Proposed Testimony of EEOC Expert Dr. William T. Bielby, D. # 361, at 19 fn. 13). But, this assertion does not cure the fact that the EEOC's Complaint far exceeds the scope "reasonably expected to grow out" of its investigation into Janice Smith's charge of discrimination as to transfer into an orderfiller position. Bailey Co., Inc., 563 F.2d at 446.
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Airlines, 53 F.3d 331, 1995 WL 242001, *3 (6th Cir. 1995) (affirming summary judgment for employer because " [a]n employer cannot intentionally discriminate against an individual on the basis of race if he is unaware of that individual's race"); Jackson v. "WhiteJwuse, 1993 WL 1624960, *6 (B.D. Mich. 1993) (court granted summary judgment for employer when plaintiffs failed to offer evidence that the employer knew their race). If a defendant does not know that a plaintiff is " different," it is impossible to claim that defendant intentionally treated that individual differently. Id. See also Robinson v. Adams, 847 F.2d 1315, 1316 (9th Cir. 1987) (same); Martin v. Citibank, N.A., 762 F.2d 212, 217-218 (2d Cir. 1985) (same); Frazier v. USF Holland, Inc. 2006 WL 2987737, *9 (B.D. Tenn. 2006).
The EEOC must come forward with evidence to support its claims, but presents no evidence that Wal-Mart knew the applicant gender for the vast majority of applications from women when it rejected them for employment. The first step in WalMart's new hire selection process is pre-screening by a personnel coordinator who determines based on the job application alone whether the applicant will be contacted for a telephone or in-person job interview. (See Wal-Mart Hiring Policies, WMDPOOOO1WMDP00012, WMDP00033-WMDP00046, attached as Ex. 7).5 Wal-Mart's application does not include a question about or otherwise indicate the applicant's gender. (Barnow 3/1/07 Rep. at 7). It is undisputed that applications not selected for a job interview are rejected for employment at this pre-screening stage, sight unseen, based on the application alone. (Hiring Policies, Ex. 7).
5 Because such policies are proprietary and were produced pursuant to the parties' Agreed Protective Order, Wal-Mart tenders a Motion to Place this exhibit under seal.
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According to the EEOC's statistical expert, from 1998 to 2001, 71 percent of applications from women were rejected at this prescreening stage; from 2002 to 2004, 82 percent of applications from women were rejected at the prescreening stage.6 (Barnow 4/30/09 Supp. Rep. Ex. B8 at 25-26, Ex. D). The EEOC presents no evidence whatsoever that the personnel coordinator knew that these applicants belonged to a protected class. This lack of evidence is fatal to the EEOC's assertion that Wal-Mart engaged in a II pattern or practice" of intentional discrimination, given that it cannot establish the most basic element of its prima facie case -- knowledge of protected class -- for as many as 82 percent of class member applications.?
Any speculative claim that Wal-Mart pre-screeners somehow "knew" applicant gender merely from the applicant's name is negated by Barnow's own class list, based on the same job applications examined by pre-screeners, which included males. (Barnow Dep. at 377-381) (collectively Ex. E). Barnow later amended his class list to exclude those erroneously listed men, but only after the EEOC consulted outside sources to determine the gender of the applicants. (Id.). The EEOC presents no evidence that Wal-Mart had or used such information at the time pre-screeners reviewed and rejected applications. The EEOC bears the burden of coming forward with evidence of its claim, but has no evidence, disputed or otherwise, that Wal-Mart had knowledge of
6 Because Barnow defined the class as all women who applied during the relevant time period except those who got job offers or took themselves out of consideration (Barnow 3/1/07 Rep. at 19), these percentages apply equally to the class itself. 7 The EEOC cannot even raise an inference of intentional discrimination against the vast majority of female applicants at the prescreening stage because its statistical expert did not control for variables or conduct a regression analysis to compare treatment of male and female applicants at the prescreening stage. (Barnow 3/1/07 Rep. at 19-20).
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protected class status when it rejected the applications of a significant majority of the class (71 %-82%). The EEOC thus cannot establish the required inference of intentional gender discrimination.
III. The EEOC Cannot Establish a Prima Facie Case of Gender Discrimination. A. The EEOC Bears the Burden of Establishing a Prima Facie Case.
In asserting a "pattern or practice" of discrimination, the EEOC bears the initial burden to establish a prima facie case by demonstrating that intentional and deliberate discrimination has been the employer's routine, regular, and standard procedure. Int'l Bhd. of Teamsters v. United States, 431 U.s. 324, 360 (1977); Cooper v. Fed. Reserve Bank of Richmond, 467 U.s. 867, 876 (1984); EEOC v. United Assoc. of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, 235 F.3d 244, 251 (6th Cir. 2000) (a plaintiff must establish that"discrimination was the company's standard operating procedure."). It is not enough that the EEOC establish proof of "isolated or sporadic" discrimination. Cooper, 467 U.s. at 875-876. The EEOC must establish that Wal-Mart "regularly and purposefully" treated female applicants less favorably, and that the unlawful discrimination was WalMart's "standard operating procedure - the regular rather than the unusual." Int'l Bhd. of
Teamsters, 431 U.s. at 334-336; Hunter v. Secretary of u.s. Army, 565 F. 3d 986, 994 (6th Cir.
2009) ("[T]he preponderance of the evidence must establish 'that some form of intentional discrimination against the class of which plaintiff was a member was the company's standard operating procedure."').
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Above all, the EEOC bears the heavy burden of proving that Wal-Mart intentionally engaged in a pattern or practice of discrimination. See, Int'l Bhd. of Teamsters, 431 U.s. at 335, n. 15.
The plaintiff in a pattern and practice case carries a much higher burden than in a disparate treatment case for an individual Claimant. The pattern and practice must be one based upon a specific intent to discriminate against an entire group. The greater intrinsic difficulty in establishing the existence and common reach of a subjectively based practice is obvious. Thus, there is a wide gap between an individual that demonstrates that he has been subjected to disparate treatment discrimination and the existence of a class of persons who have suffered the same injury as the individual. EEOC v. Jordan Graphics, Inc., 769 F. Supp. 1357, 1382 (W.D.N.C. 1991) (citing to Stastny v. Southern Bell Tel. & Tel. Co., 628 F. 2d 267, 274, n.10 (4th Cir. 1980) and General Telephone Co. v. Falcon, 457 U.s. 147, 157-158 (1982)); Seils v. Rochester City Sch. Dist., 192 F. Supp. 2d 100, 119 (W.D.N.Y. 2002) ("Given the need to prove such pervasive, systematic discrimination, the standard of proof for a pattern or practice claim is higher than for a generic disparate treatment case."). To meet its "much higher burden" of establishing a prima facie case here, the EEOC is required to present reliable and significant statistical evidence of disparities between male and female applicants who are otherwise similarly situated, buttressed by evidence of general policies and specific instances of discrimination, that is, anecdotal evidence to support the statistical proof. EEOC v. McDonnell Douglas Corp., 191 F.3d 948, 951-952 (8th Cir. 1999); Craik v. Minn. State Univ. Bd., 731 F.2d 465, 470 (8th Cir. 1984). Furthermore, the EEOC must eliminate the most common non-discriminatory explanations for any alleged
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disparity in order to survive summary judgment. See Hilbert v. Ohio Dep't of Re1w:bilitation and Corrections, 121 Fed. Appx. 104, 110 (6th Cir. 2005); EEOC v. United Assoc. ofJourneymen and Apprentices of the Plumbing and Pipefitting Industry, 9 F. Supp. 2d 836, 844 (N.D. Ohio 1998).
The EEOC bears a heavy burden to establish its prima facie case, and courts readily grant summary judgment when, as here, the plaintiff has not met that burden. See, e.g., EEOC v. McDonnell Douglas Corp., supra; EEOC v. American Airlines, Inc., 48 F.3d 164 (5th Cir. 1995); Morgan v. United Parcel Service of America, Inc., 380 F.3d 459 (8th Cir. 2004); EEOC v. Autozone, Inc., 2006 WL 2524093 (W.D. Tenn. 2006); EEOC v. Consolidated Services Systems, 777 F. Supp. 599 (N.D. Ill. 1991); EEOC v. CRST Van Expedited, Inc., 611 F. Supp. 2d 918 (N.D. Iowa 2009). Accord, EEOC v. Jordan Graphics, 769 F. Supp. 1357 (dismissing EEOC's claims following bench trial).
The EEOC can avoid summary judgment here only if the evidence considered in its entirety creates a reasonable inference that Wal-Mart engaged in a routine pattern or practice of discrimination against women in its hiring practices and the evidence eliminates non-discriminatory explanations. EEOC v. Sears, Roebuck & Co., 628 F. Supp. 1264, 1274 (N.D. Ill. 1986); McDonnell Douglas, 17 F. Supp. 2d at 1051; Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 354 (5th Cir. 2001) ("In order to overcome a motion for summary judgment on a Title VII discrimination claim, the plaintiff must first establish, by a preponderance of the evidence, a prima facie case of discrimination."). Here, the EEOC presents no evidence to allow such an inference of an intentional, deliberate standard practice of gender discrimination, much less a jury finding.
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B. The EEOC's Statistical Evidence Does Not Support a Prima Facie Case of Gender Discrimination.
The EEOC has built its entire case around the admittedly inaccurate and unreliable
analyses and opinions of its statistical expert Burt S. Bamow. Even if Barnow's analyses
were accurate, his opinions are far from sufficient to support the EEOC's prima facie case of
intentional discrimination.8 In addition to being reliable, "[f]or plaintiff to use statistical
evidence to create an inference of discrimination in his case, the evidence must therefore
eliminate nondiscriminatory explanations for the discharge, such as lower proficiency or
random chance." Latosky v. Morrison-Knudsen Corp., 103 F.3d 129, 1996 WL 708346, *2 (6th
Cir. 1996). See, e.g., Morgan v. United Parcel Services of America, Inc., 380 F.3d 459, 463-464
(8th Cir. 2004) (statistical evidence "must show a disparity of treatment, eliminate the most
common non-discriminatory explanations of the disparity, and thus permit the inference
that, absent other explanation, the disparity more likely than not resulted from illegal
discrimination."); United Assoc. of Journeymen and Apprentices of the Plumbing & Pipefitting
Indus., 9 F. Supp. 2d at 844, affirmed in part and remanded in part on other grounds, 235 F. 3d
244 (6th Cir. 2000). Further,
Statistical evidence must not be accepted uncritically. Courts must guard against the use of statistical data which may have been fashioned to obtain a desired result. In no case should there be a blind adherence to the position that mere statistical imbalance equals discrimination. It has been said, statistics are
8 Wal-Mart has filed a motion to exclude Bamow's testimony, in part, due to the unreliability of his opinions. (D. #360). Even if the Court denies Wal-Mart's motion, the unreliability and inaccuracies in Bamow's opinions render them insufficient to support a prima facie case of discrimination and the Court should grant Wal-Mart summary judgment. Conde v. Velsicol Chemical Corp., 24 F.3d 809, 813 (6th Cir. 1994) (relying on Daubert v. Merrell Daw Pharmaceuticals, Inc., even if expert opinion is admissible, if "'insufficient to allow a reasonable juror to conclude that the position more likely than not is true,' it may be basis for ... a grant of summary judgment.").
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like a lamp post to a drunk - they provide support but furnish very little illumination. Jordan Graphics, Inc., 769 F. Supp. at 1383 (internal citations omitted). Barnow's statistics do not illuminate any element of the EEOC's required prima facie case, but in fact shine a bright light on its insufficiency. As one court has noted, a defendant's "[t]hree basic avenues of attack" on the plaintiff's statistics are to challenge their source, their accuracy, or their probative force. Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 159 (2d Cir. 2001) (analyzing class certification). Barnow's opinions are deficient in not one area, but in all three: he admits that his relied upon applicant database is incorrect and incomplete; he admits that a key component of his analyses is wrong, rendering his conclusions inaccurate; and, he admits that his opinions lack predictive and probative force.
1. Barnow's Analyses Are Incorrect and Have No Probative Force.
The EEOC's case is built upon its statistical expert's analyses that, he claims, establish a "statistically significant" gap between Wal-Mart's job offers to men and to women. Barnow, however, admits that his analyses cannot and do not rule out the possibility of random chance or other non-discriminatory reason for the alleged disparity. Barnow also admits that his analyses are flawed because they are based on missing variables or incorrectly captured variables. Barnow's analyses do not illuminate, much less support, the EEOC's prima facie case.
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a. The EEOC's Statistical Analyses Do Not Eliminate Non-Discriminatory Explanations for Alleged Gender Disparity in Hiring at DC 6097.
To establish a prima facie case that withstands summary judgment, the EEOC must"eliminate the most common non-discriminatory explanations of the disparity" in treatment and establish that "the disparity more likely than not resulted from illegal discrimination." Morgan, 380 F.3d at 463-64 (emphasis added). Random chance is a non-discriminatory explanation for any gender disparity. See Latosky, 1996 WL 708346 at *2. Barnow admits that he cannot eliminate "randomness" as an explanation for his asserted offer rates and the resulting gender disparity calculation. (Barnow Dep. at 343345) (" .. .it could just be that there's a lot of randomness in terms of how Wal-Mart decided which people to hire."). While Barnow's admission is specific to his analyses for 1998 to 2001, it negates the reliability of his conclusions as a whole, from which the EEOC attempts to infer a seven-year standardized practice of purposeful discrimination. Because the EEOC cannot eliminate any, much less the most common, non-discriminatory explanations for the asserted disparity, it cannot establish its prima facie case as a matter of law. Moreover, because random chance is just that -- randomthe EEOC cannot meet its burden to establish pervasive intentional discrimination.
b. Barnow Admits That His Analyses Do Not Accurately Account for Applicants' Probability of Hire, Which Determines Offer Rate Disparity.
In addition to being unable to eliminate non-discriminatory reasons for an asserted offer disparity, Barnow admits that his analyses do not accurately show
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applicants' probability of hire and, thus, cannot generate an accurate and reliable statistical disparity in offer rates by gender -- the heart of the EEOCs prima facie case.
Barnow performed a regression model, a statistical analysis that attempts to combine the values of independent variables in order to determine the expected values for other variables, known as dependent variables. (Barnow 3/1/07 Rep. at 13). The validity and reliability of a regression model like Barnow's "depends upon a showing that it predicts the variations in the dependent variable to some substantial degree." McCleskey v. Zant, 580 F. Supp. 338, 351 (N.D. Ga. 1984) rev'd on other grounds, McCleskey v. Kemp, 753 F.2d 877 (11th Cir. 1985)). Barnow concedes that the "analyses of the probability of applications being offered a position at Wal-Mart are the key analyses for drawing inferences of whether or not there is a statistical disparity in the hiring of men and women after controlling for other relevant factors." (Barnow 3/1/07 Rep. at 3) (emphasis added).
Despite recognizing that predictive value is essential to determining whether there is a statistical disparity in hiring of men and women, Barnow admits that, for four of the seven relevant years he analyzed, 1998-2001, "one's estimated probability does a very poor job of predicting who will receive an offer." (Id. at 19) (See also Barnow Dep. at 340-341). Barnow gave three possible explanations for why his analysis is a poor predictor of whether an applicant would receive an offer:
Q. But the probabilities as you've measured them, according to your report, are not a good predictor of whether somebody actually gets hired; is that right?
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A. It's - there's - it's not - it's not a one-to-one. I mean, there could be better, yes...
Q. Or it could...also be that the variables that you are capturing are not being properly captured?
A. It's possible. I mean, I - there are a number of explanations as to what it could be. It could be missing variables, it could be that they're actually being used in different ways or it could just be that there's a lot of randomness in terms of how - how Wal-Mart decided which people to hire.
Q. So it could be missing variables, it could be wrong variables or it could be randomness.
A. Yes. Could be anything. (Barnow Dep. at 344-345) (emphasis added). If, as Barnow states, his erroneous probability of hire statistics are attributed to missing variables or erroneous coding, then his analyses are unreliable and cannot create an inference of intentional discrimination. If, instead, his poor predictive value is due to random chance in hiring decisions, then Barnow's analyses likewise cannot possibly raise an inference of intentional discrimination. Under either of Barnow's admitted scenarios, the EEOC's prima facie case fails in its entirety because his flawed conclusions cannot support the EEOC's claim of a seven-year, routine practice of deliberate discrimination.
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c. The EEOC's Statistical Analyses Do Not Show A Statistically Significant Disparity in Hiring.
Barnow further admits that his analyses did not generate any statistically significant difference in male/female offer rates for three of seven years. (Barnow 3/1/07 Report at 14; Barnow Dep. at 296-298). Recognizing that his analyses did not show any statistical disparity, Barnow instead aggregated the job offer rates for 2002, 2003, and 2004 and established statistical significance where there is none. (Barnow 3/1/07 Report at 14; Barnow Dep. at 296-298).
A. If you run the logit regression for each year separately, they're not statistically significant. If you run it for the combined period, as the report says, it is statistically significant.
Q. So if you lump them together, they're statistically significant; if you do them by individual year, they are not; is that right?
A. That's correct. (Barnow Dep. at 298). Barnow testified that, based on the lack of statistical significance for each of these three years, he even considered removing from the class list all female applicants from 2002 to 2004 but"decided that was the wrong strategy." (Barnow Dep. at 301-302).
Barnow offered no scientific or statistical explanation for his decision to aggregate the data from these years and in fact does not assert that the number of hires during that period was insufficient to analyze on a year-by-year basis. (Barnow Dep. at 299-300). Conversely, Barnow declined to aggregate time periods when considering the tail end of the relevant time period from January 1, 2005 to February 15, 2005, and instead stated that he "was unable to analyze Wal-Mart's
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hiring practices" because "there were too few observations." (Barnow 3/1/07 Rep. at 2 fn. 3). See Abram v. United Parcel Service of America, Inc., 200 F.R.D. 424, 431 (B.D. Wis. 2001) ("The plaintiffs' somewhat tendentious reliance on aggregate data illustrates the perils and misuses of statistical analysis... The numbers do not reveal a 'pattern or practice' of discrimination (intentional or otherwise) that unites the class.").
The EEOC's statistical evidence is doomed because, as Barnow admits, it does not demonstrate a statistically significant offer disparity or accurately predict probability of hire. Therefore, his analyses cannot generate a reliable and statistically significant offer rate disparity based on gender for the relevant time period. Further, it cannot eliminate non-discriminatory explanations for the purported gender disparity. The EEOC's prima facie case fails and Wal-Mart is entitled to summary judgment.
2. Barnow's Reports and Conclusions Are a Moving Target. The EEOC's statistical evidence also fails because Barnow's opinions are inherently unreliable, given that they have changed multiple times over the course of the litigation, up to and including his March 20,2009 alleged "rebuttal" report, which is subject to Wal-Mart's pending Motion to Strike.9 (D. #373). First, this constant updating, shifting and "correcting" eliminates any chance that Barnow's opinions could establish reliable and significant statistical proof to
9 Wal-Mart reserves the right to re-file its dispositive motion in the unlikely event Barnow's "Rebuttal" Report is not stricken.
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support the EEOCs prima facie case. Based on an EEOC-created database, Barnow concluded that there is a statistically significant disparity in the rates of making job offers to men and women for the periods of 1998-2001 and 2002-2004, with an asserted hiring shortfall of 236.1 women.10 (Barnow 3/1/07 Rep. at 4-5). Barnow also determined, again based on the EEOC-created database, the class membership criteria and identified 4,308 class members. (Barnow 3/1/07 Rep. at 18-19, Appx. E). Barnow's March 1, 2007 Report was not his first statistical analysis in this case, however. He filed his initial report on July 15, 2005. (Barnow Dep. at 125). Since his initial report, Barnow has changed, corrected, amended and supplemented his report 18 times. In his most recent report, dated March 20, 2009, Barnow acknowledges many fundamental flaws in his analyses (identified by Wal-Mart expert Professor James Freeman), purportedly corrects those errors, re-runs his analyses, re-defines the class membership rules, and issues a new class list. 11 (Barnow 3/20/09 Rebuttal Rep. at 3, 6-12, Ex. F). While the EEOC blindly adheres to its position that its statistics are reliable enough, Barnow's shifting analyses and conclusions are not sufficient to support the EEOC's prima facie case.
10 Even though Barnow did not have applications outside the relevant time period of April 18, 1998 to February 15, 2005, he nonetheless opines that there is a statistically significant offer gap from January 1, 1998 to April 17, 1998 and proffers a "rough estimate" of the hiring shortfall as 16.74 women. (Barnow 3/1/07 Rep. at 2,5). 11 As of his March 20, 2009 Report, Barnow's class now totals 4,101 women, with a hiring shortfall of 213.68. (Barnow 3/20/09 Rebuttal Rep. at 12).
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3. Both Barnow and the EEOC Have Admitted That the Database Upon Which Barnow Relied Is Inaccurate.
It is no wonder that Barnow's opinions are constantly changing, because its source -- the EEOC-created database he relied upon -- is inaccurate, as both he and the EEOC admit.12 Barnow's March 20, 2009 "rebuttal" report concedes many of the database errors identified by Professor Freeman and claims to have made belated efforts of "systemic quality control on the data base to improve its accuracy." (Barnow 3/20/09 Rebuttal Rep. at 3). Barnow also admits that his underlying data is incorrect because the database is replete with wrongly coded applicant variables like: Social Security numbers which serve as applicant identifiers, application dates, whether applications resulted in job offers, education level, educational history, felony convictions, previous Wal-Mart employment, prior terminations for cause, missing work history, employment gaps, age under 18, eligibility to work in the United States and excessive pay expectations. (Barnow 3/20/09 Rebuttal Rep. at 10-12). Barnow admits that he intended to capture and control for these key variables and that it was important to do so accurately. (Barnow Dep. at 173, 175-176). See, e.g., EEOC 'V. McDonnell Douglas, 191 F. 3d at 951-952 (EEOC must present statistical evidence of disparities between male and female applicants who are similarly situated, that is, controlled for variables other than gender). But, he concedes that his relied upon database is wrong in capturing all of these key variables. (Barnow 3/20/09 Rebuttal
12 It is undisputed that the EEOC created the initial applicant database without Barnow's input and made significant alterations to the subsequent databases on which he relies. The EEOC has not met its burden of establishing that its database is not biased. Nelson v. Tenn. Gas Pipeline Co., 243 F. 3d 244, 250-251 (6th Cir. 2001).
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Rep. at 3, 6-12). Barnow's regression analyses and conclusions are premised upon his ability to accurately and reliably collect and code these critical variables, which he admits he did not do.
In EEOC v. Autozone, Inc., the court granted summary judgment for the defendant on the EEOCs claims of a pattern or practice of race and gender discrimination based in part upon the court's rejection of Barnow's opinions due to nearly identical errors. 2006 WL 2524093 (W.D. Tenn. 2006). The court held that "the flaws in Barnow's promotion analyses do not merely raise questions of credibility, but of accuracy and relevance." ld. at *6 (emphasis added).
, [T]here may, of course, be some regressions so incomplete as to be inadmissible as irrelevant...' There may also be some regressions so flawed and methodologically unreliable as to be irrelevant. Given the flaws in Barnow's promotion regression analyses, the court cannot consider them relevant evidence of the EEOC claims. ld. (internal citations omitted) (emphasis added). Similarly, in this case Barnow admits that his underlying data and analyses are riddled with errors, which render them irrelevant.
4. Barnow's Conclusions Are Inaccurate Because They Ignore Key Variables that Mfect Offer Rates.
In addition to the numerous errors in Barnow's data, his analyses are incorrect because he ignored critical variables that he admits could affect applicant offer rates and demonstrate non-discriminatory reasons for hiring decisions. (Barnow Dep. at 126128, 263-264). First, while included in his initial July 2005 Report, Barnow later changed his mind and decided to ignore all information disclosed by job applicants during any
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of the three job interviews throughout the application process.l3 Thus, his 2007 analyses eliminate vast amounts of directly relevant applicant information reflected only on interview notes and attached resumes -- work history, current job responsibilities, prior experience in a physically demanding job, pay expectations, problems working in hot or cold, current employment -- even when that information formed the basis of the hiring decision. (ld. at 121-123, 263-264). He even ignored job qualification information that could establish Wal-Mart's non-discriminatory hiring decisions:
Q. If someone said, well, you know, on my last job, I worked in a warehouse and that's not reflected on the application, that person may not be [in the database]?
A. Wow. Yes, if they left it off [the application], then it wouldn't be.
(ld. at 264). By ignoring the entire interview process, Barnow also disregarded information that could eliminate applicants from the class, such as lack of interest in or problems working in hot or cold. (Barnow Dep. at 159-161). Barnow's failure to consider this critical information renders his comparison of "similarly situated" applicants flawed and his opinions on offer rates inaccurate; his analyses are thus not sufficient to raise an inference of intentional gender discrimination.
Moreover, despite Janice Smith's status as an applicant for transfer from another Wal-Mart facility rather than an "off the street" applicant for employment, Barnow conducted no separate analysis for transfer applicants and offers no opinions on
13 Barnow testified that he opted to ignore applicant information other than that contained on the onepage, two-sided job application so that he could focus on job offer status/ and in doing so, disregarded both variables he intended to capture and variables he elected not to consider. (Barnow Dep. at 128/ 159161/264) (ld. at126-128).
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whether there is a statistically significant difference in male-female offer rates for transfers, the only group of orderfiller applicants for whom this Court has subject matter jurisdiction. (See discussion pp. 9-12, infra); Barnow 3/1/07 Report).
Barnow's failure to account for all these critical variables that admittedly affect hiring decisions and job offer rates negates the EEOC's prima facie case. See EEOC v. Auto2one, 2006 WL 2524093 (granting partial summary judgment where Barnow's statistical analyses ignored variable and improperly expanded the analyzed group). Courts have rejected similar regression analyses because they do not account for "clearly major variables which have been omitted -- such as education and prior work experience." Kroger v. Reno, 98 F.3d 631, 637 (D.C. Cir. 1996). See also Sheehan v. Purolator, Inc., 839 F.2d 99, 103 (2d Cir. 1988) (affirming denial of class certification and granting of summary judgment in gender discrimination case where plaintiffs' statistical analyses did not account for critical non-discriminatory factors).
The EEOCs statistical proof is incomplete, does not show an accurate and reliable disparity in male-female offer rates, and does not eliminate non-discriminatory explanations for the disparity. Latosky, 103 F. 3d 129, at *2. It cannot support a prima facie case and this Motion for Summary Judgment should be granted.
C. EEOC's "Social Science" Evidence Does Not Support the EEOC's Prima Facie Case of Gender Discrimination.
Realizing the blatant infirmities of Barnow's analysis and its inability to create an inference of intentional discrimination, the EEOC retained, well after its deadline for identification of primary expert witnesses, William Bielby, a sociologist and frequent
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· plaintiffs' expert.14 Bielby's opinions are of no use in this case, however, because he
admits that he did not consider or eliminate alternative explanations before concluding
that alleged gender stereotyping by Wal-Mart managers was a "compelling"
explanation for Barnow's asserted statistical disparity.ls (Bielby Dep. at 109-110)
(collectively Ex. 6). Thus, his opinions cannot raise an inference that a hiring disparity
"more likely than not results from illegal discrimination." Morgan, 380 F.3d at 463-464.
Moreover, Bielby admits that he cannot state whether bias existed and whether
discrimination actually occurred at DC 6097.16 (Bielby Dep. at 126-127). In fact, his
testimony undermines the EEOC's premise that Wal-Mart engaged in intentional
discrimination.
First, Bielby's harshly criticized version of "social framework analysis" does not
support the EEOC's prima facie case because he admits that his analysis cannot
determine that gender discrimination existed at DC 6097 or that it affected even one
hiring decision, much less that it did so on a routine, regular, and standard basis.
(Bielby Dep. at 107-108, 127-128). Bielby further admits that he did not eliminate non-
14 The Court agreed that the EEOC's identification of Bielby was nearly two years late, but allowed his belated identification because at that time, no pre-trial deadlines had been set. (8/14/07 Comprehensive Discovery Order and Status Report at 3 D. #163 (liThe EEOC's efforts to construe prior orders as making the disclosure timely [two years later] are not convincing."». 15 Bielby admits that he relied upon and based this conclusion not on Barnow's purported offer rate disparity but on raw numerical data not controlled for any applicant variables, despite Barnow's admission that such raw data did not form the basis for his regression analysis or conclusions. (Bielby Dep. at 118-119). 16 Bielby's opinions are misleading, unscientific, unreliable, and inadmissible. (See, Wal-Mart's Motion to Exclude The Proposed Testimony of EEOC Expert William T. Bielby, D. #345). But, even if not excluded, his opinions cannot support a prima facie case. Conde v. Velsicol Chemical Corp., 24 F.3d 809, 813 (6th Cir. 1994) (relying on Daubert v. Merrell Daw Pharmaceuticals, Inc., even if expert opinion is admissible if '''insufficient to allow a reasonable juror to conclude that the position more likely than not is true,' it may be basis for ... a grant of summary judgment.").
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discriminatory explanations for any difference in male-female offer rates because he did not examine the application rates of males and females, the applicant pool, or the turnover rate, despite admitting that each of these factors is critical to analyzing gender composition of a job. (Bielby Dep. at 115-116).
Bielby's own admissions about the value and limitations of his opinions demonstrate their inability to meet the EEOC's burden. In addition to ignoring possible non-discriminatory explanations, Bielby also admits he cannot determine whether gender stereotypes actually existed at DC 6097, what those stereotypes may be, and if or when those stereotypes operated to exclude women. (Bielby Dep. at 106-108, 202-203, 215-216). Bielby concedes that he:
• Cannot determine which Wal-Mart employment decisions, if any, were based on gender stereotyping;
• Cannot determine which Wal-Mart decision-makers, if any, hold specific gender stereotypes;
• Cannot determine which Wal-Mart decision-markers, if any, "activated" or used any gender stereotypes they may have held during the hiring process;
• Cannot determine which Wal-Mart decision-makers, if any, made a hiring decision on the basis of a gender stereotype; and,
• Cannot determine which applicants, male or female, were hired or not hired because of gender stereotyping.
(Bielby Dep. at 79-80, 106-108, 126-128, 203, 215-216). Bielby further testified that he cannot state whether any Wal-Mart hiring decision was gender-biased and that people cannot tell when they themselves have been influenced by stereotypes. (ld. at 126,216).
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Bielby's unfounded speculation is insufficient to establish that Wal-Mart engaged in a
deliberate, consistent practice of gender discrimination.
Examining similar proof, the court in Sperling v. Hoffmann-La Roche, Inc., granted
summary judgment for the employer. 924 F. Supp. 1346 (D.N.J. 1996). In that age
discrimination case, the court rejected plaintiffs' proffered theory that "vague,
undefined and subjective criteria" for a reduction in force had created"fertile ground"
for age bias and that" [i]t would be reasonable for a jury to infer that, if a manager has a
great deal of discretion in determining which employees are to fired, then that manager
had the opportunity to exercise his discretion in a discriminatory fashion." 924 F. Supp.
at 1380. The court specifically found that, "this alone does not constitute a pattern or
practice of intentional discrimination." Id. at 1381. Rather,
Plaintiffs must demonstrate that the managers making the termination decisions routinely took age into account when deciding who would be fired in [the reduction of force], not that the managers had discretion to do so. In other words, plaintiffs must demonstrate that the managers making the decisions systematically used their discretion to purposefully treat employees over forty years of age less favorably, and, in addition, must demonstrate that such disparate treatment was regular enough, routine enough, or pervasive enough to justify the conclusion that it is more probable than not that [employer] discriminated against any employee fired in [the reduction in force] who was over forty years old. Therefore, without additional evidence, the decentralized, uncontrolled decisionmaking process used in [the reduction in force] is insufficient to support a finding that [the employer] engaged in a pattern or practice of discrimination.
Id. at 1381 (emphasis in original). See also Westlake Vinyls, Inc. v. Goodrich Corp., 518 F.
Supp. 2d 918, 934 (W.D. Ky. 2007) ("Mere speculation will not suffice to defeat a motion
for summary judgment.").
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The EEOC's proof here utterly fails because Bielby expressly admits that he cannot opine that Wal-Mart decision-makers "systematically" and "purposefully" discriminated against women. See Sperling, 924 F. Supp. at 1384 (plaintiffs' industrialjorganizational psychologist's opinions were of "limited" value because he could not '"pass definitive judgment' on the possibility that the statistical disparity in terminations between older and younger workers...was the result of intentional discrimination."). As the Sperling court held, the EEOC must demonstrate that WalMart actually and deliberately discriminated, not just that it may have had the opportunity to do so. Bielby admits that he cannot offer opinions on the former, and opines only on the latter. With no other evidence to offer on this element, the EEOC's prima facie case fails.
Not only is Bielby unable to fill the void in the EEOC's prima facie case, he in fact undermines its attempt to raise an inference of intentional discrimination. According to Bielby's opinions, the purported gender stereotypes, if they exist, were unconscious and unintentionaL (Bielby Dep. at 212, 216; Bielby 3/1/07 Rep. at 11-14, Ex. H). He admits that if Wal-Mart managers had engaged in discrimination, they would likely be unaware that they had done so. (Bielby Dep. at 215-216). He expressly declines to opine that Wal-Mart hiring managers intentionally or consciously discriminated against female applicants. (Bielby Dep. at 106-108, 126-127, 203, 215-216). As Bielby admitted, "[e]veryone can be influenced by unconscious biases." (Bielby Dep. at 212). Yet he has no explanation for how or why Wal-Mart hired 60 female applicants as orderfillers during the relevant time period if such unconscious stereotypes existed and were relied
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on by DC 6097 decision-makers. (Bielby Dep. at 203; Barnow 4/30/09 Supp. Rep., Ex. B6 at 21, 23, Ex. I).
The only reasonable inference from Bielby's opinions -- that any gender bias was not deliberate and intentional -- directly rebuts the EEOCs burden to create an inference that Wal-Mart engaged in an intentional, deliberate, routine practice of gender discrimination. Silvera v. Orange County Sch. Bd., 244 F. 3d 1253, 1262 (11th Cir. 2001) ("Discrimination is about actual knowledge, and real intent, not constructive knowledge and assumed intent."); Jackson v, Harvard Univ., 721 F. Supp. 1397, 1432 (D.Mass. 1989) (Title VII disparate treatment cases are "concerned with intentional discrimination, not subconscious attitudes.").
In an effort to avoid this dispositive evidentiary gap, the EEOC seems to assert that Wal-Mart engaged in a pattern or practice of intentional gender discrimination because it "encourage[ed] [gender] stereotyping by its failure to employ measures to minimize such stereotyping" at DC 6097. (EEOC's Response to Motion to Exclude EEOC Expert William T. Bielby at 5 fn. 5, D. #361). This assertion is no different than the arguments specifically rejected in Sperling, Silvera, and Jackson, supra. There is no more evidence that Wal-Mart had a conscious, deliberate intent to "encourage" gender stereotyping than there is evidence that any of its decision-makers harbored such stereotypes in the first place.
The EEOC can present no evidence Wal-Mart knew: that decision-makers had gender stereotypes in their minds; that decision-makers applied these unspecified stereotypes in making hiring decisions; that decision-makers did not hire female
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applicants because of these stereotypes; or that Wal-Mart deliberately chose to establish or not to establish hiring policies, processes, and practices so as to allow gender discrimination to occur. The missing links in its proof are fatal to the EEOC's assertion that Wal-Mart somehow "knew" that, if a decentralized decisionmaking process was used, then DC 6097 decisionmakers would intentionally use that discretion to reject female job applicants. See, e.g., Sperling, 924 F. Supp. at 1381 ("[W]ithout additional evidence, the decentralized, uncontrolled decisionmaking process used [for reduction in force] is insufficient to support a finding that [employer] engaged in a pattern or practice of discrimination."); Vitug v. Multistate Tax Comm'n, 88 F. 3d 506, 514 (7th Cir. 1996) ("It is not enough for a plaintiff to demonstrate that an employment practice could theoretically be used to discriminate - Title VII does not forbid subjective selection processes."); Ste. Marie v. Eastern R.R. Assoc., 650 F. 2d 395, 405 (2d Cir. 1981) ("But when, as here, relevant statistics are lacking...subjective decision-making methods are not sufficient to establish a pattern or practice of discrimination... "); McDonnell Douglas, 17 F. Supp. 2d at 1054-1055 ("A decision by a company to give managers the discretion to make employment decisions, and the subsequent exercise of that discretion by some managers in a discriminatory manner, is not tantamount to a systemic, company-wide policy of intentional discrimination."); Abram v. United Parcel Service ofAmerica, Inc., 200 F.R.D. 424, 430 (B.D. Wis. 2001) (" ...the Court will concede, for the sake of argument, that some managers allow racial bias to affect their performance evaluations. Such discrimination, if it occurs, is one step removed from UPS's decision to allow consideration of subjective factors is not, in and ofitself, a discriminatory practice... ") (emphasis in original).
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The EEOC had the opportunity to depose not only DC 6097 managers and hiring decisionmakers, but also corporate representatives who establish hiring practices, policies and procedures. The EEOC failed to elicit evidence that Wal-Mart knew of the existence of or any reliance upon stereotypes, gender or otherwise, at DC 6097. It has no proof that Wal-Mart intentionally allowed, encouraged, or facilitated any alleged stereotypes. Bielby cannot connect these dots for the EEOC and the EEOC has no proof to imply, much less prove, that DC 6097 decision-makers or Wal-Mart engaged in a routine practice of intentional gender discrimination in hiring. The EEOC's failure requires summary judgment for Wal-Mart.
D. The EEOC's Weak and Unreliable Anecdotal Evidence Is Insufficient to Establish a Prima Facie Case.
In addition to Barnow's erroneous statistical analyses and Bielby's opinions rebutting any inference of intent, the EEOC relies on inadmissible, conclusory, speculative and stray anecdotal evidence. This evidence is also inadequate to meet the EEOC's"much higher burden." Jordan Graphics, 769 F. Supp. at 1382. Courts consistently hold that, to avoid summary judgment, the plaintiff must come forward with substantial anecdotal evidence of discrimination, particularly when its statistical proof is weak, unreliable or insignificant. See EEOC v. Sears, Roebuck & Co., 839 F.2d 302, 311-312 (7th Cir. 1988). Further, "anecdotal evidence may suffice to prove individual claims of discrimination, [but] rarely, if ever, can such evidence show a systemic pattern of discrimination." Coral Const. Co. v. King County, 941 F.2d 910, 919 (9th Cir. 1991); Middleton v. City of Flint, Mich., 92 F.3d 396, 405 (6th Cir. 1996); EEOC v. Autozone, 2006 WL 2524093, *7 (W.D. Tenn. 2006).
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Here, the EEOC fails to produce admissible anecdotal evidence proving that Wal-Mart
discriminated against women in hiring. And, even if it had, such proof is not sufficient to
establish "a systemic pattern of discrimination" required to withstand summary
judgment. Id.
The Court required the EEOC to identify its Phase 1 liability witnesses and its class
members who have"direct knowledge of gender animus." Ganuary 9, 2007 Court Order
Regarding Pending Discovery Issues, D. #126). In response, the EEOC identified only 37
class members out of 4,012, less than 1 % of the class, who allegedly have "direct
knowledge of gender animus."17 And, the majority of those 37 women admit that the
extent of their "knowledge" is strictly speculation, conjecture, and! or hearsay -- evidence
that is largely inadmissible and insufficient to support the EEOC's prima facie case that
Wal-Mart engaged in an ongoing, standard procedure of intentional discrimination. Knox
v. Neaton Auto Products Manuf, Inc., 375 F.3d 451, 457 (6th Cir. 2004). Such inadmissible
evidence includes testimony that:
• an unknown employee of Manpower, a temporary employment agency not affiliated with Wal-Mart, said, "they [DC 6097] don't hire women out there" (Rhonda Huber Dep. at 58-60);
• conversations "around town" suggested "that if you're a woman, you're better off applying for the cashier's position at the Wal-Mart SuperCenter..." (Maria Malicoat Howe Dep. at 67);
• "my husband had told me, cause he worked there for a while [as an hourly employee] that when I had put in the application that I probably wouldn't get that job because he had never seen a woman do it" (Teresa Mills Dep. at 83-84);
• a female orderfiller named Melanie (LNU) "in casual conversation ... was telling me how hard it was and how hard they were making it on her" (Brenda Overbey Dep. at 69); and,
17 As of Barnow's 4/30/09 Supplemental Report, Barnow's identified class is 4,012. (Barnow 4/30/09 Supplemental Rep., See Ex. B12).
37

Case 6:01-cv-00339-KKC Document 409 Filed 07/15/2009 Page 40 of 45
• "I was also informed by my ex-husband [who did not work at DC 6097 but "knew" unidentified people who did] that they don't hire women there." (Kimberly Vires Roark Dep. at 35, 47).
n. (collectively Ex.
A party cannot rely upon inadmissible hearsay to overcome a properly supported motion for summary judgment. Knox, 375 F.3d at 457; Tinsley v. Gen. Motors Corp., 227 F.3d 700, 703 (6th Cir. 2000). Furthermore, mere speculation is insufficient to overcome summary judgment. Westlake Vinyls, 518 F. Supp. 2d at 934.
Aside from conclusory, inadmissible testimony, the EEOC presents only a handful of its "direct knowledge" witnesses who have testimony of alleged gender-related comments, although vigorously disputed, by the more than 130 interviewers involved in the hiring process. (See, e.g., Constantine Carnes Bargo Dep. at 108, unnamed male interviewer"stated something that we women needed to leave those jobs alone for men that had families to take care of"; Louise Hubbard Dep. at 23, unidentified "men workers there in the break room said that...women just could not handle the heavy work"; Kimberly Bebout Dep. at 17, unnamed male interviewer "said that they typically hired young men between the ages of 18 and 25, and he ended the interview"; Shannon Bowling Dep. at 49, unknown lady on the phone said Ulwe don't really hire women here except for office positions"'; Laura Ludeman Campbell Dep. at 12-13, unknown interviewer said "they usually didn't hire on the floor, that you had to lift 80 pounds over your head, and they didn't have office jobs available"; Dorothy L. Harshman Dep. at 107, male interviewer "kept insinuating that I would use the girl card. 'Well, there's going to be some heavy lifting. Are you sure you are going to be able to do that?''').
38

Case 6:01-cv-00339-KKC Document 409 Filed 07/15/2009 Page 41 of 45
Courts routinely find such random and isolated anecdotal evidence insufficient to avoid summary judgment, given the EEOCs heavy burden to demonstrate that decision-makers "routinely took [gender] into account when deciding" who to hire. Sperling, 924 F. Supp. at 1381. "Evidence of mere isolated or accidental or sporadic discriminatory acts will not suffice to show a pattern or practice of discrimination." Maddox v. Claytor, 764 F.2d 1539, 1557 (affirming summary judgment where anecdotal evidence was"sparse," with"much of that... unpersuasive and conclusory"); McDonnell Douglas, 191 F. 3d at 952 ("As for the EEOC's anecdotal evidence, it demonstrates, at most, isolated discriminatory acts on the part of certain managers, rather than [defendant's] 'standard operating procedure."'); Metrocare v. Washington Metro. Area Transit Auth., 679 F. 2d 922, 929-930 (D.C. Cir. 1982) (dismissing class action race discrimination case because anecdotal evidence from six employees was insufficient to establish a prima facie case for entire class of 400); Jordan Graphics, Inc., 769 F. Supp. at 1383 (dismissing EEOC's claims based on unreliable statistical proof, court"seriously doubts" that isolated anecdotal evidence would be sufficient to establish that defendant's standard operating procedure was intentional discrimination). It is undisputed that over 130 managers and hourly coaches were involved in the DC 6097 hiring process as interviewers throughout the relevant time period. (See Defendant's Supplemental Answers To Plaintiff's Second Set of Interrogatories, No. I, dated 6/22/06; Defendant's Answers to Plaintiff EEOC's Tenth Set of Interrogatories, No.2, dated 3/23/09, collectively Ex. K). Thus, even if taken as true, evidence of sporadic, isolated alleged discrimination is insufficient to meet the EEOCs burden of
39

Case 6:01-cv-00339-KKC Document 409 Filed 07/15/2009 Page 42 of 45
..
demonstrating that Wal-Mart's routine, systematic and standard operating hiring procedure was intentional discrimination against women. Accordingly, the Court should grant summary judgment.
CONCLUSION The EEOC has pursued this case unchecked for nearly eight years and has no more basis now than when it began for its claims that Wal-Mart engaged in a routine and standardized practice of purposeful gender discrimination in hiring at DC 6097. Its impermissible expansion of this litigation beyond the scope of its investigation deprives the Court of subject matter jurisdiction over all claims but those related to alleged gender discrimination against female Wal-Mart transfer applicants for the job of orderfiller. Even if the bulk of the EEOC's claims were properly before this Court, the EEOC cannot establish a genuine issue of material fact regarding the most basic elements of its prima facie case. First, it has no evidence that Wal-Mart knew of the protected class status of between 71 and 82 percent of female applicants when they were rejected for employment at the prescreening stage. Similarly, the EEOC cannot prop up its prima facie case of intentional gender discrimination with its statistics, which are inaccurate, insignificant and inconclusive; its "social science" evidence, which in fact refutes any inference of deliberate discrimination; or its anecdotal evidence, which is at best inadmissible, unreliable, and random. Because there are no genuine issues of material fact in dispute, Wal-Mart is entitled to judgment as a matter of law and Wal-Mart's Motion for Summary Judgment should be granted.
40

Case 6:01-cv-00339-KKC Document 409 Filed 07/15/2009 Page 43 of 45
•
Respectfully submitted,
WOODWARD, HOBSON & FULTON, LLP

athryn A. Qu senberry Erin M. Roark Michael J. Henry 2500 National City Tower 101 South Fifth Street Louisville, Kentucky 40202 (502) 581-8000 Counsel for Defendant, Wal-Mart Stores, Inc.

CERTIFICATE OF SERVICE

It is hereby certified that a true and correct copy of the foregoing was served, via the method indicated below, to the following, on this the 15th day of July, 2009:

Nancy Dean Edmonds Equal Employment Opportunity Commission Indianapolis District Office 101 West Ohio Street, Suite 1900 Indianapolis, Indiana 46204 Counsel for Plaintiff (Service via Fax and First Class u.S. Mail)

Aimee L. McFerren

Equal Employment Opportunity Commission

600 Dr. Martin Luther King, Jr. Place, Suite 268

Louisville, Kentucky 40202

Counsel for Plaintiff

(Service via Fax)

!d~~-
Counsel for efendant

41

Case 6:01-cv-00339-KKC Document 409 Filed 07/15/2009 Page 44 of 45

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION LONDON

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
PLAINTIFF v. WAL-MART STORES, INC.
DEFENDANT

) ) ) ) ) ) CASE NO. 01-339 ) ) ) )

---------------,)

ORDER

This matter having come before the Court on the Motion of Defendant Wal-Mart

Stores, Inc. to grant Wal-Mart summary judgment on the claims asserted by Plaintiff

Equal Employment Opportunity Commission ("EEOC") in its Complaint, the Court

having heard the arguments of counsel and being otherwise sufficiently advised;

IT IS HEREBY ORDERED that Wal-Mart's Motion for Summary Judgment is

GRANTED. There is no genuine dispute of material fact that the EEOC does not

present sufficient evidence to establish a prima facie case that Wal-Mart engaged in a

pattern or practice of intentional gender discrimination in hiring at its Distribution

Center No. 6097. Accordingly, Wal-Mart is entitled to judgment as a matter of law and

the EEOC's claims are hereby DISMISSED WITH PREJUDICE. This is a final and

appealable Order, there being no just cause for delay.

JUDGE, UNITED STATES DISTRICT COURT

Case 6:01-cv-00339-KKC Document 409 Filed 07/15/2009 Page 45 of 45 TENDERED BY: WOODWARD, HOBSON & FULTON, L.L.P.
t) .:);:.'~) ~,----
Erin M. Roark 2500 National City Tower 101 South Fifth Street Louisville, Kentucky 40202 (502) 581-8000 Counsel for Defendant, Wal-Mart Stores, Inc.
2

 
 Case 6:01-cv-00339-KKC Document 444 Filed 11/16/2009 Page 1 of 53

't.£~'t\}OO

t. R... ~t.~~ ~5\1R\\)C1' ~ f \)

IN THE UNITED STATES DISTRICT COURT

1 t.\~\~,~~OR THE EASTERN DISTRICT OF KENTUCKY

/11/~ ~R

SOUTHERN DIVISION

£: ~ G 'tJ\,\\1~COI.lR\ O~\ \.t.S\..\t. '\)\Si:t~\et

LONDON

~'Q{jAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

CIVIL ACTION NO.

Plaintiff,

)

Ol-339-KKC

)

v.

)

)

WAL-MART STORES, INC.

)

)

)

Defendant.

)

)

BRIEF IN OPPOSITION TO WAL-MART'S MOTION FOR SUMMARY JUDGMENT

Case 6:01-cv-00339-KKC Document 444 Filed 11/16/2009 Page 2 of 53

TABLE OF CONTENTS

I.

INTRODUCTION

1

II. SUMMARY JUDGMENT STANDARD

2

III. STATEMENT OF MATERIAL FACTS RAISING GENUINE ISSUES

4

A. Administrative Charge and Investigation.

4

B. The EEOC's Lawsuit.

5

C. Employment at DC 6097.

5

D. Statistical Evidence of Gender Discrimination at DC 6097.

8

E. Subjective Decision Making and Stereotyping at DC 6097.

12

1. Prior to 2002, Wal-Mart used an extremely subjective interviewing and

13

hiring process and provided little guidance to its interviewers on selection

decisions.

2. Prior to 2002, interviewers decisions were highly subjective and often

14

employed gender stereotypes.

3. In or about 2002, Wal-Mart improved its interview and training process

16

but did not correct all deficiencies.

F. Anecdotal Evidence of Gender Animus in Wal-Mart's Male Dominated

17

Workplace.

1. Wal-Mart's hesitancy to hire female applicants was both well known and

17

clearly articulated.

2. Wal-Mart supervisors/managers confirmed Wal-Mart 's preference for

18

male applicants.

3. Wal-Mart's exclusion ofwomen who would distract its male workforce

20

and its culture ofsexual harassment and disrespect toward women at

DC 6097.

4. Wal-Mart managers summarily dismissed and ridiculed many female

24

applicants and asked inappropriate and irrelevant personal questions.

5. Interviewers wrote untrue and/or unsubstantiated comments on female

27

applicant packets to preclude them from employment at DC 6097.

Case 6:01-cv-00339-KKC Document 444 Filed 11/16/2009 Page 3 of 53

6. Wal-Mart managers placed well qualifiedfemale applicants on

31

"hold" while hiring numerous, often less qualified, male applicants.

7. Despite passing their interviews, female applicants were excluded

39

from employment.

IV. ARGUMENT

40

A.

Key Legal Tenets/Summary of Argument.

40

B.

The EEOC's statistical evidence, even on its own, creates a reasonable

inference that Wal-Mart engaged in a pattern and practice of hiring

discrimination.

1. Wal-Mart'sfirst incorrect assertion: random chance cannot be

43

ruled out as causing the gender disparity.

2. Wal-Mart's second incorrect assertion: missing variables account

45

for the gender based disparity and/or make the analysis unusable.

3. Wal-Mart incorrect assertion no. 3: errors in his database render Dr.

47

Barnow's analysis unusable.

4. Wal-Mart 's fourth incorrect assertion: the aggregation ofdata makes

49

Dr. Barnow's analysis unusable.

5. Wal-Mart 's fifth incorrect assertion: the inability to predict with

52

certainty exactly which applicants will be hired makes the analysis

unusable.

6. Wal-Mart's sixth incorrect assertion: because Dr. Barnow made

53

corrections and revisions to his report, his analyses should be

disregarded.

A. The EEOC's evidence of gender stereotyping at DC 6097 bolsters its

54

statistical evidence and precludes summary judgment.

B. The EEOC's Abundant Anecdotal Evidence Creates Genuine Issues of

59

Material Fact that Preclude Summary Judgment.

C. Wal-Mart's Ignorance of Gender Argument Fails.

64

D. The Scope of the EEOC's Suit is Proper.

66

1. The EEOC's lawsuit properly encompasses all hires, not

66

11

Case 6:01-cv-00339-KKC Document 444 Filed 11/16/2009 Page 4 of 53

just transfers.
2. The EEOC's Suit properly includes all entry level positions at DC 6097.
3. The temporal scope ofthe EEOC's suit is proper.
v. CONCLUSION.

68
71 73

111

Case 6:01-cv-00339-KKC Document 444 Filed 11/16/2009 Page 5 of 53
Table of Exhibits

Exhibit Number
I
2 3
4
5 6 7 8 9 10 II
12 13 14 15 16 17 18 19
20
21
22
23
24
25
26
27
28 29
30 31 32
33
34
35
36 37 38 39 40 41
42
43

Description
Akers Deposition Excerpts Asher Deposition Excerpts Baker Deposition Excerpts C. Bargo Deposition Excerpts D. Bargo Deposition Excerpts P. Bargo Deposition Excerpts Barnow Deposition Excerpts Kathy Barrett Deposition Excerpts Bebout Deposition Excerpts Belt Deposition Excerpts Beshears Deposition Excerpts V. Biondo Deposition Excerpts Botkins Deposition Excerpts H.(Vedois) Bowling Deposition Excerpts Shannon Bowling Deposition Excerpts Branum Deposition Excerpts Brewer Deposition Excerpts Brinson Deposition Excerpts Brumley Deposition Excerpts Ellenburg Deposition Excerpts Burke Deposition Excerpts J. Burton Deposition Excerpts Shawn Campbell Deposition Excerpts R. Carr Deposition Excerpts Cobb Deposition Excerpts Collins Deposition Excerpts Cox Deposition Excerpts Delph Deposition Excerpts Dragoo Deposition Excerpts Earls Deposition Excerpts Elliott Deposition Excerpts Forbes Deposition Excerpts M. Giles I Deposition Excerpts M. Giles II Deposition Excerpts Ginter Deposition Excerpts Glover Deposition Excerpts Gulock Deposition Excerpts Hammons Deposition Excerpts Hampton Deposition Excerpts Harris Deposition Excerpts Harshman Deposition Excerpts Higgins Deposition Excerpts Holland Deposition Excerpts

IV

Case 6:01-cv-00339-KKC Document 444 Filed 11/16/2009 Page 6 of 53
Table of Exhibits

44

Hubbard Deposition Excerpts

45

Huber Deposition Excerpts

46

Jones Deposition Excerpts

47

Karr Deposition Excerpts

48

M. Lawson Deposition Excerpts

49

Sue Lawson Deposition Excerpts

50

Leabo Deposition Excerpts

51

Long Deposition Excerpts

52

Laura Ludeman Deposition Excerpts

53

Malicoat-Howe Deposition Excerpts

54

Marcum Deposition Excerpts

55

Martin Deposition Excerpts

56

Messer Deposition Excerpts

57

O. Miller Deposition Excerpts

58

Mills Deposition Excerpts

59

Mink Deposition Excerpts

60

Moore Deposition Excerpts

61

Morris Deposition Excerpts

62

Moses Deposition Excerpts

63

Murray Deposition Excerpts

64

Napier Deposition Excerpts

65

Nobles Deposition Excerpts

66

Overbey Deposition Excerpts

67

Parker Deposition Excerpts

68

Parmon Deposition Excerpts

69

Angela Powell Deposition Excerpts

70

Karen Powell Deposition Excerpts

71

D. Quarrels Deposition Excerpts

72

Ramsey Deposition Excerpts

73

Reeves Deposition Excerpts

74

Reynolds Deposition Excerpts

75

Riley Deposition Excerpts

76

Roark Deposition Excerpts

77

Root Deposition Excerpts

78

Rose Deposition Excerpts

79

Sally Deposition Excerpts

80

Shoemaker Deposition Excerpts

81

Sibert Deposition Excerpts

82

B. Sizemore Deposition Excerpts

83

Jane Smith Deposition Excerpts

84

Janice Smith Deposition Excerpts

85

Sarah Boyce Deposition Excerpts

86

Sabrina Smith Deposition Excerpts

87

Stephanie Smith Deposition Excerpts

88

Yolanda Smith Deposition Excerpts

89

Smith-Hall Deposition Excerpts

v

Case 6:01-cv-00339-KKC Document 444 Filed 11/16/2009 Page 7 of 53
Table of Exhibits

90

Strunk. Deposition Excerpts

91

Stutler Deposition Excerpts

92

Tankersley Deposition Excerpts

93

Van Jura Deposition Excerpts

94

Vaughn Deposition Excerpts

95

Walden-Johnson Deposition Excerpts

96

Archer Application Packet

97

Application Packet Carolyn Crook, Beverly Bowdler, Laura

Scearce and Rosella Bowling

98

H. (Verlois) Bowling Application Packet

99

Boyce Application Packet

100 Brock Application Packet

101 Carr Application Packet

102 Harrison Application Packet

103 Higgins Application Packet

104 Howard Application Packet

105 Jenkins Application Packet

106 Martin Application Packet

107 Northern-Clark Application Packet

108 Angela Powell Application Packet

109 Radford Application Packet

110 Sallee Application Packet

111 Janice Smith Application Packet

112 Terrell Application Packet

113 Thome Application Packet

114 Walden-Johnson Application Packet

115 Donna Bargo Interview Comment Sheet

.116 Penny Bargo Interview Comment Sheet

117 Burton Interview Comment Sheet

118 Cox Interview Comment Sheet

119 Quarrels Interview Comment Sheet

120 Barnow April 30, 2009 Supplemental Report Page and Exhibit

Excerpts

121 Barnow March 20,2009 Rebuttal Report Excerpts

122 Barnow March 2007 Expert Report Excerpts

123 Bielby Rebuttal Report Pages and Exhibits Excerpts

124 Bielby Report Pages and Exhibit Excerpts

125 Combs Expert Report Excerpts

126 Freeman Expert Report Excerpts

127 Dr. Burt Barnow Resume

128 Conciliation Agreement and Related Application Files

129 Correspondence From Wal-Mart Declining Conciliation

December 18,2000

130 Declaration of Kathy Kimball Pence!
131 Defendant's Response to EEOC's i h Request for Production

132 EEOC Determination

V!
1 The EEOC anticipates receiving Ms. Pence's executed declaration shortly and will substitute her preliminary declaration by appropriate motion upon receipt

Case 6:01-cv-00339-KKC Document 444 Filed 11/16/2009 Page 8 of 53
Table of Exhibits
133 Examples of DC 6097 Job Advertisements 134 Female Non-Order filler Offers 135 Janice Smith Charge of Discrimination 136 Janice Smith Investigative File Statement 137 Lindsay Williams Declaration 138 New Hires Log Excerpts 139 Notice of Charge of Discrimination 140 Wa1-Mart EEO-1 Reports
Vll

Case 6:01-cv-00339-KKC Document 444 Filed 11/16/2009 Page 9 of 53

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION LONDON

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

WAL-MART STORES, INC.

)

)

)

Defendant.

)

)

CIVIL ACTION NO. Ol-339-KKC

BRIEF IN OPPOSITION TO WAL-MART'S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION. The Equal Employment Opportunity Commission ("EEOC") opposes Wal-Mart Stores,
lnc.'s ("Wal-Mart") Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56 because there are genuine issues of material fact best left to a jury to resolve. The evidence in this discriminatory hiring case unequivocally shows that since at least January 1998, Wal-Mart has perpetrated a pattern or practice of sex discrimination against female job applicants at its Distribution Center 6097 in London, Kentucky in violation of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000e et seq.
In its ill-fated quest for summary judgment, Wal-Mart ignores volumes of critical evidence, mischaracterizes the evidence it did cite, and relies on improper evidence. l Wal-Mart further misconstrues applicable law, and turns the summary judgment standard on its head. The

1 The EEOC has moved contemporaneously with this opposition brief to exclude Wal-Mart's designation of improper evidence in support of its summary judgment motion.

Case 6:01-cv-00339-KKC Document 444 Filed 11/16/2009 Page 10 of 53
Court should decline Wal-Mart's invitation to accept largely disputed facts and improperly draw inferences in Wal-Mart's favor rather than the non-movant EEOC's favor.
The EEOC demonstrates three categories of disputed fact that bar summary judgment. First, the EEOC presents overwhelming statistical evidence showing a gender-based disparity in hiring. Second, the EEOC enhances its statistical evidence with compelling evidence of gender stereotyping and entirely subjective hiring processes used by Wal-Mart's interviewers. Third, the EEOC offers abundant anecdotal evidence demonstrating discriminatory hiring practices in the form of official admissions and testimony from female applicants and former employees. This evidence is more than sufficient prima facie evidence of a pattern or practice of disparate treatment discrimination. Both the applicable law and the evidence in this matter demonstrate that there are genuine issues of material fact for trial that preclude summary judgment in WalMart's favor as a matter of law, and the EEOC respectfully requests that the Court deny WalMart's motion. II. SUMMARY JUDGMENT STANDARD.
Summary judgment is only appropriate when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter oflaw." Cox v. Kentucky DOT, 53 F.3d 146 (6th Cir. 1995) (citing Fed. R. Civ. P. 56(c)). It is incumbent upon the moving party "to show 'clearly and convincingly' the absence of any genuine issue of material fact." Sims v. Memphis Processors, Inc., 926 F.2d 524, 526 (6th Cir. 1991) (quoting Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir. 1986)). Summary judgment is not appropriate when such probative evidence "presents a sufficient disagreement to require submission to ajury." Nichols v. All Points Transport Corp. of Michigan, Inc., 364 F.
2

Case 6:01-cv-00339-KKC Document 444 Filed 11/16/2009 Page 11 of 53
Supp. 2d 621,624 (E.D. Mich. 2005) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)).
At this initial juncture of a Title VII pattern-or-practice case,2 a court must "focus solely on whether there is sufficient evidence demonstrating that defendants had in place a pattern or practice of discrimination during the relevant time period." See Thiessen v. GE Capital Corp., 267 F.3d 1095, 1106-1109 (lOth Cir. 2001) (quoting Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 360 (l977)). In other words, plaintiffs "must establish through a common method of proof that the employer is liable to the class for the pattern or practice of discrimination. This is usually done with a combination of statistical evidence regarding the defendant's treatment of the class as a whole and anecdotal testimony from individual class members regarding specific acts of discrimination." Taylor v. D.C. Water & Sewer Auth., 205 F.R.D. 43,46 (DD.C. 2002) (citing Teamsters, 431 U.S. at 336). Irrespective of the underlying substantive claims, the Court must view the evidence in a light most favorable to the nonmovant, EEOC, as well as, draw all reasonable inference in the EEOC's favor. See Bender v. Southland Corp., 749 F.2d 1205, 121011 (6th Cir. 1984); Cloke v. West Clermont Local School Dist. Bd. of Educ., 409 F. Supp. 2d 927,932 (S.D. Ohio 2006) ("the district court may not weigh evidence or assess the credibility of witnesses in deciding the motion."); and E.E.O.C. v. Burlington Medical Supplies, Inc. 536 F.
Supp. 2d 647,653 *1 (E.D. Va. 2008) (court applied "well-established" summary judgment
principles to deny summary judgment motion in Title VII pattern or practice claim).
2 Title VII pattern or practice analysis involves two phases: the initial phase, in which the court will focus its attention on whether unlawful discrimination "has been a regular procedure or policy followed by an employer or group of employers"; and a second phase during which the court determines appropriate individual remedies. Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 360-61 (l977); See also Thiessen v. GE Capital Corp., 267 FJd 1095, 1106 (lOth Cir. 2001).
3

Case 6:01-cv-00339-KKC Document 444 Filed 11/16/2009 Page 12 of 53
III. STATEMENT OF MATERIAL FACTS RAISING GENUINE ISSUES. A. Administrative Charge and Investigation. On or about October 8, 1998, Janice Smith sought a transfer from Wa1-Mart's London
Kentucky Store to an order filler position at Wa1-Mart's London Kentucky Distribution Center 6097 ("DC 6097"). (Janice Smith Application Packet attached as Exhibit 111.) Wa1-Mart denied her request. (Id.) Frustrated by Wa1-Mart's third denial and having witnessed the transfers of numerous less or equally qualified male co-workers (Smith Investigative File Statement attached as Exhibit 136), Smith filed a charge of discrimination with the EEOC on March 8, 1999, alleging that Wal-Mart had discriminated against her based upon sex by denying her transfer to DC 6097. (Smith Charge attached as Exhibit 135.) She alleged that: (1) the interviewer was disinterested and tried to discourage her; (2) she was falsely told that all "dry side" positions had been filled; and (3) no females work in the freezer department. (Id.; See also, Janice Smith Dep. at 209.)3 The EEOC provided notice of the charge to Wal-Mart on January 29,1999, advising that Smith "contends she was not selected because of her sex, female, in violation of Title VII of the Civil Rights Act of 1964." (Notice of Charge attached as Exhibit 139.)
The EEOC conducted an investigation of Smith's allegations, obtained information on a class of hires and applicants, and concluded that Smith and a class of women had been denied employment as order fillers at DC 6097 because of their gender. (Determination attached as Exhibit 132.) Evidence gathered during the investigation revealed that despite Smith indicating a willingness to work in the freezer (See Smith Application Packet, Ex. 111, cover letter), her WalMart interviewer wrote on her application "not completely confident that the job could be done
3 All cited deposition excerpts are designated in alphabetical order as Exhibits 1-95.
4

Case 6:01-cv-00339-KKC Document 444 Filed 11/16/2009 Page 13 of 53
for a 6 month period." (Ex. 111, third interview comment sheet.)4 Evidence also revealed that other female outside applicants who applied for employment at Wal-Mart were rejected in favor of male applicants. (Ex. 132.) The EEOC then attempted conciliation on behalf of Smith and five other identified outside applicant class members, Tina McKinley, Linda McMillion, Theresa Mills, Brenda McKinney, and Melanie Sexton who had sought "any position," a "material handler position," or a "distribution" position. (See Conciliation Agreement and application files collectively attached as Exhibit 128.) Wal-Mart, however, summarily rejected the opportunity to engage in the conciliation process. (Wal-Mart's December 18,2000 correspondence is attached as Exhibit 129.)
B. The EEOC's Lawsuit. After Wal-Mart declined to engage in conciliation, the EEOC filed suit on August 24, 2001, alleging that Wal-Mart engaged in disparate treatment based on sex and had failed to hire female applicants for vacant positions since at least January 1, 1998. (DE # 1.) Wal-Mart sought to limit the temporal scope ofthe EEOC's suit to discrimination occurring prior to February 15, 2005. (DE # 119.) The Magistrate Judge recommended such a limitation and denied discovery post February 15,2005. The EEOC's Objection to this Recommendation is still pending. (See DE # 129 and 131.) Contrary to Wal-Mart's suggestion (Defendant's "D.'s" Memo at n. 2), however, no such limitation has been placed on the January 1, 1998, commencement date nor has the EEOC ever agreed to such a limitation. (See DE # 131 at n.1 and discussion in Section IV(F) below.) C. Employment at DC 6097. Throughout the relevant time period, Wal-Mart regularly advertised for and interviewed applicants for entry level warehouse positions at DC 6097. (See Reeves Dep. at 150-156, Glover
4 Smith vehemently denies such a conversation. (See Ex. 135 and J. Smith Dep. at 286-87.)
5

Case 6:01-cv-00339-KKC Document 444 Filed 11/16/2009 Page 14 of 53
Dep. at 64-65; Sibert Dep. at 26, B. Sizemore Dep. at 15-16, T. Stutler Dep. at 24; S. Smith Dep. at 29; C. Bargo Dep. at 80-83; M. Asher Dep. at 46,50; R. Carr Dep. at 19-21; J. Burton Dep. at 9, 14.) Both managers and non-managerial employees interviewed applicants for entry level positions. (Biondo Dep. at 101-02; Elliott Dep. at 17; Reynolds Dep. at 14-16; Karr Dep. at 34; M. Lawson Dep. at 28,36-37; Reeves Dep. at 14-15, Sibert Dep. at 26-27.) Wal-Mart interviewers used a three interview process, and an applicant could be excluded at any stage. (Gulock Dep. at 52-56; Reeves Dep. at 14-15; and Rose Dep. at 29, 40,53.) Wal-Mart revised its interview process in 2002, following the EEOC's lawsuit, but continued to use a three interview process. (Gulock Dep. at 87-89.) When Wal-Mart interviewers conducted interviews, they usually did not know what position they were interviewing for (Beshears Dep. at 23-24; Burke Dep. at 30; Earls Dep. at 57-58; Lawson Dep. at 42; Sibert Dep. at 27; B. Sizemore Dep. at 16) and all applicants/transfers5 were interviewed using the same interview forms (B. Sizemore Dep. at 16; Beshears Dep. at 24; Lawson Dep. at 43.) Regardless of the position applied for, applicants were interviewed for warehouse work, most commonly the order filler position.6 (See Application Packets of Carolyn Crook, Beverly Bowdler, Laura Scearce and Rosella Bowling, collectively attached as Exhibit 97.)
There are essentially no minimum requirements for positions at DC 6097 (Glover Dep. at 78-79, Gulock Dep. at 65-69) and no strength or physical abilities tests are administered to applicants (Gulock Dep. at 70-71, B. Sizemore Dep. at 22, Earls Dep. at 53-54). The order filler position "is not one that requires a lot of certain types of skills. It's an entry level ...." position.
5 The "Third Interview" form was used for transfer applicants. See Janice Smith Application Packet, Ex. Ill. See also, Rose Dep. at 218. 6 Human Resources Manager and former General Manager, Mike Giles, testified that 98% of the positions he filled from 1998 through 2001 were for the order filler positions. (Giles Dep. I at 33-37,68.) Mr. Giles was deposed twice, first on December 12,2006 and later on April 15,2009. For ease of reference, Mr. Giles first deposition will be cited as "Dep. I" and his later deposition as "Dep. II."
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(Glover Dep. at 78.) In fact, dependability is one ofthe key applicant characteristics considered for the position. (Id. at 78-80.) According to one previous area manager, Vincent Biondo, during the interview process, a former bank teller stood on equal footing with a former roofer. (Biondo Dep. at 72-73.) Wal-Mart looked for "happy people" with a "high energy level." (Id. at 85-87.) New hires are extensively trained following hire, including training and certification in power equipment, ifnecessary. (Brewer Dep. at 43 and Brumley Dep. at 43-44. See also, Root Dep. at 34-35.)
Wal-Mart has never performed ajob analysis on the order filler position other than the admittedly untimely limited analysis prepared by its expert, George Barrett in 2007 for litigation purposes. 7 DC 6097 order fillers work in different areas, with the weight of the product varying considerably, by area. (Elliott Dep. at 48-52.) No minimum size or weight is necessary to perform the order filler position. (Giles Dep. I at 18, Beshears Dep. at 52-53, M. Lawson Dep. at 23-24.) Christina Shoemaker who is 5'5" and average framed currently order fills at DC 6097 and she testified that the average weight of items lifted by order fillers on the "dry" side was 20 pounds other than an occasional case of pickles or juice. (Shoemaker Dep. at 16, 25-26.) She indicated that the weight lifted by order fillers in other areas was similar. (Id. at 24.) Teresa Root, a current Wal-Mart manager who is 5'4" and small to medium framed and who, assisted in the dry order filling area as needed, testified that it did not take a particularly strong person to do the job and she thought that anybody could do the job. (Root Dep. at 32, 34.) Kathy Kimball Pence, a former order filler, weighed 92 pounds and was 5'2" but was nevertheless capable of performing the order filler position. (Pence Decl. Exhibit 135 at,-r 1.) Order fillers assigned to the freezer area are given protective gear to wear, including bib, coat, gloves and face mask. (Shoemaker Dep. at 33-34.) Order fillers (and other warehouse employees) work either first,
7 See Exh ibit 131, (D.' s Response to 7th RFP) at 6-7.
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second or third shift weekdays or weekends. (Giles Dep. I at 108, 151-153.) Some employees
work eight hour shifts five days a week and some choose to work longer shifts fewer days a
week. (Giles Dep. I at 151-153.) See also examples of DC 6097 advertisements collectively
attached as Ex. 133.
D. Statistical Evidence of Gender Discrimination at DC 6097.
During litigation, the EEOC retained renowned labor economist Dr. Burt Barnow. Dr.
Barnow has a Ph.D. in economics and has taught,8 researched,9 consulted lo and testifiedll in the
area of labor economics for more than thirty five years.
Dr. Barnow determined that from at least 1998 through at least 2004,12 there was a
statistically significant disparity in hiring by gender at DC 6097, after controlling for relevant
variables via a regression analysis. 13 (Barnow 4/30/09 Supp. Report at 1 and Barnow 3/20/09
8 Dr. Barnow is presently employed by Johns Hopkins University with ajoint appointment to both its Institute for Policy Studies and its Department of Economics. He has been the Associate Director for Research since May 2000 and was Interim Associate Director for Research from 1998-2000. He teaches courses in program evaluation and labor economics. He has also taught graduate and undergraduate courses in labor economics at the University of Pittsburg. (Barnow Resume at 1-2, attached as Exhibit 127.) 9 Dr. Barnow has written more than 70 articles/papers with additional papers forthcoming. (Id. at 16-23.) 10 Dr. Barnow was a consultant to the United States Department of Labor for nearly nine years and also consulted for the government of Australia. (Id. at 2.) For eight years, he served as a Vice President for the Lewin Consulting Group and was responsible for directing the research program in the fields of labor economics, evaluations of employment, training and social service programs, and education. (rd. at 1.) 11 Since September 1,1984, Bamow has been retained as an expert witness in more than 130 cases. (ld. at 24-25.) 12 Dr. Barnow analyzed the 1998-2001 and 2002-2004 periods separately. (Barnow Dep. at 288-293.) He aggregated the data this way for three reasons: (1) the EEOC's lawsuit was filed in late 2001; (2) Wal-Mart changed its application process in or about 2002; and (3) the male/female differential in hiring changed beginning 2002. Id. He grouped the data in order to analyze like periods together. (Id. at 294-95.) He noted that breaking down data into one year periods has less statistical power and it would not be appropriate in this case to disaggregate the data in this manner and that his decision was supported by his past experience as well as authority in the field. ( Id. at 299301,303, Barnow March 2007 Report at 4 and n.4.) Cited pages of the Barnow March 2007 Report ("Bamow Report") are attached as Exhibit 122. 13 Variables controlled for included previous Wal-Mart employment, employment gap, fired from previous job, transfer applicant, work permit, position applied for, education level, felony convictions, theft/fraud convictions, peak, full or temporary employment, shift availability, pay expectations, relative at Wal-Mart, missing work history, month and year of application, whether received interview(s), previous applications and previous work experience. (See Barnow Supp. Report Supp. Ex. Bl, cited pages and exhibits attached as Exhibit 120.) Bamow structured his analysis based upon manager deposition testimony. (Barnow Dep. at 16-17.) All variables were discerned from the application itself. (See D. 's Memo at 28 in which Wal-Mart incorrectly suggests that Barnow did not capture work history, job responsibilities and pay expectation.)
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Rebuttal Report at 12.14) Barnow did an application to offer analysis using the written
information provided by each applicant to Wal-Mart. 15 Due in substantial part to Wal-Mart's
late and incomplete submission of applicant and hires related materials,16 Dr. Barnow retracted
his July 2005 Report and submitted a March 2007 Report, a March 20, 2009 Rebuttal Report and
an April 30, 2009 Supplemental Report, each incorporating late produced applicant materials and
all concluding that there was a statistically significant disparity in hiring. Shortfall and class
membership were determined based upon the regression analyses. (Barnow Report at 17-19,
Barnow Rebuttal Report at 12 and Barnow Supplemental Report at 1.)
Dr. Barnow's analysis database was created from raw applicant materials 17 provided by
Wal-Mart. 18 (Barnow Report at 7.) Dr. Barnow used both motor vehicle bureau and census
name information to confirm the gender of applicants, performing additional work for the small
14 Cited pages of the Barnow March 20,2009, Rebuttal Report are attached as Exhibit 121. 15 Each applicant, regardless of the stage advanced to during the hiring process, had an application designed by WalMart which they filled out. Presumably, Wal-Mart included those criteria which it considered important for warehouse associates. (Barnow Dep. at 288.) Interview notes were not used by Dr. Barnow since all applicants did not have interview notes. (Barnow Dep. at 127-128.) Moreover, many were illegible and the documentation varied by interviewer. Furthermore, as discussed in Section IV(B) below, the notations placed by the interviewers on the applicant packets were in many cases incorrect and did not reflect the answers actually provided by the applicants or their true status. (See g., J. Smith Dep. at 286-87; Delph Dep. at 32; Y. Smith Dep. at 23.) 16 See DE # 399, at 3-4. 17 In response to the EEOC's February 8, 2002, request for applicant and hire records at DC 6097, Wal-Mart provided the EEOC, from 2002 through 2009, with hundreds of thousands of pages of handwritten and sometimes illegible and incomplete applicant materials, which did not contain applicant gender information. 18 Decisions concerning the construction of an applicant database from the voluminous, poor quality materials provided by Wal-Mart "were guided by practical considerations and [Barnow's] years of experience serving as a labor economist/statistician in similar cases and projects." (Barnow March 20, 2009, Rebuttal Report at 4.) Barnow indicated, "rather than paying me, a Ph.D. economist, to perform basic data entry functions, I concurred with the EEOC's decision that a contractor should be hired that specialized in data entry. The firm needed to be capable of performing ajob of this size, have experience with large data entry jobs and be able to do the work at a competitive rate at a reasonable cost to the taxpayers." (ld. at 4-5.) The company selected, CompuPacific double key entered all data due to its poor quality. (ld. at 5.) After coding, the data, due to its voluminous nature, had to be placed into a data management system by Dr. Ibrahim Imam, a Ph.D. in mathematics and faculty member of the computer engineering and computer science department at the University of Louisville. (lQ.lThe Lewin Group, with whom Dr. Barnow was well acquainted and had worked with regularly in the past, then assisted Dr. Barnow by performing quality control work on the data and at Dr. Barnow's direction, constructing variables and converting the data to a format suitable for Dr. Barnow's use. (ld. and Barnow Report at 7-10,13.) The Lewin Group also double key entered late produced applicant packets and "black book document information produced during 2006. (Barnow Dep. at 173-174.) The EEOC assisted both Dr. Barnow and the Lewin Group as requested, to locate gender, social security number, and miscellaneous other factual information to resolve ambiguous and/or incomplete data. (Barnow Report at 7-10 and Barnow Rebuttal Report at 5-6.)
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number of applicants with conflicting gender information. (Bamow Report at 8, Bamow
Rebuttal Report at n. 7, Bamow Dep. at 169-171.) The bulk of the applicant names, however,
were common names highly associated with one particular gender. 19 Dr. Bamow computed a shortfall in hiring females for the 1998 through 2004 time period of 229.46.20 (Bamow
Supplemental Report at 1 and Supp. Ex. B6.) More than 4000 female applicants were
potentially affected by Wal-Mart's discriminatory hiring policies. A graphical depiction ofthe
hiring at DC 6097 by year and gender reveals the gaping gender based hiring disparity. (Bamow
Supp. Report at Supp. Ex. B3.) Women fared worse at every stage of the screening process. (ld.
at Supp. Ex. B8.) Descriptive statistics over the seven year period show as follows:
The 1998 offer rate for male applicants was 10.73% but for females only .49%21. Id. at
Supp. Ex. B2 Out of 333 new hires during 1998, only 5 were female. 22 (ld.) For 1999, the
offer rate for males was 7.15% but only 1.46% for females. (ld.) Out of 311 new hires during
1999, only 19 were female. (ld.) For 2000, the offer rate for males was 8.48% but only .33%
19 For example, Barnow's class list includes 79 class members with the first name of Angela, 69 class members with the first name of Melissa, 66 class members with the first name of Tammy, 63 class members with the first name of Mary, 61 class members with the first name of Jennifer, 60 class members with the first name of Donna, 57 class members with the first name of Lisa, 54 class members with the first name of Patricia, 51 class members with the first name of Brenda, 45 class members with the first name of Kathy, 44 class members with the first name of Teresa, 44 class members with the first name of Kimberly, 43 class members with the first name of Rebecca, 41 class members with the first name of Rhonda, 39 class members with the first name of Pamela, 39 class members with the first name of Crystal, 35 class members with the first name of Tina, 35 class members with the first name of Deborah, 35 class members with the first name of Amy, 33 class members with the first name of Sherry, 33 class members with the first name of Karen, 32 class members with the first name of Sharon, 32 class members with the first name of Barbara, 32 class members with the first name of Amanda, 31 class members with the first name of Michelle, 31 class members with the first name of Betty, 30 class members with the first name of Judy, 28 class members with the first name of Connie, 25 class members with the first name of Elizabeth, 25 class members with the first name of Bonnie. Other popular names include Carolyn, Tonya, Jessica, Debra, Sandra, Nancy, Misty, Sheila, Heather, Wanda, Susan, Shirley, Cynthia, Robin, Debbie, April, Peggy, Joyce, Christina, Paula, Melinda, Martha, Laura, Stephanie, Julie, Carol, Margaret, Janet, Christy, Vicki, Theresa, Samantha, Lori, Ruth, Regina, Penny, Helen, Cheryl, Beverly, Sarah and Loretta. (See Lindsay Williams Dec1. ~~ 6-8, attached as Exhibit 137.) 20 Barnow approximated shortfall for the period of January 1, 1998, through April 17, 1998 due to Wal-Mart's failure to provide applicant data for this period. Dr. Barnow was also unable to perform an analysis after 2004 due to Wal-Mart's failure to provide full data for 2005 or beyond and the Magistrate Judge's recommended determination limiting the temporal scope of this suit. (See Barnow Report at n. 2, 3, 5 and 14.) 21 Calculations were based upon incomplete 1998 materials produced by Wa1-Mart. 22 See n.!.
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for females. (Id.) Out of 294 new hires during 2000, only 3 were female. (Id.) For 2001, the offer rate for males was 7.18% but only .84% for females. (Id.) Out of 248 new hires during c 2001, only 5 were female. (Id.) For 2002, the offer rate for males was 2.57% but only .53% for females. (Id.) Out of 64 new hires during 2002, only 2 were female. (Id.) For 2003, the offer rate for males was 3.97% but only 2.78% for females. (ld.) Out of76 new hires during 2003, only 7 were female. (Id.) For 2004, the offer rate for males was 8.02% but only 6.43% for females. Id. Out of 186 new hires during 2004, only 22 were female. (ld.)
In response to Wal-Mart expert Mr. Freeman's Report, which asserted a small number of data errors and speculated about many more, Dr. Bamow reviewed each ofMr. Freeman's claims, making changes as necessary, to ensure that his database was as accurate as possible for his March 20,2009 Rebuttal Report. (Bamow Rebuttal Report at 3, 6-12.) Many of the errors/claimed errors were due to problems with the applicant documentation collected and maintained by Wal-Mart. (Id. at 7-8 and n. 21,22,24,25,26,30.) After making data corrections, Dr. Bamow reran the same analyses and still found a statistically significant disparity in hiring, by gender, at DC 6097 for the 1998 through 2004 time period. (Bamow Rebuttal Report at 12.) Dr. Bamow also verified his statistically significant results with three other Wal-Mart created databases: (1) a database of approximately 400 individuals prepared by Wal-Mart expert Mr. Freeman; (2) a database of more than 22,000 records prepared by the Woodward Hobson law firm; and (3) a database of approximately 4000 records also prepared by the Woodward Hobson law firm. (Bamow Rebuttal Report at 12-14.) In fact, the testing performed on Woodward Hobson's database of more than 22,000 records showed a tremendous disparity in the hiring of males vs. females, with the probability of obtaining such a disparity by chance alone at 1.736 x 10-67 , more than ten times less likely than being struck by lightning. (Id.
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at 13 and n. 35.) Wal-Mart's 1998 through 2001 EEO-1 Reports also illustrate the gender based disparity.23
In addition to finding a statistically significant disparity in hiring by gender, Dr. Bamow found that hiring was correlated with some,24 but not all of the variables he controlled for. (See Bamow Supp. Report Supp. Exs. B4 and B5.) Dr. Bamow was not surprised by this result since his result was in accord with Wal-Mart manager testimony discussed in Section E below, conceming the high degree of discretion and the lack of strongly enforced rules in hiring. (Bamow 3/20109 Rebuttal Report at 2 and Bamow Dep. at 256-57.)
E. Subjective Decision Making and Stereotyping at DC 6097. The EEOC retained William T. Bielby, Ph.D. ("Dr. Bielby"), a highly respected sociologist and researcher with decades of expertise, to analyze whether findings from social science research could offer an explanation for the gender-based hiring disparity for entry-level positions at Wal-Mart's London, Kentucky Distribution Center No. 6097 ("DC 6097") during the relevant time period. (Bielby Report at 1.) 25 Dr. Bielby has a Ph.D. in sociology and has taught, researched and published peer-reviewed articles on gender stereotyping since the early 1980's. (Bielby Report, Exhibit B.) After an extensive review of Wal-Mart manager deposition testimony, information produced in discovery and a wealth of scholarly publications (Bielby Report at 3-4, 7 and Ex. C),
23 EEO-l Reports bate stamp numbered WMDP 000089-000092 are attached as Exhibit 140. 24 For example, during the 1998-2001 time period" there was a statistically significant correlation (either positive or negative) between being a transfer, having an employment gap, being fired from a previous job, having less than a high school education, having college, availability evenings, availability Sunday, having a relative at Wal-Mart and previous months of work history. (Barnow 4/30/09 Supp. Report, Supp. Ex. B4.) During the 2002-2004 time period, there was a statistically significant correlation (either positive or negative) between previous Wal-Mart employment, employment gap, fired from a previous job, transfer, having less than a high school education, having college, availability Sunday, having a relative at Wal-Mart, missing work history and previous occupational group. (Barnow 4/30/09 Supp. Report, Supp. Ex. B5.) 25 Cited Bielby Report excerpts are attached as Exhibit 124, and cited Bielby Rebuttal Report excerpts are attached as Exhibit 123.
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Dr. Bielby opined that Wal-Mart's highly discretionary selection system with minimal oversight coupled with an overwhelmingly male workforce and the physical nature of warehouse jobs invites gender stereotyping and bias against female applicants. (Bielby Report at 17-27.) He also opined that Wal-Mart's EEO policies and practices and manager training were insufficient to minimize stereotyping and gender bias. (Id. at 27-32.) Dr. Bielby concluded that gender stereotyping offered a cogent explanation for the disparity in hiring between males and females at DC 6097 and that changes beginning in 2002, including changes in the hiring process and the filing of the EEOC's sex discrimination lawsuit resulted in a noticeable, but not complete, diminution in the gender-based hiring disparity. (Id. at 32-35 and Rebuttal Report at 30-36.)
1. Prior to 2002, Wal-Mart used an extremely subjective interviewing and hiring process and provided little guidance to its interviewers on selection decisions.
Prior to 2002, Wal-Mart managers and supervisors who conducted interviews for entry level positions received effectively no training on how to conduct an interview and objectively assess information solicited from applicants they interviewed. (Elliott Dep. at 18-19; Baker Dep. at 51-52; Burke Dep. at 27; Cobb Dep. at 19-20; Parmon Dep. at 31-32.) A majority of managers cite the only training they received was shadowing another manager a few times before conducting interviews themselves. (Beshears Dep. at 21; Dragoo Dep. at p. 23-24; Elliott Dep. at p. 18-19; Giles Dep. I at 149; Jones Dep. at 104-05; Mink Dep. at 8-9; Reynolds Dep. at 1617; Van Jura Dep. at 13.) But, even so, Wal-Mart failed to train its managers to even record the reasons why a manager would not pass an applicant along during the interview process or why the candidate was rejected for hire. (Reynolds Dep. at 41-42.)
Wal-Mart did not provide its managers and supervisors with any guidelines for interviewing or exercising their discretion when making decisions to advance or reject applicants they interviewed. (Baker Dep. at 70-71; Beshears Dep. at 30; Burke Dep. at 26-27; Earls Dep. at
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51-52, 170-71; Elliott Dep. at 21; Dragoo Dep. at 39; Glover Dep. at 29; Gulock Dep. at 33-34, 191; Jones Dep. at 105; Karr Dep. at 51, 64-65, 82-86; M. Lawson Dep. at 40-41,79; Miller Dep. at 33-38; Mink Dep. at 34; Parmon Dep. at 25-29; Reeves Dep. at 37-38; Sibert Dep. at 24; Reynolds Dep. at 42; Riley Dep. at 20.) For instance, Vincent Biondo, Wal-Mart's general manager from approximately 1995-2000, explained that prior job "stability" was an important criteria that should be evaluated with each applicant but admitted that there was no measure or "blue print" he could give his managers to guide them in assessing "stability." (Biondo Dep. at 7,98-100.) Wal-Mart neither reviewed interview sheets, evaluated interviewer skills or conduct during or after interviews, nor did it in any other way monitor or oversee the interview process during or after interviews were completed. (Beshears Dep. at 23; Biondo Dep. at 56-57, 84, 8891; Burke Dep. at 29-30; Dragoo Dep. at 19-20,22; Elliott Dep. at 26-27; Giles Dep. I at 81; Glover Dep. at 13-17,29,50; Hampton Dep. at p. 33; Karr Dep. at 51,56-57; Mink Dep. at 11, 13; Parker Dep. at 29-30; Parmon Dep. at 21; Reeves Dep. at 217-18; Reynolds Dep. at 46; Riley Dep. at 19-20; Sibert Dep. at 45; B. Sizemore Dep. at 31,38-39; and Van Jura Dep. at 18.)
2. Prior to 2002, interviewers decisions were highly subjective and often employed gender stereotypes.
With no meaningful training, oversight or evaluation, Wal-Mart interviewers relied on their own subjective discretion when determining which applicants would continue through the interview process and which ones would be rejected. Interviewers assessed applicants by "good attitude" (Baker Dep. at 59; Biondo Dep. at 85; Burke Dep. at 49-50; Van Jura Dep. at 18); "gaps in employment" (Earls Dep. at 147); whether they were "happy people" (Biondo Dep. at 85-86) motivated, self-driven, enthusiastic or eager (Dragoo Dep. at 36-37; Karr Dep. at 66, Riley Dep. at 21); or "the way ...they looked at you and talked to you and acted" (Beshears Dep. at 31.) Some managers used their subjective interpretations of nonverbal body language to assess
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interviewees. (Biondo Dep. at 86; Earls Dep. at 167-69; Giles Dep. I at 150-51; Reynolds Dep. at 26.) Another manager explained that making decisions about applicants during interviews, "it was a personal thing." (Cobb Dep. at 21-22.) Yet another indicated that he "just sort of eyeballed it ...." (Holland Dep. at 120-21), and one agreed that he used his "own method" to determine when to pass an applicant along. (Parmon Dep. at 31.) Reeves succinctly concluded, "it's a subjective decision ...." (Reeves Dep. at 37. See also, Biondo Dep. at 86; Cobb Dep. at 25-26; Earls Dep. at 170; Giles Dep. I at 140; Glover Dep. at 30-31; Karr Dep. at 69.) But, there was no information or answer to any interview question that would automatically exclude an applicant. (Karr Dep. at 62-67; Miller Dep. at 103-05; Reynolds Dep. at 102; Parmon Dep. at 26-32.) Moreover, in some instances, managers permitted some applicants the opportunity to fill in incomplete information during the interview process. (Karr Dep. at 36; Reeves Dep. at 53.) In other instances, Brian Elliott would also look at an applicant's "physical characteristics" meaning whether they worked on the farm or played a lot of sports. (Elliott Dep. at 56. See also B. Sizemore Dep. at 37-38). Yet, Wal-Mart failed to use any sort oftest to assess a candidate's strength or physical abilities. (Giles Dep. I at 39; Karr Dep. at 66; Parmon Dep. at 10; B. Sizemore Dep. at 22; S. Campbell Dep. at 42; C. Tankersley Dep. at 57.)
Subjective decision making allowed gender stereotypes to permeate the Wal-Mart interviewers' selection decisions during the interview process. Managers conducting interviews just assumed that women did not want the job (Baker Dep. at 73; Biondo Dep. at 31-32) or could not "cut it" to do the job (Elliott Dep. at 19; Van Jura Dep. at 21). And, young strong-looking men were the preferred ideal candidate. (Cobb Dep. at 26-27; Elliott Dep. at 22; Riley Dep. at 24-25; B. Sizemore Dep. at 37-38,50-51; Van Jura Dep. at 22.) Jeff Akers, DC 6097's general manager told Tom Van Jura, an Operations Manager from January 2001 to February 2002, not to
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hire female order-fillers. (Van Jura Dep. at 19-21,26-29.) In fact, Akers told him that "a lady is not going to be a good order filler" and yet another operations manager stated to Van Jura that they were looking for "young males who are fresh out of high school ...." (Van Jura Dep. at 7, 9,20,21,27-29.) As a result, Van Jura did not recommend any female candidates to be hired as an order filler during his tenure interviewing candidates. (Van Jura Dep. at 20-21.)
Other managers allowed stereotypes to infect their decision making in more subtle ways including: giving preference to males who indicated involvement in sports (Parker Dep. at 44-45) or perceived the ideal candidate as eight feet tall with ten-foot-long arms (Beshears Dep. at 94; See also, Reynolds Dep. at 38). This subjective gender-stereotype driven interview process yielded a warehouse that was dominated by men. (Karr Dep. at 26-27; Reynolds Dep. at 70-72.)
3. In or about 2002, Wal-Mart improved its interview and training process but did not correct all deficiencies.
In 2002, Wal-Mart instituted a new "behavioral" model of interviewing applicants. (Elliott Dep. at 24; Giles Dep. II at 11-12.) The behavioral format of interviewing was designed to allow a more open ended questioning, which generated greater dialogue between interviewee and interviewer. (Karr Dep. at 44,82-83; Parmon Dep. at 43.) This new behavioral model resulted in more successful interviewing of female candidates and more hiring of females into entry level positions in DC 6097. (Giles Dep. I at 69, 70, 73.) It remained open to, nevertheless, the subjective impressions of the interviewers. (Karr Dep. at 84-85.) In fact, WalMart still did not give interviewers any guidance concerning how to rate answers to questions given during behavioral interviewing (Parmon Dep. at 38-40), managers also did not know what kind of a score was necessary for an applicant to be successfully passed on or hired (Parmon Dep. at 41-42) and Wal-Mart continued to select applicants for entry level warehouse positions without objectively assessing their strength and/or physical abilities. (Karr Dep. at 81-86;
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Gulock Dep. at 89-90.) F. Anecdotal Evidence of Gender Animus in Wal-Mart's Male Dominated Workplace. 1. Wal-Mart's hesitancy to hirefemale applicants was both well known and clearly articulated. Wal-Mart employees and/or supervisors told numerous female applicants that women
were generally not wanted for warehouse positions at DC 6097. Kimberly Bebout's interviewer told her the DC typically hires "young men between the ages of 18 and 25." (Bebout Dep. at 17, 71.) Constantine Bargo's interviewer asked "didn't [she] think [she] could find ajob elsewhere as a cashier or a secretary?" (Constantine Bargo Dep. at 107-08.) He also stated women needed to "leave these jobs alone for men." (Id. at 108.) Barbara Napier was told during her interview "[w]e usually don't hire women for this kind of work." (Napier Dep. at 73.) Sue Lawson's interviewer told her that most of the time Wal-Mart does not hire women to work in the freezer. (Sue Lawson Dep. at 26, 106, 167.) Laura Ludeman's interviewer told her they usually did not hire women on the floor. (Ludeman Dep. at 78-79.) Jane Lee Smith was told by DC supervisor Rick Combs that the DC does not hire women. (Jane Smith Dep. at 22.) Shirley Vaughn's interviewer told her Wal-Mart was looking for "strong men" to do the job, and that he simply did not think she could do it. (Vaughn Dep. at 103-04.) When Maria Malicoat-Howe turned in her application at the DC's front office, she was told by several male employees, "we don't hire women here." (Malicoat-Howe Dep. at 57.) A man who appeared to be a supervisor laughed and agreed, "we don't hire women." (Id. at 58.) DC Manager Mike Giles told Carol Moore he did not think order filling was a good job for a woman because there is a lot of heavy lifting and the temperatures are extremely cold. (Moore Dep. at 41-42,48.) Melinda Branum told Mike Giles she would do any job available, even order filling. Giles laughed at her and said the jobs that
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they had there were not for women and a woman could not do it. (Branum Dep. at 60.) Wal-Mart employees and agents likewise articulated Wal-Mart's hesitancy to hire female
applicants. Ronda Huber was told by an employee of Manpower, a temporary employment agency, that DC 6097 would not hire women. (Huber Dep. at 58.) When Karen Powell handed in her application at the DC's front office, a female office employee told her that women do not work in the warehouse. (Karen Powell Dep. at 32-34.) Louise Hubbard overheard male employees comment at DC 6097, "women [cannot] handle the work" and "Wal-Mart generally picks the men ... over the women." (Hubbard Dep. at 23.) Teresa Botkins spoke to a female Wal-Mart employee and was told they had received her application, but DC 6097 "[does not] hire women unless [they] are like a man." (Botkins Dep. at 81.) Kathy Strunk's supervisor through the Job Shop told her that "women wasn't[sic] allowed to work [at the DC]." (Strunk Dep. at 27-28.) She was also told by two Wal-Mart employees, including supervisor Lonnie Marion, that they do not hire women at the DC. (Id. at 97-99.) Kathy Barrett was told by DC employee Tim Salmons that the DC hardly ever hired women. (Kathy Barrett Dep. at 24.) Elizabeth Johnson-Walden was told by former order filler Dennis Miller that the DC did not hire a lot of women. (Johnson-Walden Dep. at 82.) Shannon Marie Bowling called the DC to see if there were any positions available and a woman who answered the phone told her "we don't really hire women here except for office positions." (Shannon Bowling Dep. at 49.)
2. Wal-Mart supervisors/managers confirmed Wal-Mart's preference for male applicants.
Former Wal-Mart managers confirm the strong preference at DC 6097 for male applicants. Marie Antoinette Jones Jackson was an Operations Manager trainee at DC 6097, visiting from another distribution center in Atlanta, Georgia, for six months in 1999 (Marie Jones Dep. 40-41, 61-63). Jones testified that she was instructed by fellow manager Donnie Caldwell
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(See Id. at 97), that female applicants were only eligible to work in "certain areas" within DC 6097, such as receiving (Id. at 42), but they wanted males to work out on the dock and in shipping (Id. at 42, 97).
Annette Cobb recalls being told by management that they needed some "strong young bucks." (Cobb Dep. at 27-28.) This sentiment was corroborated by B. Sizemore, who was a warehouse manager at DC 6097 from March 29, 1999, through October 25,2001. (B. Sizemore Dep. at 12.) He conducted primarily first interviews, but also did some second interviews as well. (Id. at 15, 18.) He preferred to recommend young male applicants in "good shape," who were "stout" and "muscular," with no prior job experience because he thought they could do the work, especially order filling. (Id. at 37,50.)
Bryan Elliott worked at DC 6097 from October 1995 to September 2006. (Elliott Dep. at 3.) Throughout his tenure at DC 6097, Elliott was an assistant coach and then a coach in various departments (See id. at 7-16), and he frequently conducted interviews (Id. at 17). He recalled some managers stating in meetings that they thought women could not do order filling. (Id. at 19-20.) In regard to hiring, he and others looked for "big, strong, young guys." (Id. at 22.)
Eugene Riley worked at DC 6097 from 1995 through 1998. (Riley Dep. 6,9.) He started as a Quality Assurance associate. (Id. at 6.) He was then promoted to coach on the perishable side of the warehouse (Id. at 7), and then to coach over the dry side shipping and receiving department (Id. at 8). He conducted first and second interviews (Id. at 10-11), and recalled how fellow coaches Jeffrey Henderson and Mike Maxey would not refer female applicants on in the process, preferring young male applicants, because they believed a man would do a better job at order filling than a woman (Id. at 24-25,30-31).
Tom Van Jura was an Operations manager at DC 6097 from January 2001 through
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February 2002. (Van Jura Dep. at 7-9.) As an Operations Manager, he was responsible for interviewing applicants, and he participated in all aspects of the hiring process, including making final hiring decisions. (ld. at 10-11.) In terms of whom to hire, he explained that Wal-Mart wanted to "get a young guy, fresh out of high school. Or if they have a young guy that's just gotten married, something like that, has a responsibility, a mind that you can mold." (Id. at 22.) Managers such as Jeff Akers, Jim Gulock, and Eugene Reynolds said not to hire women to order fill. (ld. at 21, 26-29.) Female applicants were steered toward positions other than order filling, such as quality assurance and receiving. (Id. at 20,23,26-28,31-32,36-39.)
Annette Cobb worked at DC 6097 from 1996 through 1998 as the IT Manager. (Cobb Dep. at 7-8.) She recalled upper male management stating they needed to hire "strong, young bucks" and "we need some strong, young boys." (Cobb Dep. at 27- 28.) She understood this to mean in regard to hiring, that "if a very young - - a young, strong male came in, you know, that's what we're looking for." (Id. at 28.)
3. Wal-Mart's exclusion of women who would distract its male workforce and its culture ofsexual harassment and disrespect toward women at DC 6097.
DC 6097 has an overwhelmingly male workforce. (Bielby Report at 17-32; Cobb Dep. at 16-17; Rose Dep. at 27; Van Jura Dep. at 19, Reynolds Dep. at 70-72, 96-97; Biondo Dep. at 31; Karr Dep. at 26-27.) Multiple class members testified that they were told by Wal-Mart supervisors and/or managers that their appearance would distract the men in the warehouse and lead to sexual harassment problems. Rebecca Forbes's interviewer said, "if they put a woman that looks a certain way in with a bunch of men, that there could be problems." (Forbes Dep. at 69.) Patricia Murray was told by a supervisor that based on her build, personality and appearance, she would not be hired at DC 6097 because she would be "a distraction to the men." (Murray Dep. at 105,114.) Jessica Long's interviewer said, ifhe hired her, there would be
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sexual harassment problems. (Long Dep. at 46-47.) Janice Smith was told by Jimmy Lewis at the Wal-Mart Supercenter that she was going to be kept at the retail store because she was "too pretty" to be at the DC and would "get into trouble" there. (Janice Smith Dep. at 121.)
Class member Kassandra Hammons testified that her interviewer, Jim Gulock, stared at her chest during her interview. (Hammons Dep. at 27.) Hammons was not hired and her husband, Brian, a current Wal-Mart employee, asked Jim Gulock why his wife was not hired. (Hammons Dep. at 41-42.) Gulock commented that if Brian and Kassandra were not married, he (Gulock) would have liked to have had Kassandra's legs "wrapped around him." (Id. at 42.)
Class member Melinda Branum's husband, a former order filler, told her that some days male order fillers who had lost warehouse competitions had to come to work dressed like women. (Branum Dep. at 70-71.) He also told her coaches and order fillers would "joke and carryon" with female employees and "say stuff they shouldn't say" - i.e., sexually harassing jokes and telling women that they dress sexy. (Id. at 71-72.) Similarly, applicant Theresa Stutler's ex-husband told her that when he was an order filler they had contests in the warehouse where the losing male employees would have to "shave their hair, dye their hair, [or] wear women's clothing." (Stutler Dep. at 122.)
Kathy Kimball Pence was an order filler at Wal-Mart DC 6097 for approximately one year beginning in June 2004. (Pence Dec!. at,-r 1.) Pence is 5"2' and at the time weighed 92 pounds. (Id.) She was primarily assigned to perishable order filling, but occasionally worked in the dry goods and frozen sections. (Id.) She recounted male co-workers making frequent sexual comments about female employees and that her supervisor, Jason Andrews, referred to order filling as a "man's job." (Id. at,-r 4.) As compared to her male co-workers, Andrews also routinely assigned Pence especially difficult order filling tasks to be completed under
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unreasonable time constraints. (Id. at ,-r 5.) At other times Andrews would require Pence to stay late and continue working when male order fillers were allowed to leave on time. (Id.) Additionally, she was repeatedly passed over in favor of male co-workers who received special assignments to work at other distribution centers. (Id. at,-r 6.)
Former DC 6097 employee Robin Rose was hired in 1995 as a Quality Assurance associate. (Rose Dep. at 5.) In 1997 she moved to customer service, and in 1999 to the human resources office as a hiring/payroll clerk. (Id. at 7-8.) While a Quality Assurance associate, she complained of being harassed by former manager Daryll Phillips. (Id. at 10-11.) At the time, he was a warehouse manager over dry order filling. (Id. at 10,105.) Among other things, Phillips made inappropriate comments to Rose, stood uncomfortably close to her and followed her home. (Id. at 10-12.) Within a year of Rose's complaint about Phillips, he was promoted. (Id. at 13, 105) Male co-workers and managers frequently commented to Rose on her appearance, including the appearance of her backside (Id. at 14, 25-26), and "hint[ed] around to sexual things." (Id. at 18). Rose was told she looked "hot" and "sexy." (Id. at 112.) Such comments were made throughout her employment at DC 6097. (Id. at 112.) She was made to feel like she had to "do certain things to keep [her] job,"-i.e., put up with unwanted conduct, because "in this area honestly it's a good job. I mean, it's good pay, good benefits." (Id. at 113.) Inappropriate comments were made to Rose when she walked through the warehouse. (Id. at 2123.) Rose also heard sexual comments made to female quality assurance co-workers, including blatant requests for sexual favors. (Id. at 15-16.)
Marie Antoinette Jones Jackson was an Operations Manager trainee at DC 6097, visiting from another distribution center in Atlanta, Georgia, for six months in 1999. (Marie Jones Dep. 40-41,61-63.) She testified that her "treatment there was not good." (Id. at 30,73.) She
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described how she did not receive the same degree of training as male manager trainees and how, unlike them, she was often without an assigned mentor. (Id. at 30-33.) She was the only female manager trainee at DC 6097 at the time, and she was excluded from manager golf outings. (Id. at 74.) She was also excluded from some manager meetings and would hear about what occurred during the meetings from other male manager trainees after the fact. (Id. at 32-36.) Jim Gulock told Ms. Jones Jackson not to discipline any male subordinates, that he would handle such situations, even though at least one of the other two male manager trainees was allowed to discipline subordinates. (Id. at 37-39.) She was allowed to interview female applicants at DC 6097, but was only allowed to sit in the room with someone else when males were being interviewed. (Id. at 41.) She also did not see many females being hired and viewed the environment as a "good ole boy network." (Id. at 45-46.)
Annette Cobb worked at DC 6097 from 1996 through 1998 as the IT Manager. (Cobb Dep. at 7-8.) At the time, she was 1 of3 female managers out ofa total of approximately 32 managers. (Id. at 8-9.) She felt female managers were treated differently than male managers. (Cobb Dep. at 12-13.) She thought male managers, including Plant Manager Vince Biondo, did not take female managers "seriously." (Id. at 13-14.) She described the work environment as a "good old boy system." (Id. at 14-15,80.)
Brian Elliott confirmed that females were treated differently than males at DC 6097. He testified to observing General Manager Jeff Akers treating female manager Laurie Lane in a "disrespectful" way on the loading dock in front of other supervisors, something that for male managers would be done behind closed doors. (Id. at 28-30.) He also recalled male managers and employees commenting on the appearance and clothing of female employees. (Id. at 31-33, 77-79.)
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Rose, Jones, Cobb and Pence were not the only female employees or applicants subjected to sex based differential treatment and/or sexual comments/actions. In or around 2004, Rose was present when female co-worker Kristen Sally received a lewd phone call in the office from the warehouse floor regarding Sally's breasts. (Rose Dep. at 216-217,220-221; Kristen Sally Dep. at 26-29.) Also, class member Kassandra Hammons, while waiting for her husband outside the DC, heard male workers making vulgar remarks, such as what they would like to do to women. (Hammons Dep. at 116-17.)
Managers directly responsible for interviewing and hiring made comments and engaged in conduct that Robin Rose described as making her feel "uncomfortable." (Rose Dep. at 17-20.) Rose recalled feeling "uncomfortable" on a few occasions in particular with Mike Giles, and recounted an instance when she was alone with him in the office one weekend and he came up close behind her and told her she looked "really good" that day. (Id. at 19.) Giles was the Human Resources Manager at the time. (Id. at 19.) Other managers involved in interviewing and hiring made similar comments to Rose. (Id. at 21.)
4. Wal-Mart managers summarily dismissed and ridiculed many female applicants and asked inappropriate and irrelevant personal questions.
A number of female applicants testified to their male interviewers expressing disbelief when they asserted their ability to perform the duties of a warehouse position at DC 6097. Melinda Branum told Mike Giles she would do any job available, including order filling. (Branum Dep. at 60.) Giles laughed at her and said the jobs they had there were not for women and that a woman could not do the work. (ld. at 60.) When Sue Lawson explained the demanding farm work she performed on a regular basis, her interviewer laughed at her. (Sue Lawson Dep. at 97-98.) He also made facial expressions suggesting he thought she was lying and made sarcastic comments such as, "I'd like to see that," when she described the work she
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performed. (Id. at 107-08.) Ellechelle Smith Hall felt "uncomfortable" when her interviewer asked her why she thought she could do the job after she had already asserted she could do it and explained her prior physical experience. (Smith Hall Dep. at 71-72.) Theresa Stutler told her male interviewer she thought she could perform the order filler job and he said, "I don't think you can do it," and laughed at her. (Stutler Dep. at 68.) Lesia Brinson's interviewer kept asking her if she could lift, even though she stated she could lift over 50 lbs. (Brinson Dep. at 27-29.) Sabrina Michelle Smith's interviewer told her that because she was a female, he did not think she could handle working there. (Sabrina Smith Dep. at 41,61.) Kim Vires Roark's interviewer kept asking if she could lift, even though she was certain she could and told him the same. (Roark Dep. at 44.) Jackie Cox's interviewer talked about how they loaded pallets at DC 6097. (Cox Dep. at 56.) She responded that she loaded pallets the same way where she worked and that she did not have a problem with lifting them. (Id. at 56-58.) He doubted her and said the pallets were "heavy for women to lift." (Id. at 57, 59.) Mary Ramsey's interviewer similarly doubted her ability to lift, specifically telling her he did not think she could repeatedly lift 75 pounds because she is a woman. (Ramsey Dep. at 65-66.) Dorothy Harshman's interviewer asked if she had a "problem" working with "a bunch of men" and repeatedly asked if she could lift, despite her assurances that she could, and insinuated she would "use the girl card." (Harshman Dep. at 102-103,107-10.)
A number of class members also testified that they were asked irrelevant, personal questions during their interviews. For example, Brenda Overbey was asked if she was married, had children and if she had ever had any problems with calling in to work due to her husband or child being ill. (Overbey Dep. at 80.) Kassandra Hammons was asked about her daycare arrangements and the ages and gender of her children. (Hammons Dep. at 26-27.) Myra Asher
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was asked if she was married or had children. (Asher Dep. at 70-71.) Sue Lawson was asked about child care arrangements (Sue Lawson Dep. at 27-28) and questioned as to who would care for her children and disabled husband if either were ill and she was working (Id. at 101-03). Shirley Vaughn was asked if she had children, and if so, how many. (Vaughn Dep. at 99.)
A number of female class members testified to their interviewer's dismissive attitudes and lack of interest in their experience and stated ability to perform warehouse work. Some women were even told they would be better suited to work in an office environment even though they had not applied for an office position. Cadi Nobles' interviewer did not follow up on her answers and left her with a "negative impression," as if the interview was "just a process that needed to be gotten through. And so it did not really seem like somebody, like they anticipated the interview process going any farther." (Nobles Dep. at 32-34.) Elizabeth Messer's interviewer told her "you really look like you belong in an office job" even though she was applying for fork lift driver and had not discussed her interest in any office job and had no prior office experience. (Messer Dep. at 29-30.) Myra Asher felt like she was being "blown off," "like the interviewer didn't care about the interview" and like he thought she could not handle the job. (Asher Dep. at 71-73.) Constantine Bargo's interviewer was "unprofessional" and did not pay her much attention. He did not sit down, but paced. (Constantine Bargo Dep. at 103-05.) Lesia Brinson's second interviewer told her, "A lot of women don't make it through the second interview." (Brinson Dep. at 67.) Maria Malicoat-Howe was told the DC was not hiring at the time she sought to apply, while a few moments later she watched a DC employee give an application to a man seeking ajob. (Malicoat-Howe Dep. at 50-52.) Delana Quarrels' phone screen was extremely brief and the interviewer acted as if he was just reading off of a piece of paper and was not interested in her. (Quarrels Dep. 40-42.) He called her about an order filling position, which
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she had applied for, but said she would probably be more comfortable in the office. (Id. at 4243.)
5. Interviewers wrote untrue and/or unsubstantiated comments on female applicant packets to preclude themfrom employment at DC 6097.
Numerous class members testified to having inaccurate and/or untrue statements noted by interviewers on their interview comment sheets or applications. Class member Jennifer Burton's interview comment sheet notes, "Did not give specific answers to several questions. When I took her for a tour and showed her what an order filler did she made the comment, 'I don't know if! can do that.'" (Burton Interview Comment Sheet, Exhibit 117.) Burton, however, testified that she did not make any such comments to the interviewer while on the tour and insists she could have done any job there. (Burton Dep. at 35-37) Robin Carr disputes a notation on her application which says "does not want order filling." (Carr Application Packet, Exhibit 101 and Carr Dep. at 30-31.) A note on Tara Higgins's application said "called on 9/18/03 and was no longer interested." (Higgins Application Packet, Exhibit 103.) Higgins vigorously denies telling anyone at DC 6097 that she was no longer interested in a job there. (Higgins Dep. at 30.) Stephanie Smith disputes inaccurate notes on her interviewer's comment sheet regarding her ability to work in extreme conditions and shift preferences. (Stephanie Smith
J
Dep. at 26-27,32-34.) Penny Lynn Bargo recalls telling her interviewer the extreme temperatures would not bother her one way or the other, while her interviewer noted she was "not real sure" about hot or cold extremes. (Penny Bargo Interview Comment Sheet, Exhibit 116; Penny Bargo Dep. at 49.) Donna Bargo's interviewer wrote on her comment sheet that she only wanted a 3rd shift position as a second job, while Bargo testified she did not discuss the issue with the interviewer and that she was not even looking for a second job at the time. (Donna Bargo Interview Comment Sheet, Exhibit 115, and Donna Bargo Dep. at 50-51) Hazel Bowling
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disputes writing on her application that she was seeking "cafeteria, office assistant" work. (H. Bowling Application Packet, Exhibit 98; H. Bowling Dep. at 24.) She testified to seeking any warehouse or cafeteria position, but not office work because she had no prior office work experience. (H. Bowling Dep. at 24.) Handwriting in the margin of Sarah Ann Boyce's application says, "Not interested anymore." (Boyce Application Packet, Exhibit 99.) But, Boyce does not recall having a conversation with anyone at the DC about no longer being interested and she went on to submit additional applications. (Boyce Dep. at 37-38.) On her second application, Boyce wrote that she wanted to be considered for an order filler position. (Id. at 45.) A notation on the application says, "[number] disconnected" and Boyce denies that her phone was ever disconnected. (Id. at 46-47.)
Jackie Cox disputes notes on her interview comment sheet which state, "lifting and so forth" as the reasons why she wanted to leave her job at the time. (Jackie Cox Interview Comment Sheet, Exhibit 118, Cox Dep. at 61-62.) She also disagrees with notes that say she only wanted a 1st or 3rd shift position. (Id. at 65-66.) While she preferred those shifts, she denies saying she could not work 2nd shift. (Id.) Melinda Moses disputes interviewer notes concerning her ability to perform the job, her prior work experience, power equipment experience and ability to work in extreme heat and cold. (Moses Dep. at 23,25,27.) "No Show" is written across the top of Gloria Ellenburg's application, but she strongly denies that she failed to show for an interview, insisting no one ever called her regarding an interview. (Ellenburg Dep. at 54-57.) Interviewer notes state Delana Quarrels was "not interested in open positions" and "wants a 3rd shift job." (Quarrels Interviewer Notes, Exhibit 119.) However, Ms. Quarrels says shifts were never discussed (Quarrels Dep. 39-40), and she would "have never took[sic] a 3rd shift job." (Id. at 42.) Tammy Southerland Martin does not recall ever talking to anyone
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from Wal-Mart even though someone wrote, "Cannot work available shifts" on her application. (Martin Application Packet, Exhibit 106; Martin Dep. at 28-29.) Tonya Klein Belt's interview packet cover sheet states "declined," but she insists she was never offered a second interview, let alone ajob, which she could have declined. (Belt Dep. at 28-29.) Marsha Gwen Leabo's interviewer noted she had not done physical labor in the past and did not want to work in the freezer, but Leabo testified to having done similar work and recalls stating that while she preferred heat, she did not say she would not work in the freezer. (Leabo Dep. at 31-35.) Janice Smith denies telling her interviewer that she did not think she could stand working in the freezer for 6 months. (Janice Smith Dep. at 286-87.) She even submitted an introduction letter indicating a willingness to work in the freezer. (Exhibit 111.)
Wal-Mart managers likewise wrote reasons for exclusion of female applicants that were contrary to their testimony concerning hiring for DC 6097. James Gulock testified that one need not have any prior re1atedjob experience to be considered for employment at DC 6097. (Gulock Dep. at 105.) Yet, on interview comments for female applicants such as Maria Guzman, Katherine Johnson and Kimberly Dykes, Jim Gulock noted "no relevant job experience" and refused to recommend them for hire. (Gulock Dep. 241-250 and Giles Dep. I, Giles I Dep. Exs. 41, 42, 43.) At his deposition, Gulock was asked to compare the employment history of Katherine Johnson and Travis Wynn - a male whom he recommended for hire - and select the one with the most relevant job experience. (Gulock Dep. at 295-96, Dep. Ex. 42 and 45.) Gulock selected Katherine Johnson, and could not explain why he wrote "no relevant job experience" in her applicant packet, but not in Travis Wynn's applicant packet. (Id.)
Vernon Morris similarly testified that no prior warehouse or physical labor experience was needed for an applicant to be considered for employment at DC 6097. (Morris Dep. at 51.)
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However, he did not pass on Nancy Brock because she had "no past experience in warehousing." (Morris Dep. at 65-66 and Dep. Ex. 4.) Similarly, he failed to recommend Carla Luther, noting, "No experience in warehousing. Weak work history," but he did not know what was weak about her history. (Morris Dep. at 70-71, Dep. Ex. 6.) For Judy Kelly he wrote, "I don't think the applicant would fit as an order filler" and for Deborah Noe, "I don't believe she would fit WalMart culture." (Morris Dep. at 67-69, 73 and Dep. Exs. 5, 8.) For Tina Campbell he noted, "Would not fit as an order filler." (Morris Dep. at 72 and Dep. Ex. 7.) However, he was unable to explain what exactly he meant or why exactly he excluded the women, guessing that maybe the applicant said she did not want to order fill, even though that was not recorded in his notes. (Id. at 67-69, 70-71.)
Other interviewers similarly excluded female applicants for inexplicable reasons such as "not fitting into the Wal-Mart culture" and not having relevant prior experience when none was required. John Dragoo did not pass on Linda Hart, noting, "Do not feel could adapt to Wal-Mart culture," yet he could not explain what he thought that meant at the time. (Dragoo Dep. at 41-42, Dep. Ex.1.) Dragoo excluded Sarah Franklin and Deborah Evans for the same nebulous reason. (Dragoo Dep. at 42-45, Dep. Exs. 3, 4.) Equally puzzling, Tim Beshears wrote, "No experience" for Dawn Carson and did not recommend her on in the hiring process, even though he also noted she had "unloaded trucks" in the past. (Beshears Dep. at 63-65, Dep. Ex. 3) He did not recommend Stephanie Hensley either, citing, "No experience, not flexible," despite testifying that someone did not necessarily have to want to work every shift in order to be considered for employment. (Beshears Dep. at 66-68, 70-71, Dep. Ex. 4) Furthermore, Hensley merely indicated she preferred first shift on the weekend and 2nd during the week. (Id. at 70-71.) Beshears excluded other women for similar reasons related to alleged lack of experience and
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"flexibility." He excluded Linda Strange for "lack of experience" and one brief gap in employment. (Beshears Dep. at 71-74, Dep. Ex. 5.) He rejected Wanda Owens because, "not flexible, no experience" (Beshears Dep. at 74-76, Dep. Ex. 6.) He said Jaime Eldridge had "no experience" and "does not want to work 2nd shift" when she told him about experience and stated she merely preferred 3rd or 1st shift. (Beshears Dep. at 77-80, Dep. Ex. 7; See also Beshears Dep. at 80-90 discussing other women excluded for similar reasons.)
Marvin Lawson disqualified Kathleen Gienau, noting, "Not the best suitable for this job" even though he did not know what job he had interviewed her for and he could not explain what led him to believe she was unsuitable. (M. Lawson Dep. at 73-74, Dep. Ex. 6.) The same illogical exclusions occurred to Carolyn Dalhover and Rebecca Manning. (M. Lawson at Dep. 74-76, Dep. Exs. 7 and 8.)
6. Wal-Mart managers placed well qualifiedfemale applicants on "hold" while hiring numerous, often less qualified, male applicants.
Mike Giles was one of two managers responsible for conducting third interviews and making job offers from December 1998 through December 2001.26 During the 1998 through 2001 time period, Giles does not recall any women working as order fillers. (Giles Dep. I at 63.) Consistent with his belief that women could not perform the order filling position, Giles placed numerous admittedly qualified women on "hold", a category he stated was reserved for when there was no job available, when an orientation class had not been set or when the applicant was more suited for ajob other than order filler.27 (Id. at 40-42,87,93.) However, as discussed below, at the same time he placed female applicants on hold, he interviewed and hired less or
26 As discussed above, Mike Giles told Carol Moore that he did not think the order filler job was a good job for a woman because there was a lot of heavy lifting and the temperatures were extremely cold. (Moore Dep. at 41-42, 48.) He told Melinda Branum, in response to her assertion that she was willing to accept any job, that the jobs that they had there were not for women to be doing and that a woman could not do it. (Branum Dep. at 59-60.) 27 Giles acknowledged that positions other than order filler rarely opened and by placing the applicant on hold, her chances of obtaining employment were very small. (Giles Dep. I at 93.)
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similarly qualified male applicants. (ld. at 91-93.) Plant manager Jeff Akers admitted that such a practice was improper and constituted stereotyping. (Akers Dep. at 69-71.) He acknowledged that Wal-Mart did nothing to check whether managers were placing female applicants on hold for less strenuous positions. (ld. at 70.)
Jennifer Osborne applied for any position available on June 17, 1999. (Giles Dep. at 89 and Ex. 4.) After being passed by two other interviewers, Mike Giles placed her on hold on June 29, 1999. (Giles Dep. I at 91.) He admitted Osborne had packing and receiving experience, had filled orders at her past job and had nothing in her interview packet to indicate that she couldn't do the order filler job. (ld. at 88, 92, 93.) Giles admitted that order filler positions were open at the time he placed Osborne in hold and that he knew that the likelihood of a position other than order filler opening up was very small. (Giles Dep. I at 93.) Approximately one week earlier, he interviewed and hired Michael Cox who was just out of high school and had no job experience. (Giles Dep. I at 95-96.) Giles also offered a position to Christopher Dixon on June 23, 1999. (Giles Dep. I at 99 and Dep. Ex. 7.) Giles offered a position to Johnny Farmer on June 24, 1999. (ld. at 101-102 and Dep. Ex. 8.) Giles interviewed and offered a position to Joshua Mounce on June 28, 1999. (ld. at 111-112 and Dep. Ex. 9.) Mounce had no previous work experience. (ld. at 112.) Giles interviewed and offered a position to Charles Smith on July 2, 1999. (ld. at 113 and Dep. Ex. 10.) Giles interviewed and offered a position to Johnny Harris on July 6, 1999, despite a negative reference and previous employment only as a cook. (Harris Dep. Ex. 7.) Giles interviewed and offered a position to Brian Clawson on July 27, 1999. (Giles Dep. at 114 and Dep. Ex. 11.) Giles interviewed and hired Jason Freeman on August 3, 1999. (ld. at 114-115 and Dep. Ex. 12.) Between June 28, 1999, and August 30, 1999, Wal-Mart hired at least28 90
28 Wal-Mart's new hire logs do not reflect applicants who received offers and declined or whose offers were rescinded after drug testing.
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male applicants but only two females, one as slatter and one as unloader. (New Hires Log at 00139-00150. New Hires Log excerpts are designated as Exhibit 138.)
Deanna Coil applied for "any" position on September 30, 1999. (Giles Dep. I Ex. 13.) She had order filling and case selecting experience. (Id.) After being passed on by two other interviewers, Giles interviewed her and placed her on hold for a "slatter" position on October 15, 1999. (Id. at 115.) However, Giles interviewed and hired Jason Monhollen on October 1,1999. (Id. at 118.) Giles interviewed and hired Paul York on October 5, 1999. (Giles Dep. I at 118 and Dep. Ex. 15.) Giles interviewed and hired Ashley Hornsby on October 15,1999. (Id. at 121 and Dep. Ex. 16.) Giles interviewed and hired Brett Ledford on October 26, 1999. (Id. at 122 and Dep. Ex. 17.)
Jennifer Brock applied for employment on January 9, 2000. (Brock Application Packet, Exhibit 100.) She had experience unloading trucks and a spouse working at DC 6097. (Id.) After being passed on by two other interviewers and by General Manager Jeff Akers, Giles interviewed her and placed her on hold for a "slatter" position on January 25,2000. (Id.) However, between January 10,2000 and March 13,2000, Wal-Mart hired at least 25 male applicants as order fillers and only one female applicant as a slatter. (New Hires Log at 0017800186.)
On March 30, 2000, Amanda Archer applied for order filling or "any available" position. (Archer Application Packet, Exhibit 96.) After being passed on by two interviewers, Mike Giles placed her on hold on April 26, 2000. However, on April 25, 2000, Giles made a job offer to Jeremy Martin. (Giles Dep. at 127 and Dep. Ex. 19.) Giles interviewed and hired Marvin Mills on April 29, 2000. (Id. at 127-28.) Giles interviewed and hired John Davis on May 26, 2000. (Id. at 128 and Dep. Ex. 21.) Giles interviewed and hired Roger Burton on June 1,2000. (Id. at
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128 and Dep. Ex. 22.) Giles interviewed and hired Brian Boggs on June 2, 2000. (Id. at 128 and Dep. Ex. 23.) On June 7, 2000, Giles interviewed and hired William Baird. (Id. at 129 and Dep. Ex. 24.) Baird had graduated from high school two weeks prior. (Id. at 131.) Giles interviewed and hired Steven Asher on June 15,2000. (Id. at 133 and Dep. Ex. 25.) From April 24, 2000, through June 26, 2000, Wal-Mart hired at least 90 male applicants. (New Hire Log at 0019400210.)
On April 13, 2000, Veronica Blair applied for "any" position. (Giles Dep. I at 123 and Dep. Ex. 18.) She had past order filling experience as well as pallet jack and forklift experience. (Giles Dep. I at Ex. 18.) After being passed on by two other interviewers, Giles interviewed her and placed her on hold on April 28, 2000, two days after placing Amanda Archer on hold and despite the availability of order filling jobs. (Id. at 123-126 and Dep. Ex. 18.) However, as discussed above, Giles mad!job offers to Jeremy Martin, Marvin Mills, John Davis, Roger Burton, Brian Boggs, William Baird and Steven Asher all in the same timeframe. (Id. at 127-133 and Dep. Ex. 19-25.) Also, as noted above, from April 24, 2000, through June 26,2000, WalMart hired at least 90 male applicants. (New Hire Log at 00194-00210.)
Tammy Jenkins applied for any position on December 6, 2000. (Jenkins' Application Packet, Exhibit 105.) She had past construction and fork lift experience. (Id.) After being passed on by two other interviewers, Giles interviewed her and placed her on hold for a "receiving" position on January 22,2001. (Id.) Jim Gulock interviewed Jenkins on March 13, 2001, took notes about Kelly's daughter, but offered no job. (Id.) From January 22,2001, through March 12,2001, Wal-Mart hired at least 54 male applicants. (New Hires Log at 0023300242.) One of the males interviewed and offered ajob by Giles was Jamey Brewer. Brewer was hired on February 14,2001, despite no previous similar physical or power equipment
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experience. (Brewer Dep. Ex. 5.) Kassandra Hammons applied for any position multiple times including an application on
December 18,2000. (Hammons Dep. Ex. 7.) Hammons has a spouse working at the Distribution Center. (Id. at 21.) After being passed on by two interviewers, Mike Giles placed her on hold on January 23,2001, one day after placing Jenkins on hold. After being placed on hold by Giles, Jim Gulock interviewed Hammons on February 28,2001. (Id. at 24.) After asking her about childcare and telling her husband that he (Gulock) would like to get her legs around him, Gulock did not offer ajob to Hammons. (Hammons Dep. at 25-27.) As noted above, however, from January 22, 2001, through March 12,2001, Wal-Mart hired at least 54 male applicants. (New Hire Log at 00233-00242.)
On January 17,2001, Rebecca Northern Clark applied for a shipping, packing or inspecting job at DC 6097. (Northern Clark Application Packet, Exhibit 107.) Northern Clark had previous heavy lifting and pallet jack experience. (Id.) After being passed on by two interviewers, Mike Giles placed her on hold for "slotter, P.O. control, hauler, etc." on February 16, 2001. (Id.) After being placed on hold by Giles, Jim Gulock interviewed Northern Clark on February 28,2001. (Id.) Gulock failed to offer employment to Northern Clark. However, between February 19,2001, and April 16, 2001, Wal-Mart hired at least 55 male applicants but only two female applicants, one as a slotter and one as a clerical. (New Hires Log at 0023700246.)
On October 20, 2001, Sharon Radford applied for any position. (Radford Application Packet, Exhibit 109). Radford had previous physical and power equipment experience. (Id.) After being passed on by two interviewers and by General Manager Jeff Akers, Mike Giles interviewed her and placed her on hold on November 16,2001. (ld.) However, between
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November 26,2001, and January 21, 2002, Wal-Mart hired at least 55 male applicants but only one female applicant, as a PO Clerk. (New Hire Log at 00279-00286.)
On October 16,2001, Sabrina Howard applied for any position. (Howard Application Packet, Ex. 104.) Howard had a spouse working at the Distribution Center and also had previous order filling experience. (ld.) After being passed on by two interviewers and by General Manager Jeff Akers, Mike Giles interviewed her and placed her on hold on November 30, 2001, for "hauler," "slotter," "clerical "or" quality assistance." (ld.) However, as noted above, between November 26,2001, and January 21, 2002, Wal-Mart hired at least 55 male applicants but only one female applicant, as a PO Clerk. (New Hire Log at 00279-00286.)
Jim Gulock likewise placed qualified female applicants on hold following third interviews despite offering employment to male applicants. During the interviews he asked many of the female applicants about their families, children and childcare. (Gulock Dep. at IBIS.)
On January 18,2000, Elizabeth Walden-Johnson applied for any position. (WaldenJohnson Dep. Ex. 1. Walden-Johnson Application Packet, Exhibit 114.) Johnson had past order filling experience. After being passed on by two interviewers and by General Manager Jeff Akers, Jim Gulock interviewed her and placed her on hold on February 2, 2000 for a "slotter" position. (Id.) However, as noted above, between February 7, 2000, and April 3,2000, WalMart hired at least 28 male applicants but no female applicants. (New Hire Log at 00182 00191.)
On January 3, 2000, Danica Thome applied for any office or receiving position, but was told during her second interview, January 29,2000, that she was being interviewed for the order filler job. (Thome Application Packet, Exhibit 113.) After being passed on by two interviewers
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and by General Manager Jeff Akers, Jim Gulock interviewed her and placed her on hold on February 3, 2000, for "unloader" or "slotter." (Id.) Gulock's interview notes indicate that Thome was married and that she had a three year old daughter. (Id.) However between February 7, 2000, and April 3, 2000, Wal-Mart hired at least 28 male applicants but no female applicants. (New Hire Log at 00182 -00191.)
On June 5, 2000, Virginia Sallee applied for an order filling position. (Sallee Application Packet, Exhibit 110.) Sallee had stocking experience and experience unloading trucks. (Id.) After being passed on by two interviewers and by General Manager Jeff Akers, Jim Gulock interviewed her and placed her on hold on July 3, 2000. Gulock noted on his interview notes that Sallee was married and had a son. (Id.) Between July 10,2000, and September 4,2000, WalMart hired at least 53 male applicants but only one female applicant (for a clerical position). (New Hire Log at 00212-00217.) One of the males hired by Gulock was Christopher Marcum. Marcum was offered an order filling position on August 11, 2000, despite a falsified application, inconsistent applications and no previous physical or power equipment experience. (Marcum Dep. at 42-45 and Ex. 7.) Gulock also hired Christopher Ginter on August 21,2000, despite no previous physical or power equipment experience. (Ginter Dep. Ex. 4 and 5.)
Teresa Mills applied a number of times for employment at DC 6097 including an application on November 26, 1999, for any position, "slaughter" or order filler. (Mills Dep. Ex. 5. Mills Application Packet.) Mills had previous physical experience and a spouse at DC 6097. (Id.) After being passed on by two interviewers and by General Manager Jeff Akers, and having discussed and seen the order filling job, Wal-Mart manager Danny Ward interviewed her and placed her on hold on January 26,2000 for "slotter" or "hauler." (Mills Dep. at 57-60.) Six months later, on July 26, 2000, Mills was interviewed by Jim Gulock, who again placed her on
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hold. (rd.) Gu10ck noted on his interview notes that Mills had two kids. (rd.) Between January 31, 2000, and August 7, 2000, at least 165 male applicants were hired but no female applicants. (New Hires Log at 00180-00215.)
Lisa Jill Harrison applied a number of times for employment at DC 6097 including an application on June 13, 2001, for "any" position. (Harrison Application Packet designated as Exhibit 102.) Harrison had unloading and load experience as well as experience with a hand jack. (rd.) After being passed on by two interviewers and by Danny Ward, Jim Gillock interviewed her and placed her on hold on July 13,2001. Gu10ck's notes indicate that Harrison had two children. (rd.) However between July 9,2001 and September 3, 2001, Wa1-Mart hired at least 51 male applicants but no female applicants. (New Hire Log at 00261-00270.)
On October 12,2001, Myra Asher applied for any position. (Asher Dep. Dep. Ex. 1.) Asher had shipping and receiving, warehouse and pallet jack experience. (Id.) After being passed on by two interviewers and by General Manager Jeff Akers, Jim Gu10ck interviewed her and placed her on hold on October 25,2001 for "receiving." During the interview, Gu10ck asked Asher whether she was married and/or had children. (Asher Dep. at 70-71.) However between October 22,2001, and December 26, 2001, Wa1-Mart hired at least 46 male applicants but only three female applicants, one as a JT Clerk, one for PO Control and one as an order filler. (New Hire Log at 00275-00282.) One of the male applicants hired by Jim Gu10ck was Christopher Collins. Gu10ck interviewed and hired Collins on November 15,2001. (Collins Dep. Exs. 9 and 10.) Collins' stated work experience was limited to Wendy's and less than a year as a car mechanic. (rd.)
On October 18,2001, Julie Terrell applied for any position. (Terrell Dep. Dep. Ex. 2.) Terrell had warehouse, forklift and pallet jack experience. (rd.) After being passed on by two
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interviewers and by General Manager Jeff Akers, Jim Gulock interviewed her and placed her on hold on December 7, 2001, for "lift driver." However, between November 26,2001, and February 4,2002, Wal-Mart hired at least 64 male applicants but only one female applicant (for PO Control). (New Hire Log at 00279 -00288.)
7. Despite passing their interviews, female applicants were excludedfrom employment.
In addition to being placed on hold, female applicants were also excluded from employment after passing two interviews, receiving satisfactory reference checks, but prior to receiving a third interview. Angela Powell applied for employment on July 8, 1998 and provided Wal-Mart with a resume as well as a letter of reference. (Powell Application Packet, Exhibit 108.) Powell had order puller experience, was passed on by two interviewers and received satisfactory reference checks. (Id.) Her second interviewer advised her that she would be offered a position at Wal-Mart and she put down a deposit on a local apartment, as a result. (Powell Dep. at 23-24.) On or about July 30,1998, however, personnel manager, Andy Glover29 recommended that Powell not be considered for employment. (Glover Dep. at 42 and Dep. Exs. 5, 6.) Glover testified that he does not know why he removed Powell from consideration and that he was unable to find anything in her application packet that would preclude her from further consideration. (Glover Dep. at 43.) Yet between July 27,1998 and July 29,1998, Glover reviewed the application packets and reference checks for Joey Howard (a bank teller), David Grammer (a self employed painter with no outside work experience) and Henry Campbell (a former army driver with no other work experience). (Id. at 39-42, Dep. Exs. 2-4.) He recommended that each of these applicants continue on to a third interview. (Id.) Glover had no recollection of any sort of check list that was used to evaluate an applicant following their second
29 Glover worked as personnel manager at DC 6097 from 3/01/97 to 8/28/98. (Glover Dep. at 51.) He does not
believe that he had specific training on interviewing, discrimination or hiring practices during this time period. iliU
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interview to determine whether or not they should go on in the process. (Glover Dep. at 47) and could not explain the disparate treatment of Powell and the male applicants. (ld. at 44-48.) The same month he rejected Angela Powell, Glover sent a rejection letter to Janet Gibson. (Glover Dep. at Ex. 7.) Gibson applied for employment on June 17, 1998, had forklift experience, stocking and loading experience, passed two interviews and had satisfactory reference checks. (Glover Dep. at Ex. 8.) General Manager Vince Biondo recommended that Gibson not be further considered for employment and Glover sent the rejection letter to Gibson without reviewing Biondo's decision or the application packet. (Id. at 48-50.) IV. ARGUMENT.
A. Key Legal Tenets/Summary of Argument. The EEOC may raise a triable issue of fact concerning the prima face elements of a Title VII pattern or practice claim through a "culmination of evidence, including statistics, patterns, practices, general policies, or specific instances of discrimination." Int'! Broth. of Teamsters v. United States, 431 U.S. 324, 339 (1977); Hazelwood School Dist. v. United States, 433 U.S. 299, 307-08 (1977). Thus, the EEOC can demonstrate a genuine issue of material fact exists regarding a prima facie showing using either statistics, anecdotal evidence, or both. Pitre v. Western Electric Co., 843 F.2d 1262,1267 (lOth Cir. 1988); Ardrey v. United Parcel Service, 798 F.2d 679,685 (4th Cir. 1986); see also Morgan v. United Parcel Service of America, Inc., 380 F.3d 459, 466 (8th Cir. 2004) (statistics not required to establish pattern or practice). As in any discrimination case, "direct evidence of an intent to discriminate" may also be used to establish a pattern or practice claim. Lujan v. Franklin Co. Bd. ofEduc., 766 F.2d 917,929 n.15 (6th Cir. 1985). While the EEOC need not produce both statistical and anecdotal evidence, a combination of both types of evidence is "potent" and brings "the cold numbers convincingly to
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life." Coral Const. Co. v. King County, 941 F.2d 910,919 (9th Cir. 1991) (quoting Int'! Bhd. Of Teamsters v. United States, 431 U.S. 324, 339 (1977)).
Additionally, the EEOC does not have to prove that any particular applicant was discriminated against and thus a victim of the pattern or practice of discrimination. EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1286 (11 th Cir. 2000). Rather, in determining whether a pattern or practice exists, the Court must assess "on a cumulative basis," all of the evidence tending to show a pattern or practice. Pitre, 843 F.2d 1262, 1268 (10th Cir. 1988) (quoting EEOC v. American Nat'l Bank, 652 F.2d 1176 (4th Cir. 1981), cert. denied, 459 U.S. 923 (1982)); see also Craik v. Minnesota State Univ. Bd., 731 F.2d 465, 471-2 (8th Cir. 1984) (reversing District Court's entry ofjudgment on behalf of the defendant finding that the Court improperly analyzed the individual claims of discrimination separately from the class allegations and statistics).
As set forth more fully below, the EEOC not only raises triable issues of fact, but readily meets its prima facie burden with three categories of evidence. First, the EEOC has overwhelming statistical evidence demonstrating a gender based disparity in offers to female applicants. Second, the statistical evidence is enhanced by compelling evidence of gender stereotyping by supervisors and managers, and an entirely subjective interview and hiring process. Third, there is abundance anecdotal evidence including admissions of discriminatory practices, and evidence that female applicants and/or employees were denied hire and/or otherwise treated less favorably than male applicants and employees. Furthermore, as discussed below, Wal-Mart's ignorance of gender and scope arguments remains unavailing.
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B. The EEOC's Statistical Evidence, Alone, Creates a Reasonable Inference that Wal-Mart Engaged in a Pattern and Practice of Hiring Discrimination.
"Statistical evidence is an important tool for placing seemingly in-offensive employment practices in their proper perspective." Senter v. General Motors Corp., 532 F.2d 511, 527 (6th Cir. 1976). The highly significant statistical evidence in this case can independently establish a prima facie case of a pattern or practice of gender based hiring discrimination at DC 6097. See Hazelwood School District v. United States, 433 U.S. 299, 307-08 (1977) ("(w) here gross statistical disparities can be shown, they alone may ... constitute prima facie proof of a pattern or practice of discrimination"); Chrisner v. Complete Auto Transit, Inc., 645 F.2d 1251, 1259 n.7 (6th Cir. 1981) ("(s)tatistical evidence may establish a prima facie case of employment discrimination in an individual action as well as in a class action"); EEOC v. Akron National Bank and Trust Co., 497 F. Supp. 733 (ND. Ohio 1980) (unexplained statistical proof of gender disparities is proof of discriminatory placement); Police Officers for Equal Rights v. City of Columbus, 644 F. Supp. 393,402 (S.D. Ohio 1985) ("statistical evidence is typically used in class action lawsuits similar to the case at bar in an effort to establish a prima facie case of a pattern [or] practice of unlawful discrimination..."); Segar v. Smith. 738 F.2d at 1278 (plaintiffs may sustain their burden at the prima facie stage exclusively on statistical evidence).
"[S]tatistical evidence by its very nature deals with probabilities rather than certainties. All that can be required of methods employed in gathering such evidence is that they assure reasonably accurate findings. Absolute perfection usually is not attainable in this kind of endeavor." Vulcan Society ofN.Y.C.FD. v. Civil Service Commission. 360 F.Supp. 1265, 1270 (SD.N.Y.), affd. 490 F.2d 387 (2d Cir. 1973) (footnote omitted). That a plaintiffs evidence can be questioned does not justify summary judgment; defendants must show that the statistical evidence is so lacking in probative value that no reasonable jury could find for plaintiff. Gomes
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v. Avco Corp., 816 F. Supp. 131, 136 (D. Conn. 1993), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, (1986).
As discussed below, Wal-Mart incorrectly asserts that summary judgment is warranted because: (1) random chance cannot be ruled out as causing the gender disparity (D.'s Memo at 19-20); (2) missing variables account for the gender based disparity and/or make the analysis unusable (Id. at 2, 19,27-29); (3) errors in the database make the analysis unusable (Id. at 2, 1819,26-27); (4) the aggregation of data makes the analysis unusable (Id. at 2, 23-24; (5) the inability to predict with certainty exactly which applicants will be hired makes the analysis unusable (Id. at 20-22); and (6) because Bamow made corrections and revisions to his report that his analyses should be disregarded (Id. at 24-25).
(1) Wal-Mart'sfirst incorrect assertion: random chance cannot be ruled out as causing the gender disparity.
The gender based hiring disparity identified by Dr. Bamow is statistically significant with a likelihood of occurrence by chance of less than .05%. In fact, for the 1998 through 2001 time period, the chance of the gender disparity occurring by chance (with a two tailed test) was less than .0001 or one in ten thousand. (Bamow Supp. Report Supp. Ex. B4). For the 2002 through 2004 time period, the chance of the tender disparity occurring by chance (with a two tailed test) was .0058 or was roughly one in 500. (Id. at Supp. Ex. B5.)30
Wal-Mart ignores the meanir:ig of "statistical significance" and contends that Dr. Bamow is unable to rule out random chance as a cause for the disparity. (D.'s Memo at 20.) In claiming that the gender disparity could be due to random chance, Wal-Mart confuses Dr. Bamow's testimony conceming how well an applicant's traits other than gender predict whether the applicant will be hired (Bamow Dep. at 353-55) with his testimony that one's gender is a highly
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statistically significant predictor of hire. As discussed in Section IV(B)(5), while Wal-Mart's
haphazard and non-standardized hiring criteria result in difficulty in predicting exactly which
applicants will be hired, gender is a statistically significant predictor of hire for the entire
1998 through 2004 period.
When a plaintiff demonstrates a significant statistical disparity "he or she has provided
strong evidence that chance alone is not the cause..." Barnes v. Gencorp Inc., 896 F.2d 1457,
1466,1469 (6th Cir. 1980.) See also, EEOC v. Atlas Paper Box Co., 868 F.2d 1487, n.11 (6th
Cir. 1989) (prima facie case established when met .05 level of statistical significance); Police
Officers for Equal Rights v. City of Columbus, 644 F. Supp. 393 (S.D. Ohio 1985) (adopting .05
level as statistically significant).
The notion of statistical significance addresses directly the question whether an inference of discrimination is warranted. Statistical significance is a measure of the probability that the outcome of a statistical analysis would have occurred by chance: The lower the probability that the observed outcome could have occurred by chance, the stronger the inference of discrimination that can be drawn from the data. For example, a finding that a study is significant at the .10 level indicates that the odds are one in ten that the result could have occurred by chance, and a finding of significance at the .05 level indicates that the odds are one in 20 that the result could have occurred by chance. Although the law has not set any precise level at which statistical significance can be said to be sufficient to pennit an inference of discrimination, social scientists usually accept a study that achieves statistical significance at the .05 level. D. Baldus & J. Cole at 297, cf F. MOSTELLER, R. ROURKE & G. THOMAS, PROBABILITY WITH STATISTICAL APPLICATIONS 310 (2d ed. 1970). In other words, a study is found significant-and the hypothesis of chance is rejected-when there exists at most a one in 20 possibility that the observed result could have occurred by chance. (emphasis added.)
Segar v. Smith, 738 F.2d 1249,1282 (C.AD.C. 1984). From both a social science perspective
and a legal perspective, the likelihood of the gender-based hiring disparity occurring by chance
at DC 6097 must be rejected. See Castaneda v. Partida, 430 U.S. 482, 497 n. 17 (1977) ("[a]s a
general rule for such large samples, if the difference between the expected value and the
observed number is greater than two or three standard deviations, then the hypothesis that the
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jury drawing was random would be suspect to a social scientist.,,).31 (2) Wal-Mart's second incorrect assertion: missing variables account/or the gender based disparity and/or make the analysis unusable. In performing his regression analysis, Dr. Barnow relied upon manager testimony
(Barnow Dep. at 16-17) and controlled for nearly every piece of information Wa1-Mart sought via its employment application, including previous Wal-Mart employment, employment gap, fired from previous job, transfer applicant, work permit, position applied for, education level, felony convictions, theft/fraud convictions, peak, full or temporary employment, shift availability, pay expectations, relative at Wal-Mart, missing work history, month and year of application, whether received interview(s), previous applications and previous work experience. (See Barnow Supp. Report Supp. Ex. B1.) A regression analysis which accounts for the major factors in an employment decision is acceptable evidence of discrimination, even if some variables have been omitted. Bazemore v. Friday, 478 U.S. 385, 399-400 (1986). Failure to include all variables affects the probative value of a regression analysis, not its admissibility. Id. at 400.
Under the law of this Circuit, statistically significant results which eliminate "the most common reasons for the disparity" create a prima facie case of discrimination. Barnes v. Gencorp Inc., 896 F.2d 1457, 1466 (6th Cir. 1980). "Not every conceivable factor relevant to a promotion decision must be included in the statistical presentation in order to make out a prima facie case." McReynolds v. Sodexho Marriott Services, Inc., 349 F. Supp.2d 1,13 (D.D.C. 2004). "Rather, what the case law means by 'minimum objective qualifications' are those objective qualifications that can be shown to be truly required to do the job at issue." Id. "(T)he law is clear that a plaintiffs proof must account for objective qualifications; exclusion of
31 A .05 chance corresponds to 2 standard deviations and a .001 chance corresponds to 3 standard deviations. Segar v. Smith, 738 F.2d 1249, n. 28 (D.C.C. 1984).
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subjective requirements... is entirely proper." Segar v. Smith, 738 F.2d 1249, 1276 (D.C.C. 1984).
Wal-Mart asserts that Dr. Bamow should have included interviewer notes32 and transfer status in his regression analysis. (D.'s Memo at 28.) In fact, Dr. Bamow did include transfer status as a variable in his regression analysis. (See Bamow Supp. Report Supp. Ex. B1.) Dr. Bamow did not include interview information because he did not have interview information for all applicants (Bamow Dep. at 127-28) and the applications presumably sought the information which Wal-Mart felt was most important in screening applicants (see Bamow Dep. at 288). Moreover, Dr. Bamow's decision was a wise one given the grossly inaccurate information and comments placed by Wal-Mart interviewers on applications and application packets of female applicants. (See Section III(F)(5) above). More significantly, however, Wal-Mart must show (and it has not even attempted to do so) that the apparent gender disparity would in fact be reduced if these variables were taken into account. Bazemore, 478 U.S. 385,403 n.14 (Respondents' strategy at trial was to declare simply that many factors go into making up an individual employee's salary; they made no attempt that we are aware of-statistical or otherwiseto demonstrate that when these factors were properly organized and accounted for there was no significant disparity between the salaries of blacks and whites); Sobel v. Yeshiva Univ., 839 F.2d 18 (2d Cir.1988) (University did not show that the apparent gender disparity would in fact be reduced if these variables were taken into account; University's experts criticized plaintiffs failure to include the variables, "offering no reason, in evidence or analysis, for concluding that they correlated with sex and therefore were likely to affect the sex coefficient"); McAlester v. United Airlines, Inc., 851 F.2d 1249, 1259 (lOth Cir. 1988) ("United presented no expert
32 Wal-Mart incorrectly contends that because he failed to use interviewer notes, Barnow was unable to control for work history, current job responsibilities, prior job experience and pay expectations. (D.'s Memo at 28.) In fact, Dr. Barnow controlled for all of these factors. (See Barnow Supp. Report Supp. Ex. B1.)
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testimony that the failure of McAlester's expert to consider these factors changed his statistical determination that the high rate of minority termination was not the result of chance. Although United developed through cross-examination that failure to consider these factors may result in skewed statistical results, the weight to be accorded this statistical evidence is the province of the jury."); Catlett v. Missouri Highway and Transp. Comm'n, 828 F.2d 1260 (8th Cir.1987), cert. denied, 485 U.S. 1021, 1266 (1988) ("[w]hile Missouri argues that the class in defining the relevant work force failed to consider the actual interest of otherwise qualified men and women in maintenance work, Missouri bore the burden of introducing evidence to show this failure was significant ...."); Dobbs-Weinstein v. Vanderbilt University, 1 F. Supp. 2d 783, n.34 (M.D. Tenn. 1998) ("the Court believes that Defendant has not gone far enough to survive summary judgment in only pointing out the potential shortcomings in Plaintiffs calculations. The Supreme Court has held that a defendant must go beyond such criticism and actually demonstrate that its method of statistical analysis would yield statistics undermining the disparity shown by the plaintiff."). Palmerv. Schultz, 815 F.2d 84,101 (D.C.C. 1987) ("(i)mplicit in the Bazemore holding is the principle that a mere conjecture or assertion on the defendant's part that some missing factor would explain the existing disparities between men and women generally cannot defeat the inference of discrimination created by plaintiffs' statistics."); D. Baldus & J. Cole, Statistical Proof of Discrimination, vii (1987 Supp.) (when statistical evidence is challenged on methodological grounds, the burden should be on the challenger to present evidence that the statistics are defective and how that flaw biases the results).
(3) Wal-Mart incorrect assertion no. 3: errors in his database render Dr. Barnow's analysis unusable.
As the EEOC explained in response to Wal-Mart's Bamow-related Daubert motion,
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which made nearly identical assertions,33 "(a) heavy burden must be met before a party can justify the rejection in toto of any statistical analyses on grounds of errors or omissions in the data." Vuyanich v. Republic Nat. Bank of Dallas, 505 F. Supp. 224, 256 (D.C. Tex. 1980), reversed on other grounds, 723 F.2d 1195 (C.A. Tex. 1984). Wal-Mart's data challenges in this case go only to the weight of Dr. Barnow's expert testimony, not its admissibility since WalMart has not shown that (1) the data is fundamentally flawed and (2) the flaws make a difference in the statistical significance. See Bames v. Gencorp Inc., 896 F.2d 1457, 1467 (6th Cir. 1990), citing Capaci v. Katz & Besthoff, Inc., 711 F.2d 647, 653-54 (5th Cir. 1983) ("[t]he defendant must do more than raise theoretical objections to the data or statistical approach taken; instead, the defendant should demonstrate how the errors affect the results"). Thus, Wal-Mart's insistence upon rehashing its data challenges for summary judgment purposes is misplaced.
As the EEOC outlined in its Bamow Daubert Response, Wal-Mart is unable to show that Dr. Barnow's data is fundamentally flawed or that the claimed flaws make a difference in the statistical significance since: (1) Mr. Freeman's only systemic test of Dr. Bamow's database showed a low error rate (EEOC's Response to Wal-Mart's Bamow Daubert Motion, DE # 386 at 17-20); (2) Dr. Bamow reran his analysis after making any warranted corrections and rechecking the key variables of gender and offer and reached the same statistically significant results (ld. at 14-15); (3) Dr. Bamow corroborated his results by statistical testing on three Wal-Mart generated databases (Id. at 15-17); and (4) Wal-Mart has produced no evidence that the asserted errors in
33Wal_Mart not only rehashes its Daubert motion assertions, Wal-Mart now, for summary judgment purposes, makes liberal misrepresentations to the Court concerning Dr. Barnow's database and analyses, without providing a single citation to the record. Dr. Barnow has not admitted that his analyses and opinions are inaccurate and unreliable. (D.'s Memo at 18.) He has not admitted that "his relied upon database is incorrect and incomplete." (Id. at 19.) He has not admitted that "a key component of his analysis is wrong." (Id.) He has not admitted that "his opinions lack predictive and probative force." (lQJ He has not admitted that "his analyses are flawed because they are based on missing variables or incorrectly captured variables." (Id.) He has not admitted that that "predictive value is essential to determining whether there is a statistical disparity in hiring men and women." (Id. at 21.) Finally, Barnow did not use "an EEOC created database." (Id. at 25-26. )
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the database change the statistically significant results. In the absence of a fundamental flaw that makes a difference in the statistically
significant results, Wal-Mart's assertions concerning "mistakes" made by Dr. Barnow go to the weight of his analysis which must be determined by the jury. McAlester v. United Airlines, Inc., 851 F.2d 1249 (lOth Cir. 1988) (asserted flaws properly left for cross examination); EEOC v.General Telephone Co. of Northwest, Inc., 885 F.2d 575,580 (9th Cir. 1989) (under Bazemore a defendant cannot overcome a strong statistical showing of discrimination merely by making an unsubstantiated assertion of error; defendant required to produce credible evidence that curing the alleged flaws would also cure the statistical disparity); Gomes v. Avco Corp., 816 F. Supp. 131 (D. Conn. 1993) (statistical evidence, though flawed, sufficient to establish prima facie case and up to jury to determine its weight).
(4) Wal-Mart's fourth incorrect assertion: the aggregation ofdata makes Dr. Barnow's analysis unusable.
Dr. Barnow's decision to analyze Wal-Mart's 1998-2001 hiring and its 2002-2004 hiring as units, rather than by individual years, is supported both factually and legally and the propriety of doing so is not an appropriate matter for summary judgment. Ellis v. Costco, 240 F.R.D. 627, 638 (N.D. Cal. 2007); McReynolds v. Sodexho Marriott Services, Inc., 349 F. Supp. 2d 1, 13 (D.D.C.2004). See also Paschal v. Flagstar Bank, 295 F.3d 565,584 (6th Cir. 2002) Gury properly accepted aggregated data).
Dr. Barnow explained that breaking down data into one year periods has less statistical power and it would not be appropriate in this case to disaggregate the data into one year periods. (Barnow Report at 4 and nA.) Barnow analyzed the 1998-2001 and 2002-2004 periods separately in order to analyze like periods together. 34 (Barnow Dep. at 294-295.) He aggregated
34 Based upon the Magistrate Judge's Recommended Determination limiting the scope of this suit (DE # 129), Wal-
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the data in this manner for three reasons: (1) the EEOC's lawsuit was filed in late 2001; (2) Wal-
Mart changed its application process in or about 2002; and (3) the male/female differential in hiring changed beginning 2002.35 (Id. at 288-93.) He indicated that his decision to aggregate
was supported by his past experience as well as authority in the field. (Barnow Dep. at 299-301,
303, Bamow Report at 4 and n.4.) Wal-Mart chose, however, to ignore Dr. Bamow's
explanation and instead erroneously contends that "Bamow offered no scientific or statistical
explanation for his decision to aggregate the data." (D.'s Memo at 23.)
"It is a generally accepted principle that aggregated statistical data may be used where it
is more probative than subdivided data." Paige v. State of Califomi a, 291 F.3d 1141 (9th Cir.
2002). "Such use is particularly appropriate where small sample size may distort the statistical
analysis and may render any findings not statistically probative. Id. 1148 (intemal citations
omitted). Sufficient commonality bodes in favor of aggregation. Id. "The plaintiff should not
be required to disaggregate the data into subgroups which are smaller than the groups which may
be presumed to have been similarly situated and affected by common policies." Eldredge v.
Carpenters 46 N. Cal. Counties Joint Apprenticeship and Training Comm., 833 F.2d 1334, 1340
n.8 (9th Cir. 1987)36 (quoting D. Baldus & 1. Cole, Statistical Proof of Discrimination § 7.0-7.2
(1980 & 1986 Supp.); See also, Kirkland v. New York State Dept. of Correctional Servs., 520
Mart provided 2005 applicant materials through only February 15,2005, an insufficient number for Barnow to analyze for similarity between 2005 and the 2002 through 2004 period. To the extent the EEOC's Objection (DE # 131) is granted, Dr. Barnow will review the entire year of2005 to determine whether aggregation of the 2005 data with the 2002-2004 data is appropriate. (See D.'s Memo at 23 which criticizes Barnow for not aggregating the 2005 data with the 2002 through 2004 data.) 35 See also Robin Rose Dep. at 29,59-63, Brian Elliott Dep. at 17 and Bielby Expert Report at 9, 15-16,32-34 concerning change in the hiring process.
36 The Court rejected Defendant's assertion that each year should be analyzed separately, following the Fourth
Circuit in Lilly v. Harris-Teeter Supermarket, 720 F.2d 326 (4th Cir. 1983). In footnote 17 of the Lilly decision, the court noted, "If possible, it is highly preferable to examine the statistical data for the time period in combined form, rather than year by year. Combined data is more likely to demonstrate the 'pattern or practice' of defendant's policies, whether discriminatory or not. Moreover, by increasing the absolute numbers in the data, chance will more readily be excluded as a cause of any disparities found."
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F.2d 420, 425 (2d Cir.1975) (focus of analysis depends on nature of defendant's employment practices) .
Wal-Mart suggests that there was no statistically significant disparity in hiring during 2002, 2003 or 2004 individually, but that Dr. Bamow combined the three years solely to achieve statistical significance. (D. 's Memo at 23-24.) Not only does Dr. Bamow deny this erroneous assertion (Bamow Dep. at 298-300,303), Wal-Mart's assertion must be rejected on two additional grounds. First, after Wal-Mart produced additional applicant packets, Dr. Bamow did find a statistically significant disparity in hiring for 2004 based on 186 hires with only 22 of them women. (Bamow Supp. Report Supp. Ex. Bll.) Second, it is evident that the lack ofa statistically significant disparity for the individual years of2002 and 2003 is due solely to the small number of hires during those two years. 3? During 2002, there were only 64 hires and only 2 were women. (Id.) In 2003, there were only 76 hires and only 7 were women. (Id.) Thus, out of 140 hires during 2002 and 2003, only 9 were women. During 2004, however, a total of 186 hires with 22 women produced a statistically significant result, showing the fallacy ofWalMart's assertions since the proportion of females hired during 2002 and 2003 was actually lower than the proportion in 2004. As one court noted, an "employer's attempt to demonstrate there was no statistical significant evidence of discrimination when data was broken down by city or year or both was unfair and obvious attempt to disaggregate data to point where it was difficult to demonstrate statistical significance." Capaci v. Katz and Besthoff, Inc., 711 F.2d. 647,654655 (5th Cir. 1983).
37 Wal-Mart incorrectly asserts that Barnow did not state that small sample size made aggregation appropriate. (D.'s Memo at 23.) In fact, during his deposition, Barnow discussed small sample size and the notion of statistical power, a concept related to sample size. (Barnow Dep. at 299.)
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(5) Wal-Mart'sfifth incorrect assertion: the inability to predict with certainty exactly which applicants will be hired makes the analysis unusable.
The goal of Dr. Barnow's regression analysis was to determine, after controlling for relevant factors, whether the gender based disparity in hiring at DC 6097 was unlikely due to chance. (Rebuttal Report at 2.) (emphasis added.) "The purpose of developing a model in the context of this case [was] to determine if there is a gender disparity in offer rates between men and women after controlling for relevant factors." (Id.) Hence, Dr. Barnow's model predicts exactly what it was intended to predict-the affect of gender on being hired at DC 6097. "The overall explanatory power of the statistical model is irrelevant to making inferences on the impact of gender upon receiving an offer." (footnotes omitted). (Id.) Wal-Mart's suggestion that Dr. Barnow's model should be thrown out because it cannot predict exactly who will be hired by Wal-Mart is baseless and demonstrates a misunderstanding of basic statistical principles. (D's Memo at 20-22.)
As discussed in Section III(E) above, Wal-Mart used virtually no standards in its entirely subjective hiring process and interviewers did not treat applicants in a uniform manner. Dr. Barnow's findings that some variables made a difference in one's chance of being hired and some did not (See EEOC's Statement of Material Facts "SoMF" at 12) is completely consistent with the abundant testimony concerning Wal-Mart's haphazard hiring process and Dr. Barnow himself opined that based upon the manager depositions and applications he reviewed in this case, that the lack of consistencyllack of strongly enforced rules by Wal-Mart could explain the inability to predict all variables (other than gender/male) making hire likely. (Barnow Rebutttal Report at 2.) Wal-Mart appears to make the absurd suggestion that employers such as itself who use virtually no hiring standards and entirely subjective decisionmaking processes should be
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exempt from discrimination lawsuits because the plaintiff cannot predict with certainty which applicants will be hired. 38
Wal-Mart's use of McCleskey v. Zant, 580 F. Supp. 338, 351 (N.D. Ga. 1984) does nothing to support its erroneous assertion that Dr. Bamow was required to create a model which predicts exactly which applicants will be hired when his goal was only to predict whether gender was a statistically significant factor in the hiring process at DC 6097. McCleskey was a death sentence appeal in which the court discussed regression analyses in general. Neither McCleskey nor any other case cited by Wal-Mart stands for the erroneous proposition that a plaintiff who shows a gender based disparity in hiring after controlling for relevant factors must also precisely predict which applicants will be hired. The plaintiff using statistical evidence to prove discrimination must only show protected class based statistical disparities, exactly what the EEOC (and Dr. Bamow) have done. Hazelwood School District, 433 U.S. at 307-08 (1977); Intemational Broth. Of Teamsters v. U.S., 431 U.S. 324 (1977).
(6) Wal-Mart's sixth incorrect assertion: because Dr. Barnow made corrections and revisions to his report, his analyses should be disregarded.
Wal-Mart contends that Dr. Barnow's highly significant statistical results should be discarded because Dr. Bamow made corrections and increased the reliability of his database39 and analyses. (D.'s Memo at 24.) The EEOC can make short work of this contention here. This is the identical argument made by Wal-Mart in its Bamow Daubert Motion and for which the EEOC provided extensive case law to the contrary. (See DE # 386 at 14-15.)
Contrary to Wal-Mart's suggestion, any and all changes to Dr. Bamow's database and or his analyses since 2007 have not changed his statistically significant results and have been due to
38 In fact, use of a subjective decisionmaking making process has been recognized as providing further evidence of discrimination. (See Section C below). 39 Wal-Mart incorrectly refers to the database as "an EEOC created database." (D.'s Memo at 25.)
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either: (1) Wal-Mart's late production of applicant and hires information40 or (2) in rebuttal to
Mr. Freeman's Responsive Expert Report.41 See Wal-Mart v. Gore Inc., 2009 WL 224908, * 4
O'l".D. Miss. Jan. 28, 2009) ("when a mistake is discovered and fixed it advances the cause of
justice."). Dr. Barnow does not anticipate further reporting unless: (1) Wal-Mart produces
additional delinquent applicant and/or hires information; (2) Wal-Mart's expert supplements his
opinion or (3) the District Judge rejects the Magistrate Judge's proposed limitation on the
temporal scope of this suit.
C. The EEOC's Evidence of Gender Stereotyping at DC 6097 Bolsters its Statistical Evidence and Precludes Summary Judgment.
The overwhelming evidence that Wal-Mart interviewers used subjective, decentralized
decision-making and employed stereotypes when deciding whether to pass an applicant through
the interview process or when making hiring decisions raises an inference of discrimination best
left for ajury to resolve. Evidence of "entirely subjective decisionmaking processes" is the kind
of convincing anecdotal evidence that coupled with strong statistical evidence can sustain a
pattern or practice case such as this one. See ~., McReynolds v. Sodexho, 349 S. Supp. 2d. 1,
20 (D.D.C. 2004); and Senter v. General Motors Corp. 532 F.2d 511,530 at n.57 (6th Cir. 1976)
("[o]ther courts have found that selection procedures too heavily dependent on subjective
evaluations violate Title VII.").
In McReynolds, a discriminatory promotion practices case, the plaintiffs bolstered their
40 Notably, Wal-Mart fails to mention its own delinquent production of applicant and hires related documentation which required multiple revisions by Dr. Barnow. Nor does it mention the poor quality of the documents it produced to the EEOC and its failure to produce summary and/or electronic documents for a number of years. See Mister v. Illinois Central Gulf Railway Co., 832 F.2d 1427, 1431 (7th CiT. 1987) ([t]he plaintiffs' expert used the best data available; that the data were not better is the ICG's fault, and we agree with the district court that the data at hand was good enough even though imperfect.). Wal-Mart's delinquent production is more fully addressed in the EEOC's Motion for Sanctions which is being filed contemporaneously with this Response. 41 As detailed in the EEOC's Response to Wal-Mart's Motion to Strike (DE # 373), Dr. Barnow's Rebuttal Report is entirely proper and the fact that it is harmful to Wal-Mart is not a valid ground for its exclusion. The EEOC firmly objects to Wal-Mart's reservation of the right to "re-file its dispositive motion" when the Court declines to strike Dr. Barnow's Rebuttal Report. (D.'s Memo at n.9.)
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statistical evidence with among other types of anecdotal evidence, "the testimony of numerous company employees" who attested to a subjective unstructured promotion process lacking any centralized guidance as well as corroborating testimony from Sodexho's Corporate Services Division Director. (Id. at 19.) The court deemed such "substantial testimony" and "mountain of evidence showing that Sodexho's decision-makers exercised unfettered discretion in determining whom to interview and what questions to ask" adequate evidence to overcome Sodexho's summary judgment motion. (Id. at 20.) See also, Payne v. Travenol Lab., Inc., 673 F.2d 798, 817 (5th Cir. 1982) ("hiring processes that rely heavily on subjective interviewing provide an opportunity for the intentional discrimination that lies at the heart of a disparate treatment case.").
Here, in addition to the Expert Report of Dr. Bielby, the EEOC has proffered its own mountain of evidence that Wal-Mart employed a highly subjective interview and hire process and provided little guidance to its interviewers on selection decisions. Butler v. Home Depot, 1997 U.S. Dist. Lexis 16296, at *24 (ND. Ca. 1997) (court denied motion for summary judgment where, in addition to statistical evidence, plaintiffs "presented sociological and anecdotal evidence" that included expert testimony on gender stereotyping, evidence that managers utilized stereotypes about women in hiring, and anecdotal testimony from woman who alleged "that they were denied employment on account of their gender or steered away from traditionally 'male' positions").
Bielby analyzed whether findings from social science research could offer an explanation for the gender-based hiring disparity for entry-level positions at DC 6097 during the relevant time period. (Bielby Report at 1.) After an extensive review ofrelevant material, Dr. Bielby opined that Wal-Mart's highly discretionary selection system with minimal oversight, coupled
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with an overwhelmingly male workforce and the physical nature of warehouse jobs, invites gender stereotyping and bias against female applicants. (Bielby Report at 17-27.) He also opined that Wal-Mart's EEO policies and practices and manager training were insufficient to minimize stereotyping and gender bias. (Id. at 27-32.) Dr. Bielby concluded that gender stereotyping offered a cogent explanation for the disparity in hiring between males and females at DC 6097 and that changes beginning in 2002, including changes in the hiring process and the filing of the EEOC's sex discrimination lawsuit resulted in a noticeable, but not complete, diminution in the gender-based hiring disparity. (Id. at 32-35 and Rebuttal Report at 30-36.)
Wal-Mart attempts to dodge the EEOC's evidentiary deluge of bullets by jumping behind the same lackluster attacks it made against Bielby in its Daubert motion to exclude Bielby's testimony in this matter. (D.'s Memo at 29-36.) In doing so, Wal-Mart merely rehashes those arguments. But, the EEOC has soundly demonstrated why those arguments are untenable. (See DE # 361, Section C(2).) In summary, Wal-Mart's contentions that Dr. Bielby's opinions are speculation, he did not test alternative theories or consider key information, and his theories are not based on knowledge of the subject matter or fact to do entitle Wal-Mart to summary judgment and their only probative value is with respect to the weight of this evidence. The jury remains entitled to hear this evidence and make its own decisions regarding what weight it believes should be apportioned to Dr. Bielby's testimony.42
It is most telling that the cases relied on by Wal-Mart entail situations where statistical support was non-existent or lacking. (See D.'s Memo at 32-36.) Wal-Mart does not cite to any authority granting summary judgment to a defendant in a Title VII pattern or practice case where a plaintiff had the significant statistical proof and formidable anecdotal subj ective, stereotype
42 As demonstrated in the Daubert context, each ofWal-Mart's Bielby-based challenges has been rejected squarely by other courts that have considered such arguments. (DE #361, at 17-20.)
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evidence present in this case. This is likely because none exist. In fact, the court in Sperling v.
Hoffmann-LaRoche, Inc., 924 F. Supp. 1346, 1381 (D.N.J. 1996), placed great emphasis on the
fact that plaintiffs only had evidence of a "decentralized, uncontrolled decisionmaking process..
. ." (emphasis added.) Other cases cited by Wal-Mart either have nothing to do with this type of case and/or the use of subjective decisionmaking and gender stereotype evidence43 or merely recite well-understood Title VII principles.44 The authority cited by Wal-Mart in no way
diminishes the impact ofthe EEOC's evidence that weighs against summary judgment.
The EEOC can further point to testimony from over twenty Wal-Mart supervisors and
managers who detailed that they received no training on how to conduct an interview and
objectively assess information solicited from applicants they interviewed (See SoMF at 13-14);
no guidelines for interviewing or exercising their discretion when making decisions to advance
or reject applicants they interviewed; (Id.); were given free reign to write down on interview
sheets whatever they wanted about interviewees (ld.); generally were free to conduct interviews
and make decisions any way they saw fit. (Id.)45
43 See M. Westlake Vinyls. Inc. v. Goodrick Corp., 518 F. Supp. 2d 918, 934 (W.D. Ky. 2007) (breach of contract case recounting universally understood summary judgment tenets), cited by Wal-Mart for the proposition that the EEOC has insufficient proof to overcome its summary judgment motion. (D.'s Memo at 32.) 44 See M., Silvera v. Orange County Sch. Bd., 244 F.3d 1253,1262 (11th Cir. 2001)(disparate treatment race case concerning insufficient evidence of pretext) cited by Wal-Mart for the proposition that "the only reasonable inference from Bielby's opinions - that any gender bias was not deliberate and intentional- directly rebuts the EEOC's burden to create an inference that Wal-Mart engaged in an intentional, deliberate, routine practice of gender discrimination. (D.'s Memo at 34.) Furthermore, Wal-Mart's repeated and illogical insistence that gender stereotype evidence has no place in disparate treatment cases has consistently been rejected by other courts entertaining the same arguments. See Tuli v. Brigham & Women's Hospital, Inc., 592 F. Supp. 2d 208, 214-15 (D. Mass. 2009) (court allowed gender stereotyping testimony); and EEOC v. Morgan Stanley, 324 F. Supp. 2d 451, 457-58 (S.D.N.Y. 2004) (same). See also, EEOC v. Joe's Stone Crab, Inc., 220 F. 3d 1263, 1284 (11th Cir. 2000) ("if restaurant deliberately and systematically excluded women from food server positions based on a sexual stereotype.... it could then be found liable under Title VII for intentional discrimination."). 45 The EEOC's evidence, likewise, shows that Wal-Mart's behavioral interview process implemented in 2002 did not entirely remedy the previous subjective deficiencies that allowed gender discrimination to permeate its hiring. The new process remained at the mercy of the subjective impressions of the interviewers. (Karr Dep. at 84-85). Wal-Mart still did not give interviewers any guidance concerning how to rate answers to questions given during behavioral interviewing (Parmon Dep. at 38-40), managers also did not know what kind ofa score was necessary for an applicant to be successfully passed on or hired (Parmon Dep. at 41-42) and Wal-Mart continued to select applicants for entry level warehouse positions without objectively assessing their strength and/or physical abilities.
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As a result, the process was completely subjective. Most telling, Wal-Mart's interviewers plainly acknowledged that "it's a subjective decision" (EEOC's So MF at 15); "it was a personal thing" (ld.); they just "just sort of eyeballed it " (Id.); or used their "own method" to determine when to pass an applicant along (ld.) Some interviewers assessed applicants by "good attitude (EEOC's So MF at 14); "gaps in employment" (Id.); whether they were "happy people" (Id.) motivated, self-driven, enthusiastic or eager (Id.); or "the way ...they looked at you and talked to you and acted" (EEOC's So MF, Id.); Some would look at an applicant's "physical characteristics" meaning whether they worked on the farm or played a lot of sports regardless of the lack objective strength assessment (EEOC's "SoMF"at 15.)
The EEOC's evidence concretely demonstrates how Wal-Mart's incredibly subjective interview and hire system allowed Wal-Mart interviewers to employ gender stereotypes when making their decisions. Managers conducting interviews just assumed that women did not want the job (EEOC's So MF at 15) or could not "cut it" to do the job (EEOC's So MF, Id.) And, young strong-looking men were the preferred ideal candidate. (EEOC's So MF, Id.) Jeff Akers, DC 6097's general manager told Tom Van Jura, an Operations Manager from January 2001 to February 2002, not to hire female order-fillers. (EEOC's So MF at 15-16.) In fact, Akers told him that "a lady is not going to be a good order filler" and yet another operations manager stated to Van Jura that they were looking for "young males who are fresh out of high school ...." (EEOC's So MF at 16.) As a result, Van Jura didn't recommend any female candidates to be hired as order fillers during his tenure interviewing candidates. (EEOC's So MF at 16.)
Other managers allowed stereotypes to infect their decision making in more subtle ways including: giving preference to males who indicated involvement in sports (EEOC's So MF at
(Karr Dep. at 81-86; Gulock Dep. at 89-90.)
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Id.) or perceived the ideal candidate as eight feet tall with ten-foot-Iong arms (EEOC's So MF at Id.) This subjective gender-stereotype driven interview process yielded a warehouse that was dominated by men. (EEOC's So MF at Id.) At no time did Wal-Mart take adequate steps to remedy the gender discrimination perpetuated by its subjective hiring process. Consequently, the EEOC's considerable subjective and stereotyping evidence coupled with the statistical evidence thwarts Wal-Mart's summary judgment motion and the Court should allow the EEOC's discrimination claims to be tried by a jury. See Stender v. Lucky Stores, Inc., 803 F.Supp. 259, 331 (N.D. Ca. 1992) ("the potential for discriminatory abuse inherent in the ambiguous and subjective practices employed by defendant in making placement, promotion and training decisions is sufficiently high to infer the intent necessary to establish a claim for disparate treatment."); Pitre v. Western Electric Company, Inc., 843 F.2d 1262, 1272 (lOth Cir. 1088) ("district court properly considered the company's reliance on subjective evaluation methods to be additional evidence of discrimination."); Howard v. Gutierrez, 571 F. Supp. 2d. 145, 161 (D.D.C. 2008) (court determined that anecdotal evidence, including evidence of subjective processes, together with statistical evidence was sufficient evidence to raise an inference of discrimination and overcome defendant's motion to dismiss).
D. The EEOC's Abundant Anecdotal Evidence Creates Genuine Issues of Material Fact that Preclude Summary Judgment.
The EEOC offers admissions by Wal-Mart managers and supervisors involved in the hiring process which indicate a pattern or practice of disparate treatment toward female applicants. And, "[a]ny direct evidence offered by the [EEOC] in response to a [Wal-Mart's summary judgment motion must be accepted as true." Muhammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004) (citing Adams v. Metiva, 31 F.3d 375,382 (6th Cir.1994)). Rejected female applicants testify they were specifically told by Wal-Mart employees, agents and/or supervisors
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that women were generally not wanted for warehouse positions at DC 6097, while some were
specifically told they would not be hired because of their gender. Others were ridiculed and
belittled. Even those that made it through one, two or three steps of the interview process ran
into insurmountable discrimination from Wal-Mart that precluded their hire. Additionally, both
female applicants and employees were subjected to sex based differential treatment. Such
evidence provides "texture" to the EEOC's statistics, Robinson v. Metro-North Commuter R. R.
Co., 267 F.3d 147, 168 (2d Cir. 2001), and easily overcomes Wal-Mart's motion for summary
judgment.
Direct anecdotal evidence of discriminatory practices, including Wal-Mart's undeniably
strong preference for male applicants, is found in the testimony of former managers. 46 Managers
relegated female applicants to "certain areas" within DC 6097 and males to others (EEOC's
SoMF at 17-18.) And others looked only for "big, strong, young guys." (EEOC's SoMF at 1917 B. Sizemore, a warehouse manager at DC 6097 from March 29, 1999, through October
25,2001, preferred young male applicants in "good shape," who were "stout" and "muscular,"
with no prior job experience because he thought they could do the work, especially order filling.
(EEOC's SoMF at 19.) Eugene Riley, who worked at DC 6097 from 1995 through 1998,
46 Direct evidence is "evidence that proves the existence ofa fact without requiring any inferences." Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004). Direct evidence requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions. Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003)(en banc). Direct evidence is highly probative of a pattern or practice of discrimination. See e.g., Holsey v. Armour & Co., 743 F.2d 199,214 (4th Cir. 1984)(stating testimony showing discriminatory statements by management related to customers' perceived racial preferences and method of recruitment provided "substantial basis" for pattern or practice finding); EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1285-87 (11 th Cir. 2000)(noting discriminatory admissions by owner and manages and stating, "[D]irect evidence of an intent to discriminate may be used to establish a pattern or practice claim.")(citations and internal quotations omitted). 47 Testimony from former managers involved in the interviewing and hiring process at DC 6097 are admissible as a party admissions under Federal Rule of Evidence 80 1(d)(2) because the comments were made by supervisors and managers on matters within the scope of their employment (Wal-Mart's hiring practices), and are being offered against Wal-Mart. Federal Rule of Evidence 801(d)(2) provides: [a] statement is not hearsay if ... [t]he statement is offered against the party and is ... (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.
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recalled how fellow coaches Jeffrey Henderson and Mike Maxey would not refer female
applicants on in the process, preferring young male applicants, because they believed a man
would do a better job at order filling than a woman (EEOC's SoMF at 19.) Another example of
admitted discriminatory conduct towards female applicants, Tom Van Jura, operations manager
at DC 6097 from January 2001 throug~ February 2002, who participated in all aspects of the
hiring process, including making final hiring decisions, explained that Wal-Mart wanted to "get a
young guy, fresh out of high school. Or if they have a young guy that's just gotten married,
something like that, has a responsibility, a mind that you can mold." (EEOC's SoMF, at 20.)
The EEOC also has compelling anecdotal direct evidence from numerous rejected female
applicants who were told by Wal-Mart employees, agents and/or supervisors that women were
generally not wanted for warehouse positions at DC 6097, or more specifically, that they would
not be hired because of their gender. (EEOC's SoMF at 17-20.)48
Adding to robust anecdotal evidence discussed above, the EEOC offers forceful
additional evidence that female employees and applicants were treated less favorably than male
48 Certainly not all of the applicants could identify by name or title the Wal-Mart hiring official to whom they spoke when interviewed, but that fact is of no moment. Whether a statement is offered under Fed. R. Evid. 801(d)(2)(D) as a statement concerning a matter within the scope of employment or agency or, in the alternative, under Fed. R. Evid. 801 (d)(2)(c) as a statement concerning subject matter about which the speaker is authorized to speak, the statement of an unidentified declarant is admissible as a party admission if the circumstances allow a reasonable to conclude that the statement concerned a matter within the scope of the declarant's employment or agency or a matter about which he was authorized to speak. See M., United States v. Portsmouth Paving Corp., 694 F.2d 12,321-22 (4th Cir. 1982); Pappas v. Middle Earth Condo. Ass'n, 936 F.2d 534, 537-38 (2nd Cir. 1992). The statements of Wal-Mart hiring officials revealed in applicants' testimony are admissible because, as the applicants' depositions indicate, the declarants were involved in screening and interviewing applicants, making it reasonable to conclude that Wal-Mart hiring practices were within the scope of the declarant's employment. Furthermore, discriminatory comments by managers, supervisors and hourly employees alike are admissible when not being offered to prove the truth of the matter asserted, but rather to demonstrate the company's discriminatory atmosphere. See M., Talley v. Bravo Pitino Rest., Ltd., 61 F.3d 1241, 1249 (6th Cir. 1995)(holding use of racial slurs by managers responsible for the decision regarding a plaintiffs termination constitutes direct evidence and are not hearsay because they were offered to demonstrate racial attitudes); EEOC v. Schott North America, Inc., 2009 US Dist LEXIS 8546 (M.D. PA Feb. 5, 2009)(noting "Courts have concluded that discriminatory remarks made about the suitability of particular employees which serve as circumstantial evidence ofa discriminatory atmosphere in an employment discrimination suit are not hearsay, since lithe statements were not offered to prove the truth of the matters asserted. ") (internal cites omitted).
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applicants and employees. For instance, female applicants were told that Wal-Mart feared they would distract the male workforce because of their appearance. (EEOC's SoMF at 20-22.) Female former employees shared additional testimony of sex harassment,49 flagrant disrespect and being treated less favorably than male employees, including being subjected to sexual comments and excluded from management meetings, training opportunities and outings because of gender. (EEOC's SoMF at 21-24.) Applicants testified to sex harassment and instances of disrespect toward women as well. (Id.)
Male interviewers expressed disbelief, sarcasm and laughter when female applicants asserted their ability to perform the duties of a warehouse position at DC 6097, while others asked irrelevant, personal questions and/or expressed a dismissive attitude while interviewing female applicants. (EEOC's SoMF at 24-27.) Furthermore, numerous class members testified to having inaccurate and/or untrue statements noted by interviewers on their interview comment sheets or applications. (EEOC's SoMF at 27.) In many instances, Wal-Mart managers noted reasons for exclusion of female applicants that contradicted their testimony concerning hiring for DC 6097. (EEOC's SoMF at 27-31.) Other interviewers excluded female applicants for inexplicable reasons such as "not fitting into the Wal-Mart culture" and not having relevant prior experience when none was required. (EEOC's SoMF at 30.) Still others noted comments such as "Not the best suitable for this job" even when they did not know what job they were interviewing the candidate for. (EEOC's SoMF at 31. )
Anecdotal evidence concerning treatment of those female applicants who actually received multiple interviews provides another shield against Wal-Mart's quest for summary
49 Evidence of sexual harassment is relevant to show the pattern or practice of gender discrimination present in a company's policies and practices. See Pitre, 843 F.2d, at 1270. ("Evidence of harassment, therefore, helps create an inference of discrimination in Western Electric's promotion and demotion practices. ") In the present case, female employees were forced to work in a sex-based hostile work environment created by male co-workers, supervisors and managers.
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judgment. In fact, despite knowing that such a practice was improper stereotyping, Wal-Mart managers, unchecked by any policy, placed well-qualified female applicants on "hold" while hiring numerous, often less qualified, male applicants. (EEOC's SoMF at 31-39.)50 In addition to being placed on hold, female applicants were also excluded from employment after passing two interviews, receiving satisfactory reference checks, but prior to receiving a third interview for no legitimate reason. (EEOC's SoMF at 39-40.)
Contrary to Wal-Mart's argument, this evidence is not a mere smattering of speculative or stray instances of alleged discrimination. (D.'s Memo at 36.) Rather, the testimony of close to 50 class members and numerous former employees shows that women were systemically discriminated against at the interview and hiring phase at DC 6097 from 1998 through 2004. This is more than enough for the EEOC to survive summary judgment and present its claims to a jury. See M., Teamsters, 431 U.S. at 337 (Court held that statistical evidence with individual testimony recounting over forty specific instances of discrimination was sufficient to carry the government's burden of proof); Chisholm v. United States Postal Service, 665 F.2d 482,495 (4th Cir. 1981) (twenty class members testified about individual discrimination to bolster the statistical evidence); EEOC v. Andersons Restaurant of Charlotte, 666 F. Supp. 821,842 (W.o. NC. 1987) (court found the testimony of six claimants was sufficient to support a pattern and practice case).
Although Wal-Mart tries to convince the Court that the EEOC must have some magical amount of anecdotal testimony to raise an inference of discrimination and overcome a summary judgment motion, Wal-Mart is mistaken. (D.'s Memo at 36-38.) The EEOC is not required to present any specific amount of testimony to support its pattern or practice claims. In EEOC v.
50 Wal-Mart's new hire logs do not reflect applicants who received offers and declined or whose offers were rescinded after drug testing.
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LA Weight Loss, 509 F. Supp. 2d 527,533 (D. Md. 2007), the court concluded "[T]he testimonial evidence alone demonstrates genuine issues of material fact regarding the EEOC's pattern-or-practice claim.") In that case, admissions by upper-level employees made within the scope of their employment indicated a practice of disparate treatment of male job applicants, and rejected male applicants were told by company officials they would not be hired because of their sex. Here, the EEOC has so much more. In this case, the EEOC has piles of anecdotal evidence from numerous class members, Wal-Mart managers, and other applicants, in addition to convincing statistical evidence. See EEOC v. 0 & G Spring and Wire Forms Specialty Co., 38 F.3d 872 (7th Cir. 1994), cert' denied, 513 U.S. 1198 (1995) (anecdotal evidence limited to a sampling offoUf disappointed applicants was relevant to demonstrating discriminatory conduct); Mozee v. American Commercial Marine Servo Co., 940 F.2d 1036 (7th Cir. 1991)(anecdotal evidence from five named plaintiffs sufficient, with statistical evidence, to support a pattern or practice claim), cert. denied, 506 U.S. 872 (1992); and Dukes V. Wal-Mart, 509 F.3d 1168 (9th Cir. 2007) (finding 120 declarations sufficient to represent class of 1.5 million in finding commonality sufficient to support class certification). Here, unequivocally, the EEOC has presented the requisite quantity and quality of direct and circumstantial evidence, as well as statistical disparities, in accord with Teamsters and its progeny, to overcome Wal-Mart's motion for summary judgment. Wal-Mart cannot escape the totality of the evidence against it.
E. Wal-Mart's Ignorance of Gender Argument Fails. Wal-Mart's assertion that its officials could not possibly know the gender of rejected applicants is untenable. (See D.'s Memo at 12-15.) While one's race or national origin might not be readily apparent from an employment application,51 gender in most cases is discernable.
51 See !:.!!f!!. cases cited by Wal-Mart such as Johnson v. Northwest Airlines, Inc., 53 F.3d 331, 1995 WL 242001, *3 (6th Cir. 1995); Jackson v. Whitehouse. 1993 WL 1624960, *6 (E.D. Mich. 1993); Robinson v. Adams, 847 F.2d
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A review of the class member list in this case creates a strong inference that Wal-Mart officials were able to recognize as female the large number of class members with common "female" names (See Williams Dec!. ~~ 6, 7). Moreover, Wal-Mart is unable to account for the disparate treatment of female applicants who came face to face with interviewers52 or for the disparate treatment of female applicants who spoke with Wal-Mart personnel when they submitted their applications (Malicoat Howe Dep. at 50-58, Shannon Bowling Dep. at 49, Karen Powell Dep. at 32-34.)
Wal-Mart's assertion that its interviewers would not recognize gender from names since Dr. Bamow had trouble doing so fares no better. (D.'s Memo at 14.) Dr. Bamow did not simply "eyeball" applications as the Wal-Mart interviewers/screeners did. Instead, he used a computerized method which first paired social security numbers with motor vehicle information and then compared the gender designation to a census gender program and raw applicant information as needed. (Bamow Report at 8, Barnow Rebuttal Report at n.7.) Illegible social security numbers resulted in incorrect gender designations which were ultimately corrected via further steps in the gender identification process. (Bamow Rebuttal Report at n.25.) Only a very small fraction of the class members had names that were actually gender ambiguous and/or atypical female names. (Williams Dec!. ~ 8.)
Wal-Mart has failed to present an iota of testimony supporting its tenuous position. At the very most, Wal-Mart's suggestion that its interviewers/screeners would not associate gender with applicant names is an issue of material fact for the jury. At the summary judgment stage, factual questions such as this are to be resolved in favor of the EEOC, not Wal-Mart. U.S. v.
1315,1316 (9th Cir. 1987); Martin v. Citibank. N.A" 762 F.2d 212, 217-18 (2d Cir. 1985); Frazier v. USF Holland. Inc., 2006 WL 2987737, *9 (E.D. Tenn. 2006). 52 Dr. 8arnow's analyses show gender based disparities at every stage of DC 6097's hiring process (8arnow Supp. Report Supp Ex. 88 ), including the pre-interview stage. This pattern is consistent with the EEOC's position that Wal-Mart interviewers, in most cases, were able to discern an applicant's gender from their employment application.
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Diebold, Inc., 369 U.S. 654, 655 (1962); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,255 (1986) (internal citations omitted).
F. The Scope of the EEOC's Suit is Proper. Wal-Mart misapprehends the nature of the EEOC's statutory authority to bring pattern or practice actions and misrepresents the permissible scope of the EEOC's lawsuit. (D.' s Memo at 9-12.) As explained more fully below: (1) the EEOC's lawsuit properly includes outside female applicants, as well as those requesting transfers to DC 6097; (2) the EEOC's lawsuit properly includes all entry level applicants at DC 6097; and (3) the temporal scope properly covers January 1, 1998, through the present. 1. The EEOC's lawsuit properly encompasses all hires, not just transfers. It is well established that neither the scope of the EEOC's investigation nor the scope of its reasonable cause determination is limited to the four comers of the charge. See EEOC v. General Electric Co., 532 F.2d 359,364 (4th Cir. 1979). The EEOC's authority under Title VII is not derivative of, or limited by, the rights, interests or limits applicable to the charging party or others for whom it seeks relief. "Any violations that the EEOC ascertains in the course of a reasonable investigation of the charging party's complaint are actionable." Id. at 331. As the General Electric Court explained: If the EEOC uncovers during that investigation facts which support a charge of another discrimination than that in the filed charge, it is neither obliged to cast a blind eye over such discrimination nor to sever those facts and discrimination so shown from the investigation in process andfile a Commissioner's charge thereon, thereby beginning again a repetitive investigation of the same facts already developed in the ongoing investigation... , Id. at 365 (emphasis added). Thus, the charge merely provides the EEOC with "a jurisdictional springboard" to investigate whether the employer is engaged in any discriminatory practices. EEOC v. Huttig Sash & Door Co., 511 F.2d 453,455 (5th Cir. 1975); see also Abeita v.
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TransAmerica Mailings, Inc., 159 F.3d 246,254 (6th Cir. 1998); Davis v. Sodexho, 157 F.3d
460,463 (6th Cir. 1998). As long as a timely charge puts the defendant on notice of the administrative investigation that can reasonably be expected to follow, the single filing rule permits recovery by class members including those whose circumstances were not within the four corners of the charge. 53 See Chisholm, 665 F.2d at 490-91.
Here, Janice Smith filed her charge of discrimination alleging Wal-Mart discriminated
against her based on her sex when it denied her an order filling position at DC 6097. (Ex. 3, Smith EEOC Charge.) Although Smith was a transfer applicant rather than an outside applicant, the EEOC neither limited its request for information nor did Wal-Mart constrain its document
production during the investigation to transfer applicants. (See~. EEOC's SoMF at p. 4.)
Based on its investigation, the EEOC found that Wal-Mart rejected female applicants, whether outside applicants or transfers because of their sex in violation of Title VII. (EEOC'S SoMF, at 4-5.) As required, the EEOC attempted in good faith to conciliate on behalf of Smith and the five outside applicant class members, but Wal-Mart summarily rejected the
Commission's invitation to conciliate. (Id.) Given that Wal-Mart's document production during the investigation was not limited to transfer applicants, and it was invited but declined to
conciliate as to all class members, both transfers and outside applicants, Wal-Mart cannot now
complain about the scope of the EEOC's lawsuit. See ~., Murray v. Board of Educ. of City of
53 Under the single filing rule, the original charge can support a subsequent lawsuit including class members whose circumstances were not within the four corners of the charge as long as the administrative investigation could reasonably be expected to include those claims. See Chisholm, 665 F.2d at 491. It was reasonable here to expect the EEOC would not turn a blind eye to Janice Smith's allegation that Wal-Mart discriminates against women and instead investigate the suggestion of a pattern or practice implicit in her allegation. See General Electric, 532 F.2d at 364; EEOC v. Dial Corp., 156 F. Supp. 2d 926, 936 & n.6 (N.D. Ill. 2001) (relying on Fourth Circuit's reasoning in General Electric to hold that individual sexual harassment charge supports EEOC suit for class of sexual harassment victims). In other words, Janice Smith's charge was sufficient to place a reasonable employer on notice of the likely scope of any subsequent litigation on the basis of gender and hiring, and all claimants in this case can piggyback on her timely-filed charge and are presumptively entitled to relief upon proof of a pattern or practice, per Teamsters, 431 U.S. at 362, including back pay dating two years prior to Smith's charge. See Chisholm, 665 F.2d at 490.
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New York, 984 F.Supp. 169, 177 (S.D.N.Y. 1997) (noting that "primary purpose of the charge is to alert the EEOC to the discrimination of which the charging party complains;" court found that plaintiffs initial discriminatory transfer allegations contained in her charge were sufficiently related to a discriminatory failure to promote claim made in her lawsuit because they arose "out of the same nucleus of operative fact").
2. The EEOC's Suit Properly Includes all Entry Level Positions at DC 6097. Wal-Mart's assertion that the EEOC's suit should be limited to the entry level order filler position (D.'s Memo at 11-12) is not only legally incorrect, but as discussed below, a difference without distinction and a practical decision which is not prejudicial to Wal-Mart. Just as the EEOC investigated and attempted conciliation on behalf of outside applicants, the EEOC attempted to conciliate on behalf of applicants who sought entry level positions other than order filler. (EEOC's SoMF at 4-5.) Wal-Mart's assertion that the EEOC's suit should be limited to the order filler position ignores several practical realities. First, Wal-Mart managers, counsel and experts have consistently asserted throughout this litigation that nearly all or nearly all entry level positions filled at DC 6097 between 1998 and 2004 were for the order filler position. (See M., D.'s Memo at 4, DE # 346 at 2, DE # 361 at 9, Giles Dep. I at 33-37, 68, Rose Dep. at 50, Earls Dep. at 141, J. Baker Dep. at 54-5, Gulock Dep. at 48-49, Combs Expert Report at 6,54 Freeman Expert Report at 1.) Wal-Mart's assertion ofa prejudicial "expansion" is at odds with its previous representations. To the extent there is any difference between the claims of discriminatory hiring in order filling versus all entry level positions, this difference is not sufficiently cognizable to push the latter beyond the scope of this lawsuit. See EEOC v. Newton Inn Assoc., Inc., 647 F.Supp. 957, 961 (E.D. Va. 1986) (Where the difference in claims is
54 Cited pages of the Combs Expert Report are attached as Exhibit 125.
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minimal, the ultimate complaint may still logically flow from the substance of the initial administrative charge and as such is properly before a court).
Wal-Mart ignores a second significant practical reality. The EEOC attempted conciliation on behalf of class members who sought jobs other than the order filler position. (EEOC SoMF at 5.) Although Wal-Mart had a full opportunity to conciliate on behalf of nonorder filler applicants, it declined to do so. (Id.) Thus, Wal-Mart was not deprived of notice or the opportunity to conciliate as it contends. See EEOC v. Gardner Mgmt. Group, LLC., 2007 WL 1672820, at *2 (W.o. Ok. 2007) (in assessing whether the Commission has properly brought claims that were not explicitly articulated in the charge, the key determination is whether or not the claim was contemplated in the conciliation process. "If they were included then they may be presented to the jury regardless of their omission from the determination letters"). See also, EEOC v. Reichold Chemicals, Inc., 700 F. Supp. 524, 527 (ND. Fla. 1988) (If the EEOC has investigated and attempted to conciliate a claim, "it has fulfilled its critical functions of investigation and conciliation, and has provided the employer with a chance to remedy the problem without litigation" and may properly bring that claim in a subsequent lawsuit).
Finally, a third practical reason for including entry level positions beyond the order filler position is a record showing that Wal-Mart managers treated applications similarly, regardless of position sought, making it impossible to distinguish between "order filler" applicants and applicants for jobs other than order filler. (EEOC's SoMF at 5-6.) When hiring officials conducted interviews, they usually did not know what position they were interviewing for. (Id.) All applicants/transfers were interviewed using the same interview forms and that regardless of the position applied for, applicants were interviewed for warehouse work, most commonly the order filler position. (Id.) This is consistent with Wal-Mart's non-differentiated treatment of
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applicants during the EEOC investigation when it produced applicant packets, regardless ofjob applied for. Hence, there is no question that Wal-Mart recognized the lack of a clear distinction between order filler applicants and applicants for other positions and expected that the EEOC would treat them similarly.
One court's treatment of such artificial distinctions rings true in this case. In EEOC v. Temple Steel Co., 723 F.Supp. 1250 (N.D. Ill. 1989), the court determined that the Commission was not limited to the initial claim that a company discriminated against employees seeking rehire and in fact could bring a lawsuit including broader claims of discriminatory recruitment and hiring practices. (Id. at 1251-1253.) It found such because the larter claims "reasonably arose out of the investigation of [the] original claim ....", "decisions to hire new employees or to rehire former employees are not so divorced from each other as to constitute distinct and unrelated employment practices ...." and [t]he unlawful discrimination that might infect one decision cannot but accompany the other." (Id.) Moreover, the Court "decline[d] [the employer's] invitation to compartmentalize employment decisions in a way that would seriously impair the EEOC's power to investigate fully a claim challenging a factually-specific hiring or rehiring decision that implicates more generally the employer's overall practice of selecting persons for employment." (Id.) Likewise this Court should reject Wal-Mart's proposed compartmentalization of its employment processes and decisions.
Not only is the scope of the EEOC's lawsuit a reasonable legally proper practical decision, as discussed above, Wal-Mart's claimed prejudice is also illusory. Dr. Bamow credited Wal-Mart with making offers to 63 female applicants between 1998 and 2004. (Bamow Supp. Report Supp. Ex. B2.) However, because Wal-Mart steered females away from the order filler position at least a third of these offers were for positions other than the order filler position. (See
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examples of female non order filler offer coversheets designated as Exhibit 134.) Therefore, Wal-Mart's liability would likely increase rather than decrease if this suit was limited to the order filler position as Wal-Mart suggests. Thus, the likelihood that Wal-Mart is prejudiced at all by the EEOC's claim in this lawsuit is specious at best. See M., EEOC v. Brookhaven Bank & Trust, 614 F.2d 1022, 1025 (5th Cir. 1980) ("In determining whether the EEOC has properly added new charges in the complaint filed with the court, two countervailing policies must be considered. The first is the policy to expedite the judicial process. To limit the EEOC to the precise charge filed would serve no purpose except to add greater delay and expense to the enforcement proceedings. The second is the policy that employers should have the opportunity to settle with the EEOC and all aggrieved parties before court action is initiated. If the employer has notice of the charge and has been offered an opportunity to remedy the problem without litigation, it should not be allowed to avoid enforcement of the law because the original charge filed with the EEOC by the aggrieved party is slightly different from the complaint filed in court by the EEOC."); and EEOC v. Cone Solvents, Inc., 2006 WL 1083406, at *7-9 (MD. Tenn. 2006) (court rejected employer's failure to conciliate argument and found that the Commission's broader complaint did not "expose the Defendant to much greater liability than had been anticipated by the conciliation process").
3. The temporal scope ofthe EEOC's suit is proper. While Wal-Mart asserts that the temporal scope of this lawsuit should be limited to April 1, 1998 through February 15, 2005.55 (D's SJ Memo at n. 2; DE # 119), no limitation has been placed on the January 1, 1998, commencement date nor has the EEOC ever agreed to such a
55 Furthermore, while the Magistrate Judge denied discovery post February 15, 2005, the EEOC's Objection to this Recommendation and extensive briefing on the issue is still pending. See DE # 129 and 131.
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limitation. 56 (See DE # 131 at n.l.) Just as the EEOC's suit properly includes all outside entry level applicants, its temporal scope is proper. As discussed below, due to the continuing and ongoing nature of Wal-Mart's discriminatory practices, the EEOC's suit appropriately covers harm from January 1, 1998, through the present.
The basis of this lawsuit is not individual acts of disparate treatment, but rather disparate treatment stemming from an overarching discriminatory pattern or practice by many decision makers over an extended period of time. In such instances, the courts do not employ a 300-day statute of limitations to limit the temporal scope of the claim as Wal-Mart suggests. (D.'s Memo at 6, n.2.) See EEOC v. Mitsubishi Motor Mfg. of America, Inc., 990 F. Supp. 1059,1084 (C.D. Ill. 1998) (an EEOC suit alleging a pattern or practice of discrimination "involves a continuing violation" that is "not amenable to a timeliness determination."); accord EEOC v. Scolari Warehouse Markets, Inc., 488 F. Supp. 2d 1117, 1136 (D. Nev. 2007).57 This is so because "it is crucial that the [EEOC]' s ability to investigate charges of systematic discrimination not be impaired." Id. (quoting EEOC v. Shell Oil, 466 U.S. 54, 69(1984)). In fact, some courts have gone so far as to completely eliminate any limitations period for pattern or practice claims. '" [T]he applicant of a limitations period in a [pattern or practice] action does not make intuitive or legal sense,' as an EEOC charge alleging a pattern or practice of discrimination 'involves a continuing violation' that is 'not amenable to a timeliness determination." EEOC v. LA Weight Loss, 509 F. Supp. 2d 527, 535 (D. Maryland 2007) (internal quotations omitted). As long as a
56 As further proof that the EEOC has not agreed to the temporal limitations Wal-Mart seeks, Dr. Barnow's Report, Rebuttal Report and Supplemental Report all compute shortfall beginning at January I, 1998. 57 The Supreme Court decision in National Railway Passenger Corp. v. Morgan, 536 U.S. 101 (2002) did not alter the existing law on the application of the continuing violations theory to pattern or practice cases. As the Court specifically noted, "We have no occasion here to consider the timely filing question with respect to 'pattern or practice' claims... " ld. at liS, n.9. Moreover, Morgan did not implicate the category of continuing violations "involving long-standing and demonstrable policies of discrimination," such as the one at issue here. Reeb v. Ohio Dept. of Rehab. and Correction Belmont Correctional Inst., 221 F.R.D. 464,471 (S.D. Ohio 2004) (citing Sharpe v. Cureton, 319 F.3d 259, 268 (6th Cir. 2003).
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timely charge puts the defendant on notice of the administrative investigation that can reasonably be expected to follow, the single filing rule permits recovery by class members who did not file timely charges including those whose circumstances were not within the four comers of the charge.58 See Chisholm, 665 F.2d at 490-91 (4th Cir. 1981).
Since it began hiring in January 1998, Wal-Mart has continually engaged in a pattern or practice of discriminatory hiring at DC 6097, The evidence obtained in the administrative investigative stage, as well as through discovery, illuminates the ongoing nature ofWal-Mart's discriminatory hiring practices. Based on the continuing violation theory and the single filing rule, this lawsuit may properly encompass hiring beginning on January 1, 1998, which was after the discriminatory practices began, and continue through the present, as these discriminatory practices are ongoing.
v. CONCLUSION.
Wal-Mart's arguments in support of its Motion for Summary Judgment are contrary to law and the overwhelming evidence in this case. As discussed above, there are numerous genuine issues of fact for trial. Accordingly, the EEOC respectfully requests that the Court deny Wal-Mart's Motion.
58 The only limitation on recovery is contained in Title VII §706(g), which precludes recovery of class members' backpay (but not other relief) which accrued more than two years prior to the date of the charge. See Chisholm, 665 F.2d. at 490. Given that the charge-filing period in Title VII is 180 days, or 300 days at most, see 42 V.S.c. §2000e5(e)(l), the clear implication of the language is that the charge-filing period does not define the period within which harm must have occurred for purposes of liability. See Morgan, 536 U.S. at 119 ("If Congress intended to limit liability to conduct occurring in the period within which the party must file a charge, it seems unlikely that Congress would have allowed recovery for two years of backpay.").
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Respectfully submitted, LAURIE A. YOUNG, Regional Attorney MICHELLE EISELE, Supervisory Trial Attorney
n1;...9~ Nancy Dean Edmonds Senior Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Indianapolis District Office 101 W. Ohio St., Suite 1900 Indianapolis, IN 46204 (317) 226-7229 FAX: (317) 226-5571 nancy.edmonds@eeoc.gov
74

 
 Case 6:01-cv-00339-KKC Document 445 Filed 11/16/2009 Page 1 of 36

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PLAINTIFF v. WAL-MART STORES, INC.
DEFENDANT

) ) ) ) ) ) CASE NO. 01-339 ) ) ) )

---------------,)

WAL-MART'S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

To survive summary judgment, the EEOC must prove each element of its prima

facie case and demonstrate that there is a genuine issue for trial. It has not done so. The

EEOC's Response instead concedes numerous holes in the EEOC's proof. As a result, the

EEOC improperly attempts to shift its burden of proof to Wal-Mart. At this stage,

however, it is the EEOC's "higher burden" to mount affirmative proof to show that

Wal-Mart's "standard operating procedure" was intentionally to discriminate against

female job applicants; it is not Wal-Mart's burden to prove that discrimination did not

occur. The EECX::: relies on insufficient statistics, on Wal-Mart's subjective but

gender-neutral hiring process, and on gender-neutral, speculative and inadmissible

anecdotal testimony. Under well-established precedent, this proof is insufficient to raise

Case 6:01-cv-00339-KKC Document 445 Filed 11/16/2009 Page 2 of 36

an inference of an intentional pattern of gender discrimination. Wal-Mart's Motion for

Summary Judgment should be granted.

ARGUMENT AND AUTHORITIES

I.

EEOC's Claims Exceed the Scope of Its Investigation and Deprive the Court

of Subject Matter Jurisdiction.

The EEOC argues that Title VII precedent allows it unfettered discretion to assert

any type of discrimination on behalf of any class member if any level of administrative

investigation took place, as if the charge or reasonable cause determinations are merely

bothersome guidelines or unwarranted restrictions on the agency. Relying on a "single

filing rule," unreferenced in any case cited in its Response, the EEOC claims that the

"rule" allows "recovery by class members including those whose circumstances were not

within the four corners of the charge." (Response at 67). Chisholm v. United States Postal

Serv., 665 F.2d 482 (4th Cir. 1981), does not support the EEOC's position. That class action

race discrimination case was initiated by a class of African-Americans subject to the class

certification requirements of Fed. R. Civ. P. 23. The protection inherent in the class

certification process was critical to the Court's analysis in rejecting the Postal Service's

argument that the claims in the suit were too broad. ld. at 491. In this case, however, the

EEOC's claim is not subject to Rule 23 scrutiny or protections. As a result, Chisholm merely

highlights the Significance of the four corners of the charge and its own Reasonable Cause

Determination. These two documents form the parameters of the unique animal which is

an EEOC lawsuit under Title VII § 706. Otherwise, the statutory limitation to claims

"reasonably related" to an investigation of the charge would be a meaningless standard.

2

Case 6:01-cv-00339-KKC Document 445 Filed 11/16/2009 Page 3 of 36
The EEOC also claims that Wal-Mart makes an "artificial distinction" by arguing
that the class must be limited to applicants for the orderfiller position. (Response at 69-70). Relying on EEOC v. Temple Steel Co., 723 F. Supp. 1250 (N.D. Ill. 1989), the EEOC asserts
that broader claims of discrimination in recruiting and hiring were proper as they
reasonably arose from the administrative investigation into the Charge. (Response at 70).
But, in EEOC v. Temple Steel, the court expressly recognized the inherent notice
requirements contemplated by the investigation and the Reasonable Cause Determination.
In fact, the opinion notes:
[T]he original charge is sufficient to support action by the EEOC as well as a civil suit under the Act for any discrimination stated in the charge itself or developed in the course of a reasonable investigation of that charge, provided such discrimination was included in the reasonable cause determination of the EEOC and was followed by compliance with the conciliation procedures fixed in the Act.
723 F. Supp. at 1252 (emphasis added). Review of the detailed Reasonable Cause
Determinations in the cited case, as opposed to the cursory Determination in this case,
demonstrates the significance of the statutory requirements to establish subject matter
jurisdiction. In Temple Steel Co., the Reasonable Cause Determination stated,
[l]ike and related to the issues raised in the charge, and growing out of the investigation of them ... indicates that there is reasonable cause to believe that Respondent has violated Title VII by engaging in hiring and recruiting policies and practices which exclude blacks as a class from factory positions. The evidence discloses gross disparities between black representations in Respondent's workforce and the number of qualified blacks available in Respondent's labor market.
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723 F. Supp. at 1251. In contrast, the Reasonable Cause Determination in this case says only that Janice Smith"alleges she was denied a transfer because of her sex" and"there is evidence that females as a class were not hired as Orderfillers because of their sex...." (See Ex. 4 to Memo. in Support of MSJ). The EEOC's overreaching expansion of the class and the claims is not supported by its administrative investigation of the Charge, its findings and conciliation following that investigation, or the EEOC's own jurisprudence. See, e.g., EEOC v. GMRI, Inc., 106 FEP Cases 1668 (N.D. Ohio 2009) (dismissing retaliation claim when the EEOC did not make a Reasonable Cause Determination on the claim). At its worst, there is no class at all but for Janice Smith and the five other individuals for whom the EEOC sought conciliation. (See Conciliation Agreement, attached to Response as Ex. 128). At its best, there is a class only of female applicants who sought to transfer or applied for the orderfiller position. II. EEOC Has No Proof of Gender Discrimination for the Vast Majority of the Class
Members. The EEOC points to no evidence, disputed or otherwise, that Wal-Mart knew the gender of between 71 % and 82% of the class members at the time it rejected them for hire at the pre-screening stage. (Response at 64-66). As set forth in Wal-Mart's Memorandum, knowledge is an essential element of a prima facie case of intentional discrimination, and the EEOC's failure to offer any admissible evidence to establish this element of its prima facie case is fatal to its claim. (See Memo. in Support of MSJ at 12-13 and cases cited therein).
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In the absence of any proof of knowledge, the EEOC asks the Court to assume and speculate that Wal-Mart must have known each applicant's gender because "gender in most cases is discernable." (Response at 64). Assumptions and speculation, however, will not defeat a properly pled motion for summary judgment. See Lewis v. Philip Morris Inc., 355 F.3d 515, 533 (6th Cir. 2004) ("In order to survive a motion for summary judgment, the non-moving party must be able to show 'sufficient probative evidence [that] would permit a finding in [his] favor on more than mere speculation, conjecture, or fantasy."); Noble v. Brinker Int'l, Inc., 391 F.3d 715, 724 (6th Cir. 2004) ("Although [the plaintiff] is certainly entitled to his opinion, mere speculation cannot satisfy his burden of proving that [the defendant] discharged him on account of his race."); Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) ("Speculation does not create a genuine issue of fact; instead, it creates a false issue, the demolition of which is a primary goal of summary judgment.") (citation omitted).
The EEOC chose not to depose either of the two identified Wal-Mart Personnel Coordinators (both of whom are women) who determined, based on the paper application alone, whether an applicant would progress to an interview. Consequently, the EEOC presents no proof, disputed or otherwise, regarding what the Personnel Coordinators looked at or reviewed, whether they examined applicants' names, whether they knew or considered the class members' names as "common female names," or whether gender played any role in their pre-screening decisions. Instead, the EEOC resorts to an affidavit from an EEOC staff member who reviewed EEOC expert Barnow's class list and deems the list to include "common 'female' names" like Angela, Melissa, and Tammy. (Response
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Ex. 137, Response at 65; see 10 n.19). This self-serving, inadmissible EEOC-generated affidavit demonstrates the absence of proof on this key element of the EEOC's prima fade case.
As essentially conceded in its Response, the EEOC has also failed to develop any statistical proof that male and female applicants were treated differently at the prescreening stage. Its expert's statistical analysis did not examine or compare via a regression analysis the treatment of females versus males at the pre-screening stage. (Barnow 3/1/07 Rep. at 19-20, attached at Tab 1).
The EEOC argues that whether Wal-Mart knew an applicant's gender at the prescreening stage is a "factual question" to be resolved in the EEOC's favor at the summary judgment stage. (Response at 65). Absent admissible evidence creating a factual dispute
however, the EEOC's mere allegations are entitled to no weight. See, e.g., Celotex Corp. v. Catrett, 477 U.s. 317, 323 (1986) ("there can be 'no genuine issue as to any material fact,'
since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders other facts immaterial."); State Mut. Life Assur. Co. of America v. Deer Creek Park, 612 F.2d 259, 268 (6th Cir. 1979) (Plaintiff "could not rely solely upon its bare allegations in the pleadings, but was obliged to come forth with sufficient material evidence to raise a material issue of fact.").
Finally, recognizing that it lacks the necessary proof for its claim, the EEOC attempts to avoid summary judgment by shifting the burden to Wal-Mart to prove that it did not intentionally discriminate against female applicants at the initial hiring stage. (Response at 65). It is the EEOC, however, not Wal-Mart, that "must present affirmative
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evidence in order to defeat a properly supported motion for summary judgment." Jackson v. Whitelwuse, 1993 WL 1624960, *3 (E.D. Mich. 1993). It is the EEOC's burden, not WalMart's, to establish each element of its prima facie case of a pattern or practice of intentional hiring discrimination against females at DC 6097. 1 Because the EEOC fails to do so, WalMart is entitled to summary judgment. III. EEOC Cannot Prove a Prima Facie Case of Systematic, Intentional Gender
Discrimination. The EEOC's own proof negates its prima facie case and establishes Wal-Mart's subjective employment decisions, which cannot form the basis of a pattern or practice disparate treatment case. Int'l Bhd. of Teamsters v. United States, 431 U.s. 334, 336 (1977) (plaintiff must prove that "discrimination was the company's standard operating procedure the regular rather than the unusual practice."). Outlining its proof in detail, the EEOC attacks Wal-Mart for "not treat[ing] applicants in a uniform manner," its "haphazard hiring process," its "lack of consistency" and for " us[ing] virtually no hiring standards," as well as for lack of uniformity in how Wal-Mart's 130 interviewers conducted applicants' interviews. (Response at 52, see also, pp. 13-14). As compared to an individual disparate treatment case, here the EEOC has a much "higher burden" to establish that Wal-Mart had a "specific intent to discriminate against an entire group" on a pervasive, systematic, and standardized basis. See EEOC v. Jordan Graphics, Inc., 769 F. Supp. 1357, 1382 (W.D. N.C. 1991); Int'l Bhd. of Teamsters,
1 The lack of proof of knowledge for as many as 82% of the class members precludes an inference of a pattern of discrimination to the entire class, but, at a minimum, Wal-Mart is entitled to summary judgment as to the EEOC's claims on behalf of class members who were rejected at the pre-screening stage.
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431 U.S. at 336, 360. Subjective and "inconsistent" selection processes, by definition, cannot establish a pattern or practice of intentional discrimination. See EEOC v. McDonnell Douglas Corp., 17 F. Supp. 2d 1048, 1054-1055 (B.D. Mo. 1998) (granting summary judgment to employer in pattern or practice age discrimination case, in part because "the decentralized and subjective nature of the decision making process undermines the claim that age discrimination was [the employer's] 'standard operating procedure."'). See also Sperling v. Hoffman-La Roche, Inc., 924 F. Supp. 1346, 1363 (D. N.J. 1993) (" ... a decision by a company to give managerial discretion to make employment decisions, and the subsequent exercise of that discretion by some managers in a discriminatory manner, is not tantamount to a decision by a company to pursue a systematic, companywide policy of intentional discrimination, i.e., a pattern or practice of discrimination."). Wal-Mart's subjective decision-making with "virtually no hiring standards" precludes the EEOC's burden to prove an intentional, uniform, systematic "standard operating procedure" of discrimination.
While vigorously arguing that Wal-Mart's hiring process was subjective, the EEOC offers no proof that Wal-Mart adopted its employment policies and practices with the intent that subjective decisions would result in gender discrimination. This absence of proof is fatal to the EEOC's case. In Abram v. United Parcel Service ofAmerica, Inc., 200 F.R.D. 424 (E.D. Wis. 2001), the plaintiff class alleged that UPS engaged in racial discrimination in determining supervisor pay by instituting "higWy subjective performance rating and compensation systems" which resulted in lower pay for African-Americans. 200 F.R.D. at 425. Denying the plaintiffs' motion for class
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certification, the court noted that even if these subjective policies allowed local managers to discriminate, that discrimination would be driven by the biases of individual managers, not by UPS. ld. at 430. Such discrimination would be "one step removed" from UPS's decision to implement the nationwide subjective policies. ld. Thus, there was insufficient evidence to hold UPS liable for the alleged discriminatory acts of individual managers.
By the same token, the EEOC's disagreement with Wal-Mart's hiring criteria cannot meet its burden of proof of a routine pattern of discrimination. The EEOC criticizes Wal-Mart's interviewers for considering whether applicants had employment gaps, showed a"good attitude," or were "motivated, self-driven, enthusiastic or eager." (Response at 58). These criteria, whether good or bad, do not evidence intent to discriminate based on an applicant's gender. Moreover, the Court should not act as a '"super personnel department,' overseeing and second guessing employers' business decisions." Bender v. Hecht's Dep't Stores, 455 F.3d 612,627 (6th Cir. 2006); Denney v. City ofAlbany, 247 F.3d 1172, 1186 n.8 (11th Cir. 2001) (noting that it is not the court's role to "decide the wisdom" of an employer's choice to focus on subjective criteria, as long as that choice is not discriminatory). The ultimate issue is whether Wal-Mart adopted its hiring policies in order to intentionally discriminate against women, not whether the EEOC believes they are the best, or even good, policies. Bender, 455 F.3d at 626.
Wal-Mart readily admits that some components of its hiring process rely upon the judgment of its manager/interviewers. As EEOC expert witness William Bielby admitted, Wal-Mart's inherently subjective criteria, such as enthusiasm, "good attitude"
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and; team work, are valid criteria for making employment decisions. (Bielby Dep. at 172-174, attached at Tab 2). Title VII was intended to combat discrimination, not subjective decision-making:
It is inconceivable that Congress intended anti-discrimination statutes to deprive an employer of the ability to rely on important criteria in its employment decisions merely because those criteria are only capable of subjective evaluation.... Subjective reasons can be just as valid as objective reasons.... Denney, 247 F.3d at 1186 (quoting Chapman v. A.I. Transport, 229 F.3d 1012, 1033-1034 (11th Cir. 2000)). See also, Serrano v. Cintas Corp., 2008 WL 4539339, *12 (E.D. Mich. 2008) (citing Grano v. Dep't of Dev. of the CihJ of Columbus, 699 F.2d 836, 837 (6th Cir. 1983) adopting the reasoning in Denney). "Given that employers must have some flexibility in making decisions, it is incumbent upon Plaintiff to submit some evidence that [the employer's] use of subjective criteria was motivated by an intent to unlawfully discriminate." Daniels v. Square D Co., 2006 WL 3761924, *6 (W.D. Tenn. 2006); see also Grano, 699 F.2d at 837 ("Subjective employment decisions, however, are not illegal per se."). In order to overcome summary judgment, the EEOC must come forward with evidence that Wal-Mart adopted its subjective hiring criteria with "specific intent to discriminate against an entire group," not just that it employed subjective criteria. Serrano, 2008 WL 4539339 at *17. In fact, the EEOC's proof of the lack of a uniform, consistent process negates its claim of a deliberate standard operating procedure of gender discrimination.
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IV. EEOC's Statistical Evidence Does Not Support a Prima Facie Case of Gender Discrimination. Even if the EEOC could present proof of knowledge of protected class and of
intent to discriminate, the EEOC must at the outset present accurate, reliable and relevant statistical evidence to establish its prima facie case. See EEOC v. American Airlines, Inc., 48 F.3d 164, 172-173 (5th Cir. 1995); see also Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 158-159 (2nd Cir. 2001). Second, that evidence must show a significant statistical disparity between treatment of otherwise similarly situated male applicants and female applicants. Morgan v. United Parcel Service of America, Inc., 380 F.3d 459, 463-464 (8th Cir. 2004); EEOC v. United Ass'n ofJourneymen and Apprentices of the Plumbing and Pipefitting Indus., Local 120, 9 F. Supp. 2d 836, 844 (N.D. Ohio 1998). Third, the statistical proof must eliminate nondiscriminatory explanations for the disparity. Latosky v. Morrison-Knudsen Corp., 103 F.3d 129, 1996 WL 708346, *3 (6th Cir. 1996). If the statistical evidence does not do all three things, it is not sufficient to create an inference of illegal discrimination. See Morgan, 380 F.3d at 463-464. These failures are not just matters for the jury to weigh, as the EEOC asserts. (Response at 42). Instead, they are critical to the EEOC's ability to withstand summary judgment; courts routinely dismiss claims because of insufficient statistical proof. See EEOC v. Jordan Graphics, 769 F. Supp. 1357 at 1382; EEOC v. McDonnell Douglas Corp., 191 F.3d 948 (8th Cir. 1999); EEOC v. American Airlines, 48 F.3d at 172-173.
Conceding the many deficiencies in Barnow's proof, the EEOC asserts that they are not enough to render Barnow's statistical evidence "unusable." Nevertheless, 1)
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Barnow's proof is based on erroneous and/or missing data; 2) Barnow's proof does not show a legitimate statistically significant disparity in male-female job offer rates; and 3) Barnow's proof does not eliminate non-discriminatory explanations for any disparity. The EEOC's statistical proof is thus insufficient to raise any inference of a pattern of gender discrimination to meet its prima facie case.
A. EEOC Cannot Present Reliable Statistical Evidence. 1. Barnow Agrees That He Ignored Key Variables That Could Provide Non-Discriminatory Explanations for Hiring Decisions.
Recognizing its burden to present reliable and accurate statistics to prove its prima facie case, the EEOC argues that Barnow "controlled for nearly every piece of information Wal-Mart sought via its employment application." (Response at 45). However, both Barnow and the EEOC concede that he ignored interviewer notes2 and applicants' statements about their present employment and job responsibilities, work history and responsibilities at prior jobs, goals of employment, whether applicants have ever worked in similar physically-demanding jobs, experience working with power equipment, difficulty working in extreme cold or heat, pay expectations, applicants' strengths and weaknesses and available start date, thus rendering his information inaccurate and incomplete. (Response at 9, 45, 46 n.32) (Barnow Dep. at 121-123, 157161, 263-264, conceding that he did not account for any information about these
2 Wal-Mart strongly denies the EEOC's allegation that Wal-Mart interviewers wrote "inaccurate information or comments" on female applicants' interviewer notes. (Response at 46). However, Barnow did not identify this concern as his basis for ignoring the interview information (Barnow Dep. at 126-128, attached at Tab 3) and the EEOC has no proof that notes for male applicants were more or less accurate than for female applicants. Thus, this assertion does not create a genuine issue of material fact that gives rise to an inference of discrimination and is immaterial for purposes of Wal-Mart's Motion for Summary Judgment.
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variables that was written on interview comment sheets, attached at Tab 3). In addition to ignoring job qualification information, Barnow's database also includes incorrect information written on paper applications, but corrected during the interviews that Barnow ignored. For example, class member Rochelle Millsap told her interviewer that she had no interest in orderfilling, even though she stated on her application that she sought an orderfiller job. (Millsap Dep. 30-32, 35-36, attached at Tab 4) (Millsap also complains that she was offered an orderfiller job despite her lack of interest in the position). Yet, Millsap's withdrawal from consideration for an orderfiller job is not captured by Barnow's database or analysis. (See also, Response at 15, "[I]n some instances, managers permitted some applications the opportunity to fill in incomplete information during the interview process." (citing Karr Dep. at 36; Reeves Dep. at 53, collectively at Tab 5)). The EEOC and concedes that its expert ignored a raft of information despite its relevance.
Because of the crucial flaws in Barnow's statistical analyses, the EEOC again improperly attempts to shift its burden to Wal-Mart, arguing that Wal-Mart must show that the omissions from Barnow's analyses would have changed Barnow's results. (Response at 46-49). The Sixth Circuit Court of Appeals, however, has clearly stated that the proponent of expert testimony -- here the EEOC -- bears the burden of proving its admissibility by a preponderance of the evidence. Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244, 251 (6th Cir. 2001) (excluding expert testimony where proffering party did not prove reliability and relevance). The only Sixth Circuit Court of Appeals case relied on by the EEOC does not address the exclusion of expert analyses like Barnow's on the
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basis of flawed and inaccurate data but, rather, discusses the requirement of an actual, as opposed to a theoretical, deficiency in the expert analyses to warrant exclusion. Barnes v. GenCorp, Inc., 896 F.2d 1457 (6th Cir. 1990). Here there exists an actual, admitted deficiency in Barnow's analyses. It is clear that "if the underlying data upon which the statistical analysis is based is incomplete or incorrect, the analysis itself will be inaccurate." EEOC v. H.S. Camp & Sons, Inc., 542 F. Supp. 411, 443 (M.D. Fla. 1982) (employment discrimination case) (See also Memo. in Support of MSJ at 18-19,21,29 and cases cited therein).
The EEOC's citation to Bazemore v. Friday, 478 U.s. 385 (1986) is inapposite. Although the Supreme Court held that a regression analysis is not required to account for "all measurable variables" to be probative, the Court stated that an analysis that excludes major variables may be "so incomplete as to be inadmissible and irrelevant." Id. at 400, n.l0. Barnow did not ignore insignificant variables. He ignored admittedly crucial information on which hiring decisions could turn, including non-discriminatory reasons for these decisions. His failure to capture these key variables renders his regression analyses unreliable and insufficient to raise an inference of discrimination.
2. Barnow's Repeated Errors in His Database Render His Conclusions Inaccurate and Unreliable.
Not only does the EEOC concede that Barnow omitted important applicant information, it concedes that the data he did collect is erroneous, rendering his conclusions unreliable and insufficient to meet the EEOC's burden of proof. In effect admitting these mistakes, the EEOC instead argues that Barnow's analyses should be
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weighed by the jury unless Wal-Mart can prove that "(1) the data is fundamentally flawed and (2) the flaws make a difference in statistical significance." (Response at 48-49).
Again, the EEOC impermissibly tries to shift its burden of proof to Wal-Mart. As the proponent of expert testimony, however, the EEOC bears the burden of proving its admissibility by a preponderance of the evidence. Nelson, 243 F.3d at 251. Wal-Mart is not required to disprove the EEOC's statistical evidence. U.S. Info. Systems, Inc. v. Int'l Bhd. of Elec. Workers Local Union Number 3, 313 F. Supp. 2d 213, 233, 235 (S.D.N.Y. 2004) (excluding expert's testimony because lithe plaintiffs are unable to establish that the data set utilized by [the expert] was unbiased."). Even, the EEOC's own cited authority does not require Wal-Mart to assume this burden. Rather, in Barnes v. GenCorp, the defendant argued that the sample size of the plaintiffs' analysis was too small to yield reliable results, but provided no such evidence. 896 F.2d at 1467. The only rule to be gleaned from Barnes is that a defendant must have an evidentiary basis for its assertion that the plaintiff's statistics are flawed. Id.
Unlike Barnes, Wal-Mart has strong evidentiary grounds for its concerns regarding the reliability of Barnow's database and his analyses. Barnow admits that his database had a number of flaws due to numerous wrongly coded variables. (Barnow 3/20/09 Rebuttal Rep. at 9-12, attached at Tab 6). Barnowadmits that he intended to capture these variables and that it was important to do so accurately. (Barnow Dep. at 173, 175-176, attached at Tab 3). Barnow corrected some of those errors only after
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Wal-Mart's statistical expert identified some of them based on a random sample.3 Barnow's "Rebuttal" Report is essentially an admission that these errors (and others) existed in his database and consequently in his analyses.
The EEOC downplays the significance of Barnow's extensive errors, arguing that Barnow's results were "verified" by regression analyses on three databases not created for that purpose. (Response at 11, 48). One of the three databases was a sample database of 400 applications created by Wal-Mart expert Freeman in order to analyze Barnow's error rates; that sample database was in no way sufficient to support a regression analysis. (Freeman Dep. at 258, 383-384, attached at Tab 7). Similarly, because the other two applicant databases were created by Wal-Mart counsel's staff as a reference tool, they are not sufficiently accurate to support a regression analysis. (Freeman Dep. at 302-303, attached at Tab 7). Barnow's inappropriate comparison to each of Wal-Mart counsel's databases does not "verify" his results; it is merely a comparison of two unreliable databases. If anything, the alleged similarity of the results demonstrates how error-ridden Barnow's own database is.
Finally, despite the EEOC's attempt to minimize the effect of Barnow's flawed data, the admitted errors in his database altered his statistical conclusions. After correcting a multitude of errors in his Rebuttal Report, Barnow's calculated hiring shortfall for 1998-2001 changed by nearly 10% and his shortfall for 2002-2004 changed
3 Freeman's review did not cover Barnow's entire database; it was based on a random sample of applications (Freeman 4/7/08 Rep. at 14, attached at Tab 8). Thus, the errors that Freeman identified are only those contained in the sample and the EEOC has no proof that Barnow accurately fixed the Freemanidentified errors, much less that Barnow has identified and corrected all data errors such that his analyses are now reliable.
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by more than 10%. (Barnow 3/20/09 Rebuttal Rep. at 12, attached at Tab 6; Barnow 3/1/07 Rep. at 5, attached at Tab 1). Barnow concedes that he could have taken steps to ensure the accuracy of his data, but did not do so. (Barnow Dep. at 217-218, 243-244, attached at Tab 3). His unreliable and incomplete data neither support the EEOC's prima facie case, nor meet its burden of proof.
B. EEOC Cannot Establish a Legitimate Statistically Significant Offer Disparity Between Male and Female Applicants.
Even if the EEOC could establish that Barnow's statistics are reliable, it cannot establish part two: that the statistical evidence shows a legitimate statistically significant disparity between Wal-Mart's treatment of otherwise similar male and female applicants.
First, the EEOC argues that even though Barnow's probability-of-hire figures are erroneous, his claimed hiring disparity is nonetheless statistically significant. The EEOC ignores the direct correlation between Barnow's assigned probability of hire for each applicant and a statistically significant male-female job offer disparity. (Response at 43). Because Barnow's calculation of probability of hire is admittedly "poor," then his resulting calculation of offer disparity is inaccurate. (Barnow 3/1/07 Rep. at 4, 17, 19, attached at Tab 1). The asserted offer disparity is derived directly from the assigned probability: in order to determine whether there is a statistically significant disparity in the hiring of men and women, Barnow must first accurately determine "the probability of applications [sic] being offered a position at Wal-Mart." (Id. at 3) (See also Barnow 3/1/07 Rep. at 4, 17, 19). Barnow concedes that the" analyses of the probability of
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applications [sic] being offered a position at Wal-Mart are the key analyses for drawing inferences of whether or not there is a statistical disparity in the hiring of men and women after controlling for other relevant factors." (Id. at 3) (emphasis added).
Case law supports Barnow's acknowledgement. The validity and reliability of a regression model like Barnow's "depends upon a showing that it predicts the variations in the dependent variable to some substantial degree." McCleskey v. Zant, 580 F. Supp. 338,351 (N.D. Ga. 1984) rev'd on other grounds, McCleskey v. Kemp, 753 F.2d 877 (11th Cir. 1985). Because Barnow cannot predict who will receive an offer, he cannot accurately generate a reliable disparity in hiring. Without a reliable foundation for his analysis, Barnow's asserted statistical significance cannot raise an inference of intentional discrimination.
Second, Barnow's asserted statistically significant disparity is the result of his improper aggregation of data and thus cannot create an inference of discrimination. Contrary to the EEOC's contention, Wal-Mart does not suggest that it is never appropriate to aggregate data, nor does Wal-Mart dispute that a reliably calculated statistical probability of .05 may be statistically significant. (Response at 43-44, 49-51). Here, however, Barnow elected to aggregate dissimilar data to achieve what he deems a statistically significant result. See Abram, 200 F.R.D. at 431 (race discrimination case wherein the Court criticized the plaintiffs' IIsomewhat tendentious reliance on aggregate data" because focusing on grouped data " mask[ed] differences" among individual segments of data). Although Barnow has not identified such factors as the basis of his aggregation of data, the EEOC argues after the fact that "Barnow analyzed
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the 1998-2001 and 2002-2004 periods separately in order to analyze like periods together" based on: (a) the EEOC's filing its lawsuit in late 2001; (b) Wal-Mart's changing of its application process in or about 2002; and, (c) the "chang[ing]" of "male/female differential in hiring" beginning 2002. (Response at 49-50). None of these assertions is true and do not provide a basis for Barnow's aggregation of data.
First, the EEOC filed this lawsuit in August 2001, not "late 2001," so that Barnow's 2002-2004 analysis excludes four "like" months, while his 1998-2001 analysis includes a third of an "unlike" calendar year. Second, it is undisputed that Wal-Mart changed its hiring process in October 2002, not "in or about" 2002. (Jeanneret 4/4/08 Rep. at 13, attached at Tab 9). Thus, Barnow's 2002-2004 period contains at least nine months of data from Wal-Mart's prior hiring process. Finally, Barnow's own analyses show that he did not aggregate data according to when the"male/female differential in hiring changed." (Barnow 4/30/09 Supp. Rep., Ex. B3, attached at Tab 10). In fact, Barnow's data shows that the "differential in hiring" varied significantly and sporadically every year. For example, from 1998 to 1999, the offer rate for men decreased by over 3.5%, while the offer rate for women increased. (Id.). Conversely, comparing 1999 to 2000, the offer rate for men increased while it decreased for women. (Id.). Again, between 2000 and 2001, the offer rates for men and women were the inverse of each other; as one rate went up, the other went down. (Id.). Thus, there is no common trend binding 1998-2001. Similarly, for each year of 2002-2004, although offer rates increased for both men and women, the disparity in offer rate continued to fluctuate. (Id.). Barnow's selected periods of 1998-2001 and 2002-2004 are not "like
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periods" and the EEOC's justifications for his aggregation are not true. Barnow's artificially generated statistically significant disparity cannot meet the EEOC's burden to establish its prima facie case.
Apparently seeing the fallacy of grouping the data as Barnow did, the EEOC retreats to a fall-back position that aggregation was necessary for at least the latter period because the sample sizes for the individual years during 2002-2004 were too small (Response at 50-51), albeit sufficient for Barnow to establish that there is no statistically significant disparity of each of those years. (Barnow Dep. at 298, attached at Tab 3). Barnow himself, however, never stated in any of his multiple reports that small sample size was the reason he aggregated 2002-2004. To the contrary, Barnow actually discounted this reason in his deposition. (Barnow Dep. at 299, attached at Tab 3).
Further, the EEOC's justification for Barnow's aggregation of data from 2002 to 2004 is contradicted by Bamow's stated reason for not including data from January 1, 2005 until February 15, 2005, the conclusion of the relevant time period. Bamow stated that he did not include applications from this six-week period in his analysis because there was insufficient data from this time and the sample size was too small. (Barnow 3/1/07 Rep. at 2 n.3, attached at Tab 1). If small sample size were the true reason Barnow aggregated 2002-2004 data, then he would not have excluded January 1, 2005February 15, 2005 data from this aggregation. Barnow's decision to aggregate 2002 to 2004 data is nothing more than results-oriented statistical manipulation which cannot meet the EEOC's burden.
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To make its prima facie case, the EEOC must present reliable statistical evidence that shows a legitimate statistically significant disparity between the job offer rates of similarly situated male and female applicants. It cannot do so because Barnow's asserted disparity, first, is premised upon his admittedly faulty calculation of probability of hire and, second, results from invalid data aggregation and manipulation.
C. EEOC Cannot Eliminate Non-Discriminatory Reasons for the Asserted Disparity.
Lastly, the Sixth Circuit Court of Appeals has expressly held that if a statistical analysis cannot eliminate non-discriminatory explanations such as random chance, then it cannot generate an inference of intentional discrimination. Latosky, 103 F.3d 129, 1996 WL 708346, *3. Barnow concedes that his analyses do not. Barnow specifically testified that sheer "randomness" in Wal-Mart's hiring decisions could explain his analyses. (Barnow Dep. at 345, attached at Tab 3). This admission negates the EEOC's ability to eliminate non-discriminatory reasons -- precisely like random chance -- as required to withstand summary judgment. IV. EEOC's Anecdotal Evidence Is Insufficient to Meet the EEOC's Burden of
Establishing Its Prima Facie Case. Given the insufficiencies of its statistical proof, the EEOC devotes the bulk of its Response to myriad anecdotal testimony in a last-ditch effort to establish its prima facie case. Despite conceding that "[t]he basis of this lawsuit is not individual acts of disparate treatment," the EEOC resorts to precisely such evidence. (Response at 72). But, the vast majority of anecdotal evidence presented by the EEOC is gender-neutral,
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speculative, hearsay, or otherwise inadmissible.4 Excluding such inadmissible evidence, the EEOC is left with just a handful of (disputed) statements from over 4,000 class members and 130 Distribution Center managers -- isolated and random evidence that is insufficient to establish a prima facie case of a systematic pattern of intentional hiring discrimination engaged in by over 130 Wal-Mart interviewers.
"While anecdotal evidence may suffice to prove individual claims of discrimination, rarely, if ever, can such evidence show a systemic pattern of discrimination." Cole Constr. Co. v. King County, 941 F.2d 910, 919 (9th Cir. 1991); Middleton v. City of Flint, Michigan, 92 F.3d 396, 405 (6th Cir. 1996); EEOC v. AutoZone, 2006 WL 2524093, *7 (W.D. Tenn. 2006). "In a pattern or practice class action, the initial focus is on proving an employer-wide intentional discriminatory practice or policy, not individual incidents of discrimination." Attenborough v. Constr. and Gen. Bldg. Laborers' Local 79, 238 F.R.D. 82, 96 n.16 (S.D. N.Y. 2006). "[S]ingle, insignificant, isolated acts of discrimination by a single business would not justify a finding of a pattern or
practice...." Int'l Bhd. of Teamsters, 431 u.s. at 336 n.16. Thus, the EEOC must prove
more than the "mere occurrence of isolated or accidental or sporadic discriminatory acts." Id. at 336.
A. EEOC Relies On Gender-Neutral And Speculative Testimony. Evidence of gender-neutral conduct is not sufficient to establish a prima facie case that can withstand a motion for summary judgment. See Walk v. Rubbermaid, Inc., 913 F. Supp. 1023 (N.D. Ohio 1994) (plaintiff's conclusions that her treatment was gender-based
4 Wal-Mart does not waive any grounds for motions in limine or other objections as to such evidence.
22

Case 6:01-cv-00339-KKC Document 445 Filed 11/16/2009 Page 23 of 36

insufficient to withstand a motion for summary judgment); Thomas v. Machinecrajt, Inc.,

1992 WL 6876, *2 (D. Md. 1992) ("The fact that an individual against whom an

employment action is taken happens to be female, without more, does not give rise to a

claim for sexual discrimination."). Similarly, a party may not rely upon inadmissible

speculation to overcome a properly supported motion for summary judgment. Noble, 391

F.3d at 724 (" Although [the plaintiff] is certainly entitled to his opinion, mere speculation

cannot satisfy his burden of proving that [the defendant] discharged him on account of his

race."). See also, Westlake Vinyls, Inc. v. Goodrich Corp., 518 F. Supp. 2d 918, 934 (W.D. Ky.

2007); Lewis, 355 F.3d at 533; Rao v. County of Cook, Ill., 2003 WL 22764588, *10 (N.D. Ill.

2003) (" A plaintiff'cannot thwart summary judgment by speculating as to an employer's

state of mind."'). Despite such prohibitive precedent, the EEOC relies in large part on

gender-neutral comments and speculation to support its prima facie case:

•

Interviewer asked class member why she thought she could

do job after she had asserted" she could do it (Smith-Hall

Dep. at 71-72);

•

Interviewer "kept asking [her] if [she] could lift." (Brinson

Dep. at 27-29);

•

Interviewer talked with class member about how they "load

with pallets [at DC 6097]" (Cox Dep. at 56);

•

Interviewer asked about daycare arrangements and age and

gender of children (Hammons Dep. at 26);

•

Interviewer asked about childcare and transportation

arrangements (Lawson Dep. at 27-28);

•

Interviewer "kept asking if [she] could lift" (Vires Roark

Dep. at 44);

•

Interviewer asked marital and family status, availability to

work and transportation (Overbey Dep. at 80);

•

Interviewer asked about family status (Vaughn Dep. at 99).

23

Case 6:01-cv-00339-KKC Document 445 Filed 11/16/2009 Page 24 of 36

(Response 25-26) (collectively attached at Tab 11). These questions and comments do

not raise an inference of intentional gender discrimination simply because they were

made to a female applicant. See Machinecraft, Inc., 1992 WL 6876, at *2.

Further, the EEOC has no proof that male applicants were not asked the same

questions. See, e.g., Cameron v. Ohio, 2009 WL 2610986, *3-4 (6th Cir. 2009) (affirming

summary judgment for defendant because plaintiff failed to prove he was treated

differently than similarly situated non-protected employees). To the contrary, there is

record evidence that interviews for male applicants were conducted in the exact same

way as interviews for female applicants. (See e.g., male applicant William Carney was

told orderfilling job was "hard work. ... like cutting tobacco, it was wide open all the

time, real fast-paced work, hard work.") (Carney Dep. at 22); (male applicant Scott Huff

was asked "questions like with my past jobs or like if I could hold certain things, lift

certain weights, or with -- if I could deal with cold or heat or such") (Huff Dep. at 23)

(collectively Ex. A). (See also, Ex. B, Walter Hayes interview notes, "family here, wife

retired"); (Ronnie Combs interview notes, "just got married, 2 kids"); (Kelvin Burdette

interview notes, "single father"); (Shane Howard interview notes, "child, wants to be

closer to home"); (Donald Neace interview notes, "going to school, living w / wife.")

The EEOC also alleges that gender-neutral interview notes and interviewers'

gender-neutral stated reasons for not hiring class members somehow support an

inference of discrimination simply because the applicant is female:

•

"Did not give specific answers to several questions. When I

took her for a tour and showed her what an orderfiller can

do she made the comment, 'I don't know if I can do that'"

24

Case 6:01-cv-00339-KKC Document 445 Filed 11/16/2009 Page 25 of 36

•

"Does not want orderfilling"

•

"Called on 9/18/03 and was no longer interested"

•

"Not interested anymore"

•

"Number disconnected"

•

"Na show"

•

"Not interested in third shift positions"

•

"Wants a third shift job"

•

"Cannot work available shifts."

(Response at 27-29). All of these alleged statements are indisputably gender-neutral yet

the EEOC asks the Court to use these statements to infer discrimination simply because

the applicant is female, again without any proof that male applicants were treated

differently or more favorably.

Similarly, the EEOC assert,s that a gender-neutral process of placing a job

applicant on "hold" for consideration for other jobs is evidence of gender

discrimination. (Response at 31-39). Wal-Mart's hiring process and application cover

sheet give interviewers three options when interviewing applicants: "Yes," "No" and

"Hold," designated as "Y," "N," or "H." (See Application Cover Sheet, Barnow Dep.

Ex. 7, attached as Ex. C). Such a gender-neutral option cannot raise an inference of

gender bias and there is no evidence that male applicants were treated differently. In

fact, record evidence shows that male applicants were placed on "hold" as well. (See

Ex. B). And, even if this gender-neutral process could generate an inference of

discrimination, the EEOC identifies only 17 of 4,012 class members whose applications

were placed on "hold" by two interviewers, Mike Giles and Jim Gulock, of 130

interviewers, hardly the evidence of systematic intentional discrimination needed to

support a pattern or practice of discrimination.

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Case 6:01-cv-00339-KKC Document 445 Filed 11/16/2009 Page 26 of 36

The EEOC also relies upon conclusory and speculative testimony, again without

proof that males experienced better or different treatment:

•

Interviewer "would make expressions with his face like

[Lawson] was lying to him" (Lawson Dep. at 107-108);

•

Interviewer doubted her (Cox Dep. at 57-59);

•

Interviewer "insinuate[ed] that [she] would use the girl

card" (Harshman Dep. at 107-110);

•

Interviewer acted like he did not"anticipateD the interview

process going any farther" (Nobles Dep. at 32-34);

•

Interviewer acted like he "didn't care about the interview/'

and "didn't think [she] could handle the job" and Asher felt

she was "blown off" (Asher Dep. at 71); and

•

Interviewer acted "like he was just reading off of a sheet of

paper" and "he wasn't interested in [her]" (Quarrels Dep. at

40-42).

(Response at 24-26) (collectively attached at Tab 12). Clearly inadequate to support its

prima facie case, these gender-neutral and conclusory assertions cannot defeat summary

judgment.

B. EEOC's Anecdotal Evidence Is Inadmissible Hearsay, Stray Comments and/or Irrelevant.

1. Most of the EEOC's Proof Is Inadmissible Hearsay That May Not Be Considered By the Court.

After eliminating inadmissible gender-neutral and speculative testimony, the

vast majority of the remaining EEOC anecdotal "proof" is inadmissible hearsay that

cannot overcome a properly supported motion for summary judgment. See Knox v.

Neaton Auto Products Mfg., Inc., 375 F.3d 451, 457 (6th Cir. 2004) (court cannot rely upon

inadmissible hearsay in ruling on a motion for summary judgment). Attempting to

render such proof admissible, the EEOC broadly mischaracterizes these out-of-court

statements as "told by Wal-Mart employees, agents and!or supervisors/' and argues

26

Case 6:01-cv-00339-KKC Document 445 Filed 11/16/2009 Page 27 of 36
that they are not hearsay as party-opponent admissions under Fed. R. Evid. 801(d)(2). (Response at 59-60, n.47). Analysis of the relied-upon testimony shows that it is indeed hearsay, not subject to any exception, and inadmissible to counter summary judgment.
An out-of-court statement is not hearsay if it is made "by the party's agent or servant concerning a matter within the scope of the agency or employment made during the existence of the relationship." Fed. R. Evid. 801(d)(2)(D). The Sixth Circuit Court of Appeals has defined the application of this Rule in discrimination cases. See, e.g., Barner v. Pilkington North America, Inc., 399 F.3d 745, 750 (6th Cir. 2005) ("Rule 801(d)(2)(D) is designed to bind the employer where one of its managerial employees makes a statement within the scope of the employee's duties as a manager."); Liadis v. Sears, Roebuck and Co., 47 Fed. Appx. 295,303 (6th Cir. 2002) ("Statements by employees are outside of the scope of an employee's employment, and therefore not subject to the party-admission rule, when they concern decisionmaking processes into which the employee has no input, or decisions to which they were not a party."); Hill v. Spiegel, Inc., 708 F.2d 233, 237 (6th Cir. 1983) (mere fact that the declarant is a manager is insufficient to make the statement non-hearsay; only statements made by managers within the scope of manager's duties are non-hearsay).
Moreover, "statements by non-decisionmakers, or statements by decisionmakers unrelated to the decisional process itself cannot suffice to satisfy the plaintiff's burden of demonstrating [discriminatory] animus." Bush v. Dictaphone Corp., 161 F.3d 363, 369 (6th Cir. 1998). Such "stray remarks" by nondecisionmakers or decisionmakers unrelated to the adverse employment decision cannot be considered as evidence of
27

Case 6:01-cv-00339-KKC Document 445 Filed 11/16/2009 Page 28 of 36
discriminatory intent. Tooson v. Roadway Express, Inc., 47 Fed. Appx. 370, 375 (6th Cir.
2002). "The party arguing for admission bears the burden of establishing the proper
foundation for the admissibility of the statements." Liadis, 47 Fed. Appx. at 303.
Moreover, the Sixth Circuit Court of Appeals has held that it is reversible error for trial
courts to admit such statements. See Smith v. Leggett Wire Co., 220 F.3d 752, 760 (6th Cir.
2000).
Despite the EEOC's attempt to shoehorn testimony into party-opponent
admissions, most of the statements cited in the EEOC's Response were made by
non-employees, employees who were not involved in hiring decisions, or
decision-making employees not acting within the scope of the employees' duties:
• Comment by hourly unloader/ slotter Rick Combs, not involved in hiring, that DC doesn't hire women (Jane Smith Dep. at 22);
• Statement made by "a group of people" at the DC 6097 entrance and by a man who Malicoate speculates was a supervisor that DC 6097 did not hire women (Malicoate-Howe Dep. at 57-58);
• Comment made by Mike Giles, whom she saw in the hall and who was not involved in her hiring decision, that he didn't think orderfilling was a good job for women because of heavy lifting and extreme temperatures (Moore Dep. at 4142,48-49);
• Statement by employee of Manpower temporary employment agency, a non-Wal-Mart employee, that DC 6097 would not hire women (Huber Dep. at 58);
• Statement made by DC 6097 female "front office" employee not involved in hiring that "women did not work in the warehouse" (Powell Dep. at 32-34);
• Male employees not involved in hiring overheard saying that Wal-Mart generally picks men over women (Hubbard Dep. at 23);
• Statement by female employee not involved in hiring that Wal-Mart will not hire a woman unless she "is like a man" (Botkins Dep. at 81);
• Statement by supervisor at the Job Shop temporary employment agency, a non-Wal-Mart employee, that women were not "allowed" to work at DC 6097; (Strunk Dep. at 27-28);
• Statements by two orderfillers and hourly employee Lonnie Marion, not involved in hiring, that they do not hire women (Strunk Dep. at 97-99);
28

Case 6:01-cv-00339-KKC Document 445 Filed 11/16/2009 Page 29 of 36
• Statement by Wal-Mart hourly employee Tim Salmons, not involved in hiring, that the DC "wouldn't hardly hire women" (Barrett Dep. at 24);
• Statement by former Wal-Mart hourly orderfiller, Dennis Miller, not involved in hiring, that DC 6097 "didn't hire a lot of women" (Johnson-Walden Dep. at 82);
• Statement by an unknown female who answered the phone at DC 6097 that "we don't really hire women here except for office positions" (Shannon Bowling Dep. at 49);
• Statements by unknown managers that women could not do orderfilling (Elliot Dep. at 19-21);
• Comments made by two DC 6097 coaches after work while eating in restaurants or playing golf that they preferred not to hire women (Riley Dep. at 28-29);
• Statements by unknown managers to a former female Wal-Mart manager not involved in the hiring process that DC 6097 needed some"strong young bucks" (Cobb Dep. at 27-28);
• Statement by a Wal-Mart supervisor in casual, off-the-job, personal conversation unrelated to hiring decision, that because of her build, personality and appearance she would not be hired because she would be a "distraction to the men" (Murray Dep. at lOS, 114);
• Statement by Jimmy Lewis, supervisor at Wal-Mart retail store not involved in hiring at DC 6097, that she would stay at the retail store because she was "too pretty" to work at the DC and would "get in trouble there" (Smith Dep. at 121);
• Statement by Hammons' husband, Brian Hammons, that Wal-Mart manager Jim Gulock told Brian that if Brian and Kassandra were not married, he would like to have her "legs wrapped around him" (Hammons Dep. at 42);
• Statement by husband, a former hourly employee not involved in hiring, that male employees dressed in women's clothes for a Mardi Gras party (Branum Dep. at 70-71, 75);
• Comment made by Mike Giles, whom she saw in the hall and who was not involved in her hiring decision, that women "couldn't do" orderfilling (Branum Dep. at 58-60);
• Statement by ex-husband, former hourly orderfiller, that DC held productivity contests and that losing male employees would shave their heads, dye their hair or wear women's clothing (Stutler Dep. at 122);
• Statement by former supervisor not involved in hiring, Jason Andrews, that orderfilling was a "man's job." (Pence Dec!. at ~4, Response Ex. 130).
(Response at 17-21, 24) (collectively attached at Tab 13). As the proponent of this
evidence, the EEOC bears the burden of proving that these statements are not hearsay.
T~e EEOC cannot establish their admissibility because, even if true, they were made by
non-employees, employees not involved in hiring decisions, or by decision-making
29

Case 6:01-cv-00339-KKC Document 445 Filed 11/16/2009 Page 30 of 36
employees outside the scope of their duties in the hiring process. Such statements are hearsay and the Court should not consider them for purposes of summary judgment.
2. EEOC Impermissibly Relies Upon Other Irrelevant and Inadmissible Testimony.
The EEOC also relies upon testimony concerning alleged sexual comments and sexual harassment at DC 6097, arguing that evidence of workplace harassment is relevant and admissible here "to show a pattern or practice of gender discrimination present in a company's policies and practices" and citing to a single case from the Tenth Circuit Court of Appeals for this proposition, Pitre v. Western Elec. Co., Inc., 843 F.2d 1262 (10th Cir. 1988). (Response at 20-24, 62 n.49). But, Pitre involved allegations of gender discrimination against female employees in promotion and demotion decisions that resulted in "a clustering of women in the lower salary grades." Id. at 1265. The Court permitted evidence that "management personnel, who made promotion and demotion decisions throughout the relevant period, held discriminatory attitudes toward women," finding this evidence probative because it raised an inference that workplace decisionmakers discriminated against women in workplace promotions and demotions by acting upon those attitudes. Id. at 1270. Pitre does not stand for the general rule that all evidence of alleged workplace harassment is relevant to a hiring discrimination claim.
To the contrary, courts routinely hold that harassing or discriminatory conduct toward non-plaintiffs is irrelevant. In Veliz v. City of Minneapolis, 2008 WL 4544433 (D. Minn. 2008), the plaintiff police officer in a retaliation case sought to offer testimony
30

Case 6:01-cv-00339-KKC Document 445 Filed 11/16/2009 Page 31 of 36
about a conversation among high-level decisionmakers regarding retaliation in considering the promotion of another officer. The court excluded the evidence, finding that it was irrelevant and unduly prejudicial. Id. at *1. The court found that under the circumstances, these discriminatory statements were inadmissible in part because the discriminatory statements were attributed to managers who played no role in the plaintiff's firing and because no discriminatory comments were attributed to the police chief who made the decision to fire the plaintiff. Id. Thus, the court found that this anecdotal testimony was irrelevant to the plaintiff's claims and that any slight probative value was outweighed by its prejudicial effect. Id.
Similarly, in Allen v. City of Athens, 937 F. Supp. 1531 (N.D. Ala. 1996), the plaintiff alleged that he was not hired for a position due to racial discrimination and sought to introduce testimony that various supervisors had told racial jokes and used derogatory racial slurs. The court found that this evidence was insufficient to support an inference of discrimination because there was no proof that such comments were in any way related to the decision not to hire the plaintiff. Id. at 1543. The court noted that this testimony could "permit an imaginative jury to infer that [the defendant] harbored discriminatory attitudes, but plaintiff has offered no evidence tending to show that those attitudes were a 'motivating factor' in [the defendant's] decision not to hire him." Id. at 1545-1546.
Here, the allegedly sexual statements relied upon by the EEOC are unrelated to the EEOC's allegations of hiring discrimination and there is no evidence that such statements played any role in hiring decisions. (Response at 20-24). This is not a sexual
31

Case 6:01-cv-00339-KKC Document 445 Filed 11/16/2009 Page 32 of 36
harassment case. This is not a hostile work environment case. This is a gender discrimination in hiring case, and the ultimate issue is whether Wal-Mart intentionally discriminated against women in hiring, not whether Wal-Mart employees allegedly "harassed" female employees after they were hired. Thus, anecdotal testimony about female employees' treatment in the workplace is inadmissible and not relevant to this hiring discrimination case and cannot be used to defeat Wal-Mart's Motion for Summary Judgment.
C. The Remaining Anecdotal Evidence Is Insufficient to Establish a Standard Operating Procedure of Gender Discrimination in Hiring.
The EEOC's remaining, arguably admissible evidence is insufficient to establish a prima fade case of intentional pattern or practice discrimination because it is, at best, proof of isolated and sporadic instances of bias from among over 4,000 class members.s United Assoc. ofJourneymen, 235 F.3d at 251 (a plaintiff must establish that "discrimination was the company's standard operating procedure."). It is not enough that the EEOC establish proof of "isolated or sporadic" discrimination. Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867,875-876 (1984).
The EEOC is left with just a handful of arguably admissible evidence of gender discrimination, which is insufficient to meet its burden to establish a prima facie case of systematic intentional discrimination: 12 class members: (Bebout, Bargo, Napier, Lawson, Ludeman, Vaughn, Long, Hammons, Stutler, Smith, Ramsey and Brinson) and three former managers (Van Jura, Jones, Sizemore). (Response at 17, 20, 21, 24-26). But,
5 Although Wal-Mart vigorously disputes this testimony, for purposes of its Motion for Summary Judgment only, Wal-Mart construes the testimony in the light most favorable to the EEOC. Kochins v. Linden-Alimak, Inc., 799 F.2d 1128,1133 (6th Cir. 1986).
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Case 6:01-cv-00339-KKC Document 445 Filed 11/16/2009 Page 33 of 36
the class members' 12 alleged discriminatory statements, ranging over a seven-plusyear period, are insufficient to establish a routine, standard operating procedure at DC 6097. Evidence of mere isolated or accidental or sporadic discriminatory acts will not suffice to show a pattern or practice of discrimination." Maddox v. Claytor, 767 F.2d at 1557 (affirmating summary judgment where anecdotal evidence was "sparse," with "much of that.. .. unpersuasive and conclusory"). See also, Metrocare v. Washington Metropolitan Area Transit Authority, 679 F.2d 922, 929-930 (D.C. Cir. 1982) (dismissing class action race discrimination case because anecdotal evidence from six employees insufficient to establish a prima facie case for entire class of 400); EEOC v. Jordan Graphics, Inc., 769 F.Supp.2d at 1383 (dismissing EEOC's pattern or practice claims based on unreliable statistical proof, court "seriously doubts" anecdotal evidence is sufficient to establish that defendant's standard operating procedure was intentional discrimination, dicta). Moreover, the testimony at most implicates 12 out of 130 interviewing managers.6 See Sperling, 924 F. Supp. at 1363 (" ... the exercise by some managers of their discretion to discriminate would constitute 'the mere occurrence of isolated or accidental of (sic) sporadic discriminatory acts,' which is not a pattern or practice of discrimination."); Abram v. UPS, 200 F.R.D. at 430 (even if individual managers discriminated such action is "one step removed" from employer and sufficient to establish liability of employer).
A manager from 2001 to 2002, Tom Van Jura illustrates both the EEOC's misplaced reliance on these managers and its mischaracterization of record evidence.
6 Because several class members claim statements were made by unknown and unidentified interviewers, Wal-Mart construes their testimony in the light most favorable to the EEOC and assumes that no single interviewer made more than one statement, for a maximum of 12 individuals.
33

Case 6:01-cv-00339-KKC Document 445 Filed 11/16/2009 Page 34 of 36
(Response at 19-20). Van Jura claims that he was told not to pass women along in the application process as an interviewer and that he never recommended a female applicant for an orderfiller job. (Van Jura Dep. at 19, attached at Tab 14). Yet, interview packets completed by Van Jura show that, during his 19-month employment at DC 6097, he in fact passed one-quarter of the 12 women he interviewed for continued consideration for the job. (See interview packets completed by Van Jura, attached as Ex. D). Yet even if such proof were reliable, it is still insufficient to create an inference of systematic, routine intentional gender discrimination.
The EEOC relies on gender-neutral proof and speculates about speakers' intent, with no proof that male applicants were treated differently. Its asserted "party-opponent admissions" do not pass muster for admissibility because they were hearsay statements made by non-employees, employees not involved in hiring, or employees outside the scope of hiring decisions. Further, the EEOCs proof of alleged sexual comments/conduct in the workplace is not admissible. All that remains of arguably admissible proof is about a dozen witnesses from among 4,012 class members and 130 interviewers - - clearly not sufficient to establish a deliberate institutional policy to exclude women from employment.
CONCLUSION The EEOC cannot meet its "higher burden" to present affirmative proof that Wal-Mart engaged in a routine, intentional, standard procedure of discriminating against female job applicants. It has no proof that Wal-Mart knew the gender of the vast majority of class members when it denied them employment. And, the EEOCs proof of
34

Case 6:01-cv-00339-KKC Document 445 Filed 11/16/2009 Page 35 of 36
Wal-Mart's "haphazard" and "inconsistent" hiring process negates any inference of a systematic practice of discrimination.
The EEOC's statistical proof fails to meet its requirements of reliability, a legitimate statistically significant disparity, and elimination of non-discriminatory explanations. And its attempt to fill the gap with gender-neutral, speculative, and inadmissible proof fails, leaving at best individualized testimony that"rarely if ever can" establish a routine systemic pattern of intentional discrimination to meet the EEOC prima facie burden.
Accordingly, Wal-Mart's Motion for Summary Judgment should be granted. Respectfully submitted,
DINSMORE & SHOHL LLP
Kathryn A. uesenberry 2500 Nation I City Tower 101 South Fifth Street Louisville, Kentucky 40202 (502) 581-8000 Counsel for Defendant, Wal-Mart Stores, Inc.
CERTIFICATE OF SERVICE It is hereby certified that a true and correct copy of the foregoing was served, via the method indicated below, to the following, on this the 14th day of September, 2009: Nancy Dean Edmonds Equal Employment Opportunity Commission Indianapolis District Office 101 West Ohio Street, Suite 1900 Indianapolis, Indiana 46204 Counsel for Plaintiff (Service via fax and First Class u.S. Mail)
35

Case 6:01-cv-00339-KKC Document 445 Filed 11/16/2009 Page 36 of 36 Aimee L. McFerren Equal Employment Opportunity Commission 600 Dr. Martin Luther King, Jr. Place, Suite 268 Louisville, Kentucky 40202 Counsel for Plaintiff (Seroice via fax>
36

 
 Case: 6:01-cv-00339-KKC -REW Doc #: 669 Filed: 03/01/10 Page: 1 of 17 - Page ID#: 13376
CONSENT DECREE The United States Equal Employment Opportm~ityCommiFsion (the "Commission" or the "EEOC") commenced this action against Wai-Man Stores, Inc. ("Wal-hlaa? pursuant to Title VII of the Civil Rights Act of 1964 and Title I of dre Civil Rig& Act of
1991 ("Tide VII? to address allegations that Wal-kbd subjected a class of females to gender discrhination in hiring when filling open orderfiller positions in Wal-Mart's
Distribution Center Eo. 6097 ("DC 60977, located in London, .Kentucky. The Commission and Wal-Mart stipulate to the Court's jurisdiction over the parties.
Fuither, the Commission and Wd-W~fdlesire to resolse Cicii Acuon No. 01-339-KKC without the burden and expense of further litigation. As a result, and based on the pleadings and die record as a whole, the Couli fmds rhar: [i]the Court has jurisdiction ovetthe parties and the sttbject mat?eer of this acrion; [ii] the terms of &is Decree aIp:adecpidte, fair, reasonable, equitable and just: [Gi] this Decree conforms wirb the Federal Rufes of Civil Procedure and is not in derogation of the rights or privileges of any person; fiv] this

Case: 6:01-cv-00339-KKC -REW Doc #: 669 Filed: 03/01/10 Page: 2 of 17 - Page ID#: 13377
Decree will further the objectives of Title VLI and will be in thebest iDrerests of the panies, the individualsfor whom EE.OCseeks relief, and the public: and [vl this Decreeresolves all the matters in controversy between the parties as provided in sections one through eleven below. This Decree is entered into by Defendant without admission that any of its acts, past or present, are in violation of any law; and Defendant denies that any of its actions are or were unlawful: accordingly.the Decree shall not constitutean admission, adjudication or finding on the merits of the allegations made in the Commission's Complaint. IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED as follows. PART ONE: GEKEKAL PROVISIONS
Section 101: Scope of Decree
ljnless otherwise stated, this Decree appliesto DC 6097,located in Landon, Kentucky, and
results in a complete resoiutionof a11claims nised in the Commission's Complaint. EEOC hereby releases Defendant with respect to any and all such claims. Section 102: %on-Discrirninatiunin Employment
Wal-Mart, its officers, agents, servants,employees, successors in interest and all
persons acting in concelt with or on its behalf are beivby enjoined from discrimrnating againsr females in hiring for oidertiilerpositions. Section 103: Nan-Retaliation
Wal-Mart, iis officers,agents. seivanrs. employees,successo~sin inteterest and all persons acting in co~ceiwf ith or on its behalf shall not discriminateagainst any of its applicants, employees,or former employees, because the individual (a) made a charge or opposed an unlawful employmentpractice under Title VII or (b) assisted or participated in any manner in this case or an$ other investigation, proceeding, or hearing under Title VII.
2

Case: 6:01-cv-00339-KKC -REW Doc #: 669 Filed: 03/01/10 Page: 3 of 17 - Page ID#: 13378
Section 104: Effective Date The effective date ofrhis Decree shall he the date of the Court's entry of an Order
approving the Coasent Decree. This Decree does not affect the Commission's right to file suit on charses pending at the administrative level or on any subsequently filed charges, even if those charges allege vioiations occwring prior to the entry o€this De-me.
Section 105: Record Retention Wal-Mart will maintain all applications and employment records as required by
Section 709fcf of Title VD, 42 I3.S.C.$ZOOOe-8(c), and 29 CF.R.$! 1602.14.Fuaher, Wal-Mat will retain.throughout the term of this Consent Decree, all applicationsfor all hourly positions and will maintain applicant flow logs pertaining to ail tvaidxouse positions. Wal-Mart may maintain these applications and applicant flow logs in electronic or hard copy, so tong as the applicationsOT logs can beproduced ai any time during the term of the Consent Decrec. PART TWO: POSTIR'G, TRADWEG, RECRULTMEKT, .A?? HlRlrUG PROCESS Section 201: Posting
Wal-Mart will post the Notice of ~ o n - ~ i s c r i P~ol~icy~aottanched to this Decree as Appendix A in a conspicuous location visible to applicants and employees at DC 66397
and ar each of its warehouse facilities In Kentucky. Said Notices shall remain posted throughout the term of this Decree ax DC 6097 and for one year at other Kentucky
warehouse Edcifities.
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Case: 6:01-cv-00339-KKC -REW Doc #: 669 Filed: 03/01/10 Page: 4 of 17 - Page ID#: 13379
Seetion 202: T W g Wal-Man shall provide trdiniug on what constitutes an uniapifutemploymen1practice
under Title W. At a minimum, this training will cover the prohibirion on makinghiring decisions on the basis of sex, Title W’s prohibitions against ndiation, and the obligarion to retain applications and applicant flow logs during the term of this Consent Decree. The mining will teach the trainees about stereotyping,consciousand unconscious, during the hiring process and how to avoid subjective biases; will imtnxct trainees on how to, and rhe need to, record full answers to questions asked during hiring interviews; and will cover how to coralucr an ’information exchauge”and how to combine or weigh information from interviews and job tests to seek objectivity. The training will be given to managers, supervisors and all employees at DC 6097 who screen,hire, interview, or m o m e n d for hire applicants for a11 waxhouse positions, as well as all human resource employees. At a rninirnm, this training will cover stereotyping, conscious and unconscious, and how to avoid subjective biases.
The training will be conducted within ninety days of the date of entry of this Decree and will be repeated annually thereafter, with appropriate updates and revisions. No fewer than thiny days before each training, Wd-Mart will provide notice to the Commission of the date. time, and place of the training, and will send to the Commission a copy of the training program and all written materials to be used. The Commission may provide reasonable input on the content of rhe mining but shall do so no later than ten days prior to the training. The training will also be given to any individual pmmoted, transfened or newly hired into one of the positions (management,supervision,human resources)
4

Case: 6:01-cv-00339-KKC -REW Doc #: 669 Filed: 03/01/10 Page: 5 of 17 - Page ID#: 13380
identified above. These individuals will be trained within thirty days of hire, transfer or promotion,and the training repeated alongwith other individuals pursuant to the schedule in the rhis p a r a p p h .
Section 203: Rccroitmcnt
To recruit female applicants for ~rderfiilem~ ployment, Wal-Mart will make an effort to place Its advertisemem for employment in local publications which are geared toward female readers and will indicate in all employment adverdsing that qualified male and female candidates ivill be considered on an equal basis for all pashiom, inchding orderfiller jobs. Section 204: HiringPractice or Proccss
Wal-Mart will use validated intemie&questions for the order filler position. P.4RT THREE: JOB OFFERS AND FIACEMENT Section 301: List oflndividuals
The EEOC will provide to WaI-Mait, on a rolling basis until the termination of this obligation as described in Section 303 below, a list of individuals fbr instatement, at DC 6097. The list shalt include all eligible claimants,as defined insection 402,who indicate an interest in instatement in a claim fonn submitted to the Administrator (Section 501). The Commission will provide its initial list to WaI-Mait no later than 180 days afierthe
effective date of this Consent Decree. To the extent practicable, t.hme shall be at least 25 names on the list at all times. Should Wal-Mart learn at any time thai an address on this list is incorrect,incomplete,or ineffective,Wal-Mad shaa notify the EEOC within 10days of leaning of the defect. The EEOC will proniptlly notify Wal-Mart of any corrected or updated addresses.
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Section 302:-Instatement For the first 50 openings for an orderfdler position at DC 6097 that Wal-Man seeks
to fill, Wal-Mart will fill the job with an individual on the list provided by the EEOC (Section 301) subject to criteria that is applicable for ail new hires in the orderfiller position. For :he next 50 openings for an orderfillerposition, Wal-Mart will fill every other job with an individual on the iist subject to criteria that is applicable for all new hires in the order filler position. Thereafter, Wal-M& will fill one of every three oxferKilerpositions with an individual on the lisr provided by the EEOC (Section 301) subject to criteria that is applicable for aU new hires in the on3er”rillerposition. If any individual rejects the offer, Wal-Man will continue to offer the job to another individual from the fist until the job is filled or everyone on the list has rejected the job. An individual so offered ajob shag have no fewer thanthree business days from receipt of such ajob offer to accept the offer and upon request shall have no fewerthan two weeks to begin the job at Wal-Maa. If an individual rejects a full timejob offer, she will be removed .fromthe list and the EEOC will be notified by the reporting procedures (Section 803).
Whenever an individual is hired in compliance with this section tkom the list provided by rhe EEOC, rhat individual shail be hired into the open position at pay no less favorable tRan the then existing rate of pay for the position.
Section 303: Termination of Rightfnl Place Hiring Wal-Man shall use the instatement list for tilling the open orderfillerpositions until
the expirationof the term of this Consent Decree (Section 1101)or the list of females (Section 301)is depleted. An individuat will be removed fmmthe list if she rejecrs a N1
timejob offer (see Section 302).
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Section 304: Nonexetusivity Nothing in this Consent Decree wiIl preclude or prevent Wal-Mart from taking other
steps to m m i t orhire any potential ciass member. PART FOUR II104FTARY RELIEF FOR CLASS mi&’iBERS Section 401: iMonetary Refief
Within fourteen (14j days of entry ofthis Decree, Wal-Mart shall pay $11,700,@00 in monetary relief into a Qualified Settiemerit Fmd account (“QSF? to be established and administered by a third-party settlement claims administrator(“theAdministrator?, discussed below. Of this amount, S3,405,a77 shallconstitute back pay and the remaining $3,294,123shall constitute compensatorydamages payable to Eligible Ciaimants as determined by the EEOC. Wal-Maa shall notify EEOC after they have completed payment into the QSF. Section 402: Determination of IndividrtalsWho Are Eligible Chiaimants
EEOC shaii use the foHowing rniniinuni eligibility criteria to identify persons to receive monetary awards Egarding its hiring discrimination claim: persons who (a) are female; @) sought employment with W-&-Mart at DC 6097 at my time stating from January 1,1998through Februaiy 15,2005 (“relevant time period”): (c) whose applications do not conrain any exclusionary criteria as determined by EEOC expert Dr. Bamow; and (d) were denied employment at Ieast once as a result of an application submiad to WalMart during the relevant rime period. These individualsare d a e d to be “Eligible Claimants.” If an applicant fails ro~respondto the inquiries of the Administrator or indicates
1 To the extent a cIass member chaIlcnges rhe basis for her exclusion, a final determination will be made hy
&e mw.
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Case: 6:01-cv-00339-KKC -REW Doc #: 669 Filed: 03/01/10 Page: 8 of 17 - Page ID#: 13383
that she is not interested in receiving relief, such applicant u.21 be ineligibie for relief pursuant to this Consent Decree and wiU not be included in the proposed notice of distribution. If an applicant cannot be located, even after the conduct of an Accurint search, such applicant shall not be included in the pmpsed notice of distribution. Section303: Mechanisni for Challengesto Proposed Distribution
The Commission's determimrionsincluding the methodoiogy for &locating the QSF may be subject to review at a fairness hearing conducted by the Court. Should any potential Eligible Claimant object to her exclusion from the group of Eligible Claimants or to tfie methodology or believe that an error was made in the calcuhcion of her payment
under the methodology, she may comment or object to the distribution,in writing,by filing
a letter of disagreement with the EEOC (seeSection 603). The EEOC will file the letters of disagreement with the Coun which will schedule a fairness hearjng (Section 6Mj. WaIMart may not challenge the Commission's determinations as to the identity of Eligible Claimants, the methodology or individual determinations under the methodology. Section 404: Distribution of Monetary Relief
Distribution of monetary reiief to EEOC's Eligible Claimants shall be made by the Administrator. Within sixty (60)days of entry of the Consent Decree,the EEOC shall provide instructions to the AdminiStrddtOrregarding the criteria for inclusion in applicant subclasses and comsponding levels of relief. All distributions of monetary relief, both backpay and damages, to and among Eligible Claimants will be determined by the EEOC. Wal-Man shail not have any paiticipdtion or mle in determining the identities of Eligible Clamants or amountspayable to such persons. Any Eligible Claimam who receives $lOO,OOO or more shall nor he included onrhe Instatement List pursuant to Sectlon 301
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Section 405: Defendant’s Responsibility for WiMo4ding Defendant shall be responsible for paying its share of all applicable payroll taxes
!e.g.. FICA) to rhe QSF. Section 406: Duration of Period €orPayments Made to Eligible Clairnats
EEOC shall have six (6) months from the f d deadline for receipt of claim forms from potenrial Eligible Claimants, or within a reasonable time Thereafter, withiin which to file with the Coutt the proposed notice of disuibutionto be made to Eligible claimants fmm the QSF3as referenced in Section 601below. PART FIVE: CLAIMS ADMINSTRATOR Section 501: Administration of Payments
The QSF, and payments made from the QSF, shall he administered by the Administrator, which shall he Sealernen! Services, Inc., a qualified third-party settlement administfator &hatWE. selected by EEOC and Wal-Mart prior to entrg’ of this Decree. Upm miry of this Decree, the Adminisffatorshall commence irs duties in acm&ce with this Decree and insnuctions received from E O C . If EEUC determinesthat the Administrator cannot perform its duties in a proficient, cost-effective manner, EEOC may file a motion with the Court for appointment of a new Administrator. Prior to filing such motion, EEOC shall confer with U’al-Man in a good faith effooa to identify a new Administrator satisfactory to both parries for presentation to the Court.
The Administrator shall pmvide the following services pursuant to this Decree: (aj usrng pardmeters approved by EEDC and paper applicant marcrials, assist in identification of Eligible Claimants and appliwt sub-classes; (b) locating and correspondw with such persons, inciuding ma@ inquiries as to interest in instatemem by mailing a claim form;
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(cj receivmg and processing telephone and written inquiries,including claim forms, from potential Eligible Claimants; (d) calculating back pay relief using a methodology appnsved by EEOC; (e) tracking data r e & i potential Eligible Claimants and payments made fmm the QSF; (0 issuing payment to Rigibie Claimants Erom the QSF,making necessary paymli tax withholdmgs, reporting and remitting taxes, and tracking and accountin;: for ail undeliverable payments; (g) periodic reporting of activities to EEOC; (h)conferring with EEOC reparding administrationof the QSf;; and (i) any other duties that EEOC reasonably determines are necessary to administerthe QSF. Section 502: Wal-Mart’s Obligation to Assist Administrator
Within sixty (60)days of the entry of this decree, Waf-MM will forward to the Administrator the application packets for each applicant listed on Dr. Bamow’s April 30,
2009 class list. In addition,WatMart shall produce to Ihe EEOC all appIicationpackets for the
period of Januafy 1,1998 through April 17.1998, and January 1,2005through February 15,2005. The application packets shall be pxiduced separated by the time periods described a h v e and in alphabetical order for each time period. The EEOC, with the assistance of the Administaror. shall dcremhe the gender of applicants for these time periods. In addition, the EEOC, with the assistance of the Administrator, shail determine
whether Ihe applicants meet the eligibility criteria discussedinSection402.

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Wai-Mart shall pay the first $ZsO,OOO ofthe expenses of Q e itdministrator i n c u d in rhe come of carrying out its duties under this Decree. Section 5 W Communication between Wal-Mart and Administrator
The Administlator shall inform %%-Mart oithe amounts of back pay distributed to each Eligible Claimant from the QSF and all other infomationnecessary €orWal-Mart to pay to the QSF its employer payroil tax liabilities. Wal-Mart shall provide the A4dministratur84th all information and documents necessary to can): out its functions, including information to eFdblf2 the Administrator to &e payrnll tax withholdings. PART SIX ELlGlBlLITY D E T ~ ~ ~ I A~NAD FTAIR~NE~SS~HESAFUNG Section 601: lu’otice of Proposed Distribution
U’ithin six ( 6 )months iiom the final deadline for remipx of ciaim forms from potential Eligible Claimmts. the EEOC will file with the Court a proposed distribution. including the disrrjbution methodology, itemizing the amount of monetary relief for each Eligible Claimant. The Court will then issue a Notice of Proposed Distribution. The Administrator will send,via U.S. mail, a copy o f the Notice to each Eligible and Noneligible Claimant at her last knownaddress dong witb, in the case of an Eligible C i a i m t a brief explanation statins how the amomit for that individual was calculated. If any notices are returned to the Adminismator as undelivemble, the Administrator will attempt 10 find a more current addiess for those individuals via an Accurint search. If a more current address is found, the Administrator will re-mail the Notice to the more current address.

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Section 607,: Eligible Claimants Who Cannot be Located
Any individual for whom the Administlatoror the EEOC is unable to find a current address even after an Accnrim search will not be eligible for relief under t h i s Consenr
Decree. Section 603: Letters of Disagreement
Individuals may submit to the EEOC letters indicating any disagreement with the pmposed distribution, including any disagreenlent they may have with not being listed among the individuais who will receive an award or with the amount of any proposed payment.
This procedure will be the sole means by which individualsma!, challenge the pmposed dkmbution under this Consent Decree. Section 604: Fairness Hearing
If no letters of disagreement (Section 603)are submittedto the Court within 60 days
of the Administrator’s last mailing of the Notice o f Proposed Distribution (Section 601), the Court will issue a final order of distribuuon.
Ifa letter of disagreement is subniiiIedto the EEOC within 60 days of the Administrator’s last mailing of the Notice of Proposed Distribution.the EEOC shall file the letter of disagreement with the Court. The Coun will schedule a fairness hearing. The Court will serve notice of the fairness bearing on the padies, all eligible claimants, and any individuals who have submitted a letter of disagreement to the Court. At the fairness hearing, eligible claimants and individuals who have submitted letter objections will have an oppomnity to be heard. At the conclusion of the fairness hearing, the Coult shall issue an order that approves the EEOC’s distribution, comets errors that are bmught to tbe
12
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Couir’s attention through the cornen$and objectionprocess, or esrablishes a new methodology for distributing the QSF. However, neither the amoun~of the QSF;nor Defendant’s obligations under this Decree shail be increased. Section 605: Payments to Class Members
The Administrator will pay cfass members in accordancewith the Coua’s final order of distribution (Section 604). The Adminismtor will prepare and furnish W 2’s and, as appropriate. 1099 MISC forms to the Eiigible Claimants. PART SEVEN: CONTINCIWCY FOR KEMAINDVC FUNDS
If for whatever reason any part of the monetary amount of $11,700,300 pursuant to Sections 401 is unable to be paid as designated above, the remainder shall be splil evenly among lfie Eligible Claimants who receive an award pursuant to the Decree. In event
any pan of the monetaq amount is unable to be paid after attempting said additional
distribution among the Eligible Claimants, the remainder shall be donated to United Way of b u r & Comfy,London,Kenmcky.
PART E.iGm:REPORTING ~ ~ ~ I R E ~ ~ E ~ ~
Section 801: Procedure A11 =pons shall be sent to the attention ofLaurie A. Young, Regional.4rtorney, or
her successor, Equal Eniployment Opportunity Commission, 101West Ohio Street, Suite 1900,Indianapolis, IN 462044239,

13

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Section 802: Initial Report Wal-Mart will submit a report to the EEOC detailmg compiiauce with this Decree
wi&.in 120days of the date of the Decree.Wal-Mart will ceaify to the EEOC's R e g o d Atromey that it has complied with Sections 201,204, and 302 of this Decree and Will provide the Commission with a current copy of the materials created pursuant to Section 204; specifically,Wal-Man shall provide the EEOC with a copy of the validated interview questions for the orderfiler position and the validation study of these questions. Seetion 803: AnnuaI Reports
Wal-Mazt shall submit five annuai reporis to the Eu)C, the first due by November 1. 2010, the otheFj by November 1 of the succeeding years. In each report, Wal-Mart shall include the following informationfor the previous 12-monthperiod:
(i) the dates and topics of all tmining pmgrams offered pur;uant to Section202; (ii) a copy of a11 written materials relied on or disseminated at the training; (iii) the name and psition of each employee who attended training; (iv) any contacts Waf-Malt has had puDuant to Section 203 and any recruiting done, including a copy of all notices posted pursuant to Section 203: (v) an explanation of any changes made to nmiting methods orpmctices; (vi) the number of males and females who rrpptied for an o r d e a l e rposition or for an unspecified hourly warehousejob and the number of males and females who were hired for an ordefilerpositions at DC 6097; (vii) a list of individuals identifiedby name, sex, priorjob held, and dare of proinotion or transfer whom Wal-Maa has promoted ortransfed to an ordealer position at DC 6097;

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(viii) a copy of all correspondence (including text and ernaifs) sent to,or received fmm, any Eligible Claimant or on behalf of any Eligible Ciaimant;
(i) for each aigible claimant, alljobs of€ertdto the ~ d i v i d ~w1h,ich job@) the individual accepted, which jobfs) the individual was placed into, when the individual
began the job(s), individual’s c m t eqIoyment status with Wai-Mart, and the reason for termination (if applicable) and (x) copies of all advertisementsforthe orderfillerposition that were published during the reporting period and the publicatiom in which the advertisementsappeared. Section 804: Other Reports Wal-Mart shall also report to the EEDC each tirne that ir rejects an individual whom it was required to consider for employment pursuant to Section 302 ofthe Decree. This
report shall include the name of the applicant, the date of rejection, and the reason for the rejetion. l h i s report shatt be submitted to the EEOC within thirry (30) days frxm date of
rejection . Wal-iMart will noti& the EEOC if it makes any alterations to anti-discrimination
mining during the term of this Consent Decree. \Val-Mai? will send such notification wilhin (30) thiny days of any alterations. PART XINE: ADMINISTRATION OPTHE DECREE Section 901:Rofe of EEOC
The EEOC may review compliance with this Decree. As part of such review, the EEOC m y inspect the premises, interview employees, and requesr, examine, and copy documents upon reawnabte notice. From time to time,the Commissionmay request the oppomniq to review all, or a portion, of Wal-Mart’s applicationsor appticant flow logs.
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Section 902: EEQC h'lonitoring
In the event that the EEOC alieges that a violation of this Decree has o c d , the EEOC shall give notice to Wal-Man in writkg specifically identifying the allegd violation. Waf-Mart will have (45) foay-five days in which 10 tnvestigate and respond to
the allegation.
PART TEN:COSTS The Commission and Wal-Mart will k a r their own costs and fees of the litigation.
PART ELEVEN: RETENTION OF JURISDICTION
Section 1101: Term of the Decree The term of this Consent Decree shall be for five (5) years folIov,ingthe date of entry
of the Decree. Section 1102: Retention of Jurisdiction
Upon entry by the Court of the Order under Section 604, the parties agree to submit an Order of Dismissal,dismissing this actlon with prejudice, with the Court to retain jurisdiction for five (5) years solely for purposes of enforcing the terms of this Decree. Agreed to this 25" day of FebIuary 2010: FOR WALMART DTNSMORE & SHOHL U P 2500 National City Tower 101 South Fifth Street Louisville, Kentucky (5502) 581-8000
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FOR EQUAL EMPLOYMENTOPPORTL'NITY
COMMlSSION 101 W. Ohio Street Room 1900
Indianapolis, IN 46203
(317) 2267229
ES RISTRICT J W E

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 Case: 6:01-cv-00339-KKC -REW Doc #: 670-1 Filed: 10/15/10 Page: 1 of 9 - Page ID#: 13401

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION LONDON

Eastern District of Kentucky
FILED
OCT 14 2010

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

WAL-MART STORES, INC.

)

)

)

Defendant.

)

)

~.i L,JND()f;J LESliE Co WHITMER C!.ERK U S DiSTRiCT COURT
CIVIL ACTION NO. Ol-339-KKC

EEOC'S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO ENFORCE CONSENT DECREE

I. INTRODUCTION

Plaintiff Equal Employment Opportunity Commission ("EEOC") requests that the

Court enforce the terms and intent of the Consent Decree entered in this case on March 1,

2010. The EEOC alleges the following breaches by Wal-Mart: (1) failure to provide

instatement to female class members who have requested instatement at Wal-Mart

Distribution Center 6097 ("DC 6097), in violation of Section 302 of the Decree; and (2)

refusal to provide the EEOC with documentation upon reasonable notice, pursuant to Section

901 of the Decree.

II. BACKGROUND

On March 1,2010, the Court entered a Consent Decree resolving this matter. (DE #

669.) The Consent Decree was negotiated and drafted by counsel for the EEOC and outside

counsel for Wal-Mart (not trial counsel), as the parties prepared for a trial set to begin on

March 1,2010.

Case: 6:01-cv-00339-KKC -REW Doc #: 670-1 Filed: 10/15/10 Page: 2 of 9 - Page ID#: 13402
Section 302 of the Decree requires the instatement of class members who seek instatement. Specifically, the first 50 openings for orderfiller positions at DC 6097 were to be filled by Wal-Mart with class members who sought instatement. For the next 50 openings, Wal-Mart was required to fill every other position with a class member who sought instatement. Thereafter, the Consent Decree requires that every third orderfiller position be filled with a class member who seeks instatement until every class member who requested instatement has been hired or rejected the position.
In order to avoid the possibility ofWal-Mart having to hire an otherwise non-hirable individual, the Consent Decree stated that instatement would be "subject to the criteria that is applicable for all new hires in the orderfiller position." It was the intent of the parties that class members meet certain very minimal qualifications such as age (at least 18), legal right to work in the United States or any other unifonnly enforced minimum criteria, such as the exclusion of persons with certain types of felonies, or those tenninated by their most recent employer, if those were in fact unifonnly enforced minimum criteria.
On July 19,2010, pursuant to Section 301 of the Consent Decree, the EEOC provided counsel for Wal-Mart with an initial listing of 157 class members eligible for instatement. Before identifying class members and placing them on the instatement list, the settlement administrator confinned that each person met the minimum criteria for hire at the time they sought employment at Wal-Mart, as detennined by EEOC expert Dr. Burt Barnow.
The EEOC has recently learned that Wal-Mart has breached its obligation to instate the class members and is instead notifying the class members that they can apply for employment the same as any other outside applicant. Upon infonnation and belief, shortly after receipt of the EEOC's reinstatement list, Wal-Mart began using additional screening
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criteria, including a physical abilities test and Logistics Pre-Employment Assessment for orderfiller candidates. The parties never discussed or envisioned a physical abilities test or additional class member screening criteria at the time the Consent Decree was drafted since (1) no such tests were in place at that time and (2) the parties understood that instatement was unconditional, subject only to certain uniformly enforced minimal criteria.
On September 23,2010, Wal-Mart provided the EEOC with its required reporting on the class members who had sought instatement. Of the first 90 women contacted by WalMart, Wal-Mart reported that none ofthe women had been instated. It reported that 14 women took the physical abilities test and were not offered employment because they were "non-competitive." It reported that 4 women were not offered employment because they were "non-competitive" on the "Logistics Pre-Employment Assessment. It also reported 54 women opted out or failed to show for testing and 10 women were identified as "no show application" 1 (quite possibly as a result oflearning ofWal-Mart's latest tactic for excluding women). (Exhibit 1.)
After waiting as many as ten years or longer, women who are both qualified for and interested in work at DC 6097 are being excluded, despite a Consent Decree which provided them with the equitable remedy of instatement. See Declarations of Odie Greene, Amy Smallwood and Margaret Gooden, attached as Exhibits 2, 3 and 4 to the EEOC's Motion.
In addition to altering its duties under Section 302 of the Decree, Wal-Mart is also altering its duties under Section 901 of the Decree. Section 901 is one of two sections under the Administration Section of the Decree. Section 901 is entitled "Role of the EEOC" and it relates to compliance reviews by the EEOC. This section permits the EEOC to inspect the
1 The EEOC recently notified Wal-Mart of additional breaches of the Consent Decree: incorrectly reporting that class members were "no show" or unreachable. Should these disputes not be resolved, Court intervention will be sought.
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premises, interview employees and request, examine and copy documents upon "reasonable notice." It allows the EEOC the opportunity to review all, or a portion, ofWal-Mart's applications or applicant flow logs "from time to time."
The EEOC first requested documentation from Wal-Mart, pursuant to Section 901, on September 20,2010. The EEOC asked that the documentation be produced by September 27. Wal-Mart then indicated that it believed it was entitled to 45 days to produce the documents. The EEOC advised that "reasonable notice" did not equate to 45 days. The EEOC offered a one week extension, to October 4,2010. Wal-Mart has refused to produce the documentation in a timely manner. The EEOC requested additional documentation on October 1, 2010, to be produced within 7 days. That documentation has not been produced. Wal-Mart's unreasonable interpretation of "reasonable notice" as allowing it 45 days is interfering with the EEOC's ability to monitor compliance with the Decree in a timely manner.
III. ARGUMENT A. Instatement Does Not Mean Offering the Class Members the Opportunity to Reapply, the Same as Any Other Outside Applicant.
One of the essential purposes of Title VII is "to make persons whole for injuries suffered on account of unlawful employment discrimination." Albemarle Paper v. Moody, 422 U.S. 405, pinpoint cite (1975). Instatement is a preferred equitable remedy used to compensate an aggrieved party for loss of future earnings due to illegal adverse employment actions. Bullen v. Chafinch, 336 F. Supp. 2d. 357, 359 (D. Del. 2004). Instatement is "the presumptive equitable remedy in an employment discrimination case." Cloke v. West
Clermont Local School District Board of Education, 2006 WL 2873551 * 1 (S.D. Ohio June
29,2006), citing Fum v. School District of Hazel Park, 364 F.3d 753, 761 2004). For that 4


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reason, Section 302 of the March I, 20 I0 Consent Decree provided instatement to the class members. It was the intent of those involved in drafting the Consent Decree, by using the term "instatement" that the class members be placed in the same position that they would have been, absent discrimination. Id..;....Albemarle, 442 U.S. at 418-419.
Wal-Mart's distortion of the right to "instatement" into nothing more than the right to apply at DC 6097 like any other outside applicant, based upon the Section 302 phrase, "subject to the criteria that is applicable for all new hires in the orderfiller position" is irrational since: (l) the class members already had the right to apply to DC 6097 before and after the Consent Decree so there would be no need for a special Consent Decree provision; (2) instatement is a legal term with a legal meaning which Wal-Mart chooses to ignore; and (3) the parties could never have intended that class members be subject to a physical abilities test before reinstatement because no such test was being used at DC 6097 at the time the Consent Decree was drafted. See Neely v. Miller Brewing Co., Inc., 25 Fed. Appx. 370, 372 (6th Cir. 2002) (interpretation of contract clause as giving party right it already had would make contract clause "superfluous; clause should be given a non-redundant meaning).
Wal-Mart's attempt to impose new conditions on instatement is a tactic that has already been rejected by other courts. See M. Bullen v. Chafinch, 336 F. Supp. 2d 357,360 (D. Del. 2004) (because instatement is a remedy for illegal discrimination, there is the assumption that the aggrieved party is qualified for employment and so any attempt to subject the aggrieved party to new requirements or testing is rejected). "The remedy of instatement in this case will return Plaintiffs to the positions they would have occupied but for Defendants' illegal discrimination. Thus, Plaintiffs here are not receiving a windfall, but are being returned to what would have been the status quo had they not been victims of
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Defendants' illegal discrimination" rd. The parties resolved a lawsuit which alleged a pattern or practice of discrimination
against women in hiring. Some class members have waited more than ten years for a remedy. Although a make whole remedy was envisioned by those who drafted the Consent Decree, Wal-Mart is violating the intent of the Consent Decree by denying instatement to class members. As each day passes without instatement, their damages accrue. Because this Court retained jurisdiction over the Decree it has the power not only to enforce the Decree, but to act, as needed, to effectuate the purposes of the Decree. See Brown v. Neeb, 644 F. 2d 551 (6th Cir. 1981)(court properly enjoined layoff which was be contrary to purposes of consent decree).
B. Wal-Mart is Impeding the EEOC's Ability to Monitor Compliance with the Consent Decree by Failing to Respond to Section 901 Requests in a Timely Manner.
Section 901 of the Consent Decree is entitled "Role of the EEOC" and it relates to compliance reviews by the EEOC. This section permits the EEOC to inspect the premises, interview employees and request, examine and copy documents upon "reasonable notice." It allows the EEOC the opportunity to review all, or a portion, ofWal-Mart's applications or applicant flow logs "from time to time." The intent of this provision is to allow the EEOC prompt access to investigate possible breaches and ensure that Wal-Mart is complying with the Consent Decree. The EEOC sought documents from Wal-Mart, requesting compliance within 7 days.
Because the Consent Decree does not define "reasonable notice," "reasonable notice" needs to be defined based upon the factual circumstances and the prejudice that results from
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Wal-Mart's delay in providing access. See Western Kentucky Coca-Cola Bottling Co., Inc. v. Red Bull North America Inc., 2010 WL 65029* 6 (W.D. Ky. 1/5/10) (factual circumstances and harm must be evaluated in determination of "reasonable notice.")
It should be noted preliminarily that the Federal Rules of Civil Procedure allow a party 30 days to respond to a formal request for production. There is no reason why "reasonable notice" should be interpreted as giving Wal-Mart 50% more time than a formal Request for Production. Moreover, the urgency of the EEOC's requests is greater than a typical Request for Production because the EEOC makes requests when it believes that a breach of the Consent Decree may have occurred. Requiring the EEOC to wait 45 days or even 30 days to inspect the premises, interview employees and request, examine and copy documents is not "reasonable." Further adding to the need for a short response period is the fact that possible breaches relate to Wal-Mart's hiring process and additional breaches may be occurring on a daily basis. Finally, the records sought by the EEOC are neither voluminous nor difficult to gather. Wal-Mart's across the board demand for a 45 day response, regardless of the simplicity or nature of the request is by definition, not "reasonable." Accordingly, the EEOC respectfully requests that Wal-Mart be ordered to respond to Section 901 requests for information within 7 days
Respectfully submitted, LAURIE A. YOUNG, Regional Attorney MICHELLE EISELE, Supervisory Trial Attorney
~~~
Nancy Dean Edmonds Senior Trial Attorney
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Case: 6:01-cv-00339-KKC -REW Doc #: 670-1 Filed: 10/15/10 Page: 8 of 9 - Page ID#: 13408 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Indianapolis District Office 101 W. Ohio St., Suite 1900 Indianapolis, IN 46204 (317) 226-7229 FAX: (317) 226-5571 nancy.edmonds@eeoc.gov
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Case: 6:01-cv-00339-KKC -REW Doc #: 670-1 Filed: 10/15/10 Page: 9 of 9 - Page ID#: 13409
CERTIFICATE OF SERVICE The undersigned certifies that true and accurate copies of EEOC's Memorandum of Law in Support of Motion to Enforce Consent Decree was sent via first class mail on this 13th day of October, 2010 to:
Kathryn A. Quesenberry Dinsmore & Shohl L.L.P. 2500 National City Tower Louisville, KY 40202-3175
~~

Nancy Dean Edmonds Senior Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 101 W. Ohio Street, Suite 1900 Indianapolis, IN 46204 (317) 226-7229 FAX: (317) 226-5571 nancy.edmonds@eeoc.gov
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 Case: 6:01-cv-00339-KKC -REW Doc #: 671 Filed: 11/08/10 Page: 1 of 21 - Page ID#: 13437

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION AT LONDON

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
PLAINTIFF v. WAL-MART STORES, INC.
DEFENDANT

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)

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CIVIL ACTION NO. OI-339-KKC

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WAL-MART'S RESPONSE TO EEOC'S MOTION TO ENFORCE CONSENT DECREE

Defendant Wal-Mart Stores, Inc. ("Wal-Mart"), by and through counsel, hereby files its

Response to the EEOC's Motion to Enforce Consent Decree [Docket No. 670]. The EEOC's

motion is without merit and certain portions are also premature and/or moot. Wal-Mart

respectfully requests that the motion be denied.

I. INTRODUCTION

A Consent Decree was entered in this case on March 1,2010 [Docket No. 669], resolving

the EEOC's claim that Wal-Mart engaged in a pattern or practice of discrimination against

female job applicants at its London, Kentucky Distribution Center ("DC 6097"). In Section 302

of the Consent Decree, Wal-Mart agreed to instate class members who met certain requirements,

including that the class member meet the same hiring criteria applicable to all new hires in the

orderfiller position. The EEOC now claims that Wal-Mart has not met its instatement

obligations in that only two class members of the 157 on the EEOC's instatement list have

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received offers of instatement thus far. l Faced with the reality that many of the class members either have no interest in working at DC 6097 or simply lack the qualifications for the orderfiller position, the EEOC asks the Court to reject the plain language of the Decree and order Wal-Mart to instate class members without regard to their qualifications. The EEOC's motion is without merit: Wal-Mart has fully complied with its instatement obligations under the Consent Decree and will continue to do so.
The EEOC further claims that Wal-Mart has not met its obligations to provide information demanded by the EEOC under the Consent Decree in a timely manner; this complaint about Wal-Mart's production of requested documents are similarly meritless. First, this issue is moot because Wal-Mart has produced all of the documents the EEOC requested. Second, Wal-Mart produced these materials within the time frame set forth in the Consent Decree, whether the 45-day response period under Section 902 or the "reasonable notice" period under Section 901 is deemed to apply. Thus, the EEOC's claim that Wal-Mart is not in compliance with its Consent Decree obligations must be rejected.
Wal-Mart has fully complied with the letter and spirit of its obligations under the Consent Decree. Wal-Mart has made every effort to fill orderfiller job openings with class members and will continue to do so. As detailed below, its efforts to meet its instatement obligations have been 1$ldered by the EEOC's non-compliance with its commitments. As the EEOC has failed to meet its burden of proving a breach of the Consent Decree, Wal-Mart respectfully requests that the Court deny the EEOC's Motion to Enforce the Consent Decree.
1 The EEOC's allegation that "Wal-Mart, to date, has not instated a single class member," is demonstrably false. EEOC's Mot. To Enforce Consent Decree at 1. Two class members have received offers of instatement; one of them accepted the offer and began working at DC 6097 on October 7, 2010, a week before the EEOC filed its motion.
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II. STATEMENT OF FACTS A. Wal-Mart Made Diligent Efforts to Contact Class Members Regarding Available
Positions. On July 19, 2010, the EEOC submitted its first list of "157 class members who desired instatement" to Wal-Mart. See EEOC's Mot. To Enforce Consent Decree at 2. Prior to that time, DC 6097 had implemented a hiring freeze for external applicants for orderfiller positions to ensure that there would be positions available for class members when the EEOC presented its instatement list. Upon receipt on July 20,2010 of the EEOC's instatement list, DC 6097 began the process of contacting the 157 class members listed. An overwhelming majority of the class members on the list - 107 of 157 - stated they were not interested in an orderfiller position, did not respond to Wal-Mart's communications, failed to appear for a scheduled appointment at DC 6097, or failed to call back as they had promised to set up an appointment. As DC 6097 is approaching the holiday season, its busiest time of the year, filling the available openings with qualified orderfillers is a high priority for Wal-Mart. DC 6097 Instatement Process: DC 6097 has implemented a system for contacting class members on the instatement list. Using the information provided by the EEOC, DC 6097 human resources staff attempts to contact the class members by telephone to schedule appointments. If contact by phone is unsuccessful, DC 6097 sends emails and/or letters to the class members notifying them about available orderfiller positions. Consistent with DC 6097's general hiring practices, three attempts to contact the class member are made. When the class member appears for her appointment at DC 6097, she is asked to complete an application so that Wal-Mart has the necessary data for opening a personnel file. The class member also takes the computerized Logistics Pre-Employment Assessment, , which evaluates work-related skills and competencies. If the class member receives a "competitive"
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score on the Logistics Pre-Employment Assessment, then the Physical Abilities Test is explained

and the class member given the choice of having the test administered in English or Spanish.

The class member is then scheduled to return to DC 6097 to complete the Test. If the class

member receives a "competitive" score on the Physical Abilities Test, a reference check is

performed and the class member is scheduled to come back for an employment history review.

At that time, the class member signs consent forms for a drug screen and a criminal background

check. If the class member meets all requirements, she is then given a conditional job offer and,

if she accepts, she completes a Fair Credit Reporting Act Disclosure and Authorization Form.

Once the class member clears the criminal background check and drug screening test, she is

scheduled for orientation and to begin work. 6097 Hiring Process Flowchart & Checklist (Exh.

1).

Status of the 157 Class Members: Pursuant to Section 804 of the Consent Decree, on

September 23, October 21 and November 5, 2010, Wal-Mart submitted to the EEOC its report on

instatement list class members who were rejected for employment. See 9/23/10, 10/21/10 and

11/5/10 Section 804 Emails and Reports (Exh. 2) (filed under seal). The latest status of the 157

class members on the EEOC's initial instatement list is:

Stated that they were not interested in the orderfiller position

68

Failed to appear for an appointment at DC 6097

30

Did not respond to DC 6097's communications

4

Could not be located

2

Received non-competitive score on Logistics Pre-Employment Assessment

5

Received non-competitive score on Physical Abilities Test

35

Failed to call back after being contacted by DC 6097

5

Currently in the instatement process

6

Received an offer for an orderfiller position

2

See Exh. 2, 11/5/10 Section 804 Report. Of the two offers made to class members, one was

declined and the other class member began work at DC 6097 on October 7, 2010.

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B. The Physical Abilities Test Was Designed Prior to the Consent Decree and Has Been Properly Validated. While the EEOC accuses Wal-Mart of implementing the Physical Abilities Test "shortly
after receipt of the EEOC's reinstatement [sic] list" in order to exclude class members from employment, the Test was developed internally for several years before the Consent Decree was negotiated and was implemented nationwide at all Wal-Mart Grocery Distribution Centers, including DC 6097, in June 2010. In 2008, Wal-Mart retained an independent company, Applied Psychological Techniques, Inc., to perform a job analysis of multiple Wal-Mart jobs, including Grocery Orderfiller. This 2008 job analysis identified 65 tasks that were "essential to the Grocery Orderfiller position." Development and Validation of Physical Performance Tests for the Selection of WalMart Grocery Orderfillers at 2 (Feb. 2010) (Exh. 3) (filed under seal). The job analysis results were utilized by another independent company, Human Performance Systems, Inc. ("HPS"), to conduct a secondary job analysis for the orderfiller job and to create "an essential task list and identif[y] ... the physical abilities associated with the essential tasks." Id. This secondary job analysis found that muscular strength, muscular endurance, explosive strength, trunk strength, aerobic capacity and flexibility are required physical abilities for the orderfiller job. Id at 5-7.
After indentifying the required physical abilities to successfully perform the orderfiller job, HPS then conducted a detailed analysis "[t]o design a physical performance test battery that is a valid predictor of job performance and fair to protected groups." Id. at 8. HPS identified tests that assessed essential physical abilities for the orderfiller job. Id. The tests were then adapted to "assess capabilities highly related to the job." Id. After performing these steps, HPS was able to develop a Physical Abilities Test that is a "predictor[] of successful Grocery
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Orderfiller physical job performance." ld. The Physical Abilities Test has the following three
components:
• The Carton Lift Test -- This evaluates an individual's ability to manipulate and handle cases of varying weights (19-55 lbs.), similar to the items in the distribution center. The objective is to move as many cartons as possible in a set period of time. The applicant must lift each carton, carry it 15 feet and place it on the correct platform at different height levels.
• The Sit-Up Test -- This records how many sit-ups the individual can complete in one minute.
• Arm Endurance Test -- Individuals use their hands to rotate a handled crankshaft know as the "arm ergometer," which is similar to bicycle pedals. This test records the number of revolutions completed in a two minute period.
The candidate's scores are input into a computer program that calculates whether, when
combining all test results, the individual is "competitive" or "non-competitive" for the orderfiller
job. To ensure that there is no bias or manipulation, the Wal-Mart employees administering the
tests do not know what scores will result in a competitive classification. ld
C. Wal-Mart's Adoption of the Logistics Pre-Employment Assessment Does Not Violate the Consent Decree. Similarly, Wal-Mart did not, as the EEOC asserts, adopt the Logistics Pre-Employment
Assessment as an after-the-fact attempt to circumvent its instatement obligations. The
Assessment is a test of a candidate's skills/competencies regarding work-related issues such as
safety awareness, integrity, decision-making, quality orientation and communication and was
implemented nationwide in Wal-Mart Distribution Centers in 2005. Throughout the litigation's
relevant time period of 1998 to February 2005, Wal-Mart used a similar pre-employment
assessment known as the ORION survey. ORION materials were produced during litigation to
the EEOC, and Wal-Mart managers testified regarding its use in the hiring process. Dep. of Jeff
Akers at 113-15 (excerpt attached as Exh. 4). The Logistics Pre-Employment Assessment is a
similar, but updated, test. Like the Physical Abilities Test, the Logistics Pre-Employment
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Assessment was validated and implemented well before Wal-Mart's receipt of the EEOC's first instatement list. D. The EEOC Has Hindered Wal-Mart's Instatement Efforts.
As discussed above, Wal-Mart has exhausted the EEOC's July 20,2010 instatement list of 157 class members. Pursuant to Section 301 of the Consent Decree, the EEOC must "on a rolling basis" provide an instatement list and, "[t]o the extent practicable, there shall be at least 25 names on the list at all times." Section 402 provides that it is the EEOC's responsibility to determine who are "Eligible Claimants" and only eligible claimants "who indicate an interest in instatement in a claim form submitted to the Administrator" shall be included on the instatement list. Consent Decree, Section 301. The EEOC has not followed the instatement procedures, with the result that Wal-Mart has been unable to fill the orderfiller openings it has held open for the class members.
On multiple occasions, Wal-Mart has requested that the EEOC supplement the instatement list with additional class members. The EEOC responded by stating that it is "not required to and is unable to provide [Wal-Mart] with additional class members at this time." 10/1/10 Correspondence from Nancy Edmonds (Exh. 5). In addition, the initial instatement list supplied by the EEOC did not meet the Consent Decree requirements in that a high proportion of the class members on the list were not interested in an orderfiller position. Of the 157 class members on the instatement list, 107 indicated they were not interested in the job, failed to appear for appointments, did not respond to Wal-Mart's communications, or failed to return calls to DC 6097 to schedule appointments, after promising to do so.
On November 4,2010, over three months after providing the first list, the EEOC finally produced a second instatement list of 163 class members. This large list undermines the EEOC's
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earlier contention that it was "unable to provide" Wal-Mart with additional class members for instatement in October. The EEOC is obligated to provide names on a rolling basis and it stands to reason that if the EEOC produced 163 names in early November, it could have provided at least some class members' names in October. This would have enabled Wal-Mart to contact, hire and train class members so they would be fully trained when the influx of holiday business arrives. (Wal-Mart's orderfiller training process takes up to five weeks.) Unfortunately, the EEOC's failure to provide class members' names on a rolling basis, as it is required to do, will prevent Wal-Mart from having trained and optimally productive orderfillers to handle the holiday rush.
III. ARGUMENT AND AUTHORITIES A. Wal-Mart Has Fully Complied with the Instatement Provisions in the Consent
Decree. 1. Wal-Mart's Use of the Physical. Abilities Test and the Logistics Pre-
Employment Assessment Is Consistent With the Consent Decree. The EEOC's allegation that Wal-Mart has violated the Consent Decree ignores the plain language of the Decree expressly allowing use of such hiring criteria. Wal-Mart's instatement obligations are defined in Section 302, which provides that "Wal-Mart will fill the [openings for an orderfiller position] with an individual on the list provided by the EEOC (Section 301) subject to criteria that is applicable for all new hires in the orderfiller position." Consent Decree, Section 302 (emphasis added). The EEOC ignores the plain meaning of this "subject to" provision and argues that the parties intended this language to mean only that class members must be at least 18 years of age, have the legal right to work in the United States, must not have committed certain felonies, and must not have been terminated by their most recent employers. EEOC's Memorandum of Law at 2 [Docket No. 670-1]. The EEOC's argument about the parties' intent is contradicted by the unambiguous language of the Consent Decree. Specifically,
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the Decree expressly states that in order for class members to be included on the instatement list, their applications must not have included "exclusionary criteria" as defined by EEOC expert Dr. Burt Barnow, which includes most, if not all, of the criteria described above. If the parties had truly intended that class members on the instatement list be subject only to "minimal criteria," as asserted by the EEOC, then Section 302's language is redundant; such "minimal criteria" is considered before a class member is placed on the instatement list The result would be that every person on the instatement list must be offered a position, which is contrary to the plain language of the Consent Decree allowing Wal-Mart to consider "criteria that is applicable for all new hires."
Intent of the Parties Is Discerned from the Decree: Consent decrees have attributes of both contracts and judicial decrees. Brown v. Neeb, 644 F.2d 551, 557 (6th Cir. 1981). Thus, consent' decrees must be interpreted in accordance with the rules of contractual construction. Id. With these principles in mind, a consent decree "must be construed as it is written, and not as it might have been written." United States v. Armour & Co., 402 U.S. 673, 682 (1971). "The scope of a consent decree must be discerned within its four comers, and not by reference to what might satisfy the purposes of one of the parties." Id. Thus, applying rules of contractual construction, when the language of a consent decree is clear and unambiguous, the intent of the parties is discerned from the words used in the decree, and those words should be enforced as written. See Travelers' Indem. Co. v. Bailey, 129 S. Ct. 2195,2204 (2009) (noting, in dicta, that "it is black-letter law that the terms of an unambiguous private contract must be enforced irrespective of the parties' subjective intent"); see also Taggert v. United States, 880 F.2d 867, 870 (6th Cir. 1989) (holding that unambiguous contractual terms must be enforced as written).
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The language of Section 302 is clear and unambiguous: Wal-Mart's instatement obligation for class members is "subject to criteria that is applicable for all new hires in the orderfiller position." Under the plain meaning of this provision, Wal-Mart must offer orderfiller jobs to class members if those class members meet the same criteria applicable to all new hires in the orderfiller job. The EEOC complains that class members must pass a Physical Abilities Test and Logistics Pre-Employment Assessment prior to being hired, yet all applicants for orderfiller positions nationwide must pass those tests. The tests are no different than a drug screening or criminal background check, about which the EEOC does not complain. Class members are subject only to criteria that all new orderfiller hires must satisfy; thus, Wal-Mart's hiring policies meet the requirements of Section 302 and are compliant with the Consent Decree.
The EEOC's Interpretation Twists the Decree's Plain Language: The EEOC's argument ignores the fundamental rules of contract interpretation. The Court must give effect to every word of the Consent Decree and avoid "interpretation[s] that render[] part of it superfluous." JSC Terminal, LLC v. Farris, No. 5:1O-CV-00040-R, 2010 U.S. Dist. LEXIS 52481, at *8 (W.D. Ky. May 27,2010) ("An interpretation of a contract that gives meaning to all of its provisions· is favored over an interpretation that renders part of it superfluous."); see also American Cont'l Life Ins. Co. v. American Trust Co., 5 F.2d 71, 73 (6th Cir. 1925) ("[I]t is a well-settled rule of construction that effect must be given to each word, and that each word must be presumed to have a purpose."). The EEOC's construction of Section 302 would render the "subject to criteria" language superfluous. The list from which Wal-Mart must instate class members is governed by Section 301, which provides that "the list shall include all eligible claimants, as defined by Section 402." Section 402 in tum defines eligible claimants as females who applied during the relevant time period, were denied employment, and "whose applications
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Case: 6:01-cv-00339-KKC -REW Doc #: 671 Filed: 11/08/10 Page: 11 of 21 - Page ID#: 13447
do not contain any exclusionary criteria as determined by EEOC expert Dr. Bamow." In his March 1, 2007 report, Dr. Bamow listed the following minimum criteria used to qualify individuals as class members:
• age 18 or over; • permission to work in the United States; • no felony conviction. 3/1/07 Expert Report of Burt Bamow at 19 n.15 (excerpt attached as Exh. 6). These are the same criteria that the EEOC argues are referred to in the "subject to criteria" language of Section 302. See EEOC Memorandum of Law at 2. However, in order to be "eligible claimants" for inclusion on the instatement list, the applicants must already meet these criteria pursuant to Section 402. Under the EEOC's construction, anyone on the instatement list would already meet the "criteria that is applicable for all new hires in the orderfiller position," thereby rendering this language meaningless, redundant and superfluous. Thus, the EEOC's new interpretation of Section 302 is impermissible under the rules of contractual construction. Contract Interpretation Principles Apply: The EEOC relies upon a number of inapposite and distinguishable cases in support of its argument that instatement of class members must be "unconditional." EEOC Memorandum of Law at 5. These cases discuss the power of courts to award instatement as an equitable remedy. None of the cases discusses the enforcement of instatement provisions in consent decrees or other contractual arrangements, a key distinction. Here, instatement is a contractual remedy, not an equitable remedy. Here, the duty of instatement arises from the Consent Decree, not from the Court's equitable powers. Thus, because consent decrees are interpreted as contracts, the Court must interpret Wal-Mart's instatement obligations by examining the clear, unambiguous language within the four comers of the Consent Decree. See Armour & Co., 402 U.S. at 681-82.
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After lengthy negotiations, the parties agreed in the Consent Decree that class members would be instated into orderfilling jobs "subject to criteria that is applicable for all new hires in the orderfiller position." Thus, the clear manifestation of the parties' intent is that class member instatement is conditional. If the EEOC truly believed that the "subject to" language referred to the class members' ages, felony convictions and ability to work in the United States, it should have negotiated for such explicit requirements in the Consent Decree. The EEOC cannot ask the Court to rewrite this section under the guise of enforcing the Consent Decree.
Wal-Mart's Hiring Process is Appropriate: Wal-Mart has the express right under the Consent Decree to require the instatement list class members to meet "criteria that is applicable for all new hires in the orderfiller position." It is undisputed that, like its drug screening and criminal background check, Wal-Mart's Physical Abilities Test and Logistics Pre-Employment Assessment apply to all new hires for the grocery orderfiller position - not just at DC 6097 - but nationwide. Applying the same criteria to the class members is consistent with the Consent Decree and the Court should reject the EEOC's arguments to the contrary.
Moreover, the EEOC has disingenuously argued that the Physical Abilities Test was instituted at DC 6097 solely as a means of excluding class members from orderfiller jobs, referring to the test as "Wal-Mart's latest tactic for excluding women." EEOC's Memorandum of Law at 3. Wal-Mart has demonstrated that the EEOC's argument is without merit? In addition, the EEOC's position is contrary to its own testifying experts' advocacy of a validated strength test based on ajob analysis as a means of avoiding sex discrimination. "The absence of an objective measure of physical strength poses a significant obstacle to female job candidates at
2 Assessing the class members' physical ability to perform the orderfiller job duties provides protection to the class members by ensuring that they are not placed in a position where they could suffer an on-the-job injury. In addition, it offers the person undergoing the test a realistic sense of the level of physical activity required by the job.
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DC 6097." See 8/15/08 Expert Rebuttal Report of Richard Martell at 28 (excerpt attached as Exh. 7). Dr. Richard Martell further testified thatWal-Mart's prior hiring practices were deficient because "an objective valid measure of physical strength and ability were not included." Dep. of Dr. Martell at 267 (excerpt attached as Exh.8). In response to a question about what was lacking in Wal-Mart's prior hiring procedures, Dr. Martell testified:
In addition, ajob applicant's strength and lifting ability, apparently, is a really key element, a key criterion, if you will. And there is not a valid, that I've seen, a valid, objective measurement instrument in place to assess a candidate's strength, lifting ability. Id. at 288. Dr. Martell further testified that Wal-Mart could improve its hiring policies by conducting a job analysis and including strength testing. Id at 290. Now that Wal-Mart has conducted a job analysis and used that analysis to form a validated and objective strength test, the EEOC has changed its position, which is disingenuous at best. Furthermore, there is nothing within the Consent Decree that prevents Wal-Mart from implementing new or different hiring processes, such as a physical abilities test, at any time during the duration of the Decree. Nowhere in Section 302 does it state that class members must be instated using only the criteria in place during the litigation's relevant time period, 1998 to 2005. It is unrealistic to believe that Wal-Mart's hiring processes were frozen in time from 2005 to entry of the Decree in 2010 and would remain so. Indeed, it has been the EEOC's position throughout this litigation that Wal-Mart must use a validated and objective test to measure applicants' strength. The EEOC can hardly argue that it did not contemplate that DC 6097 would begin using such a test when it was advocated by its own expert. The express language of the Consent Decree, Section 302 allows Wal-Mart to use a physical abilities test and other criteria in determining whether class members on the instatement
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listare eligible for employment as an orderfiller. Wal-Mart is following the procedures espoused by the EEOC's expert witnesses. The EEOC's motion is without merit.
2. Wal-Mart Is Not Forcing Class Members to "Apply" for Open Positions. The EEOC further contends that Wal-Mart has violated the Consent Decree by forcing class members to "apply" for orderfiller positions, rather than simply instating them. Again, the EEOC's position ignores the plain language of Section 302 and the practical necessity of obtaining the information provided in a completed application. Asking class members to complete an application and provide their personal information is not the same as requiring them to apply and compete with other applicants for an open position. Again, the EEOC's allegation of non-compliance is without merit. The EEOC's argument that class members are being forced to apply for jobs "like any other outside applicant" rather than being instated also ignores the key distinction between an external applicant applying for an orderfiller position and a class member being instated pursuant to the terms of Section 302 of the Consent Decree. If an external new hire applicant is competitive on the Physical Abilities Test and the Logistics Pre-Employment Assessment, that applicant may be hired by Wal-Mart, but Wal-Mart is not obligated to hire that applicant. If a class member, on the other hand, is competitive on these tests, that class member will receive a conditional offer of employment.3 Pursuant to Section 302, Wal-Mart is required to instate that class member. Thus, contrary to the EEOC's arguments, class members receive the intended preferential treatment over "other outside applicant[s]" and Wal-Mart is not requiring applicants to "apply" for open orderfiller positions.
3 The offer is conditioned on passing a drug screening test and criminal background check.
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Asking the class members to provide the information and consents generally captured on an application form is a standard requirement during the hiring process. Wal-Mart uses the information to create the personnel file, and the application form is the vehicle by which WalMart obtains the class member's consent for drug screening and the criminal background check. Suggesting that Wal-Mart should forego this step in the process is simply unreasonable and unrealistic. As with the Physical Abilities Test, the EEOC attempts to impugn Wal-Mart's motives without understanding the purpose behind the requirement and the manner in which it is carried .out. Had the EEOC waited for Wal-Mart's production of information regarding the instatement process, itwould have recognized that all ofWal-Mart's actions are complaint and well-documented.
3. The EEOC Has Not Complied With Its Consent Decree Obligations. The EEOC has failed to comply with its obligations under the Consent Decree, namely: (1). providing a list of individuals for instatement on a rolling basis, with the goal of maintaining at least 25 names on the list at all times (Section 301); and (2) ensuring that the class members listed on the instatement list indicate their interest in instatement in writing (Section 301). The cumulative impact of the EEOC's non-compliance is that Wal-Mart has not received a sufficient number of eligible class members interested in instatement to enable Wal-Mart to meet its instatement obligations. The EEOC appears to blame its failure to comply on the Administrator. See 9/28/10 Correspondence from Nancy Edmonds (Exh. 9). To be clear, under Section 301, the EEOC is ultimately responsible for compiling the instatement list. Moreover, the EEOC has the sole authority to hold the Administrator accountable for its duties. Pursuant to Section 501, "[i]f EEOC determines that the Administrator cannot perform its duties in a proficient, cost-effective manner, EEOC may file a motion with the Court for appointment of a new Administrator." The
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EEOC has not sought appointment of a new Administrator and thus, cannot use the Administrator's asserted shortcomings as an excuse for its own non-performance.
Wal-Mart is completely dependent on the EEOC to provide an instatement list and cannot meet its instatement obligations unless the EEOC performs its obligations in conformance with the Consent Decree. A black-letter contract principle is that a material breach of c011tract by one party excuses performance by the other party. See In re LWD, Inc., No. 5:06-CV-00206-TBR, 2009 U.S. Dist. LEXIS 119642, at **12-13 (W.D. Ky. Dec. 23, 2009). Here, the EEOC has failed to meet its obligations to provide an instatement list that conforms with the Consent Decree's requirements and cannot be heard to complain that Wal-Mart has not met its instatement obligations.
It has been over three months since the EEOC provided its first instatement list. WalMart notified the EEOC when the list was exhausted. Despite multiple requests for a rolling instatement list of at least 25 names as required by the Decree, the EEOC has not complied with its obligation to provide a rolling instatement list, leaving DC 6097 in a very difficult situation and failing to act in the class members' interests. Only on November 4, 2010 did Wal-Mart receive a second instatement list from the EEOC, with 163 names. How~ver, because the orderfiller position requires up to five weeks of training, this belated list does not help WalMart's operations, nor does it cure the EEOC's lack of compliance. The holiday season is the busiest time of year for the Distribution Center and DC 6097 must have a full complement of trained orderfillers to handle this increased demand. DC 6097 is required to hire class members from the instatement list to fill these openings and, at this juncture, is not allowed to hire external candidates, necessitating the imposition of mandatory overtime for DC 6097 orderfillers. Mandatory overtime places a great burden - physically and personally - on current Associates.
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Of critical importance to the instant motion, Wal-Mart is unable to instate waiting class members, who could number over 1200, because of the EEOC's failure to provide a rolling instatement list to Wal-Mart.
Moreover, the fact that so many class members have told DC 6097 that they have no
interest in instatement further calls into question the EEOC's compliance with its obligation to confirm the class members' interest before including their names on an instatement list.4 The EEOC's own failure to comply with its Consent Decree obligations renders it powerless to claim that Wal-Mart is in breach. B. Wal-Mart Has Complied with its Obligations to Provide Information.
1. The EEOC's Argument Regarding the Document Production Is Moot Because Wal-Mart Has Produced the Requested Documents.
Despite Wal-Mart's agreement to produce the requested materials, the EEOC prematurely moved the Court to compel "Wal-Mart to comply with Section 901 of the Decree's
'reasonable notice' provision by responding to requests made by the EEOC, within seven days."
EEOC's Mot. to Enforce Consent Decree at 5. Wal-Mart has met its obligations to produce
information in a timely manner. Regardless, the EEOC's request for relief is moot because WalMart has already produced all of the information the EEOC requested in its September and October 2010 correspondence. As promised numerous times, this production was served on the EEOC by November 4, 2010.5
4 It appears that the EEOC has intentionally flooded Wal-Mart with a long list of names in order to claim a breach by Wal-Mart and seek the imposition of new requirements by the Court. In point of fact, the EEOC has provided Wal-Mart with only 48 names of class members who are interested in instatement. From this list, Wal-Mart has offered employment to two class members, one ofwhom rejected the offer. 5 Wal-Mart advised the EEOC that its provision of requested materials was not "ripe for judicial intervention" because Wal-Mart had not refused to provide the materials. Wal-Mart further submits that, had the EEOC waited to review the materials, it would have recognized that the complained-of tests were properly validated and implemented before Wal-Mart received the EEOC's instatement list. By prematurely filing this Motion, the EEOC engaged this Court's enforcement jurisdiction without any reason to do so.
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While the EEOC's premature request is now moot, in the interest of fairness and in an
effort to avoid similar disputes in the future, Wal-Mart will respond to the EEOC's arguments that Wal-Mart's production was untimely.
2. The EEOC's Request for Information Is Governed by Section 902. Although the EEOC's Motion only mentions Section 901 of the Consent Decree, as it
stated in its September 20, 2010 correspondence, this issue actually involves review of both
Section 901 and Section 902. Section 901 provides in relevant part:
The EEOC may review compliance with this Decree. As part of such review, the EEOC may inspect the premises, interview employees, and request, examine, and copy documents upon reasonable notice.
Thus, under Section 901, upon reasonable notice, the EEOC may have access to certain
information for the purpose of reviewing Wal-Mart's ongoing compliance with the Consent
Decree. "Reasonable notice" is not defined in the Consent Decree.
Section 902, on the other hand, applies when the EEOC alleges that Wal-Mart has
violated the Consent Decree, providing:
In the event that the EEOC alleges that a violation of this Decree has occurred, the EEOC shall give notice to Wal-Mart in writing specifically identifying the alleged violation. Wal-Mart will have (45) forty-:five days in which to investigate and respond to the allegation.
Thus, under Section 902, when the EEOC alleges that Wal-Mart has violated the Consent
Decree, Wal-Mart has 45 days to respond.
Although the EEOC has characterized its correspondence as a mere request for
information under Section 901, the EEOC expressly gave notice of alleged violation under
Section 902. The opening paragraph ofthe EEOC's September 20,2010 correspondence states:
It has come to our attention that Wal-Mart is violating the intent of the Consent Decree by failing to offer instatement to the class members as envisioned by the parties at the time the Decree was drafted. Pursuant to Sections 901 and 902 of the Consent Decree, we are notifying you of the violation and are further
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requesting the immediate production of documents relating to the newly instituted 'physical abilities test. ' See 9/20/10 Correspondence from Nancy Edmonds (Exh. 10). Thus, the purpose of the EEOC's letter was not to seek information to determine whether Wal-Mart was complying with the Decree; the EEOC had already "determined" that Wal-Mart had violated the Decree. Accordingly, under Section 902, Wal-Mart had 45 days to investigate and respond to the EEOC's allegation. The EEOC attempted to circumvent this 45 day response period by invoking Section 901, even though it had already determined that Wal-Mart had violated the Decree. This is exemplified by the EEOC's subsequent September 28, 2010 correspondence demanding that Wal-Mart respond to the EEOC's allegations that Wal-Mart violated the Decree by Thursday, September 30, 2010, a mere eight days after it first notified Wal-Mart of its alleged breach. See Exh. 9. Wal-Mart has never refused. to provide the requested information and, in fact, has steadfastly and repeatedly told the EEOC that, in compliance with its obligations under Section 902, it would produce the requested information on or before November 4, 2010, 45 days after the EEOC's first notice of violation. See 10/1/10 Correspondence from Kathryn Quesenberry (Exh. 11). The EEOC's demand that Wal-Mart produce the requested information prior to that date circumvents the Decree itself and violates the spirit and the letter of Section 902. 3. The EEOC's Demand that Wal-Mart Produce Information Is Not
"Reasonable Notice." Even if Section 901 did apply to the EEOC's demand for information, the EEOC did not provide Wal-Mart with "reasonable notice" by seeking a response in one calendar week. As the EEOC concedes, reasonable notice is not defmed in the Consent Decree. This ambiguous phrase allows Wal-Mart sufficient time under the circumstances to gather the requested information. Given the voluminous materials demanded by the EEOC, 45 days to produce the requested
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information is more than reasonable. This is especially true in light of the fact that the EEOC has not asked Wal-Mart to respond to just one set of requests, but rather three separate requests for documents. See 9/9/10, 9/20/10, 10/1/10 Correspondence from EEOC (Exh. 12). All told, Wal-Mart has produced 1,346 pages of documents, including a DVD, in response to EEOC's demand for information. This burden is further compounded by the fact that these requests for documents were issued at the same time Wal-Mart was preparing and compiling information for its first Section 803 Annual Report, comprised of 414 pages of material and due on November 1, 2010. With these considerations in mind, the EEOC's demand that Wal-Mart produce these materials within seven days was not "reasonable notice." Wal-Mart's 45-day response period was more than reasonable under the circumstances.
IV. CONCLUSION Wal-Mart has worked diligently to comply with its obligations under the Consent Degree and instate class members in available orderfiller jobs. Contrary to the EEOC's arguments, WalMart is not asking these individuals to "apply" for jobs, nor has Wal-Mart violated Section 302 of the Consent Decree by requiring them to pass a Physical Abilities Test, the Logistics PreEmployment Assessment, drug screening or any other requirement generally applied to applicants for the orderfiller position. These tests are applied nationwide to all applicants for orderfiller positions and thus are expressly allowed by Section 302. The EEOC, however, has not met its obligations in identifying class members eligible for instatement, which has hindered Wal-Mart's ability to meet its instatement commitments. Finally, Wal-Mart has consistently complied with its production requirements under the Consent Decree.
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For all of the reasons set forth herein, Wal-Mart respectfully requests that the Court deny the EEOC's Motion to Enforce the Consent Decree.
Respectfully submitted,

Kathryn A. QuesenberrY" Sadhna G. True Michael J. Henry DINSMORE & SHOHL LLP 101 South Fifth Street, Suite 2500 Louisville, Kentucky 40202 Telephone: (502) 581-8000 Facsimile: (502) 581-8111
Counsellor Defendant Wal-Mart Stores, Inc.

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served, via first-class mail, to the following attorneys ofrecord, on the 8th day ofNovember, 2010:
Nancy Dean Edmonds Equal Employment Opportunity Commission Indianapolis District Office 101 West Ohio Street, Suite 1900 Indianapolis, Indiana 46204
Aimee L. McFerren Equal Employment Opportunity Commission 600 Dr. Martin Luther King, Jr. Place, Suite 268 Louisville, Kentucky 40202

810482v3

C6ll11Sd for Defendant

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 Case: 6:01-cv-00339-KKC -REW Doc #: 673 Filed: 11/29/10 Page: 1 of 16 - Page ID#: 13490

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION LONDON

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

WAL-MART STORES, INC.

)

)

)

Defendant.

)

----------------------------------~)

CIVIL ACTION NO. Ol-339-KKC

EEOC'S REPLY IN SUPPORT OF MOTION TO ENFORCE CONSENT DECREE

The EEOC's Motion to Enforce seeks the Court's assistance in interpreting and enforcing two Consent Decree provisions upon which the parties disagree: (1) Wal-Mart's obligation to "instate" or provide "rightful place hiring" for class members (Sections 301/302/303); and (2) Wal-Mart's obligation to allow EEOC inspections and/or provide documentary evidence upon "reasonable notice" (Section 901). Despite the limited nature of the relief sought by the EEOC, Wal-Mart's Response to the EEOC's Motion to Enforce addresses issues not properly before the Court such as: (1) whether Wal-Mart's current hiring process is "appropriate"l (Response at 12-13), and (2) whether Wal-Mart's Physical Abilities Test or Logistics Pre-Employment Assessment are properly validated 2 (Response at 5-6 and

I The "appropriateness" ofWal-Mart's hiring process is not at issue. At issue is whether Wal-Mart is in violation of the Consent Decree and/or the intent thereof, by failing to instate the class members and instead inviting them to apply for employment. 2 Whether Wal-Mart's new Physical Abilities Test and/or its Logistics Pre-Employment Assessment are properly validated and/or have a disparate impact on women is currently the subject of several administrative charges that are being investigated by the EEOC's Louisville office. These charges are class charges that affect female applicants across the country. This issue will be ripe for litigation only if a "cause" Determination is issued and/or after the EEOC or a Charging Party files a lawsuit. Wal-Mart's attempt to bring the question of

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Ex. 3). Because those issues are not properly before the Court the EEOC respectfully
requests that the Court strike (or disregard) such briefing.
I. CURRENT STATUS OF INSTATEMENT
The EEOC has provided Wal-Mart with the names of320 class members who indicated,
via their claim forms, that they desired employment at DC 6097. On November 1,2010, Wal-Mart reported job offers3 to two of these women.4 (Ex. 1.) As of this date, Wal-Mart
has not reported job offers to the remaining 99.4% of those requesting instatement. Given
that Wal-Mart: (1) invites the class members to apply and does not inform them of the
instatement obligation; (2) subjects the class members to a far more rigorous hiring process
than when they were discriminated against;5 and (3) rejects nearly every woman who takes
its Physical Abilities Test, it is not surprising that many women choose to abort the process,
believing it to be continued discrimination by Wal-Mart.
II. ARGUMENT
A. EEOC's Motion for Enforcement is Ripe for Review.
On September 20,2010, pursuant to Section 902 of the Consent Decree, the EEOC
gave notice to Wal-Mart of a Section 302 violation with respect to the instatement ofclass
members. (Motion, Ex. 5.) Although the EEOC advised Wal-Mart ofthe 45 day time period
disparate impact into this Court under the guise of "Consent Decree enforcement" should be rejected. 3 Upon information and belief, the only shift Wal-Mart is offering to the class members (contingent upon passing every step of the hiring process) is a Friday through Sunday 5:00 a.m. to 4:30 p.m. 33 hour per week shift. 4 Wal-Mart accuses the EEOC of misrepresenting to the Court the number of offers. (Response, n.l.) WalMart ignores the fact that the EEOC's Motion was filed on October 15,2010, but Wal-Mart did not report the two offers until November 1,2010. (Ex. 1.) 5 Wal-Mart asserts that the Physical Abilities Test gives the class members a realistic sense of the physical activity of the order filler job. (Response at 2.) However, orderfillers do not lie on the floor and do sit-ups as part of their jobs. Nevertheless, it appears that class members are being excluded because they cannot perform an unspecified number of sit-ups. See Physical Abilities Test results for select class members, collectively attached as Exhibit 2. See also, Exhibit 3, Physical Abilities Test results for Vikki Swartz, one of the two women who passed the test, apparently due to her ability to do sit-ups.
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within which it could conduct an investigation and offer a response, Wal-Mart made clear that it did not intend to use the 45 day period to conduct an investigation and finalize its position on the instatement violation. (Motion, Ex. 6.) Indeed, Wal-Mart's current position on the instatement violation is the exact same position it asserted on September 24, 2010, in response to the EEOC's September 20,2010 letter.
Likewise, Wal-Mart's position on the meaning of Section 901's "reasonable notice" provision has not changed. On September 20, 2010, the EEOC requested documentation pursuant to Section 901 of the Consent Decree. (Motion, Ex. 5.) On September 24 and September 30,2010, Wal-Mart articulated the position that reasonable notice entitled it to a 45 day response period. (Motion, Exs. 6, 8.)
Given that: (I) the class members have waited up to ten years or more to obtain relief in this case, and (2) Wal-Mart articulated its position within days of the EEOC's September 20, 2010 letter, a 45 day delay would have served no purpose, nor would it have changed the need for the EEOC's motion. (See Response n.5.)
B. Wal-Mart's Distortion of its Section 302 Instatement Obligation to One of Inviting Class Members to Apply, Should be Rejected. 1. It was Intended that "Instatement" Mean Instatement.
The EEOC drafted the initial draft of Section 302 of the Consent Decree and
7l specifically used the term "instatement." (Eisele Decl. ~ The EEOC routinely seeks
instatement as part of the resolution of employment discrimination cases and fully intended that "instatement" would be given its normal meaning, as used in employment discrimination cases. (Id. at ~ 8.) See also, 29 C.F.R. Section 1614.501(a)(3)(1993) ("When an agency, or the Commission, in an individual case of discrimination, finds that an applicant or employee
6 The Eisele Declaration is attached as Exhibit 4.
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has been discriminated against, the agency shall provide full relief....which shall include ....(3) an unconditional offer to each identified victim of discrimination of placement in the position the person would have occupied but for the discrimination suffered by that person... "); Cloke v. West Clermont School Dist. Bd. Of Education; 2006 WL 2873551 (S.D. Ohio 6/29/06) ("the presumptive equitable remedy in an employment discrimination case is reinstatement or instatement"); Bullen v. Chafinch, 336 F. Supp. 2d 357,360 (D. Del. 2004) (because instatement is a remedy for illegal discrimination, there is the assumption that the aggrieved party is qualified for employment and so any attempt to subject the aggrieved party to new requirements or testing is rejected).
The EEOC's draft of Section 302, sent to Donald Livingston ("Livingston"), counsel for Wal-Mart, read, "subject to reference checks and drug testing which were employed during the relevant time period at DC 6097 for all new hires." (Eisele Decl. ,-r 9.) Because instatement by definition is unconditional, the EEOC's intent, as drafter, was to ensure that Wal-Mart would not be forced to hire persons who were otherwise non-hirable as employees. (Id.)
Livingston reviewed the EEOC's draft on February 24, 2010, and requested that the clause "subject to reference checks and drug testing which were employed during the relevant time period at DC 6097" be changed to "subject to criteria that is applicable for all new hires in the order filler position," the language currently in dispute. (Id.,-r 10.) The EEOC agreed to the change, with the understanding that Wal-Mart would have the right to exclude class members who failed to meet uniformly enforced non-discriminatory screening criteria, for example: minimum age, legal right to work in the United States, those with problematic background checks or any other non-discriminatory uniformly enforced hiring
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criteria. (Id.)
Contrary to Wal-Mart's suggestion (Response at 12), the parties did not and could not
identify with specificity all of the minimum criteria for hires since Wal-Mart was to be given
the right to add additional objective non-discriminatory uniformly enforced minimum criteria
for hires; for example, not hiring those who had been previously terminated or those with
negative references. (Id. at ~ 11.) The EEOC did not intend that the "subject to" criteria
include passing every stage of the normal hiring process, including subjective and unproven
testing such as the Logistics Pre-Employment Assessment/ the Physical Abilities Test or
employment interviews. (Id. at ~ 12.) Had the parties intended that instatement mean simply an invitation to class members to apply for employment,8 the parties would have used the
language "subject to passing all stages of the normal hiring process." (Id.) Further, the terms
"instatement" or "rightful place hiring" would have been replaced. (Id.)
2. To the Extent There is Any Ambiguity, the Consent Decree as a Whole, the Purposes of the Decree and Extrinsic Evidence Support the EEOC's Interpretation of Section 302.
Neither party believes that there is an ambiguity in Section 302 yet both parties
interpret it differently. To the extent the Court determines that there is an ambiguity in
interpreting the interplay between "instatement" and the "subject to" clauses, courts look to
the conduct of the parties with respect to the agreement, the agreement as a whole, the
purposes of the agreement and if all else fails, who drafted the provision in question. See
A.L. Pickens Co., v. Youngstown Sheet & Tube Co., 650 F.2d 118, 120 (6th Cir.1981)
7 While Wal-Mart claims that the Logistics Pre-Employment Assessment is similar to the Orion Survey that it used in the past (Response at 6-7), the Orion Survey was only used to develop interview questions, not to exclude applicants. (See Reynolds Dep. at 56-64 and Earls Dep. at 97-100, collectively attached as Exhibit 5.) 8 The EEOC does not object to Wal-Mart collecting information from the class members as such a practice is necessary for the creation of a personnel file. See Response at 15. The EEOC does object, however, to correspondence sent to class members that simply invites them to apply for employment at Wal-Mart, adds brand new hurdles and does not advise them of the instatement obligation under the Consent Decree. (See Response, Ex. 1.)
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(citing Billips v. Hughes, 259 S.W.2d 6, 7 (Ky.l953)) ("[t]he construction of the parties is best evidenced by their conduct with respect to the agreement"); Bern Systems Inc. v. Envirometric Controls Process Inc., 2003 WL 722176 (6th Cir. Feb. 28, 2003), citing Martin Oil & Gas v. Fyffe, 251 Ky. 517,65 S.W.2d 6867 (1933) (Kentucky courts also "look to the entire instrument and deduce the intention of the parties from the language employed."); Warner v. DSM Pharma Chemicals North America Inc., 2010 WL 298307 (W.D. Mich. Jan. 19, 2010), citing 11 Williston, Contracts (4th Ed), § 30:7, pp 87-91) ("the fact finder must interpret the contract's terms, in light of the apparent purpose of the contract as a whole, the rules of contract construction, and extrinsic evidence of intent and meaning"); Theatre Realty Co. v. P.H. Meyer Co., 48 S.W.2d 1, 2 (Ky. App. 1932) (contractual provision to be construed against drafter).
a. Wal-Marl's Interpretation ofSection 302 is Inconsistent With The Purpose ofthe Consent Decree.
The EEOC represents the public interest and files suit in the public interest, to remediate discrimination. In EEOC v. General Telephone Co. of the Northwest, Inc., 446 U.S. 318, 323-324 (1980), the Supreme Court specifically addressed the role of the EEOC as enforcer:
Section 706(a) empowers the EEOC 'to prevent any person from engaging in any unlawful ... practice' as set forth in the Title. Section706(f)(l) specifically authorizes the EEOC to bring a civil action against any respondent not a governmental entity upon failure to secure an acceptable conciliation agreement, the purpose of the action being to terminate unlawful practices and to secure appropriate relief, including "reinstatement or hiring . .. , with or without back pay," for the victims of the discrimination. See § 706(g). (emphasis added.)
Id. at 323-324. As discussed below, the EEOC fully intended that class members be instated in
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positions at DC 6097, in accordance with the EEOC's settlement procedures and practices. It would be inconsistent with the purposes of this litigation and of the Consent Decree, and the parties did not intend, a remedy which puts class members through continued hurdles to become employed at DC 6097 or one which subjects the class members to possible continued discrimination via subjective and unproven testing which may have a disparate impact on women. See Daubert transcript at 6179 (re-direct by Quesenberry) ("Now, you are aware, aren't you, Dr. Bielby, that there had been a lot of complaints and in fact litigation brought in part by the EEOC alleging that strength testing creates an adverse impact against female applicants, aren't you?")
To the extent there is any question as to the meaning of Section 302, Wal-Mart's interpretation is contrary to the purposes of the Decree and must be rejected. Further, because this Court retained jurisdiction over the Decree, it has the power to enjoin Wal-Mart from using the Physical Abilities Test, the Pre-Employment Logistics Assessment and/or interviews to exclude class members from employment. See Brown v. Neeb, 644 F. 2d 551 (6th Cir. 1981 ) (court properly enjoined layoff which would be contrary to purposes of consent decree).
h. The Conduct ofthe Parties Supports the EEOC's Interpretation ofSection 302.
Contrary to Wal-Mart's representation of lengthy negotiations (Response at 12), the Consent Decree for this case was drafted and negotiated over a period of four days, while trial counsel were preparing for trial. 10 (Eisele Decl. ~ 6.) All negotiations were had between EEOC counsel and Donald Livingston, Esq. of the Akin Gump, Strauss Hauer & Feld, LLP
9 Cited portions of the Daubert Transcript are attached as Exhibit 6. 10 Had a trial date not been impending, the parties would have had more time to review and correct any possible ambiguities in the Decree.
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law firm which had been retained by Wal-Mart to enter into settlement negotiations with the EEOC. (Id. ~ 3.) Donald Livingston was former General Counsel for the EEOC and his job with the EEOC, which included settlement approval authority, required familiarity with the EEOC's settlement standards. (Id. ~ 4.) In fact, after leaving the EEOC, based on his familiarity with the EEOC and its procedures, Livingston authored a book entitled EEOC Litigation and Charge Resolution (BNA 2004). An overview of the book by BNA notes that the book "also provides information on the EEOC's litigation and settlement practices..." (Ex.7.) There can be no question that Livingston was aware of the EEOC's need to obtain instatement of the class members and that he knew what instatement meant in the context of employment discrimination litigation. (Eisele Decl. ~ 8.)
During the negotiation process, neither Livingston nor anybody else from Wal-Mart ever questioned the interplay between the "instatement" and "subject to" clauses or requested clarification or removal of the term "instatement." (Eisele Decl. ~ 13.) Nor did Wal-Mart indicate during the negotiations that it planned on implementing a Logistics Pre-Employment Assessment or Physical Abilities Testll to screen the class members. (Id. ~ 14.) In fact, during Daubert hearings, shortly before the Consent Decree was drafted, Wal-Mart expressed the contrary view that physical abilities tests were not necessary and also indicated its awareness of the EEOC's belief that physical abilities tests had a disparate impact on women. 12 (Ex. 6.at 388, 404-405, 591, 616-617.)
There are only two possible interpretations ofWal-Mart's conduct with respect to the addition of the Physical Abilities Test and the Logistics Pre-Employment Assessment.
11 The parties specifically addressed Wal-Mart's hiring process via Section 204 of the Decree. Section 204 states that "Wal-Mart will use validated interview questions for the order filler position." There is no mention ofa Physical Abilities Test or Logistics Pre-Employment Assessment. 12 While Wal-Mart claims that its test is "validated," no such determination has been made and the issue of its validity is under review by the EEOC's investigative staff.
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Neither benefits Wal-Mart. The first explanation is that Wal-Mart did not bring up the issue of these tests during settlement discussions because it did not interpret instatement as being subject to these tests. In that case, its current position is inconsistent with its conduct during negotiations. The second interpretation ofWal-Mart's conduct is that Wal-Mart committed a fraud by intentionally withholding critical information from the EEOC during settlement negotiations. IfWal-Mart truly believed that Section 302 permitted it to administer the Physical Abilities Test to the class members and it knew that: (1) the EEOC was concerned about the disparate impact of such testing; (2) such testing was in the works and would be implemented before or at the same time as class member instatement; and (3) the use of such testing was inconsistent with Wal-Mart's position on strength/physical abilities testing throughout this litigation, it had an obligation to disclose and is responsible for any resulting damages. See Sallee v. Fort Knox National Bank,N.A., 286 F.3d 878 (6th Cir. 2002) (fraudulent concealment by silence when previous incomplete or inaccurate representations made or if party has superior knowledge).
Thus Wal-Mart's conduct indicates that it either agreed with the EEOC's interpretation of Section 302 or it intended to deceive the EEOC in order to obtain a settlement and avoid its instatement obligation. Under either scenario, the EEOC's interpretation of Section 302 should be adopted and Wal-Mart should be enjoined from using the Physical Abilities Test, the Pre-Employment Logistics Assessment and/or interviews to exclude class members from employment.
c. The Consent Decree as a Whole Supports the EEOC's Interpretation ofSection 302.
The Consent Decree references Wal-Mart's instatement obligation in three separate places. In addition to using the term "instatement" in Section 302, in Section 303, the EEOC
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used "rightful place hiring," a synonym for instatement. In section 301, the EEOC again used the term "instatement." Nowhere in the Decree does it state that employment of the class members is subject to all steps of the normal hiring process. If the parties intended that instatement be subject to all steps ofthe normal hiring process, the parties would have stated
so in the Consent Decree. (Eisele Decl. ~ 12); Behr, 2003 WL 722176 * 15-16.
Wal-Mart asserts that "it is a well settled rule of construction that effect must be given to each word, and that each word must be presumed to have a purpose." (Response at 10.) Yet Wal-Mart disregards the terms "instatement" and "rightful place hiring" and focuses solely on the "subject to" clause. Wal-Mart further suggests that under the EEOC's construction, the "subject to" clause is superfluous because Section 402 identifies "eligible claimants." (Id.) Wal-Mart's assertion is erroneous: the EEOC agreed to the "subject to" clause in Section 302 to include drug testing and reference checks as well as to allow WalMart the ability to use basic non-discriminatory uniformly enforced minimum hiring criteria beyond those specified by Dr. Barnow. (Eisele Decl. ~~ 10-11.) The EEOC never agreed or intended that the class members be subject to Wal-Mart's full application process.
Finally, Wal-Mart asserts that even though the parties used the terms "instatement" and "rightful place hiring," the parties really meant "preferential" hiring. 13 (Response at 14.) However "preferential hiring" is legally distinct from "instatement." "Preferential hiring" is a quota remedy that typically benefits non-class members, not class members. Schlei and Grossman, Employment Discrimination Law, Second Edition, Chapter 37 Section 4A. Since the parties are in agreement that the instatement remedy envisioned by the parties was to benefit the class members, it is clear that the parties did not intend that "instatement" mean
13 Wal-Mart even claims that "Wal-Mart is not requiring applicants to 'apply' for open order filler positions." (Response at 14). The letters and calls made to the class members contradict this assertion. (See Response, Ex. 1 and EEOC's Motion, Exs. 2 and 4.)
10

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"preferential hiring." d. Contract Construction Principles Require That the "Subject to" Provision be Construed Against Wal-Mart, the Party who Drafted the Provision.
In Kentucky, if courts are unable to construe a contract to effectuate the parties' intent, they then use default rules. William C. Roney Co. v. Federal Ins. Co., 674 F.2d 587 (6th Cir.1982). One of those rules is that "a contract is to be read liberally in favor of the person who accepts it rather than in favor of the person who draws it." Theatre Realty Co. v. P.H. Meyer Co., 48 S.W.2d 1,2 (Ky. App. 1932). In this case, the "subject to" clause in question was drawn by Donald Livingston, counsel for Wa1-Mart. (Eisele Decl. ~ 10.) To the extent the Court is unable to resolve the correct interpretation of Section 302' s "subject to" clause, the clause should be construed against Wal-Mart. "A person who accepts a contract is not bound beyond the fair meaning of the writing which he accepts." B. Perini & Sons v. Southern Ry. Co., 239 S.W. 2d 964,966 (Ky. 1951). The fair meaning of the "subject to" clause was that it be read in conjunction with the term "instatement," not that it transform "instatement" into the opportunity to apply for employment subject to the normal hiring process.
C. Wal-Mart is Impeding the EEOC's Ability to Monitor Compliance With the Consent Decree by its Unreasonable Interpretation of Section 901 's "Reasonable Notice" Provision. 1. The Issue of the Interpretation of Section 901 's Reasonable Notice Provision is Not Moot.
Section 901 of the Consent Decree provides the EEOC with the ability to monitor compliance with the Consent Decree. It states that the EEOC "may inspect the premises, interview employees, and request, examine, and copy documents upon 'reasonable notice. '"
11

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While Wal-Mart has finally produced most of the documents requested by the EEOC during September 2010, Wal-Mart's unreasonable interpretation of "reasonable notice" will affect the EEOC's ability to monitor compliance in the future. Wal-Mart's claimed entitlement to a 45 day period for any Section 901 requests made by the EEOC will impair the EEOC's ability to monitor the Decree, determine whether violations have occurred, and act upon violations in a timely manner. Thus the issue is not moot.
2. Wal-Mart's Unreasonable Interpretation of "Reasonable Notice" Should be Rejected.
Had the parties intended that Wal-Mart be given 45 days to respond to an EEOC Section 901 request, the parties would have used "45 days" in Section 901 rather than "reasonable notice." As Wal-Mart itself asserts, "a Consent Decree 'must be construed as it is written, and not as it might have been written." (Response at 9.) Moreover, as discussed below, Wal-Mart's interpretation of Section 901 is not only inconsistent with the text of the Consent Decree, it is contrary to the definition of "reasonable."
For purposes of construing Section 901, Wal-Mart proposes that Section 901 be construed with Section 902, a separate provision which does not mention or refer to "reasonable notice.,,14 There is no principled reason to infer that Section 902's 45 day period to remedy/respond to a violation is the same amount of time required to allow access to persons, premises or documents. The term "reasonable" "is a generic and relative one and applies to that which is appropriate for a particular situation." www.thefreedictionary.com. "Reasonable" by definition, requires an assessment of the circumstances. See Western Kentucky Coca-Cola Bottling Co., Inc. v. Red Bull North America Inc., 2010 WL 65029* 6
14 On the other hand, with respect to its Section 302 assertions, Wal-Mart divorces "instatement" from the "subject to" clause contained in the very same section.
12

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(W.D. Ky. 1/5/10) (factual circumstances and harm must be evaluated in determination of "reasonable notice.")
The fact that the EEOC used the same letter to notify Wal-Mart of a Section 902 breach and to request Section 901 information (for purposes of determining if any additional violations occurred), did not transform Section 901's "reasonable notice" provision into Section 902's 45 day provision. Wal-Mart's unreasonable interpretation should be rejected and Wal-Mart should be required to respond to Section 901 requests within 7 days or less, unless there are extraordinary circumstances.
D. Wal-Mart's Failure to Instate the Class Members and Fill Open Order Filler Positions Cannot be Attributed to Inaction or a Breach on the EEOC's Part.
Wal-Mart requests that the Court excuse it for breaches of Sections 302 and 901 on the grounds that the EEOC allegedly breached Section 301 ofthe Consent Decree by depriving Wal-Mart of order filler employees and/or providing inaccurate lists of class members interested in order filler positions. (Response at 15.) Wal-Mart's accusation is frivolous. As discussed below, not only has the EEOC followed the Consent Decree provisions in providing Wal-Mart with names of class members for instatement, it is readily apparent that Wal-Mart's own actions have resulted in its lack of order filler hires.
Pursuant to Section 301 of the Decree, the lists sent to Wal-Mart of class members seeking instatement included "all eligible claimants... who "indicate an interest in instatement in a claim form submitted to the Administrator." All names submitted to WalMart came directly from the Settlement Administrator,15 an entity that was chosen by and is
15 The information the Settlement Administrator provides comes directly from claim forms filed by potential class members. Obviously, it is likely that during the time between completing the claim form and being contacted by Wal-Mart, some of the class members obtained jobs and/or reconsidered their interest in employment with Wal-Mart.
13

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paid by Wal-Mart. While Wal-Mart may be unhappy with the amount of time it has taken the Settlement Administrator ("Administrator") to process claim forms and/or the fact that women turn down the order filling job after learning instatement is not automatic, neither the slow pace of the Administrator nor the rejection of the invitation to apply for employment is a breach of the Decree. The Decree only required that the Commission provide its initial list to Wal-Mart "no later than 180 days after the effective date of the Consent Decree." It is undisputed that the EEOC met this obligation. Section 301 indicates that "to the extent practicable, there shall be at least 25 names on the list at all times." It is not "practicable" for the EEOC or the Administrator to provide Wal-Mart with additional names ifthere are no names to provide.
It is readily apparent that Wal-Mart's own actions have resulted in the quick exhaustion of names from the instatement list. Wal-Mart appears to be doing everything in its power to avoid its instatement obligation so it can resume hiring male applicants. Out of the first 157 class members, Wal-Mart has admitted to excluding 35, to date, because they did not achieve some undefined score on a fitness test. (Response at 4.) It has also admitted to excluding 5 additional women because they were "non-competitive" on a Logistics PreEmployment Assessment. Id. Additional class members expressed an interest in instatement but aborted the process, likely upon learning of the hurdles that Wal-Mart was imposing. Id. Further evidence ofWal-Mart's intent can be discerned from the single shift offered to the class members. Clearly, an employer with dire needs for order fillers should be able to offer shifts other than a 33 hour Friday through Sunday 5:00 a.m. to 4:30 p.m. shift. As the EEOC advised Wal-Mart (Response, Ex. 5), ifit truly needs to fill positions, it should evaluate its own actions, as there are class members both interested in and available for employment as
14

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order fillers.
III. CONCLUSION
The Consent Decree in this case resolved nine years of protracted litigation. The
Consent Decree was negotiated over a short period of time, immediately prior to the March 1
trial date, as the parties prepared for trial. While both the EEOC and counsel for Wal-Mart
(who was not trial counsel) believed that Sections 302 and 901 were clear and unambiguous,
it has nevertheless become necessary for the EEOC to seek the Court's assistance in
interpreting those two provisions as intended by the parties. The EEOC respectfully requests
that the Court: (1) enjoin Wal-Mart from using the Physical Abilities Test, Logistics Pre-
Employment Assessment and/or employment interviews for class members seeking
instatement, and (2) order Wal-Mart to respond to Section 901 requests within 7 days or less,
absent extraordinary circumstances.
Respectfully submitted,
LAURIE A. YOUNG, Regional Attorney
MICHELLE EISELE, Supervisory Trial Attorney
~/3~~
Nancy Dean Edmonds Senior Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Indianapolis District Office 101 W. Ohio St., Suite 1900 Indianapolis, IN 46204 (317) 226-7229 FAX: (317) 226-5571 nancy.edmonds@eeoc.gov 15

Case: 6:01-cv-00339-KKC -REW Doc #: 673 Filed: 11/29/10 Page: 16 of 16 - Page ID#: 13505
CERTIFICATE OF SERVICE The undersigned certifies that true and accurate copies of EEOC's Reply in Support of Motion to Enforce Consent Decree was sent via first class mail on this 24th day of November, 2010 to:
Kathryn A. Quesenberry Sadhna G. True Dinsmore & Shohl L.L.P. 2500 National City Tower Louisville, KY 40202-3175
~~~
Nancy Dean Edmonds Senior Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 101 W. Ohio Street, Suite 1900 Indianapolis, IN 46204 (317) 226-7229 FAX: (317) 226-5571 nancy.edmonds@eeoc.gov
16

 
 E.E.O.C. v. Wal-Mart Stores, Inc., Not Reported in F.Supp.2d (2010)
2010 WL 567316 Only the Westlaw citation is currently available.
United States District Court, E.D. Kentucky,
Southern Division, at London.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
WAL–MART STORES, INC., Defendant.
Civil Action No. 6:01–CV–339–KKC. | Feb. 12, 2010.
Attorneys and Law Firms
Aimee Lynn McFerren, Kenneth W. Brown, EEOC–Louisville Area Office, Louisville, KY, Laurie A. Young, Michelle Eisele, Nancy Dean Edmonds, Equal Employment Opportunity Commission, Robin M. Lybolt, EEOC–Indianapolis District Office, Indianapolis, IN, Lauren Gibbs, EEOC, Detroit, MI, for Plaintiff.
Erin M. Roark, Joseph P. Donohue, Kalpana Srinivasan, Kathryn A. Quesenberry, Michael J. Henry, Dinsmore & Shohl, Louisville, KY, Sadhna G. True, Dinsmore & Shohl LLP, Lexington, KY, for Defendant.
Opinion
OPINION AND ORDER
KAREN K. CALDWELL, District Judge.
*1 This matter is before the Court on the Motion for Summary Judgment filed by the Defendant, Wal–Mart Stores, Inc. (DE 409) and two related motions (DE 420 & DE 433).
I. FACTS. In its Complaint, the United States Equal Employment Opportunity Commission (the “EEOC”) asserts that, since at least January 1, 1998, Wal–Mart engaged in unlawful employment practices within Wal–Mart Distribution Center No. 6097 (“DC 6097) in violation of Section 703(a)(1) of Title VII, 42 U.S.C.2000e–2(a)(1). (DE 1, Complaint, ¶ 7).
That statute prohibits an employer from failing or refusing to hire a woman or from otherwise discriminating against her because of her gender.
In October 1998, Janice Smith, who was then an employee at Wal–Mart’s retail store in London, Kentucky, was denied a transfer to DC 6097 as a freezer department “order filler.” (DE 409, Mot., Ex. 1; DE 444, Response, Ex. 111). She filed a charge with the EEOC asserting that Wal–Mart discriminated against her because of her gender when her transfer application was denied. (DE 409, Mot. Ex. 1; DE 444, Response, Ex. 135).
The EEOC notified Wal–Mart of the charge, conducted an investigation and determined that evidence supported Smith’s allegations and that there was evidence that a class of women were not hired as order fillers because of their gender. (DE 444, Response, Ex. 132).
After an unsuccessful attempt at conciliation, the EEOC filed this action on behalf of Smith and the class asserting that they were subject to disparate treatment based on gender when Wal–Mart failed to hire them into vacant positions at DC 6097. (DE 1, Complaint, ¶ 7).
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E.E.O.C. v. Wal-Mart Stores, Inc., Not Reported in F.Supp.2d (2010)
In its Motion for Summary Judgment, Wal–Mart argues that the Court should dismiss all or a portion of the EEOC’s claim.
II. ANALYSIS.
A. JURISDICTION. Wal–Mart first argues that this Court only has jurisdiction over the charge that Wal–Mart discriminated against transfer applicants seeking the position of “order filler.” The EEOC, on the other hand, argues that the claim that Wal–Mart discriminated against all female applicants in hiring for all entry level positions at DC 6097 is properly before the Court.
In support of its argument, Wal–Mart cites EEOC v. Bailey Co. Inc., 563 F.2d 439 (6th Cir.1977)(disapproved of on other grounds by Christianburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978)). In that case, the court stated, “[t]he clearly stated rule in this Circuit is that the EEOC’s complaint is ‘limited to the scope of the EEOC investigation reasonably expected to grow out of the charge of discrimination.’ “ Id. at 446.
The court stated that there were two reasons for this rule: 1) the individuals who file the EEOC complaints are not trained legal technicians; and 2) the civil action is “much more intimately related” to the EEOC investigation than to the charge which simply triggers the EEOC investigation and conciliatory procedures, without which there can be no civil complaint. Id.
*2 “The administrative filing requirement that a Title VII plaintiff exhaust her administrative remedies, while not jurisdictional, is a necessary prerequisite to filing a discrimination suit in federal court.” Nelson v. General Elec. Co., 2 Fed. Appx. 425, 427–28 (6th Cir.2001) (citing Haithcock v. Frank, 958 F.2d 671, 675 (6th Cir.1992)).
In filling out her charge-of-discrimination form with the EEOC, Smith checked the box indicating her cause of discrimination was based on “sex.” (DE 444, Response, Ex. 135). The civil complaint in this case also alleges sexual discrimination and only sexual discrimination. Thus, this is not a case where the EEOC complaint alleges, for example, only racial and sexual discrimination and then the civil complaint adds religious discrimination as in Bailey Co. Similar issues were presented in Leigh v. Bureau of State Lottery, 876 F.2d 104 (6th Cir.1989) and Mohamed v. Air Serv Corp., 2005 WL 1868791 (E.D.Ky.2005).
Moreover, the EEOC charge-of-discrimination form alleges that the discriminatory acts by Wal-mart consisted of a “failure to hire.” Likewise the civil complaint alleges “failure to hire.” Thus, this is not a case where the civil complaint alleges different kinds of discriminatory acts than the initial EEOC complaint alleged as was the case in Nelson.
In determining the claims that the EEOC charge should reasonably prompt the EEOC to investigate, the Court must “construe the administrative complaint liberally so as to encompass all charges reasonably expected to grow out of the charge of discrimination.” Nelson, 2 Fed. Appx. at 428 (internal quotations and citation omitted). Smith’s EEOC complaint alleging sexual discrimination in hiring at DC 6097 would have reasonably prompted an investigation into sexual discrimination against all applicants in hiring for all entry level positions at DC 6097.
Wal–Mart asserts in its Motion that the EEOC did not actually investigate sexual discrimination in hiring for all entry level positions by applicants at DC 6097 but instead focused only on the order filler position. But the relevant inquiry is not the scope of the actual investigation by the EEOC. The relevant inquiry is the scope of the investigation that the EEOC charge would have reasonably prompted. See Scott v. Eastman Chemical Co., 275 Fed. Appx. 466, 471 (6th Cir.2008). “Plaintiffs are not be penalized if the EEOC investigation should have been larger in scope than it actually was.” Id. (citing Dixon v. Ashcroft, 392 F.3d 212, 219 (6th Cir.2004)). See also Schnellbaecher v. Baskin Clother Co., 887 F.2d 124, 127–28 (7th Cir.1989); Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208,1212 (3rd Cir.1984); Clark v. Kraft Foods, Inc., 18 F.3d 1278, 1280,1281 n. 9 (5th Cir.1994); Johnson v. N.T.I Division of Colorado Springs Circuits, 898 F.Supp. 762, 767 (D.Col.1995).
Furthermore, the only conclusion that can be drawn from the evidence in the record is that the investigation was not limited to transfer applicants seeking the position of order filler. The EEOC’s Determination letter stated that “[e]vidence obtained during the investigation supports the Charging Party’s allegations” that she was denied a transfer because of her sex. It further stated that “there is evidence that females as a class were not hired as Order Fillers because of their sex in violation of Title VII.” (DE 444, Response, Ex. 132).
2

E.E.O.C. v. Wal-Mart Stores, Inc., Not Reported in F.Supp.2d (2010)
*3 Further, the EEOC attempted conciliation on behalf of six women in addition to Janice Smith. The Court has reviewed the application packets for five of those women that were attached to the conciliation agreement and does not find any indication that they were only transfer applicants or that they sought only order filler positions. (DE 444, Response, Ex. 128).
Accordingly, even if the relevant inquiry were the scope of the actual EEOC investigation, the evidence indicates that the EEOC actually investigated sexual discrimination in hiring of all applicants for positions other than order filler at DC 6097.
Accordingly, Wal–Mart’s Motion for Summary Judgment will be denied to the extent that it argues that this Court lacks jurisdiction over the entirety of the EEOC’s claim or that any portion of the claim is improperly before the Court for failure to exhaust administrative remedies.
B. PRIMA FACIE CASE. Wal–Mart next argues that the EEOC’s prima facie case fails for various reasons. In resolving these arguments, it is helpful to understand a little more about the nature of this case.
The EEOC brings this claim pursuant to Section 707 of Title VII, 42 U.S.C. § 2000e–6, which allows the federal government, through the EEOC, to bring a civil action directly against an employer charging systematic discrimination against a protected group.
In these cases, the government is required to demonstrate that there exists “a pattern or practice of resistance to the full enjoyment of any of the rights secured by [Title VII]....” 42 U .S.C. § 2000e–6(a).
To do so, the EEOC must prove more than the “mere occurrence of isolated, ‘accidental’ or sporadic discriminatory acts.” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Rather, the EEOC must show that discrimination was the employer’s “standard operating procedure” and “the regular rather than the unusual practice.” Teamsters, 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). See also Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 874–76, 104 S.Ct. 2794, 81 L.Ed.2d 718(1984). Such an action focuses on whether there exists a “pattern of discriminatory decisionmaking.” Cooper, 467 U.S. at 876.
The plaintiffs may establish a prima facie case of pattern or practice disparate treatment by the use of statistics which show a gross disparity in the treatment of workers based on a protected characteristic. Anderson v. Douglas & Lomason Co., Inc., 26 F.3d 1277, 1285 (5th Cir.1994). The plaintiffs may bolster their case by introducing historical, individual, or circumstantial evidence. Id. The employer may then rebut the plaintiffs’ prima facie case by showing that the plaintiffs’ statistics are inaccurate or insignificant, or by providing a nondiscriminatory explanation for the apparent discrimination. Id.
If the employer fails to rebut the government’s prima facie case, the resulting finding of a discriminatory pattern or practice gives rise to an inference that all employees subject to the policy were its victims and are entitled to appropriate remedies. See Teamsters, 431 U.S. at 362.
1) Wal–Mart’s Knowledge of Applicant Gender. *4 Wal–Mart first argues that the EEOC cannot establish a prima facie case of disparate treatment because it cannot show that Wal–Mart knew the sex of the applicants it rejected for hire. Wal–Mart presents evidence that its application does not include a question about the applicant’s gender. Wal–Mart also presents evidence that the determination of whether an applicant will be interviewed at Wal–Mart is based on the application alone. The EEOC’s statistical expert opines that from 71 to 82 percent of female applicants, depending upon the relevant time period, were rejected at this pre-screening stage.
In response, however, the EEOC has presented evidence through the declaration of Lindsay Williams (DE 444, Response, Ex. 137) that a large majority of the class members in this action have “common” female names such as Angela, Melissa, Tammy, Mary, Brenda, etc. This at least creates an issue of fact as to whether Wal–Mart employees could discern the gender of applicants from the completed applications even though the gender was not specifically indicated on the application. Wal–Mart is free to produce evidence that its employees did not, in fact, know the gender of its applicants regardless of the names on the application and the jury can decide the issue.
3

E.E.O.C. v. Wal-Mart Stores, Inc., Not Reported in F.Supp.2d (2010)
2) Elimination of Random Chance as the Reason for the Statistical Disparity. The EEOC has designated Dr. Burt S. Barnow as its statistical expert. In his expert report, Dr. Barnow concludes that, for the relevant time periods, “men were more likely to receive an offer than women after controlling for information available on the application, and these results are statistically significant and highly unlikely to have occurred by chance.”
Wal–Mart argues that the EEOC does not establish a prima facie case of disparate treatment through Dr. Barnow’s report for several reasons. First, Wal–Mart argues that Dr. Barnow is unable to eliminate the most common non-discriminatory explanations for the disparity in treatment of females at DC 6097. More specifically, Wal–Mart argues that Dr. Barnow admits he cannot eliminate “randomness” as an explanation for the disparity in male and female offer rates.
Wal–Mart is correct that, to permit an inference that a defendant discriminated against individual members of a class, the plaintiffs’ statistical evidence “must show a significant disparity and eliminate the most common nondiscriminatory explanations for the disparity.” Barnes v. GenCorp Inc., 896 F.2d 1457,1466 (6th Cir.1990)(citing Segar v. Smith, 738 F.2d 1249, 1274 (D.C.Cir.1984)).
The next issue, then, is how does a plaintiff statistically eliminate the most common nondiscriminatory explanations for the disparity. Specifically, in this case, the issue is how does the EEOC show, through statistics, that “randomness” cannot be the explanation for the disparity between the offer rates to men and women applicants at DC 6097.
The EEOC points the Court to the following passage from Segar, which the Sixth Circuit relied upon in Barnes:
*5 The notion of statistical significance addresses directly the question whether an inference of discrimination is warranted. Statistical significance is a measure of the probability that the outcome of a statistical analysis would have occurred by chance: The lower the probability that the observed outcome could have occurred by chance, the stronger the inference of discrimination that can be drawn from the data. For example, a finding that a study is significant at the .10 level indicates that the odds are one in ten that the result could have occurred by chance, and a finding of significance at the .05 level indicates that the odds are one in 20 that the result could have occurred by chance. Although the law has not set any precise level at which statistical significance can be said to be sufficient to permit an inference of discrimination, social scientists usually accept a study that achieves statistical significance at the .05 level. D. Baldus & J. Cole, supra, at 297; cf. F. Mosteller, R. Rourke & G. Thomas, Probability With Statistical Applications 310 (2d ed.1970). In other words, a study is found significant-and the hypothesis of chance is rejected-when there exists at most a one in 20 possibility that the observed result could have occurred by chance. Several courts have adopted the .05 level as sufficient to support an inference of discrimination in Title VII cases.
Segar, 738 F.2d at 1282.
For the 1998 to 2001 time period, Dr. Barnow concluded that the chance of the gender disparity occurring by chance was less than .0001 or one in ten thousand. For the 2001 to 2004 time period, Dr. Barnow opined that the chance of the gender disparity occurring by chance was .0058 or roughly one in 500. (DE 444, Response at 43 & Ex. 120, Barnow Supp. Report Ex. B4, B5)
Wal–Mart asserts that, in his deposition, Dr. Barnow conceded he cannot rule out randomness as a cause of the disparity. However, in the portion of the deposition that Wal–Mart cites as support for this assertion, he does not appear to state that randomness is or could be the cause for the statistical disparity in male and female offer rates. Instead, he appears to be explaining why other variables for which he controlled in his analysis do not predict whether an applicant will be hired. (DE 409, Mot. for Summ. J. Ex. E., Barnow Dep. at 343–345).
3) Reliability of the EEOC’s Statistical Evidence. The remaining arguments regarding the EEOC’s statistical evidence go to its reliability. Wal–Mart argues that 1) Dr. Barnow’s analysis does not accurately determine an applicant’s probability of being hired; 2) Dr. Barnow improperly aggregated hiring data for various years; 3) the database upon which Dr. Barnow relied is inaccurate; and 4) Dr. Barnow’s analysis ignores critical variables.
The reliability of Dr. Barnow’s analysis was thoroughly and specifically briefed in motions to exclude the testimony of both 4

E.E.O.C. v. Wal-Mart Stores, Inc., Not Reported in F.Supp.2d (2010) Dr. Barnow and Wal–Mart’s responsive expert James Freeman based on Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The Court has recently conducted four days of Daubert hearings on those and other motions and heard testimony from Dr. Barnow and Freeman and arguments by the parties. *6 For reasons stated by separate opinion, the Court has concluded that Dr. Barnow’s testimony is admissible and has addressed each of Wal–Mart’s arguments enumerated above. Given that ruling, the EEOC has established a prima facie case of disparate treatment. “Where gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination.” Hazelwood School District v. United States, 433 U.S. 299, 307–08, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977). The remaining arguments in Wal–Mart’s Motion for Summary Judgment depend upon this Court finding that Dr. Barnow’s testimony is so unreliable that it should not be presented to a jury. Wal–Mart argues that the EEOC cannot make a prima facie case based on the testimony of its expert William Bielby or on the anecdotal evidence. These arguments are moot given the admission of Dr. Barnow’s testimony.
III. CONCLUSION. For all these reasons, the Court hereby ORDERS as follows: 1) Wal–Mart’s Motion for Summary Judgment (DE 409) is DENIED; 2) the EEOC’s Motion to Exclude Certain Evidence Improperly offered by Wal–Mart in Support of Summary Judgment (DE 420) is DENIED. Any objections to the evidence Wal–Mart has relied on in support of its Motion for Summary Judgment should have been made in the EEOC’s 75–page response brief. Further, the Court has not relied on the DVD at issue in ruling on the Motion for Summary Judgment. Likewise, many of the allegedly unsupported facts to which the EEOC objects have no bearing on the Court’s finding on summary judgment. Finally, when either party has asserted that any material facts are “undisputed,” “admitted,” “conceded,” etc., the Court has not accepted any such assertions without citation and has reviewed the citation when given to determine whether the record has been accurately characterized; and 3) Wal–Mart’s Motion to File Sur–Reply (DE 433) is DENIED.
5

 
 E.E.O.C. v. Wal-Mart Stores, Inc., Not Reported in F.Supp.2d (2011)
2011 WL 42997 Only the Westlaw citation is currently available.
United States District Court, E.D. Kentucky,
Southern Division at London.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff v.
WAL–MART STORES, INC., Defendant.
Civil Action No. 6:01–CV–339–KKC. | Jan. 6, 2011.
Attorneys and Law Firms
Aimee Lynn McFerren, Kenneth W. Brown, EEOC–Louisville Area Office, Louisville, KY, Laurie A. Young, Michelle Eisele, Nancy Dean Edmonds, Robin M. Lybolt, Equal Employment Opportunity Commission, Indianapolis, IN, Lauren Gibbs, EEOC, Detroit, MI, for Plaintiff.
Erin M. Roark, Joseph P. Donohue, Kathryn A. Quesenberry, Michael J. Henry, Dinsmore & Shohl, Louisville, KY, Kalpana Srinivasan, Victoria L. Cook, Susman Godfrey LLP, Los Angeles, CA, Sadhna G. True, Dinsmore & Shohl LLP, Lexington, KY, for Defendant.
Opinion
OPINION AND ORDER
KAREN K. CALDWELL, District Judge.
*1 This matter is before the Court on the EEOC’s Motion to Enforce Consent Decree (DE 670). For the following reasons, the motion will be denied.
I. BACKGROUND. In its Complaint, the United States Equal Employment Opportunity Commission (the “EEOC”) asserted that, since at least January 1, 1998, Wal–Mart engaged in unlawful employment practices within Wal–Mart Distribution Center No. 6097 (“DC 6097) in violation of Section 703(a)(1) of Title VII, 42 U.S.C.2000e–2(a)(1). (DE 1, Complaint, ¶ 7).
That statute prohibits an employer from failing or refusing to hire a woman or from otherwise discriminating against her because of her gender.
The EEOC brought a claim pursuant to Section 707 of Title VII, 42 U.S.C. § 2000e–6, which allows the federal government, through the EEOC, to bring a civil action directly against an employer charging systematic discrimination against a protected group. In these cases, the government has to demonstrate that there exists “a pattern or practice of resistance to the full enjoyment of any of the rights secured by [Title VII]....” 42 U.S.C. § 2000e–6(a). Such an action focuses on whether there exists a “pattern of discriminatory decisionmaking.” Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 876 (1984).
This matter was set for trial to begin March 1, 2010. However, on February 26, 2010, the parties jointly moved for entry of a Consent Decree which they represented was intended to and did resolve all matters in dispute between them. (DE 666). The Court granted that motion, entered the Consent Decree (DE 669), and canceled the jury trial. Pursuant to Section 1102 of the decree, this Court retained jurisdiction of this action for five years solely to enforce the Consent Decree.
1

E.E.O.C. v. Wal-Mart Stores, Inc., Not Reported in F.Supp.2d (2011)
The EEOC now charges that Wal–Mart has violated the Consent Decree in two ways. First, the EEOC charges that Wal–Mart has to date not hired class members as it was required to do under Section 302 of the decree. Second, the EEOC charges that Wal–Mart has not provided it documents after receiving reasonable notice as Wal–Mart is required to do under Section 901 of the decree.
In its motion, the EEOC asks the court to 1) order Wal–Mart to instate class members in accordance with Section 302 of the decree; 2) enjoin Wal–Mart from interfering with the right of class members to instatement; and 3) require Wal–Mart to comply with Section 901 of the Consent Decree by responding to the EEOC’s document requests within seven days. (DE 670, Motion at 5).
II. ANALYSIS.
A. Section 302. The EEOC charges that Wal–Mart has not hired class members to work at DC 6097 as it is required to do under the Consent Decree. The decree establishes a mechanism by which class members will be hired to work at DC 6097. The EEOC is required to provide to Wal–Mart, on a rolling basis, “a list of individuals for instatement, at DC 6097. The list shall include all eligible claimants, as defined in Section 402, who indicate an interest in instatement in a claim form submitted to the Administrator (Section 501).” (DE 669, Consent Decree, § 301).
*2 Section 402 defines an eligible claimant as a person who a) is female; b) sought employment with Wal–Mart at DC 6097 between January 1, 1998 and February 15, 2005 (the “relevant time period”); c) should not be excluded from employment under exclusionary criteria as determined by EEOC expert Dr. Barnow; and d) was denied unemployment at least once during the relevant time period. (DE 669, Consent Decree, § 402).
It appears that, to date, Wal–Mart has hired one class member. (DE 671, Response at 2 n. 1; DE 673, Reply at 2 n. 4). The EEOC specifically argues that Wal–Mart should not subject class member to two particular tests that it is currently subjecting them to. The first is a physical abilities test which consists of a “carton lift test,” a “sit-up test,” and an “arm endurance test.” The second test is a Logistics Pre–Employment Assessment which measures certain characteristics of an applicant including safety awareness, integrity, and decision-making skills. (DE 670, Motion at 3 ¶ 9; DE 671, Response at 6). The EEOC asserts that Wal–Mart has used these tests to avoid hiring class members. (DE 670, Motion at 3 ¶ 10).
In resolving this motion, it may be helpful to first note the issues that are not before the Court. The EEOC makes clear that, at least in this action, it is not objecting to the appropriateness of or any disparate impact that the tests at issue may have on female applicants as compared to their male counterparts. (DE 673, Reply at 1 nn. 1 & 2). Nor is the EEOC arguing that the Consent Decree prohibits Wal–Mart from implementing any new hiring criteria at all after the signing of the decree. In fact, the EEOC explicitly states that “Wal–Mart was to be given the right to add additional objective nondiscriminatory uniformly enforced minimum criteria for hires.” (DE 673, Reply at 5).
Nor is the EEOC arguing that the Consent Decree requires Wal–Mart to unconditionally hire all class members who desire to work at the distribution center. The EEOC asserts that Wal–Mart had the right to apply a wide variety of criteria to the class members before hiring them including a minimum age requirement, background checks, drug testing, and reference checks. (DE 673, Reply at 4–5, 10). Likewise, the EEOC asserts that Wal–Mart could refuse to hire class members “with certain types of felonies” or those who were “terminated by their most recent employer.” (DE 670, Ex. 1, Mem. at 2). In fact, the EEOC asserts that Wal–Mart could apply any “non-discriminatory objective, uniformly enforced hiring criteria” to the class members. (DE 673, Ex. 4, Eisele Dec.)
But the EEOC argues that the Consent Decree prohibits Wal–Mart from applying the physical abilities test and the logistics test to class members. “The interpretation of a consent decree or judgment is question of contractual interpretation.” G.G. Marck and Associates, Inc. v. Peng, 309 Fed. Appx. 928, 933–34 (6th Cir.2009)(quoting Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 372 (6th Cir.1998)). The EEOC points to no provision of the Consent Decree that prohibits Wal–Mart from subjecting class members to these tests.
*3 In fact, Section 302 explicitly provides that Wal–Mart must fill a vacant orderfiller position with an individual on the list provided by the EEOC “subject to criteria that is applicable for all new hires in the orderfiller position.” (DE 669, Consent Decree, § 302). Wal–Mart asserts that all new hires are now subject to the two tests at issue and the EEOC does not dispute that. Under the plain language of the decree, Wal–Mart may subject the class members to the new tests because the tests are
2

E.E.O.C. v. Wal-Mart Stores, Inc., Not Reported in F.Supp.2d (2011)
applied to “all new hires in the orderfiller position.”
The EEOC asserts that, when the parties agreed to the language, “subject to the criteria that is applicable for all new hires in the orderfiller position,” the parties only intended that Wal–Mart “would have the right to exclude class members who failed to meet uniformly enforced non-discriminatory screening criteria, for example: minimum age, legal right to work in the United States, those with problematic background checks or any other non-discriminatory uniformly enforced hiring criteria.” (DE 673, Reply at 4–5). Because the language of the decree is unambiguous, however, this Court cannot look at the parties’ purpose or intent. Central Bank & Trust Co. v. Kincaid, 617 S.W.2d 32, 33 (Ky.1981). The “subject to” clause does not limit itself to any particular kind of criteria. It broadly conditions Wal–Mart’s obligation to hire class members on any and all criteria that is applicable to all new hires in the orderfiller position. The clause does not limit itself to background checks or any other criteria that the EEOC has identified in its motion as acceptably “minimal.”
Further, the EEOC states that it intended to permit Wal–Mart to apply “non-discriminatory uniformly enforced hiring criteria.” Nevertheless, the EEOC does not assert that the physical abilities test or the logistics test are not uniformly enforced or that they are discriminatory.
Moreover, the EEOC’s argument that the “subject to” clause was only intended to insure that class members “meet certain very minimal qualifications” such as being at least 18, having the legal right to work in the United States and having no felony convictions (DE 670, Ex. 1 Mem. at 2) is illogical. As the EEOC itself concedes, before class members can be placed on the “instatement list,” the settlement administrator has already confirmed that “each person met the minimum criteria for hire ... as determined by EEOC expert Dr. Barnow.” (DE 670, Motion at 2, ¶ 7; DE 669, Consent Decree, § 402). In his March 1, 2007 report, Dr. Barnow listed as minimum criteria for employment at DC 6097 that the applicant must be at least 18, have a legal right to work in the United States, and have no felony convictions. (DE 671, Response, Ex. 6, Barnow Report at 19 n. 15). There would be no reason for the parties to have provided that Wal–Mart’s obligation to hire those on the list was subject to the same criteria that would have prohibited them from being on the list in the first place.
*4 The EEOC argues that the terms “instatement” and “rightful place hiring” are used in the decree and that this supports its position that Wal–Mart cannot apply the physical abilities test or logistics test to the class members. However, as discussed above, the Consent Decree explicitly states that Wal–Mart’s obligation to hire class members is “subject to the criteria that is applicable for all new hires in the orderfiller position.” The Consent Decree’s simple use of the terms “instatement” or “rightful place hiring” in various areas does not contradict this plain language.
The EEOC argues that, if Wal–Mart can hire class members “subject to criteria that is applicable for all new hires in the orderfiller position,” as the decree states, then class members effectively have only the right to apply for a job (DE 670, Ex. 1, Mem. at 5). But, there is a critical distinction between applicants and class members under the decree. The decree provides that Wal–Mart will fill orderfiller vacancies with an individual on the list provided by the EEOC if the individual meets the criteria applicable to all hew hires in the orderfiller position. Applicants that are not on the list, in contrast, are not assured of being hired even if they do meet the new-hire criteria.
The EEOC argues that subjecting the class members to criteria applicable to all new hires is inconsistent with its own settlement procedures and practices. (DE 673, Reply at 6–7). Again, because the language of the decree is unambiguous, this Court cannot look at the parties’ purpose or intent. Further, the EEOC’s argument on this point is that it is not its practice to settle class actions in a way which “subjects class members to possible continued discrimination via subjective and unproven testing which may have a disparate impact on women.” (DE 673 at 7)(emphasis added). Again, however, as the EEOC itself points out, it makes no allegation in this action that the tests at issue have a disparate impact on or otherwise discriminate against women. That is not what this motion is about.
The EEOC argues that Wal–Mart never mentioned the addition of the physical abilities test or the Logistics Pre–Employment Assessment during settlement negotiations and this establishes that Wal–Mart believed that class members could not be subject to these tests. Again, the Court is not concerned with Wal–Mart’s belief or intention when negotiating the settlement because the decree is unambiguous. Further, even if the Court could consider the fact that Wal–Mart never mentioned the tests during negotiations, this would not establish that Wal–Mart intended that class members could not be subject to them when the plain language of the agreement provides otherwise.
The EEOC argues, alternatively, that if Wal–Mart did intend to subject class members to the tests, then Wal–Mart committed fraud in the settlement negotiations by failing to mention the tests. The EEOC argues that Wal–Mart was obligated to mention the tests partly because it knew that the EEOC was concerned about the disparate impact of such testing. But, Wal–Mart cannot be said to have committed fraud by failing to make sure that all of the EEOC’s concerns were met in the
3

E.E.O.C. v. Wal-Mart Stores, Inc., Not Reported in F.Supp.2d (2011)
Consent Decree. That is the EEOC’s job.
B. Section 901. *5 The next issue is whether Wal–Mart violated the Consent Decree by failing to produce documents after “reasonable notice” by the EEOC.
Wal–Mart asserts that this issue is now moot because it has produced all of the documents the EEOC has requested. The EEOC does not dispute that Wal–Mart has now produced the documents. Nevertheless, in its motion, the EEOC asks the Court to order Wal–Mart to respond to all document requests within seven days . Accordingly, the EEOC’s motion regarding document requests is not moot.
Section 901 provides, in pertinent part, the following:
The EEOC may review compliance with this decree. As part of such review, the EEOC may inspect the premises, interview employees, and request, examine, and copy documents upon reasonable notice.
(DE 669, Decree § 901).
Thus, so long as the EEOC gives Wal–Mart “reasonable notice,” Wal–Mart must permit the EEOC to examine and copy documents. “Reasonable notice” is not defined in the decree. What is “reasonable” generally depends upon the facts and circumstances of each case. Thus, the Court will not set a hard and fast rule on the number of days in which Wal–Mart must respond to every document request and the Court will deny the EEOC’s motion to order Wal–Mart to comply with all such requests within seven days.
However, Wal–Mart’s assertion that Section 902 governs the time in which it must respond to document requests is clearly wrong. That provision states:
In the event that the EEOC alleges that a violation of this Decree has occurred, the EEOC shall give notice to Wal–Mart in writing specifically identifying the alleged violation. Wal–Mart will have (45) forty-five days in which to investigate and respond to the allegations.
(DE 669, Decree § 902).
Under its plain language, this provision gives Wal–Mart 45 days to “investigate and respond to” any allegations by the EEOC that Wal–Mart has violated the decree. It does not govern the time in which Wal–Mart must respond to the EEOC’s requests for documents. Thus—even if the EEOC simultaneously notifies Wal–Mart of an alleged decree violation and requests documents—Wal-Mart must respond to the document request within a time period that is reasonable.
While the Court declines to set a number of days in which Wal–Mart must respond to every EEOC document request, it is difficult to imagine any facts and circumstances under which Wal–Mart would need 45 days to respond to a document request permitted under the decree. In the event of any future EEOC requests for documents, Wal–Mart should be prepared to demonstrate why its response time was “reasonable” given the facts and circumstances of each request.
III. CONCLUSION. For all these reasons, the Court hereby ORDERS that Wal–Mart’s Motion to Enforce Consent Decree (DE 670) is DENIED.
Parallel Citations 94 Empl. Prac. Dec. P 44,073
4

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON

CIVIL ACTION NO. 6:01-CV-339-KKC EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

PLAINTIFF,

v.

OPINION AND ORDER

WAL-MART STORES, INC.,

DEFENDANT.

***********

This matter is before the Court on the EEOC's Motion for Entry of Final Notice of

Distribution. [DE 728]. For the following reasons, the motion is GRANTED.

I. Background.

A. The Action.

In its Complaint, the United States Equal Employment Opportunity Commission

(the AEEOC@) asserted that, since at least January 1, 1998, Wal-Mart engaged in unlawful

employment practices within Wal-Mart Distribution Center No. 6097 in violation of

Section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1). (DE 1, Complaint, & 7). That

statute prohibits an employer from failing or refusing to hire a woman or from otherwise

discriminating against her because of her gender.

The EEOC brought a claim pursuant to Section 707 of Title VII, 42 U.S.C. '

2000e-6, which allows the federal government, through the EEOC, to bring a civil action

directly against an employer charging systematic discrimination against a protected

group. In these cases, the government must demonstrate that there exists Aa pattern or

practice of resistance to the full enjoyment of any of the rights secured by [Title VII] ....”

1

42 U.S.C. ' 2000e-6(a). Such an action focuses on whether there exists a Apattern of discriminatory decisionmaking.@ Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 876 (1984).
This matter was set for trial to begin March 1, 2010. However, on February 26, 2010, the parties jointly moved for entry of a Consent Decree which they represented was intended to and did resolve all matters in dispute between them. [DE 666]. The Court granted that motion, entered the Consent Decree [DE 669], and canceled the jury trial. Pursuant to Section 1102 of the decree, this Court retained jurisdiction of this action for five years solely to enforce the Consent Decree.
B. The Consent Decree. Pursuant to the Consent Decree, Wal-Mart paid $11,700,000 into a Settlement Fund. The fund was established and administered by a third-party settlement claims administrator and is to be distributed to eligible class members in a manner to be determined by the EEOC. Pursuant to this Court's October 6, 2011 Order [DE 726], the Consent Decree was later modified to require Wal-Mart to pay an additional $120,000 into the fund because, after the first Notice of Proposed Distribution was mailed to class members, Wal-Mart produced to the EEOC additional applicant materials which caused the awards to some class members to be increased. [DE 726]. The $120,000 represented the total amount of increased awards caused by Wal-Mart's late production. For a short period of time, the fund was interest bearing and accrued interest of $23,514.37. C. Definition of Eligible Class Member. The EEOC identified 1378 eligible class members based upon a report of its
2

statistical expert, Dr. Burt S. Barnow, who was hired by the EEOC to identify applicants during the relevant time period who had some probability of being hired. The relevant time period was between January 1, 1998 and February 15, 2005.
Based on Dr. Barnow's report, the EEOC defined an eligible class member as a female who applied for a job at the distribution center during the relevant time period who met the following criteria:
was at least 18 at the time she applied for the job; was not hired for at least one job for which she submitted an application; had at least one application that was not labeled by Wal-Mart a "no-call, no-show" or "could not be reached;" and if the application was submitted after January 1, 2002, the applicant must have applied for at least one non-clerical job (this is because no one was hired who applied for clerical-only positions after January 1, 2002) [DE 731, Tr. at 29]. Applicants who met these criteria were determined to be eligible class members. To determine which applicants met these criteria, the Settlement Administrator used the documentation that Wal-Mart supplied in applicant files. D. Claim Forms. After determining the eligible class members, the Settlement Administrator sent a claim form to each class member. [DE 31, Tr. at 45, 64]. The claim form directed that, in order to participate in the settlement, the form must be returned to the Settlement Administrator postmarked by May 12, 2010. [DE 730, Ex. 692A]. When each claim form arrived at the Settlement Administrator's offices, the form and the envelope were date-stamped. [DE 731, Tr. at 48].
3

E. Determining Likelihood of Being Hired. The EEOC established award categories based upon the class members' likelihood of being hired as determined by Dr. Barnow's report. Dr. Barnow concluded that, to be eligible for hire, an applicant at the distribution center had to receive approvals by three managers. This was the only characteristic in common for all hires. An applicant was considered to have obtained management approval if her file contained a written document indicating that she was interviewed and received a "yes" from a manager, meaning she was approved for a following interview. [DE 731, Tr. at 32]. The only exception to this interview requirement was for transfer applicants who filed a transfer application. These applicants did not have to go through three interviews before being hired. Dr. Barnow also concluded that, between 1998 and 2001, an applicant was less likely to be hired if she applied for only white-collar or clerical positions. After 2001, Dr. Barnow concluded, that an applicant had no likelihood of being hired if she applied for only clerical work. Dr. Barnow concluded that applicants with negative references were less likely to be hired. Wal-Mart only checked references after the second interview. Thus, if an applicant had two interviews but received a bad reference after the second interview, they were less likely to be hired. F. Award Categories. The EEOC determined that applicants with a greater likelihood of being hired should receive greater monetary awards from the Settlement Fund. [DE 730, Power point; DE 731, Tr. at 39]. The EEOC also determined that women who progressed the furthest
4

in the hiring process had persisted in attempting to be hired despite suffering discrimination and being rejected.
The EEOC established six award categories which are detailed in the Final Notice of Distribution and is attached as Exhibit 1 to the EEOC's motion. [DE 728]. The award categories depended upon such factors as the number of interviews an applicant had, whether the applicant indicated she would accept a warehouse, order-filler or heavylifting position and whether she had negative references.
The categories are designated Category A-1, A-2, B-1, B-2, C-1, and C-2. Applicants in Category A-1 were considered to have the greatest likelihood of being hired and receive the largest monetary award ($42,000). Applicants in Category C-2 were considered to have the least likelihood of being hired and receive the smallest monetary award ($2,000).
The Settlement Administrator placed eligible claimants into one of these six categories based upon information contained in the class members' application packets produced by Wal-Mart. If class members had multiple applications, the application that placed them in the highest category was used.
G. Incentive Payments. In addition, the EEOC determined that incentive payments should be paid to those class members who assisted in the litigation in certain defined ways with those who provided the greatest assistance receiving the highest incentive amounts. The EEOC established four categories of assistance levels and assigned an incentive payment amount to each category. The categories are detailed in the Final Notice of Distribution attached as Exhibit
5

1 to the EEOC's motion. [DE 728]. The categories are designated Class 1 to 3 and "Charging Party Incentive." The Charging Party Incentive category consists of only the class member who filed the initial charge with the EEOC which formed the basis for this lawsuit. She receives the highest incentive payment of $13,500. Class 1 to Class 3 members receive incentive payments ranging from $10,500 to $3,500.
H. Notice of Proposed Distribution and Objections. Pursuant to Section 601 of the Consent Decree, the EEOC filed with the Court a Notice of Proposed Distribution which the Court signed. [DE 679]. The Settlement Administrator mailed the notice to all class members. [DE 731 at 45-46]. The notice explained how the award categories and incentive award classes were determined. It also notified each class member of her individual award determination and provided instructions for objecting to the proposed distribution. The notice also included a table showing the number of claimants assigned to each award category and incentive class and the monetary awards for each award category and incentive class. The EEOC received a total of 134 objections to the proposed distribution [DE 730, Objections Checklist, Alpha. Objections Checklist, Objections 1-119, 689A-I, 692A-C, 701A-C]. After receiving the objections, the Settlement Administrator reviewed applicant files and the EEOC asked Wal-Mart to search for additional applicant materials. In some instances, Wal-Mart produced additional applicant materials that it had overlooked in the first production. Based upon the additional material produced by WalMart, the Settlement Administrator recommended certain revisions to the proposed distribution. [DE 731, Tr. at 50-51; DE 739, Ex. 202]. The EEOC then filed a Motion for Entry of Final Notice of Distribution. [DE
6

728]. The Revised Summary of Claimants by Category and Class and Recommended Award Amounts attached to the motion include the changes recommended by the Settlement Administrator after the objections were filed.
I. Fairness Hearing. The Court conducted a day-long Fairness Hearing on October 25, 2011. The Settlement Administrator testified that, with the suggested revisions to the distribution, $18,514.47 would remain in the fund. She recommended that amount be allocated pro rata to the class members unless the Court determined that additional revisions be made to the proposed distribution. [DE 731, Tr. at 56-57]. The EEOC's paralegal testified that, of the 134 written objections, nine individuals had indicated to the EEOC prior to the Fairness Hearing that they wished to withdraw their objections. [DE 731, Tr. at 65-67, DE 730, Ex. 207]. Four additional individuals representing six objections1 withdrew those objections at the hearing [DE 731, Tr. at 79, 85, 94, 130], bringing the total number of objections down to 119.
At the hearing, the Court gave all those in attendance an opportunity to be heard. Approximately 27 women who had filed written objections spoke in support of their objections. An additional five women who had not filed written objections spoke at the hearing in opposition to the proposed distribution. [DE 731, Tr. at 185]. In addition, the Settlement Administrator and the EEOC paralegal specialist provided relevant testimony.
II. Standard of Review. Voluntary settlements of class action disputes are favored, particularly in Title VII cases where Congress has expressed its preference for settlement. EEOC v. Hiram
1 One objector filed three separate objections but withdrew all the objections at the hearing. [DE 731, Tr. at 94; DE 730, Alpha. Objections].
7

Walker & Sons, Inc., 768 F.2d 884, 888-89 (7th Cir. 1985). Before a court can approve a class action settlement, it must determine that the settlement is fair, reasonable and adequate. Fed. R. Civ. P. 23(e)(2). While actions brought by the EEOC are not technically governed by Federal Rule of Civil Procedure 23, the majority of courts analyze settlements of EEOC actions under the same standard. See Binker v. Pennsylvania, 977 F.2d 738, 747-48 (3d Cir. 1992).
Accordingly, prior to approving the proposed distribution in this case, the Court will analyze it to determine if it is fair, reasonable, and adequate. The Sixth Circuit has identified seven factors that should aid a court in its determination of whether a class action settlement is fair, reasonable, and adequate: (1) the risk of fraud or collusion; (2) the complexity, expense, and likely duration of the litigation; (3) the amount of discovery engaged in by the parties; (4) the likelihood of success on the merits; (5) the opinions of class counsel and class representatives; (6) the reaction of absent class members; and (7) the public interest. Intl. Union, UAW v. Gen. Motors Corp., 497 F.3d 615, 631 (6th Cir. 2007).
"In considering a proposed class action settlement, a court may either approve or disapprove of the settlement; it may not rewrite the parties' agreement." E.E.O.C. v. Renhill Group, Inc., No. 1:08-cv-82-TS, 2009 WL 1605159, at *6 (N.D. Ind. June 5, 2009)(quoting Armstrong v. Bd. of Sch. Directors, 616 F.2d 305, 315 (7th Cir. 1980)). "A court may not deny approval of a consent decree unless it is unfair, unreasonable, or inadequate.” Id. (quoting Hiram Walker & Sons, 768 F.2d 884, 889 (7th Cir. 1985) (internal quotations omitted)).
"Objections based purely upon individual claims of loss do not warrant
8

disapproval of the proposed settlement." E.E.O.C. v. McDonnell Douglas Corp., 894 F. Supp. 1329, 1335 (E.D. Mo. 1995) (citing E.E.O.C. v. Pennsylvania, 772 F. Supp. 217, 220 (M.D. Pa. 1991)). "In assessing the fairness of a settlement, the Court's role is not to make a de novo evaluation of whether the measures applied to all claimants provide each individual with a satisfactory recovery. Rather, the criteria or methodology employed by the litigants is sufficient if its terms, when applied to the entire group of individuals represented, appear reasonable." Id.
A. Individual Objections. In analyzing the fairness, reasonableness, and adequacy of the proposed distribution, the Court will first consider the individual objections to it. The written and oral objections to the proposed distribution in this action largely fall into four groups. In the first group are those objectors who assert that their individual proposed award is insufficient because the Wal-Mart applicant files were incorrect or incomplete. These objectors were either excluded from the class based upon the information in their applicant files or were placed in a category with a lower award than the objectors claim they should have been. For example, many of these objectors argued that they actually passed one or more interviews but were placed in one of the categories which consists of those applicants who passed no interviews. For each of these objectors, the Settlement Administrator conducted a review of the objections prior to the Fairness Hearing and completed an Objection Review Summary Sheet explaining the basis for the individual's category placement and, where warranted, the basis for any revision to the category placement. The EEOC submitted the Objection Review Summary Sheets to the Court prior to the hearing.
9

The Court finds that the EEOC reasonably relied on the Wal-Mart applicant files in determining class membership and the award category of each claimant. Wal-Mart had no incentive to purposely alter the files. Regardless of the amounts awarded to individual claimants, the amount Wal-Mart was obligated to pay into the Settlement Fund would not change. Nor did the EEOC or the Settlement Administrator have any incentive to intentionally alter or incorrectly account for the information in the files.
Due to human error, the applicant files may not be accurate for each claimant. However, individual memories can also be in error. This is especially true because the events at issue occurred between 1998 and 2005. Accordingly, it was reasonable for the EEOC to rely on written materials when assigning claimants to categories.
The second group of objectors consists of those objectors who assert that the EEOC's method of distribution was unfair and that all claimants should have instead received an equal distribution from the Settlement Fund. The Court finds the EEOC's method of distribution was reasonable. As the EEOC explained at the Fairness Hearing, claimants who were considered to have the greatest likelihood of being hired as determined by the EEOC's statistical analysis received the largest monetary award. Applicants considered to have the least likelihood of being hired received the smallest monetary award.
In other words, the EEOC proposes to distribute the Settlement Fund on the basis of the strength of the applicant's case against Wal-Mart. Applicants with the strongest potential cases as determined by the EEOC investigation received a higher award than those who would have had a more difficult time convincing a jury that they were not hired because of gender discrimination.
10

Another indication that the proposed distribution is fair and reasonable is that Dr. Barnow statistically determined that, absent any discrimination, Wal-Mart would have hired 229 more women during the relevant time period than it did. That number is very close to the 232 class members that the EEOC placed in categories A or B because they had characteristics which Dr. Barnow determined made applicants most likely to be hired.
The third category of objectors consists of those whose claims were denied because they failed to submit a claim form or failed to do so in a timely manner. The claim form stated in bold print "Claim Form must be postmarked by May 12, 2010." It also clearly stated in bold print:
Please note that you will not be considered for inclusion in the settlement if: (1) this form is not postmarked by May 12, 2010 or (2) your address changes and you do not notify the Settlement Administrator at the address above or by calling (877) 644-0335. [DE 733, Ex. 692A]. The Settlement Administrator sent a claim form to each class member. [DE 731, Tr. at 45, 64]. At the Fairness Hearing, the Settlement Administrator explained that she ran all addresses through the U.S. Postal Service national change-of-address database to capture any forwarding addresses put into place in the last four years. If the claim form was returned as undeliverable, the Settlement Administrator used a tracing service to obtain a different address for the individual. If the tracing service produced a new address, the Settlement Administrator remailed the claim form to the new address. [DE 731, Tr. at 47-48]. When the claim form arrived at the Settlement Administrator's offices, the form and the envelope were date-stamped. [DE 731, Tr. at 48]. The Court finds this procedure was fair, reasonable, and adequate to determine if
11

class members wished to be included in the settlement. Further, in the interest of finality, it was fair and reasonable to exclude individuals from the settlement if they failed to return a claim form indicating their desire to be included or if they submitted a claim form in an untimely manner.
The fourth category of objectors consists of those who object to the incentive payments. The Sixth Circuit has observed that incentive awards may be appropriate in some cases, but has not specified the appropriate circumstances. Hadix v. Johnson, 322 F.3d 895, 897-98 (6th Cir. 2003). District courts approve incentive awards for individuals who have earned them by protecting the rights of the class members, assuming any direct or indirect financial risk, or expending time and effort pursuing the litigation. Enterprise Energy Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240, 250 (S.D. Ohio 1991). The EEOC has awarded incentive awards in this case based upon the level of assistance provided by class members. The Court finds that is fair and reasonable. Given the length of this litigation and the time required to provide deposition testimony and other information during discovery and to prepare for trial, the Court believes the amount of the incentive awards are fair and reasonable.
For each individual who objected to her category placement, the EEOC conducted a review of the individual's placement prior to the Fairness Hearing and submitted a review summary sheet to the Court explaining the basis for the individual's category placement.
At the Fairness Hearing, some individuals argued that the EEOC had not awarded them incentive payments even though they were deposed. However, the EEOC paralegal testified that these individuals were deposed by Wal-Mart because Wal-Mart believed
12

their testimony would be helpful to Wal-Mart's case. These individuals were not identified by the EEOC as individuals having information helpful to the EEOC. It is fair and reasonable for the EEOC to award incentive payments to only those individuals who assisted the EEOC in its litigation.
B. Analysis of Proposed Distribution for Fairness, Reasonableness, and Adequacy.
In sum, the Court does not find that any of the individual objections to the proposed distribution require the Court to reject the proposal. As to the seven factors that the Sixth Circuit has indicated a Court should consider in analyzing a class action settlement, the Court first addresses the risk of fraud or collusion.
This case was filed more than10 years ago. The parties have engaged in extensive motion practice and discovery. There is no indication that there has been any fraud or collusion at any point in this litigation including the negotiation of the settlement. Further, the only indication is that the Consent Decree was the product of arm's-length, good-faith settlement negotiations. Accordingly, the evidence before the Court indicates that the risk of collusion among counsel is nonexistent.
As to the second factor — the complexity, expense, and likely duration of the litigation — the Court must weigh the risks, expense and delay the plaintiffs would face if they continued to prosecute the litigation through trial and appeal. In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 523 (E.D. Mich. 2003). The Court concludes that this factor weighs in favor of finding the settlement fair and reasonable. A trial of this matter would have been complex and factually intensive with regards to both liability and damages. A resolution of these issues by a jury would have constituted a significant risk for the class members.
13

Further, there is a very real potential that most of the individual monetary awards in this action would have been zero at trial. “[I]n so-called ‘pattern or practice cases,’ if the plaintiff can establish ‘that racial discrimination was the company's standard operating procedure,’ the burden of proof shifts to the defendant to show that in individual cases the hiring decision was not due to the discriminatory policy but to some other, legitimate consideration.” E.E.O.C. v. United Ass'n of Journeymen, 235 F.3d 244, 251 (6th Cir. 2000) (quoting Lujan v. Franklin County Bd. of Educ., 766 F.2d 917, 92829 (6th Cir. 1985)).
Wal-Mart may well have met this burden for a large number of the individual claimants. The EEOC statistical expert never asserted that every member of the class would have been hired if there had been no discrimination in the hiring process. Instead, his analysis showed that that the vast majority of female applicants would not have been hired if there had been no discrimination in the hiring process. The statistical expert determined that the likelihood of getting hired at the distribution center during the relevant time period was extremely low regardless of whether the applicant was male or female. He determined that less than one percent of female applicants — or 229 of the almost 5000 female applicants during the relevant time period — who were not hired would have been hired even if there were no discrimination in the hiring process. Considering the risks of a smaller recovery, or none at all, after an expensive and protracted trial and appeal, the proposed distribution is fair, reasonable and adequate.
As to the third factor — the amount of discovery engaged in by the parties — the parties engaged in extensive and complete discovery in this action which permitted them to frankly evaluate the merits of and risks inherent in their respective cases to determine
14

an appropriate overall settlement amount and to allow the EEOC to fairly and adequately determine an allocation of that amount to the eligible claimants.
As to the fourth factor — the likelihood of success on the merits — the factual complexity of the case makes it difficult to gauge the likelihood of the EEOC's success at trial. The EEOC's likelihood of success on the merits was legitimately possible, but the Court expresses no opinion as to whether it was probable. Accordingly, the proposed distribution is a reasonable and appropriate tradeoff for the elimination of the risk associated with a trial of this action.
As to the fifth factor — the opinions of class counsel and class representatives — counsel for the EEOC and Wal-Mart have extensive experience in matters such as this. Their approval of the proposed distribution weighs in favor of the Court's approval of it. The Charging Party has voiced no opposition.
As to the sixth factor — the reaction of absent class members — it is appropriate to consider the reaction of the class members as a whole to the proposed settlement. Brotherton v. Cleveland, 141 F. Supp. 2d 894, 906 (S.D. Ohio 2001). "A certain number of . . . objections are to be expected in a class action …. If only a small number are received, that fact can be viewed as indicative of the adequacy of the settlement." In re Cardizem CD Antitrust Litigation, 218 F.R.D. 508, 527 (E.D. Mich. 2003). In this action, the class consists of approximately 1378 members. There were a total of only 119 objections. The overwhelming majority of the class has no objection to the terms of proposed distribution. Further, as discussed above, the Court does not find these individual objections warrant disapproval of the proposed distribution.
Lastly, the Court considers the public interest. As noted, there is a federal policy
15

favoring settlement of class actions. There is no basis for not adhering to that policy in this matter. The Court therefore finds that the public interest warrants approval of the proposed distribution.
III. Conclusion. For all these reasons, the Court hereby FINDS that the EEOC's proposed distribution of the Settlement Fund is fair, reasonable, and adequate. Accordingly, the Court hereby ORDERS as follows: 1) the EEOC's Motion for Entry of Final Notice of Distribution [DE 728] is GRANTED; 2) The Settlement Fund SHALL BE DISTRIBUTED as provided in the Recommended Award Amounts attached as Exhibit 4 to the EEOC's motion [DE 728]; 3) Any amount remaining in the fund SHALL BE DISTRIBUTED pro rata to the class members receiving a distribution from the Settlement Fund as provided in the Recommended Award Amounts attached as Exhibit 4 to the EEOC's motion; 4) The EEOC SHALL cause this Opinion and Order to be mailed to all class members; and 5) This Order is Final and Appealable. Dated this 20th day of December, 2011.
16

 
 Case 6:01-cv-339 As of: 06/03/2017 02:11 PM EDT Page 1 of 95
BIFTRL,CLOSED,PROTO,R/R,REFERD
U.S. District Court Eastern District of Kentucky (London) CIVIL DOCKET FOR CASE #: 6:01−cv−00339−KKC−REW

EEOC v. Wal−Mart Stores Inc Assigned to: Judge Karen K. Caldwell Referred to: Magistrate Judge Robert E. Wier Demand: $0 Cause: 42:1981 Sex Discrimination
Plaintiff
Equal Employment Opportunity Commission

Date Filed: 08/24/2001 Date Terminated: 03/01/2010 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff
represented by Aimee Lynn McFerren EEOC − Louisville Area Office 600 Martin Luther King, Jr. Place Suite 268 Louisville, KY 40202−2285 502−582−6308 Fax: 502−582−5435 Email: aimee.mcferren@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bobby C. Simpson EEOC − Louisville Area Office 600 Martin Luther King, Jr. Place Suite 268 Louisville, KY 40202−2285 TERMINATED: 07/27/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jo Ann Farnsworth Equal Employment Opportunity Commission − Indianapolis 101 W. Ohio Street Suite 1900 Indianapolis, IN 46204−4203 317−226−7949 Fax: 317−226−5571 Email: joann.farnsworth@eeoc.gov TERMINATED: 12/12/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johanna Philhower Maple Equal Employment Opportunity Commission − Indianapolis 101 W. Ohio Street Suite 1900 Indianapolis, IN 46204−4203 317−226−7949 Fax: 317−226−5571 Email: johanna.maple@eeoc.gov TERMINATED: 01/16/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kenneth W. Brown EEOC − Louisville Area Office 600 Martin Luther King, Jr. Place Suite 268 Louisville, KY 40202−2285

Case 6:01-cv-339 As of: 06/03/2017 02:11 PM EDT Page 2 of 95
502−582−5440 Fax: 502−582−5895 Email: kenneth.brown@eeoc.gov LEAD ATTORNEY
Laurie A. Young Equal Employment Opportunity Commission − Indianapolis 101 W. Ohio Street Suite 1900 Indianapolis, IN 46204−4203 317−226−7202 Fax: 317−226−7203 Email: laurie.young@eeoc.gov LEAD ATTORNEY
Michelle Eisele Equal Employment Opportunity Commission − Indianapolis 101 W. Ohio Street Suite 1900 Indianapolis, IN 46204−4203 317−226−7059 Fax: 317−226−5571 Email: michelle.eisele@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Dean Edmonds Equal Employment Opportunity Commission − Indianapolis 101 W. Ohio Street Suite 1900 Indianapolis, IN 46204−4203 317−226−7229 Fax: 317−226−5571 Email: nancy.edmonds@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jan Shelly EEOC − St. Louis District Office 1222 Spruce Street Room 8.100 St. Louis, MO 63103 314−539−7918 Fax: FAX 314−539−7895 TERMINATED: 09/02/2008 ATTORNEY TO BE NOTICED
Lauren Gibbs EEOC − Detroit 477 Michigan Avenue Room 865 Detroit, MI 48226 313−226−2640 ATTORNEY TO BE NOTICED
Robin M. Lybolt EEOC − Indianapolis District Office 101 W Ohio Street Suite 1900 Indianapolis, IN 46204 317−226−5049 Fax: 317−226−5571

Case 6:01-cv-339 As of: 06/03/2017 02:11 PM EDT Page 3 of 95 ATTORNEY TO BE NOTICED

V. Defendant Wal−Mart Stores, Inc.

represented by Erin M. Roark Dinsmore & Shohl, LLP − Louisville KY 101 S. Fifth Street Suite 2500 Louisville, KY 40202 502−581−8129 Fax: 502−581−8111 Email: eroark@dinslaw.com TERMINATED: 08/24/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph P. Donohue Dinsmore & Shohl, LLP − Louisville KY 101 S. Fifth Street Suite 2500 Louisville, KY 40202 502−581−8109 Fax: 502−581−8111 Email: jdonohue@dinslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kalpana Srinivasan Susman Godfrey LLP − LA 1901 Avenue of the Stars Suite 950 Los Angeles, CA 90067−6029 310−789−3106 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn A. Quesenberry Dinsmore & Shohl, LLP − Louisville KY 101 S. Fifth Street Suite 2500 Louisville, KY 40202 502−581−8025 Fax: 502−581−8111 Email: kathryn.quesenberry@dinsmore.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lee A. Rosenthal Casey, Bailey & Maines, PLLC 3151 Beaumont Centre Circle Suite 200 Lexington, KY 40513 859−243−0228 Fax: 859−243−0528 Email: lrosenthal@cbmlaw.net TERMINATED: 03/10/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Loren Teller Prizant Middleton & Reutlinger 401 S. Fourth Street 2600 Brown & Williamson Tower

Case 6:01-cv-339 As of: 06/03/2017 02:11 PM EDT Page 4 of 95

Louisville, KY 40202 502−584−1135 Fax: 502−561−0442 Email: lprizant@middreut.com TERMINATED: 03/10/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Puja Gakhar Gatton Dinsmore & Shohl, LLP − Louisville KY 101 S. Fifth Street Suite 2500 Louisville, KY 40202 502−581−8019 Fax: 502−581−8111 Email: pgatton@whf−law.com TERMINATED: 06/10/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Victoria L. Cook Susman Godfrey LLP − LA 1901 Avenue of the Stars Suite 950 Los Angeles, CA 90067−6029 310−789−3106 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wendy Carole Hyland Fisher & Phillips − Louisville 220 W Main Street Suite 1700 Louisville, KY 40202 502−561−3973 Fax: 502−561−3991 Email: whyland@fisherphillips.com TERMINATED: 03/10/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael J. Henry Dinsmore & Shohl − Lou 101 S. Fifth Street 2500 National City Tower Louisville, KY 40202 502−581−8036 Fax: 502−581−8111 Email: mjhenry@dinslaw.com ATTORNEY TO BE NOTICED

Sadhna G. True Dinsmore & Shohl LLP − Lexington 250 W. Main Street Suite 1400 Lexington, KY 40507 859−425−1000 Fax: 859−425−1099 Email: sadhna.true@dinsmore.com ATTORNEY TO BE NOTICED

Movant
Kentucky Office of Employment and Training

represented by Kentucky Office of Employment and Training

Case 6:01-cv-339 As of: 06/03/2017 02:11 PM EDT Page 5 of 95
PRO SE
Amy O'Nan Peabody Office of Legal Services−Education Cabinet 500 Mero Street Suite 313 Frankfort, KY 40601 502−564−4813 Fax: 502−564−9321 Email: amy.peabody@education.ky.gov TERMINATED: 04/02/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/24/2001 09/10/2001
09/20/2001 09/20/2001
09/25/2001 10/29/2001 11/14/2001 11/19/2001
11/20/2001 12/12/2001 12/12/2001
12/17/2001 12/20/2001
02/11/2002

# Docket Text
1 COMPLAINT (ONE summons issued and returned to plf's counsel for service) (RBB) (Chrisman, Jamie). (Entered: 08/24/2001)
2 RETURN OF SERVICE executed upon dft Wal−Mart Stores Inc on 8/31/01 by cert mail to CSC−Lawyers Inc Svc Co; signed by Linda A. Smith (NHS) (Chrisman, Jamie). (Entered: 09/20/2001)
3 ANSWER by dft Wal−Mart Stores Inc to COMPLAINT [1−1] (RBB) (Chrisman, Jamie). (Entered: 09/20/2001)
4 ORDER FOR MEETING AND REPORT by Judge Jennifer B. Coffman counsel to conduct meeting by 10/20/01; exchange discl FILE written JOINT REPORT by 10/31/01; (cc: all counsel) [EOD Date: 9/20/01] (RBB) (Chrisman, Jamie). (Entered: 09/20/2001)
5 ATTORNEY APPEARANCE for plaintiff EEOC by Jo Ann Farnsworth (RBB) (Chrisman, Jamie). (Entered: 10/03/2001)
6 REPORT OF PARTIES PLANNING MEETING by plaintiff, defendant (RBB) (Chrisman, Jamie). (Entered: 11/14/2001)
SUBMITTED: REPORT OF PARTIES PLANNING MEETING [6−1] is submitted (RBB) (Entered: 11/14/2001)
7 ORDER by Judge Jennifer B. Coffman Case reassigned to Judge Karen K. Caldwell (cc: all counsel) [EOD Date: 11/19/01] (SKV) (Chrisman, Jamie). (Entered: 11/19/2001)
8 INITIAL DISCLOSURES by dft Wal−Mart Stores Inc (RBB) (Chrisman, Jamie). (Entered: 11/21/2001)
9 WITHDRAWAL OF APPEARANCE: by attorney Jo Ann Farnsworth, counsel for EEOC (RBB) (Chrisman, Jamie). (Entered: 12/17/2001)
9 MOTION by plf EEOC to withdraw attorney Jo Ann Farnsworth as co−counsel of record (RBB) Modified on 12/17/2001 (Additional attachment(s) added on 3/12/2008: # 1 Main Document) (Chrisman, Jamie). (Entered: 12/17/2001)
SUBMITTED re motion to withdraw attorney Jo Ann Farnsworth as co−counsel of record [9−1] is submitted (RBB) (Entered: 12/17/2001)
10 ORDER by Judge Karen K. Caldwell granting motion to withdraw attorney Jo Ann Farnsworth as co−counsel of record [9−1] (cc: all counsel) [EOD Date: 12/21/01] (RBB) (Chrisman, Jamie). (Entered: 12/21/2001)
11 SCHEDULING ORDER by Judge Karen K. Caldwell: 1) PLF mtn filing ddl 4/30/02; DFT mtn filing ddl 5/30/02;2) PLF's EXPERTS 6/30/02; DFT'S EXPERTS 8/15/02; 3) discovery ddl 12/1/02; 4) dispositive mtn ddl 1/30/03 ; 5) ALL DISCOVERY DISPUTES REFERRED to Mag Judge J. B. Johnson Jr. ; 6) no mtn to compel or any other mtn re disc dispute filed unless al counsel have first conferred; 7) FPTC set 5/8/03 at 10:00 a.m. in LONDON; 8) JURY TRIAL set 6/16/03 at 9:30 a.m. in

Case 6:01-cv-339 As of: 06/03/2017 02:11 PM EDT Page 6 of 95

02/11/2002
02/14/2002 02/25/2002 02/25/2002 02/25/2002 03/01/2002 03/01/2002
03/05/2002
03/08/2002 03/11/2002 03/13/2002
05/02/2002 05/03/2002 05/21/2002

LONDON ; length of trial 5 days; 9) pts observe directives re filing disc material; REFERRED to Mag Johnson to conduct tele conf mid way thru disc and stlmt conf w/i 30 days after disc of expert wit rpt; separate order will issue from Mag Judge (cc: all counsel) [EOD Date: 2/13/02] (NHS) (Chrisman, Jamie). (Entered: 02/13/2002)
12 ORDER by Judge Karen K. Caldwell: 1) PT filings due 5/1/03 ; 5/1/03 file: wit/exh list, proposed jury instr; tn of all evidentiary depos to be used at trial; 5/8/03 FILE: written obj to wit/exh; mtns in limine; display to court all exh to be used at trial; mtns on any obj made in any evidentiary depo (cc: all counsel) [EOD Date: 2/13/02] (NHS) (Chrisman, Jamie). (Entered: 02/13/2002)
13 ORDER by Mag Judge J. B. Johnson Jr.: TELE CONF set 7/22/02 at 10:30 a.m. ; stlmt conf will be scheduled during call (cc: all counsel) [EOD Date: 2/14/02] (NHS) (Chrisman, Jamie). (Entered: 02/14/2002)
14 MOTION by plf EEOC for protective order compelling dft to depose Janice Smith in Boston, MA before Mag Judge J. B. Johnson Jr. (RBB) (Chrisman, Jamie). (Entered: 03/01/2002)
15 MEMORANDUM by EEOC in support of motion for protective order compelling dft to depose Janice Smith in Boston, MA before Mag Judge J. B. Johnson Jr. [14−1] (RBB) (Chrisman, Jamie). (Entered: 03/01/2002)
16 JOINT MOTION by plf/dft EEOC, Wal−Mart Stores Inc for expedited briefing schedule and ruling on plf's mt for PTO before Mag Judge J. B. Johnson Jr. (RBB) (Chrisman, Jamie). (Entered: 03/01/2002)
SUBMITTED re joint motion for expedited briefing schedule and ruling on plf's mt for PTO before Mag Judge J. B. Johnson Jr. [16−1] is submitted (RBB) (Entered: 03/01/2002)
17 ORDER ESTABLISHING AN EXPEDITED BRIEFING SCHEDULE ON PLF'S MT FOR PROTECTIVE ORDER: by Mag Judge J. B. Johnson Jr. 1) plf shall file its mt for protective order by 2/25/02; 2) dft shall file response by 3/5/02; 3) plf shall file reply by 3/8/02; court shall render an opinion by 3/13/02 (cc: all counsel) [EOD Date: 3/1/02] (RBB) (Chrisman, Jamie). (Entered: 03/01/2002)
18 RESPONSE by dft Wal−Mart Stores Inc to plf's motion for protective order compelling dft to depose Janice Smith in Boston, MA before Mag Judge J. B. Johnson Jr. [14−1] (RBB) (Additional attachment(s) added on 3/12/2008: # 1 Ex 1 Lexington Ins v. Commonwealth Ins, # 2 Ex 2 Rolex Employees Retirement v. Mentor Graphics) (Chrisman, Jamie). (Entered: 03/05/2002)
19 REPLY by plf EEOC to dft's response to motion for protective order compelling dft to depose Janice Smith in Boston, MA before Mag Judge J. B. Johnson Jr. [14−1] (RBB) (Additional attachment(s) added on 3/12/2008: # 1 Ex A Janice Smith Affidavit) (Chrisman, Jamie). (Entered: 03/11/2002)
SUBMITTED re motion for protective order compelling dft to depose Janice Smith in Boston, MA before Mag Judge J. B. Johnson Jr. [14−1] is submitted (RBB) (Entered: 03/11/2002)
20 MEMORANDUM, OPINION, AND ORDER: by Mag Judge J. B. Johnson Jr.: ORDERED a) plf's mt for a protective order [14−1] is GRANTED; b) deposition of Janice Smith by dft Wal−Mart shall be limited to Boston area, at a mutually agreed time and place (cc: all counsel, via fax and US Mail) [EOD Date: 3/13/02] (RBB) (Chrisman, Jamie). (Entered: 03/13/2002)
21 JOINT MOTION by plf EEOC, dft Wal−Mart Stores Inc for status conference (NHS) (Chrisman, Jamie). (Entered: 05/03/2002)
SUBMITTED re joint mtn for status conference [21−1] is submitted (NHS) (Entered: 05/03/2002)
22 ORDER by Judge Karen K. Caldwell: 1) w/i 30 days of date of order pts meet to discuss new PT ddls & file suppl Rule 26(f) rpt; 2) if pts cannot reach agreement on new PT ddls, or other issues need to be brought to court; pts may file mtn for PPTC (cc: all counsel) [EOD Date: 5/21/02] (NHS) (Chrisman, Jamie). (Entered:

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06/20/2002 07/15/2002 07/15/2002
07/16/2002 10/17/2002
02/18/2003 02/28/2003 02/28/2003
06/06/2003 06/12/2003 08/12/2003 08/22/2003

05/21/2002)
23 JOINT SUPPLEMENTAL STATUS REPORT by plaintiff EEOC, and Wal−Mart Stores Inc (MRS) (Chrisman, Jamie). (Entered: 06/20/2002)
24 ORDER by Mag Judge J. B. Johnson Jr. : Telephonic conf call scheduled for 7/22/02 CANCELLED, same to be reassigned subsequent to entry of Supplemental Sched Order by KKC (cc: all counsel) [EOD Date: 7/16/02] (EHM) (Chrisman, Jamie). (Entered: 07/16/2002)
25 ORDER by Judge Karen K. Caldwell : 1) All deadlines previously sched SET ASIDE; 2) Rule 26(a)(2) reports from experts (i) plff, 3/1/03, (ii) deft, 4/15/03; (b) All disc to be completed by 9/1/03; discovery ddl 9/1/03; (c) dispositive motion ddl 10/31/03 w/response & reply time as per LR 7.1(c)(1) ; 2) As previously order, all discovery disputes referred to JBJ; Case referred to Mag Judge J. B. Johnson Jr. ; 3) Final pretrial conference set for 1:00 2/5/04; 4) jury trial set for 9:30 3/15/04 ; ANTICIPATED LENGTH 3 DAYS; 5) Separate Order scheduling dates & times certain will issue from JBJ (cc: all counsel) [EOD Date: 7/16/02] (EHM) (Chrisman, Jamie). (Entered: 07/16/2002)
26 ORDER by Mag Judge J. B. Johnson Jr.: ORDERED: TELEPHONIC CONFERENCE scheduled for MARCH 10, 2003 @ 9:30 A.M.; settlement conf will be scheduled (cc: all counsel) [EOD Date: 7/17/02] (RBB) (Chrisman, Jamie). (Entered: 07/17/2002)
27 AGREED PROTECTIVE ORDER by Judge Karen K. Caldwell: stating that in the event that designated material(s) is included w/ or the contents thereof are in any way disclosed, in any pleading, mt or other paper filed w/ Clerk of this Court, such designated material shall be kept under seal by the Clerk until further order of the Court; any use of any designated material and any testimony assocated w/ same shall be held in camera unless court orders otherwise upon good cause show : (cc: all counsel) [EOD Date: 10/17/02] (RBB) (Chrisman, Jamie). (Entered: 10/17/2002)
28 SECOND SUPPLEMENTAL REPORT re: pretrial deadlines by plaintiff EEOC (SD) (Chrisman, Jamie). (Entered: 02/20/2003)
29 ORDER by Mag Judge J. B. Johnson Jr. ORDERED that telephonic conference scheduled for March 10, 2003 is CANCELLED and will be reassigned upon entry of new scheduling order (cc: all counsel) [EOD Date: 3/3/03] (RBB) (Chrisman, Jamie). (Entered: 03/03/2003)
30 AMENDED SCHEDULING ORDER by Judge Karen K. Caldwell 1) all ddls previously scheduled ar SET ASIDE; 2) following ddls shall be observed: a) expert witnesses reports by plf 11/1/03; dft by 12/15/03; b) DISCOVERY DDL 3/1/04; c) DISPOSITIVE MT DDL 5/1/04; 2) DISCOVERY DISPUTES REFERRED TO MAG JUDGE J.B. JOHNSON, JR.; 3) FINAL PTC 9/2/04 @ 10:00 a.m.; 4)JURY TRIAL 10/4/04 @ 9:00 am. (3 days); 5) separate order scheduling dates will be issued from Mag Judge (cc: all counsel, JBJ) [EOD Date: 3/3/03] (RBB) (Chrisman, Jamie). (Entered: 03/03/2003)
31 AMENDED SCHEDULING ORDER: Signed by Judge J. B. Johnson Jr.; Telephone Conference set for 6/11/2003 03:00 PM in London before J. B. Johnson Jr.(EHM) Modified on 6/6/2003 (Morgan, Elaine). (Chrisman, Jamie). (Entered: 06/06/2003)
32 Minute Entry for proceedings held before Judge J. B. Johnson Jr.: Telephone Conference held on 6/11/03 in an attempt to resolve a discovery dispute. ORDERED that a telephonic conf is scheduled for 9/25/2003 09:30 AM in London before J. B. Johnson Jr. (Court Reporter NONE.) (cc: ALL COUNSEL) (MRS) (Chrisman, Jamie). (Entered: 06/13/2003)
33 MOTION to Compel Medical Authorizations from Currently Identified Class Members by Wal−Mart Stores, Inc. (JMB) (Additional attachment(s) added on 3/14/2008: # 1 Ex 1 Authorizations, # 2 Ex 2 4.30.2002 ltr discovery matters, # 3 Ex 3 6.18.2002 ltr, # 4 Ex 4 & 5 letters and caselaw) (Chrisman, Jamie). (Entered: 08/12/2003)
34 NOTICE of Appearance by Kenneth W. Brown on behalf of Equal Employment Opportunity Commission (JMB) (Chrisman, Jamie). (Entered: 08/22/2003)

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08/25/2003 09/09/2003
09/22/2003 09/22/2003 09/22/2003 09/22/2003
09/22/2003 09/25/2003 09/25/2003 09/30/2003 10/01/2003
11/04/2003

35 STIPULATION TO EXTENSION OF TIME: parties agree to extend the EEOC'S ddl to respond up to and including 9/9/03 (MRS) (Chrisman, Jamie). (Entered: 08/25/2003)
36 RESPONSE to 33 MOTION to Compel Medical Authorizations from Currently Identified Class Members by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (Exhibit 5 filed UNDER SEAL in sep. vol.) (JMB) Modified on 9/10/2003 (Brock, Jacqueline). (Additional attachment(s) added on 3/14/2008: # 1 Ex 1 Authorizations, # 2 Ex 2 6.18.2002 ltr, # 3 Ex 3 11.26.2002 ltr, # 4 Ex 4 and 5 1.31.2003 ltr) (Chrisman, Jamie). (Entered: 09/10/2003)
37 SEALED DOCUMENT. (JMB) (Chrisman, Jamie). (Entered: 09/22/2003)
38 JOINT MOTION to Continue Status Conference and Expert Witness Disclosure by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc. (JMB) (Chrisman, Jamie). (Entered: 09/22/2003)
***Motions Submitted: 38 JOINT MOTION to Continue Status Conference and Expert Witness Disclosure by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc. (JMB) (Entered: 09/22/2003)
39 ORDER re 38 MOTION to Continue by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc. : Status Conference call set for 11/4/2003 10:00 AM in London before J. B. Johnson Jr.; Clerk DIRECTED to submit to District Judge portion of joint mt seeking to extend expert witness deadlines. Signed by Judge J. B. Johnson Jr. (cc: all counsel)(EHM) (Chrisman, Jamie). (Entered: 09/22/2003)
***Motions Submitted: 38 Joint motion seeking to extent expert witness deadlines (EHM) (Entered: 09/22/2003)
40 REPLY to Response to Motion re 33 MOTION to Compel Medical Authorizations from Currently Identified Class Members by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (JMB) (Chrisman, Jamie). (Entered: 09/25/2003)
***Motions Submitted: 33 MOTION to Compel by Wal−Mart Stores, Inc. (JMB) (Entered: 09/25/2003)
41 RETURN of Service − Subpoena served on The Job Shop, Inc. on 9/24/2003 by Laurel Co. Sheriff. (JMB) (Chrisman, Jamie). (Entered: 09/30/2003)
42 ORDER on 33 Motion to Compel Medical Authorizations from Currently Identified Class Members: ORDERED that: Mag Judge's perusal of med records reveals nothing reasonably calculated to lead to discovery of adm evidence as to Linda Dykes and Janice Smith. Thus, Mt to Compel is DENIED as to Linda Dykes and Janice Smith; Records of Tina (Stevens) McKinley are replete w/ episodes and recorded causes of emotional distress both before and after Wal−Mart employment. Thus, Mt will be GRANTED as to her; Six med repts in records of Theresa Mills appear to satisfy Rule 26 and will therefore be ordered to be produced in lieu of blanket medical authorization; If requested by EEOC, Ct will enter protective order governing use of records only for purpose of this litigation and dir same to be destroyed or returned at conclusion of same; FURTHER ORDERED that med records be RESEALED, subject to future orderes of Ct. . Signed by Judge J. B. Johnson Jr.. (JMB)(cc: all counsel) (Chrisman, Jamie). (Entered: 10/01/2003)
43 ORDER: A telephonic status conference was held before Judge J. B. Johnson Jr.; There is currently pending the jt mt to extend expert deadlines and counsel informed Ct that current deadlines are not feasible and jointly req an ext of all deadlines, including current PTC and trial dates. Matter has been further referred to undersigned for purpose of conducting settlement conf. Counsel agreed that it would not be feasible at this time to sched settlement conf; it is ORDERED that amended scheduling order entered 2/28/2003 is VACATED AND SET ASIDE. Mag Judge has given Dist Judge dates req by counsel and Dist Judge will enter 2nd amended sched order. Counsel currently anticipate 10 day trial. Further ORDERED that settlement conf will not be sched on this date. Counsel are directed to notify undersigned when it is feasible to conduct settlement conf or at option of counsel, parties may sched private mediation. (JMB)cc: COR (Chrisman, Jamie). (Entered: 11/04/2003)

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11/05/2003
12/09/2003 12/10/2003 12/12/2003 02/18/2004
02/20/2004 02/20/2004 02/23/2004
02/26/2004

44 FOURTH AMENDED SCHEDULING ORDER: (1) All deadlines previously scheduled are SET ASIDE; (2) Following deadlines shall be observed: (a) Rule 26 reports from expert trial witnesses due from Plff by 6/1/2004 and from Def by 8/15/2004; (b) Discovery due by 10/1/2004; (c) Dispositive Motions due by 11/1/2004; (3)As previously ordered by Ct, all discovery disputes are referred to Mag Judge J.B. Johnson, Jr. for resolution; (4) Final Pretrial Conference set for 3/3/2005 01:00 PM in London before Karen K. Caldwell; (5) Jury Trial set for 3/28/2005 09:00 AM in London before Karen K. Caldwell; (6) Separate order scheduling dates and times certain will issue from Mag Judge. . Signed by Judge Karen K. Caldwell. (JMB)cc: COR (Chrisman, Jamie). (Entered: 11/06/2003)
45 JOINT MOTION to Amend fourth amended scheduling order. (MRS) (Chrisman, Jamie). (Entered: 12/10/2003)
***Motions Submitted: 45 MOTION to Amend 44 Scheduling Order, by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc. **Submitted immediately due to being a joint motion** (MRS) (Entered: 12/10/2003)
46 ORDER AMENDING FOURTH AMENDED SCHEDULING ORDER: 45 JOINT MOTION to Amend/Correct 44 Scheduling Order by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc. is GRANTED; Plff's expert disclosure is 7/1/2004 rather than 6/1/2004 and ddl for dispositive motions is 12/1/2004 rather than 11/1/2004. Signed by Judge Karen K. Caldwell. (JMB)cc: COR (Chrisman, Jamie). (Entered: 12/15/2003)
47 AGREED PROTECTIVE ORDER: Pursuant to Order of Ct dated 10/1/2003, this PO is entered into and agreed by parties, the EEOC and Wal−Mart Stores, Inc.; 1) ORDERED that med records/notes shall be designated as "confidential" shall be maintained in confidence, and shall be subj to remaining prov of this Order; 2) Docs hereinafter referred to as "Confidential Docs"; 3) Conf Docs to be used solely for purpose of this lawsuit; 4) Conf Docs shall not be used in any other lawsuit or for any other purpose; 5) Conf Docs shall be disclosed only to persons having need to know or having need to access such conf info for purpose of this lawsuit; 6) Should conf docs be disclosed in any pldg, mt or other paper filed w/ Clk of Ct said material shall be kept under seal by Clk until further order of Ct; 7) Agr of parties to this order shall not be construed as agr or admission; 8) Designated conf docs shall be promptly returned to Plff, EEOC upon conclusion of matter; and 9) Parties agree to comply w/ terms of this Agr Prot Order even if Ct does not sign and enter order. . Signed by Judge Karen K. Caldwell. (JMB)cc: COR (Chrisman, Jamie). (Entered: 02/18/2004)
48 JOINT MOTION to Set Status Conference on Discovery Matter by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc. (JMB) (Chrisman, Jamie). (Entered: 02/20/2004)
***MOTION SUBMITTED TO CHAMBERS (JBJ) FOR REVIEW: 48 JOINT MOTION to Set Status Conference on Discovery Matter by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc. (JMB) (Entered: 02/20/2004)
49 ORDER re 48 JOINT MOTION to Set Status Conference on Discovery Matter filed by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc.: ORDERED that Joint Mt to set telephonic status conf is GRANTED; Telephone Conference for purpose of discussing EEOC's identification of class members and prod of med records will be held on 3/4/2004 at 10:00 AM in London before J. B. Johnson Jr.. Call will be initiated by Mag Judge. Motions terminated: 48 MOTION to Set Status Conference on Discovery Matter by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc... Signed by Judge J. B. Johnson Jr.. (JMB)cc: COR (Chrisman, Jamie). (Entered: 02/23/2004)
50 ORDER: Upon jt oral mt of parties, it is ORDERED that telephonic conf scheduled for 3/4/2004 is ADVANCED to 3/3/2004 at 10:00 AM in London before J. B. Johnson Jr..; The call will be initiated by the Ct; Pursuant to Mgt Plan for Official Ct Reporters, Mag Judge determines and orders that a ct reporter is req by particular circumstances of these matters to record proceedings conducted on 3/3/2004 pursuant to this order. . Signed by Judge J. B. Johnson Jr.. (JMB)cc: COR (Chrisman, Jamie). (Entered: 02/26/2004)

Case 6:01-cv-339 As of: 06/03/2017 02:11 PM EDT Page 10 of 95

03/03/2004
04/23/2004 04/23/2004 04/23/2004 07/02/2004 07/02/2004 07/26/2004 07/26/2004 07/29/2004
08/04/2004 07/08/2005

51 TELEPHONE CONFERENCE MINUTE ENTRY held on 3/3/2004 before Judge J. B. Johnson Jr.: Telephonic conf held for purpose of enlightening Ct of parties positions w/ ref to med records; Ct having heard counsel, it is ORDERED that 1) Any extensions of ddls shall be submitted by written mt to Dist Judge; and 2) Should parties not be able to reach agreement w/ ref to prod of med records of any of class members hereafter identified, these records shall be submitted, under seal, dir to Chambers of Mag Judge for in−camera review and prompt determination by Ct. (COURT REPORTER: RHONDA SANSOM) (JMB)cc: COR (Chrisman, Jamie). (Entered: 03/03/2004)
52 NOTICE by Ronald W. Bunch, Freelance Independent Videographer, that video depo was taken of JIMMY LEWIS on 4/16/2004. (JMB) (Chrisman, Jamie). (Entered: 04/23/2004)
53 NOTICE by Ronald W. Bunch, Freelance Independent Videographer, that video taping of Wal−Mart Distribution Center No. 6097 was taken on 4/13/2004. (JMB) (JMB) (Chrisman, Jamie). (Entered: 04/23/2004)
54 NOTICE by Ronald W. Bunch, Freelance Independent Videographer, that video depo was taken of JANICE BAKER on 4/16/2004. (JMB) (Chrisman, Jamie). (Entered: 04/23/2004)
55 MOTION to Enlarge Plaintiff's Expert Deadline by Equal Employment Opportunity Commission (JMB) (Chrisman, Jamie). (Entered: 07/02/2004)
56 ORDER re 55 MOTION to Enlarge Plaintiff's Expert Deadline by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission: Plff's expert deadline is enlarged to 8/1/2004. Motions terminated: 55 MOTION for Extension of Time by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission.. Signed by Judge Karen K. Caldwell. (JMB)cc: COR (Chrisman, Jamie). (Entered: 07/02/2004)
57 THIRD JOINT SUPPLEMENTAL REPORT INCLUDING A MOTION for Order TO SET CASE ON A COMPLEX LITIGATION SCHEDULE by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc. (SWA) (Chrisman, Jamie). (Entered: 07/26/2004)
***MOTION SUBMITTED TO CHAMBERS FOR REVIEW: 57 MOTION for Order by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc. (SWA) (Entered: 07/26/2004)
58 AMENDED SCHEDULING ORDER: Having considered 3rd Supp Rpt including Jt Mt to Set Case on Compex Litigation, hereby GRANTS Mt to consider this complex litigation. It is ORDERED: 1) All ddls previously scheduled are SET ASIDE; 2) Following ddls shall be observed: a) Rule 26(a)(2) rpts from expert trial witnesses due from Plff by 7/15/2005 and from Dft by 9/15/2005; b) Discovery due by 3/15/2006; c) Dispositive Motions due by 7/17/2006; 3) As previously ordered by Ct, all discovery disputes referred to Mag Judge J.B. Johnson, Jr. for resolution; 4) FINAL PRETRIAL CONFERENCE set for 11/2/2006 10:00 AM in London before Karen K. Caldwell; 5) JURY TRIAL set for 1/22/2007 09:00 AM in London before Karen K. Caldwell; 6) Sep order scheduling dates and times certain will issue from Mag Judge. Motions terminated: 57 MOTION for Order by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc.. Signed by Judge Karen K. Caldwell (JMB)cc: COR Modified text on 7/29/2004 (Brock, Jacqueline). (Chrisman, Jamie). (Entered: 07/29/2004)
59 ORDER: Matter assigned to undersigned for discovery and assignment of settlement conf; it is ORDERED that Telephone Conference set for 12/13/2005 11:00 AM in London before J. B. Johnson Jr.; Mag Judge will discuss 1) progress of discovery, 2) feasibility of all ddls, and 3) whether settlement conf would be beneficial, or, alternatively, matter can be better handled by private mediation or arbitration. . Signed by Judge J. B. Johnson Jr.. (JMB)cc: COR (Chrisman, Jamie). (Entered: 08/04/2004)
60 NOTICE of Entry of Appearance by Nancy Dean Edmonds on behalf of Equal Employment Opportunity Commission (RBB) (Chrisman, Jamie). (Entered: 07/08/2005)

Case 6:01-cv-339 As of: 06/03/2017 02:11 PM EDT Page 11 of 95

07/08/2005 07/08/2005 07/14/2005
07/27/2005 09/01/2005 09/02/2005
09/02/2005
09/15/2005
09/16/2005 09/26/2005
09/28/2005 10/03/2005

61 JOINT MOTION to Bifurcate Pla's submission of expert report by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc. (MRS) (Chrisman, Jamie). (Entered: 07/08/2005)
***MOTION SUBMITTED TO CHAMBERS of KAREN K. CALDWELL for review: 61 MOTION to Bifurcate by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc. (MRS) (Entered: 07/08/2005)
62 AGREED ORDER: Pla shall file its Expert Report in 2 parts. Part I shall be due on 7/15/05 and pertain to Dft's hiring practices at Distribution Center 6097 from 1998 through 2001. Part II shall be due on or beofre 11/15/05 and shall pertain to Dft's hiring practices at the DC from 2002 through 2/2005. Dft's expert report shall be due on or before 1/15/06, in light of Pla's two part reporting. This Order sets aside only that portion of this Court 1/29/04 Amended Scheduling Order pertaining to the parties' expert report ddls. **Expert Witness List due by 1/15/2006. Signed by Judge Karen K. Caldwell. (MRS)cc: COR (Chrisman, Jamie). (Entered: 07/18/2005)
63 NOTICE OF WITHDRAWAL OF COUNSEL by Equal Employment Opportunity Commission stating Bobby C. Simpson w/drawing as counsel and plf is to be represented by remaining counsel of record. (RBB) (Chrisman, Jamie). (Entered: 07/27/2005)
**********************VOLUME II*************************. (RBB) (Entered: 09/06/2005)
64 MOTION to Bifurcate trial and discovery by Equal Employment Opportunity Commission, and MOTION for Hearing (scheduling/planning conference) to address current case scheduling and alterations necessary due to bifurcation and for entry of new case management plan addressing discovery issues by Equal Employment Opportunity Commission (RBB) (Additional attachment(s) added on 3/11/2008: # 1 Exhibit 1) (Chrisman, Jamie). (Entered: 09/06/2005)
65 MEMORANDUM IN SUPPORT of 64 MOTION to Bifurcate trial and discovery by Equal Employment Opportunity Commission, and MOTION for Hearing (scheduling/planning conference) to address current case scheduling and alterations necessary due to bifurcation and for entry of new case management plan addressing discovery issues filed by Equal Employment Opportunity Commission. (RBB) (Chrisman, Jamie). (Entered: 09/06/2005)
66 MOTION FOR HEARING ON THE EEOC MOTION TO BIFURCATE TRIAL AND DISCOVERY AND AMEND CASE MANAGEMENT PLAN re 64 MOTION to Bifurcate/MT to Amend Case Managment Plan by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Additional attachment(s) added on 3/11/2008: # 1 Main Document, # 2 Exhibit − Pt. 1 Dr. Barnow Analysis of Hiring 7.15.05, # 3 Exhibit − Pt 2 Dr. Barnow Analysis of Hiring 7.15.05) (Chrisman, Jamie). (Entered: 09/15/2005)
67 MOTION for Extension of Time of 30 days, or until 10/20/2005, to File a Response as to 64 MOTION to Bifurcate by Equal Employment Opportunity Commission & MOTION for Hearing by Equal Employment Opportunity Commission by Wal−Mart Stores, Inc. (EHM) (Chrisman, Jamie). (Entered: 09/16/2005)
***MOTION SUBMITTED TO CHAMBERS of KAREN K. CALDWELL for review: 64 MOTION to Bifurcate by Equal Employment Opportunity Commission MOTION for Hearing by Equal Employment Opportunity Commission MOTION for Hearing by Equal Employment Opportunity Commission, 61 MOTION to Bifurcate by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc. (RBB) (Entered: 09/26/2005)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: 67 MOTION for Extension of Time to File Response/Reply as to 64 MOTION to Bifurcate by Equal Employment Opportunity Commission MOTION for Hearing by Equal Employment Opportunity Commission MOTION to Bifurcate by Equal Employment Opportunity Commission M (RBB) (Entered: 09/28/2005)
68 MOTION for Extension of Time of ddl for expert report currently due 11/15/2005 by Equal Employment Opportunity Commission (RBB) (Chrisman, Jamie). (Entered: 10/03/2005)

Case 6:01-cv-339 As of: 06/03/2017 02:11 PM EDT Page 12 of 95

10/05/2005 10/07/2005 10/13/2005 10/13/2005 10/13/2005 10/20/2005 10/24/2005
11/07/2005 11/07/2005 12/08/2005 12/09/2005

***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: 66 MOTION for Hearing re 64 MOTION to Bifurcate by Equal Employment Opportunity Commission MOTION for Hearing by Equal Employment Opportunity Commission MOTION to Bifurcate by Equal Employment Opportunity Commission MOTION for Hearing by Equal Employmen (RBB) (Entered: 10/05/2005)
69 MOTION for Extension of Time to File Response/Reply as to 68 MOTION for Extension of Time to file expert report by Equal Employment Opportunity Commission by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 10/07/2005)
70 RESPONSE to Motion re 68 MOTION for Extension of Time ddl to disclose expert report from November 15, 2005 to January 17, 2006 by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 10/13/2005)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: 68 MOTION for Extension of Time by Equal Employment Opportunity Commission (RBB) (Entered: 10/13/2005)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: 69 MOTION for Extension of Time to File Response/Reply as to 68 MOTION for Extension of Time by Equal Employment Opportunity Commission by Wal−Mart Stores, Inc. (RBB) (Entered: 10/13/2005)
71 RESPONSE to Motion to Bifurcate Trial and Discovery and Amend Case Management Plan 64 filed by Wal−Mart Stores, Inc. (MRS) (Additional attachment(s) added on 3/11/2008: # 1 Ex A EEOC v. Plaza Hotel, # 2 Ex B EEOC v. Venator Group, # 3 Ex C EEOC v. Mr. Gold, Inc., # 4 Ex D 4th Amd Sch Ord, # 5 Ex E Order Amd 4th Sch Order, # 6 Ex F Amend Sched Ord, # 7 Ex G 7.14.05 Agreed Order) (Chrisman, Jamie). (Entered: 10/20/2005)
Motions No Longer Referred: 66 MOTION for Hearing re 64 MOTION to Bifurcate by Equal Employment Opportunity Commission MOTION for Hearing by Equal Employment Opportunity Commission MOTION to Bifurcate by Equal Employment Opportunity Commission MOTION for Hearing by Equal Employmen, 68 MOTION for Extension of Time by Equal Employment Opportunity Commission, 67 MOTION for Extension of Time to File Response/Reply as to 64 MOTION to Bifurcate by Equal Employment Opportunity Commission MOTION for Hearing by Equal Employment Opportunity Commission MOTION to Bifurcate by Equal Employment Opportunity Commission M, 69 MOTION for Extension of Time to File Response/Reply as to 68 MOTION for Extension of Time by Equal Employment Opportunity Commission by Wal−Mart Stores, Inc., 64 MOTION to Bifurcate by Equal Employment Opportunity Commission MOTION for Hearing by Equal Employment Opportunity Commission MOTION for Hearing by Equal Employment Opportunity Commission (RBB) (Entered: 10/24/2005)
72 REPLY to Response to Motion re 64 MOTION to Bifurcate trial and discovery and MOTION for Hearing (scheduling/planning conference) filed by Equal Employment Opportunity Commission. (RBB) (Chrisman, Jamie). (Entered: 11/07/2005)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: 64 MOTION to Bifurcate by Equal Employment Opportunity Commission MOTION for Hearing by Equal Employment Opportunity Commission MOTION to Bifurcate by Equal Employment Opportunity Commission MOTION for Hearing by Equal Employment Opportunity Commission (RBB) (Entered: 11/07/2005)
73 MOTION for Extension of Time until May 16, 2006, to file expert reports by Equal Employment Opportunity Commission (RBB) (Chrisman, Jamie). (Entered: 12/08/2005)
74 ORDER : Numerous motions [64,66,67,68 & 69] have been filed and are pending before the District Judge, which makes the telephonic conference previously assigned for December 13, 2005, premature. Therefore, same is CANCELLED and will be reassigned by the Magistrate Judge after a ruling upon the pending motions. Signed by Judge J. B. Johnson Jr. (RBB)cc: COR (Entered: 12/09/2005)

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12/09/2005 12/20/2005 12/21/2005 12/28/2005 01/04/2006 01/09/2006
01/09/2006 01/09/2006
02/27/2006 03/14/2006
03/14/2006 03/20/2006 03/30/2006

Clerk's Note: Docket Entry 74 has been filed in paper form in Clerk's file. Copies have been distributed via fax and US mail. (RBB) (Entered: 12/09/2005)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: 73 MOTION for Extension of Time by Equal Employment Opportunity Commission (RBB) (Entered: 12/20/2005)
75 RESPONSE to Motion re 73 MOTION for Extension of Time until May 16, 2006, to file expert reports by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc.. (JMB) (Chrisman, Jamie). (Entered: 12/21/2005)
76 MOTION for Extension of Time from December 23, 2005 to January 23, 2006 to respond to plf's discovery by Wal−Mart Stores, Inc. (RBB) (Entered: 12/28/2005)
77 ORDER: Dfts shall have until 1/22/2006 to respond to plf's discovery. Terminating Motions: Re: 76 Motion for Extension of Time . Signed by Judge Karen K. Caldwell. ***NOTE: Order filed 1/4/2006 in Frankfort, Received by mail 1/9/2006 at London.(RBB)cc: COR (Chrisman, Jamie). (Entered: 01/09/2006)
78 ORDER: matter before Court on Dft's Mt for Ext of Time to File a Response to the EEOC's Mt to Bifurcate 67 . No objection having been filed and the pldg having been tendered to Court 71 , the Mt 67 is hereby GRANTED; This matter is also before Court on Dft's Mt for Add'l Time in which to respond to EEOC's Mt to Extend Expert Report Due Date 69 ; No objection having been filed and the pleading having been tendered to the Court [7−] the Mt 69 is GRANTED. TERMINATING MOTIONS: Re 67 Motion for Extension of Time to File Response/Reply and 69 Motion for Extension of Time to File Response/Reply . Signed by Judge Karen K. Caldwell. (RBB)cc: COR (Chrisman, Jamie). (Entered: 01/09/2006)
Motions No Longer Referred: 73 MOTION for Extension of Time by Equal Employment Opportunity Commission (RBB) (Entered: 01/09/2006)
79 ORDER: matter before Court on Plf's Mt to Further Extend Due Date on Expert Reports 68 and 73 ; ORDERED that the due date for EEOC's Part II Expert Report is extended to March 16, 2006 and the due date for Dft's responsive Report is extended to May 16, 2006. TERMINATING MTS: 68 Motion for Extension of Time, 73 Motion for Extension of Time . Signed by Judge Karen K. Caldwell. (RBB)cc: COR (Chrisman, Jamie). (Entered: 01/11/2006)
80 MOTION for Extension of Time from March 16, 2006 to June 16, 2006 to file EEPC's Part II Expert Report and extending the due date of Defendant's responsive expert report to August 16, 2006, by Equal Employment Opportunity Commission. (RBB) (Chrisman, Jamie). (Entered: 02/27/2006)
81 JOINT MOTION for Extension of Time to Complete Discovery to a date to be determined at a scheduling conference following a ruling on EEOC's Mt to Bifurcate Trial and Discovery and Amend Case Management Plan by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 03/14/2006)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: 81 JOINT MOTION for Extension of Time to Complete Discovery by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc. (RBB) (Entered: 03/14/2006)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: 80 MOTION for Extension of Time by Equal Employment Opportunity Commission (RBB) (Entered: 03/20/2006)
82 OPINION AND ORDER: The Motion for a Conference is GRANTED, parties required to appear by counsel in FRANKFORT, Kentucky on JULY 24, 2006 @ 10:00 A.M. At scheduling conference both parties should be prepared to argue the issue of punitive damages and their appropriate place in bifurcated proceedings. Mt to Bifurcate the trial is thus GRANTED, the Mt to Bifurcate discovery is DENIED and the issue of puntive damages will be determined at a later date; The Court notes that all counsel are located in Louisville, KY and Indianapolis, Indiana; Accordingly, the status/scheduling conference will be conducted in FRANKFORT, KENTUCKY. Motions terminated: 64 MOTION to Bifurcate by Equal Employment Opportunity Commission MOTION for Hearing by Equal Employment Opportunity Commission;

Case 6:01-cv-339 As of: 06/03/2017 02:11 PM EDT Page 14 of 95

04/21/2006 04/21/2006 04/21/2006 05/01/2006 05/04/2006 07/19/2006 07/19/2006 07/24/2006
07/24/2006 07/25/2006 08/01/2006
08/09/2006 08/09/2006

81 MOTION for Extension of Time to Complete Discovery; 66 MOTION for Hearing; 80 MOTION for Extension of Time by Equal Employment Opportunity Commission; 81 MOTION for Extension of Time to Complete Discovery; ***Scheduling Conference set for 7/24/2006 10:00 AM in Frankfort before Karen K. Caldwell. Signed by Judge Karen K. Caldwell. (RBB)cc: COR − Frankfort Clerk's Office (Entered: 03/30/2006)
83 JOINT MOTION for Order holding in abeyance the parties' deadlines for expert witnesses until the July 24, 2006 Scheduling Conference when new deadlines may be set by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 04/21/2006)
***JOINT MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: 83 JOINT MOTION for Order holding expert witnesses ddl in abeyance by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc. (RBB) (Entered: 04/21/2006)
Clerk's Note: Proposed Order requested re: 83 Joint Motion. (RBB) (Entered: 04/21/2006)
84 NOTICE of Appearance by Johanna Philhower Maple on behalf of Equal Employment Opportunity Commission (SWA) (Chrisman, Jamie). (Entered: 05/01/2006)
85 ORDER: this matter is before the Court on the parties' Joint Motion to Hold Expert ddls in Abeyance [83; Court being sufficiently advised the Motion is GRANTED; TERMING: 83 Motion for Order. Signed by Judge Karen K. Caldwell. (RBB)cc: COR (Entered: 05/04/2006)
86 MOTION to Compel Plaintiff to answer Defendant's Standing Set of Interrogatories and Requests for Production of Documents by Wal−Mart Stores, Inc. (MRS) (Chrisman, Jamie). (Entered: 07/19/2006)
87 MEMORANDUM in Support of Motion re 86 MOTION to Compel by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc.. (MRS) (Additional attachment(s) added on 3/11/2008: # 1 Exhibit A, # 2 Ex 1 EEOC v. O&G Spring, # 3 Ex 1 EEOC v. O&G Spring cont'd) (Chrisman, Jamie). (Entered: 07/19/2006)
88 ORDER : 1) Plf EOC shall disclose statistical expert's report to dft on or before December 1, 2006; 2) Dft Wal−Mart Stores, Inc. shall provide its statistical expert's report to Plf on or before April 6, 2007; 3) Plf shall provide a rebuttal report to dft on or before July 20, 2007; 4) On or before August 17,2007, parties may file supplemental written submissions regarding the issue of punitive damages and suggestions regarding their determination; 5) PTC dat of 11/2/2006 and trial date of 1/22/2007 are SET ASIDE; 6) Another conference will be scheduled by the Court after it considers the parties' written submissions and other motions now pending in the case. Signed by Judge Karen K. Caldwell. (RBB)cc: COR (Entered: 07/24/2006)
90 MINUTE ENTRY FOR SCHEDULING CONFERENCE held on 7/24/2006 before Judge Karen K. Caldwell : Court's ruling shall be forthcoming by separate order to reflect the proceedings of this date. (COURT REPORTER: RHONDA SANSOM) (RBB)cc: COR (Chrisman, Jamie). (Entered: 07/25/2006)
89 TRANSCRIPT of Official Proceedings: SCHEDULING CONFERENCE held on July 24, 2006, before Judge Karen K. Caldwell. Official Court Reporter: Rhonda Sansom. (EHM) (Chrisman, Jamie). (Entered: 07/25/2006)
91 AGREED ORDER EXTENDING EEOC'S RESPONSE ON MOTION TO COMPEL re 86 MOTION to Compel by Wal−Mart Stores, Inc. : EEOC has requested and the dft has agreed that the EEOC shall have twenty one additional days to file a Response to Dft's Mt to Compel Discovery. The EEOC's due date on its Response shall be extended from August 4, 2006 to August 25, 2006. ***Responses due by 8/25/2006. Signed by Judge J. B. Johnson Jr. (RBB)cc: COR (Entered: 08/02/2006)
92 OBJECTION and RESPONSE TO EEOC'S SUBPOENA DUCES TECUM filed by Kentucky Office of Employment and Training. (RBB) (Entered: 08/09/2006)
***FILE SUBMITTED TO CHAMBERS of J.B. Johnson, Jr. for review: 92 Objection and RESPONSE TO EEOC'S SUBPOENA DUCES TECUM (RBB) (Entered:

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08/10/2006 08/15/2006 08/16/2006 08/17/2006 08/17/2006 08/17/2006 08/25/2006
08/25/2006
08/30/2006 09/01/2006

08/09/2006)
93 MOTION to Amend 88 Court's Order of 7/24/06 by Wal−Mart Stores, Inc. (SWA) (Chrisman, Jamie). (Entered: 08/10/2006)
94 RESPONSE in Opposition re 93 MOTION to Amend/Correct 88 Order by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Chrisman, Jamie). (Entered: 08/15/2006)
**********************VOLUME THREE**************************. (RBB) (Entered: 08/17/2006)
95 SUPPLEMENTAL MEMORANDUM/BRIEF AND AUTHORITY IN SUPPORT by Equal Employment Opportunity Commission of trying punitive damages during phase one.(RBB) (Chrisman, Jamie). (Entered: 08/17/2006)
96 SUPPLEMENTAL CITATIONS/BRIEF by Wal−Mart Stores, Inc. pursuant to July 24, 2006 conference regarding the issue of punitive damages. **Exhibits 1−18 and A−J are filed in Separate Volume.*** (Original and Copy of exhibits received; original forwarded to Chambers).(RBB) (Chrisman, Jamie). (Entered: 08/17/2006)
***FILE SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: 95 SUPPLEMENTAL MEMORANDUM/BRIEF AND AUTHORITY IN SUPPORT by Equal Employment Opportunity Commission of trying punitive damages during phase one; and 96 SUPPLEMENTAL CITATIONS/BRIEF by Wal−Mart Stores, Inc. pursuant to July 24, 2006 conference regarding the issue of punitive damages. (RBB) (Entered: 08/17/2006)
97 RESPONSE to Motion re 86 MOTION to Compel by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) Clerk's NOTE: DE # 97 and # 98 are two separate documents filed in one pleading. DE # 97 is a Response to 86 Mt to Compel and DE # 98 is Motion (Request) for Court Order Limiting Class Member Discovery. Modified text to add clerk's note on 9/1/2006 (Bundy, Renee). (Additional attachment(s) added on 2/28/2008: # 1 Ex 1 email, # 2 Ex 2 3.13.05 email, # 3 Ex 3 Pla Partial Resp to Interr RFP, # 4 Ex 4 June 7, 2006 ltr, # 5 Ex 5 Colorado Amended Sched Ord, # 6 Ex 6 Lectric Chandler Declaration, # 7 Ex 7 Daniel Creech Application, # 8 Ex 8 Shannon Craft Interview Comments, # 9 Ex 9 Shannon Craft 2d Interview Comments, # 10 Ex 10 Shannon Craft 3d Interview Comments, # 11 Ex 11 Randy Fox Screening Interview, # 12 Ex 12 Randy Fox Panel Interviews, # 13 Ex 13 Randy Fox Final Interviews, # 14 Ex 14 Pla Answers to Interrog and RFP) (Chrisman, Jamie). (Entered: 08/25/2006)
98 MOTION for Order by Equal Employment Opportunity Commission limiting class member discovery. (RBB) NOTE: DE # 97 and # 98 are two separate documents filed in one pleading. DE # 97 is a Response to 86 Mt to Compel and DE # 98 is Motion (Request) for Court Order Limiting Class Member Discovery. Modified text to add clerk's note on 9/1/2006 (Bundy, Renee). (Additional attachment(s) added on 2/28/2008: # 1 Ex 1 email, # 2 Ex 2 3.13.05 email, # 3 Ex 3 Pla Partial Resp to Interr RFP, # 4 Ex 4 June 7, 2006 ltr, # 5 Ex 5 Colorado Amended Sched Ord, # 6 Ex 6 Lectric Chandler Declaration, # 7 Ex 7 Daniel Creech Application, # 8 Ex 8 Shannon Craft Interview Comments, # 9 Ex 9 Shannon Craft 2d Interview Comments, # 10 Ex 10 Shannon Craft 3d Interview Comments, # 11 Ex 11 Randy Fox Screening Interview, # 12 Ex 12 Randy Fox Panel Interviews, # 13 Ex 13 Randy Fox Final Interviews, # 14 Ex 14 Pla Answers to Interrog and RFP) (Chrisman, Jamie). (Entered: 08/25/2006)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: 93 MOTION to Amend/Correct 88 Order by Wal−Mart Stores, Inc. (RBB) Modified text show motion submitted to KKC on 9/1/2006 (Bundy, Renee). (Entered: 08/30/2006)
99 ORDER; Mag. Judge J.B. Johnson having retired and Robert E. Wier having been appointed 9/1/06; matters prev. assigned to Judge Johnson are reassigned to, Case referred to Magistrate Judge Wier; that a copy of this order be filed in every case w/copy to all counsel.. Signed by Judge Joseph M. Hood. (SMT)cc: COR (Chrisman, Jamie). (Entered: 09/01/2006)

Case 6:01-cv-339 As of: 06/03/2017 02:11 PM EDT Page 16 of 95

09/08/2006
09/11/2006 09/12/2006 09/13/2006
09/22/2006 09/22/2006 09/26/2006 09/26/2006 09/29/2006 09/29/2006 09/29/2006 10/03/2006 10/03/2006 10/03/2006 10/24/2006
10/30/2006

100 JOINT MOTION to Extend the deadline from September 8, 2006, to September 22, 2006, for filing a reply brief in support of deft's motion to compel by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc. (Proposed Order attached) (EHM) (Chrisman, Jamie). (Additional attachment(s) added on 2/28/2008: # 1 Main Document) (Chrisman, Jamie). (Entered: 09/12/2006)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: 86 MOTION to Compel by Wal−Mart Stores, Inc. (RBB) (Entered: 09/11/2006)
***MOTION SUBMITTED TO CHAMBERS of KAREN K. CALDWELL for review: 100 MOTION for Extension of Time to File by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc. (EHM) (Entered: 09/12/2006)
101 ORDER : Joint Motion 100 is GRANTED; Wal−Mart shall have to and including September 22, 2006 in which to file a reply to the response 97 to the mt to compel 86 and to and including September 22, 2006 to file a response to the mt limiting class member discovery 98 . Responses due by 9/22/2006 to 98 ;Reply due by 9/22/2006 to 86 . Signed by Judge Robert E. Wier. (RBB)cc: COR (Chrisman, Jamie). (Entered: 09/13/2006)
102 RESPONSE to 95 EEOC's "Supplemental Memorandum and Authority in Suport of Trying Punitive Damages During Phase One" filed by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 09/22/2006)
103 MOTION for Extension of Time to File Reply as to 86 MOTION to Compel by Wal−Mart Stores, Inc. by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 09/28/2006)
***MOTION SUBMITTED TO CHAMBERS of ROBERT E. WIER for review: 86 MOTION to Compel by Wal−Mart Stores, Inc. (RBB) (Entered: 09/26/2006)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: 98 MOTION for Order limiting class member discovery by Equal Employment Opportunity Commission (RBB) (Entered: 09/26/2006)
104 ORDER: dft's mt for ext of time to file reply 103 is GRANTED; dft shall have until 9/29/2006 to file its reply brief in support of mt to compel. Replies due by 9/29/2006. Signed by Judge Robert E. Wier. (RBB)cc: COR (Entered: 09/29/2006)
105 MOTION for Leave to File Excess Pages by Wal−Mart Stores, Inc. ; requesting leave to file reply brief in support of dft Wal−Mart Stores, Inc.'s Motion to Compel. (RBB) (Chrisman, Jamie). (Entered: 09/29/2006)
TENDERED − REPLY BRIEF in support of Dft Wal−Mart Stores, Inc.'s 86 Motion to Compel. (RBB) (Entered: 09/29/2006)
106 ORDER: Dft's motion to Amend for Leave to File Reply Brief in Excess of 15 pages is hereby granted. Signed by Judge Robert E. Wier. (MRS)cc: COR (Chrisman, Jamie). (Entered: 10/03/2006)
107 REPLY BRIEF IN SUPPORT OF DEFENDANT WAL−MART STORES, INC.'S MOTION TO COMPEL 86 filed by Wal−Mart Stores, Inc.. (MRS) (Chrisman, Jamie). (Entered: 10/03/2006)
***MOTION SUBMITTED TO CHAMBERS of ROBERT WIER for review: 86 MOTION to Compel by Wal−Mart Stores, Inc. (MRS) (Entered: 10/03/2006)
108 MOTION to Compel by Equal Employment Opportunity Commission Kentucky Office of Employment and Training to Produce Documents Described in EEOC's Request for Production of Documents to a Non−Party and Subpoena, w/ Memorandum of law in support; Certification Pursuant to LR 37.1; Index of Exhibits and Exhibits numbered 1−6 attached. (RBB) (Additional attachment(s) added on 2/28/2008: # 1 Ex 1 Johanna Maple Declaration, # 2 Ex 2 RFP to a non−party, # 3 Ex 3 Subpoena, # 4 Ex 4 Non−party Objection to Subpoena, # 5 Ex 5 EEOC 3d RFP, # 6 Ex 6 Def Response to 3d RFP) (Chrisman, Jamie). (Entered: 10/24/2006)
109 MOTION for Extension of Time of expert reports from December 1, 2006 to March 1, 2007, by Equal Employment Opportunity Commission. (Stating Wal−Mart has no objection.) (RBB) (Chrisman, Jamie). (Entered: 10/30/2006)

Case 6:01-cv-339 As of: 06/03/2017 02:11 PM EDT Page 17 of 95

11/03/2006 11/03/2006 11/09/2006 11/14/2006
11/14/2006 11/15/2006
11/15/2006 11/16/2006 11/27/2006 12/01/2006 12/19/2006 12/21/2006 12/21/2006
12/22/2006 12/22/2006

110 RESPONSE in Opposition re 108 MOTION to Compel by Equal Employment Opportunity Commission filed by Kentucky Office of Employment and Training. (RBB) (Chrisman, Jamie). (Entered: 11/03/2006)
111 RESPONSE to Motion re 108 MOTION to Compel docuemnts directed to Non−Party Kentucky Office of Employment and Training by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc.. (RBB) (Chrisman, Jamie). (Entered: 11/06/2006)
114 RESPONSE to Motion re 109 MOTION for Extension of Time by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 11/16/2006)
112 REPLY to Response to Motion re 108 MOTION to Compel Kentucky Office of Employment and Training to produce documents described in EEOC's request for productionof documents to a non−party and subpoena by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (RBB) (Chrisman, Jamie). (Entered: 11/14/2006)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: 109 MOTION for Extension of Time by Equal Employment Opportunity Commission (RBB) (Entered: 11/14/2006)
113 REPLY to Response to Motion re 109 MOTION for Extension of deadline on expert report, with Declaration of Nancy Dean Edmonds by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (RBB) Modified text to add "w/ Declaration of Nancy Dean Edmonds" on 11/15/2006 (Bundy, Renee). (Chrisman, Jamie). (Entered: 11/15/2006)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: 109 MOTION for Extension of Time by Equal Employment Opportunity Commission (RBB) (Entered: 11/15/2006)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: 108 MOTION to Compel by Equal Employment Opportunity Commission (RBB) Modified text by stating motion submitted to Robert E. Wier on 11/17/2006; cc: Sheila Hartz (Bundy, Renee). (Entered: 11/16/2006)
115 ORDER granting 109 Motion to extend due date on expert report. Due date for EEOC's expert report is extended from 12/1/06 to 3/1/07 and due date for deft's responsive expert report is extended from 4/6/07 to 7/6/07.. Signed by Judge Robert E. Wier. (SWA)cc: COR (Chrisman, Jamie). (Entered: 11/27/2006)
116 SUR−REPLY to EEOC'S MOTION TO FURTHER EXTEND DUE DATE ON EXPERT REPORT 113 , 114 filed by Wal−Mart Stores, Inc.. (MRS) (Chrisman, Jamie). (Entered: 12/01/2006)
**********************VOLUME IV**************************. (RBB) (Entered: 01/08/2007)
117 MOTION for Protective Order prohibiting Wal−Mart counsel from instructing deponents not to answer, absent a claim of privilege by Equal Employment Opportunity Commission (RBB) (Chrisman, Jamie). (Entered: 12/21/2006)
118 MEMORANDUM in Support of Motion re 117 MOTION for Protective Order by Equal Employment Opportunity Commission w/ Declaration of Nancy Dean Edmonds filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 2/27/2008: # 1 Exhibit A Declaration and letters) (Chrisman, Jamie). (Entered: 12/21/2006)
119 MOTION for Protective Order to limit the scope of EEOC discovery to comport with the scope of its allegations about Wal−Mart DC 6097 and to comply with the parties' long standing agreement about the relevant time period and scope of litigation by Wal−Mart Stores, Inc. (SWA) (Chrisman, Jamie). (Entered: 12/22/2006)
120 MEMORANDUM in Support of Motion re 119 MOTION for Protective Order by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc.. (SWA) (Additional attachment(s) added on 2/27/2008: # 1 Ex A December 14, 2006 ltr, # 2 Ex B December 19, 2006 ltr, # 3 Ex C Jones et al. v. Goord, et al.) (Chrisman, Jamie).

Case 6:01-cv-339 As of: 06/03/2017 02:11 PM EDT Page 18 of 95

01/04/2007 01/04/2007 01/04/2007
01/04/2007 01/05/2007 01/05/2007 01/09/2007 01/09/2007 01/12/2007

(Entered: 12/22/2006)
121 ORDER : Motion to Amend 93 is DENIED. Motions terminated: 93 MOTION to Amend/Correct 88 Order by Wal−Mart Stores, Inc. Signed by Judge Robert E. Wier. (RBB)cc: COR (Additional attachment(s) added on 2/27/2008: # 1 Main Document) (Chrisman, Jamie). (Entered: 01/04/2007)
122 ORDER : Telephonic Conference, for counsel only, is scheduled for January 12, 2007, commencing at 10:00 a.m. Court will initiate the conference call; any party wishing to participate in conference call should contact Sprint Conferencing; ORDERED that dft Wal−Mart Stores, Inc., shall file depo pages that show the context of ea instruction not to answer concerning the prior deponent; Court Reporter required. **Motion Hearing set for 1/12/2007 10:00 AM in London before Robert E. Wier. Signed by Judge Robert E. Wier. (RBB)cc: COR (Entered: 01/04/2007)
123 ORDER COMPELLING PRODUCTION BY KENTUCKY OFFICE OF EMPLOYMENT AND TRAINING: The Court does respect the values reflected in the state confidentiality stature and will, to the extent reasonably necessary, protect those values; Court orders that KOET promptly produces any documents responsive to the subpoena that KOET withheld under authority of KRS Section 151B.280 and/or 787 KAR 2:020. If dft finds that the info produced truly contains material that it considers proprietary and in need of protection, the Court will entertain a timely motion to restrict the use or dissemination of the produced material to the instant action; The Court hereby rules on a nondispositive motion under 28 U.S.C. Section 636(b)(1)(A); Said stature provides the relevant appeal rights and provisions concerning such a ruling. Motions terminated: 108 MOTION to Compel by Equal Employment Opportunity Commission. Signed by Judge Robert E. Wier. (RBB)cc: COR (Entered: 01/04/2007)
Clerk's Note: re 121 Order; 122 Order; and 123 Order Compelling Production by KOET paper pleading has been mailed to all counsel of record and original orders has been placed in paper file.(RBB) (Entered: 01/04/2007)
124 RESPONSE in Opposition re 119 MOTION for Protective Order by Wal−Mart Stores, Inc. and cross mt to compel depo testimony of Mike Giles, with Declaration of Nancy Dean Edmonds filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 2/27/2008: # 1 Ex 1 1st Interrog and RFP, # 2 Ex 2 Michael Giles depo excerpts, # 3 Ex 3 Def Res to 3d RFP, # 4 Ex 4 Eugene Reynolds Depo Excerpts, # 5 Declaration of Nancy Edmonds) (Chrisman, Jamie). (Entered: 01/05/2007)
125 MOTION to Compel the deposition testimony of Mike Giles by Equal Employment Opportunity Commission, w/ Declaration of Nancy Dean Edmonds. NOTE: Docket entry 124 and 125 two separate documents ( 124 Response; and 125 Motion) filed as one pleading. (RBB) (Additional attachment(s) added on 2/27/2008: # 1 Ex 1 1st Interrog and RFP, # 2 Ex 2 Michael Giles depo excerpts, # 3 Ex 3 Def Res to 3d RFP, # 4 Ex 4 Eugene Reynolds Depo Excerpts, # 5 Declaration of Nancy Edmonds) (Chrisman, Jamie). (Entered: 01/08/2007)
126 ORDER REGARDING PENDING DISCOVERY ISSUES: The docket clerk may term Docket Entries 86 , 95 and 98 ; Court issues this Order resolving a non−dispositive pretrial matter; any objecting party should consult statute concerning its right of reconsideration. Motions terminated: 98 MOTION for Order by Equal Employment Opportunity Commission, 86 MOTION to Compel by Wal−Mart Stores, Inc.; ORDER re 95 Trial Brief filed by Equal Employment Opportunity Commission. Signed by Judge Robert E. Wier. (RBB)cc: COR (Entered: 01/09/2007)
127 RESPONSE in Opposition re 117 MOTION for Protective Order by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 2/27/2008: # 1 Exhibit A) (Chrisman, Jamie). (Entered: 01/11/2007)
128 MINUTE ENTRY FOR TELEPHONE CONFERENCE held on 1/12/2007 before Judge Karen K. Caldwell : The Court heard limited discussion by counsel and stated its analysis of pending issues. The court will issue a separate order resolving the pending motions. (COURT REPORTER: JUNE ST. JOHN) (RBB)cc: COR (Entered: 01/12/2007)

Case 6:01-cv-339 As of: 06/03/2017 02:11 PM EDT Page 19 of 95

01/18/2007
01/23/2007 02/01/2007 02/20/2007 02/20/2007 03/16/2007 03/16/2007 03/29/2007 03/30/2007 04/02/2007
04/11/2007 04/13/2007 04/13/2007 05/30/2007
06/15/2007
06/16/2007

129 ORDER :The motions for protective orders and motion to compel are denied in part and granted in part, in accordance with the terms of this Order. Docketing Clerk may terminate docket entries 117 , 119 and 125 ; Court issues this Order resolving a non−dispositive pretrial matter; any party objecting to this Order should consult said statute concerning its right of reconsideration before the District Court. Motions terminated: 119 MOTION for Protective Order by Wal−Mart Stores, Inc. ; 125 MOTION to Compel by Equal Employment Opportunity Commission; 117 MOTION for Protective Order by Equal Employment Opportunity Commission. Signed by Judge Robert E. Wier. (RBB)cc: COR (Entered: 01/18/2007)
130 TRANSCRIPT of Proceedings: TELEPHONIC CONFERENCE IN CHAMBERS held on 1/12/2007 before Judge ROBERT E. WIER. Court Reporter: JUNE ST. JOHN, (TIPTONS). (RBB) (Chrisman, Jamie). (Entered: 01/23/2007)
131 MOTION FOR RECONSIDERATION/OBJECTIONS to 129 Magistrate Judge's January 18, 2007 ORDER filed by Equal Employment Opportunity Commission. (RBB) (Chrisman, Jamie). Modified on 7/27/2009 per Chambers (RBB). (Entered: 02/01/2007)
132 RESPONSE to 131 Objections to Magistrate Judges 129 Order dated 1/18/2007, filed by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 02/20/2007)
***FILE SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: 132 Response to 131 Objection to Magistrate Order 129 . (RBB) (Entered: 02/20/2007)
133 MOTION to Strike Plaintiff's Expert William T. Bielby by Wal−Mart Stores, Inc. (MRS) (Chrisman, Jamie). (Entered: 03/16/2007)
134 MEMORANDUM in Support of Motion re 133 MOTION to Strike Pla's expert William T. Bielby by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc.. (MRS) (Chrisman, Jamie). (Entered: 03/16/2007)
135 NOTICE SUPPLEMENTING AUTHORITY ON PUNITIVE DAMAGES by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 2/27/2008: # 1 Exhibit A − cases) (Chrisman, Jamie). (Entered: 03/29/2007)
**********************VOLUME FIVE **************************. (RBB) (Entered: 04/19/2007)
136 RESPONSE in Opposition re 133 MOTION to Strike by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (MRS) (Additional attachment(s) added on 2/26/2008: # 1 Exhibit 1 Wm. Bielby Expert Report, # 2 Exhibit A Bielby Testimony as Expert, # 3 Exhibit B Bielby CV) (Chrisman, Jamie). (Entered: 04/02/2007)
137 RESPONSE to 135 Notice Supplementing Authority on Punitive Damages filed by Equal Employment Opportunity Commission. (RBB) (Chrisman, Jamie). (Entered: 04/11/2007)
138 REPLY to Response to Motion re 133 MOTION to Strike by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc.. (RBB) (Chrisman, Jamie). (Entered: 04/13/2007)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: 133 MOTION to Strike by Wal−Mart Stores, Inc. (RBB) (Entered: 04/13/2007)
139 MOTION to Compel by Equal Employment Opportunity Commission, answert to its fifth set of interrogatories, Memorandum in Support and the Declaration of Nancy Dean Edmonds attached. (RBB) (Additional attachment(s) added on 2/26/2008: # 1 Memo in Support of Mtn to Compel, # 2 Declaration of Nancy Edmonds, # 3 Exhibits 1−2, # 5 Exhibits 3−5, # 6 Exhibits 6−9) (Chrisman, Jamie). (Entered: 05/30/2007)
140 RESPONSE to Motion re 139 MOTION to Compel by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 2/26/2008: # 1 Ex A Dr. Barnow Analysis, # 2 Ex B February 12, 2007 ltr, # 3 Ex C January 25, 2007 ltr, # 4 Ex D May 29, 2007 ltr) (Chrisman, Jamie). (Entered: 06/15/2007)
*************************VOLUME SIX************************* (EHM) (Entered: 06/20/2007)

Case 6:01-cv-339 As of: 06/03/2017 02:11 PM EDT Page 20 of 95

06/19/2007 06/19/2007 06/19/2007
06/20/2007 06/27/2007 06/27/2007 07/03/2007 07/03/2007 07/06/2007 07/06/2007
07/09/2007 07/12/2007 07/17/2007

141 MOTION to extend expert disclosure and report ddl by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 2/25/2008: # 1 Exhibits − expert deadlines) (Chrisman, Jamie). (Entered: 06/19/2007)
142 MOTION to Amend and Enforce January 9, 2007 Discover Order by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 06/19/2007)
143 MEMORANDUM in Support of Motion re 142 MOTION to Amend and Enforce January 9, 2007 Discovery Order by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc.. (RBB) (Additional attachment(s) added on 2/26/2008: # 1 Exhibit B − Pt 1 letters, # 2 Exhibit B − Pt 2a Feb. 16, 2007 Class Members, # 3 Exhibit B − Pt 2b Feb. 16, 2007 Class Members, # 4 Exhibit B − Pt 3 letters, # 5 Exhibit B − Pt 5a − March 30, 2007 class list, # 6 Exhibit B − Pt B− March 30, 2007 class list, # 7 Exhibit B − Pt 6 − ltrs, # 8 Exhibit C) (Chrisman, Jamie). (Entered: 06/19/2007)
**********************VOLUME SEVEN*************************. (EHM) (Entered: 06/20/2007)
144 REPLY to Response to Motion re 139 MOTION to Compel Answers to its Fifth Set of Interogatories, w/ Declaration of Lectric Chandler by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 2/22/2008: # 1 Exhibit 1 Lectric Chandler Affidavit) (Chrisman, Jamie). (Entered: 06/27/2007)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: 139 MOTION to Compel by Equal Employment Opportunity Commission (RBB) (Entered: 06/27/2007)
145 RESPONSE to Motion re 141 MOTION for Extension of Time by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (EHM) (Additional attachment(s) added on 2/22/2008: # 1 Exhibit 1 May 29, 2007 ltr) (Chrisman, Jamie). (Entered: 07/03/2007)
146 RESPONSE in Opposition re 142 MOTION to Amend and enforce January 9, 2007, discovery Order by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (EHM) (Chrisman, Jamie). (Entered: 07/03/2007)
147 MOTION for Leave to add Omitted Exhibit 1 to its July 3, 2007, Response to Deft's Motion to Extend it's Expert Disclosure and Report Deadline by Equal Employment Opportunity Commission; Proposed Order attached. (EHM) (Chrisman, Jamie). (Entered: 07/06/2007)
TENDERED EXHIBIT 1 TO 145 RESPONSE TO DEFENDANT'S MOTION TO EXTEND ITS EXPERT DISCLOSURE AND REPORT DEADLINE (Letter from Plff, EEOC, to Kathryn A. Quensenberry, Woodward, Hobson & Fulton L.L.P., counsel for deft, Wal−Mart, concerning expert discovery. (EHM) Modified to add "EXHIBIT 1 TO RESPONSE TO DEFENDANT'S MOTION TO EXTEND ITS EXPERT DISCLOSURE AND REPORT DEADLINE" on 7/9/2007 (Bundy, Renee). NOTE: This document has been attached to 145 Response pursuant to 148 Order entered 7/9/2007 (Entered: 07/06/2007)
148 ORDER: matter before court on EEOC's Mt to Add Omitted Exhibit to its July 3, 2007 Response to Dft's Mt to Extend its Expert Disclosure and Report Deadline and the Court being duly advised in the premises, the EEOC's Mt is hereby granted. Granting 147 Motion for Leave. Signed by Judge Robert E. Wier. (RBB)cc: COR (Entered: 07/09/2007)
149 ORDER: Status Conference set for 8/3/2007 01:30 PM, Courtroom C in London before Robert E. Wier. Counsel should be prepared to discuss all pending matters and a prospective schedule in the case. A Court reporter is required for this hearing.. Signed by Judge Robert E. Wier. (SWA)cc: COR (Chrisman, Jamie). (Entered: 07/12/2007)
150 REPLY to Response to Motion re 142 MOTION to Amend and Enforce the Juanuary 9, 2007 Discovery Order by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc.. (RBB) (Additional attachment(s) added on 2/22/2008: # 1 Exhibit A June 21, 2007 ltr, # 2 Exhibit B May 29, 2007 ltr) (Chrisman, Jamie). (Entered: 07/17/2007)

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07/17/2007 07/17/2007 07/20/2007 07/30/2007 07/30/2007 07/31/2007 07/31/2007
08/01/2007

151 REPLY to Response to Motion re 141 MOTION to extend its Expert Disclosure and Report Deadline by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 2/22/2008: # 1 Exhibit A July 3, 2007 ltr, # 2 Exhibit B June 12, 2007 ltr) (Chrisman, Jamie). (Entered: 07/17/2007)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: 142 MOTION to Amend/Correct by Wal−Mart Stores, Inc., 141 MOTION for Extension of Time by Wal−Mart Stores, Inc. (RBB) (Entered: 07/17/2007)
152 NOTICE of Appearance by Aimee Lynn McFerren on behalf of Equal Employment Opportunity Commission (RBB) (Chrisman, Jamie). (Entered: 07/20/2007)
153 MOTION to Quash Subpoena Duces Tecum by Equal Employment Opportunity Commission, MOTION for Protective Order prohibiting Wal−Mart from obtaining Class Member Discovery Via Improper Means by Equal Employment Opportunity Commission, with memorandum in support attached Modified to add with memorandum in support attached on 7/30/2007 (Bundy, Renee). (Additional attachment(s) added on 2/22/2008: # 1 Exhibit A Subpoena of Brenda Overbey) (Chrisman, Jamie). (Entered: 07/30/2007)
154 ORDER : hearing is set on EEOC's mt to quash and mt for protective order 153 for July 31, 2007 @ 11:30 a.m., CTRM C, London, KY. Re 153 MOTION to Quash by Equal Employment Opportunity Commission MOTION for Protective Order by Equal Employment Opportunity Commission Motion Hearing set for 7/31/2007 11:30 AM in London before Robert E. Wier. Signed by Judge Robert E. Wier. (RBB)cc: COR (Entered: 07/30/2007)
155 EMERGENCY MOTION to Compel Wal−Mart to conduct already scheduled London,KY depositions by Equal Employment Opportunity Commission (RBB) (Chrisman, Jamie). (Entered: 07/31/2007)
156 ORDER : 1) The Court grants in part and denies in part EEOC's motion to quash 153 ; Categories 1−5 on the list of documents concern tangible evidence regarding the particular witness's hiring experience, relationship to Wal−Mart, or knowledge of gender animus and therefore are appropriate for class member deponents in this action; The Court denies the mt as to those categories; The Court grants the motion as to Categories 6−7 except to the extent those categories seek responsive documents from an unrepresented class member or seek responsive documents that came into existence prior to commencement of the representation of a class member by the EEOC; Category 8 purports to impose duties with respect to assertion of a privilege, and the Court would limit those duties to any imposed by the Civil Rules; 2)After discussion w/ the parties, the depositions set for the remainder of this week, beginning August 1, shall occur as scheduled, thus resolving prospective issues raised in DE # 155; 3) The EEOC shall not direct a witness served with a subpoena not to produce documents or answer questions based only on the manner of service by Wal−Mart; 4) The Court does not purport to resolve, by this Order, any privilege issues; The Court encourages the parties to consider thoughtfully the proper contours of a privilege before blocking testimony or discovery based on assertion of such privilege and the parties must cooperate to create a meaningful basis for evaluation in the event of a privilege assertion; 5) The parties will convene for the previously scheduled status conference on August 3, 2007 @ 1:30 p.m. TERMING: 153 MOTION to Quash by Equal Employment Opportunity Commission MOTION for Protective Order by Equal Employment Opportunity Commission and 155 MOTION to Compel by Equal Employment Opportunity Commission . Signed by Judge Robert E. Wier. (RBB)cc: COR (Entered: 07/31/2007)
157 MINUTE ENTRY FOR MOTION HEARING held on 8/1/2007 re 153 MOTION to Quash by Equal and MOTION for Protective Order by Equal Employment Opportunity Commission; and 155 MOTION to Compel by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission, before Judge Robert E. Wier : matter called for a motions hearing on following EEOC motions: i) motion to quash Subpoena Duces Tecum; ii) mt for a protective order prohibiting class member discovery via improper means; and iii) emergency motion to compel Wal−Mart to conduct already scheduled depositions; 153 and 155 and the undocketed response of Wal−Mart; The court heard argument of cousnel and stated its analysis of pending issues; The Court will enter a separate order. (COURT REPORTER: Barbara McDermott) (RBB)cc: COR (Entered: 08/01/2007)

Case 6:01-cv-339 As of: 06/03/2017 02:11 PM EDT Page 22 of 95

08/01/2007 08/01/2007 08/01/2007 08/01/2007 08/06/2007
08/09/2007 08/14/2007
08/14/2007 08/16/2007 08/24/2007 08/27/2007

158 RESPONSE in Opposition re 153 MOTION to Quash by Equal Employment Opportunity Commission MOTION for Protective Order by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 2/22/2008: # 1 Exhibit A Bowling Subpoena, # 2 Exhibit B July 29, 2007 ltr) (Chrisman, Jamie). (Entered: 08/01/2007)
159 MOTION to Compel production of documents pursuant to Wal−Mart's Subpoena Duces Tecum by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 2/22/2008: # 1 Exhibit A Bowling Subpoena, # 2 Exhibit B July 29, 2007 ltr) (Chrisman, Jamie). (Entered: 08/01/2007)
Clerk's Note: re 158 Response in Opposition to Motion, 159 MOTION to Compel by Wal−Mart Stores, Inc. are multiple pleadings filed as one document (RBB) (Entered: 08/01/2007)
160 RESPONSE in Opposition re 155 Emergency MOTION to Compel Wal−Mart to conduct already scheduled London, KY depositions by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc.. (RBB) (Chrisman, Jamie). (Entered: 08/01/2007)
161 MINUTE ENTRY FOR STATUS CONFERENCE held on 8/3/2007 before Judge Robert E. Wier : matter called for status conference for resolution of discovery issues and to devise a prospective case schedule; court queried and heard discussions by counsel as to the pending motions; The Court will issue a separate order resolving the pending discovery motions; Each party is directed to prepare and file w/in the 3 weeks, a proposed scheduling order containing the proposed schedule for trial of the case, as discussed on the record. *August 24, 2007 − Proposed Scheduling Order DDL*** (COURT REPORTER: BARBARA MCDERMOTT) (RBB)cc: COR (Entered: 08/06/2007)
162 TRANSCRIPT of Proceedings: MOTIONS HEARING held on 7/31/2007 before Judge ROBERT E. WIER. Court Reporter: BARBARA MCDERMOTT. (RBB) (Chrisman, Jamie). (Entered: 08/09/2007)
163 COMPREHENSIVE DISCOVERY ORDER AND STATUS REPORT: The Court issues this order as both a Comprehensive Discovery Order and as a Status Report to the District Judge; The Order identifies all pending matters, resolves the discovery/procedural matters referred to undersigned, and references the prospective procedural steps in the case; The Court anticipates that the parties will be filing proposed schedules for disposition of the case by August 27, 2007; See DE # 161 (minute order directing filing of proposed schedules). Those proposals should dovetail with this Order to provide an avenue for issuance of a final schedule for resolution of State I of this case; re: 1. Phase assignment for punitive damages: The proper assignment of punitive damages in this bifurcated action is ripe for decision; 2. Appeal of the January 18, 2007 Discovery Order: The matter stands briefed and submitted to the District Judge; SEE ORDER FOR FURTHER DETAILS. Motions terminated: 139 MOTION to Compel by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission; 133 MOTION to Strike by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc.; 141 MOTION for Extension of Time by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. Signed by Judge Robert E. Wier. (RBB)cc: COR (Entered: 08/14/2007)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: 142 MOTION to Amend/Correct by Wal−Mart Stores, Inc. (Vol. 1−7 and Transcript #162 forwarded to Chambers) (RBB) (Entered: 08/14/2007)
164 TRANSCRIPT of Proceedings: Status Conference held on 8/3/2007 before Judge Robert E. Wier. Court Reporter: Barbara McDermott. (RBB) (Chrisman, Jamie). (Entered: 08/16/2007)
165 PHASE ONE SCHEDULING PROPOSAL by Equal Employment Opportunity Commission (RBB) (Chrisman, Jamie). (Entered: 08/24/2007)
166 PROPOSED LITIGATION PLAN AND DISCOVERY SCHEDULE by Wal−Mart Stores, Inc. filed pursuant to re 161 Status Conference, and 163 Order.(RBB) (Chrisman, Jamie). (Entered: 08/27/2007)

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09/04/2007 09/04/2007
09/07/2007 09/14/2007 09/17/2007
09/17/2007 09/17/2007
09/17/2007 10/01/2007 10/03/2007 10/05/2007 10/16/2007

167 MOTION for Protective Order with Respect to Class Member Depositons by Equal Employment Opportunity Commission (RBB) (Chrisman, Jamie). (Entered: 09/04/2007)
168 MEMORANDUM in Support of Motion re 167 MOTION for Protective Order With Respect to Class Member Depositions by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 2/22/2008: # 1 Exhibit A January 11, 2007 ltr, # 2 Exhibit B Aimee McFerren Affidavit, # 3 Exhibit C Theresa Stutler depo excerpts, # 4 Exhibit D Eliz. Rosetta Walden depo excerpts, # 5 Exhibit E Deborah Bennett depo excerpts, # 6 Exhibit F Rebecca Forbes depo excerpts, # 7 Exhibit G Patricia Ann Murray depo excerpts, # 8 Exhibit H Brenda Overbey depo excerpts, # 9 Exhibit I January 25, 2007 ltr, # 10 Exhibit J February 1, 2007 ltr) (Chrisman, Jamie). (Entered: 09/04/2007)
169 OBJECTIONS to 166 Proposed Litigation Plan and Discovery Schedule filed by Equal Employment Opportunity Commission. (RBB) (Chrisman, Jamie). (Entered: 09/07/2007)
******************VOLUME EIGHT (8)********************. (RBB) (Entered: 09/19/2007)
170 RESPONSE in Opposition re 167 MOTION for Protective Order by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc. *Clerk's NOTE: DE # [170} and # 172 are two separate documents filed in one pleading. DE # 170 is a Response to 167 Mt for Protective Order and DE # 172 is a Memorandum in Support of 171 Motion to Compel Deponents'Responses and EEOC Disclosure. (RBB) (Additional attachment(s) added on 2/21/2008: # 1 Exhibit 1 Depo Excerpts pg 1−16 (part 1), # 2 Exhibit 1 Depo Excerpts − pg 17−38 (part 2), # 3 Exhibit A June 21, 2007 ltr, # 4 Exhibit B July 10, 2007 ltr, # 5 Exhibit C July 17, 2007 ltr, # 6 Exhibit D February 21, 2007 ltr, # 7 Exhibit E March 5, 2007 ltr, # 8 Exhibit F August 17, 2007 ltr, # 9 Exhibit G August 23, 2006 ltr, # 10 Exhibit H August 28, 2007 ltr) (Chrisman, Jamie). (Entered: 09/19/2007)
171 MOTION to Compel Deponents' Responses and EEOC Disclosure by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 09/19/2007)
172 MEMORANDUM in Support of Motion re 171 MOTION to Compel by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB)*Clerk's NOTE: DE # [170} and # 172 are two separate documents filed in one pleading. DE # 170 is a Response to 167 Mt for Protective Order and DE # 172 is a Memorandum in Support of 171 Motion to Compel Deponents'Responses and EEOC Disclosure. (Chrisman, Jamie). (Additional attachment(s) added on 2/20/2008: # 1 Exhibit 1 Depo Excerpts pg 1−16, # 2 Exhibit 1 Depo Excerpts pg 17−38, # 3 Exhibit A June 21, 2007 ltr, # 4 Exhibit B July 10, 2007 ltr, # 5 Exhibit C July 17, 2007 ltr, # 6 Exhibit D February 21, 2007 ltr, # 7 Exhibit E March 5, 2007 ltr, # 8 Exhibit F August 17, 2007 ltr, # 9 Exhibit G August 23, 2006 ltr, # 10 Exhibit H August 28, 2007 ltr) (Chrisman, Jamie). (Entered: 09/19/2007)
Clerk's Note: Counsel advised docket clerk that the Memorandum in Support of 171 is incorrectly titled as Defendant's Motion to Compel Deponent's Responses and EEOC Disclosure, when in fact it is a MEMORANDUM in support of said motion. (RBB) (Entered: 09/19/2007)
173 REPLY to Response to Motion re 167 MOTION for Protective Order by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 2/20/2008: # 1 Exhibit A EEOC v Mitsubishi, # 2 Exhibit B 2d Affidavit Aimee McFerren, # 3 Exhibit C Depo Excerpts Sabrina Howard−Howell) (Chrisman, Jamie). (Entered: 10/04/2007)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: 167 MOTION for Protective Order by Equal Employment Opportunity Commission (RBB) (Entered: 10/03/2007)
174 RESPONSE to Motion re 171 MOTION to Compel Deponent's Responses and EEOC's Disclosure by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Chrisman, Jamie). (Entered: 10/05/2007)
175 MOTION for Extension of time to submit reports of "other experts", by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 10/16/2007)

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10/16/2007 10/18/2007 10/19/2007 10/19/2007
10/22/2007 10/26/2007 10/30/2007 10/30/2007 10/30/2007 11/05/2007 11/07/2007 11/15/2007 11/20/2007
11/21/2007
11/21/2007

176 MEMORANDUM in Support of Motion re 175 MOTION for Extension of to submit reports of "other experts" filed by Wal−Mart Stores, Inc.. (RBB) (Chrisman, Jamie). (Entered: 10/16/2007)
179 REPLY to Response to Motion re 171 MOTION to Compel by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc.. (RBB) (Additional attachment(s) added on 2/20/2008: # 1 Exhibit A January 24, 2007 ltr, # 2 Exhibit B Misty Michelle Dinsmore Depo Excerpts) (Chrisman, Jamie). (Entered: 10/22/2007)
177 MOTION for Immediate Scheduling Conference and OBJECTION to Motion to Extend Deadline to Submit Reports of "Other Experts" by Equal Employment Opportunity Commission (RBB) (Chrisman, Jamie). (Entered: 10/19/2007)
178 RESPONSE in Opposition re 175 MOTION for Extension of Time to Complete Discovery (exteand deadline to submit reports of "other experts" by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission.NOTE: DE #s 177, 178 are two separate documents filed in one pleading. (RBB) (Chrisman, Jamie). (Entered: 10/19/2007)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: 171 MOTION to Compel by Wal−Mart Stores, Inc. (RBB) (Entered: 10/22/2007)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: 175 MOTION for Extension of Time to Complete Discovery by Wal−Mart Stores, Inc. (RBB) (Entered: 10/26/2007)
180 REPLY to Response to Motion re 175 MOTION for Extension of Time to Submit "Other Experts" by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc.. (RBB) (Chrisman, Jamie). (Entered: 10/30/2007)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: 175 MOTION for Extension of Time to Complete Discovery by Wal−Mart Stores, Inc. (RBB) (Entered: 10/30/2007)
181 RESPONSE to Motion re 177 MOTION for Immediate Scheduling Conference by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc. (NOTE: DE #s 180 and 181 are two documents filed in one pleading.)(RBB) (Chrisman, Jamie). (Entered: 10/30/2007)
182 DISCLOSURES − Expert witness identification by Wal−Mart Stores, Inc. (identifying 1) James W. Freeman, L.L.M., J.D., M.D., B.S.E.; 2) George A. Barrett, M.B.A., M.S.R.C., C.R.C., C.V.E.; 3) Nancye M. Combs, AEP, SPHR)(RBB) (Chrisman, Jamie). (Entered: 11/05/2007)
183 EEOC'S MOTION to Strike Defendant's "other experts" 182 by Equal Employment Opportunity Commission (MRS) (Chrisman, Jamie). (Entered: 11/07/2007)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: 177 MOTION for Hearing by Equal Employment Opportunity Commission (RBB) (Entered: 11/15/2007)
184 ORDER : 1) Telephonic conference call scheduled for 11/21/2007 @ 11:45 a.m. Counsel are directed to call InterCall Teleconferencing at 1−866−207−2843 and refer to Reservation No. 25602711; 2) Counsel must confer; Counsel must forward a brief summary of dispute in letter form prior to 9:00 on 11/21/2007; 3) Court reporter required; *Telephone Conference set for 11/21/2007 11:45 AM in London before Robert E. Wier. Signed by Judge Robert E. Wier. (RBB)cc: COR (Entered: 11/20/2007)
185 MINUTE ENTRY FOR TELEPHONE CONFERENCE held on 11/21/2007 before Judge Robert E. Wier : Court heard limited discussion by counsel and stated its analysis of pending issues; Court will issue a separte order resolving the discovery issues. (COURT REPORTER: BARBARA MCDERMOTT) (RBB)cc: COR (Chrisman, Jamie). (Entered: 11/21/2007)
186 ORDER REGARDING DISCOVERY ISSUES: 1) Barrow depo shall occur as scheduled; 2) EEOC shall serve the database, as it appeared at the report times states, for morning delivery to counsel for Wal−Mart on Friday, November 23, 2007; 3) Wal−Mart may move for leave to re−depose Dr. Barrow for cross−examination

Case 6:01-cv-339 As of: 06/03/2017 02:11 PM EDT Page 25 of 95

11/26/2007 12/11/2007 12/11/2007 12/14/2007 12/14/2007 12/14/2007 12/14/2007
12/18/2007
12/20/2007

necessitated by the 11/23 production of the July 2005 and March 2007 database versions. In evaluating any such request, the Court would assess any actual prejudice to Wal−Mart from not having the database versions in its possession until 11/23/2007 (including whether receiving the info on 11/23 still provided adequate time to prepare for full cross−examination), the cause of and reasons for any delay in requeting or providing the database, and the reasonableness of delayed cross−examination. The Court expects Wal−Mart to use the November 30 depo to explore, the maximum extent it reasonably can, Dr. Barrow's reasons and explanation for database evolution, his methodologies with respect to such changes, the differences between the July 2005 and March 2007 reports, and the relationships between the original and revised database and Dr. Barrow's ultimate opinions. The EEOC argues that Wal−Mart has no need for the superseded database versions, and Wal−Mart views the information as "Critical" to cross−examination. The Court does not know enough to assess conclusively the positions, and will defer any final ruling to a more complete record after briefing, if needed. Signed by Judge Robert E. Wier. (RBB)cc: COR (Chrisman, Jamie). (Entered: 11/21/2007)
187 RESPONSE to Motion re 183 MOTION to Strike 182 "other experts" by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc.. (RBB) (Chrisman, Jamie). (Entered: 11/26/2007)
188 MOTION for Extension of Time for identification of expert responsive to plf's expert William Bielby by Wal−Mart Stores, Inc. Motions referred to Robert E. Wier. (RBB) Modified to further describe motion on 12/12/2007 (RBB). (Chrisman, Jamie). (Entered: 12/12/2007)
189 MOTION for Extension of Time to submit report of statistical expert by Wal−Mart Stores, Inc. Motions referred to Robert E. Wier. (RBB) (Chrisman, Jamie). (Entered: 12/12/2007)
190 MOTION for Order of Contempt by Equal Employment Opportunity Commission (RBB) (Chrisman, Jamie). (Entered: 12/14/2007)
191 MEMORANDUM in Support of Motion re 190 MOTION for Order by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 2/20/2008: # 1 Exhibit Exhibit 1 September 13, 2007) (Chrisman, Jamie). (Entered: 12/14/2007)
192 MOTION for Protective Order precluding Wal−Mart from improperly contacting class members by Equal Employment Opportunity Commission Motions referred to Robert E. Wier. (RBB) (Chrisman, Jamie). (Entered: 12/14/2007)
193 MEMORANDUM in Support of Motion re 192 MOTION for Protective Order precluding Wal−Mart fromimproperly contacting class members by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 2/20/2008: # 1 Exhibit 1 October 10, 2007 ltr, # 2 Exhibit 2 October 30, 2007 ltr, # 3 Exhibit 3 November 15, 2007 ltr, # 4 Exhibit 4 October 24, 2007 ltr, # 5 Exhibit 5 November 7, 2007 ltr, # 6 Exhibit 6 November 19, 2007 ltr) (Chrisman, Jamie). (Entered: 12/14/2007)
194 RESPONSE in Opposition re 188 MOTION for Extension of Time to identify expert and submit expert report responsive to plf's expert, William Bielby by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 2/20/2008: # 1 Exhibit 1 Def 6th Set RFP, # 2 Exhibit 2 Email, # 3 Exhibit 3 August 31, 2007 ltr.pdf, # 4 Exhibit 4 Email Confirm Barnow depo, # 5 Exhibit 5 September 6, 2007 ltr.pdf, # 6 Exhibit 6 September 13, 2007 ltr.pdf, # 7 Exhibit 7 September 20, 2007 ltr.pdf, # 8 Exhibit 8 September 24, 2007 ltr.pdf, # 9 Exhibit 9 November 5, 2007 ltr.pdf, # 10 Exhibit 10 Emails.pdf, # 11 Exhibit 11 November 19, 2007 ltr.pdf) (Chrisman, Jamie). (Entered: 12/19/2007)
195 RESPONSE in Opposition re 189 MOTION for Extension of Time to submit report of statistical expert by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 2/20/2008: # 1 Exhibit 1 Email btw Maple / Quesenberry, # 2 Exhibit 3 October 30, 2007 ltr, # 3 Exhibit 4 December 14, 2007 letter, # 4 Exhibit 5 October 31, 2007 ltr, # 5 Exhibit 6 Dr Barnow Depo Notice) (Chrisman, Jamie). (Entered: 12/20/2007)

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12/27/2007 12/27/2007 12/27/2007 12/28/2007
12/28/2007
12/28/2007 01/02/2008 01/02/2008 01/02/2008
01/02/2008 01/04/2008 01/10/2008 01/10/2008
01/14/2008 01/31/2008

***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: 183 MOTION to Strike 182 Disclosures by Equal Employment Opportunity Commission (RBB) (Entered: 12/27/2007)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: 188 MOTION for Extension of Time by Wal−Mart Stores, Inc., 189 MOTION for Extension of Time by Wal−Mart Stores, Inc. (RBB) (Entered: 12/27/2007)
**********************VOLUME NINE **************************. (RBB) (Entered: 12/28/2007)
196 RESPONSE in Opposition re 192 MOTION for Protective Order to preclude Wal−Mart from improperly contacting unrepresented class members by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc.. (RBB) (Additional attachment(s) added on 2/20/2008: # 1 8.24.07 letter, # 2 Class Members, # 3 Harper Affidavit, # 4 Ethics) (Chrisman, Jamie). (Entered: 12/28/2007)
197 NOTICE OF FILING MATERIAL UNDER SEAL FOR THE COURT'S IN CAMERA REVIEW by Wal−Mart Stores, Inc. in support of Wal−Mart's 196 Response in opposition to EEOC's Motion 192 for Protective Order to preclude Wal−Mart from improperly contacting unrepresented class members by Equal Employment Opportunity Commission.NOTE: SEALED ENVELOPE FORWARDED TO CHAMBERS on this date (RBB) (Chrisman, Jamie). (Entered: 12/28/2007)
198 RESPONSE in Opposition re 190 MOTION for Order of Contempt by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 12/28/2007)
199 REPLY to Response to Motion re 188 MOTION for Extension of Time for identification of expert responsive to plf's expert William Bielby by Wal−Mart Stores, Inc., filed by Wal−Mart Stores, Inc.. (RBB) (Chrisman, Jamie). (Entered: 01/02/2008)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: 188 MOTION for Extension of Time by Wal−Mart Stores, Inc. (RBB) (Entered: 01/02/2008)
200 ORDER: ORDERED that mt for a hearing is GRANTED; a status hearing for counsel only is set for January 31, 2008 @ 1:00 p.m., CTRM C, US Courthouse, London, KY counsel should be prepared to discuss all pending mts. ( Status Conference set for 1/31/2008 01:00 PM in London before Robert E. Wier.) Signed by Robert E. Wier on 1/2/2008.(RBB)cc: COR (paper copy mailed to counsel) (Additional attachment(s) added on 2/20/2008: # 1 Main) (Chrisman, Jamie). (Entered: 01/02/2008)
201 REPLY to Response to Motion re 189 MOTION for Extension of Time to submit report of statistical expert by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc.. (RBB) (Chrisman, Jamie). (Entered: 01/04/2008)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: 189 MOTION for Extension of Time to extend deadline to submit report of statistical expert by Wal−Mart Stores, Inc. (RBB) (Entered: 01/04/2008)
202 REPLY to Response to Motion re 190 MOTION for Contempt by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (SWA) (Chrisman, Jamie). (Entered: 01/14/2008)
203 REPLY to Response to Motion re 192 MOTION for Protective Order by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission with Declaration of Aimee L. McFerren. (SWA) (Additional attachment(s) added on 2/20/2008: # 1 Main Document) (Chrisman, Jamie). (Entered: 01/14/2008)
***MOTION SUBMITTED TO CHAMBERS for review: 190 MOTION for Order by Equal Employment Opportunity Commission, 192 MOTION for Protective Order by Equal Employment Opportunity Commission (SWA) (Entered: 01/14/2008)
204 MINUTE ENTRY ORDER FOR STATUS CONFERENCE held on 1/31/2008 before Robert E. Wier: Court heard discussion by counsel and stated its analysis of pending issues; separate order shall issue; Court will implement a monthly telephonic status

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02/07/2008 02/12/2008 02/15/2008 02/19/2008
02/19/2008
02/19/2008 02/19/2008

conference; parties being in agreement, the telephonic status conference will occur on the last Wednesday of the month; Court specifically scheduled 4 conferences in open Court; The dates and times are: (Status Conference set for 2/27/2008 @ 09:00 AM in London before Robert E. Wier., Status Conference set for 3/26/2008 09:00 AM in London before Robert E. Wier., Status Conference set for 4/30/2008 09:00 AM in London before Robert E. Wier., Status Conference set for 5/28/2008 09:00 AM in London before Robert E. Wier;) The status conference will te TELEPHONIC and will continue on the last Wednesday of the month @ 9:00 a.m. pending further orders of the Court. (Court Reporter BARBARA MCDERMOTT.) (RBB)cc: COR (Chrisman, Jamie). (Entered: 02/01/2008)
205 DEFT.'S SECOND NOTICE SUPPLEMENTING AUTHORITY ON PUNITIVE DAMAGES by Wal−Mart Stores, Inc. (SWA) (Additional attachment(s) added on 2/14/2008: # 1 Exhibit 1 EEOC v. Int'l Profit) (Chrisman, Jamie). (Entered: 02/07/2008)
206 EEOC'S RESPONSE to 205 Deft's Second Notice Supplementing Authority on Punitive Damages filed by Equal Employment Opportunity Commission. (SWA) (Chrisman, Jamie). (Entered: 02/12/2008)
207 Defendant's Identification of Responsive Expert Witness Paul Richard Jeanneret, Ph.D by Wal−Mart Stores, Inc. (MRS) (Chrisman, Jamie). (Entered: 02/15/2008)
208 ORDER : Court GRANTES Wal−Mart's motion as to "other experts"; The EEOC shall have until July 11, 2008 within which to make any Rule 26(a)(2)(B) expert disclosure in response to reports of experts Barrett and/or Combs; Wal−Mart shall disclose any rebuttal opinions from Barrett and/or Combs by August 11, 2008; 2) Court GRANTES Wal−Mart's motion as to dft's response to witness Bielby; As discussed at the 1/31/2008 hrg, Wal−Mart shall have until 2/15/2008 to identify its responsive expert(s) and until 4/4/2008 to make its Rule 26(a)(2)(B) reports; EEOC shall disclose any rebuttal opinions from Dr. Beilby by August 11, 2008; 3) Court GRANTS Wal−Mart's mt as to its statistical expert's report. Dr. Feeman's report shall be due no later than 4/7/2008; EEOC shall disclose any rebuttal opinions from Dr. Barnow by 9/8/2008; 4) Court DENIES the EEOC's mt to strike Barrett and Combs as the scheduling rulings would indicate. TERMINING 175 MOTION for Extension of Time to Complete Discovery by Wal−Mart Stores, Inc.; 183 MOTION to Strike by EEOC and 189 MOTION for Extension of Time by Wal−Mart Stores, Inc. Signed by Robert E. Wier on 2/19/2008.(RBB)cc: COR (Chrisman, Jamie). Modified to remove duplicate text on 3/4/2008 (RBB). (Entered: 02/19/2008)
209 ORDER: Court GRANTS EEOC's mt 167 for a protective order; and b) DENIES, consistent w/ the privilege ruling and scope analysis, Wal'Mart's corresponding motion to compel answers to questions/production of documents; 171 / 172 ; Wal−Mart's discovery access, as relevant, is as defined by this Order, and c) DEFERS Wal−Mart's mt concerning the third party's identity pending the EEOC's supplementation of the record for in camera review, as specified herein; RE: 171 MOTION to Compel by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc., 167 MOTION for Protective Order by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission, Motions terminated: 167 MOTION for Protective Order by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. Signed by Robert E. Wier on 2/19/2008.(RBB)cc: COR (Chrisman, Jamie). (Entered: 02/19/2008)
210 ORDER re 192 MOTION for Protective Order by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission is DENIED. Motions terminated: 192 MOTION for Protective Order by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. Signed by Robert E. Wier on 2/19/2008.(RBB)cc: COR (Chrisman, Jamie). (Entered: 02/19/2008)
211 ORDER : Order for contempt 190 DENIED; as to class member deops − Wal−Mart shall notify EEOC of the 120 class members it chooses to depose on following schedule: a) identification of 30 women by 3/15/2008; b) identification of 30 women by 4/14/2008; c) identification of 30 women by 5/15/2008; and d) identification of 30 women by 6/15/2008; these are ddls to identify, not to depose; parties should cooperate in scheduling and arrangement of depos in manner calculated to permit an

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02/19/2008
02/19/2008 02/27/2008 02/27/2008
02/28/2008 02/29/2008 03/03/2008

orderly and efficient completion of the discovery issue. Re 190 MOTION for Order by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission, Motions terminated: 190 MOTION for Order by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. Signed by Robert E. Wier on 2/19/2008.(RBB)cc: COR (Chrisman, Jamie). (Entered: 02/19/2008)
212 ORDER: Court implements requirements concerning resolution of discovery disputes in this case; for any prospective dispute between parties involving applicaiton of the Rules or the Court's orders concerning discovery, a party's obligations thereunder, or scheduling mechanics of a discovery−related event, the Court requires following: 1) parties shall first confer; 2) if parties cannot agree, complaining party may request a conference call w/ Court and Court will promptly schedule a call and may order a summary, advance, written explanation of the contentions; 3) if call does not resolve issue, Court will give the aggrieved party lv to file a formal mt and will set a briefing schedule; briefing limitations will apply a) supporting memorandum may not exceed 12 pages; b)responsive memorandum may not exceed 12 pages; c) reply memorandum shall not exceed 5 pages; d) respondent shall not embed a mt w/in its response; e) in addition to normal filing and service obligations, parties shall send an electronic copy of any briefing under this Order to undersigned by email to Chambers. Signed by Robert E. Wier on 2/19/2008.(RBB)cc: COR (Chrisman, Jamie). (Entered: 02/19/2008)
213 TRANSCRIPT of Proceedings: Status Conference held on 1/31/2008 before Judge Robert E. Wier. Court Reporter: Barbara McDermott. (RBB) (Chrisman, Jamie). (Entered: 02/20/2008)
214 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 2/27/2008. before Robert E. Wier: court heard limited discussion by counseland stated its analysis; separate order shall issue; Counsel are reminded of the next monthly telephonic conference on March 26, 2008 @ 9:00 a.m. Court reporter needed for 3/26/2008 conference.(Court Reporter Barbara McDermott.) (RBB)cc: COR (Chrisman, Jamie). (Entered: 02/27/2008)
215 ORDER: Court conducted a telephonic status call in this action on 2/27/2008; in effort to resolve disputes that have arisen in advance of the depositions, Court directs: a) EEOC shall send Court a letter summary of the current disputes by no later than the close of business on 3/5/2008; b) Wal−Mart shall send a responsive ltr summary by no lather than close of business on March 12, 2008; c) parties shall served such ltrs on opposing side and to Chambers via−email; ltrs to be reasonable, not excessive in length; d) Court will address matters at a telephone conference on March 18, 2008 @ 9:00 a.m. Court reporter will be required for the telephone conference; Wal−Mart shall be prepared at the next teleconference, to explain and detail timing of and the need for potential supplementation relative to the April 7, 2008 Freeman report; parties shall confer, i.e. shall talk in an effort to reach agreement as to other nascent discovery disputes to which Wal−Mart's counsel alluded; EEOC inquired of the status of any potential ruling by the District Judge on a motion to reconsider the undersigned's prior ruling as to discovery−scope issue. See DE # 142, #143, #146 & # 150; Court of course, defers to the District Judge regarding this inquiry.. Signed by Robert E. Wier on 2/27/2008.(RBB)cc: COR (Chrisman, Jamie). (Entered: 02/27/2008)
216 ORDER: telephone conference set for March 18, 2008 is REASSIGNED for March 19, 2008 @ 9:00 a.m.; in all other respects the Order of February 27, 2008, re 215 , remains in full force and effect. (Telephone Conference set for 3/19/2008 09:00 AM in London before Judge Karen K. Caldwell.) Signed by Robert E. Wier on 2/28/2008.(RBB)cc: COR (Chrisman, Jamie). (Entered: 02/28/2008)
217 SEALED IN CAMERA SUBMISSION by Equal Employment Opportunity Commission (filed pursuant to Court Order of 2/19/2008 re 209 Order. (Copy forwarded to Chambers of Judge Wier on this date.) (RBB) (Chrisman, Jamie). (Entered: 02/29/2008)
218 TRANSCRIPT of Proceedings: Telephonic Status Conference held on 2/27/2008 before Judge Robert E. Wier. Court Reporter: Barbara McDermott. (RBB) (Chrisman, Jamie). (Entered: 03/03/2008)

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03/06/2008
03/10/2008 03/10/2008 03/19/2008 03/19/2008
03/20/2008 03/24/2008 03/25/2008 03/26/2008 03/26/2008
03/27/2008
03/27/2008

219 ORDER CONFIRMING WORK PRODUCT PROTECTION: re 171 MOTION to Compel by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. ; based on the record as supplemented, the Court finds that no waiver of work−product protection occured; The Court DENIES Wal−Mart's efforst to seek discovery related to the depo prep session. Motions terminated: 171 MOTION to Compel by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. Signed by Robert E. Wier on 3/6/2008.(RBB)cc: COR (Chrisman, Jamie). (Entered: 03/06/2008)
220 NOTICE OF WITHDRAW OF COUNSEL OF RECORD FOR PURPOSES OF DISTRIBUTION by Wal−Mart Stores, Inc, withdrawing all counsel with exception of Katheryn Quesenberry, Erin M. Roark and Puja G. Gatton. (RBB) (Chrisman, Jamie). (Entered: 03/10/2008)
Attorney Update. Attorney Loren Teller Prizant; Lee A. Rosenthal; Joseph P. Donohue and Wendy Carole Hyland terminated. (RBB) (Entered: 03/10/2008)
221 OBJECTIONS to 219 ORDER CONFIRMING WORK PRODUCT PROTECTION filed by Equal Employment Opportunity Commission. (RBB) (Chrisman, Jamie). (Entered: 03/19/2008)
222 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 3/19/2008. before Robert E. Wier: matter called for resolution of discovery issues relating to the scheduling and scope of depos; court will issue separate order; the March 26, 2008 telephonic status conference shall be held as scheduled; parties shall notify the Court of the matterto be discussed during the status conference; info shall be provided to the Court in the form of a summary document approximately one page in length, to chambers e−mail by no later than 12:00 (noon) on March 24,2 008; Counsel shall serve opposing counsel w/any such summary. (Court Reporter Sandy Wilder.) (RBB)cc: COR (Chrisman, Jamie). (Entered: 03/19/2008)
223 PROVISION RULING CONCERNING CLASS MEMBER DEPOSITIONS: See Order for details. Signed by Robert E. Wier on 3/20/2008.(RBB)cc: COR (Chrisman, Jamie). (Entered: 03/20/2008)
225 OBJECTIONS to 219 Magistrate Judge's March 6, 2008 ORDER CONFIRMING WORK PRODUCT PROTECTION filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 3/28/2008: # 1 Ex 1 Depo Excerpts of Brenda Overbey, # 2 Ex 2 Depo Excerpts of Misty Michelle Dinsmore) (Chrisman, Jamie). (Entered: 03/26/2008)
224 TRANSCRIPT of Official Proceedings: Telephonic Transcript held on 3/19/2008 before Judge Robert E. Wier. Court Reporter: Sandy Wilder. (RBB) (Chrisman, Jamie). (Entered: 03/25/2008)
226 TRANSCRIPT of Official Proceedings: Telephonic Conference held on 3/26/2008 before Judge Robert E. Wier. Court Reporter: Sandy Wilder. (RBB) (Chrisman, Jamie). (Entered: 03/26/2008)
227 MINUTE ENTRY ORDER FOR STATUS CONFERENCE held on 3/26/2008. before Robert E. Wier: matter called for a standard monthly telephonic conference; court heard limited discussion by counsel and stated its analysis; A separate Order shall issue; Counsel are reminded of the next telephonic conference on April 30, 2008 @ 9:00 a.m.; Court reporter needed. (Court Reporter Sandy Wilder.) (RBB)cc: COR (Chrisman, Jamie). (Entered: 03/26/2008)
228 NOTICE: Counsel shall promptly give notice of all attorneys that should remain on the distribution list for Court Orders in this case. Wal−Mart need not respond further, but the EEOC and KY Office of Employment and Training shall provide an update, reflecting the need for and proper atty list for service by APRIL 14, 2008; The Clerk may then adjust its service list accordingly. Signed by Robert E. Wier on 3/27/2008.(RBB)cc: COR (Chrisman, Jamie). (Entered: 03/27/2008)
229 STATUS CONFERENCE REPORT/ ORDER : Court conducted regular monthly telephone status conference on March 26, 2008; both parties appeared by counsel; Court addressed the following issues: 1) Freeman report supplementation; Court refers fuling on the supplementation issue until the next conference call on April 30, 2008; Wal−Mart shall file a status report in the record by no later than April 21, 2008; EEOC shall respond by Aprl 28, 2008, and the Court will consider the matter at the April 30

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call; No filing shall exceed 10 pages in length; 2) Barrett responsive expert report; EEOC currently has until July 11, 2008 to respond to Wal−Mart expert Barrett's report; EEOC anticipates the need for a slight extension but the parties had not, as of this week's call, finalized the date for Barrett's depo; Court directs the parties to resolve that issue; Court will evaluate any needed extension as part of the April 30, 2008 call and in light of the final deposition date chosen. EEOC shall detail the need for any extension by a filing made no later than April 21, 2008, and Wal−Mart shall respond by April 28, 2008. No filing shall exceed 10 pages in length; 3) Court's provisional ruling−coerced acceptance of subpoenas; Wal−Mart again raised the issue of subpoena service; Court has not found or been provided authority by which it can coerce the EEOC into accepting service for represented class members in a case of this nature; Wal−Mart must effect service under the mechanisms of Rule 45. **Status Report due by 4/21/2008. Signed by Robert E. Wier on 3/27/2008.(RBB)cc: COR (Chrisman, Jamie). (Entered: 03/27/2008)
230 NOTICE TO REQUEST REMOVAL FROM DISTRIBUTION LIST by Kentucky Office of Employment and Training RE 228 Order. (RBB) (Chrisman, Jamie). (Entered: 04/02/2008)
Attorney Update. Attorney Amy O'Nan Peabody terminated. (RBB) (Entered: 04/02/2008)
231 NOTICE TO COURT REGARDING DISTRIBUTION LIST by Equal Employment Opportunity Commission re 228 NOTICE/Order, stating Kenneth W. Brown, Michelle Eisele, Johanna Philhower Maple, Laurie A. Young may be removed from the distribution list. (RBB) (Chrisman, Jamie). (Entered: 04/02/2008)
232 OPINION & ORDER: Court orders that punitive damages, if any, will be assessed during Phase 2 of a bifurcated trial for this action. Signed by Judge Karen K. Caldwell on 4/7/08.(MRS)cc: COR (Chrisman, Jamie). (Entered: 04/08/2008)
233 AMENDED NOTICE TO THE COURT REGARDING DISTRIBUTION LISTby Equal Employment Opportunity Commission re 231 Notice, adding Michelle Eisele and Johanna Philhower Maple to distriction list. (RBB) (Entered: 04/18/2008)
234 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 4/30/2008 befpre Robert E. Wier; This matter was called for a standard monthly telephonic conference. The Court heard limited discussion by counsel and stated its analysis. A separate Order shall issue. The June 25, 2008 telephonic conference is rescheduled for July 2, 2008 at 9:00 a.m. Counsel are reminded of the next telephonic conference on May 28, 2008 at 9:00 a.m. Court reporter required. ( Telephone Conference set for 5/28/2008 09:00 AM in London before Judge Robert E. Wier, Telephone Conference set for 7/2/2008 09:00 AM in London before Robert E. Wier.). (Court Reporter BARBARA MCDERMOTT.) (MRS)cc: COR, Court Diary (Chrisman, Jamie). (Entered: 04/30/2008)
235 STATUS CONFERENCE REPORT−APRIL 30, 2008 −: The Court addressed the following topics: 1. Freeman report supplementation; 2. Barrett responsive expert report; 3. Miscellaneous matters; EEOC raised 2 additional matters apparently now in dispute; first concerned Wal−Marts refusal to make expert Combs available for additional deposition time, related to credentials and prior testimony; Wal−Mart contends that the EEOC had a full opportunity to complete the deposition; The EEOC may file a motion on the issue, and the Court will set a briefing; Further, a dispute may exist concerning the wording of Wal−Marts subpoenas for the upcoming class member depositions schedule. ; 4. Next call; In addition to the items discussed in part 1 hereof, any party should alert the Court to matters for inclusion in the next call by a brief summary letter sent to chambers by e−mail no later than May 23, 2008 212 . Signed by Robert E. Wier on 5/2/2008.(RBB)cc: COR (Entered: 05/02/2008)
236 MOTION to Compel Dft's compliance with March 20, 2008 ruling regarding subpoena duces tecum by Equal Employment Opportunity Commission. Motions referred to Robert E. Wier. (RBB) (Additional attachment(s) added on 5/6/2008: # 1 Ex 1 Subpoena, # 2 Ex 2 April 22, 2008 ltr, # 3 Ex 3 April 25 2008 ltr, # 4 Ex 4 April 30, 2008 ltr) (Chrisman, Jamie). (Entered: 05/02/2008)
237 MEMORANDUM in Support of Motion re 236 MOTION to Compel by Equal Employment Opportunity Commission filed by Equal Employment Opportunity

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Commission. (RBB) (Additional attachment(s) added on 5/6/2008: # 1 Ex 1 March 4, 2008 letter, # 2 Ex 2 February 26, 2008 letter) (Chrisman, Jamie). (Entered: 05/02/2008)
238 TRANSCRIPT of Proceedings: TELEPHONIC STATUS CONFERENCE held on 4/30/2008 before Judge ROBERT E. WIER. Court Reporter: BARBARA MCDERMOTT. (RBB) (Chrisman, Jamie). (Entered: 05/02/2008)
**********************VOLUME 10 **************************. (RBB) (Entered: 05/06/2008)
239 ORDER: dft shall respond to the motion by no later than 5/12/2008; plf may reply by no latr than 5/16/2008; re 236 MOTION to Compel by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission, (Responses due by 5/12/2008) (reply due by 5/16/2008). Signed by Robert E. Wier on 5/6/2008.(RBB)cc: COR (Chrisman, Jamie). (Entered: 05/06/2008)
240 RESPONSE to Motion re 236 MOTION to Compel Dft's compliance with March 20, 2008 ruling regarding subpoena duces tecum by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 5/16/2008: # 1 Ex 1 April 30, 2008 letter, # 2 Ex 2 May 6, 2008 letter) (Chrisman, Jamie). (Entered: 05/09/2008)
241 NOTICE OF FILING REGARDING EXPERTS by Wal−Mart Stores, Inc. re 235 Order; Excerpts of Burt Barnow's depo; excerpts of portions of report of Wal−Mart expert Professor James W. Freeman regarding Freeman's need for access to D−Base database and anticipated supplementation. (RBB) (Additional attachment(s) added on 5/19/2008: # 1 Ex 1 Dr. William Bielby Depo Excerpts, # 2 Ex 2 Dr. Burt Barnow Report) (Chrisman, Jamie). (Entered: 05/12/2008)
242 REPLY to Response to Motion re 236 MOTION to Compel compliance with March 20, 2008 ruling regarding subpoenae duces tecum − (reply requests that Court w/draw EEOC's motion) by Equal Employment Opportunity Commission. (RBB) (Chrisman, Jamie). (Entered: 05/13/2008)
243 ORDER: the Motion to Compel re 236 is deemed withdrawn and this is DENIED. Signed by Robert E. Wier on 4/15/2008.(RBB)cc: COR (Chrisman, Jamie). (Entered: 05/15/2008)
244 MOTION for Leave to reconvene deposition of Nancye Combs by Equal Employment Opportunity Commission. Motions referred to Robert E. Wier. (RBB) (Additional attachment(s) added on 5/19/2008: # 1 Ex 1 Schedule of Depo, # 2 Ex 2 Nancye Combs Depo Excerpts − Pt 1, # 3 Ex 2 Nancye Combs Depo Excerpts − Pt 2, # 4 Ex 2 Nancye Combs Depo Excerpts − Pt 3, # 5 Ex 2 Nancye Combs Depo Excerpts − Pt 4) (Chrisman, Jamie). (Entered: 05/16/2008)
245 MEMORANDUM in Support of Motion re 244 MOTION for Leave to reconvene deposition of Nancye Combs by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (RBB) (Chrisman, Jamie). (Entered: 05/16/2008)
246 STATUS CONFERENCE REPORT, MAY 28, 2008: 1) Court has reviewed supplemental materials concerning the D−Base issue; 2) Pending disputes: Court grants Wal−Mart lv to file a mt to compel on EEOC's discovery responses as referenced in the parties' correspondence; 3) Schedule: Court cancels the 7/2/2008 conference call; Court set the next call for 7/15/2008 @ 9:30 a.m.; 4) Briefing as to DE 244 : Wal−Mart may respond to DE 244 concerning Combs depo by no later than 7/11/2008, and EEOC may reply by 7/2/2008; 5) other matters: parties shall confer about items 3 and 4 in Wal−Mart's May 23,2 008 summary let; 6) New Matters: any new matter for consideration should be addressed in a summary letter e−mail to the Court by no later than 7/7/2008. (Telephone Conference set for 7/15/2008 09:30 AM in London before Robert E. Wier.) Signed by Robert E. Wier on 5/28/2008.(RBB)cc: COR, Court Diary (Chrisman, Jamie). (Entered: 05/28/2008)
247 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 5/28/2008. before Robert E. Wier: Court informed participating parties that conference would not be on the record; court heard discussions by counsel; separate order will issue;

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telephone conference currently scheduled for 7/2/2008 is CANCELLED; Court scheduled next telephonic status conference for 7/15/2008 @ 9:30 a.m. (RBB)cc: COR (Chrisman, Jamie). (Entered: 05/28/2008)
Status Conference held − hearing terminated − re: 247 (RBB) (Entered: 05/28/2008)
248 JOINT MOTION for Extension of Time to file expert report by Equal Employment Opportunity Commission and Wal−Mart Stores, Inc. Motions referred to Robert E. Wier. (RBB) (Chrisman, Jamie). (Entered: 06/06/2008)
249 ORDER : 1) Telephone Conference set for 6/12/2008 02:00 PM in London before Robert E. Wier; 2) Counsel must confer; summary of dispute ddl 6/11/2008 at 12:00 noon; 3) Court Reporter needed. Signed by Robert E. Wier on 6/9/2008.(RBB)cc: COR (Chrisman, Jamie). (Entered: 06/09/2008)
250 NOTICE OF WITHDRAWL OF COUNSEL OF RECORD FOR PURPOSES OF DISTRIBUTION filed by Wal−Mart Stores, Inc. Puja Gakhar Gatton no longer counsel of record; dft requests Kathryn A. Quesenberry and Erin M. Roark remain as counsel of record for purposes of distribution. (RBB) (Chrisman, Jamie). (Entered: 06/10/2008)
251 MOTION to Compel Full disclosure of redacted documents responsive to EEOC's Sixth and Seventh Requests for Production by Equal Employment Opportunity Commission w/ declaration of Nancy Dean Edmonds, and Memorandum in Support. Motions referred to Robert E. Wier. (RBB) (Additional attachment(s) added on 6/24/2008: # 1 Memo in Support, # 2 Declaration of Nancy Edmonds, # 3 Exhibit 1 6th RFP, # 4 Exhibit 2 Pt 1 3d Supp Resp to 6th RFP, # 5 Exhibit 2 Pt 2 3d Supp Resp to 6th RFP, # 6 Exhibit 3 12.15.06 Freeman Invoice, # 7 Exhibit 4 4.23.08 ltr pending discovery issues, # 8 Exhibit 5 5.6.08 ltr, # 9 Exhibit 6 5.12.08 ltr, # 10 Exhibit 7 5.16.08 ltr, # 11 Exhibit 8 EEOC 7th RFP, # 12 Exhibit 9 Resp to 7th RFP, # 13 Exhibit 10 Associate Index Data Report, # 14 Exhibit 11, # 15 Exhibit 12 3.10.08 ltr, # 16 Exhibit 13 3.25.08 ltr, # 17 Exhibit 14 4.22.08 ltr, # 18 Exhibit 15 4.25.08 ltr) (Chrisman, Jamie). (Entered: 06/11/2008)
**********************VOLUME 11 **************************. (RBB) Modified filing date on 6/25/2008 (RBB). (Entered: 06/24/2008)
252 MOTION to Compel discovery responses to Sixth Set of Interrogatories and Seventh Set of Requests for Production of Documents by Wal−Mart Stores, Inc. Motions referred to Robert E. Wier. (RBB) (Additional attachment(s) added on 6/26/2008: # 1 Proposed Order) (Chrisman, Jamie). (Entered: 06/12/2008)
253 MEMORANDUM in Support of Motion re 252 MOTION to Compel by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc.. (RBB) (Additional attachment(s) added on 6/26/2008: # 1 Ex 1 Pla Ans to 6th Int, # 2 Ex 2 Pla Resp to 7th RFP, # 3 Ex 3 Pla Ans 4th Int RFP, # 4 Ex 4 7.27.07 ltr) (Chrisman, Jamie). (Entered: 06/12/2008)
254 ORDER: The Court first GRANTS the parties' joint motion 248 related to the time for expert reports related to Wal−Mart expert Combs. Per the joint motion, DE #248, the EEOC may make its responsive disclosure and report by August 15, 2008, and Wal−Mart may make any rebuttal disclosure by September 15, 2008. No other expert deadlines are affected. The Court also entertained Wal−Marts request to extend the time for identifying the final 15 of its witnesses for class member depositions. Wal−Mart shall still identify 15 (of 30 remaining)such persons by June 15, 2008, but Wal−Mart seeks to defer the last 15 until September 30 (or within fifteen days of all rebuttal expert reports by the EEOC). Signed by Robert E. Wier on 6/12/2008.(RBB)cc: COR (Chrisman, Jamie). (Entered: 06/12/2008)
255 RESPONSE to Motion re 244 MOTION for Leave by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc.. (RBB) (Additional attachment(s) added on 6/26/2008: # 1 Ex 1 Email 11.6.07, # 2 Ex A Depo Excerpts Nancye Combs) (Chrisman, Jamie). (Entered: 06/13/2008)
256 REPLY to Response to Motion re 244 MOTION for Leave by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 6/27/2008: # 1 Ex 1 Nancye Combs Expert Report, # 2 Ex 2 Nancye Combs Depo Excerpt) (Chrisman, Jamie). (Entered:

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06/24/2008)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: 244 MOTION for Leave to reconvene depo of Nancye Combs by Equal Employment Opportunity Commission (RBB) (Entered: 06/24/2008)
257 ORDER : At joint request of parties; Court reschedules the next status call in this action from July 15, 2008 at 9:30 a.m. to July 18, 2008 at 10:00 a.m.; matter shall remain teleponic and terms of prior orders 246 and 247 setting the hrg and procedures/briefing in advance of same shall remain in effect except as to the date and time for hearing. (Telephone Conference set for 7/18/2008 10:00 AM in London before Robert E. Wier.) Signed by Robert E. Wier on 6/27/2008.(RBB)cc: COR (Chrisman, Jamie). (Entered: 06/27/2008)
259 ORDER re 244 MOTION for Leave by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission: Court GRANTS the EEOC limited relief on specific terms. EEOC may depose Combs for add'l 45 minutes (exclusive of argument or lawyer colloquy), and that exam may extend ONLY to areas of witness's qualifications, publications, and prior testimony. Motions terminated: 244 MOTION for Leave by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission.. Signed by Robert E. Wier on 7/1/2008.(JMB)cc: COR (Chrisman, Jamie). (Entered: 07/02/2008)
258 RESPONSE to Motion re 252 MOTION to CompelDiscovery Responses by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 7/9/2008: # 1 Ex 1 Def 4th Interrog and RFP, # 2 Ex 2 Notice of Depo of Barnow, # 3 Ex 3 Def 7th Request for RFP, # 4 Ex 4 Def 6th Interrog, # 5 Ex 5 Dr. Barnow Depo Excerpts, # 6 Ex 6 Pla Resp to 7th RFP, # 7 Ex 7 Pla Ans to 6th Interrog, # 8 Ex 8 Pg 4 of Freeman's Report) (Chrisman, Jamie). (Entered: 07/02/2008)
261 RESPONSE to Motion re 251 MOTION to Compel by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc. (RC) (Additional attachment(s) added on 7/9/2008: # 1 Ex 1 Def 4th Supp Resp to 7th RFP, # 2 Ex 2 Def 4th Supp Resp to 6th RFP, # 3 Ex 3 Pla Resp to Def 6th RFP, # 4 Ex 4 Def 3rd Supp Resp to Pla 6th RFP, # 5 Ex 5 Letters re discovery issues) (Chrisman, Jamie). (Entered: 07/07/2008)
262 NOTICE OF FILING MATERIAL UNDER SEAL FOR THE COURT'S IN CAMERA REVIEW by Wal−Mart Stores, Inc. in support of Wal Mart's 261 Response in opposition to EEOC's re 251 MOTION to Compel by Equal Employment Opportunity Commission. SEALED ENVELOPE FORWARDED TO CHAMBERS (RC) (Chrisman, Jamie). (Entered: 07/07/2008)
260 NOTICE of Appearance by Jan Shelly on behalf of Equal Employment Opportunity Commission (RBB) (Chrisman, Jamie). (Entered: 07/03/2008)
**********************VOLUME 12 **************************. (RBB) Modified on 7/9/2008 (RBB). (Entered: 07/09/2008)
263 REPLY to Response to Motion re 251 MOTION to Compel full disclosure of redacted documents responsive to EEOC'S 6th and 7th requests for production by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 7/11/2008: # 1 Ex 1 Def 4th Supp to 6th RFP, # 2 Ex 2 10708 email, # 3 Ex 3 81605 ltr from Edmonds to Quesenberry) (Chrisman, Jamie). (Entered: 07/09/2008)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: 251 MOTION to Compel Full Disclosure of Redacted Documents Responsive to EEOC's 6th and 7th requests for production, by Equal Employment Opportunity Commission (RBB) (Entered: 07/09/2008)
264 REPLY to Response to Motion re 252 MOTION to Compel by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB) Modified on 7/10/2008 to change file date from 7/10/2008 to 7/9/2008. (RBB). (Chrisman, Jamie). (Entered: 07/10/2008)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: 252 MOTION to Compel by Wal−Mart Stores, Inc. (RBB) (Entered: 07/10/2008)

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265 ORDER : conference call set for 7/18/2008 is CONTINUED; and REASSIGNED for July 23, 2008 commencing at 2:30 p.m.; court reporter will be required. (Telephone Conference set for 7/23/2008 02:30 PM in London before Robert E. Wier.) Signed by Robert E. Wier on 7/17/2008.(RBB)cc: COR (Chrisman, Jamie). (Additional attachment(s) added on 7/2/2009: # 1 Main Document) (RBB). (Entered: 07/17/2008)
266 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 7/23/2008 before Robert E. Wier: This matter was called for a regularly scheduled monthly telephonic conference call on Wednesday, July 23, 2008, with counsel participating as noted. The Court reviewed the issues to be covered during the telephonic conference and heard discussion by counsel on each issue. A separate order shall issue. The court scheduled the next telephonic status conference for August 29, 2008 commencing at 10:00 a.m. (Court Reporter Barbara McDermott.) (RBB)cc: COR (Chrisman, Jamie). (Entered: 07/25/2008)
267 STATUS CONFERENCE REPORT AND ORDER: Court addressed the following topics: 1. Court found no basis for barring Wal−Mart from conducting the depos of 8 class memebers previously selected. 2) Parties indicated agreement as to unrepresented deponent notification issues. 3) Wal−Mart is to identify 2 replacement deponents by 8/1/08. 4) Court orders that the Barnow rebuttal report will be due witin 30 days of the Dr. Freeman's deposition. 5. The EEOC's current rebuttal report date is 8/11/08. 6. Wal−Mart has stated that Dr. Freeman did not receive the databases mentioned in the letter to which the EEOC makes references. 7. Court expects substantial steps toward a resolution of this issue prior the next call. EEOC shall file the affidavit by no later than 8/22/08. 8. Court sets the next call for 8/29/08 at 10:00 a.m. Matter will be on record. 9. Any new matter for consdieration should be addressed in a summary letter e−mail to the Court by no later than 8/22/08 with response by 8/27/08. Any rulings herein resolve nondispositive pre−trial matters. Signed by Robert E. Wier on 8/1/08.(MRS)cc: COR (Chrisman, Jamie). (Entered: 08/01/2008)
268 ORDER granting 251 Motion to Compel; For the reasons stated, the Court GRANTS the EEOC's motion to compel. Wal−Mart shall, within fourteen (14) days of entry, produce all invoices without redaction. Should Wal−Mart properly seek review, the order to disclose would be stayed pending resolution by the District Judge. Signed by Robert E. Wier on 8/5/2008. (RBB)cc: COR (Chrisman, Jamie). (Entered: 08/05/2008)
269 ORDER granting 252 Motion to Compel; Court GRANTS the motion to compel, DE # 252 , as follows: 1) The EEOC shall respond in full to Defendant's Sixth Set of Interrogatories by no later than sixty (60) days following the deadline for the EEOCs rebuttal report from Dr. Barnow; and 2) EEOC shall respond in full to Defendant's Seventh Set of Requests for Production by no later than thirty (30) days after the date of entry of this Order; The EEOC's proper appeal of any item within this Order would stay compliance with the affected item pending resolution by the District Judge. Signed by Robert E. Wier on 8/5/2008. (RBB)cc: COR (Chrisman, Jamie). (Entered: 08/05/2008)
270 MOTION to Compel Disclosure of Electronic Databases Produced by Wal−Mart to Wal−Mart Expert Mr. Freeman and/or His Agents by Equal Employment Opportunity Commission Motions referred to Robert E. Wier. (RC) (Additional attachment(s) added on 8/26/2008: # 1 Ex 1 EEOC 6th RFP, # 2 Ex 2 1.30.04 ltr, # 3 Ex 3 1.15.04 ltr, # 4 Ex 4−21 ltrs encl database samples, # 5 Ex 22, # 6 Ex 23 4.23.08 ltr, # 7 Ex 24 5.6.08 ltr, # 8 Ex 25 5.12.08 ltr, # 9 Ex 26 5.16.08 ltr, # 10 Ex 27 5.30.08 ltr, # 11 Ex 28 6.2.08 ltr, # 12 Ex 29 6.11.08 ltr, # 13 Ex 30 6.24.08 ltr) (Chrisman, Jamie). (Entered: 08/22/2008)
271 MEMORANDUM in Support of Motion re 270 MOTION to Compel by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (RC) (Additional attachment(s) added on 8/26/2008: # 1 Order) (Chrisman, Jamie). (Entered: 08/22/2008)
272 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 8/29/2008, before Robert E. Wier: The Court addressed the following topics:1. Freeman report supplementation/D−Base issues; 2. Extension of identification of class member deponents; 3. Extension of Wal−Mart expert deadlines; 4. Scope of EEOC identification duty; 5. Formulation of schedule for conclusion of Stage 1; 6. Next call; Court sets the next call for October 2, 2008 at 10:00 a.m. That conference will be on the record; 7. New matters; Any new matter for consideration should be addressed in a

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summary letter e−mailed to theCourt by no later than September 25, 2008, with any response by September 29, 2008. (Telephone Conference set for 10/2/2008 10:00 AM in London before Robert E. Wier.) (Court Reporter SANDY WILDER.) (RBB)cc: COR (Paper copy mailed to counsel this date.) (Entered: 08/29/2008)
273 NOTICE OF ATTORNEY WITHDRAWAL by JAN SHELLY filed by Equal Employment Opportunity Commission (MRS) (Chrisman, Jamie). (Entered: 09/02/2008)
274 MOTION to Strike Portions of the Report of Plaintiff's Expert Richard F. Martell by Wal−Mart Stores, Inc. (RC) (Chrisman, Jamie). (Entered: 09/08/2008)
275 MEMORANDUM in Support of Motion re 274 MOTION to Strike Portions of the Report of Plaintiff's Expert Richard F. Martell filed by Wal−Mart Stores, Inc. (RC) (Additional attachment(s) added on 9/10/2008: # 1 Ex A Expert Report of Nancye Combs, # 2 Ex B Dr. Martell Expert Rebuttal Report, # 3 Ex C Bielby Expert Report, # 4 Order) (Chrisman, Jamie). (Entered: 09/08/2008)
276 RESPONSE in Opposition re 270 MOTION to Compel Disclosure of Electronic Databases produced by Wal−Mart to Wal−Mart Expert Professor Freeman and/or hsi agents by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 09/09/2008)
277 ORDER: 1) A telephonic conference call is scheduled for 9/18/2008 commencing at 8:30 a.m. EDT; Court will initiate call; 2) Counsel must confer prior to call; COURT REPORTER NEEDED; (Telephone Conference set for 9/18/2008 08:30 AM in London before Robert E. Wier.) Signed by Robert E. Wier on 09/11/2008.(RBB)cc: COR, Court Diary w/ notation re: Court Reporter Needed (RBB)cc: COR (Chrisman, Jamie). (Entered: 09/12/2008)
278 TRANSCRIPT of Proceedings: TELEPHONIC CONFERENCE held on 08/29/2008 before Judge Robert E. Wier. Court Reporter: Sandy Wilder, Telephone number 859.516.4114. Transcript ordered by: plaintiff and defendant. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. Redaction Request due 10/8/2008. Redacted Transcript Deadline set for 10/20/2008. Release of Transcript Restriction set for 12/16/2008. (RBB) (Entered: 09/17/2008)
279 REPLY to Response to Motion re 270 MOTION to Compel Disclosure of Electronic Databases produced by Wal−Mart to Wal−Mart Expert M. Freeman and/or his agents, by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 9/23/2008: # 1 Ex 1 Freeman Expert Witness Invoice) (Chrisman, Jamie). (Entered: 09/18/2008)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: 270 MOTION to Compel Disclosure of Electronic Databases produced by Wal−Mart to Wal−Mart Expert Mr. Freeman and/or his Agents by Equal Employment Opportunity Commission (RBB) (Entered: 09/18/2008)
280 ORDER−MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 9/19/2008, before Robert E. Wier: Court conducted a telephonic conference on this date regarding a dispute concerning the deposition of Dr. Martell; Court heard argument of counsel; a deposition in whole or part by remote mens is proper and Wal−Mart may arrange to have its team participate remotely; EEOC and Dr. Martell shall cooperate with any such efforts; Also pending is Wal−Mart's motion to strike portions of Dr. Martell's report 274 ;EEOC should file a response not later than September 22, 2008 and Wal−Mart should file any reply not later than September 23, 2008 copies shall be emailed to Chambers; Set Deadlines/Hearing as to 274 MOTION to Strike by Wal−Mart Stores, Inc. (Responses due by 9/22/2008, Replies due by 9/23/2008.). (Court Reporter Barbara McDermott.) (RBB)cc: COR (Entered: 09/19/2008)

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09/19/2008 09/22/2008 09/22/2008 09/23/2008
09/26/2008 09/29/2008 09/29/2008
10/02/2008
10/14/2008

**********************VOLUME 13 **************************. (RBB) (Entered: 09/23/2008)
281 WAL−MART'S PROPOSED PHASE ONE LITIGATION SCHEDULE by Wal−Mart Stores, Inc. (MRS) (Chrisman, Jamie). (Entered: 09/22/2008)
282 EEOC'S SCHEDULING PROPOSAL FOR THE CONCLUSION OF PHASE I by Equal Employment Opportunity Commission. (MRS) (Chrisman, Jamie). (Entered: 09/22/2008)
283 RESPONSE in Opposition re 274 MOTION to StrikePortions of the Testimony of Plfs' expert William Martell, by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 9/29/2008: # 1 Ex 1 pt 1 Combs Depo Excerpts pg 1−150, # 2 Ex 1 pt 2 Combs Depo Excerpts pg 151−287, # 3 Ex 1 pt 3 Combs Depo Excerpts pg 303−396, # 4 Ex 2 Use Gender Stereotyping Research in Sex Discrim Litigation, # 5 Ex 3 Detecting Hidden Bias, # 6 Ex 4 Difficult Dialogues ... Issues of Diversity, # 7 Ex 5 Unconscious Bias, # 8 Ex 6 Jeanneret Depo Excerpts, # 9 Ex 7 pt 1 Jeanneret Report 3.1.2007, # 10 Ex 7 pt 2 Jeanneret Report 3.1.2007) (Chrisman, Jamie). (Entered: 09/23/2008)
284 REPLY to Response to Motion re 274 MOTION to Strike Portions of the Report of Plaintiff's Expert, Richard Martell by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc.. (RBB) (Chrisman, Jamie). (Entered: 09/26/2008)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: 274 MOTION to Strike by Wal−Mart Stores, Inc. (RBB) (Entered: 09/29/2008)
285 NOTICE CONCERNING MARTELL DESPOSITION: Dft's motion to strike portions of the report of Dr. Martell, an expert for plf EEOC, is pending; See 274 , 275 , 283 and 284 . Court is in the midst of considering the extensive documentation and briefing submitted on the issue; Because Martell's depo in Montana is set for 9/20/2008, Wal−Mart sought expedited consideration; because of timing of the motion and docket exigencies, Court is not prepared to issue a ruling at this time; based on the difficulty and expense related to Dr. Martell's deposition, Court strongly encourages Wal−Mart to conduct a full and unabridged deposition relative to the Martell Report; this will maintain a status quo position; with utterly no foreshadowing intended, if the undersigned considers the motion to strike and agrees with the EEOC, in whole or part, Wal−Mart would need to have completed the Martell deposition; even if Court rules against EEOC, that party might appeal to the District Judge; the District Judge likewise could rule in a manner necessitating completion of the Martell deposition; all counsel should be prepared for that deposition as scheduled, and since the deposition logistics as to Martell were particularly difficult, Wal−Mart should take full advantage of the deposition opportunity and examine Martell on all matters now salient; the current posture is that Dr. Martell has issued a report, and no ruling now exists that would limit the scope of that report going forward; By conducting the full deposition, Wal−Mart will not prejudice its position on the merits of the motion; The Court will not consider completion of that deposition as a part of its analysis. Signed by Robert E. Wier on 9/29/2008. (RBB) cc: COR (Document scanned for immediate distribution to parties per Chamber's instructions.) (Additional attachment(s) added on 9/30/2008: # 1 Main Document) (Chrisman, Jamie). (Entered: 09/29/2008)
286 STATUS CONFERENCE REPORT & ORDER OF OCTOBER 2, 2008 − TELEPHONE CONFERENCE held on 10/2/2008 before Robert E. Wier: ORDERED: Court addressed following topics: 1) Tendered schedules; 2) Pending Motions; 3) New matters; WalMart may file mt for PTO as to discovry addressed to Prof. Freeman's financial records; 4) Next call scheduled for 11/7/2008 @ 11:30 a.m., conference will be on record; 5) new matters for consideration should be addressed in succinet summary letter e−mailed ot the Court NLT 10/30/2008, w/ response by 11/4/2008; *(Telephone Conference set for 11/7/2008 11:30 AM in London before Robert E. Wier.). (Court Reporter BARBARA MCDERMOTT.) (RBB)cc: COR, Court Diary (Chrisman, Jamie). (Entered: 10/02/2008)
287 ORDER: conference call set for November 7, 2008 is CANCELLED and same is REASSIGNED for November 14, 2008 commencing at 11:00 a.m.; in all other respects the Order of October 2, 2008 286 , remains in full force and effect. (Telephone Conference set for 11/14/2008 11:00 AM in London before Robert E. Wier.) Signed by Robert E. Wier on 10/14/2008.(RBB)cc: COR Modified on

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10/14/2008 10/16/2008 10/16/2008 10/24/2008
10/24/2008 10/30/2008 11/04/2008 11/07/2008 11/13/2008 11/13/2008

10/14/2008 to state paper copy has been mailed to counsel of record. (RBB). Modified on 11/14/2008 to change date of telephonic conference from 10/14/2008 to 11/14/2008. (RBB). (Entered: 10/14/2008)
Set/Reset Hearings: Telephone Conference set for 11/14/2008 11:00 AM in London before Robert E. Wier. (RBB) (Entered: 11/14/2008)
288 MOTION for Protective Order as to EEOC's Eleventh Set of Requests for Production of Documents by Wal−Mart Stores, Inc. Motions referred to Robert E. Wier. (RBB) (Chrisman, Jamie). (Entered: 10/16/2008)
289 MEMORANDUM in Support of Motion re 288 MOTION for Protective Order as to the EEOC's Eleventh Set of Requests for Production of Documents by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc.. (RBB) (Additional attachment(s) added on 10/17/2008: # 1 Ex A Def Resp to EEOC 11th RFP) (Chrisman, Jamie). (Entered: 10/16/2008)
290 TRANSCRIPT of Proceedings: TELEPHONIC CONFERENCE held on 10/2/2008 before Judge Robert E. Wier. Court Reporter: Barbara McDermott, Telephone number 859.327.9817. Transcript ordered by: Kathryn Quesenberry. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. Redaction Request due 11/14/2008. Redacted Transcript Deadline set for 11/24/2008. Release of Transcript Restriction set for 1/22/2009. (RBB) (Entered: 10/24/2008)
291 RESPONSE to Motion re 288 MOTION for Protective Order as to EEOC's Eleventh Request for Production by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 10/29/2008: # 1 Exhibits) (Chrisman, Jamie). (Entered: 10/24/2008)
292 REPLY to Response to Motion re 288 MOTION for Protective Order by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc.. (RBB) (Additional attachment(s) added on 11/14/2008: # 1 Ex 1 9.25.08 ltr to Judge Wier, # 2 Ex 2 Transcript of 10.2.08 Status Conf) (Chrisman, Jamie). (Entered: 11/04/2008)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: 288 MOTION for Protective Order by Wal−Mart Stores, Inc. (RBB) (Entered: 11/04/2008)
293 Defendant's NOTICE of Appearance of Counsel by Joseph P. Donohue on behalf of Wal−Mart Stores, Inc. (MRS) (Chrisman, Jamie). (Entered: 11/07/2008)
294 ORDER: For the reasons as stated, the Court GRANTS the motion 270 . Wal−Mart shall produce the original and sample databases, in electronic form, by no later than 11/24/08. Signed by Robert E. Wier on 11/13/08. (Electronically filed the Clerk per Chambers) (MRS)cc: COR (Entered: 11/13/2008)
295 ORDER: 1. Wal−Mart shall, by November 24, 2008, provide to the EEOC all documents responsive to Request No. 1. This request directly targets money Freeman received from Wal−Mart from 2002 to 2008, and the Court finds that area clearly discoverable and proper. 2. 2. Wal−Mart shall provide the following information to the EEOC by no later than November 24, 2008: A. A summary identifying the annual income Freeman individually received by virtue of his work for Wal−Mart during each year from 2002 to 2008 (to date); B. A summary identifying the total annual income Freeman individually has received for performing all consulting services during each year from 2002 to 2008 (to date);and C. A summary identifying the total annual earned income received by Freeman during each year from 2002 to 2008 (to date). As such, the Court GRANTS in part and DENIES in part the motion for protective order, on the terms stated. Signed by Robert E. Wier on 11/13/08. (Electronically filed the Clerk per Chambers) (MRS)cc: COR (Entered: 11/13/2008)

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11/13/2008 11/14/2008
11/16/2008 11/21/2008
12/01/2008 12/05/2008

296 RECOMMENDED DISPOSITION: The Court recommends that the District Court GRANT Wal−Mart's motion and restrict Dr. Martell from testifying as to matter not fairly responsive to the disclosed opinions of Nancye Combs. Objections to R&R due by 12/1/2008. Signed by Magistrate Judge Robert E. Wier on 11/13/08.(mrs) (Electronically filed by the Clerk per Chambers)cc: COR (Entered: 11/13/2008)
297 STATUS CONFERENCE REPORT AND ORDER FOR TELEPHONE CONFERENCE held on 11/14/2008, (Telephone Conference set for 12/10/2008 10:00 AM in London before Robert E. Wier. COURT REPORTER NEEDED) before Robert E. Wier: 1)Status. Court indicated that a scheduling order will be filed soon; 2) new matters; A) Jeanneret Compensation; D) Class member depos; 3) Next call: December 10, 2008 @ 10:00 a.m.l conference will be on the record; December matters (any new matter for consideration should be addressed in a succinct, summary letter e−mailed to Court by no later than 12/1/2008; (Court Reporter Sandy Wilder.) (RBB)cc: COR (paper copy mailed to counsel, original filed in record) Modified on 12/9/2008 to correct error in docket text; new matter for consideration should be filed by 12/1/2008 rather than 12/8/2008 (RBB). (Entered: 11/14/2008)
**********************VOLUME 14 **************************. (RBB) (Entered: 11/21/2008)
298 TRANSCRIPT of Proceedings: Telehonic Conference held on 11/14/2008 before Judge Robert E. Wier. Court Reporter: Sandy Wilder, Telephone number 859.516.4115. Transcript ordered by: Kathryn Quesenberry & Nancy Edmonds. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. Redaction Request due 12/12/2008. Redacted Transcript Deadline set for 12/22/2008. Release of Transcript Restriction set for 2/19/2009. (RBB) (Entered: 11/21/2008)
299 OBJECTIONS to 296 Magistrate Judge's November 13, 2008 Recommended Disposition filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 12/5/2008: # 1 Ex 1 Martel Depo Excerpts) (Chrisman, Jamie). (Entered: 12/01/2008)
300 SCHEDULING ORDER: Signed by Robert E. Wier : 1) Deadline for fact discovery May 1, 2009; 2) Deadline for expert discovery shall be March 16, 2009; 3) Deadline for Daubert motions shall be April 8, 2009; Responses due by May 8, 2009. Replies due by June 8, 2009; 4) Deadline for dispositive motions shall be July 15, 2009. Responses shall be due August 17, 2009. Replies shall be due by September 11, 2009; 5) Exhibit and witness lists shall be filed as follows: a. Plaintiff shall file its witness and exhibit lists by no later than November 2, 2009; b. Defendant shall file its witness and exhibit lists by November 16, 2009; 6) Motions in limine filed by December 8, 2009. Responses shall be filed by January 8, 2010. Replies shall be filed by January 22, 2010; 7) By January 15, 2010 each party shall file a. pretrial memorandum brief; b. proposed agreed jury instructions; c. transcript of all evidentiary depositions to be used at trial along with any motions for ruling by the court upon any objections made in any evidentiary depositions to be at trial on which a pre−trial ruling by the Court is necessary; d. proposed voir dire questions. A party must respond to any objections under paragraph 7.c by no later than January 25, 2010, with any reply by February 2, 2010; 8) The District Court will conduct a pretrial conference on February 4, 2010 at 10:00 a.m. in London, Kentucky; 9) The court sets this matter for a jury trial before Judge Caldwell on March 1, 2010 at 9:00 a.m. in London, Kentucky, counsel to be present at 8:30 a.m. Anticipated length of trial is 20 days; 10) No extensions of the deadlines set shall be granted unless an appropriate motion is filed prior to expiration of the deadline in question and upon a showing of sufficient cause; 11) Unless altered by subsequent order, from the District Judge, all Daubert, dispositive, and in limine motions will be submitted to Judge Caldwell for any hearings and decision. Discovery due by 5/1/2009. Dispositive Motions due by

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12/09/2008 12/15/2008 12/17/2008 12/17/2008 12/18/2008
12/22/2008

7/15/2009. Pretrial Filings due by 1/15/2010. Final Pretrial Conference set for 2/4/2010 10:00 AM in London before Judge Karen K. Caldwell. Jury Trial set for 3/1/2010 09:00 AM in London before Judge Karen K. Caldwell.(RC)cc: COR (Chrisman, Jamie). (Entered: 12/05/2008)
301 ORDER: Court previously set a telephonic conference in this matter; dft Wal−Mart timely apprised court of a matter to be addressed, but Plf EEOC did not submit its list of items until December 8, 2008; Order required submissions by 12/1/2008; See 297 ; In order to assure a productive call, the Court on its own motion reschedules the current status call; Wal−Mart shall respond by letter to the EEOC list by December 12, 2008; the previously scheduled call is CANCELLED and the Court will conduct the next call on December 17, 2008 @ 1:00 p.m.; Wal−Mart may file a "short written explanation" addressing the 11/13/2008 order footnote; document shall not exceed 3 pages in length. (Telephone Conference set for 12/17/2008 01:00 PM in London before Robert E. Wier.) Signed by Robert E. Wier on 12/9/2008.(RBB)cc: COR Modified on 12/9/2008 to add text: order electronically filed in this record by clerk at request of Chambers for prompt service upon counsel."(RBB). (Entered: 12/09/2008)
302 RESPONSE to 299 EEOC's OBJECTIONS TO MAGISTRATE JUDGE'S NOVEMBER 13, 2008 RECOMMENDED DISPOSITION STRIKING PORTIONS OF THE REPORT OF EEOC EXPERT RICHARD E. MARTELL filed by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 12/17/2008)
***FILE SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: 296 REPORT AND RECOMMENDATIONS re 274 MOTION to Strike by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc.REPORT AND RECOMMENDATIONS re 274 MOTION to Strike by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB) (Entered: 12/17/2008)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: 296 REPORT AND RECOMMENDATIONS re 274 MOTION to Strike by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc.REPORT AND RECOMMENDATIONS re 274 MOTION to Strike by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB) (Entered: 12/17/2008)
303 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 12/18/2008, before Robert E. Wier: ORDERED:1) The scope of the Freeman Report: After hearing discussion by counsel, the Court gave Plf leave to file a motion as to the scope of the Freeman Report by no later than December 23, 2009. The Dft shall file its response with the Court by January 14, 2009. Plf's Reply shall be due by January 21, 2009. The parties are directed to provide copies of the motion and any response or reply to opposing counsel via e−mail. The Court limits briefing as follows: Main brief (15 pages); Response (15 pages); Reply (5 pages); 2) The EEOC's concerns related to several outstanding discovery items: Court ordered that the parties confer as soon as possible after the conference call as to the list of discovery items discussed on the record; parties are to determine what items are still in dispute and what sought items have not been provided by Wal Mart to opposing counsel; parties shall continue to confer reasonably in an effort to resolve or reduce contested items; plf shall provide the Court with a listing of still−contested items by the close of business on January 5, 2009. Deft shall respond to this listing in writing by close of business on January 7, 2009; parties were advised that the next telephonic status conference would be limited to issues related to these outstanding discovery items. 3) The Martell documents in the possession of Wal Mart's counsel: Court heard discussion of counsel regarding the concerns of the parties as to the documents; EEOC will be submitting the documents to the Court for in camera review; Court will address this issue on a future status call. 4) Court scheduled the next monthly status call for January 8, 2009, beginning at 1:00 p.m.; Court will initiate the conference call to all parties; Court anticipates limiting the next call to resolution of any outstanding discovery requests that remain in contention relative to the list to be provided by the EEOC. (Telephone Conference set for 1/8/2009 01:00 PM in London before Robert E. Wier.) (Court Reporter Barbara McDermot.) (RBB)cc: COR (Entered: 12/19/2008)
304 SEALED ORDER. Signed by Robert E. Wier on 12/22/2008.(EHM)cc: COR: Nancy D. Edmonds; Kathryn A. Quesenberry (Chrisman, Jamie). (Entered: 12/22/2008)

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12/29/2008
12/29/2008 12/29/2008 01/05/2009 01/08/2009 01/08/2009
01/14/2009 01/16/2009 01/16/2009 01/16/2009

305 MOTION to Strike portions of Freeman Supplemental Report beyond permissible scope of supplementation by Equal Employment Opportunity Commission w/Exhibits 1−4 & orders attached.***(Original & copy of Motion, Exhibits & orders forwarded to Chambers on this date.) (EHM) Modified text to add attached orders on 12/29/2008 (EHM). (Additional attachment(s) added on 1/9/2009: # 1 Exhibit 1, # 2 Exhibit 2 part 1, # 3 Exhibit 2 part 2, # 4 Exhibit 4 (Ex 3 is CD)) (Chrisman, Jamie). (Additional attachment(s) added on 1/21/2009: # 5 Ex 2 Barnow Report Pg. 17) (Chrisman, Jamie). Modified on 1/23/2009 to unterm motion. (RBB). Modified on 1/23/2009 to create docket relationship to 315 (Bundy, Renee). (Entered: 12/29/2008)
306 MEMORANDUM in Support of Motion re 305 MOTION to Strike portions of Freeman Supplemental Report beyond permissible scope of supplementation filed by Equal Employment Opportunity Commission. (EHM) (Additional attachment(s) added on 1/9/2009: # 1 Orders) (Chrisman, Jamie). (Entered: 12/29/2008)
307 MOTION for leave to File Voluminous Exhibit on CD by Equal Employment Opportunity Commission. Motions referred to Robert E. Wier. (Proposed Orders attached.) (EHM) (Additional attachment(s) added on 1/9/2009: # 1 Order) (Chrisman, Jamie). (Entered: 12/29/2008)
308 ORDER granting 307 Motion for Leave to File; Plf's mt to file a voluminous exhibit on CD 307 is GRANTED; Court will receive Exh 3 to the mt to strike 305 , as presented on a CD. Signed by Robert E. Wier on 1/5/2009. (RBB)cc: COR(paper copy mailed to counsel, original filed in record) (Entered: 01/05/2009)
Clerk's Note: At the direction of Chambers, a copy of the Court's December 22, 2008 Sealed Order DE 304 was mailed to counsel of record on this date. (RC) (Entered: 01/08/2009)
309 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 1/8/2009, before Robert E. Wier: 1) Discovery issues: The Court discussed the letter issues raised by the EEOC, to which Wal−Mart responded. The EEOC indicated it will defer further pursuing the matters with the Court until after the Freeman deposition, without prejudice to a potential request to file a later motion. As to the issues in 5 of the EEOC's letter, the Court directs Wal−Mart to respond promptly with final information from Freeman concerning the remaining two items discussed on the call, in an effort to avoid further litigation over items Wal−Mart certifies it already has produced. The EEOC may seek further input from the Court before the Freeman deposition if the EEOC determines that Court−involvement is warranted and would be effectual prior to the deposition date; 2)Court will re−serve the Martell sealed order; parties should be prepared to discuss next steps under that order on the next monthly call; 3)Barnow rebuttal deadline. The EEOC may file a motion concerning the Barnow rebuttal deadline. The motion shall be filed by January 16, 2009 with any response by January 26, 2009 and any reply by February 6, 2009. None of the main briefs shall exceed ten pages, and the reply shall not exceed five pages. 4. Next call. The Court sets the next call for February 11, 2009 at 1:00 p.m. That conference will be on the record. Any new matter for consideration should be addressed in a succinct, summary letter emailed to the Court by no later than February 6, 2009 with any response by February 9, 2009. (Telephone Conference set for 2/11/2009 01:00 PM in London before Robert E. Wier. COURT REPORTER NEEDED) (Court Reporter April Prater.) (RBB)cc: COR (paper copy mailed to counsel) (Entered: 01/08/2009)
310 RESPONSE in Opposition re 305 MOTION to Strike portions of Freeman Supplemental Report by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 1/21/2009: # 1 Ex A Interrogatories) (Chrisman, Jamie). (Entered: 01/14/2009)
311 MOTION to Withdraw as Attorney by Equal Employment Opportunity Commission counsel Johanna Philhower Maple. (RBB) (Chrisman, Jamie). (Entered: 01/16/2009)
312 MOTION for extension of time −− to extend due date on Barnow Rebuttal Report by Equal Employment Opportunity Commission. Motions referred to Robert E. Wier. (RBB) (Chrisman, Jamie). (Entered: 01/16/2009)
313 ORDER : matter pending on motion of Johanna Philhower Maple to withdraw as counsel of record for plf; see 311 ; ORDERED that the mt is GRANTED; Johnna Philhower Maple shall be removed as counsel of record for plf; clerkshall also remove

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01/16/2009 01/21/2009
01/23/2009
01/26/2009 01/26/2009 01/27/2009
01/30/2009 02/05/2009
02/06/2009 02/06/2009 02/06/2009 02/11/2009 02/11/2009

Ms. Maple from the service list in this action. Signed by Robert E. Wier on 1/16/2009. (Copy mailed to counsel and original maintained in paper file.)(RBB)cc: COR (Entered: 01/16/2009)
Attorney Update. Attorney Johanna Philhower Maple terminated. (RBB) (Entered: 01/16/2009)
314 EEOC's REPLY in Support of Motion to Strike Portions of Freeman Supplemental Report Beyond Permissible Scope of Supplementation 305 filed by Equal Employment Opportunity Commission. (SWA) (Additional attachment(s) added on 2/2/2009: # 1 Ex 1) (Chrisman, Jamie). (Additional attachment(s) added on 2/2/2009: # 2 Ex 2, # 3 Ex 3) (Chrisman, Jamie). (Entered: 01/21/2009)
315 RECOMMENDED DISPOSITION REGARDING FREEMAN REPORT: Court recommends that District Court Court GRANTS in part and DENYS in part the EEOC's Mt to strike supplementation from the report of Wal−Mart expert James Freeman 305 ; Freeman depo should remain as set. Signed by Robert E. Wier on 1/23/2009.(RBB)cc: COR Modified on 1/23/2009 to state paper copy mailed to counsel and to change event type to R&R . (RBB). (Additional attachment(s) added on 1/23/2009: # 1 Exhibit A− Opinion) (RBB). (Entered: 01/23/2009)
316 RESPONSE to Portion of 11/13/08 order 295 regarding briefing to the court filed by Wal−Mart Stores, Inc. (MRS) (Chrisman, Jamie). (Entered: 01/26/2009)
318 DEFENDANT'S RESPONSE to EEOC's re 312 MOTION To Extend Due Date on Barnow Rebuttal Report. (RC) (Chrisman, Jamie). (Entered: 01/28/2009)
317 ORDER: Court is not willing to direct the EEOC to include the full reportwithin the Freeman deposition scope. If the District Judge permits the full supplementation, any redeposition would be restricted to the transfer analysis; EEOC certainly must examine Freeman now about all Freeman Report matters not precluded under the Court's recommendation. Signed by Robert E. Wier on 1/27/2009.(RBB)cc: COR (paper copy mailed to all counsel of record) (Entered: 01/27/2009)
**********************VOLUME 15 **************************. (RBB) (Entered: 02/02/2009)
***MOTION SUBMITTED TO CHAMBERS of KAREN K. CALDWELL for review: 296 REPORT AND RECOMMENDATIONS re 274 MOTION to Strike by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc.REPORT AND RECOMMENDATIONS re 274 MOTION to Strike by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (MRS) (Entered: 02/05/2009)
319 REPLY to Response to Motion re 312 MOTION for Extension of Time to extend due date of Barnow rebuttal report by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (RBB) (Chrisman, Jamie). (Entered: 02/06/2009)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: 312 MOTION for Extension of Time to extend due date on Barnow rebuttal report by Equal Employment Opportunity Commission. (RBB) (Entered: 02/06/2009)
320 OBJECTIONS to Portions of Magistrate Judge's January 23, 2009 315 Recommended Disposition filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 2/17/2009: # 1 Ex 1 Freeman Report, # 2 Ex 2 Barnow 11.17.08 Report, # 3 Ex 3, # 4 Ex 4 Variables) (Chrisman, Jamie). (Entered: 02/10/2009)
321 PROTECTIVE ORDER: SEE ORDER FOR DETAILS.Signed by Robert E. Wier on 02/11/2009.(Electronically filed by the Clerk per Chambers)(RBB)cc: COR (Entered: 02/11/2009)
322 ORDER: EEOC seeks an extension for the Barnow rebuttal report; The Court has considered the full briefing. See DE ## 312 Motion, 318 Response, 319 Reply. Finding no basis for relief, the Court DENIES the motion for extension.The litigation is now on a determinate schedule, which means that 2009 will be a year of met ddls in this case; Court specifically stated, in fixing the schedule, variance will occur only on extraordinary cause, see 300 paragraph 10, and that does not here exist; Dr. Barnow's rebuttal report will be due March 2, 2009 and expert discovery will close on March 16,

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02/11/2009
02/11/2009 02/12/2009
02/13/2009 02/13/2009 02/19/2009

2009; if Wal−Mart intents to pursue post−report discovery, it shall arrange for that discovery to occur w/in the window provided; the Court issues this Order resolving a non− dispositive pretrial matter under 28 U.S.C. §636(b)(1)(A); any party objecting to this Order should consult the statute and Rule 72(a) concerning its right of and the mechanics for reconsideration before the District Court. Failure to timely object waives review. Signed by Robert E. Wier on 2/11/2009. (RBB)cc: COR Modified on 2/11/2009 to add: (Electronically filed by the Clerk per Chambers)(RBB). (Entered: 02/11/2009)
323 STATUS CONFERENCE REPORT & ORDER/MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 2/11/2009 before Robert E. Wier: Court addressed the following topics: 1) In camera review; Court will enter an order consistent w/ its discussion on the record; 2) Barnow rebuttal report; Court will enteran order resolving the issue; 3) Giles and Glover depos; Although the appeal remains pending before Judge Caldwell, given the discovery deadline, the Court directed the parties to complete the depositions, under the current status, before that deadline. If Judge Caldwells ruling changes the scope ruling after the depos, the Court and parties will address the effect of such a change at that time. The Court states again its expectation that all counsel cooperate and advocate reasonably concerning completion of those depositions; 4) Next call; Court sets the next call for March 11, 2009 @ 1:00 p.m.; any new matter for consideration should be addressed in a succinct, summary letter remailed to the Court by no later than March 6, 2009 w/ any response by March 9, 2009; Any rulings herein resolve nondispositive per−trial matters. (Telephone Conference set for 3/11/2009 01:00 PM in London before Robert E. Wier.)(Court Reporter Sandy Wilder.) (Electronically filed by the Clerk per Chambers) (RBB)cc: COR (Entered: 02/11/2009)
324 SEALED ORDER w/ SEALED ATTACHMENTS. Signed by Robert E. Wier on 2/11/2009.(Copy forwarded to Chambers this date in official "sealed and impounded record" envelope.)(RBB)cc: COR Modified on 2/11/2009 to add text: clerk shall retain original sealed ORDER / ATTACHMENTS in the Clerk's office.) (RBB). (Entered: 02/11/2009)
325 TRANSCRIPT of Proceedings: Telephonic Conference held on 2/11/2009 before Judge Robert E. Wier. Court Reporter: Sandy Wilder, Telephone number 859−516−4114. Transcript ordered by: Kathryn Quesenberry and Nancy edmonds. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. Redaction Request due 3/5/2009. Redacted Transcript Deadline set for 3/16/2009. Release of Transcript Restriction set for 5/13/2009. (RBB) Modified date held on 6/9/2009 (MRS). (Entered: 02/12/2009)
326 EMERGENCY MOTION for Reconsideration OF RULING on 2/11/2009 re 322 Order denying one month extension on Barnow rebuttal report; re: 322 Motion for Extension of Time by Equal Employment Opportunity Commission. (Copy of emergency motion forwarded to Chambers on this date.) (RBB) (Chrisman, Jamie). (Entered: 02/13/2009)
327 ORDER : action pending upon EEOC's mt for reconsideration of the 2/11/2009 ruling denying an extension of the Barnow rebuttal report; See DE # 326 ; ORDERED that Wal−Mart shall respond by not later than 2/17/2009, Wal−Mart shall electronically serve a copy of its filing to the EEOC and the undersigned. (Responses due by 2/17/2009) Signed by Robert E. Wier on 2/13/2009.(Electronically filed by the Clerk per Chambers)(RBB)cc: COR (Entered: 02/13/2009)
328 EEOC'S SUPPLEMENT TO EMERGENCY MOTION 326 FOR RECONSIDERATION OF 2/11/09 RULING DENYING ONE MONTH EXTENSION ON BARNOW REBUTTAL REPORT by Equal Employment Opportunity Commission. (Copy fowarded to Chambers on this date) (MRS) (Additional attachment(s) added on 2/23/2009: # 1 Exhibit 1) (Chrisman, Jamie).

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02/19/2009
02/20/2009 02/20/2009 02/23/2009 02/25/2009
03/10/2009 03/10/2009

(Entered: 02/19/2009)
329 ORDER: There is pending the EEOC's 326 EMERGENCY MOTION for Reconsideration of a 2/11/2009 ruling. The EEOC has forwarded a supplement to its emergency motion. Wal−Mart has not responded to the motion 327 . IT IS ORDERED: 1) That a telephonic conference call is scheduled for February 23, 2009 commencing at 1:30 p.m., Eastern time. Court will initiate the call. If any party will not be at phone number shown on docket, party should notify undersigned of any other applicable phone number. 2) Pursuant to item H(6) of Management Plan for Official Court Reporters of U.S. District Court for EDKY, Mag. Judge hereby determines & orders that a court reporter is required. (Telephone Conference set for 2/23/2009 01:30 PM in London before Robert E. Wier.) Signed by Robert E. Wier on 2/19/2009.(EHM)cc: COR Modified on 2/19/2009 to correct typo. (EHM). (Entered: 02/19/2009)
330 WAL−MART'S RESPONSE to EEOC's Supplement 328 to Emergency Motion 326 for Reconsideration of 2/11/09 Ruling denying Extension on Barnow Rebuttal Report filed by Wal−Mart Stores, Inc. (Copy forwarded to Robert E. Wier on this date) (MRS) (Chrisman, Jamie). (Entered: 02/20/2009)
331 EEOC's RESPONSE to Dft's Objections 320 to Portion of Magistrate Judge's 1/23/09 Recommended Disposition Regarding Freeman Report 315 filed by Equal Employment Opportunity Commission. (Copy forwarded to Robert E. Wier on this date) (MRS) (Chrisman, Jamie). (Entered: 02/20/2009)
332 MOTION for Order to designate in−house counsel pursuant to Court's protective order by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 02/23/2009)
333 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 2/23/2009, before Robert E. Wier: 1) NLT March 20, 2009, the EEOC shall file Dr. Barnow's rebuttal report. The Court is reluctant to grant the 18 day extension but does so based on the EEOC's proffer concerning its need for additional time relative to information produced by Wal−Mart since the original Freeman Report, including in late 2008; 2) NLT April 30, 2009, the EEOC shall file any supplement or revision to Barnow's opinion in the case based only on the 340+ applications disclosed just last week. The EEOC has leave to file a motion concerning the propriety of this late production. The Court will, on motion, strike non−salient supplementation; 3) NLT April 6, 2009, the parties shall complete all expert discovery relative to Dr. Barnow; The EEOC shall cooperate with Wal−Mart to provide information sought, relative to the Barnow rebuttal, in a prompt and efficient fashion. Wal−Mart may seek leave to engage in limited discovery as to the Paragraph 2 supplement,but the Court will be reluctant to extend such leave based on the tardy precipitating disclosure; 4) NLT May 4, 2009, Wal Mart shall file any Daubert Motions as to Dr. Barnow. Wal−Mart may, if necessary, seek leave to supplement any such motion as to Barnow prompted by the supplementation addressed in Paragraph 2; 5) All other deadlines established in the Court's scheduling order, DE 300 remain in full force and effect; 6) The Court will protect the schedule now in place and unjustified and/or unreasonable party conduct that imperils the schedule will a) cause the burden of any alterations or other remedial steps to fall equitably on the culpable party and b) may likewise result in sanctions from the Court. The parties shall arrange their staffing and resources in a manner calculated to comply with the schedule that governs the disposition of this case. (Court Reporter Barbara McDermott.) (RC)cc: COR (Chrisman, Jamie). (Entered: 02/25/2009)
334 ORDER: telephonic conference set for 3/11/2009 is CONTINUED until March 13, 2009 @ 1:00 p.m. ( Telephone Conference set for 3/13/2009 01:00 PM in London before Robert E. Wier.) Signed by Robert E. Wier on 3/10/2009.(Order electronically filed by Clerk per Chambers)(RBB)cc: COR (Entered: 03/10/2009)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: 315 RECOMMENDED DISPOSITION REGARDING FREEMAN REPORT: Court recommends that District Court Court GRANTS in part and DENYS in part the EEOC's Mt to strike supplementation from the report of Wal−Mart expert James Freeman 305 ; Freeman depo should remain as set. Signed by Robert E. Wier on 1/23/2009.(RBB)cc: COR (RBB) (Entered: 03/10/2009)

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03/11/2009 03/13/2009
03/13/2009
03/16/2009 03/16/2009 03/20/2009 04/01/2009 04/08/2009

335 ORDER: Relative to the March 13, 2009 status call, the Court expects (consistent with prior orders) the parties to have conferred concerning all matters in issue prior to that call. In this context, the Court simply will not hazard time and resources on topics that the parties have not first reasonablyattempted to resolve intra−counsel. Signed by Robert E. Wier on 3/11/2009.(RBB) cc: COR (Order electronically filed by docket clerk per Chambers) (Entered: 03/11/2009)
336 TRANSCRIPT of Proceedings: Telephonic Status Conference held on 2/23/2009 before Judge Robert E. Wier. Court Reporter: Barbara McDermott, Telephone number 859−327−9817. Transcript ordered by: Kathryn Quesenberry. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. Redaction Request due 4/3/2009. Redacted Transcript Deadline set for 4/13/2009. Release of Transcript Restriction set for 6/11/2009. (RBB) (Entered: 03/13/2009)
337 STATUS CONFERENCE REPORT & ORDER (March 13, 2009): 1) EEOC mt for sanctions. EEOC has lv to file a mt addressing allegedly late production of discovery by Wal−Mart; 2) Barrett/Combs materials and Daubert ddls; EEOC may file a mt concerning the Daubert ddl ; 3) Freeman discovery; parties represented agreement on the matter referenced in the pre−call lts; 4) prospects Wal−Mart Depos: EEOC confirmed that 14 identified persons w/ knowldge have releveant knowledge in the sense that Wal−Mart allegedly hired men despite their lack of adequate qualifications; Court will discuss topic as part of the next call, if needed, both parties shall be reasonable in assessing time as to these depositions; 5) REmaining Phase I witnesses: Court denied, at this time, Wal−Mart's request to identify substitute deponents; Wal−Mart if it so chooses, may file a mt on this topic, which the Court would considerupon plenary briefing; 6) Martell records; EEOC indicated no objection to the mt reflected in DE 331 regarding access to Martell records; Court wil lenter an appropriate order; 7) NEXT CALL: The Court sets the next call for April 14, 2009 at 2:00 p.m. That conference will be on the record. Except for the possible topic of deposition length during the call week, any new matter for consideration should be addressed in a succinct, summary letter (of no more than 5 pages) e−mailed to the Court by no later than April 8, 2009 with any response by April 10, 2009. (Telephone Conference set for 4/14/2009 02:00 PM in LONDON before Robert E. Wier.) Signed by Robert E. Wier on 3/13/2009.(This order was filed electronically by docket clerk per Chambers)(RBB)cc: COR (Entered: 03/16/2009)
338 ORDER: IT IS ORDERED that the motion to substitute Becca Tenbrook in place of Dennie Mouser, for the purposes set out DE # 324 3, is GRANTED. Motions terminated: 332 MOTION for Order by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. Signed by Robert E. Wier on 3/16/2009.(RBB)cc: COR Modified on 3/16/2009 to state that this Order was filed electronically in the record pursuant to Chambers (RBB). (Entered: 03/16/2009)
339 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 3/13/2009 before Robert E. Wier: Matter called for regulary scheduled mthly telephonic status conf call; separate order shall issue; court scheduled next telephonic status conference for April 14, 2009 @ 2:00 P.M. (RBB)cc: COR Modified on 3/16/2009 to state Order was filed electronically by the clerk per Chambers.(RBB). (Entered: 03/16/2009)
340 NOTICE of Appearance by Robin M. Lybolt on behalf of Equal Employment Opportunity Commission.. (RBB) (Chrisman, Jamie). (Entered: 03/23/2009)
**********************VOLUME 16 **************************. (RBB) (Entered: 04/09/2009)
341 MOTION to Exclude the testimony of Dft's Expert George A. Barrett, with memorandum in support, by Equal Employment Opportunity Commission (Exhibits filed in Sep. Vol.)(RBB) Modified on 4/9/2009 to add text regarding exhibits.(RBB). (Additional attachment(s) added on 4/21/2009: # 1 Order) (Chrisman, Jamie). (Entered: 04/08/2009)

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04/08/2009 04/08/2009 04/08/2009 04/08/2009 04/08/2009 04/08/2009 04/09/2009 04/10/2009 04/10/2009 04/14/2009 04/15/2009
04/16/2009

342 MOTION to Exclude the testimony of Defendant's Expert, P. Richard Jeanneret, w/ attached memorandum in support by Equal Employment Opportunity Commission (Exhibits filed in Sep. Vol.)(RBB) Modified on 4/9/2009 to add text regarding exhibits.(RBB). (Additional attachment(s) added on 4/21/2009: # 1 Memorandum, # 2 Order) (Chrisman, Jamie). (Entered: 04/09/2009)
343 MOTION to Exclude the testimony of Defendant's Expert Nancye Combs with memorandum in support by Equal Employment Opportunity Commission.(Exhibits filed in sep. vol.) (RBB) (Additional attachment(s) added on 4/21/2009: # 1 Memorandum, # 2 Order) (Chrisman, Jamie). (Entered: 04/09/2009)
344 MOTION to Exclude the testimony of Defendant's Expert James Freeman with memorandum in support by Equal Employment Opportunity Commission. (Exhibits filed in sep. vol.) (RBB) (Additional attachment(s) added on 4/21/2009: # 1 Memorandum, # 2 Order) (Chrisman, Jamie). (Entered: 04/09/2009)
345 MOTION to Exclude testimony of EEOC Expert William T. Bielby, with attached memorandum by Wal−Mart Stores, Inc. (Memorandum and Exhibit filed in Sep. Vol.) (RBB) (Additional attachment(s) added on 4/21/2009: # 1 Memorandum, # 2 Order) (Chrisman, Jamie). (Entered: 04/10/2009)
346 MOTION to Exclude proposed testimony of EEOC Expert Dr. Kenneth R. Troske with memorandum in support by Wal−Mart Stores, Inc. (Memorandum and Exhibits filed in Sep. Vol.)(RBB) (Additional attachment(s) added on 4/21/2009: # 1 Memorandum, # 2 Order) (Chrisman, Jamie). (Entered: 04/10/2009)
347 MOTION to Exclude proposed testimony of Expert Richard Martell with memorandum in support by Wal−Mart Stores, Inc. (Memorandum in support filed in Sep. Vol.) (RBB) (Additional attachment(s) added on 4/21/2009: # 1 Memorandum, # 2 Order) (Chrisman, Jamie). (Entered: 04/10/2009)
350 RESPONSE to Motion re 349 MOTION for Order to hold Roseann Hayes in contempt for failure to comply with the subpoena duces tecum served by Wal−Mart Stores, Inc. and 348 MOTION for Order to hold Mary Sasser in contempt for failure to comply with the subpoena duces tecum served on her by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 4/21/2009: # 1 Ex 1, # 2 Ex 2) (Chrisman, Jamie). (Entered: 04/10/2009)
348 MOTION for Order to hold Mary Sasser in contempt for failure to comply with the subpoenas duces tecum served on her, with memorandum in support by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 4/21/2009: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Order) (Chrisman, Jamie). (Entered: 04/10/2009)
349 MOTION for Order to hold Roseann Hayes in contempt for failure to comply with the subpoenas duces tecum served on her, with memorandum in support by Wal−Mart Stores, Inc. (RBB) Modified on 4/10/2009 to correct spelling on Hayes(RBB). (Additional attachment(s) added on 4/21/2009: # 1 Ex 1, # 2 Ex 2, # 3 Ex 3, # 4 Order) (Chrisman, Jamie). (Entered: 04/10/2009)
351 ORDER: The telephonic conference set for April 14, 2009 is continued until April 15, 2009 commencing at 10:15 a.m.(Telephone Conference set for 4/15/2009 10:15 AM in LONDON before Robert E. Wier.) Signed by Robert E. Wier on 4/14/2009.(EHM)cc: COR (Chrisman, Jamie). (Entered: 04/14/2009)
352 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 4/15/2009. before Robert E. Wier: This matter was called for a regularly scheduled monthly telephonic conference call on Wednesday, April 15, 2009 with the parties participating by counsel, as noted. The Court reviewed the issues to be covered during the telephonic conference and heard discussion by counsel on each issue. A separate Status Conference Report and Order shall issue. The Court scheduled the next telephonic conference for May 19, 2009 at 11:00 a.m. (Court Reporter June St. John.) (Telephone Conference set for 5/19/2009 11:00 AM in LONDON before Robert E. Wier.), (Electronically filed pursuant to Chamber, paper copies mailed to counsel) (Court Reporter June St. John.)(RBB)cc: COR (Additional attachment(s) added on 4/21/2009: # 1 Main Document) (Chrisman, Jamie). (Entered: 04/15/2009)
353 STATUS CONFERENCE REPROT & ORDER − April 15, 2009: Court conducted the regular mthly telephonic conference in this action on April 15, 2009: 10 Wal−Mart's

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04/27/2009 04/29/2009
04/29/2009 04/29/2009 04/30/2009
04/30/2009 04/30/2009 04/30/2009 04/30/2009

Mt to Strike Barnow rebutta;l; Wal−Mart may file its mt, which shall be due by May 22, 2009; w/ response by 6/24/2009 and reply by 7/6/2009; 2) Wal−Mart's Daubert ddl as to Barnow: Wal−Mart may file mt concerning the Daubert ddl, which Court will consider; 3) Wal−Mart witness identification: By April 20, 2009 Wal−Mart shall tender discovery responses providing the current witness identification / specification at issue and any correspondence between the parties discussing the specification issue; EEOC may tender any additional necessary documents by April 24, 2009; Court will evaluate the matter and issue a prompt ruling; 4) Next Call: Court sets the next call for May 19, 2009 @ 11:00 a.m. Conferene will be on the record; any new matter for consideration should be addressed in a succinct, summary letter (of no more than 5 pages) emailed to Chambers by NLT May 12, 2009, w/ any response by May 14, 2009.. Signed by Robert E. Wier on 4/16/2009.(Paper copy mailed to counsel)(RBB)cc: COR (Additional attachment(s) added on 4/21/2009: # 1 Main Document) (Chrisman, Jamie). (Entered: 04/16/2009)
354 RESPONSE to Defendant's April 20, 2009 Notice of Filing filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 5/1/2009: # 1 #1 Def Ans to 2d Interrog, # 2 #2 def supp ans to 2d Interrog, # 3 #3 4.8.09 ltr depositions, # 4 #4 4.1.09 ltr depo schedule, # 5 #5 3.30.09 ltr) (Chrisman, Jamie). (Entered: 04/27/2009)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 347 MOTION to Exclude by Wal−Mart Stores, Inc., 343 MOTION to Exclude by Equal Employment Opportunity Commission, 344 MOTION to Exclude by Equal Employment Opportunity Commission, 341 MOTION to Exclude by Equal Employment Opportunity Commission, 342 MOTION to Exclude by Equal Employment Opportunity Commission, 346 MOTION to Exclude by Wal−Mart Stores, Inc., 345 MOTION to Exclude by Wal−Mart Stores, Inc. (RBB) (Entered: 04/29/2009)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: re 348 MOTION for Order by Wal−Mart Stores, Inc., 349 MOTION for Order by Wal−Mart Stores, Inc. (RBB) (Entered: 04/29/2009)
**********************VOLUME 17 **************************. (RBB) Modified on 5/6/2009 to change filing date. (RBB). (Entered: 05/06/2009)
355 NOTICE OF FILING documents related to EEOC's April 8, 2009 request that Court either require Wal−Mart to more specifically detail the knowledge of individuals identified in response to EEOC's 10th Interogatories or allow EEOC to take depo after the close of discovery and/or after Wal−Mart has identified those witnesses it intends to call at trial by Wal−Mart Stores, Inc. re 353 Order (RBB) (Additional attachment(s) added on 5/4/2009: # 1 Ex 1 Def Ans to 10th Interrog, # 2 Ex 2 Def Supp Ans to 10th Interrog, # 3 Ex 3 4.2.09 ltr depo schedules, # 4 Ex 4 4.10.09 ltr) (Chrisman, Jamie). (Additional attachment(s) added on 6/9/2009: # 5 Exhibit 1 − Redacted Answers to Interr) (sealed6, ). (Additional attachment(s) added on 6/9/2009: # 7 Exhibit 2 − Redacted Dft's Supp Answers to 10th Interrogatories, # 8 Exhibit 3− Redacted 4/2/2009 Ltr depo schedules, # 9 Exhibit 4 − Redacted 4/10/2009 letter) (sealed6, ). (Entered: 04/30/2009)
356 MOTION for 25 Class Member Depos if Statistical expert's Rebuttal Report is not Stricken by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 04/30/2009)
357 MEMORANDUM in Support of Motion re 356 MOTION for 25 Class Member Depos if Statistical expert's Rebuttal Report is not Stricken by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc.. (RBB) (Chrisman, Jamie). (Entered: 04/30/2009)
358 MOTION for Extension of Time to File Daubert Motion Directed to EEOC Expert Burt S. Barnow by Wal−Mart Stores, Inc. Motions referred to Robert E. Wier. (RBB) (Additional attachment(s) added on 5/5/2009)(Chrisman, Jamie). Modified text on 5/5/2009 (STB). (Entered: 04/30/2009)
359 MEMORANDUM in Support of Motion re 358 MOTION for Extension of Time to File Daubert Motion Directed to EEOC Expert Burt S. Barnow by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc.. (RBB) (Additional attachment(s) added on 5/5/2009: # 1 Ex A Barnow Analysis, # 2 Ex B Freeman 11.17.08 report, # 3 Ex C Barnow 3.20.09 Report, # 4 Ex D Depo Excerpts, # 5 Ex E Definitions of Variables)

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05/04/2009 05/08/2009 05/08/2009 05/08/2009 05/08/2009
05/08/2009 05/08/2009 05/08/2009 05/08/2009 05/08/2009 05/09/2009 05/14/2009 05/15/2009
05/18/2009

(Chrisman, Jamie). (Additional attachment(s) added on 5/8/2009: # 6 Main Document) (Chrisman, Jamie). (Entered: 04/30/2009)
360 MOTION to Exclude the proposed testimony of EEOC expert, Burt S. Barnow, by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 5/8/2009: # 1 Order) (Chrisman, Jamie). (Additional attachment(s) added on 7/14/2009: # 2 Memorandum in Support) (SYH). (Entered: 05/06/2009)
361 RESPONSE in Opposition re 345 MOTION to Exclude the proposed testimony of EEOC Expert Dr. William T. Bielby, by Wal−Mart Stores, Inc., filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 5/12/2009: # 1 Order) (Chrisman, Jamie). (Entered: 05/11/2009)
362 RESPONSE in Opposition re 347 MOTION to Exclude proposed testimony of Expert Richard Martell, by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Chrisman, Jamie). (Entered: 05/11/2009)
363 RESPONSE to Motion re 346 MOTION to Exclude testimony of EEOC Expert Dr. Kenneth R. Troske, by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (Email, London) (Additional attachment(s) added on 5/12/2009: # 1 Order) (Chrisman, Jamie). (Entered: 05/11/2009)
364 RESPONSE MEMORANDUM IN SUPPORT of 363 , RESPONSE to 346 WAL−MART'S MOTION TO EXCLUDE proposed testimony of EEOC Expert Dr. Kenneth R. Troske filed by Equal Employment Opportunity Commission. (Email, London) Modified on 5/11/2009 to correct filing date to 5/8/2009 (RBB). (Chrisman, Jamie). (Entered: 05/11/2009)
365 RESPONSE in Opposition re 343 MOTION to ExcludeTestimony of Expert Nancye Combs by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 05/12/2009)
366 RESPONSE in Opposition re 344 MOTION to Exclude Testimony of James W. Freeman, by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 05/12/2009)
367 RESPONSE in Opposition re 341 MOTION to ExcludeTestimony of George A. Barrett by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc.. (RBB) (Chrisman, Jamie). (Entered: 05/12/2009)
368 RESPONSE in Opposition re 342 MOTION to Exclude the testimony of Dr. P. Ricahrd Jeanneret, by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc.. (RBB) (Chrisman, Jamie). (Entered: 05/12/2009)
Clerk's Note: re 365 Response in Opposition to Motion, 368 Response in Opposition to Motion, 367 Response in Opposition to Motion, 366 Response in Opposition to Motion. Exhibits to responses 365 thru 368 are too voluminous to scan and are maintained in paper form in the clerk's office. (RBB) (Entered: 05/26/2009)
**********************VOLUME 18 **************************. (RBB) (Entered: 05/12/2009)
369 RESPONSE in Opposition re 358 Dft's MOTION to extend due date to file Daubert Motion directed to EEOC Expert Burt S. Barnow by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (MRS) (Additional attachment(s) added on 5/20/2009: # 1 Order) (Chrisman, Jamie). (Entered: 05/14/2009)
370 EEOC'S RESPONSE to Dft's Motion 356 for 25 Class Member depos if statistical expert's rebuttal report is not stricken filed by Equal Employment Opportunity Commission. (MRS) (Additional attachment(s) added on 5/20/2009: # 1 370 Ex 1 Barnow Report 3.1.07.pdf, # 2 370 Ex 2 Barnow Report 3.20.09.pdf, # 3 370 Ex 3 4.23.08 ltr re depos.pdf, # 4 370 Ex 4 5.20.08 ltr new addresses.pdf, # 5 370 Ex 5 7.24.08 ltr re representation.pdf, # 6 370 Ex 6 Barnow Report 4.7.08.pdf) (Chrisman, Jamie). (Entered: 05/15/2009)
371 ORDER: telephonic conference set for May 19, 2009 is CANCELLED and same is REASSIGNED for May 26, 2009 commencing at 1:30 p.m. (Telephone Conference set for 5/26/2009 @ 01:30 PM in LONDON before Robert E. Wier.) Signed by Robert

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05/22/2009 05/22/2009 05/26/2009
05/26/2009 05/26/2009
05/26/2009

E. Wier on 5/18/2009.(Court Reporter Needed)(RBB)cc: COR (Entered: 05/18/2009)
372 MOTION to Strike Portions of the Alleged Rebuttal Report of EEOC Expert Burt S. Barnow, by Wal−Mart Stores, Inc. (RBB) Modified on 5/26/2009 to remove text "memorandum in support" (RBB). (Additional attachment(s) added on 5/28/2009: # 1 Order) (Chrisman, Jamie). (Entered: 05/26/2009)
373 MEMORANDUM in Support of Motion re 372 MOTION to Strike Portions of the Alleged Rebuttal Report of EEOC Expert Burt S. Barnow, by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 05/26/2009)
374 TRANSCRIPT of Proceedings: Telephonic Conference held on 5/26/2009 before Judge Robert E. Wier. Court Reporter: Sandy Wilder, Telephone number 859 516−4114. Transcript ordered by: Nancy Edmonds and Kathryn Quesenberry. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. Redaction Request due 6/16/2009. Redacted Transcript Deadline set for 6/26/2009. Release of Transcript Restriction set for 8/24/2009. (RBB) (Entered: 05/26/2009)
375 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 5/26/2009 before Robert E. Wier: This matter was called for a regularly scheduled telephonic status call on May 26, 2009, with counsel participating as noted. The Court covered the issues the parties had previously identified and heard discussion by counsel. A separate order shall issue. The Court scheduled the next telephonic status conference for June 26, 2009 at 1:00 p.m. (Telephone Conference set for 6/26/2009 01:00 PM in LONDON before Robert E. Wier.) (Court Reporter Sandy Wilder.) Signed by Robert E. Wier. (RBB)cc: COR (Entered: 05/26/2009)
376 ORDER : Court partially GRANTES motion to hold non−party witnesses Mary Sasser and Roseann Hayes in contempt for failure to comply with subpoenas comanding attendance at depos in this case; EEOC objects procedurally because Wal−Mart seeks the immediate arrest of the alleged contemnors; Court recommends that the Distrit set a hearing on a date certain and require Mary Sasser and Roseann Hayes to appear personally and explain the failure to abide by subpoena. The istrict Judge should direct service of its order personally to Mary Sasser and Roseann Hayes by the US Marshal. Failing an adequate excuse, the District Judge should hold the defaulting witness in contempt and assess an appropriate sanction for relief designed to coerce subpoena compliance. In support of this recommendation, the undersigned certifies that the record supports a show cause order. The Court further orders that the Clerk of Court serve a copy of this order to the involved witnesses at their last known addresses, by certified mail, to wit: Mary Sasser, 1441 Robinson Creek Road, London, KY 40744; and Roseann Hayes, P.O. Box 1441, McKee, KY 40447. Prior to issuance of a show− cause order by the District Judge, either witness can contact the attorney for Defendant Wal−Mart and arrange to comply with the previous subpoena. Wal−Martslawyer and contact person is Erin Roark at the law firm of Woodward, Hobson, & Fulton LLP, (502) 581−8129. Subject to any contrary direction of the District Judge, Wal−Mart may, at any time reasonably prior to a show−cause hearing, file a notice indicating that compliance by the/a witness has eliminated the need for a hearing. The Court issues this Order resolving a non−dispositive pretrial matter under 28 U.S.C. § 636(b)(1)(A). Any party objecting to this Order should consult the statute and Fed. R. Civ. P. 72(a) concerning its right of and the mechanics for reconsideration before the District Court. Signed by Robert E. Wier on 5/26/2009. (RBB) cc: COR and by certified mail, to: Mary Sasser, 1441 Robinson Creek Road, London, KY 40744; and Roseann Hayes, P.O. Box 1441, McKee, KY 40447. Modified on 5/27/2009 to add text "certified mail".(RBB). (Entered: 05/26/2009)
377 STATUS CONFERENCE & ORDER (May 26, 2009): Court conducted regular mthly telephonic status conference in this action on May 26, 2009, parties appeared by counsel; Court addressed following topics: 1) Wal−Mart's post−discovery ddl

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subpoena use; 2) pre−call discussions; 3) Wal−mart Witness identification; 4) Next call; Court sets next call for June 26, 2009 @ 1:00 p.m.; conference will be on the record; any new matter for consideration should be addressed in summary letters by no later than 6/22/2009, w/ any response by 6/24/2009. Signed by Robert E. Wier on 5/26/2009.(RBB)cc: COR (Entered: 05/26/2009)
378 REPLY to Response to Motion re 358 MOTION for Extension of Time to File daubert Motion Directed to EEOC Expert Burt S. Barnow, by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc.. (RBB) (Chrisman, Jamie). (Entered: 05/28/2009)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: re 358 MOTION for Extension of Time to File Daubert Motion directed to EEOC Expert Burt S. Barnow, by Wal−Mart Stores, Inc. (RBB) (Entered: 05/28/2009)
379 MOTION for Order to Identify Substitute Phase I Deponents and allowing Wal−Mart to substiture three class members who Wal−Mart was unable to serve for their depositions: Diana Muncy, Shirley Bowman, and Paula Gibbs, by Wal−Mart Stores, Inc. (RBB) Modified on 5/28/2009 to add text "Identify Substitute Phase I Deponents"(RBB). (Additional attachment(s) added on 6/8/2009: # 1 379 Ex 1 9.17.08 ltr.pdf, # 2 379 Ex 2 10.2.08 ltr.pdf, # 3 379 Ex 3 10.1.08 ltr.pdf, # 4 379 Order.pdf) (Chrisman, Jamie). (Entered: 05/28/2009)
380 REPLY to Response to Motion re 356 MOTION for 25 Class Member Depositions if Barnow's Rebuttal Report is Not Stricken by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 05/28/2009)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: re 356 MOTION for 25 Class Member Depositions if Barnow's Rebuttal Report is Not Sticken, by Wal−Mart Stores, Inc. (RBB) (Entered: 05/28/2009)
381 TRANSCRIPT of Proceedings: Telephonic Status Conference held on 3/3/2004 before Judge J.B. Johnson, Jr.. Court Reporter: Rhonda Sansom, Telephone number 859−619−3624. Transcript ordered by: Katherine Quesenberry. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. Redaction Request due 6/19/2009. Redacted Transcript Deadline set for 6/29/2009. Release of Transcript Restriction set for 8/27/2009. (RBB) (Entered: 05/29/2009)
382 MOTION for Leave to substitute redacted exhibits and MOTION to Seal Exhibits re: 355 Notice of Filing (Exhibits 1−3), by Wal−Mart Stores, Inc. Motions referred to Robert E. Wier. (RBB) (Additional attachment(s) added on 6/8/2009: # 1 382 Ex 1 Redacted.pdf, # 2 382 Ex 2 Redacted.pdf, # 3 382 Ex 3 Redacted.pdf) (Chrisman, Jamie). (Entered: 05/29/2009)
383 ORDER: Defendant has filed a motion for leave to substitute readacted exhibits, DE #382. EEOC shall file any objection by not later than June 4, 2009. re 382 MOTION for Leave by Wal−Mart Stores, Inc. MOTION to Seal Document filed by Wal−Mart Stores, Inc. Signed by Robert E. Wier on 6/1/2009. (Filed electronically by clerk per Chambers)(RBB)cc: COR (Entered: 06/01/2009)
384 ORDER : a) Within fourteen (14) days of the date of this Order, Wal−Mart shall identify each current or former employee, whether management or hourly, with specific knowledge that would rebut, contradict, or respond to the expected testimony of a likely EEOC Stage I witness. Wal−Mart further shall provide the employment status, relative to Wal−Mart, and contact information of such witness (es) if applicable and shall describe the knowledge of the witness(es), including reference to the correlating Stage I witness(es). b) The Court expects cooperation regarding the scheduling and conduct of remaining depositions relative to the witness identification issues. The identification topic has extended past the discovery deadline, but the EEOC should have reasonable access to depositions of the witnesses (not limited to those identified under subsection a.) on a schedule to be negotiated between the parties

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with Court intervention if necessary.. Signed by Robert E. Wier on 6/1/2009.(Filed electronically by clerk per Chambers)(RBB)cc: COR (Entered: 06/01/2009)
385 TRANSCRIPT of Proceedings: Telephonic Status Conference held on 7/23/2008 before Judge Robert E. Wier. Court Reporter: Barbara McDermott, Telephone number 859−327−9817. Transcript ordered by: Defendant. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. The Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. Redaction Request due 6/23/2009. Redacted Transcript Deadline set for 7/6/2009. Release of Transcript Restriction set for 8/31/2009. (RBB) (Entered: 06/02/2009)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 360 MOTION to Exclude the proposed testimony of EEOC expert, Burt S. Barnow, by Wal−Mart Stores, Inc. (RBB) (Entered: 06/03/2009)
386 RESPONSE to Motion re 360 MOTION to Exclude the proposed testimony of EEOC expert, Dr. Burt Barnow, by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (Exhibits maintained in separate folder in Clerk's Office.) (RBB) (Additional attachment(s) added on 6/11/2009: # 1 386 Order.pdf) (Chrisman, Jamie). (Entered: 06/04/2009)
387 ORDER: Wal−Mart's Motion for Leave to substitute redacted exhibits for its April 30, 2009 Notice of Filing is hereby granted; Further, the Court orders that the original documents filed with Wal−Mart's Notice of Filing will be sealed and subject to examination only upon Order of the Court. Signed by Robert E. Wier on 6/5/2009. (Filed electronically by clerk pursuant to Chambers) (RBB)cc: COR (Entered: 06/05/2009)
**********************VOLUME 19 **************************. (RBB) (Entered: 06/16/2009)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: re 305 MOTION to Strike portions of Freeman Supplemental Report beyond permissible scope of supplementation by Equal Employment Opportunity Commission w/Exhibits 1−4 & orders attached. (RBB) (Entered: 06/08/2009)
388 REPLY to Response to Motion re 344 MOTION to Exclude the testimony of Defendant's expert, James Reeman, by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 6/11/2009: # 1 388 Ex 1 Freeman Depo Excerpts.pdf, # 2 388 Ex 2 Young Declaration.pdf, # 3 388 Ex 3 Barnow Rubuttal Report 3.20.09.pdf) (Chrisman, Jamie). (Entered: 06/08/2009)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 344 MOTION to Exclude the testimony of Dft's expert, James Freeman, by Equal Employment Opportunity Commission (RBB) (Entered: 06/08/2009)
389 REPLY to Response to Motion re 343 MOTION to Exclude the testimony of Defendant's Expert Nancye Combs by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 6/11/2009: # 1 389 Ex 1 Combs Depo Excerpts 1.7.08.pdf, # 2 389 Ex 2 Combs Depo Excerpts 4.29.08 pt 1.pdf, # 3 389 Ex 2 Combs Depo Excerpts 4.29.08 pt 2.pdf) (Chrisman, Jamie). (Entered: 06/08/2009)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 343 MOTION to Exclude the testimony of Defendant's Expert Nancye Combs by Equal Employment Opportunity Commission (RBB) (Entered: 06/08/2009)

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390 REPLY to Response to Motion re 342 MOTION to Exclude the testimony of Defendant's Expert, P. Richard Jeanneret, by Equal Employment Opportunity Commission, filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 6/11/2009: # 1 390 Ex 1 Depo Excerpts of Morris Parmon Root Sibert Sizemore.pdf, # 2 390 Ex 2 Depo Excerpts.pdf, # 3 390 Ex 3 Depo Excerpts.pdf, # 4 390 Ex 4 Depo Excerpts Shoemaker.pdf, # 5 390 Ex 5 Depo Excerpts Jeanneret.pdf) (Chrisman, Jamie). (Entered: 06/08/2009)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 342 MOTION to Exclude the testimony of Defendant's Expert, P. Richard Jeanneret,by Equal Employment Opportunity Commission (RBB) (Entered: 06/08/2009)
391 MOTION for Leave to File Memorandum In Excess of 15 Pages (requesting permisison to file excessive pages re: Reply Memorandum In Support of Dft's Mt to Exclude the proposed testimony of EEOC Expert, Wm. T. Bielby); by Wal−Mart Stores, Inc. Motions referred to Robert E. Wier. (RBB) (Additional attachment(s) added on 6/11/2009: # 1 391 Order.pdf) (Chrisman, Jamie). (Additional attachment(s) added on 6/11/2009: # 2 tendered Reply Bielby Testimony.pdf, # 3 391 Ex A Bielby Depo Excerpts.pdf, # 4 391 Ex B.pdf, # 5 391 Ex C Tuli v. Brigham Memo.pdf, # 6 391 Ex D Tuli v. Brigham Memo to Exclude Expert Test.pdf, # 7 391 Ex E Barnow Depo Excerpts 11.30.07.pdf) (Chrisman, Jamie). (Entered: 06/08/2009)
TENDERED Reply Memorandum in Support of Its Motion to Exclude the Proposed Testimony of EEOC Expert William T. Bielby, by Wal−Mart Stores, Inc. re 391 MOTION for Leave to file memorandum in excess of 15 pages, by Wal−Mart Stores, Inc. (RBB) (Entered: 06/08/2009)
392 REPLY to Response to Motion re 347 MOTION to Exclude the proposed testimony of Expert Richard Martell by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 6/12/2009: # 1 392 Ex A Martel Depo Excerpts.pdf, # 2 392 Ex B Combs Depo Excerpts 4.29.08.pdf) (Chrisman, Jamie). (Entered: 06/08/2009)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 347 MOTION to Exclude proposed testimony of Expert Richard Martell by Wal−Mart Stores, Inc. (RBB) (Entered: 06/08/2009)
393 REPLY to Response to Motion re 346 MOTION to Exclude the proposed testimony of EEOC Expert Kenneth R. Troske, by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 6/12/2009: # 1 393 Ex A Troske Depo Excerpts 10.15.08.pdf, # 2 393 Ex B Exhibits to Troske Depo.pdf, # 3 393 Ex C Variables in Analyses.pdf, # 4 393 Ex D Barnow Depo Excerpts 11.30.07.pdf) (Chrisman, Jamie). (Entered: 06/08/2009)
394 REPLY to Response to Motion re 341 MOTION to Exclude testimony of Defendant's Expert, Geroge A. Barrett, by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1− Depo excerpts of Dr. George Barrett, # 2 Exhibit 2 − Barrett's Report, # 3 Exhibit 3 −Deposition excerpts of Vernon Morris, Mike Giles, Nick Blanton Johnny Sibert and Billy Sizemore, # 4 Exhibit 4 − excerpts of depositions of Vernon Morris, Joshua Mounce, Joseph Parmon, Teresa Root, Johnny Sibert, Billy Sizemore & William Carney, # 5 Exhibit 5 −Excerpts of deposition of Christiana Shoemaker, # 6 Exhibit 6 − Excerpts of Jeannie Mills deposition, # 7 Exhibit 7 − Excerpts of Dr. Kenneth Troske Deposition, # 8 Exhibit 8 − Troske Report, # 9 Exhibit 9 − Matrix WMDP00062−63)(RBB) (Entered: 06/09/2009)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 341 MOTION to Exclude the Tesimony of Defendant's Expert, George A. Barrett, by Equal Employment Opportunity Commission (RBB) (Entered: 06/09/2009)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 346 MOTION to Exclude proposed testimony of EEOC Expert Dr. Kenneth R. Troske by Wal−Mart Stores, Inc. (RBB) (Entered: 06/09/2009)
395 TRANSCRIPT of Proceedings: TELEPHONIC CONFERENCE held on 3/13/2009 before Judge ROBERT E. WIER. Court Reporter: Sandy Wilder, Telephone number 859 516−4114. Transcript ordered by: plaintiff and defendant. IMPORTANT NOTICE

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06/26/2009

− REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. The Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. Redaction Request due 6/30/2009. Redacted Transcript Deadline set for 7/10/2009. Release of Transcript Restriction set for 9/8/2009. (RBB) (Entered: 06/09/2009)
396 Mail Returned as Undeliverable. Certified Mail sent to Roseann Hayes re 376 Order returned "Attempted − Not Know, Unable to Forward" (RBB) (Chrisman, Jamie). (Entered: 06/11/2009)
397 RESPONSE to Motion re 379 MOTION for Order to identify substitute Phase 1 deponents by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 6/16/2009: # 1 397 Ex 1 3.11.09 ltr.pdf, # 2 397 Ex 2 2.26.09 ltr.pdf, # 3 397 Ex 3 3.2.09 ltr.pdf) (Chrisman, Jamie). (Entered: 06/15/2009)
398 Mail Returned as Undeliverable. Mail sent to Mary Sasser re 376 Order; returned as "UNCLAIMED". (RBB) (Entered: 06/17/2009)
399 RESPONSE to Motion re 372 MOTION to Strike the rebuttal report of EEOC expert, Dr. Burt Barnow, by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. NOTE: Exhibits 1−9 filed in Separate Volume. (RBB) (Additional attachment(s) added on 6/25/2009: # 1 399 Order.pdf) (Chrisman, Jamie). (Entered: 06/24/2009)
400 REPLY to Response to Motion re: 379 MOTION to identify substitute phase I deponents by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 7/20/2009: # 1 400 Ex A Bowman Return Receipt.pdf, # 2 400 Ex B Gibbs Return Receipt.pdf, # 3 400 Ex C Muncy Return Receipt.pdf, # 4 400 Ex D Note Muncy's new address.pdf, # 5 400 Ex E Unable to Serve Muncy.pdf, # 6 400 Ex F Still attempting to locate.pdf, # 7 400 Ex G 11.11.08 Still looking.pdf, # 8 400 Ex H 11.13.08 Still Looking.pdf, # 9 400 Ex I 9.9.08 Object to Substitutes.pdf) (Chrisman, Jamie). (Entered: 06/26/2009)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: re 379 MOTION to identify substitute Phase I Deponents by Wal−Mart Stores, Inc. (RBB) (Entered: 06/26/2009)
401 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 6/26/2009, before Robert E. Wier: Court addresses the following: 1) Wal−Mart's subpoena enforcement: Wal−Mart provided an alternative address for Roseann Hayes relative to the Court's prior order, DE # 376 , related to subpoena enforcement. The Court ORDERS that the Clerk shall again attempt to serve DE # 376 to Roseann Hayes, by Certified Mail, this time at 183 Upper Day Fork, McKee, KY 40447.; Wal−Mart has lv to file add'l three motions discussed related to subpoena enorcement if necessary; 2: Next call: The Court sets the next call for August 3, 2009 at 1:00 p.m. That conference will be on the record. Any new matter for consideration should be addressed in a succinct, summary letter (of no more than 5 pages) e−mailed to the Court by no later than July 28, 2009 with any response by July 30, 2009. Any rulings herein resolve nondispositive pre− trial matters. The parties should reference Rule 72(a) and 28 U.S.C. § 636(b) (1) (A) for the mechanics and standard of review by the District Judge. (Telephone Conference set for 8/3/2009 01:00 PM in LONDON before Robert E. Wier.) (Court Reporter Sandy Wilder.) Signed by Robert E. Wier. (RBB).(This order was filed electronically by docket clerk per Chambers)cc: COR and certified copy of DE 376 to Roseann Hayes @ 183 Upper Day Fork, McKee,KY 40447. (Entered: 06/26/2009)
402 TRANSCRIPT of Proceedings: TELEPHONIC CONFERENCE held on 6/26/2009 before Judge ROBERT E. WIER. Court Reporter: Sandy Wilder, Telephone number 859.516.4114. Transcript ordered by: counsel for plaintiff and defendant.

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07/06/2009 07/06/2009 07/06/2009
07/07/2009 07/08/2009 07/10/2009 07/14/2009 07/14/2009 07/15/2009
07/15/2009 07/21/2009 07/22/2009

IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. The Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. Redaction Request due 7/17/2009. Redacted Transcript Deadline set for 7/27/2009. Release of Transcript Restriction set for 9/24/2009. (RBB) (Entered: 06/26/2009)
403 NOTICE TO COURT REGARDING WAL−MART EMPLOYEE DEPOSITION by Equal Employment Opportunity Commission re 384 Order. (RBB) (Chrisman, Jamie). (Entered: 07/06/2009)
404 REPLY to Response to Motion re 372 MOTION to Strike the alleged rebuttal report of EEOC expert Burt S. Barnow, by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (Attachments: # 1 Exhibit A Cited pages of Barnow's deposition)(RBB) (Entered: 07/07/2009)
405 MOTION for Leave to File memorandum in excess of 15 pages by Wal−Mart Stores, Inc. Motion referred to Robert E. Wier. (Attachments: # 1 Proposed Order, # 2 TENDERED Reply in support of Mt to exclude proposed testimony of EEOC expert, Burt S. Barnow, # 3 Exhibit A Cited pages from Barnow's deposition, # 4 Exhibit B − Cited pages from James W. Freeman's deposition)(RBB) (Entered: 07/07/2009)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: re 372 MOTION to Strike by Wal−Mart Stores, Inc. (RBB) (Entered: 07/07/2009)
406 MOTION for Leave to File Surreply to Defendant's Reply in Support of Motion to Strike Barnow Rebuttal Report by Equal Employment Opportunity Commission Motions referred to Robert E. Wier. (RBB) (Additional attachment(s) added on 7/20/2009: # 1 406 Orders.pdf) (Chrisman, Jamie). (Entered: 07/08/2009)
407 RESPONSE in Opposition re 405 MOTION for Leave to File Barnow Daubert Motion Reply In Excess of 15 Pages by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 7/20/2009: # 1 407 Orders.pdf) (Chrisman, Jamie). (Entered: 07/10/2009)
408 Mail Returned as Undeliverable. Certified Mail sent to Roseann Hayes re 376 Order returned, envelope marked "No such number, unable to forward." (RBB) (Chrisman, Jamie). (Entered: 07/14/2009)
**********************VOLUME 20 **************************. (SYH) Modified on 7/29/2009 (EHM). (Entered: 07/22/2009)
409 MOTION for Summary Judgment with Memorandum in Support by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 7/23/2009: # 1 Ex 1 Smith Notice of Discrim, # 2 Ex 3 Smith 3d Interview, # 3 Ex 4 EEOC Determination Smith, # 4 Ex 6 Smith Transfer Request, # 5 Ex A Job Analysis Order Filler, # 6 Ex B Barnow 3.1.07 Report, # 7 Ex C Offer Rates, # 8 Ex D Advancement Ratio, # 9 Ex E Barnow 11.30.07 depo excerpts, # 10 Ex F Barnow 3.20.09 Analysis, # 11 Ex G Bielby 1.15.08 depo excerpts, # 12 Ex H Bielby 3.1.07 Report, # 13 Ex I, # 14 Ex J Depo Excerpts, # 15 Ex K) (Chrisman, Jamie). (Entered: 07/16/2009)
410 MOTION for Leave to file under seal Exhibits 5 and 7 to Defendant's Memorandum in Support of Motion for Summary Judgment by Wal−Mart Stores, Inc. Motions referred to Robert E. Wier. (RBB) (Chrisman, Jamie). (Entered: 07/16/2009)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: re 391 MOTION for Leave to file memorandum in excess of 15 pages by Wal−Mart Stores, Inc. (RBB) (Entered: 07/21/2009)
411 REPLY to Response to Motion for leave to file memorandum in excess of 15 pages re 405 MOTION for Leave to File by Wal−Mart Stores, Inc. filed by Wal−Mart Stores,

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07/22/2009
07/22/2009
07/23/2009 07/24/2009 07/27/2009 07/30/2009 07/31/2009
08/14/2009

Inc. (RBB) (Chrisman, Jamie). (Entered: 07/22/2009)
412 TRANSCRIPT of Proceedings: TELEPHONIC MONTHLY STATUS CONFERENCE held on 01/08/2009 before Judge Robert E. Wier. Court Reporter: June St. John (Tipton's Court Reporters), Telephone number 1−800−498−0133. Transcript ordered by: Kathy Quesenberry. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. The Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. Redaction Request due 8/12/2009. Redacted Transcript Deadline set for 8/24/2009. Release of Transcript Restriction set for 10/20/2009. (RBB) (Entered: 07/22/2009)
413 TRANSCRIPT of Proceedings: TELEPHONIC CONFERENCE held on April 15, 2009 before Judge Robert E. Wier. Court Reporter: June St. John (Tipton's Court Reporters), Telephone number 1−800−498−0133. Transcript ordered by: KATHY QUESENBERRY. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. The Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. Redaction Request due 8/12/2009. Redacted Transcript Deadline set for 8/24/2009. Release of Transcript Restriction set for 10/20/2009. (RBB) (Entered: 07/22/2009)
**********************VOLUME 21 **************************. (EHM) (Entered: 07/29/2009)
414 RESPONSE in Opposition re 406 MOTION for Leave to File surreply to dft's reply in support of Mt to Strike Barnow rebuttal report by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc.. (RBB) (Chrisman, Jamie). (Entered: 07/27/2009)
MOTIONS REFERRED: 305 MOTION to Strike 303 Motions referred to Robert E. Wier. (RBB) (Entered: 07/27/2009)
415 MOTION for Contempt Orders and enforcement of subpoenas issued ot Marie Jones, Bryan Elliott and Robing Rose for by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 8/3/2009: # 1 Ex 1, # 2 Ex 2 Elliott excerpts, # 3 Ex 3, # 4 Ex 4 Rose excerpts, # 5 Ex 5) (Chrisman, Jamie). (Entered: 07/30/2009)
416 ORDER: Neither party has raised any new matters for consideration. Additionally, the Court is currently undertaking a review of pending motions in this matter. Therefore, the Court, on its own motion, hereby CANCELS the telephonic status conference previously scheduled for August 3, 2009 at 1:00 p.m. The Court sets the next call for August 31, 2009 at 1:00 p.m. That conference will be on the record. Any new matter for consideration should be addressed in a succinct, summary letter (of no more than 5 pages) e−mailed to the Court by no later than August 24, 2009 with any response by August 27, 2009., ( Telephone Conference set for 8/31/2009 01:00 PM in LONDON before Robert E. Wier.). Signed by Robert E. Wier on 7/31/09. (Scanned by the clerk as directed by Chambers)(MRS)cc: COR, Diary (Entered: 07/31/2009)
417 OPINION & ORDER: 1) The Court ADOPTS the January 18, 2007 Order of the Magistrate Judge DE 129 in its entirety and DENIES the EEOC's objection to it DE 1231 ; 2) The Magistrate Judge's November 13, 2008 Recommended Disposition DE 296 is adopted in its entirety as the opinion of this Court with the following

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08/17/2009 08/17/2009 08/17/2009 08/17/2009
08/19/2009 08/24/2009 08/31/2009

clarification. The portion of the Martel report that SHALL BE STRICKEN consists of: The second paragraph on page 2 of the Martell report; pages 24−32, beginning with the statement on page 24, "Ms Combs Opines that There is No Gender Bias in Hiring Decisions At Wal−Mart DC 6097" until the Conclusions section on page 32; and the Fourth, Fifth, and Sixth Conclusions on page 33; 3) Wal−Mart's Motion to Strike DE 274 is GRANTED; 4) The Magistrate Judge's January 23, 2009 Recommended Disposition DE 315 is ADOPTED in its entirety as the opinion of this Court and portions of the Freeman report SHALL BE STRICKEN as indicated by the Magistrate Judge in the attachment to his Recommended Disposition. Signed by Judge Karen K. Caldwell on 8/14/2009.(RC)cc: COR (Entered: 08/14/2009)
418 MOTION for Leave to File Oversized Memorandum in Opposition to Wal−Mart's Mt for Summary Judgment by Equal Employment Opportunity Commission Motions referred to Robert E. Wier. (RBB) (Additional attachment(s) added on 9/2/2009: # 1 Proposed Order, # 2 Tendered SJ Brief pg1−53, # 3 Tendered SJ Brief pg54−83) (Chrisman, Jamie). (Entered: 08/19/2009)
419 NOTICE of Appearance by Lauren Gibbs on behalf of Equal Employment Opportunity Commission. (RBB) (Chrisman, Jamie). (Entered: 08/19/2009)
420 MOTION to Exclude certain evidence improperly offered by Wal−Mart in support of summary judgment by Equal Employment Opportunity Commission (RBB) (Additional attachment(s) added on 9/2/2009: # 1 Memo of Law, # 2 Order, # 3 Ex 1 Barrett Job Analysis 1.7.08, # 4 Ex 2 Barrett Depo Excerpts 6.13.08, # 6 Ex 4 Entry on Land) (Chrisman, Jamie). (Additional attachment(s) added on 11/16/2009: # 7 Exhibit 3 − Corrected Ex 3 Pence Declaration (substituted per Order 441 )) (RBB). Modified on 11/16/2009 (RBB). (Entered: 08/19/2009)
421 MOTION for Sanctions w/ Memorandum in Support by Equal Employment Opportunity Commission (RBB) (Additional attachment(s) added on 9/2/2009: # 1 Memo of Law, # 2 Proposed Order, # 3 Ex 1 Pla 1st Interrog RFP, # 4 Ex 2 9.9.2005 ltr, # 5 Ex 3 9.22.05 email, # 6 Ex 4 1.30.06 ltr, # 7 Ex 5 11.23.2005 ltr, # 8 Ex 6 2.1.06 email, # 9 Ex 7 2.13.06 email, # 10 Ex 8 3.14.06 ltr, # 11 Ex 9 3.29.06 ltr, # 12 Ex 10 4.5.06 ltr, # 13 Ex 11 4.21.06 ltr, # 14 Ex 12 5.3.06 ltr, # 15 Ex 13 5.12.06 ltr, # 16 Ex 14 6.13.06 ltr, # 17 Ex 15 6.15.06 ltr, # 18 Ex 16 6.21.06 ltr, # 19 Ex 17 10.16.06 ltr, # 20 Ex 18 10.18.06 ltr, # 21 Ex 19 Def 2d Supp Resp to 2d RFP, # 22 Ex 20 Def 5th Supp Ans to 1st Inter and RFP, # 23 Ex 21 10.28.08 ltr, # 24 Ex 22 12.30.08 ltr, # 25 Ex 23 Def 6th Supp to Pla 1st Interrog RFP, # 26 Ex 24 Def 7th Supp to 1st RFP, # 27 Ex 25 2.26.09 ltr, # 28 Ex 26 Def 8th Supp to 1st Interrog RFP, # 29 Ex 27 Def 9th Supp Ans to 1st Interrog RFP) (Chrisman, Jamie). (Entered: 08/19/2009)
TENDERED RESPONSE/BRIEF IN OPPOSITION OF MOTION OF SUMMARY JUDGMENT filed by Wal−mart by Equal Employment Opportunity Commission (See: 418 MOTION for Leave to File by Equal Employment Opportunity Commission and 409 MOTION for Summary Judgment by Wal−Mart Stores, Inc.) NOTE: attachments to "RESPONSE/BRIEF in oppostion filed in 2 separate volumes.(RBB) Modified on 8/19/2009 (RBB). (Entered: 08/19/2009)
422 MOTION for Leave to substitute exhibits by Equal Employment Opportunity Commission. Motions referred to Robert E. Wier. (Requesting permission to substitute 5 incomplete, incorrect or unredacted exhibits contained in its August 17, 2009 Response in Opposition to Wal−Mart's Mt for Summary Judgement. (RBB) (Additional attachment(s) added on 9/17/2009: # 1 Order, # 2 422 1 Pla Exh 130.pdf, # 3 422 Ex 2 pla 3.pdf, # 4 Ex 3 138 to SJ Resp pt. 1, # 5 Ex 3 138 to SJ Resp pt. 2, # 6 Ex 3 138 to SJ Resp pt. 3, # 7 Ex 4 Pla 58 to SJ Resp, # 8 Ex 5 Pla Ex 38 to SJ Resp, # 9 Ex 6 Pla Ex 2 to SJ Response) (Chrisman, Jamie). (Entered: 08/24/2009)
423 ORDER: The Court conducted the regular monthly telephonic status conference in this action on August 31,2009. Both parties appeared by counsel. Jackie Brock attended as the Courtroom Deputy, and Sandy Wilder was the Official Court Reporter. Court addressed following topics: 1. Recently produced barnow documents: Wal−Mart seeks leave to supplement its Daubert briefing, re: Barnow, to alert the Court to late−provided documents given by the EEOC in discovery; The Daubert motion is submitted to Judge Caldwell, and thus she should have the opportunity to evaluate whether to receive additional briefing; 2. Briefing schedules: following ddls apply to

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08/31/2009
08/31/2009 09/01/2009 09/10/2009 09/14/2009
09/14/2009
09/14/2009

outstanding briefing: By no later than September 14, 2009, Wal−Mart shall file its 1) summary judgmentReply; 2) response to the EEOC's pending sanctions motion; and 3) response to the EEOC's motion "to exclude certain evidence improperly offered by Wal−Mart insupport of summary judgment."; 3. Next Call: The Court sets the next call for October 1, 2009 at 1:00 p.m. That conference will be on the record. Any new matter for consideration should be addressed in a succinct, summary letter (of no more than 5 pages) e−mailed to the Court by no later than September 25, 2009 with any response by September 29, 2009; Any rulings herein resolve non−dispositive pre−trial matters. The parties should reference Rule 72(a) and 28 U.S.C. § 636(b)(1)(A) for the mechanics and standard of review by the DistrictJudge.(Responses due by 9/14/2009, Replies due by 9/14/2009.) Signed by Robert E. Wier on 08/31/2009.(RBB)cc: COR Modified on 8/31/2009 to add text "(Scanned by the clerk as directed by Chambers)" (RBB). (Entered: 08/31/2009)
424 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 08/31/2009 before Robert E. Wier: This matter was called for a telephonic conference, with counsel participating as noted. The Court heard discussion by counsel regarding the issues concerning Dr. Barnow documents and the briefing schedule for the pending motions as stated on the record. The matter is scheduled for a telephonic conference on October 1, 2009 at 1:00 p.m., should any issuesarise that need to be addressed by the Court. A separate order will issue from the Court. **(Telephone Conference set for 10/1/2009 01:00 PM in LONDON before Robert E. Wier − COURT REPORTER NEEDED.) (Court Reporter Sandy Wilder.) (Scanned by Clerk as directed by Chambers) Signed by Robert E. Wier. (RBB)cc: COR (Entered: 08/31/2009)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: re 410 MOTION for Leave by Wal−Mart Stores, Inc., 406 MOTION for Leave to File by Equal Employment Opportunity Commission, 405 MOTION for Leave to File by Wal−Mart Stores, Inc. (RBB) (Entered: 08/31/2009)
**********************VOLUME 22 **************************. (RBB) (Entered: 09/04/2009)
425 NOTICE of NEW FIRM by Joseph P. Donohue, Michael J. Henry, Kathryn A. Quesenberry, Erin M. Roark (RBB) (Chrisman, Jamie). (Entered: 09/10/2009)
426 RESPONSE in Opposition re 421 MOTION for Sanctions by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc.. (RBB) (Additional attachment(s) added on 9/28/2009: # 1 Ex A Pla 1st Interrog, # 2 Ex B Barnow 11.30.07 depo excerpts, # 3 Ex C Def Ans to 1st Interrog, # 4 Ex D Pla Partial Resp to Interrog, # 5 Ex E 9.9.05 ltr to EEOC, # 6 Ex F Pla's 2d Set Interrog, # 7 Ex G Def Ans to 2d Interrog, # 8 Ex H Pla 3d Set of Interrog, # 9 Ex I Pla 2d RFP, # 10 Ex J Pla 4th Set of Interrog, # 11 Ex K Def Ans to 4th Set Interrog, # 12 Ex L Def Ans to 8th Set Interrog, # 13 Ex M 12.30.08 ltr to EEOC, # 14 Ex N 12.17.08 ltr to Def, # 15 Ex O Email 9.2.08, # 16 Ex P 10.6.08 ltr to Def, # 17 Ex Q 4.30.09 Barnow Supp Report, # 18 Ex R 3.20.09 Barnow Report, # 19 Ex S 9.30.08 Martel depo excerpts, # 20 Ex T 10.6.08 ltr to Def) (Chrisman, Jamie). (Entered: 09/16/2009)
427 RESPONSE to Motion re 420 MOTION to Exclude by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc.. (RBB) Modified on 9/17/2009 (RBB). NOTE: Exhibit J consists of a DVD case w/ 3 discs and has been placed in sealed envelope and is attached to pleading. (Additional attachment(s) added on 10/1/2009: # 1 Ex A Barrett 6.13.08 Depo Excerpts, # 2 Ex B Carney 4.14.09 depo excerpt, # 3 Ex C Lisa Ann Wilson 4.21.09 depo excerpt, # 4 Ex D Christopher Brian Collins 4.22.09 depo excerpt, # 5 Ex E Combs 1.7.08 Report excerpts, # 6 Ex F Barnow 4.30.09 Supp Rpt, # 7 Ex G 2.3.09 ltr, # 8 Ex H Order Filler Job Analysis, # 9 Ex I Earls 3.24.04 depo excerpt, # 10 Ex K Wm Bielby 1.15.08 depo excerpts) (Chrisman, Jamie). (Entered: 09/16/2009)
428 MOTION for Leave to File its Reply Memorandum in excess of 15 pages by Wal−Mart Stores, Inc. Motions referred to Robert E. Wier. (REPLY MEMORANDUM TENDERED as of this date.) (RBB) (Additional attachment(s) added on 10/1/2009: # 1 Order, # 2 Tendered Reply Memo) NOTE: Attachments to TENDERED REPLY MEMORANDUM have not been scanned and are filed in paper in the clerk's office.) (Chrisman, Jamie). Modified on 10/1/2009 to add Note. (RBB). (Entered: 09/16/2009)

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09/23/2009 09/23/2009 09/28/2009 09/28/2009 09/28/2009 09/28/2009 09/29/2009
10/05/2009 10/07/2009
10/07/2009 10/07/2009 10/07/2009 10/07/2009

429 MOTION for Leave to Supplement Motion to Exclude Proposed Testimony of EEOC Expert Burt S. Barnow by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 10/1/2009: # 1 Order, # 2 Ex A, # 3 Ex G) (Chrisman, Jamie). (Entered: 09/23/2009)
Motions No Longer Referred: 429 MOTION for Leave by Wal−Mart Stores, Inc. (RBB) (Entered: 09/23/2009)
430 REPLY to Response to Motion re 420 MOTION to Exclude Certain Evidence Improperly Offered by Wal−Mart in Support of Summary Judgment by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 10/5/2009: # 1 Ex 5 9.14.09 ltr, # 2 Ex 6 Pla 1st Interrog RFP) (Chrisman, Jamie). (Entered: 09/28/2009)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 420 MOTION to Exclude Certain Evidence Improperly Offered by Wal−mart in Support of Summry Judgement by Equal Employment Opportunity Commission (RBB) (Entered: 09/28/2009)
431 REPLY to Response to Motion For sanctions re 421 MOTION for Sanctions by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (RBB) (Chrisman, Jamie). (Entered: 09/28/2009)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 421 MOTION for Sanctions by Equal Employment Opportunity Commission (RBB) (Entered: 09/28/2009)
432 ORDER: A telephonic conference is scheduled for October 1, 2009, at 1:00 p.m. See DE # 424 (Minute Entry from previous telephonic conference). However, neither party has identified any issues to be addressed by the Court.Accordingly, and upon its own motion, the Court CANCELS the telephonic conference scheduled for October 1. Signed by Robert E. Wier on 09/29/2009.(Order electronically filed by docket clerk per Chambers)(RBB)cc: COR (Entered: 09/29/2009)
433 MOTION for Leave to File Sur−Reply by Wal−Mart Stores, Inc. Motions referred to Robert E. Wier. (RBB) (Additional attachment(s) added on 11/2/2009: # 1 Ex 1 Notice, # 2 Tendered SurReply, # 3 Order) (Chrisman, Jamie). (Entered: 10/05/2009)
434 RESPONSE in Opposition re 429 MOTION for Leave to supplement Moton to Exclude Proposed Testimony of EEOC Expert Dr. Burt Barnow by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 10/29/2009: # 1 Order, # 2 Ex A 8.27.09 ltr to Court, # 3 Ex 1 7.24.09 new documents, # 4 Ex 2 Smith application 7.24.09, # 5 Ex 3 Smith Application 11.8.07, # 6 Ex 4 Smith Application 7.07 transmittal, # 7 Ex 5 Barnow 11.07 depo excerpt, # 8 Ex 6 Barnow Rebuttal re Smith App, # 9 Ex 7 O'Bryan email re 9.4.08 documents, # 10 Ex 8 8.24.09 email re brief ext) (Chrisman, Jamie). (Entered: 10/07/2009)
435 RESPONSE in Opposition re 433 MOTION for Leave to File Surreply on EEOC's Moton to Exclude certain evidence improperly offered by Wal−Mart in support of summary judgment by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Chrisman, Jamie). (Entered: 10/07/2009)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 415 MOTION for Contempt Orders and enforcement of subpoenas issued ot Marie Jones, Bryan Elliott and Robin Rose by Wal−Mart Stores, Inc. (RBB) (Entered: 10/07/2009)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 418 MOTION for Leave to File Oversized Memorandum in Opposition to Wal−Mart's Mt for Summary Judgment by Equal Employment Opportunity Commission by Equal Employment Opportunity Commission (RBB) (Entered: 10/07/2009)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 422 MOTION for Leave to substitute exhibits by Equal Employment Opportunity Commission (RBB) (Entered: 10/07/2009)

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10/23/2009 10/26/2009 10/26/2009 10/26/2009 10/29/2009 11/02/2009 11/02/2009 11/09/2009 11/09/2009 11/10/2009 11/10/2009 11/10/2009 11/16/2009
11/16/2009
11/16/2009

436 MOTION to Amend the scheduling Order by Equal Employment Opportunity Commission (RBB) (Additional attachment(s) added on 10/29/2009: # 1 Order) (Chrisman, Jamie). (Entered: 10/23/2009)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 429 MOTION for Leave to file reply mememorandum in excess of 15 pages by Wal−Mart Stores, Inc. (RBB) (Entered: 10/26/2009)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 429 MOTION for Leave to Supplement Motion to Exclude Proposed Testimony of EEOC Expert Burt S. Barnow by Wal−Mart Stores, Inc., 433 MOTION for Leave to File Sur−Reply by Wal−Mart Stores, Inc. (RBB) (Entered: 10/26/2009)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 409 MOTION for Summary Judgment by Wal−Mart Stores, Inc. (RBB) (Entered: 10/26/2009)
437 RESPONSE to Motion re 436 MOTION to Amend/Correct by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc. (SYH) (Chrisman, Jamie). (Entered: 10/29/2009)
438 Exhibit List by Equal Employment Opportunity Commission.(RBB) (Chrisman, Jamie). (Entered: 11/02/2009)
439 Witness List by Equal Employment Opportunity Commission. (RBB) (Chrisman, Jamie). (Entered: 11/02/2009)
440 REPLY to Response to Motion re 436 MOTION to Amend/Correct Scheduling Order by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (RBB) (Chrisman, Jamie). (Entered: 11/09/2009)
***MOTION SUBMITTED TO CHAMBERS of Robert E. Wier for review: re 436 MOTION to Amend/Correct Scheduling Order by Equal Employment Opportunity Commission (RBB) (Entered: 11/09/2009)
**********************VOLUME 23 **************************. (RBB) (Entered: 11/10/2009)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 428 MOTION for Leave to File Reply Memorandum in excess of 15 pages by Wal−Mart Stores, Inc. (RBB) (Entered: 11/10/2009)
Motions No Longer Referred: 428 MOTION for Leave to File Reply Memorandum in excess of 15 pages by Wal−Mart Stores, Inc. (RBB) (Entered: 11/10/2009)
441 ORDER: 1) Wal−Mart's Motion to Leave to File Memorandum in Excess of 15 Pages (DE 391 ) is GRANTED and the Clerk of the Court is DIRECTED to file the tendered Reply Memorandum in the record; 2) Wal−Mart's Motion to Place Under Seal Exhibits 5 and 7 to its Motion for Summary Judgment (DE 410 ) is GRANTED and the Clerk of the Court is DIRECTED to file those exhibits under seal;3) The EEOC's Motion for Leave to File Oversized Memorandum in Opposition toWal−Marts Motion for Summary Judgment (DE 418 ) is GRANTED and the Clerkof the Court is DIRECTED to file the tendered memorandum in the record;4) The EEOC's Motion for Leave to Substitute Exhibits (DE 422 ) is GRANTED; and5) The EEOC's Motion for Leave to File its Reply Memorandum in Excess of 15 Pages (DE 428 ) is GRANTED and the Clerk of the Court is DIRECTED to file the tendered reply memorandum in the record. Signed by Judge Karen K. Caldwell on 11/16/2009. (Scanned by clerk as directed by Chambers.)(RBB)cc: COR (Entered: 11/16/2009)
442 REPLY to Response to Motion re 345 MOTION to Exclude the proposed testimony of EEOC Expert William T. Bielby by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 11/18/2009: # 1 Ex A Bielby Depo Excerpts, # 2 Ex B Seligman Article, # 3 Ex C Tuli v. Brigham MOO, # 4 Ex D Tuli v. Brigham Exclude Experts, # 5 Ex E Barnow Depo Excerpts) (Chrisman, Jamie). (Entered: 11/16/2009)
443 SEALED EXHIBITS # 5 AND 7 re: 409 Motion for Summary Judgment by Wal−Mart Stores, Inc. (Filed under seal pursuant to Order 441 .)(RBB) (Entered: 11/16/2009)

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11/16/2009 11/16/2009 11/16/2009 11/16/2009 11/16/2009 11/16/2009
11/17/2009
11/18/2009 11/19/2009 11/20/2009

444 RESPONSE (BRIEF) in Opposition re 409 MOTION for Summary Judgment by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. NOTE: Exhibits 1 − 140 are too voluminous to file and are filed in paper and maintained in the clerk's office. (RBB) (Additional attachment(s) added on 11/18/2009: # 1 SJ Brief pg54−83) (Chrisman, Jamie). (Entered: 11/16/2009)
445 REPLY to Response to Motion re 409 MOTION for Summary Judgment by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc..(Attachments to REPLY MEMORANDUM have not been scanned and are filed in paper in the clerk's office.) (RBB) Modified on 11/17/2009 (RBB). (Additional attachment(s) added on 11/18/2009: # 1 Reply Memo) (Chrisman, Jamie). (Entered: 11/16/2009)
446 ORDER: The Court DENIES DE 436 , the request to amend the scheduling order. Any party objecting to this Order should consult the statute and Rule 72(a) concerning its right of and the mechanics for reconsideration before the District Court. Motions terminated: 436 MOTION to Amend/Correct by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. Signed by Robert E. Wier on 11/16/2009.(SYH)cc: COR (Chrisman, Jamie). (Entered: 11/17/2009)
448 Exhibit List by Wal−Mart Stores, Inc.(SYH) (Additional attachment(s) added on 11/20/2009: # 1 Main Document pt 2, # 2 Main Document #3) (Chrisman, Jamie). (Entered: 11/17/2009)
449 Witness List by Wal−Mart Stores, Inc.(SYH) (Additional attachment(s) added on 11/20/2009: # 1 Depo Designations) (Chrisman, Jamie). (Entered: 11/17/2009)
450 ORDER: The Court hereby ORDERS that these motions: motions to exclude proposed testimony of the following designated experts: George A barrett 341 ; P. Richard Jeanneret 342 ; Nancye Combs 343 ; James Freeman 344 ; Burt S. Barnow 360 ; William T. Bielby 345 ; Kenneth R. Troskke 346 ; and Richard Martell 347 ; shall be heard in Lexington, Kentucky beginningTuesday, January 12, 2010 at 9:00 a.m. and ending no later than Friday, January 15, 2010 at 5:00 p.m. Each side is allotted a total of 12 hours to present their arguments, responses, and evidence as to all experts. The Court will not entertain motions for extension of this allotted time. The Court further HEREBY ORDERS that the trial of this matter shall begin March 1, 2010 at 9:00 a.m. in Lexington, Kentucky and not in London, Kentucky as indicated in prior orders. Counsel shall be present at 8:30 a.m., ( Motion Hearing set for 1/12/2010 09:00 AM in LEXINGTON before Judge Karen K. Caldwell.) Signed by Judge Karen K. Caldwell on 11/16/2009.(RBB)cc: COR; Court Diary; Lexington Jury Clerk; Modified on 11/18/2009 to add that cc: Lexington Jury Clerkand Court Diary. (RBB). (Entered: 11/17/2009)
447 ORDER RECOMMENDED CONTEMPT HEARING: The Court RECOMMENDS that the District Judge grant partial relief. The Court RECOMMENDS that the District Judge set a hearing on a date certain and require Bryan Elliot and Robin Rose to appear personally and explain the failure to abide by subpoena. The Court further orders that the Clerk of Court serve a copy of this Order to the involved witnesses at their last known addresses, by certified mail. Prior to issuance of a show cause order by the District Judge, either witness can contact the attorney for Defendant Wal−Mart and arrange to comply with the previous subpoena. re 415 MOTION for Order by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. Signed by Robert E. Wier on 11/17/2009.(SYH)cc: COR, Copy, via certified mail, as directed. (Additional attachment(s) added on 11/18/2009: # 1 Main Document) (Chrisman, Jamie). (Entered: 11/17/2009)
**********************VOLUME 24 **************************. (RBB) (Entered: 11/18/2009)
451 CERTIFIED MAIL RECEIPT to ROBIN ROSE re 447 Order. (RBB) (Entered: 11/19/2009)
452 ORDER: IT IS HEREBY ORDERED that Bryan Elliot and Robin Rose are hereby directed to appear in person on December 8, 2009 at 11:00 a.m. in London, Kentucky, to show cause why they should not be held in contempt of court. Failure to appear at the time and place so designated will result in a warrant for Elliots and Roses arrest. The Court directs the Clerk of the Court to serve a copy of this Order by certified mail upon the witnesses. ( Show Cause Hearing set for 12/8/2009 11:00 AM in

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11/23/2009
11/23/2009 11/24/2009 11/30/2009 12/01/2009 12/01/2009 12/07/2009 12/07/2009
12/08/2009
12/08/2009
12/08/2009

LONDON before Judge Karen K. Caldwell.) Signed by Judge Karen K. Caldwell on 11/20/2009.(SYH)cc: COR (Entered: 11/20/2009)
453 ORDER: The Court DENIES Wal−Mart's motion (DE # 379 ). The Court issues this Order resolving a non−dispositive pretrial matter under 28 U.S.C. § 636(b)(1)(A). Any party objecting to this Order should consult the statute and Federal Rule of Civil Procedure 72(a) concerning its right of and the mechanics for reconsideration before the District Court. Failure to object waives a party's right to review. Motions terminated: 379 MOTION for Order by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. Signed by Robert E. Wier on 11/23/2009. (RBB) cc: COR (Entered: 11/23/2009)
454 CERTIFIED MAIL RECEIPT to Bryan Elliot re 452 Order. (RBB) (Entered: 11/23/2009)
455 CERTIFIED MAIL RECEIPT to Robin Rose re 452 Order. (RBB) (Entered: 11/24/2009)
456 DEPOSITION COUNTER−DESIGNATIONS AND CORRECTIONS by Equal Employment Opportunity Commission (RBB) (Chrisman, Jamie). (Entered: 11/30/2009)
457 NOTICE of Appearance by Sadhna G. True on behalf of Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 12/01/2009)
458 SUPPLEMENTAL Exhibit List by Equal Employment Opportunity Commission. (RBB) (Chrisman, Jamie). (Entered: 12/01/2009)
459 Mail Returned as Undeliverable. Mail sent to Bryan Elliot re 447 Order Recommending Contempt Hearing (RBB) (Chrisman, Jamie). (Entered: 12/08/2009)
511 MINUTE ENTRY ORDER FOR SHOW CAUSE HEARING held on 12/7/2009. before Judge Karen K. Caldwell: This matter was called for hearing to determine whether non−party witnesses Bryan Elliott and Robin Rose should be held in contempt for failure to comply with subpoenas. Robin Rose was present, but Bryan Elliott was not present due to illness. Ms. Rose was placed under oath and questioned by the Court. Based upon the information provided, the Court will not find Ms. Rose in contempt of court. Ms. Rose shall have until January 1, 2010, to continue making her best reasonable efforts to locate the document requested by Wal−Mart. Should Ms. Rose locate the document she is to promptly notify the Clerk of the Court. (Court Reporter Rhonda Sansom.) Signed by Karen K. Caldwell. (RBB)cc: COR (Additional attachment(s) added on 12/18/2009: # 1 Main Document) (Chrisman, Jamie). (Entered: 12/10/2009)
460 MOTION in Limine and OBJECTIONS to portions of Wal−Mart's expert evidence and moving the Court in limine for a ruling precluding Wal−Mart's use of certain proposed expert testimony and exhibits to comport w/ previous Court rulings and direction concerning the permissible scope of the opinions of Wal−Mart experts Mr. Freeman and Ms. Combs, by Equal Employment Opportunity Commission (RBB) (Additional attachment(s) added on 12/14/2009: # 1 Order) (Chrisman, Jamie). (Entered: 12/08/2009)
461 MEMORANDUM in Support of Motion re 460 MOTION in Limine and OBJECTIONS to portions of Wal−Mart's Expert Evidence by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (RBB) Modified on 12/9/2009 to state: Voluminous exhibits filed in Separate Volume − Exhibits placed in redwell and clearly marked w/ case and docket number and maintained in paper in the Clerk's Office.) (RBB). (Chrisman, Jamie). (Entered: 12/08/2009)
462 MOTION for Leave to file Wal−Mart Exhibit 121 and 122 Unredacted and Under Seal with the EEOC's Motion in Limine and Objections to Certain Portions of Expert Evidence by Equal Employment Opportunity Commission. (EXHIBITS 121 AND 122 consisting of 2 large white boxes and 1 smaller white box, with each box being clearly marked, are MAINTAINED IN PAPER as a SEALED DOCUMENT IN THE CLERK'S OFFICE pending ruling on this motion.) (RBB) (Additional attachment(s) added on 12/14/2009: # 1 Order) (Chrisman, Jamie). (Entered: 12/08/2009)

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463 MOTION in Limine to Exclude Certain Wal−Mart Witnesses Exhibits and Evidence not Properly disclosed to EEOC and/or Contrary to the Federal or Local rules by Equal Employment Opportunity Commission (RBB) (Additional attachment(s) added on 12/14/2009: # 1 Order) (Chrisman, Jamie). (Entered: 12/08/2009)
464 MEMORANDUM IN SUPPORT of 463 MOTION in Limine to Exclude Certain Wal−Mart Witnesses Exhibits and Evidence not Properly disclosed to EEOC and/or Contrary to the Federal or Local rules filed by Equal Employment Opportunity Commission. (RBB) Modified on 12/9/2009 to state: Voluminous exhibits filed in Separate Volume − Exhibits placed in redwell and clearly marked w/ case and docket number and maintained in paper in the Clerk's Office.) (RBB). (Chrisman, Jamie). (Entered: 12/08/2009)
465 MOTION in Limine and OJBECTIONS to Wal−Mart's Trial Witness and Exhibits That Do Not Commport with the Federal Rules of Evidence by Equal Employment Opportunity Commission (RBB) (Chrisman, Jamie). (Entered: 12/08/2009)
466 MEMORANDUM in Support of Motion re 465 MOTION in Limine and OJBECTIONS to Wal−Mart's Trial Witness and Exhibits That Do Not Commport with the Federal Rules of Evidence by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (Voluminous exhibits filed in Separate Volume − Exhibits placed in large brown box and clearly marked w/ case and docket number and maintained in paper in the Clerk's Office.) (RBB) Modified on 12/9/2009 (RBB). (Additional attachment(s) added on 12/14/2009: # 1 Order) (Chrisman, Jamie). (Entered: 12/08/2009)
467 CORRECTED Witness List RE: 449 Witness List by Wal−Mart Stores, Inc.(RBB) Modified on 12/9/2009 to correct filing date. (RBB). (Chrisman, Jamie). (Entered: 12/09/2009)
468 OBJECTIONS to DESIGNATION OF CONNIE HELTON AS A POTENTIAL WITNESS AT TRIAL filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/14/2009: # 1 Ex 1 Pla Ans to 1st RFP Inte, # 2 Ex 2 Pla Resp to 12th Int RFP.pdf, # 3 Order) (Chrisman, Jamie). (Entered: 12/09/2009)
469 OBJECTIONS to 438 Plf's EXHIBIT 132 − BARNOW'S REBUTTAL REPORT filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/14/2009: # 1 Order, # 2 Ex 1 Barnow 3.20.09 Report pt. 1, # 3 Ex 1 Barnow 3.20.09 Report pt. 2, # 4 Ex 1 Barnow 3.20.09 Report pt. 3) (Chrisman, Jamie). (Entered: 12/09/2009)
470 OBJECTIONS to Depositon of Annette Cobb filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/14/2009: # 1 Annette Cobb Video Depo Excerpts) (Chrisman, Jamie). (Entered: 12/09/2009)
471 OBJECTIONS to DEPOSITION OF ANDY GLOVER filed by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Additional attachment(s) added on 2/16/2010: # 1 Depo Excerpts) (Chrisman, Jamie). (Entered: 12/09/2009)
472 OBJECTIONS to Deposition of CHARLES KARR filed by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 12/09/2009)
473 OBJECTIONS to Deposition of John Dargoo filed by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 12/09/2009)
474 OBJECTIONS to DEPOSITION OF DORTHY HARSHMAN filed by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). Modified on 2/2/2010 to correct spelling of last name of Harshman. (RBB). (Entered: 12/09/2009)
475 OBJECTIONS to DEPOSITION OF MARIE JONES JACKSON filed by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Additional attachment(s) added on 12/16/2009: # 1 Jones−Jackson Depo Excerpts) (Chrisman, Jamie). (Additional attachment(s) added on 2/16/2010: # 2 Main Document, # 3 Jones−Jackson Depo Excerpts) (RBB). Modified on 2/16/2010 to add pdf attachments. (RBB). (Entered: 12/09/2009)
476 OBJECTIONS to DEPOSITION OF KIM BEBOUT filed by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 12/09/2009)

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477 OBJECTIONS to DEPOSITION OF MARIE MALICOAT−HOWE filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/16/2009: # 1 Malicoat−Howe Depo Excerpts) (Chrisman, Jamie). (Entered: 12/09/2009)
478 OBJECTIONS to DEPOSITION OF EUGENE RILEY filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/16/2009: # 1 Depo Excerpts Eugene Riley) (Chrisman, Jamie). (Entered: 12/09/2009)
479 OBJECTIONS to DEPOSITION OF TOM VAN JURA filed by Wal−Mart Stores, Inc. (RBB) Modified on 12/9/2009 to correct typo. (RBB). (Additional attachment(s) added on 12/16/2009: # 1 Van Jura Depo Excerpts) (Chrisman, Jamie). (Entered: 12/09/2009)
480 OBJECTIONS to DEPOSITION OF TERESA BOTKINS filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/16/2009: # 1 Botkins Depo Excerpts) (Chrisman, Jamie). (Entered: 12/09/2009)
481 MOTION in Limine to Exclude Evidence and/or Arguments that Attempt to Improperly Place the Burden of Proof Upon Wal−Mart by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 12/09/2009)
482 MEMORANDUM in Support of Motion re 481 MOTION in Limine to Exclude Evidence and/or Arguments that Attempt to Improperly Place the Burden of Proof Upon Wal−Mart by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/16/2009: # 1 Ex 1 Gulock Depo Excerpts, # 2 Ex 2 Bielby Report Excerpts 3.1.07, # 3 Ex 3 Bielby Depo Excerpts, # 4 Order) (Chrisman, Jamie). (Entered: 12/09/2009)
483 MOTION in Limine to Exclude Evidence and/or Argument of Alleged Discrimination Outside the Relevant Time Period by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 12/09/2009)
484 MEMORANDUM in Support of Motion re 483 MOTION in Limine to Exclude Evidence and/or Argument of Alleged Discrimination Outside the Relevant Time Period by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/16/2009: # 1 Ex 1 Def Answer to 1st Interrog RFP, # 2 Ex 2 Opposition Mtn for SJ pt 1, # 3 Ex 2 Opposition Mtn for SJ pt 2, # 4 Ex 2 Opposition Mtn for SJ pt 3, # 5 Ex 3 Janice Smith Statement, # 6 Ex 4 Def Answers to 3d Interrog) (Chrisman, Jamie). (Entered: 12/09/2009)
485 MOTION in Limine to Ecxlude Evidence of Defendant's Financial Condition by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 12/09/2009)
486 MEMORANDUM in Support of Motion re 485 MOTION in Limine to Exclude Evidence of Defendant's Financial Condition by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/17/2009: # 1 Order) (Chrisman, Jamie). (Entered: 12/09/2009)
487 MOTION in Limine to Exclude Evidence of Alleged Discovery Disputes by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 12/09/2009)
488 MEMORANDUM in Support of Motion re 487 MOTION in Limine to Exclude Evidence of Alleged Discovery Disputes by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/17/2009: # 1 Order) (Chrisman, Jamie). (Entered: 12/09/2009)
489 MOTION in Limine to Exclude Testimony Constituting Legal Conclusions by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 12/09/2009)
490 MEMORANDUM in Support of Motion re 489 MOTION in Limine to Exclude Testimony Constituting Legal Conclusions by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/17/2009: # 1 Order, # 2 Ex 1 Martell Expert Rebuttal Report excerpts, # 3 Ex. 2) (Chrisman, Jamie). (Entered: 12/09/2009)
491 MOTION in Limine to Exclude Evidence of Other Litigation Involving or Against Defendant by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/17/2009: # 1 Order) (Chrisman, Jamie). (Entered: 12/09/2009)

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492 MEMORANDUM in Support of Motion re 491 MOTION in Limine to Exclude Evidence of Other Litigation Involving or Against Defendant by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/17/2009: # 1 Reeves Depo Excerpts) (Chrisman, Jamie). (Entered: 12/09/2009)
493 MOTION in Limine to Exclude Evidence and/or Agrument Regarding Distribution Centers Other Than DC 6097 by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/17/2009: # 1 Order) (Chrisman, Jamie). (Entered: 12/09/2009)
494 MEMORANDUM in Support of Motion re 493 MOTION in Limine to Exclude Evidence and/or Agrument Regarding Distribution Centers Other Than DC 6097 by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/17/2009: # 1 Ex 1 Earls Depo Excerpt, # 2 Ex 2 Van Jura Depo Excerpts, # 3 Ex 3 Jones−Jackson Depo Excerpts, # 4 Ex 4 Def Resp to 7th RFP) (Chrisman, Jamie). (Entered: 12/09/2009)
495 MOTION in Limine to Exclude Evidence of Discrimination by Non−Decision Makers, Non−Employees, and Managers Not Involved in the Decision Making Process by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/18/2009: # 1 Order) (Chrisman, Jamie). (Entered: 12/09/2009)
496 MEMORANDUM in Support of Motion re 495 MOTION in Limine to Exclude Evidence of Discrimination by Non−Decision Makers, Non−Employees, and Managers Not Involved in the Decision Making Process by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/18/2009: # 1 Ex 1 Various Depo Excerpts, # 2 Ex 2 Janice Smith Statement, # 3 Ex 3 Jimmy Lewis Depo Excerpts) (Chrisman, Jamie). (Entered: 12/09/2009)
497 MOTION in Limine to Exclude Portions of the Testimony of EEOC Expert Dr. William Bielby by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/18/2009: # 1 Order) (Chrisman, Jamie). (Entered: 12/09/2009)
498 MEMORANDUM in Support of Motion re 497 MOTION in Limine to Exclude Portions of the Testimony of EEOC Expert Dr. William Bielby by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/18/2009: # 1 Bielby Depo Excerpts) (Chrisman, Jamie). (Entered: 12/09/2009)
499 MOTION in Limine to Exclude Proof Regarding Prescreened Female Job Applicants by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/18/2009: # 1 Order) (Chrisman, Jamie). (Entered: 12/09/2009)
500 MEMORANDUM in Support of Motion re 499 MOTION in Limine to Exclude Proof Regarding Prescreened Female Job Applicants by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/18/2009: # 1 Ex 1 Hiring Hourly Associates Policies, # 2 Ex 2 Hiring Hourly Associates 3.1999, # 3 Ex 3 Barnow Report Excerpts) (Chrisman, Jamie). (Entered: 12/09/2009)
501 MOTION in Limine to Exclude Evidence of Janice Smith's Prior Transfer Applications by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/18/2009: # 1 Order) (Chrisman, Jamie). (Entered: 12/09/2009)
502 MEMORANDUM in Support of Motion re 501 MOTION in Limine to Exclude Evidence of Janice Smith's Prior Transfer Applications by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/18/2009: # 1 Ex 1 Lee Holland Depo Pg, # 2 Ex 2 Charge of Discrimination, # 3 Ex 3 Janice Smith Depo Excerpts) (Chrisman, Jamie). (Entered: 12/09/2009)
503 MOTION in Limine to exclude Evidence of Allegations Regarding Sexual Harassment by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/18/2009: # 1 Order) (Chrisman, Jamie). (Entered: 12/09/2009)
504 MEMORANDUM in Support of Motion re 503 MOTION in Limine to exclude Evidence of Allegations Regarding Sexual Harassment by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/18/2009: # 1 Ex 1 Opposition Mtn for SJ pt 1, # 2 Ex 1 pt 2 Opposition Mtn for SJ, # 3 Ex 1 pt 3 Opposition Mtn for SJ, # 4 Ex 2 Robin Rose Depo Excerpts, # 5 Ex 3 Brenda Overbey Depo Excerpt, # 6 Ex 4 Kassandra Hammons Depo Excerpt) (Chrisman, Jamie).

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(Entered: 12/09/2009)
505 MOTION in Limine to Exclude Evidence Regarding External Applicants and Regarding Applicants for Jobs Other Than Order Filler by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/18/2009: # 1 Order) (Chrisman, Jamie). (Entered: 12/09/2009)
506 MEMORANDUM in Support of Motion re 505 MOTION in Limine to Exclude Evidence Regarding External Applicants and Regarding Applicants for Jobs Other Than Order Filler by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/18/2009: # 1 Ex 1 Charge of Discrimination, # 2 Ex 2 EEOC Determination, # 3 Ex 3 Associate Transfer, # 4 Ex 4 Smith Transfer Request) (Chrisman, Jamie). (Entered: 12/09/2009)
507 MOTION in Limine to Exclude Evidence of Two Databases Created by Wal−Mart's Counsel by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/18/2009: # 1 Ex 1 James Freeman Depo Excerpts, # 2 Ex 2 Def 10th Supp Response to 6th RFP, # 3 Ex 3 Burt Barnow Report 3.20.09 pt 1, # 4 Ex 3 Burt Barnow Report 3.20.09 pt 2 23−24, # 5 Ex 3 Burt Barnow Report 3.20.09 pt 2, # 6 Ex 3 Burt Barnow Report 3.20.09 pt 3, # 7 Ex 4 Database, # 8 Ex 5 Database #2) (Chrisman, Jamie). (Entered: 12/09/2009)
508 MEMORANDUM in Support of Motion re 507 MOTION in Limine to Exclude Evidence of Two Databases Created by Wal−Mart's Counsel by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/18/2009: # 1 Ex 1 James Freeman Depo Excerpts, # 2 Ex 2 Def 10th Supp Response to 6th RFP, # 3 Ex 3 Burt Barnow Report 3.20.09 pt 1, # 4 Ex 3 Burt Barnow Report 3.20.09 pt 2 23−24, # 5 Ex 3 Burt Barnow Report 3.20.09 pt 2, # 6 Ex 3 Burt Barnow Report 3.20.09 pt 3, # 7 Ex 4 Database, # 8 Ex 5 Database #2) (Chrisman, Jamie). (Entered: 12/09/2009)
509 MOTION for Order allowing jurors to visit and view the warehouse of Distribution Center 6097 and observe firsthand orderfillers at work by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/18/2009: # 1 Order) (Chrisman, Jamie). (Entered: 12/09/2009)
510 MEMORANDUM in Support of Motion re 509 MOTION for Order allowing jurors to visit and view the warehouse of Distribution Center 6097 and observe firsthand orderfillers at work by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/18/2009: # 1 Ex 1 William Bielby Depo Excerpts, # 2 Ex 2 Burt Barnow 3.1.07 Report p. 8, # 3 Ex 3 Order Filler Analysis Excerpts, # 4 Ex 4 William Carney Depo Excerpt, # 5 Ex 5 Lisa Wilson Depo Excerpts, # 6 Ex 6 Christopher Collins Depo Excerpt, # 7 Ex 7 Jamey Brewer Depo Excerpt) (Chrisman, Jamie). (Entered: 12/09/2009)
512 MOTION in Limine to exclude Evidence and/or argument regarding subsequent remedial measures by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/18/2009: # 1 Order) (Chrisman, Jamie). (Entered: 12/10/2009)
513 MEMORANDUM in Support of Motion re 512 MOTION in Limine to exclude Evidence and/or argument regarding subsequent remedial measures by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/18/2009: # 1 Ex 1 Def Ans to 3d Set Interrog, # 2 Ex 2 William Bielby Report Excerpts, # 3 Ex 3 William Bielby Depo Excerpt, # 4 Ex 4 Jeff Akers Depo Excerpts) (Chrisman, Jamie). (Entered: 12/10/2009)
**********************VOLUME 25 **************************. (RBB) (Entered: 12/16/2009)
514 MOTION w/ attached Memorandum for protective Order to relieve Wal−Mart from being required to answer 365 requests for admission served 11/12/2009 and 65 requests for admission served 12/11/2009 by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/22/2009: # 1 Order, # 2 Ex 1 Pla RFP pt 1, # 3 Ex 1 Pla RFP pt 2, # 4 Ex 2 Pla 2d RFA, # 5 Ex 3 12.4.09 ltr re RFA, # 6 Ex 4 12.7.09 ltr re RFA withdrawal) (Chrisman, Jamie). (Entered: 12/16/2009)

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515 MOTION to Change Venue of trial from Lexington to London by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 12/22/2009: # 1 Order) (Chrisman, Jamie). (Entered: 12/16/2009)
516 MOTION to Strike Wal−Mart's Corrected Witness List 467 by Equal Employment Opportunity Commission (JMB) (Additional attachment(s) added on 12/22/2009: # 1 Order) (Chrisman, Jamie). (Entered: 12/17/2009)
517 RESPONSE to Motion re 515 MOTION to Change Venue by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (JMB) (Additional attachment(s) added on 12/22/2009: # 1 Order) (Chrisman, Jamie). (Entered: 12/18/2009)
518 ORDER: Parties have informally requested a conference with the undersigned related to the Daubert proceedings scheduled before Judge Caldwell. Because those hearings are before the District Judge, the parties should direct any request for guidance to Judge Caldwell. Signed by Robert E. Wier on 12/22/2009.(RC)cc: COR (Entered: 12/22/2009)
519 MOTION to Strike EEOC's 458 Supplemental Exhibit List and 456 Deposition Counter−Designations by Wal−Mart Stores, Inc. (RC) (Additional attachment(s) added on 1/8/2010: # 1 11.9.09 ltr re Pla Ex List, # 2 11.12.09 ltr re exhibit list, # 3 Pla Supp Exhibit List, # 4 Pla Depo Counter−Designations, # 5 Pla 10th Int to Def, # 6 Def Ans to Pla 10th Int) (Chrisman, Jamie). (Entered: 12/22/2009)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 509 MOTION for Order by Wal−Mart Stores, Inc., 495 MOTION in Limine by Wal−Mart Stores, Inc., 493 MOTION in Limine by Wal−Mart Stores, Inc., 501 MOTION in Limine by Wal−Mart Stores, Inc., 465 MOTION in Limine by Equal Employment Opportunity Commission, 415 MOTION for Order by Wal−Mart Stores, Inc., 421 MOTION for Sanctions by Equal Employment Opportunity Commission, 358 MOTION for Extension of Time to File by Wal−Mart Stores, Inc., 344 MOTION to Exclude by Equal Employment Opportunity Commission, 512 MOTION in Limine by Wal−Mart Stores, Inc., 503 MOTION in Limine by Wal−Mart Stores, Inc., 481 MOTION in Limine by Wal−Mart Stores, Inc., 341 MOTION to Exclude by Equal Employment Opportunity Commission, 489 MOTION in Limine by Wal−Mart Stores, Inc., 356 MOTION for Order by Wal−Mart Stores, Inc., 462 MOTION for Leave by Equal Employment Opportunity Commission, 505 MOTION in Limine by Wal−Mart Stores, Inc., 499 MOTION in Limine by Wal−Mart Stores, Inc., 497 MOTION in Limine by Wal−Mart Stores, Inc., 347 MOTION to Exclude by Wal−Mart Stores, Inc., 491 MOTION in Limine by Wal−Mart Stores, Inc., 360 MOTION to Exclude by Wal−Mart Stores, Inc., 409 MOTION for Summary Judgment by Wal−Mart Stores, Inc., 485 MOTION in Limine by Wal−Mart Stores, Inc., 420 MOTION to Exclude by Equal Employment Opportunity Commission, 343 MOTION to Exclude by Equal Employment Opportunity Commission, 460 MOTION in Limine by Equal Employment Opportunity Commission, 429 MOTION for Leave by Wal−Mart Stores, Inc., 507 MOTION in Limine by Wal−Mart Stores, Inc., 433 MOTION for Leave to File by Wal−Mart Stores, Inc., 406 MOTION for Leave to File by Equal Employment Opportunity Commission, 372 MOTION to Strike by Wal−Mart Stores, Inc., 342 MOTION to Exclude by Equal Employment Opportunity Commission, 487 MOTION in Limine by Wal−Mart Stores, Inc., 483 MOTION in Limine by Wal−Mart Stores, Inc., 346 MOTION to Exclude by Wal−Mart Stores, Inc., 463 MOTION in Limine by Equal Employment Opportunity Commission, 345 MOTION to Exclude by Wal−Mart Stores, Inc. (RBB) (Entered: 01/04/2010)
520 RESPONSE in Opposition re 514 MOTION for protective Order to relieve Wal−Mart from being required to answer 365 requests for admission served 11/12/2009 and 65 requests for admission served 12/11/2009 by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/8/2010: # 1 12.4.09 ltr re RFA, # 2 12.7.09 ltr re RFA) (Chrisman, Jamie). (Entered: 01/04/2010)
521 REPLY to Response to Motion re 515 MOTION to Change Venue from Lexington to London by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc.. (RBB) (Chrisman, Jamie). (Entered: 01/04/2010)

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522 ORDER: The pretrial conference in this matter will be heard in LEXINGTON, KY on February 4, 2010 at 10:00 a.m. (FINAL PRETRIAL CONFERENCE set for 2/4/2010 @ 10:00 AM in LEXINGTON before Judge Karen K. Caldwell.) (Document scanned for immediate distribution to parties per Chamber's instructions.) Signed by Judge Karen K. Caldwell on 1/4/2010.(RBB) cc: COR, Lexington Court Diary (Entered: 01/04/2010)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 515 MOTION to Change Venue by Wal−Mart Stores, Inc. (RBB) (Entered: 01/05/2010)
Motions No Longer Referred: 358 MOTION for Extension of Time to File by Wal−Mart Stores, Inc., 433 MOTION for Leave to File by Wal−Mart Stores, Inc., 406 MOTION for Leave to File by Equal Employment Opportunity Commission, 405 MOTION for Leave to File by Wal−Mart Stores, Inc., 462 MOTION for Leave by Equal Employment Opportunity Commission (RBB) (Entered: 01/05/2010)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 358 MOTION for Extension of Time to File by Wal−Mart Stores, Inc., 433 MOTION for Leave to File by Wal−Mart Stores, Inc., 406 MOTION for Leave to File by Equal Employment Opportunity Commission, 405 MOTION for Leave to File by Wal−Mart Stores, Inc., 462 MOTION for Leave by Equal Employment Opportunity Commission (RBB) (Entered: 01/05/2010)
**********************VOLUME 26 **************************. (RBB) (Entered: 01/11/2010)
523 OPINION & ORDER: 1) Wal−Mart's Motion to Extend Due Date to File Daubert Motion Directed to EEOC Expert Burt S. Barnow (DE 358 ) is DENIED; 2) Wal−Mart's Motion to Strike Portions of Barnow's Rebuttal Report (DE 372 ) and Motion for 25 Class Member Depositions (DE 356 ) SHALL BE HEARD during the four days of Daubert hearings set to begin January 12, 2010 at 9:00 a.m.; 3) Wal−Mart's Motion for Leave to File Memorandum in Excess of 15 Pages (DE 405 ) is GRANTED and the Clerk of the Court is DIRECTED to file the tendered reply memorandum into the record; 4) Wal−Mart's Motion for Leave to Supplement Motion to Exclude Barnow (DE 429 ) and the EEOC's Motion for Leave to File Surreply to Defendant's Reply in Support of Motion to Strike Barnow's Rebuttal (DE 406 ) are DENIED; and 5) the EEOC's Motion for Sanctions (DE 421 ) is DENIED. Motions terminated: 421 MOTION for Sanctions by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission, 358 MOTION for Extension of Time to File by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc., 429 MOTION for Leave by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc., 406 MOTION for Leave to File by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission, 405 MOTION for Leave to File by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (Motion Hearing set for 1/12/2010 @ 09:00 AM in LEXINGTON before Judge Karen K. Caldwell.) Signed by Judge Karen K. Caldwell on 1/8/2010.(RBB)cc: COR Modified on 1/8/2010 to state (Document scanned for immediate distribution to parties per Chamber's instructions.) (RBB). (Entered: 01/08/2010)
524 REPLY to Response to Motion re 360 MOTION to Exclude by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc.. (Attachments: # 1 Exhibit A Cited pages from Barnow's deposition, # 2 Exhibit B − Cited pages from James W. Freeman's deposition) (Filed pursuant to Order 523 )(RBB) Modified on 1/19/2010 to state: Exhibits Filed in Sep. Vol. (RBB). (Entered: 01/08/2010)
525 RESPONSE to 468 OBJECTION to plf's designation of Connie Helton as a potential witness at trial filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/11/2010: # 1 Def Ans to 5th Set Interrog) (Chrisman, Jamie). (Entered: 01/08/2010)
526 RESPONSE to 469 OBJECTIONS to to Plf's EXHIBIT 132 − BARNOW'S REBUTTAL REPORT filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/11/2010: # 1 Order) (Chrisman, Jamie). (Entered: 01/08/2010)

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01/08/2010 01/08/2010 01/08/2010 01/08/2010 01/08/2010 01/08/2010 01/08/2010 01/08/2010 01/08/2010 01/08/2010 01/08/2010 01/08/2010
01/08/2010
01/08/2010

527 RESPONSE to 470 OBJECTIONS to Depositon of Annette Cobb filed by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/11/2010: # 1 Order) (Chrisman, Jamie). (Entered: 01/08/2010)
528 RESPONSE to 471 OBJECTIONS to DEPOSITION OF ANDY GLOVER by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/11/2010: # 1 Order) (Chrisman, Jamie). (Entered: 01/08/2010)
529 RESPONSE to 472 OBJECTIONS to Deposition of CHARLES KARR by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/12/2010: # 1 Order) (Chrisman, Jamie). (Entered: 01/08/2010)
530 RESPONSE to 473 OBJECTIONS to deposition of John Dragoo filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/12/2010: # 1 Order) (Chrisman, Jamie). (Entered: 01/08/2010)
531 RESPONSE to 474 OBJECTIONS to DEPOSITION OF DORTHY HARSMAN filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/12/2010: # 1 Order) (Chrisman, Jamie). (Entered: 01/08/2010)
532 RESPONSE to 475 OBJECTIONS to DEPOSITION OF MARIE JONES JACKSON filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/12/2010: # 1 Order) (Chrisman, Jamie). (Entered: 01/08/2010)
533 RESPONSE to 476 OBJECTIONS to DEPOSITION OF KIM BEBOUT filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/12/2010: # 1 Order) (Chrisman, Jamie). (Entered: 01/08/2010)
534 RESPONSE to 477 OBJECTIONS to DEPOSITION OF MARIE MALICOAT−HOWE filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/12/2010: # 1 Order) (Chrisman, Jamie). (Entered: 01/08/2010)
535 RESPONSE to 478 OBJECTIONS to DEPOSITION OF EUGENE RILEY filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/12/2010: # 1 Order) (Chrisman, Jamie). (Entered: 01/08/2010)
536 RESPONSE to 479 OBJECTIONS to DEPOSITION OF TOM VAN JURA filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/12/2010: # 1 Order) (Chrisman, Jamie). (Entered: 01/08/2010)
537 RESPONSE to 480 OBJECTIONS to DEPOSITION OF TERESA BOTKINS filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/12/2010: # 1 Order) (Chrisman, Jamie). (Entered: 01/08/2010)
538 RESPONSE to Motion re 481 MOTION in Limine to Exclude Evidence and/or Arguments that Attempt to Improperly Place the Burden of Proof Upon Wal−Mart by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/12/2010: # 1 Bielby Reports, # 2 Order) (Chrisman, Jamie). Modified on 1/19/2010 to state: Exhibits Filed in Sep. Vol.(RBB). (Entered: 01/08/2010)
539 RESPONSE to Motion re 485 MOTION in Limine to Ecxlude Evidence of Defendant's Financial Condition by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/12/2010: # 1 Depo Excerpts of Nancye Combs, # 2 Order) (Chrisman, Jamie). (Entered: 01/08/2010)
540 RESPONSE to Motion re 483 MOTION in Limine to Exclude Evidence and/or Argument of Alleged Discrimination Outside the Relevant Time Period by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/12/2010: # 1 Janice Smith Charge of Discrimination, # 2 Order) (Chrisman, Jamie). (Entered: 01/08/2010)

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01/08/2010 01/08/2010 01/08/2010 01/08/2010 01/08/2010
01/08/2010 01/08/2010 01/08/2010 01/08/2010
01/08/2010

541 RESPONSE to Motion re 487 MOTION in Limine to Exclude Evidence of Alleged Discovery Disputes by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/12/2010: # 1 Order) (Chrisman, Jamie). (Entered: 01/08/2010)
542 RESPONSE to Motion re 489 MOTION in Limine to Exclude Testimony Constituting Legal Conclusions by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/12/2010: # 1 Order) (Chrisman, Jamie). (Entered: 01/08/2010)
543 RESPONSE to Motion re 491 MOTION in Limine to Exclude Evidence of Pending or Past Litigation Involving or Against Defendant by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/12/2010: # 1 Order) (Chrisman, Jamie). (Entered: 01/08/2010)
544 RESPONSE to Motion re 493 MOTION in Limine to Exclude Evidence and/or Agrument Regarding Distribution Centers Other Than DC 6097 by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/12/2010: # 1 Depo Excerpts of Marie Jones−Jackson, # 2 Depo Excerpt Tom Van Jura, # 3 Order) (Chrisman, Jamie). Modified on 1/19/2010 to state: Exhibits Filed in Sep. Vol.(RBB). (Entered: 01/08/2010)
545 RESPONSE to Motion re 495 MOTION in Limine to Exclude Evidence of Discrimination by Non−Decision Makers, Non−Employees, and Managers Not Involved in the Decision Making Process by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/14/2010: # 1 Order, # 2 Various Depo Excerpts #1, # 3 Various Depo Excerpts #2) (Chrisman, Jamie). Modified on 1/19/2010 to state: Exhibits Filed in Sep. Vol.(RBB). (Entered: 01/08/2010)
546 RESPONSE to Motion re 497 MOTION in Limine to Exclude Portions of the Testimony of EEOC Expert Dr. William Bielby by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/14/2010: # 1 Bielby Depo Excerpt, # 2 Order) (Chrisman, Jamie). (Entered: 01/08/2010)
547 RESPONSE to Motion re 499 MOTION in Limine to Exclude Proof Regarding Prescreened Female Job Applicants by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/14/2010: # 1 Glover Depo Excerpts, # 2 Order) (Chrisman, Jamie). (Entered: 01/08/2010)
548 RESPONSE to Motion re 501 MOTION in Limine to Exclude Evidence of Janice Smith's Prior Transfer Applications by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/14/2010: # 1 Janice Smith Charge of Discrimination, # 2 Smith Depo Excerpt, # 3 Janice Smith 3d Interview Comments, # 4 Order) (Chrisman, Jamie). (Entered: 01/08/2010)
549 RESPONSE to Motion re 503 MOTION in Limine to exclude Evidence of Allegations Regarding Sexual Harassment by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/14/2010: # 1 Robin Rose Depo Excerpts, # 2 Rebecca Forbes Depo Excerpt, # 3 Melinda Branum Depo Excerpts, # 4 Kassandra Hammons Depo Excerpts, # 5 Order) (Chrisman, Jamie). Modified on 1/19/2010 to state: Exhibits Filed in Sep. Vol.(RBB). (Entered: 01/08/2010)
550 RESPONSE to Motion re 505 MOTION in Limine to Exclude Evidence Regarding External Applicants and Regarding Applicants for Jobs Other Than Order Filler by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/15/2010: # 1 Janice Smith Charge of Discrimination, # 2 Janice Smith Depo Excerpt, # 3 Janice Smith 3d Interview Comment, # 4 Janice Smith Notice of Discrimination, # 5 Janice Smith EEOC Determination, # 6 Janice Smith Conciliation Agm, # 7 12.18.00 Ltr to EEOC from Wmart re Concilitating, # 8 Giles Gulock Depo Excerpts Combs Expert Report, # 9 Order) (Chrisman, Jamie). Modified on 1/19/2010 to state: Exhibits Filed in Sep. Vol.( RBB). (Entered: 01/08/2010)

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01/08/2010 01/09/2010

551 RESPONSE to Motion re 507 MOTION in Limine to Exclude Evidence of Two Databases Created by Wal−Mart's Counsel by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/15/2010: # 1 Barnow Supp Report 4.30.09, # 2 Barnow Supp Report 4.30.09, # 3 James Freeman Depo Excerpts, # 4 Wmart Database numbers, # 5 Freeman Databases Statistical Report, # 6 Order) (Chrisman, Jamie). Modified on 1/19/2010 to state: Exhibits Filed in Sep. Vol.(RBB). (Entered: 01/08/2010)
552 RESPONSE in Opposition re 509 MOTION for Order for jury view of Distribution Center 6097 by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/15/2010: # 1 Deposition Excerpts, # 2 Order) (Chrisman, Jamie). Modified on 1/19/2010 to state: Exhibits Filed in Sep. Vol. (RBB). (Entered: 01/08/2010)
553 RESPONSE to Motion re 512 MOTION in Limine to exclude Evidence and/or argument regarding subsequent remedial measures by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/15/2010: # 1 Expert Reports of Bielby, Combs, Martell, # 2 Order) (Chrisman, Jamie). Modified on 1/19/2010 to state: Exhibits Filed in Sep. Vol.(RBB). (Entered: 01/08/2010)
554 RESPONSE to Motion re 516 MOTION to Strike 467 Corrected Witness List by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc.. (RBB) (Additional attachment(s) added on 1/19/2010: # 1 Def Corrected Witness List, # 2 12.15.09 ltr, # 3 12.16.09 ltr re ID of David Smith) (Chrisman, Jamie). Modified on 1/19/2010 to state: Exhibits Filed in Sep. Vol. (RBB). (Entered: 01/08/2010)
555 RESPONSE to Motion re 460 MOTION in Limine and OBJECTIONS to portions of Wal−Mart's expert evidence and moving the Court in limine for a ruling precluding Wal−Mart's use of certain proposed expert testimony and exhibits to comport w/ previous Court rulings and dire ction concerning the permissible scope of the opinions of Wal−Mart experts Mr. Freeman and Ms. Combs, by Equal Employment Opportunity Commission by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc.. (RBB) (Additional attachment(s) added on 1/19/2010: # 1 James Freeman Supp Report 11.17.08, # 2 James Freeman Depo Excerpt, # 3 Nancye Combs Expert Report) (Chrisman, Jamie). Modified on 1/19/2010 to state: Exhibits Filed in Sep. Vol.(RBB). (Entered: 01/08/2010)
556 RESPONSE to Motion re 465 MOTION in Limine and OJBECTIONS to Wal−Mart's Trial Witness and Exhibits That Allegedly Do Not Commport with the Federal Rules of Evidence by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc.. (RBB) Modified on 1/19/2010 to state: Exhibits Filed in Sep. Vol.(RBB). (Additional attachment(s) added on 1/20/2010: # 1 Bonnie Patterson documents, # 2 Ruby Hansford documents) (Chrisman, Jamie). (Additional attachment(s) added on 1/20/2010: # 3 Tanya Belt Depo Excerpts, # 4 William Bielby Depo Excerpts, # 5 George Barrett Depo Excerpts, # 6 Barrett Revised Report pp 10−13, # 7 Jeanneret Report Excerpts, # 8 Vince Biondo Depo Excerpts, # 9 Annette Cobb Depo Excerpts, # 10 Lee Holland Depo Excerpts, # 11 Timothy Beshears Depo Excepts, # 12 Billy Sizemore Depo Excerpt, # 13 Eugene Reynolds Depo Excerpt, # 14 Dr. Bielby Rebuttal Rpt Excerpts, # 15 Photographs, # 16 Jim Gulock Depo Excerpt, # 17 Eugene Reynolds Depo Excerpt, # 18 Ralph Earls Depo Excerpt, # 19 Walmart Matrix) (Chrisman, Jamie). (Entered: 01/08/2010)
557 RESPONSE to Motion re 463 MOTION in Limine to Exclude Certain Wal−Mart Witnesses Exhibits and Evidence not Properly disclosed to EEOC and/or Contrary to the Federal or Local rules by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc. (RBB) Modified on 1/19/2010to state: Exhibits Filed in Sep. Vol. (RBB). (Additional attachment(s) added on 1/20/2010: # 1 4.15.09 Telephone Conf Transcript Excerpts, # 2 5.26.09 TC Transcript Excerpt, # 3 Def Supp Ans to 2d Set of Interrog, # 4 Def Corrected Witness List.pdf557 Ex D Def Corrected Witness List, # 5 Def Ans to 10th Set of Interrog, # 6 Def Ans to 2d Set Interrog, # 7 Def Ans to 1st Interrog RFP, # 8 Robin Rose Depo Excerpt) (Chrisman, Jamie). (Entered: 01/08/2010)
**********************VOLUME 27**************************. (RBB) (Entered: 01/15/2010)

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01/12/2010 01/13/2010 01/13/2010
01/13/2010 01/14/2010

558 MINUTE ENTRY ORDER FOR MOTION HEARING held on January 12, 2010 in Lexington KY before Judge Karen K. Caldwell: The Court heard sworn testimony and arguments from counsel regarding the pending motion to exclude the proposed testimony of EEOC expert, Dr. Burt S. Barnow 360 ; The Court heard oral arguments on the pending Mt to Exclude the Testimony of Defendant's Expert Nancye Combs 343 ; ORDERED: 1) This proceeding is continued to WEDNESDAY, JANUARY 13, 2010 @ 9:00 A.M. IN LEXINGTON, KY; 2) Dft's Mt to Exclude the Proposed Testimony of EEOC Expert Dr. Burt S. Barnow 360 is TAKEN UNDER ADVISEMENT; 3) Plf's Mt to Exclude the Proposed Testimony of Defendant's Expert Nancye Combs 34 is TAKEN UNDER ADVISEMENT. (DOCKET CALL set for 1/13/2010 09:00 AM in LEXINGTON before Judge Karen K. Caldwell.) (Court Reporter Ann Banta.) Signed by Karen K. Caldwell. (RBB) cc: COR (Document scanned for distribution to parties per Chamber's instructions.) Modified on 2/25/2010 to correct typo (RBB). (Entered: 01/13/2010)
560 TRANSCRIPT of Proceedings: MOTION/DAUBERT held on 1/12/2010 before Judge KAREN K. CALDWELL. Court Reporter: K. Ann Banta, Telephone number 502 545−1090. Transcript ordered by: DEFENDANT. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. The Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction.. Redaction Request due 2/8/2010. Redacted Transcript Deadline set for 2/16/2010. Release of Transcript Restriction set for 4/16/2010. (RBB) (Entered: 01/14/2010)
561 MINUTE ENTRY ORDER FOR DOCKET CALL held on 1/13/2010 before Judge Karen K. Caldwell: 1) proceeding continued to THURSDAY, JANUARY 14, 2010 @ 9:00 A.M. IN LEXINGTON, KY;; 2) Mt to Change Venue 515 is TAKEN UNDER ADVISEMENT; 3) Court GRANTS the Defendant's Mt for Protective Order 514 and DIRECTS the parties to work together prior to the pre−trial of this matter to stipulate to the admissibility of evidence, facts and law to expedite the trial of this matter; To the extent the parties are unable to reach such stipulations prior to the pre−trial, the Court will address the admissibility of evidence at the pre−trial; 4) Counsel shall submit to Chambers to FRIDAY, JANUARY 22, 2010 a brief proposed questionnaire to be sent to jurors; 5) ALL FUTURE FILINGS IN THIS MATTER SHALL BE SUBMITTED AS FOLLOWS: counsel shall submit their pleadings on paper accompanied by a CD−ROM with the document in PDF format to the Clerk's office for filing as well as e−mailing a Court copy to Chambers; All court copies shall be e−mailed to Chambers @ kcaldwellmemos@kyed.uscourts.gov. 6) Jury trial shall commence on March 1, 2010 @ 9:00 a.m. in Lexington, KY as scheduled. Counsel shall be present at 8:30 a.m., court will select 10 (10) jurors; 7) all ddls set in the Court's Scheduling Order 300 shall remain in full force and effect; 9) Court has reserved the dates of February 13, 2010 and February 19, 2010 for any additional hearings in this matter as deemed necessary. Granting 514 Motion for Order; Taking under advisement 515 Motion to Change Venue; (DOCKET CALL set for 1/14/2010 @ 09:00 AM in LEXINGTON before Judge Karen K. Caldwell.) (Court Reporter Ann Banta.) Signed by Karen K. Caldwell. (RBB) cc: COR Modified on 1/15/2010 to add (Document scanned for distribution to parties per Chamber's instructions.) (RBB). (Entered: 01/15/2010)
Set/Reset Hearings: JURY TRIAL set for 3/1/2010 at 08:30 AM in LEXINGTON before Judge Karen K. Caldwell. (RBB) (Entered: 02/24/2010)
559 RESPONSE to Motion to Strike EEOC's 458 Supplemental Exhibit List and 456 Deposition Counter−Designations by Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission. (RBB) (Additional attachment(s) added on 1/20/2010: # 1 Def Ans to 10th Set Interrog pt 1, # 2 Def Ans to 10th Set Interrog pt 2, # 3 Def Ans to 10th Set Interrog pt 3, # 4 Def Ans to 10th Set Interrog pt 4, # 5 11.12.09 ltr Exhibit List, # 6 12.28.09 Exhibits, # 7 1.4.10 ltr redacted exhibits) (Chrisman, Jamie). (Entered: 01/14/2010)

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01/14/2010
01/14/2010
01/15/2010 01/15/2010 01/15/2010 01/15/2010 01/15/2010 01/15/2010 01/15/2010 01/15/2010

562 TRANSCRIPT of Proceedings: SCHEDULING CONFERENCE/MOTION HEARING held on 1/13/2010 before Judge KAREN K. CALDWELL. Court Reporter: K. Ann Banta, Telephone number 502 545−1090. Transcript ordered by: Defendant. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. The Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction.. Redaction Request due 2/8/2010. Redacted Transcript Deadline set for 2/17/2010. Release of Transcript Restriction set for 4/19/2010. (RBB) (Entered: 01/15/2010)
572 MINUTE ENTRY ORDER FOR DOCKET CALL held on 1/14/2010, before Judge Karen K. Caldwell: 1) proceeding is continued to FRIDAY, JANUARY 15, 2010 AT 9:00 A.M. IN LEXINGTON, KY; 2) Court grants oral mt of dft and orders that the ddl for all pretrial filings is EXTENDED from January 15, 2010 until January 19, 2010. (Pretrial Filings due by 1/19/2010. DOCKET CALL set for 1/15/2010 09:00 AM in LEXINGTON before Judge Karen K. Caldwell)(Court Reporter Ann Banta.)(Document scanned for distribution to parties per Chamber's instructions.) Signed by Karen K. Caldwell. (RBB)cc: COR, Lexington Court Diary (Entered: 01/19/2010)
563 TRIAL BRIEF by Equal Employment Opportunity Commission. (Exhibits 1−28 have been filed in Sep. Vol. in the clerk's office.)(RBB) (Chrisman, Jamie). (Entered: 01/15/2010)
564 Proposed Voir Dire by Equal Employment Opportunity Commission. (RBB) (Chrisman, Jamie). (Entered: 01/15/2010)
565 Proposed Jury Instructions by Equal Employment Opportunity Commission. (RBB) (Chrisman, Jamie). (Entered: 01/15/2010)
566 WITHDRAWN SUPPLEMENT TO 456 DEPOSITION COUNTER−DESIGNATIONS AND CORRECITONS by Equal Employment Opportunity Commission (Attachments filed in Sep. Vol.) (RBB) (Chrisman, Jamie). Modified on 2/1/2010 (RBB) to state pleading is withdrawn pursuant to Order 612 . (Entered: 01/15/2010)
567 WITHDRAWN REQUEST FOR EXCLUSION OF DEPOSITION TESTIMONY OF TERESA BOTKINS by Equal Employment Opportunity Commission (RBB) (Additional attachment(s) added on 1/20/2010: # 1 Order) (Chrisman, Jamie). Modified on 2/1/2010 (RBB) to state pleading is withdrawn pursuant to Order 612 . (Entered: 01/15/2010)
568 WITHDRAWN REQUEST FOR EXCLUSION OF DEPOSITION TESTIMONY OF ANNETTE COBB by Equal Employment Opportunity Commission (RBB) (Additional attachment(s) added on 1/20/2010: # 1 Order) (Chrisman, Jamie). Modified on 2/1/2010 (RBB) to state pleading is withdrawn pursuant to Order 612 . (Entered: 01/15/2010)
569 WITHDRAWN REQUEST FOR EXCLUSION OF DEPOSITION TESTIMONY OF CHARLES KARR by Equal Employment Opportunity Commission (RBB) (Additional attachment(s) added on 1/20/2010: # 1 Order) (Chrisman, Jamie). Modified on 2/1/2010 (RBB) to state pleading is withdrawn pursuant to Order 612 . (Entered: 01/15/2010)
570 WITHDRAWN REQUEST FOR EXCLUSION OF DEPOSITION TESTIMONY OF KIM BEBOUT by Equal Employment Opportunity Commission (RBB) (Additional attachment(s) added on 1/20/2010: # 1 Order) (Chrisman, Jamie). Modified on 2/1/2010 (RBB) to state pleading is withdrawn pursuant to Order 612 . (Entered: 01/15/2010)

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01/15/2010 01/15/2010
01/19/2010 01/19/2010 01/19/2010 01/19/2010 01/19/2010 01/19/2010 01/19/2010 01/19/2010 01/19/2010 01/19/2010 01/19/2010
01/19/2010 01/20/2010

ORAL MOTION for leave to amend Witness List by Wal−Mart. (RBB) (Entered: 01/20/2010)
573 MINUTE ENTRY ORDER FOR DOCKET CALL held on 1/15/2010 before Judge Karen K. Caldwell: 1) Matter remains scheduled for Final Pretrial Conference on February 4, 2010 at 10:00 a.m. in Lexington, KY; 2) That the EEOC Motion to Exclude the Proposed Testimony of expert, James Freeman 344 and Wal−Mart's Motion to Exclude the Proposed Testimony of expert, Dr. Richard Martell 347 are TAKEN UNDER ADVISEMENT; 3) That Wal−Mart's oral mt for lv to amend the Witness List and Motion to Strike Portions of the Alleged Rebuttal Report of EEOC Expert Burt S. Barnow 372 are TAKEN UNDER ADVISEMENT;(Court Reporter Ann Banta.) Signed by Karen K. Caldwell. (RBB)cc: COR (Document scanned for distribution to parties per Chamber's instructions.) (Entered: 01/20/2010)
571 Exhibit & Witness List of Equal Employment Opportunity Commission, Wal−Mart Stores, Inc. for Daubert Mt Hearing held 1/12/2010 − 1/15/2010.(RBB) (Entered: 01/19/2010)
**********************VOLUME 28**************************. (RBB) Modified on 1/20/2010 to change file date (RBB). (Entered: 01/20/2010)
574 Proposed Jury Instructions by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 01/20/2010)
575 PRETRIAL MEMORANDUM by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 1/20/2010: # 1 Main Document) (Chrisman, Jamie). (Entered: 01/20/2010)
576 Proposed Voir Dire by Wal−Mart Stores, Inc. (RBB) (Chrisman, Jamie). (Entered: 01/20/2010)
577 MOTION for Leave to substitute certain pleadings filed on January 15, 2010 by Equal Employment Opportunity Commission (RBB) Modified on 1/20/2010 to add motion text. (RBB). (Chrisman, Jamie). (Entered: 01/20/2010)
578 MOTION for Order Ruling on Objections Made During the Deposition of Kim Bebout by Equal Employment Opportunity Commission (RBB) Modified on 1/20/2010 to add motion text. (RBB). (Additional attachment(s) added on 1/20/2010: # 1 Order) (Chrisman, Jamie). (Entered: 01/20/2010)
579 MOTION for Order for Ruling on Objections made during the deposition of Teresa Botkins by Equal Employment Opportunity Commission (RBB) Modified on 1/20/2010 to edit motion text. (RBB). (Additional attachment(s) added on 1/20/2010: # 1 Order) (Chrisman, Jamie). (Entered: 01/20/2010)
580 MOTION for Order Ruling on Objections made during the deposition of Annette Cobb by Equal Employment Opportunity Commission (RBB) Modified on 1/20/2010 to add Motion Text. (RBB). (Additional attachment(s) added on 1/20/2010: # 1 Order) (Chrisman, Jamie). (Entered: 01/20/2010)
581 MOTION for Order Ruling on Objections Made During the Deposition of Charles Karr by Equal Employment Opportunity Commission (RBB) Modified on 1/20/2010 to add Motion Text (RBB). (Additional attachment(s) added on 1/20/2010: # 1 Order) (Chrisman, Jamie). (Entered: 01/20/2010)
582 NOTICE OF FILING of Designated Portions of Deposition Transcripts To Be Used At Trial (designated pages are noted in Plaintiff's Deposition Counter−Designations and Corrections Exhibit A (DE # 456 ) filed November 30, 2009 by Equal Employment Opportunity Commission. (Voluminous attachments maintained in Sep. Vol.) (RBB) Modified on 1/20/2010 (Document scanned for immediate distribution to parties per Chamber's instructions.) (RBB). (Entered: 01/20/2010)
Motions No Longer Referred: 577 MOTION for Leave to substitute certain pleadings filed on January 15, 2010, by Equal Employment Opportunity Commission (RBB) (Entered: 01/20/2010)
583 NOTICE: All parties and counsel are hereby notified that the undersigned's stepson, Lloyd R. "Rusty" Cress, Jr., who was formerly affiliated with Greenebaum, Doll & McDonald, is now currently employed as a non−equity member of the law firm of

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01/22/2010 01/22/2010 01/22/2010 01/22/2010
01/22/2010 01/22/2010 01/22/2010
01/22/2010 01/22/2010
01/22/2010 01/22/2010 01/22/2010 01/22/2010

Dinsmore & Shohl. ORDERED that Wal−mart shall file a written report by January 26, 2010, addressing whether Lloyd R. Cress, Jr. has any knowledge of or interest in this litigation. Signed by Judge Karen K. Caldwell on January 20, 2010.(RBB)cc: COR (Entered: 01/20/2010)
584 REPLY to Response to Motion re 505 MOTION in Limine to Exclude Evidence Regarding External Applicants and Regarding Applicants for Jobs other than Orderfillers by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB) (Entered: 01/25/2010)
585 REPLY to Response to Motion re 485 MOTION in Limine to Ecxlude Evidence of Defendant's Financial Condition by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (Attachments: # 1 Exhibit Deposition Excerpts of Nancye M. Combs (page 25))(RBB) (Entered: 01/25/2010)
586 REPLY BRIEF to 469 OBJECTINS TO PLF'S EXHIBIT 132 − BARNOW'S REBUTTAL REPORT filed by Wal−Mart Stores, Inc. (RBB) (Entered: 01/25/2010)
587 REPLY to Response to Motion re 499 MOTION in Limine to Exclude Proof Regarding Prescreened Female Job Applicants by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (Attachments: # 1 Exhibit 1 − Exceprts Depo Ronda T. Huber, # 2 Exhibit 2 − Excerpts from Depo of Carla Jean Blackburn, # 3 Exhibit 3 − Excerpts of Depo of Maria Malicoat−Howe)(RBB) (Entered: 01/25/2010)
588 REPLY to Response to Motion re 501 MOTION in Limine to Exclude Evidence of Janice Smith's Prior Transfer Applications by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (Attachments: # 1 Exhibit 1 − Excerpts from Depo of Janice F.H. Smith, Vol 1. April 23, 2002)(RBB) (Entered: 01/25/2010)
589 REPLY to Response to Motion re 489 MOTION in Limine to Exclude Testimony Constituting Legal Conclusions by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc.. (RBB) (Entered: 01/25/2010)
590 REPLY to Response to Motion re 509 MOTION for Jury View of Wal−Mart Distribution Center No. 6097 by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (Attachments: # 1 Exhibits − Analysis of Hiring Report and Various Depo Excerpts)(RBB) Modified on 1/27/2010 by deleting exhibit that was inadvertently attached by docket. (RBB). (Entered: 01/25/2010)
591 REPLY to 468 OBJECTIONS to DESIGNATION OF CONNIE HELTON AS A POTENTIAL WITNESS AT TRIAL filed by Wal−Mart Stores, Inc.. (RBB) (Entered: 01/25/2010)
592 REPLY to Response to Motion re 481 MOTION in Limine to Exclude Evidence and/or Arguments that Attempt to Improperly Place the Burden of Proof Upon Wal−Mart by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB) (Additional attachment(s) added on 1/25/2010: # 1 Expert Report of William T. Bielby) (RBB). (Entered: 01/25/2010)
593 REPLY to Response to Motion re 512 MOTION in Limine to exclude Evidence and/or argument regarding subsequent remedial measures by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB) (Entered: 01/25/2010)
594 REPLY to Response to Motion re 507 MOTION in Limine to Exclude Evidence of Two Databases Created by Wal−Mart's Counsel by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc.. (Attachments: # 1 Exhibit Transcript of 1/12/2010 Motion/Daubert Hrg pgs. 182−183.)(RBB) (Entered: 01/25/2010)
595 REPLY to Response to Motion re 487 MOTION in Limine to Exclude Evidence of Alleged Discovery Disputes by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (RBB) (Entered: 01/25/2010)
596 REPLY to Response to Motion re 345 MOTION to Exclude to Exclude testimony of EEOC Expert William T. Bielbyby Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (Attachments: # 1 Exhibit − Excerpts of Depo of William T. Bielby, Ph.D.)(RBB) (Entered: 01/25/2010)

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597 REPLYin Support re 493 MOTION in Limine to Exclude Evidence and/or Agrument Regarding Distribution Centers Other Than DC 6097 by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc.. (RBB) Modified on 2/12/2010 to add text: REPLY. (RBB). (Entered: 01/25/2010)
598 NOTICE OF FILING for Jury Questionnaire by Wal−Mart Stores, Inc. (RBB) (Entered: 01/25/2010)
599 REPLY to Response to Motion re 503 MOTION in Limine to exclude Evidence of Allegations Regarding Sexual Harassment by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc.. (RBB) (Entered: 01/25/2010)
600 REPLY to Response to Motion re 483 MOTION in Limine to Exclude Evidence and/or Argument of Alleged Discrimination Outside the Relevant Time Period by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc.. (RBB) (Entered: 01/25/2010)
601 REPLY to Response to Motion re 491 MOTION in Limine to Exclude Evidence of Other Litigation Involving or Against Defendant by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc.. (RBB) (Entered: 01/25/2010)
602 REPLY to Response to Motion re 495 MOTION in Limine to Exclude Evidence of Discrimination by Non−Decision Makers, Non−Employees, and Managers Not Involved in the Decision Making Process by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. (Attachments: # 1 Exhibit Excerpts of Dedo of Ronda T. Huber)(RBB) (Entered: 01/25/2010)
603 REPLY to Response to Motion re 465 MOTION in Limine and OJBECTIONS to Wal−Mart's Trial Witness and Exhibits That Do Not Commport with the Federal Rules of Evidence by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (RBB) (Entered: 01/25/2010)
604 NOTICE OF FILING REGARDING JUROR QUESTIONNAIRE by Equal Employment Opportunity Commission (RBB) (Entered: 01/25/2010)
605 NOTICE OF CORRECTION TO PRE−TRIAL BRIEF FILED ON JANUARY 15, 2010 by Equal Employment Opportunity Commission re 563 Pre−Trial Brief (Attachments: # 1 CORRECTED page 5 of EEOC's Pre−Trial Brief filed on January 15, 2010)(RBB) (Entered: 01/25/2010)
606 REPLY to Response to Motion re 463 MOTION in Limine to Exclude Certain Wal−Mart Witnesses Exhibits and Evidence not Properly disclosed to EEOC and/or Contrary to the Federal or Local rules by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (RBB) (Entered: 01/25/2010)
**********************VOLUME 29**************************. (RBB) (Entered: 01/25/2010)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 505 MOTION in Limine to Exclude Evidence Regarding External Applicants and Regarding Applicants for Jobs Other Than Order Filler by Wal−Mart Stores, Inc. (RBB) (Entered: 01/25/2010)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 485 MOTION in Limine to Ecxlude Evidence of Defendant's Financial Condition by Wal−Mart Stores, Inc. (RBB) (Entered: 01/25/2010)
***FILE SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: 469 OBJECTINS TO PLF'S EXHIBIT 132 − BARNOW'S REBUTTAL REPORT, by Wal−Mart Stores, Inc. (RBB) (Entered: 01/25/2010)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 501 MOTION in Limine Exclude Evidence of Janice Smith's Prior Transfer Applications by Wal−Mart Stores, Inc. (RBB) (Entered: 01/25/2010)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 489 MOTION in Limine to Exclude Testimony Constituting Legal Conclusions by Wal−Mart Stores, Inc. (RBB) (Entered: 01/25/2010)

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***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 509 MOTION for Order allowing jurors to visit and view the warehouse of Distribution Center 6097 and observe first hand orderfillers at work by Wal−Mart Stores, Inc. (RBB) (Entered: 01/25/2010)
***FILE SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: 468 OBJECTIONS to DESIGNATION OF CONNIE HELTON AS A POTENTIAL WITNESS AT TRIAL (RBB) (Entered: 01/25/2010)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 481 MOTION in Limine to Exclude Evidence and/or Arguments that Attempt to Improperly Place the Burden of Proof Upon Wal−Mart by Wal−Mart Stores, Inc. (RBB) (Entered: 01/25/2010)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 512 MOTION in Limine to exclude Evidence and/or argument regarding subsequent remedial measures by Wal−Mart Stores, Inc. (RBB) (Entered: 01/25/2010)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 507 MOTION in Limine Exclude Evidence of Two Databases Created by Wal−Mart Stores, Inc. (RBB) (Entered: 01/25/2010)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 487 MOTION in Limine to Exclude Evidence of Alleged Discovery Disputes by Wal−Mart Stores, Inc. (RBB) (Entered: 01/25/2010)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 345 MOTION to Exclude testimony of EEOC Expert William T. Bielby, by Wal−Mart Stores, Inc. (RBB) (Entered: 01/25/2010)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 493 MOTION in Limine to Exclude Evidence and/or Agrument Regarding Distribution Centers Other Than DC 6097 by Wal−Mart Stores, Inc. (RBB) (Entered: 01/25/2010)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 503 MOTION in Limine to Exclude Evidence of Allegations Regarding Sexual Harassment by Wal−Mart Stores, Inc. (RBB) (Entered: 01/25/2010)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 483 MOTION in Limine to Exclude Evidence and/or Argument of Alleged Discrimination Outside the Relevant Time Period by Wal−Mart Stores, Inc. (RBB) (Entered: 01/25/2010)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 491 MOTION in Limine to Exclude Evidence of Other Litigation Involving or Against Defendant by Wal−Mart Stores, Inc. (RBB) (Entered: 01/25/2010)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 495 MOTION in Limine to Exclude Evidence of Discrimination by Non−Decision Makers, Non−Employees, and Managers Not Involved in the Decision Making Process by Wal−Mart Stores, Inc. (RBB) (Entered: 01/25/2010)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 465 MOTION in Limine and OJBECTIONS to Wal−Mart's Trial Witness and Exhibits That Do Not Commport with the Federal Rules of Evidence by Equal Employment Opportunity Commission (RBB) (Entered: 01/25/2010)
***FILE SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: 598 NOTICE OF FILING for Jury Questionnaire by Wal−Mart Stores, Inc. (RBB) (Entered: 01/25/2010)
***FILE SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: 604 NOTICE OF FILING REGARDING JUROR QUESTIONNAIRE by EEOC (RBB) (Entered: 01/25/2010)
***FILE SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: 605 NOTICE OF CORRECTION TO PRE−TRIAL BRIEF FILED ON JANUARY 15, 2010 by Equal Employment Opportunity Commission (RBB) (Entered: 01/25/2010)

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02/01/2010

***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 463 MOTION in Limine to Exclude Certain Wal−Mart Witnesses Exhibits and Evidence not Properly disclosed to EEOC and/or Contrary to the Federal or Local rules by Equal Employment Opportunity Commission (RBB) (Entered: 01/25/2010)
607 REPLY to Response to Motion re 516 MOTION to Strike 467 Corrected Witness List by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (RBB) (Entered: 01/25/2010)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 516 MOTION to Strike 467 Corrected Witness List by Equal Employment Opportunity Commission (RBB) (Entered: 01/25/2010)
608 REPLY to Response to Motion re 460 MOTION in Limine and OBJECTIONS to portions of Wal−Mart's expert evidence and moving the Court in limine for a ruling precluding Wal−Mart's use of certain proposed expert testimony and exhibits to comport w/ previous Court rulings and dire ction concerning the permissible scope of the opinions of Wal−Mart experts Mr. Freeman and Ms. Combs by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (RBB) (Entered: 01/25/2010)
609 REPORT REGARDING LLOYD R. CRESS, JR. by Wal−Mart Stores, Inc. re 583 NOTICE. (RBB) Modified on 1/27/2010 to correct filer. (RBB). (Entered: 01/27/2010)
610 RESPONSE to Motions re 579 MOTION for Order Ruling on Objections made during the deposition of Teresa Botkins by Equal Employment Opportunity Commission, 578 MOTION for Order Ruling on Objections Made During the Deposition of Kim Bebout by Equal Employment Opportunity Commission, 581 MOTION for Order Ruling on Objections Made During the Deposition of Charles Karr by Equal Employment Opportunity Commission, 580 MOTION for Order Ruling on Objections made during the deposition of Annette Cobb by Equal Employment Opportunity Commission, filed by Wal−Mart Stores, Inc.. (Attachments: # 1 Exhibit 1 − applications and interview sheets, # 2 Exhibit 2 − Excerpts of Deposition of Annette Cobb)(RBB) (Entered: 01/27/2010)
***FILE SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: 609 REPORT REGARDING LLOYD R. CRESS, JR. by Wal−Mart Stores, Inc. (RBB) (Entered: 01/27/2010)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 519 MOTION to Strike EEOC's 458 Supplemental Exhibit List and 456 Deposition Counter−Designations by Wal−Mart Stores, Inc. (RBB) (Entered: 02/01/2010)
611 ORDER: The Court has previously informed the parties that the dates of February 18 and 19, 2010 have been reserved for this matter. Accordingly, the COURT HEREBY ORDERS that the February 4, 2010 pre−trial conference date is SET ASIDE and the pre−trial conference of this matter is RESCHEDULED to begin February 18, 2010 at 9:00 a.m. ( FINAL PRETRIAL CONFERENCE set for 2/18/2010 at 09:00 AM in LEXINGTON before Judge Karen K. Caldwell.) Signed by Judge Karen K. Caldwell on 02/01/2010.(RBB)cc: COR, Lexington Jury Clerk Modified on 2/1/2010 (RBB) to add: (Document scanned for immediate distribution to parties per Chamber's instructions.) (Entered: 02/01/2010)
612 ORDER This matter is before the Court on the EEOCs Motion to Substitute Certain Pleadings Filed on January 15, 2010 (DE 577 ) in which the EEOC asks the Court to substitute five pleadings for others filed in the record on January 15, 2010 that were incorrectly captioned. The Court hereby ORDERS that the motion is GRANTED. The Court further hereby ORDERS that the Clerk of the Court SHALL make a Clerks Note with regard to each of the following pleadingsthat the pleading has been withdrawn: DE 566 Supplement to Plaintiffs Deposition Counter−Designations and Corrections; DE 567 EEOC Request for Exclusion of Deposition Testimony of Teresa Botkins, and Order; DE 568 EEOC Request for Exclusion of Deposition Testimony of Annette Cobb, andOrder; DE 569 EEOC Request for Exclusion of Deposition Testimony of Charles Karr, and Order; DE 570 EEOC Request for Exclusion of Deposition Testimony of Kim Bebout, and Order. Also before the Court is the EEOCs Motion to File Wal−Mart Exhibits 121 and 122 Unredacted and Under Seal (DE 462 ). The Court HEREBY ORDERS that the motion is GRANTED and the Clerk of the Court is

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02/01/2010
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DIRECTED to file the exhibits under seal. Signed by Judge Karen K. Caldwell on 2/1/2010. (Document scanned for immediate distribution to parties per Chamber's instructions.) (RBB)cc: COR (Entered: 02/01/2010)
Clerk's Note: The following documents are withdrawn from the docket pursuant to 611 Order: re 567 REQUEST FOR EXCLUSION OF DEPOSITION TESTIMONY OF TERESA BOTKINS by Equal Employment Opportunity Commission; 570 REQUEST FOR EXCLUSION OF DEPOSITION TESTIMONY OF KIM BEBOUT by Equal Employment Opportunity Commission; 566 SUPPLEMENT TO 456 DEPOSITION COUNTER−DESIGNATIONS AND CORRECITONS by Equal Employment Opportunity Commission; 568 REQUEST FOR EXCLUSION OF DEPOSITION TESTIMONY OF ANNETTE COBB by Equal Employment Opportunity Commission; AND 569 REQUEST FOR EXCLUSION OF DEPOSITION TESTIMONY OF CHARLES KARR by Equal Employment Opportunity Commission. (RBB) (Entered: 02/01/2010)
613 SEALED DOCUMENT received on behalf of EEOC re 462 MOTION for Leave by Equal Employment Opportunity Commission. EXHIBITS 121 AND 122 (consisting of 2 large white boxes and 1 smaller white box, with each box being clearly marked, "SEALED DOCUMENTS") filed under seal pursuant to 611 ORDER. (EXHIBITS MAINTAINED IN PAPER as SEALED DOCUMENTS IN THE CLERK'S OFFICE) (RBB) (Entered: 02/01/2010)
614 REPLY to 531 RESPONSE TO 474 OBJECTIONS TO DEPOSITION OF DOROTHY HARSHMAN filed by Wal−Mart Stores, Inc. (RBB) (Entered: 02/02/2010)
615 REPLY to 532 RESPONSE to 475 OBJECTIONS TO THE DEPOSITION OF MARIE JONES JACKSON filed by Wal−Mart Stores, Inc. (RBB) (Entered: 02/02/2010)
616 REPLY to 534 RESPONSE TO 477 OBJECTIONS TO DEPOSITION OF MARIA MALICOAT−HOWE filed by Wal−Mart Stores, Inc. (RBB) (Entered: 02/02/2010)
617 REPLY to 559 Response to 519 Motion to Strike EEOC'S "SUPPLEMENTAL" EXHIBIT LIST ( 458 ) AND DEPOSITION "COUNER−DESIGNATIONS" ( 456 )filed by Wal−Mart Stores, Inc. (RBB) Modified on 2/2/2010 to add docket numbers for pleadings.(RBB). (Entered: 02/02/2010)
***FILE SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: 475 Objections to Deposition of Marie Jones Jackson; 474 Objections to deposition of Dorthy Harshman; and 477 Objections to Deposition of Maria Malicoat−Howe. (RBB) (Entered: 02/02/2010)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 519 MOTION to Strike 458 EEOC's "Supplemental" Exhibit List, and 456 Deposition "Counter−Designations" by Wal−Mart Stores, Inc. (RBB) (Entered: 02/02/2010)
618 REPLY to RESPONSE 536 , TO OBJECTIONS 479 to Deposition of Tom Van Jura filed by Wal−Mart Stores, Inc. (RBB) (Entered: 02/02/2010)
***FILE SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: 479 OBJECTIONS to DEPOSITION OF TOM VAN JURA filed by Wal−Mart Stores, Inc. (Response @ 536 ); Reply @ 618 ) (RBB) (Entered: 02/02/2010)
619 REPLY to 527 RESPONSE TO 470 OBJECTIONS to Deposition of Annette Cobb filed by Wal−Mart Stores, Inc. (RBB) (Entered: 02/02/2010)
***FILE SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: 470 OBJECTIONS to Depositon of Annette Cobb filed by Wal−Mart Stores, Inc. (Response @ 527 ; Reply @ 619 ) (RBB) (Entered: 02/02/2010)
620 REPLY to 528 RESPONSE TO 471 OBJECTIONS to Deposition of Andy Glover filed by Wal−Mart Stores, Inc. (RBB) (Entered: 02/02/2010)
***FILE SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: 471 OBJECTIONS to DEPOSITION OF ANDY GLOVER filed by Wal−Mart Stores, Inc. (Response @ 528 ; Reply @ 620 ) (RBB) (Entered: 02/02/2010)

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621 REPLY to 533 RESPONSE TO 476 OBJECTIONS to Deposition of Kim Bebout filed by Wal−Mart Stores, Inc. (RBB) (Entered: 02/02/2010)
***FILE SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: 476 OBJECTIONS to DEPOSITION OF KIM BEBOUT filed by Wal−Mart Stores, Inc. (Response @ 533 ; Reply @ 621 ) (RBB) (Entered: 02/02/2010)
622 REPLY to RESPONSE 537 to 480 OBJECTIONS to Deposition of Teresa Botkins filed by Wal−Mart Stores, Inc. (RBB) (Entered: 02/02/2010)
***FILE SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: 480 Objections to Deposition of Teresa botkins by Wal−Mart Stores, Inc. (Response @ 537 ; Reply @ 622 ) (RBB) (Entered: 02/02/2010)
623 REPLY to 535 RESPONSE TO 478 OBJECTIONS to the Deposition of Eugene Riley filed by Wal−Mart Stores, Inc. (RBB) (Entered: 02/02/2010)
***FILE SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: 478 Objections to Deposition of Eugene Riley by Wal−Mart Stores, Inc. (Response @ 535 ; Reply @ 623 ) (RBB) (Entered: 02/02/2010)
624 REPLY to Response to Motion re 578 MOTION for Order Ruling on Objections Made During the Deposition of Kim Bebout by Equal Employment Opportunity Commission, 581 MOTION for Order Ruling on Objections Made During the Deposition of Charles Karr by Equal Employment Opportunity Commission, 580 MOTION for Order Ruling on Objections made during the deposition of Annette Cobb by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A − Excerpts of Depo of KIMBERLY LYNN BEBOUT, # 2 Exhibit B − Excerpts of Depo of CHARLES KARR, # 3 Exhibit C − Excerpts of Depo of Annette Cobb, # 4 Exhibit D Excerpts of Depo of RICHARD JEANNERET, # 5 Exhibit E Excerpts of Depo of TERESA BOTKINS, # 6 Exhibit F Documents)(RBB) (Entered: 02/02/2010)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 579 MOTION for Order Ruling on Objections made during the deposition of Teresa Botkinsby Equal Employment Opportunity Commission, 578 MOTION for Order Ruling on Objections Made During the Deposition of Kim Bebout by Equal Employment Opportunity Commission, 581 MOTION for Order Ruling on Objections Made During the Deposition of Charles Karr by Equal Employment Opportunity Commission, 580 MOTION for Order Ruling on Objections made during the deposition of Annette Cobb by Equal Employment Opportunity Commission. (Combined Response @ 610 ; Reply @ 624 ) (RBB) (Entered: 02/02/2010)
**********************VOLUME 30***********************. (RBB) (Entered: 02/03/2010)
625 TRANSCRIPT of Proceedings: MOTION DAUBERT HEARING (A.M.) SCHEDULING CONFERENCE (P.M.) DAY 2 held on January 13, 2010 before Judge KAREN K. CALDWELL. Court Reporter: K. ANN BANTA, Telephone number 502 545−1090. Transcript ordered by: PLAINTIFF. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. The Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. Redaction Request due 3/1/2010. Redacted Transcript Deadline set for 3/9/2010. Release of Transcript Restriction set for 5/7/2010. (RBB) (Additional attachment(s) added on 2/3/2010: # 1 Main Document − Transcript) (RBB). Modified on 2/3/2010.(RBB). (Entered: 02/03/2010)
626 TRANSCRIPT of Proceedings: MOTIONS/DAUBERT HEARING − DAY 3 OF 4 held on JANUARY 14, 2010 before Judge KAREN K. CALDWELL. Court Reporter: K. ANN BANTA, Telephone number 502 545−1090. Transcript ordered by: PLAINTIFF. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order

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to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. The Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. Redaction Request due 3/1/2010. Redacted Transcript Deadline set for 3/9/2010. Release of Transcript Restriction set for 5/7/2010. (RBB) (Entered: 02/03/2010)
627 TRANSCRIPT of Proceedings: MOTION/DAUBERT HEARING (DAY 4 OF 4) held on JANUARY 15, 2010 before Judge KAREN K. CALDWELL. Court Reporter: K. ANN BANTA, Telephone number 502 545−1090. Transcript ordered by: PLAINTIFF. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. The Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction.. Redaction Request due 3/1/2010. Redacted Transcript Deadline set for 3/9/2010. Release of Transcript Restriction set for 5/7/2010. (RBB) (Entered: 02/03/2010)
628 NOTICE OF FILING Deposition Designations (ANNETTE COBB) by Wal−Mart Stores, Inc. (Attachments: # 1 Wal−Mart's Depo Designations of Annette Cobb, # 2 Excerpts of Deposition of Annette Cobb)(RBB) (Entered: 02/03/2010)
629 NOTICE OF FILING DEPOSITION DESIGNATIONS by Wal−Mart Stores, Inc. (Charles Karr) (Attachments: # 1 Wal−Mart's Deposition Designations of Charles Karr, # 2 Deposition Excerpts of Charles Karr)(RBB) (Entered: 02/03/2010)
630 NOTICE OF FILING by Wal−Mart Stores, Inc. DEPOSITION DESIGNATIONS (ANDY GLOVER) (Attachments: # 1 Wal−Mart's Deposition Designations of Andy Glover, # 2 Deposition Excerpts of Andy Glover)(RBB) (Entered: 02/03/2010)
631 NOTICE OF FILING by Wal−Mart Stores, Inc. DEPOSITION DESIGNATIONS (EUGENE RILEY) (Attachments: # 1 Wal−Mart's Deposition Designations of Eugene Riley, # 2 Deposition Excerpts of Eugene Riley)(RBB) (Entered: 02/03/2010)
632 NOTICE OF FILING by Wal−Mart Stores, Inc. DEPOSITION DESIGNATIONS (DOROTHY HARSHMAN) (Attachments: # 1 Wal−Mart's Deposition Designations of Dorothy Harshman, # 2 Deposition Excerpts of Dorothy Harshman)(RBB) (Entered: 02/03/2010)
633 NOTICE OF FILING by Wal−Mart Stores, Inc. DEPOSITION DESIGNATIONS (JOHN DRAGOO) (Attachments: # 1 Wal−Mart's Deposition Designations of John Dragoo, # 2 Deposition Excerpts of John Dragoo)(RBB) (Entered: 02/03/2010)
634 NOTICE OF FILING by Wal−Mart Stores, Inc. DEPOSITION DESIGNATIONS (KIMBERLY BEBOUT) (Attachments: # 1 Wal−Mart's Deposition Designation of Kimberly Bebout, # 2 Deposition Excerpts of Kimberly Bebout)(RBB) (Entered: 02/03/2010)
635 NOTICE OF FILING by Wal−Mart Stores, Inc. DEPOSITION DESIGNATIONS (MARIE JONES−JACKSON) (Attachments: # 1 Wal−Mart's Deposition Designations of Marie Jones Jackson, # 2 Deposition Excerpts of Marie Jones−Jackson)(RBB) (Entered: 02/03/2010)
636 NOTICE OF FILING by Wal−Mart Stores, Inc. DEPOSITION DESIGNATIONS (MARIA MALICOAT−HOWE) (Attachments: # 1 Wal−Mart's Deposition

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Designations of Maria Malicoat−Howe, # 2 Deposition Excerpts of Maria Malicoat−Howe)(RBB) (Entered: 02/03/2010)
637 NOTICE OF FILING by Wal−Mart Stores, Inc. DEPOSITION DESIGNATIONS (TERESA BOTKINS) (Attachments: # 1 Wal−Mart's Deposition Designation of Teresa Botkins, # 2 Deposition Excerpts of Teresa Botkins)(RBB) (Entered: 02/03/2010)
638 NOTICE OF FILING by Wal−Mart Stores, Inc. DEPOSITION DESIGNATIONS (TOM VAN JURA) (Attachments: # 1 Wal−Mart's Deposition Designations of Tom Van Jura, # 2 Deposition Excerpts of Tom Van Jura)(RBB) (Entered: 02/03/2010)
**********************VOLUME 31*************************. (RBB) (Entered: 02/03/2010)
639 MOTION to Strike Wal−Mart Replies as Untimely and Improper re 621 REPLY, 616 REPLY, 622 REPLY, 614 REPLY, 615 REPLY, 623 REPLY, 619 REPLY, 620 REPLY, 618 REPLY by Equal Employment Opportunity Commission (Attachments: # 1 Proposed Order)(JMB) (Entered: 02/05/2010)
640 ORDER: 1) Wal−Mart's Motion to Change the Venue of Trial from Lexington to London 515 is DENIED; and 2) Wal−Mart's Motion for Jury View of Wal−Mart Distribution Center No. 6097 (DE 509 ) is DENIED. Signed by Judge Karen K. Caldwell on 2/9/2010. (RBB)cc: COR (Document scanned for immediate distribution to parties per Chamber's instructions.) (Entered: 02/09/2010)
641 OPINION & ORDER, Motions terminated: 1) Wal−Mart's Motion for Summary Judgment (DE 409 ) is DENIED; 2) the EEOCs Motion to Exclude Certain Evidence Improperly offered by Wal−Mart in Support of Summary Judgment (DE 420 ) is DENIED. Any objections to the evidence Wal−Mart has relied on in support of its Motion for Summary Judgment should have been made in the EEOCs 75−page response brief. Further, the Court has not relied on the DVD at issue in ruling on the Motion for Summary Judgment. Likewise, many of the allegedly unsupported facts to which the EEOC objects have no bearing on the Court's finding on summary judgment. Finally, when either party has asserted that any material facts are "undisputed", "admitted" "conceded" etc., the Court has not accepted any such assertions without citation and has reviewed the citation when given to determine whether the record has been accurately characterized; and 3) Wal−Mart's Motion to File Sur−Reply (DE 433 ) is DENIED. Signed by Judge Karen K. Caldwell on 2/12/2010.(Document scanned for immediate distribution to parties per Chamber's instructions.)(RBB)cc: COR (Entered: 02/12/2010)
642 OPINION & ORDER: Court hereby ORDERS that Wal−Mart's Motion to Exclude theProposed Testimony of EEOC Expert Burt S. Barnow (DE 360 ) is DENIED. Signed by Judge Karen K. Caldwell on 2/12/2010.(RBB)cc: COR (Entered: 02/12/2010)
643 MOTION for VICTORIA L. COOK to Appear Pro Hac Vice by Wal−Mart Stores, Inc. (Attachments: # 1 Affidavit of Victoria L. Cook, # 2 Proposed order, # 3 Receipt)(RBB) (Entered: 02/12/2010)
644 MOTION for KALPANA SRINIVASAN to Appear Pro Hac Vice by Wal−Mart Stores, Inc. (Attachments: # 1 Affidavit of Kalpana Srinivasan, # 2 Proposed Order, # 3 Receipt)(RBB) (Entered: 02/12/2010)
645 PRO HAC VICE Filing fee received − KALPANA SRINIVASAN − $ 65, receipt number 5005921 (RBB) (Entered: 02/12/2010)
646 PRO HAC VICE Filing fee received − VICTORIA L. COOK − $ 65, receipt number 5005920 (RBB) (Entered: 02/12/2010)
Attorney Update. Attorney Victoria L. Cook for Wal−Mart Stores, Inc., Kalpana Srinivasan for Wal−Mart Stores, Inc. added. (RBB) (Entered: 02/17/2010)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 643 MOTION for VICTORIA L. COOK to Appear Pro Hac Vice by Wal−Mart Stores, Inc., 644 MOTION for KALPANA SRINIVASAN to Appear Pro Hac Vice by Wal−Mart Stores, Inc. (RBB) (Entered: 02/16/2010)

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647 OPINION & ORDER: Court hereby ORDERS as follows: 1) The EEOC's Motion to Exclude Freeman's Testimony (DE 344 ) is GRANTED in part and DENIED in part. The motion is GRANTED as to Freeman's testimony regarding differencesbetween Dr. Imam's database and database upon which Dr. Barnow relied and Freeman's testimony on this issue is EXCLUDED. The motion is otherwise DENIED; and 2) Wal−Mart's Motion To Strike Portions of Dr. Barnow's Rebuttal (DE 372 ) and Wal−Mart's Motion for 25 Class Member Depositions if Rebuttal Report not Stricken (DE 356 ) are DENIED. Signed by Judge Karen K. Caldwell on 2/16/2010.(RBB)cc: COR Modified on 2/16/2010 to add text: (Document scanned for immediate distribution to parties per Chamber's instructions.)(RBB) (Entered: 02/16/2010)
648 OPINION & ORDER: 1) Wal−Mart's Motion to Exclude the Proposed Testimony of EEOC Expert William T. Bielby (DE 345 ) is GRANTED; and 2) Because Wal−Mart retained P. Richard Jeanneret to respond to Dr. Bielby, Jeanneret's testimonyis now unnecessary. Accordingly, the EEOC's Motion to Exclude Jeanneret's testimony (DE 342 ) is DENIED as moot. Signed by Judge Karen K. Caldwell on 2/16/2010. (Document scanned for immediate distribution to parties per Chamber's instructions.)(RBB)cc: COR (Entered: 02/16/2010)
649 OBJECTIONS TO AND MOTION to Strike certain Wal−Mart Demonstrative Exhibits disclosed on February 4, 2010 by Equal Employment Opportunity Commission (Attachments: # 1 Proposed Order, # 2 Ex. 1: Exhibit summarizing personnel who conducted interviews, # 3 Ex. 2: Showing number and or proportion of class members as defined by Barnows 2007 Report and Dataset, who did not advance to the interview stage during hiring process., # 4 Ex. 3: Identify testifying class memberss estimated probability of being hired as determined by Barnow, # 5 Ex. 4: Job offers are rare regardless of gender 1998−2004., # 6 Ex. 5: Job offers are regardless of gender 1998−2001 v. 2002−2004., # 7 Ex. 6: Job offers are rare regardless of gender only 6 out of 100 receive an offer., # 8 Ex. 7: Job offers are rare regardless of gender only 7 out of 100 receive an offer, # 9 Ex. 8: Job offers are rare regardless of gender only 4 out of 100 receive an offer, # 10 Ex. 9: Barnows percentage of applications that advanced in the hiring process, Recruit The Best 1998−2002, # 11 Ex. 10: Barnows percentage of applications that advanced in the hiring process Talent Select 2002−2004, # 12 Ex. 11: Exhibit summarizing report and opinions of Richard Jeanneret, # 13 Ex. 12: Exhibit summarizing report and opinions of George Barrett, # 14 Ex. 13: Pallet 1 and Pallet 2 dimensions & Photos (Photos filed in paper form), # 15 Ex. 14: Distribution Center lists of boxed and bagged inventory and photos (photos filed in paper form), # 16 Ex. 15: EEOC Letter dated February 8, 2010, # 17 Ex. 16: Wal−Mart Letter dated February 9, 2010, # 18 Ex. 17: Extract of Michale Giles Deposition, pages 8, 9,10, 68, # 19 Ex. 18 Extract of Wal−Mart Resp to EEOC's 1st Set of Interrogatories & Request for Production of Documents, pp 4, & 5)(NOTE: Portions of Exhibits 13 and 14 (the photographs) were illegible when scanned. Therefore, the photographs have only been filed in paper form. Please see paper record for the complete filing of these two exhibits.)(RBB) Modified on 2/17/2010 to add motion text. (RBB). (Entered: 02/16/2010)
650 OPINION & ORDER: 1) the EEOC's Motion to Exclude the Testimony of Wal−Mart Expert George Barrett (DE 341 ) is GRANTED; and 2) Because the EEOC retained Kenneth R. Troske to respond to Barrett, Troske's testimony is now unnecessary. Accordingly, Wal−Marts Motion to Exclude Troske's testimony (DE 346 ) is DENIED as moot. (Document scanned for immediate distribution to parties per Chamber's instructions.) Signed by Judge Karen K. Caldwell on 2/16/2010.(RBB)cc: COR (Entered: 02/16/2010)
651 ORDER: The Court hereby ORDERS that the EEOC's Motion to Exclude the Testimony of Wal−Marts Expert Nancye Combs 343 and Wal−Mart's Motion to Exclude the Proposed Testimony of EEOC Expert Richard Martell 347 are DEFERRED until after the EEOC presents its case−in−chief. Document scanned for immediate distribution to parties per Chamber's instructions. Signed by Judge Karen K. Caldwell on 2/17/10.(SYH)cc: COR (Entered: 02/17/2010)
BAR STATUS Check completed as to Kalpana Srinivasan, Victoria L. Cook re 643 MOTION for VICTORIA L. COOK to Appear Pro Hac Vice by Wal−Mart Stores, Inc., 644 MOTION for KALPANA SRINIVASAN to Appear Pro Hac Vice by Wal−Mart Stores, Inc. (RBB) (Entered: 02/17/2010)

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652 ORDER The following motions, having been fully briefed by the parties and considered by the Court, they are hereby decided as follows: 1. Wal−Mart's Motion in Limine to Exclude Evidence and/or Arguments that Attempt to Improperly Place the Burden of Proof Upon Wal−Mart. [R. 481 ]; Wal−Mart seeks to exclude evidence and/or arguments that it believes improperly shifts the burden of proof onto Wal−Mart at trial. The Court DENIES this motion as overly broad. 2. Wal−Mart's Motion in Limine to Exclude Evidence and/or Argument of Alleged Discrimination Outside the Relevant Time Period [R. 483 ]is DENIED as overly broad. 3. Wal−Mart's Motion In Limine to Exclude Evidence of Defendant's Financial Condition [R. 485 ]. The Motion is GRANTED. Wal−Mart's financial condition is irrelevant to the issues at trial. 4. Wal−Mart's Motion in Limine to Exclude Evidence of Alleged Discovery Disputes [R. 487 ] is GRANTED; 5. Defendant's Motion in Limine to Exclude Testimony Constituting Legal Conclusions, [R. 489 ] is DENIED; 6. Defendant's Motion in Limine to Exclude Evidence of Other Litigation Involving or Against Wal−Mart, [R. 491 ] is GRANTED; 7. Defendant's Motion in Limine to Exclude Evidence and/or Argument Regarding Distribution Centers Other than DC 6097 [R. 493 ] is DENIED; 8. Wal−Mart's Motion in Limine to Exclude Portions of the Testimony of EEOC Expert Dr.William Bielby [R. 497 ] − In a separate order, the Court has excluded Bielby's testimony − Therefore, the Motion 497 is DENIED as moot. 9. Wal−Mart's Motion in Limine to Exclude Proof Regarding Prescreened Female JobApplicants [R. 499 ] is DENIED; the Court hereby DENIES the Motion in that the subject matter is appropriate for cross−examinatioin and argument rather than exclusion. 10. Wal−Mart's Motion in Limine to Exclude Evidence of Janice Smith's Prior Transfer Applications [R. 501 ]; Courts may permit the introduction of evidence that provides background and context for testimony offered at trial. The evidence Wal−mart seeks to exclude does just that; provides context and background. Given the limited nature of the anticipated testimony regarding Janice Smith's employment history with Wal−Mart, the motion is DENIED. 11. Wal−Mart's Motion in Limine to Exclude Evidence Regarding External Applicants and Regarding Applicants for Jobs Other Than Order Filler [R. 505 ] − This matter was addressed by the Court in its ruling on Wal−Mart'sMotion for Summary Judgment. Therefore, the Motion is DENIED as MOOT. 12. Plaintiff's Motion to Strike Wal−Mart's Corrected Witness List. [R. 516 ] The Court DENIES EEOC's Motion to Strike Wal−Mart's December 7, 2009 Corrected itness List. However, the Court GRANTS permission for the EEOC to challenge the testimony of Judy Stutler or Judy Sutton on other grounds. 13. Wal−Mart's Motion to Strike EEOC's Supplemental Exhibit List and Deposition Counter−Designations. [R. 519 ] The Motion is DENIED. This pretrial disclosure was sufficiently timely to avoid prejudice. Moreover, over the past seven years, theexhibits have been previously produced and witnesses previously deposed. Thus, there is no unfair surprise associated with the disclosure. (This document was scanned for immediate distribution to the parties per Chamber's instructions.)Signed by Judge Karen K. Caldwell on 2/17/2010.(RBB)cc: COR (Entered: 02/17/2010)
653 OPINION & ORDER: This matter is before the Court on Wal−Mart's Motion in Limine to Exclude Evidence of Two Databases Created by Wal−Mart's Counsel (DE 507 ) and Wal−Mart's Objection to Plf's Exhibit 132 Barnow's Rebuttal Report (DE 469 ). Wal−Mart moves to exclude evidence of two databases that were created by Wal−Marts counsel. This motion (DE 507 ) is GRANTED. The databases were not created for statistical analysis. They were created solely to catalog applications submitted by Wal−Mart during discovery. The party that produced the databases Wal−Mart argues they are unreliable and full of errors. This is the sole evidence before the Court regarding the reliability of the databases. Wal−Mart's statistical expert did not rely on either database in formulating his opinions. Further, the Court has no evidence before it regarding how these databases were constructed. Thus, the Court will exclude any evidence of the databases and any opinion relying on them. As to Wal−Mart's objection to Barnows Rebuttal Report (DE 469 ), the substance of this motion has been addressed in the Courts ruling on Wal−Mart's Motion to Strike the rebuttal report and with the ruling above. Accordingly, this motion (DE 469 ) is DENIED as moot. Signed by Judge Karen K. Caldwell on 2/18/2010. (Document scanned for immediate distribution to parties per Chamber's instructions.)(RBB)cc: COR Modified on 2/18/2010 to create docket relations ship to 469 OBJECTIONS (Bundy, Renee). (Entered: 02/18/2010)
654 ORDER: OPINION & ORDER: EEOC's Motion in Limine and Objections to Portionsof Wal−Marts Expert Evidence (DE 460 ). This motion is GRANTED in part,

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DENIED in part, and DEFERRED in part; A portion of the motion is directed at testimony by Wal−Marts proposed expert Nancye Combs. This portion of the motion is DEFERRED until the Court rules on the Motion to Exclude Combs at the end of the EEOC's case−in−chief. Other portions of the motion are directed at certain trial exh submitted to Wal−Mart and the Court's ruling as to Exh 122, Exh 121, Apendices B,C,D, and E, to Exh 121, Exh 128, Exh 129, Exh 130, Exh 127 and 1817 and Exh 126 is detailed in the order; The EEOC also moves to exclude Wal−Mart from introducing evidence regarding the multiple versions of Dr. Barnow's expert report and class list. This portion of the motion is GRANTED. The relevant reports in this matter are Dr. Barnows March 1, 2007 Report and his March 20, 2009 Rebuttal Report. Introducing evidence of any versions of the report prior to March 1, 2007 and the reasons for them would involve a rehashing of eight years of discovery disputes, including what applications Wal−Mart produced and when, and what changes the productions caused or did not cause in Dr. Barnow's analysis. This would be unnecessarily lengthen the trial and confuse the jury. Signed by Judge Karen K. Caldwell on 2/18/2010. (RBB)cc: COR (Document scanned for immediate distribution to the parties per Chamber's instruction.) Modified on 2/18/2010 to correct spacing. (RBB). (Entered: 02/18/2010)
655 ORDER: granting in part and denying in part 463 EEOC's Motion in Limine to Exclude Certain Wal−Mart Witnesses and Evidence (see Order for details).. Signed by Judge Karen K. Caldwell on 2/18/2010. (JMB)cc: COR (Entered: 02/18/2010)
656 OPINION AND ORDER: granting in part and denying in part 465 EEOC's MOTION in Limine and OJBECTIONS to Wal−Mart's Trial Witness and Exhibits That Do Not Commport with the Federal Rules of Evidence (see Order for details). Signed by Judge Karen K. Caldwell on 2/18/2010. (JMB)cc: COR (Entered: 02/18/2010)
657 OPINION AND ORDER: denying 495 Motion in Limine; denying 503 Motion in Limine. Signed by Judge Karen K. Caldwell on 2/18/2010. (JMB)cc: COR Modified on 2/18/2010 to add "Opinion"(JMB). (Entered: 02/18/2010)
658 TRANSCRIPT of Proceedings: PRETRIAL CONFERENCE held on FEBRUARY 18, 2010 before Judge KAREN K, CALDWELL. Court Reporter: Rhonda Sansom, Telephone number 859−619−3624. Transcript ordered by: NANCY EDMONDS and KATHRYN A. QUESENBERRY. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. The Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. Redaction Request due 3/15/2010. Redacted Transcript Deadline set for 3/24/2010. Release of Transcript Restriction set for 5/24/2010. (RBB) (Entered: 02/19/2010)
ORAL MOTION to exclude the testimony of Cheryl Poe at trial by Wal−Mart (filed pursuant to PTC minutes dated 2/18/2010) (RBB) (Entered: 02/19/2010)
659 MINUTE ENTRY ORDER FOR FINAL PRETRIAL CONFERENCE held on 2/18/2010 before Judge Karen K. Caldwell: Court heard statements from counsel concerning Court's calendar for trial and issues relating to the trial; Court advised parties that Judge Caldwell will not be available to conduct the trial on March 16, 2010; March 19, 2010 and March 26, 2010; Counsel was advised that Mag Judge Rober E. Wier is available to preside over the trial on March 15, 2010 and March 19, 2010, if parties unanimously agree; ORDERED: 1) proceeding is continued to FRIDAY, FEBRUARY 18, 2010 @ 10:00 A.M. in Lexington, KY; 2) Court GRANTS dft's Mt for Kalpana Srinivasa 644 and Victoria Cook 643 to appear phv; 3) Court DENIES plf's mt to strike Wal−Mart Replies as untimely and improper 639 ; 4) Court DENIES as MOOT the dft's Mt in Limine to Exclude Evidence 512 ; issue will be addressed at trial as needed; 5) parties are to work together prior to trial to stipulate to admissibility of evidence and facts that will expedite the trial of this matter; 6) Trial procedures were discussed; during jury selection, ea side will receive 5 peremptory

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challenges, exercised simultaneously; ea side will be given 60 min for opening arguments; presentation of evidence will begin on Tues. March 2, 2010; EEOC will have 8 days to present their case and Wal−Mart shall have 7 days; if parties consent to proceed on 3/16/2010 and 3/19/2010 before Mag Judge Robert E. Wier, then ea party will be given an additional day to present their case; Closing arguments will be on 3/25/2010 and the case must be turned over to the jury for deliberation by March 25, 2010; 7) During the trial, the Court will allow 1 hr at the end of ea day, out of the presence of the jury to decide evidentiary issues and witness issues for the following day; parties shall identify which witnesses and exhibits that will be introduced for the next day at this time; 8) Wal−Mart's oral mt to exclude the testimony of Cheryl Poe at trial is TAKEN UNDER ADVISEMENT; 9) Wal−Mart's oral mt for leave to amend the witness list is GRANTED to the extent that the dft may add 3 witnesses to the witness list, if they have been previously deposed. (FINAL PRETRIAL CONFERENCE CONTINUED to 2/18/2010 at 10:00 AM in LEXINGTON before Judge Karen K. Caldwell.)(Court Reporter Rhonda Sansom.) Signed by Karen K. Caldwell. (RBB)cc: COR (Entered: 02/19/2010)
Motions Taken Under Advisement: ORAL MOTION to exclude the testimony of Cheryl Poe at trial by Wal−Mart (filed pursuant to PTC minutes dated 2/18/2010) (RBB) (Entered: 02/19/2010)
660 AMENDED ENTRY ORDER FOR FINAL PRETRIAL CONFERENCE held on 2/18/2010 before Judge Karen K. Caldwell; Minutes of 2/18/2010 re 659 are amended to reflect that the Final Pretrial Conference is continued to Friday, February 19, 2010 at 10:00 a.m. in Lexington, KY. (FINAL PRETRIAL CONFERENCE set for 2/19/2010 at 10:00 AM in LEXINGTON before Judge Karen K. Caldwell.)Signed by Judge Karen K. Caldwell on 2/18/2010. (RBB) cc: COR (Entered: 02/19/2010)
661 MINUTE ENTRY ORDER FOR FINAL PRETRIAL CONFERENCE held on 2/19/2010 before Judge Karen K. Caldwell: parties informed the Court they do not wish to conduct the trial on March 16, 2010 and March 19, 2010 before Mag Judge Wier; ORDERED: 1. matter is ASSIGNED for a FINAL PRETRIAL CONFERENCE ON FRIDAY, FEBRUARY 26, 2010, at 1:00 P.M. in LEXINGTON, KY; 2. Court will allow the deposition of Cheryl Poe by Wal−Mart in advance of the trial; 3) parties shall redact any references to discovery disputes from any expert reports that will be provided to the jury; Court will inform jury, if appropriate, that information has been redacted from the expert reports; 4. Mt to Strike Certain Wal−Mart Demonstrative Exh 649 is GRANTED in part and DENIED in part; Any videos to be used during triall shall be limited to four (4) min. in length and must be submitted to the court and opposing party NO LATER THAN TUESDAY, FEBRUARY 23, 2010; Wal−Mart shall include a statement as to which witnesses will be called at trial; 6) matter remains ASSIGNED for JURY TRIAL on MARCH 1, 2010 at 9:00 a.m, in LEXINGTON, KY counsel to be present at 8:30 a.m.; trial will not be held on March 16 2010 and March 19, 2010, subject to intervening Orders of the Court. (FINAL PRETRIAL CONFERENCE set for 2/26/2010 at 10:00 AM in LEXINGTON before Judge Karen K. Caldwell.); Motions terminated: 649 MOTION to Strike certain Wal−Mart Demonstrative Exhibits disclosed on February 4, 2010 by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (Court Reporter Rhonda Sansom.) Signed by Karen K. Caldwell. (RBB)cc: COR, Lexington Court Diary (Entered: 02/22/2010)
662 TRANSCRIPT of Proceedings: PRETRIAL CONFERENCE held on 2/19/2010 before Judge KAREN K. CALDWELL. Court Reporter: Rhonda Sansom, Telephone number 859−619−3624. Transcript ordered by: NANCY DEAN EDMONDS AND KATHRYN QUESENBERRY. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. The Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. Redaction Request due 3/18/2010. Redacted

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Transcript Deadline set for 3/29/2010. Release of Transcript Restriction set for 5/26/2010. (RBB) (Entered: 02/22/2010)
663 ORDER: for the purpose of the jury trial beginning on March 1, 2010, the following people are permitted to retain their cell phone devices during the trial; devices should be silenced during all proceedings: John Bayne, Vishal Butala, Lectric Chandler, Victoria Cook, Joseph Donohue, Nancy Edmonds, Michelle eisele, Lauren Gibbs, Robin Lybolt, Aimee McFerren, Candice Miller, Kathryn Quesenberry, Kalpana Srinivasan, brenda Thacker, Sadhna True, Janel Wilkins, Laurie Young. Signed by Judge Karen K. Caldwell on 2/22/2010.(RBB)cc: COR (Entered: 02/22/2010)
665 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 2/24/2010. before Judge Karen K. Caldwell: Matter called for Telephone Conference at request of parties; parties advised the court that the parties were unable to agree on a date for Cheryl Poe's depo; ORDERED: 1. Wal−Mart's Subpoena of witness, Cheryl Poe, for depo on 2/24/2010 is QUASHED; 2) Court advised that witness Poe is a resident in a rehabilitation center in Northern, KY; Depo of Cheryl Poe will be held on Friday, February 26, 2010 at 10:00 a.m. for a period of one hour; subject to the approval of the rehabilitation center; if witness is unavailable at that time parties are to schedule her depo for another time on the same day, February 26, 2010, as approved by the rehabilitation center; counsel shall contact the rehabilitation center together to make the appropriate arrangements. (Court Reporter Rhonda Sansom.) Signed by Karen K. Caldwell. (RBB)cc: COR (Entered: 02/26/2010)
664 ORDER: The Court is unable to afford relief as to witness Jones as the subpoena at issue was issued by the United States District Court for Western District of Tennessee. As to Elliott and Rose, the Court conducted a hearing and determines that there is no cause to hold these non−party witnesses in contempt. Accordingly, the motion is DENIED. 415 Signed by Judge Karen K. Caldwell on 2/25/10. (SYH)cc: COR (Document scanned for immediate distribution to parties per chambers instructions). (Entered: 02/25/2010)
666 JOINT MOTION to Approve and enter Consent Decree by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc. (Attachments: # 1 Consent Decree)(RBB) Modified on 2/26/2010 to add motion text.(RBB). (Entered: 02/26/2010)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 666 JOINT MOTION to Approve and enter Consent Judgment by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc. (RBB) (Entered: 02/26/2010)
668 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 2/26/2010. before Judge Karen K. Caldwell: The parties having filed a Joint Motion For Entry of Consent Decree and advised the Court that they have reached a settlement, and the Court being sufficiently advised, IT IS HEREBY ORDERED AS FOLLOWS that the Jury Trial scheduled for March 1, 2010 at 9:00 a.m. in Lexington, Kentucky is SET ASIDE AND CANCELED. (Court Reporter RHONDA SANSOM.) Signed by Karen K. Caldwell. (SYH)cc: COR (Entered: 03/01/2010)
667 ORDER: Court granted the parties' Joint Moton for Entry of Consent Decree 666 and enters the Consent Decree resolving all matters in dispute between the parties, the Court ORDERS that all pending motions are DENIED as Moot. Signed by Judge Karen K. Caldwell on 3/1/2010.(RBB)cc: COR (Entered: 03/01/2010)
669 CONSENT ORDER (DECREE): The parties agree to submit an Order of Dismissal, dismissing this actlon with prejudice, with the Court to retain jurisdiction for five (5) years solely for purposes of enforcing the terms of this Decree. Signed by Judge Karen K. Caldwell on 3/1/10. (Attachments: # 1 Exhibit Employee Notice)(SYH)cc: COR (Entered: 03/01/2010)
670 MOTION for Order to Enforce consent Decree by Equal Employment Opportunity Commission (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1 − Report, # 3 Exhibit 2 − Declaration of Oddie Greene, # 4 Exhibit 3 − Declaration of Amy Smallwood, # 5 Exhibit 4 − Declaration of Margaret Gooden, # 6 Exhibit 5 − Letter dated 9/20/2010, # 7 Exhibit 6 − Letter dated 9/24/2010, # 8 Exhibit 7 − Letter dated 9/28/2010, # 9 Exhibit 8 − Letter dated 9/30/2010, # 10 Exhibit 9 − Letter dated 10/1/2010, # 11 Exhibit 10 − Letter dated 10/1/2010, # 12 Exhibit 11 − Letter dated

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11/08/2010
11/08/2010 11/29/2010
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01/06/2011

10/1/2010, # 13 Exhibit 12 − Letter dated 10/1/2010, # 14 Exhibit 13 − Letter dated 10/5/2010, # 15 Proposed Order)(RBB) Modified on 10/15/2010 (RBB). (Entered: 10/15/2010)
671 RESPONSE in Opposition re 670 MOTION for Order to Enforce Consent Decree by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc. (Attachments: # 1 Exhibit 1 − 6097 Hiring Process Flowchart & Checklist, # 2 Exhibit 2 − Filed Under Seal, # 3 Exhibit 3 − Filed Under Seal, # 4 Exhibit 4 − Dep. of Jeff Akers at 113−15, # 5 Exhibit 5 − 10/1/10 Correspondence from Nancy Edmonds, # 6 Exhibit 6 − 3/1/07 Expert Report of Burt Bamow at 19 n.15, # 7 Exhibit 7 − 8/15/08 Expert Rebuttal Report of Richard Martell at 28, # 8 Exhibit 8 − Dep. of Dr. Martell at 267, # 9 Exhibit 9 − 9/28/2010 Correspondence from Nancy Edmonds, # 10 Exhibit 10 − 9/20/2010 Correspondence from Nancy Edmonds, # 11 Exhibit 11 − 10/1/2010 Correspondence from Kathryn Quesenberry, # 12 Exhibit 12 − 9/9/10, 9/20/10, 10/1/10 Correspondence from EEOC, # 13 Proposed Order) (EXHIBITS #2 and #3 ARE MAINTAINED IN PAPER as SEALED DOCUMENTS IN THE CLERK'S OFFICE PURSUANT TO 675 ORDER)(RBB) Modified on 1/6/2011 (RBB). (Entered: 11/09/2010)
672 MOTION to Seal EXHIBITS # 2 and # 3 to 671 Response in Opposition to Motion by Wal−Mart Stores, Inc. (Attachments: # 1 Proposed Order)(RBB) (Entered: 11/09/2010)
673 REPLY to Response to Motion re 670 MOTION for Order to Enforce Consent Decree by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1−Job offers by Wal−Mart, # 2 Exhibit 2−Physical Abilities Test Results for Select Class−Members, # 3 Exhibit 3−Physical Abilities Test Results for Class member who rcvd offer, # 4 Exhibit 4−Michelle Eisele Declaration, # 5 Exhibit 5−Depo Excerpts re Orion Survey (part 1), # 6 Exhibit 5−Depo Excerpts re Orion Survey (part 2), # 7 Exhibit 6−Cited Pages from Daubert Hearing, # 8 Exhibit 7−Livingtson Book Review)(RBB) (Entered: 11/29/2010)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 670 MOTION for Order to Enforce Consent Decree by Equal Employment Opportunity Commission (RBB) (Entered: 11/29/2010)
**********************VOLUME 32**************************. (RBB) (Entered: 12/13/2010)
674 MOTION for Order Approving Entry of Proposed Notice of Distribution by Equal Employment Opportunity Commission (Attachments: # 1 Exhibit 1 − Notice of Proposed Distribution, # 2 Exhibit 2 − Admin Report Signed, # 3 Exhibit 3 − Count of Claimants by Category and Class, # 4 Exhibit 4 − Catagory Ranking and Class Data With Award Final)(RBB) (Entered: 12/13/2010)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 674 MOTION for Order by Equal Employment Opportunity Commission, 672 MOTION to Seal Document 671 Response in Opposition to Motion by Wal−Mart Stores, Inc. (RBB) (Entered: 12/30/2010)
675 ORDER: This matter having come before the Court on Defendant Wal−Mart Stores, Inc.'s Motion to File Exhibits Under Seal [DE. 672 ]; the Court having been fully apprised in the merits thereto; IT IS HEREBY ORDERED that Wal−Mart's motion shall be, and hereby is, GRANTED. The Court orders that Exhibits 2 and 3 to Wal−Mart's Response to EEOC's Motion to EnforceConsent Decree be filed under seal by the Clerk of the Court. Signed by Judge Karen K. Caldwell on 1/6/2011. (Document scanned for distribution to parties per Chamber's instructions.)(RBB)cc: COR (Entered: 01/06/2011)
676 OPINION & ORDER: Court hereby ORDERS that Wal−Mart's Motion to Enforce ConsentDecree (DE 670 ) is DENIED. Motions terminated: 670 MOTION for Order to Enforce Consent Decree by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. Signed by Judge Karen K. Caldwell on 1/6/2011. (Document scanned for distribution to parties per Chamber's instructions.)(RBB)cc: COR (Entered: 01/06/2011)

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01/24/2011 02/11/2011 02/15/2011 03/07/2011 03/07/2011
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677 NOTICE OF PROPOSED DISTRIBUTION: (See notice/order for details) Motions terminated: 674 MOTION for Order by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. Signed by Judge Karen K. Caldwell on 1/24/2011. (Document scanned for immediate distribution to parties per Chamber's instructions.) (RBB)cc: COR (Entered: 01/24/2011)
678 MOTION to Correct 677 Notice of Distribution and attachments. Order (Attachments: # 1 Exhibit 1 − Revised Ntc of Proposed Distribution, # 2 Exhibit 2 − Advised Administrative Report 2011, # 3 Exhibit 3 − Revised Count of Claimants, # 4 Exhibit 4 − All Claims Filed w Award Status)(RBB) (Entered: 02/11/2011)
679 REVISED NOTICE OF PROPOSED DISTRIBUTION: (see notice/order for details)Motions terminated: 678 MOTION to Correct 677 Notice of Distribution and attachments. Signed by Judge Karen K. Caldwell on 2/15/2011. (RBB) cc: COR (Document scanned for immediate distribution to parties per Chamber's instructions.) (Entered: 02/15/2011)
680 MOTION for Fairness Hearing to resolve all objections to the Proposed Notice of Distribution 678 by Equal Employment Opportunity Commission (RBB) Modified on 3/7/2011 (RBB). NOTE: This document is a Motion (REQUEST for Fairness Hearing AND a Submittion of Objections. The Submission of Objections is filed at DE # 681 .) (Entered: 03/07/2011)
681 OBJECTIONS to 679 Proposed Notice of Distribution filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1 − S. Hargis Objection, # 2 Exhibit 2 − D. Couch Objection, # 3 Exhibit 3 − S. Rader−Conner Objection, # 4 Exhibit 4 − A. Phillips Objectioin, # 5 UNREDACTED Exhibit 5 − D. Brewer Objection, # 6 UNREDACTED Exhibit 6 − D. Garrison Objection, # 7 Exhibit 7 − F. Gross Objection, # 8 UNREDACTED Exhibit 8 − G. McCoy Objection, # 9 UNREDACTED Exhibit 9 − G. McCoy Objection, # 10 Exhibit 10 − K. Pence Objection, # 11 Exhibit 11 − K. Stensrud Objection, # 12 Exhibit 12 − T. Hash Objection, # 13 Exhibit 13 − T. Howard Objection, # 14 Exhibit 14 − T. Jackson Objection, # 15 Exhibit 15 − J. Curry Objection, # 16 Exhibit 16 − V. Collett Objection, # 17 Exhibit 17 − A. collett Objection, # 18 Exhibit 18 − K. Brittian Ojbejction, # 19 UNREDACTEDExhibit 19 − L. Short Objection, # 20 UNREDACTED Exhibit 20 − P. Sowders Objection, # 21 Exhibit 21 − 4. Dunford Objection, # 22 Exhibit 22 − R. Sizemore Objection, # 23 Exhibit 23 − B. McKnight Objection, # 24 Exhibit 24 − D. Guthrie Objection, # 25 Exhibit 25− G. Dozier−Nunn Objection, # 26 UNREDACTED Exhibit 26 − G. McCoy Objection, # 27 Exhibit 27 − A. Corer Objections, # 28 Exhibit 28 − A. Vickers Objection)NOTE: This pleading was combined in the 680 Motion for Fairness Hearing. (RBB) (Additional attachment(s) added on 4/19/2011: # 29 REDACTED Exhibit 5 − D. Brewer Objection, # 30 REDACTED Exhibit 6 − D. Garrison Objection, # 31 REDACTED Exhibit 8 − G. McCoy Objection, # 32 REDACTED Exhibit 9 − G. McCoy, # 33 REDACTED Exhibit 19 − L. Short Objection, # 34 REDACTED Exhibit 20 − P. Sowders Objection, # 35 REDACTED Exhibit 26 − G. McCoy Objection) (RBB). Modified on 4/19/2011 (RBB). (Additional attachment(s) added on 5/4/2011: # 36 Main Document − Submission of Objections) (RBB). (Entered: 03/07/2011)
682 FIRST SUPPLEMENTAL SUBMISSION OF OBJECTIONS to 679 Proposed Notice of Distribution for Fairness Hearing filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 29 − C Ambach, # 2 Exhibit 30 − C. Cord Objection, # 3 Exhibit 31 − C. King Objection, # 4 Exhibit 32 − J. Burkhart Objection, # 5 Exhibit 33 − S. Kilburn Objection, # 6 Exhibit 34 − T. MacNevin Objection, # 7 Exhibit 35 − C. Roark Objection, # 8 Exhibit 36 − T. Elza Objection, # 9 Exhibit 37 − J. Olinger Objection, # 10 Exhibit 38 − J. Thomas Objection, # 11 Exhibit 39 − N. Tye Objection, # 12 Exhibit 40 − P. Napier Objection, # 13 Exhibit 41 − P. Runion Objection)(RBB) (Entered: 03/14/2011)
683 ORDER: This matter is before the Court on the EEOC's Request for Fairness Hearing (DE 680 ) which has been construed as a motion. The Court hereby ORDERS that the motion is GRANTED and this matter is SET for a formal fairness hearing to begin on Thursday, June 9, 2011 at 10:00 a.m. at thefederal courthouse in London, Kentucky. The EEOC SHALL CAUSE this Order and Notice to be mailed to all Eligible Claimants as that term is defined in the Consent Decree and to all individuals who have submitted to the EEOCLetters of Disagreement pursuant to Section 603 of the

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04/15/2011
04/16/2011 04/19/2011 04/19/2011 05/02/2011

Consent Decree.Any individual who has submitted a Letter of Disagreement to the EEOC will be heard and must be prepared to submit at the hearing all available evidence in support of her objection. Any such individual who does not wish to appear at the hearing and wishes her objection to be resolved on the basis of written submissions only, MUST SUBMIT a signed and sworn statement of herobjection and any other documentary evidence in support of her objection to Chambers on or before June 3, 2011 by mailing all such evidence to:Judge Karen K. Caldwell; United States District Court; P.O. Box 2207; Lexington, KY 40588−2207. Motions terminated: 680 MOTION for Fairness Hearing to resolve all objections to the Proposed Notice of Distribution by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (Evidentiary Hearing set for 6/9/2011 10:00 AM in LONDON before Judge Karen K. Caldwell.) Signed by Judge Karen K. Caldwell on 3/25/2011.(RBB)cc: COR (filed electronically per instructions of Chambers) (Entered: 03/25/2011)
684 SECOND SUPPLEMENTAL SUBMISSION OF OBJECTIONS to 679 Proposed Notice of Distribution for Fairness Hearing filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 42 B Sizemore Objection, # 2 UNREDACTED Exhibit 43 G Marcum Objection, # 3 Exhibit 44 L Crawford Objection, # 4 Exhibit 45 M Morgan Objection, # 5 Exhibit 46 D Hislope Objection, # 6 Exhibit 47 P Brummett Objection, # 7 Exhibit 48 P Napier Objection, # 8 Exhibit 49 S Lockaby Objection, # 9 Exhibit 50 S Bundy Objection, # 10 Exhibit 51 J Burkhart Objection, # 11 Exhibit 52 R Rosenau Objection, # 12 Exhibit 53 V Sutton Objection, # 13 Exhibit 54 J Poff Objection, # 14 Exhibit 55 S Henson Objection Objection, # 15 Exhibit 56 M Smith Objection, # 16 Exhibit 57 T Saylor Objection Part 1, # 17 Exhibit 57 T Saylor Objection Part 2, # 18 Exhibit 57 Objection T Saylor Part 3, # 19 Exhibit 57 T Saylor Objection Part 4, # 20 Exhibit 57 T Saylor Objection Part 5, # 21 Exhibit 57 T Saylor Objection Part 6, # 22 Exhibit 57 T Saylor Objection Part 7, # 23 Exhibit 57 T Saylor Objection Part 8, # 24 Exhibit 57 T Saylor Objection Part 9, # 25 Exhibit 57 T Saylor Objection Part 10, # 26 Exhibit 58 R Gray Objection, # 27 Exhibit 59 S Mason Objection)(SYH) (Additional attachment(s) added on 4/19/2011: # 28 REDACTED Exhibit 43 − G. Marcum Objection) (RBB). Modified on 5/3/2011 (RBB). Modified on 5/3/2011 (RBB). (Entered: 03/28/2011)
685 THIRD SUPPLEMENTAL SUBMISSION OF OBJECTIONS to 679 Proposed Notice of Distribution for Fairness Hearing filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 60 − K. Davis Objection, # 2 Exhibit 61 − R. Spurlock Objection, # 3 Exhibit 62 − V Carman−Thompson Objection, # 4 Exhibit 63 − A. Barnes Objection, # 5 Exhibit 64 − D. Queen Objection, # 6 Exhibit 65 − E. Eldridge Objection, # 7 Exhibit 66 − K. Ridener Objection, # 8 Exhibit 67 − T. Stevens Objections, # 9 Exhibit 68 − M. Jones Objections, # 10 Exhibit 69 − J. Peters Objections, # 11 Exhibit 70 − R. Vallance Objections, # 12 Exhibit 71 − A. Woodard Objections, # 13 Exhibit 72 − C. Jackson Objections, # 14 Exhibit 73 − M. Davey, # 15 Exhibit 74 − K. Couch, # 16 Exhibit 75 − L. Couch, # 17 Exhibit 76 − T. Cromer, # 18 Exhibit 77 − L. McConnell)(RBB) (Entered: 04/15/2011)
**********************VOLUME 33**************************. (RBB) (Entered: 05/04/2011)
686 MOTION for Order to Substitute Exhibits by Equal Employment Opportunity Commission (Attachments: # 1 Proposed Order, # 2 Redacted Exhibit 5 − D. Brewer Objection, # 3 Redacted Exhibit 6 − D. Garrison Objection, # 4 Redacted Exhibit 8 − G. McCoy Objection, # 5 Redacted Exhibit 9 − G. McCoy Objection, # 6 Redacted Exhibit 19 − L. Short Objection, # 7 Redacted Exhibit 20 − P. Sowders Objection, # 8 Redacted Exhibit 26 − G. McCoy Objection, # 9 Redacted Exhibit 43 − G. Marcum Objection)(RBB) Modified on 4/19/2011 to add motion text. (RBB). (Entered: 04/19/2011)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 686 MOTION for Order to Substitute Exhibits by Equal Employment Opportunity Commission (RBB) (Entered: 04/19/2011)
687 FOURTH SUPPLEMENTAL SUBMISSON OF OBJECTIONS to 679 REVISED NOTICE OF PROPOSED DISTRIBUTION filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 78 − B. Mitchell Objection, # 2 Exhibit 79 − D. Sparkman Objection, # 3 Exhibit 80 − O. Evans Objection, # 4 Exhibit 81 − C.

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05/03/2011
05/03/2011 05/23/2011 05/24/2011 05/24/2011 05/24/2011 05/25/2011

DeHart Objection, # 5 Exhibit 82 − M. Grubb Objection, # 6 Exhibit 83 − M. Hampton Objection, # 7 Exhibit 84 − M. Warren Objection, # 8 Exhibit 85 − S. Fearer Objection, # 9 Exhibit 86 − S. Burnette Objection, # 10 Exhibit 87 − J. Gaskins Objection, # 11 Exhibit 88 − W. Tye Objection, # 12 Exhibit 89 − R. Thompson Objection, # 13 Exhibit 90 − A. Adams Objection, # 14 Exhibit 91 − J. Shanks Objections, # 15 Exhibit 92 − A. Sparks Objection, # 16 Exhibit 93 − C. Boggs Objection, # 17 Exhibit 94 − D. Mason Objection, # 18 Exhibit 95 − I. Osborne Objection, # 19 Exhibit 96 − J. Cox Objection, # 20 Exhibit 97 − T. Eversole Objection, # 21 Exhibit 98 − T. Sizemore Objection, # 22 Exhibit 99 − U. Saylor Objection, # 23 Exhibit 100 − C. Burgan−Skaggs Objection, # 24 Exhibit 101 − S. Martin Objection, # 25 Exhibit 102 − J. Long Objection, # 26 Exhibit 103 − P. Bright−Partin Objection, # 27 Exhibit 104 − V. Hill Objection, # 28 Exhibit 105 − V. Barnett, # 29 Exhibit 106 − L. Tuttle Objection, # 30 Exhibit 107 − B. Jones Objection)(RBB) (Entered: 05/02/2011)
688 ORDER: This matter is before the Court on the attached correspondence mailed to Chambers in response to the Court's Order dated March 25, 2011. Court hereby ORDERS that the Clerk of the Court SHALL FILE in the record of thismatter copies of the correspondence which has been REDACTED in accordance with Joint General Order 04−01. The Court further ORDERS that the Clerk of the Court SHALL FILE UNDER SEAL the original correspondence. Signed by Judge Karen K. Caldwell on 5/2/2011. (Document scanned for immediate distribution to parties per Chamber's instructions.) (RBB)cc: COR (Entered: 05/03/2011)
689 REDACTED OBJECTIONS to 679 REVISED NOTICE OF PROPOSED DISTRIBUTION filed pursuant to Court's Order R. 688 .(RBB) (Additional attachment(s) added on 5/4/2011: # 1 SEALED Unredacted Objections) (RBB). Modified on 5/4/2011 to state: Redacted and Unredacted Objections filed prusuant to 688 ORDER. (Entered: 05/03/2011)
690 ORDER: Court will conduct a telephone conference on May 25, 2011 at 2:00 p.m. for the purpose of developing procedures for the Fairness Hearing on Thursday, June 9, 2011 at 10:00 a.m. Chambers will initiate the call. ( Telephone Conference set for 5/25/2011 02:00 PM before Judge Karen K. Caldwell.). Signed by Judge Karen K. Caldwell on 5/23/2011.(JMB)cc: COR (Entered: 05/24/2011)
691 AMENDED ORDER: Court will conduct a telephone conference on May 25, 2011, 2:30 p.m. for the purpose of developing procedures for the Fairnes Hearing on Thursday, June 9, 2011 at 10:00 a.m. Chambers will initate the call. ( TELEPHONE CONFERENCE set for 5/25/2011 at 2:30 PM before Judge Karen K. Caldwell.). Signed by Judge Karen K. Caldwell on 5/24/2011.(RC)cc: COR, court diary (Entered: 05/24/2011)
692 ORDER: The Clerk of Court SHALL FILE in the record copies of the correspondence which has been REDACTED in accordance with JGO 04−01. The Court further ORDERS that the Clerk of Court SHALL FILE UNDER SEAL the original correspondence. Signed by Judge Karen K. Caldwell on 5/24/2011. (Attachments: # 1 Redacted Correspondence − See DE 693 which contains a separate entry of these redacted documents)(RC)cc: COR Modified text on 5/26/2011 (MRS). (Entered: 05/24/2011)
693 REDACTED Correspondence filed pursuant to Order DE 692 (RC) (Additional attachment(s) added on 5/26/2011: # 1 Unredacted Correspondence) (MRS). (Entered: 05/25/2011)
694 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 5/25/2011. before Judge Karen K. Caldwell: 1) Fairness Hearing remains scheduled in London on 6/9/2011 at 10:00 a.m. Court will set aside 6/10/2011 as well for this matter; 2) Court GRANTS the oral motion of Wal−Mart and ORDERS the Clerk of the Court to permit cnsl of record for Wal−Mart to inspect and review unredacted objections and correspondence, currently filed under seal at DE 681 , 684 , 689 and 692 . Clerk shall make copies requested and collect copy fees. Wal−Mart is cautioned that copies of any sealed docs should not be disseminated and shall be used only for this litigation. (Court Reporter Rhonda Sansom.) Signed by Karen K. Caldwell. (MRS)cc: COR (Entered: 05/26/2011)

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05/31/2011 06/01/2011 06/01/2011 06/01/2011
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695 FIFTH SUPPLEMENTAL SUBMISSION OF OBJECTIONS to 679 filed by Equal Employment Opportunity Commission. (Attachments: # 1 Cover Letter, # 2 Ext 108 − Boles−Craft Objection, # 3 Exhibit 109 − E. Clontz Objection, # 4 Exhibit 110 − D. Davis to NDE Potential Class Member, # 5 Exhibit 111 − D. McMullin Objection, # 6 Exhibit 112 − J. Davis Objection, # 7 Exhibit 113 − T. Ramsey Objection, # 8 Exhibit 114 − T. Sizemore Objection, # 9 Exhibit 115 − A. Bowling Objection, # 10 Exhibit 116 − R. Benge Objection, # 11 Exhibit 117 − S. Cook Objection, # 12 Exhibit 118 − J. Long Objection, # 13 Exhibit 119 − Linda McConnell Sworn Statement)(RC) (Entered: 06/01/2011)
696 EMERGENCY MOTION to Continue June 9, 2011 Fairness Hearing by Equal Employment Opportunity Commission (Attachments: # 1 Exhibit 1 − Letter to Nancy Dean Edmonds, # 2 Proposed Order, # 3 Cover letter)(JMB) (Entered: 06/01/2011)
697 MOTION for Order Granting Miscellaneous Relief with Respect to Settlement Fund Distribution by Equal Employment Opportunity Commission (Attachments: # 1 Exhibit 1 − 3/10/2011 Letter to Kathryn Quesenberry, # 2 Exhibit 2 − 3/21/2011 Letter to Kathryn Quesenberry, # 3 Exhibit 3 − 3/21/2011 Letter to Kathryn Quesenberry, # 4 Exhibit 4 − 5/9/2011 Letter to Kathryn Quesenberry, # 5 Exhibit 5 − 3/30/2011 Letter to Nancy Dean Edmonds, # 6 Exhibit 6 − 4/27/2011 Letter to Nancy Dean Edmonds, # 7 Exhibit 7 − 5/13/2011 Letter to Nancy Dean Edmonds, # 8 Exhibit 8 − 5/20/2011 Letter to Kathryn Quesenberry, # 9 Exhibit 9 − 5/27/2011 Letter to Nancy Dean Edmonds, # 10 Proposed Order, # 11 Cover letter)(JMB) (Entered: 06/01/2011)
698 ORDER re 696 EMERGENCY MOTION to Continue June 9, 2011 Fairness Hearing filed by Equal Employment Opportunity Commission: The motion is GRANTED and the Fairness Hearing is RESCHEDULED to take place at 10:00 AM on August 25, 2011 at the federal courthouse in London, Ky and continuing through August 26, 2011 as necessary. Court further ORDERS that the EEOC SHALL CAUSE this Order and Notice to be mailed to all class members and claimants. Motions terminated: 696 MOTION to Continue by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. ( Fairness Hearing set for 8/25/2011 10:00 AM in LONDON before Judge Karen K. Caldwell.). Signed by Judge Karen K. Caldwell on 6/1/2011.(JMB)cc: COR (Entered: 06/01/2011)
699 TRANSCRIPT of Proceedings: TELEPHONIC CONFERENCE held on 5/25/2011 before Judge Karen K. Caldwell. Court Reporter: Rhonda Sansom, Telephone number 859−619−3624. Transcript ordered by: NORA FITZGERALD MELDUM. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. The Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction.. Redaction Request due 7/5/2011. Redacted Transcript Deadline set for 7/14/2011. Release of Transcript Restriction set for 9/9/2011. (RC) (Entered: 06/08/2011)
700 ORDER: Clerk of Court shall file in the record of this mater copies of the correspondence which has been REDACTED in accordance w/ JGO 04−01. Court furhter ORDERS that the Clerk of Court SHALL FILE UNDER SEAL the original correspondence. Signed by Judge Karen K. Caldwell on 6/8/2011.(JMB)cc: COR (Entered: 06/09/2011)
701 REDACTED CORRESPONDENCE in RESPONSE to 683 Order (Attachments: # 1 Correspondence, Part 2, # 2 Correspondence, Part 3)(JMB)Filed pursuant to Order 700 (Additional attachment(s) added on 6/10/2011: # 3 Unredacted Correspondence) (MRS). (Entered: 06/09/2011)
702 RESPONSE to Motion re 697 MOTION for Order by Equal Employment Opportunity Commission filed by Wal−Mart Stores, Inc.. (Attachments: # 1 Exhibit 1−April 28, 2010 Letter, # 2 Exhibit 2−April 28, 2010 Letter to EEOC, # 3 Exhibit 3−Affidavit of J. Wilkins, # 4 Exhibit 4−March 10, 2011 Letter from EEOC, # 5 Exhibit 5−March 30,

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08/04/2011 08/04/2011

2011 Letter, # 6 Exhibit 6−April 14, 2011 Letter, # 7 Exhibit 7−April 27, 2011 Letter, # 8 Exhibit 8−May 9, 2011 Letter, # 9 Exhibit 9−May 20, 2011 Letter, # 10 Exhibit 10−May 27, 2011 Letter, # 11 Exhibit 11−June 1, 2011 Letter, # 12 Exhibit 12−Transcript of May 25, 2011 Telephonic Conference)(RC) (Entered: 06/27/2011)
703 ORDER: This matter having come before the Court on the EEOC's Motion 686 to Substitute Exhibits and the Court being duly advised in the premises, the Motion is hereby GRANTED. The Court shall permit the substitution ofexhibit nos. 5, 6, 8, 9, 20 and 26 to DE# 680 and exhibit no. 43 to DE # 684. Signed by Judge Karen K. Caldwell on 07/11/2011. (MRS)cc: COR (Entered: 07/12/2011)
704 REPLY to Response to Motion re 697 MOTION for Order Granting Miscellaneous Relief with Respect to Settlement Fund Distribution by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1 Letter to Nancy Dean Edmonds, # 2 Declaration of Loree Kovach)(SWA) (Entered: 07/14/2011)
***MOTION SUBMITTED TO CHAMBERS of Caldwell for review: re 697 MOTION for Order by Equal Employment Opportunity Commission (SWA) (Entered: 07/14/2011)
705 MOTION for Leave by Wal−Mart Stores, Inc. to file Sur Reply (Attachments: # 1 Sur Reply, # 2 Exhibit Exhibit A to Sur Reply)(Quesenberry, Kathryn) Modified on 8/11/2011 to remove referral language. (RBB). (Entered: 07/22/2011)
NOTICE OF DEFICIENCY TO Kathryn Quesenberry re 705 MOTION for Leave by Wal−Mart Stores, Inc. to file Sur Reply ; attorney failed to submit a proposed order as an electronic attachment to the motion. Entry by attorney; within 7 calendar days prepare a pleading entitled "Notice of Filing" (with a certificate of service), file the Notice using the event "Notice of Filing," attach the proposed order, and create a link to the related docket entry.; cc: COR (RC) Modified text to remove excessive underlining on 7/25/2011 (RC). (Entered: 07/25/2011)
Clerk's Note: re 705 MOTION for Leave by Wal−Mart Stores, Inc. to file Sur Reply. Clerk contacted office of Kathryn Quesenberry to advise that they are not permitted to file electronically and that all future filings should be filed in paper. (RC) (Entered: 07/25/2011)
706 NOTICE OF FILING by Wal−Mart Stores, Inc. re 705 MOTION for Leave by Wal−Mart Stores, Inc. to file Sur Reply (Attachments: # 1 Proposed Order)(RC) (Entered: 07/28/2011)
707 MOTION to Continue August 25, 2011 Fairness Hearing if Motions for Miscellaneous Relief is Denied by Equal Employment Opportunity Commission (Attachments: # 1 Proposed Order)(RBB) (Entered: 08/03/2011)
708 ORDER: This matter is before the Court on the EEOC's Motion for Order Granting Miscellaneous Relief [DE 697 ]. The Court hereby ORDERS that the motion is SET for a telephonic hearing on Thursday, August 4, 2011 at 1:30 p.m. Chambers will initiate the call. (TELEPHONE CONFERENCE set for 8/4/2011 at 01:30 PM in LEXINGTON before Judge Karen K. Caldwell.) Signed by Judge Karen K. Caldwell on 08/04/2011.(RBB)cc: COR, Court Diary, Lexington (Entered: 08/04/2011)
709 MOTION to Withdraw attorney Erin M. Roark as counsel of record by Wal−Mart Stores, Inc. (Attachments: # 1 Proposed Order)(RBB) (Entered: 08/04/2011)
711 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 8/4/2011, before Judge Karen K. Caldwell: 1. The Fairness Hearing scheduled for August 25, 2011, in London is CONTINUED pending ruling on Plaintiff's Motion for Order Granting Miscellaneous Relief with Respect to Settlement Distribution (DE 697 ).2. Plaintiff's Motion for Order Granting Miscellaneous Relief (DE 697) is set for Hearing on August 25, 2011, at 11:00 a.m. in Lexington. 3. No later than seven (7) days prior to the hearing, the parties shall file a list of witnesses expected to testify at said hearing. Set Deadlines/Hearing as to 697 MOTION for Order by Equal Employment Opportunity Commission: (MOTION HEARING set for 8/25/2011 at 11:00 AM in LEXINGTON before Judge Karen K. Caldwell.) (Court Reporter Rhonda Sansom.) Signed by Karen K. Caldwell. (RBB)cc: COR, Lexington Court Diary, London Court

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08/08/2011
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08/18/2011 08/18/2011 08/24/2011 08/24/2011 08/24/2011

Diary (Entered: 08/09/2011)
710 TRANSCRIPT of Proceedings: TELEPHONIC STATUS CONFERENCE held on 8/4/2011 before Judge Karen K. Caldwell. Court Reporter: Rhonda Sansom, Telephone number 859.619.3624. Transcript ordered by: Kathryn Quesenberry. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. The Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. Redaction Request due 9/1/2011. Redacted Transcript Deadline set for 9/12/2011. Release of Transcript Restriction set for 11/10/2011. (RBB) (Entered: 08/08/2011)
712 Exhibit List re: Telephone Conference held 8/12/2011. (Attachments: # 1 Various Exhibits)(RBB) (Entered: 08/12/2011)
713 TRANSCRIPT of Proceedings: TELEPHONIC CONFERENCE held on 8/12/2011 before Judge Karen K. Caldwell. Court Reporter: Rhonda S. Sansom, Telephone number 859−619−3624. Transcript ordered by: Kathryn Quesenberry. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. The Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction.. Redaction Request due 9/6/2011. Redacted Transcript Deadline set for 9/15/2011. Release of Transcript Restriction set for 11/14/2011. (RBB) (Entered: 08/12/2011)
714 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 8/12/2011. before Judge Karen K. Caldwell: Letters submitted to Chambers by counsel shall be filed in the record as exhibits to this hearing. Unless good cause is shown. the parties shall exchange all exhibits to be introduced at the August25, 2011 Hearing by email or otherwise for delivery to opposing counsel on August 18, 2011. The list of exhibits shall include, but is not limited to, all changes recommended by the settlement administrator, a summary of the settlement administrators expenses to date, and a projection of the settlement administrators future expenses. (Court Reporter Rhonda Sansom.) Signed by Karen K. Caldwell. (RBB)cc: COR (Entered: 08/16/2011)
715 Witness List for 8/25/2011 Hearing by Equal Employment Opportunity Commission. (RBB) (Entered: 08/18/2011)
716 Witness and Exhibit List for Evidentiary Hearing scheduled for August 25, 2011 by Wal−Mart Stores, Inc. (RBB) (Entered: 08/18/2011)
717 VIRTUAL ORDER : Granting 709 MOTION to Withdraw as Attorney by Wal−Mart Stores, Inc., and 705 Motion for Leave by Wal−Mart Stores Inc. to file Sur Reply. Motions terminated: 705 MOTION for Leave by Wal−Mart Stores, Inc. to file Sur Reply filed by Wal−Mart Stores, Inc. 709 MOTION to Withdraw as Attorney by Wal−Mart Stores, Inc. filed by Wal−Mart Stores, Inc. Attorney Erin M. Roark terminated. Signed by Judge Karen K. Caldwell on 8/24/2011.(RBB)cc: COR (Entered: 08/24/2011)
Attorney Update. Attorney Erin M. Roark terminated. (RBB) (Entered: 08/24/2011)
718 SUR REPLY re 697 MOTION for Order With Respect to Settlement Fund Distribution by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A − Correspondence)(RBB) (Entered: 08/24/2011)

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719 TRANSCRIPT of Proceedings: MOTION HEARING held on 8/25/2011 before Judge KAREN K. CALDWELL. Court Reporter: Rhonda Sansom, Telephone number 859.619.3624. Transcript ordered by: COURT. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. The Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. Redaction Request due 9/19/2011. Redacted Transcript Deadline set for 9/29/2011. Release of Transcript Restriction set for 11/28/2011. (RBB) (Entered: 08/25/2011)
720 JOINT MOTION to Modify Consent Decree by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc. (Attachments: # 1 Proposed Order Modifying Consent Decree)(RBB) (Additional attachment(s) added on 8/25/2011: # 2 Exhibit Administrator's Recommended Revisions) (RBB). (Entered: 08/25/2011)
***MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 697 MOTION for Order by Equal Employment Opportunity Commission, 720 MOTION to Modify Consent Decree by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc. (RBB) (Entered: 08/25/2011)
721 JOINT RESPONSE TO ORDER TO SHOW CAUSE by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc. filed by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc. (Attachments: # 1 Exhibit A − Joint Motion to Modify Consent Decree)(RBB) (Entered: 08/26/2011)
722 MINUTE ENTRY ORDER FOR MOTION HEARING held on 8/25/2011 re 697 MOTION for Order by Equal Employment Opportunity Commission filed by Equal Employment Opportunity Commission before Judge Karen K. Caldwell: Counsel are hereby ORDERED TO SHOW CAUSE why they should not be sanctioned for failing to appear, as deSignated by prior Orders of this Court. A transcript of this proceeding shall be made and transmitted to all parties in this action. (Court Reporter Rhonda Sansom.) Signed by Karen K. Caldwell. (RBB)cc: COR (Entered: 08/26/2011)
723 ORDER: Matter before Court on Joint Response to Court's Show Cause Order 721 ; The Court ORDERS that this matter is SET for a telephonic status conference on Tuesday, September 20, 2011 at 11:00 a.m. Chambers will initiate the call. At the conference, the Court will set a new date for the fairness hearing. The parties should be prepared to discuss their resolution onthe Plaintiffs most recent motion [DE 697 ] and the contents of any additional notices that will be distributed to class members. (TELEPHONE CONFERENCE set for 9/20/2011 at 11:00 AM in LEXINGTON before Judge Karen K. Caldwell.) Signed by Judge Karen K. Caldwell on 09/14/2011.(RBB)cc: COR, Lexington Court Diary (Entered: 09/14/2011)
724 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 9/20/2011 before Judge Karen K. Caldwell; ORDERED: (1) The Joint Motion To Modify Consent Decree (DE # 720 ) is WITHDRAWN and parties have leave to file an amended motion.(2) The Fairness Hearing is SCHEDULED for Tuesday, October 25,2011 beginning at 9:00 A.M. in London, Kentucky before Judge Karen K. Caldwell and continuing through October 26, 2011, as necessary. (Evidentiary Hearing set for 10/25/2011 09:00 AM in LONDON before Judge Karen K. Caldwell. Evidentiary Hearing set for 10/26/2011 09:00 AM in LONDON before Judge Karen K. Caldwell. (Court Reporter Rhonda Sansom.) Signed by Karen K. Caldwell. (RBB)cc: COR, Court Diary (Entered: 09/20/2011)
725 JOINT MOTION for Extension of Time to Modify 669 Consent Decree Order, by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc. (Attachments: # 1 Proposed Order)(RBB) Modified on 10/4/2011 to add motion text. (RBB). (Entered: 10/04/2011)
***JOIN MOTION SUBMITTED TO CHAMBERS of Karen K. Caldwell for review: re 725 JOINT MOTION for Extension of Time to Modify Consent Decree 669 Order,

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by Equal Employment Opportunity Commission, Wal−Mart Stores, Inc. (RBB) (Entered: 10/04/2011)
**********************VOLUME 34 **************************. (RBB) (Entered: 10/24/2011)
726 ORDER: Upon Joint Motion of the Parties, both by counsel, the Court enters the following modification of the March 1,2010 Consent Decree. With the exception of this modification, the Consent Decree is incorporated herein by reference without revision. ORDERED that the following paragraph shall be added to the end of Section 401, "Monetary Relief:" In addition, Wal−Mart shall pay an additional $120,000 into the Qualified Settlement Fund account. This sum is an agreed settlement of the EEOC's Motion for Order Granting Miscellaneous Relief and addresses an administrative error made by Wal−Mart. Wal−Mart shall be released from any further obligation arising from this administrative error. Signed by Judge Karen K. Caldwell on 10/6/2011. (RBB)cc: COR (Entered: 10/06/2011)
727 PROPOSED AGENDA FOR OCTOBER FAIRNESS HEARING by Equal Employment Opportunity Commission. (RBB) (Entered: 10/07/2011)
728 MOTION for entry of FINAL NOTICE OF DISTRIBUTION by Equal Employment Opportunity Commission. (Attachments: # 1 Final Notice of Distribution, # 2 SA Expl of App Packet Review, # 3 Revised Summary of Claimants by Category and Class, # 4 Recommended Award Amounts)(RBB) (Entered: 10/20/2011)
729 MINUTE ENTRY ORDER FOR EVIDENTIARY HEARING held on 10/25/2011. before Judge Karen K. Caldwell: This matter was called for a fairness hearing on October 25, 2011. The Court heard testimony from the Settlement Administrator and the paralegal ofthe Equal Employment Opportunity Commission, as well as all those present who indicated a desire to be heard. The matter is TAKEN UNDER ADVISEMENT. (Court Reporter Rhonda Sansom.) (RBB)cc: COR (Entered: 10/26/2011)
730 Exhibit and Witness List for Fairness Hearing held 10/25/2011. (NOTE: Exhibits consisting of 2 large white three ring binders and one envelope containing a single exhibit (Plf's Exh #120) placed with boxed record. (RBB) Modified on 10/26/2011 (RBB). (Entered: 10/26/2011)
731 TRANSCRIPT of Proceedings: Fairness Hearing held on 10/25/2011 before Judge Karen K. Caldwell. Court Reporter: Rhonda Sansom, Telephone number 859.619.3624. Transcript ordered by: KATHRYN A. QUESENBERRY, ESQ. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. The Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction.. Redaction Request due 11/28/2011. Redacted Transcript Deadline set for 12/5/2011. Release of Transcript Restriction set for 2/2/2012. (RBB) (Entered: 11/01/2011)
732 OPINION AND ORDER: 1) the EEOC's Motion for Entry of Final Notice of Distribution 728 is GRANTED; 2) The Settlement Fund SHALL BE DISTRIBUTED as provided in the Recommended Award Amounts attached as Exhibit 4 to the EEOC's motion 728 ; 3) Any amount remaining in the fund SHALL BE DISTRIBUTED pro rata to the class members receiving a distribution from the Settlement Fund as provided in the Recommended Award Amounts attached as Exhibit 4 to the EEOC's motion; 4) The EEOC SHALL cause this Opinion and Order to be mailed to all class members; and 5) This Order is Final and Appealable.. Signed by Judge Karen K. Caldwell on 12/20/2011. (JMB)cc: COR (Entered: 12/20/2011)
733 ORDER: the attached letter from Pamela Sowders and the Court's response be filed in the record of this matter.. Signed by Judge Karen K. Caldwell on 12/20/2011.(JMB)cc:

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734 Letter from Pamela Sowders and the Court's response (JMB) Filed pursuant to Order 733 (Entered: 12/20/2011)
735 ORDER: The Court ORDERS that the attached redacted letter from Janice Poff be filed in the record of this matter. The original letter shall be filed UNDER SEAL. The Court also ORDERS that this matter is set for a telephonic status conference on February 23, 2012 at 1:30 p.m. to discuss the concerns raised in the letter. The EEOC is ORDERED to deliver a copy of this Order to the Settlement Administrator and the Settlement Administrator shall take part in the status conference. Chambers will initiate the call. The EEOC and the Settlement Administrator SHALL notify Chambers by noon on February 21, 2012 of the phone number where they can be reached for the status conference. ( TELEPHONE CONFERENCE set for 2/23/2012 at 01:30 PM in LEXINGTON before Judge Karen K. Caldwell.) Signed by Judge Karen K. Caldwell on 2/8/2012.(RBB)cc: COR, Lexington Court Diary (Entered: 02/08/2012)
736 REDACTED Letter w/ mailing envelope from Janice Poff (Filed pursuant to 735 ORDER.) (RBB) (Additional attachment(s) added on 2/8/2012: # 1 UNREDACTED Letter from Janice Poff) (RBB). (Entered: 02/08/2012)
737 MINUTE ENTRY ORDER FOR SETTLEMENT CONFERENCE held on 2/23/2012. before Judge Karen K. Caldwell: The Court has received letters from class members expressing concerns in the delay in the distribution of settlement checks. Settlement administrator, Laurie Kovach, also participated telephonically. Proceedings were transcribed by official court reporter, Rhonda Sansom. The Court was informed by counsel for both parties that a dispute between the parties as to the nature of mailing and costs of mailing was the cause of delay. After hearing from counsel, the Court inquired as to when the distribution checks can be expected to be mailed. Pending approval from Wal−Mart, counsel advised the Court that checks would be mailed by February 29,2012.The Court ORDERS the parties to advise the Court if any more delays or issues arise concerning distribution of the settlement to class members. (Court Reporter Rhonda Sansom.) Signed by Karen K. Caldwell. (RBB) cc: COR (Entered: 02/27/2012)