IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

SEP 19 ZOO5

Plaintiff, v.

CIVIL ACTION

TOBACCO SUPERSTORES, INC.

COMPLAINT

Defendant.

DEMAND

NATURE OF This is an action under Title VII of the Civil 1964 and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of race (Black) and to provide appropriate relief to Theresa Sharkey and a class of African American employees who were adversely affected by such practices. The Commission alleges that Theresa Sharkey and other African American employees of Defendant Tobacco Superstores, Inc. ("Defendant Employer") were denied promotion opportunities to serve in management by Defendant Employer because of race, African American, and that Defendant constructively discharged Ms. Sharkey by its discriminatory practices.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Sections 706(f) (1) and (3) and 707 of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. §§ 2000e-5(f) (1) and (3) and -6 ("Title VII"land Section

102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a.

2. The employment practices alleged to be unlawful were and

are now being committed within the jurisdiction of the United

States District Court for Eastern District of Arkansas, Jonesboro

Division.

PARTIES

3. Plaintiff, the Equal Employment Opportunity Commission

(the "Commission"), is the agency of the United States of America

charged with the administration, interpretation and enforcement of

Title VII, and is expressly authorized to bring this action by

Sections 706 (f) (1) and (3) and 707 of Title VII, 42 U.S.C.

§§ 2000e-5 (f) (1) and (3) and -6.

4. At

I relevant times, Defendant Employer has

continuously been an Arkansas corporation doing business in the

State of Arkansas and the City of Blytheville, and has continuously

had at least 15 employees.

5. At all relevant times, Defendant Employer has

continuously been an employer engaged in an industry affecting

commerce within the meaning of Sections 701 (b), (g) and (h) of

Title VII, 42 U.S.C. §§ 2000e(b) , (g) and (h). Defendant Employer

operates retail stores in Tennessee, Missouri and Mississippi, as

well as Arkansas.

2

STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Theresa Sharkey filed a charge with the Commission alleging violations of Title VII by Defendant Employer. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. Since at least March 2000, Defendant Employer has engaged in unlawful employment practices at Blytheville, Arkansas, and its other retail stores in violation of Section 703 of Title VII, 42 U.S.C. § 2000e-2. These discriminatory practices include
a. failing to promote Theresa Sharkey to available management positions because of race;
b. failing to promote other African American employees to available management positions because of race;
c. constructively discharging Theresa Sharkey because of its discriminatory practices.
8. The effect of the practices complained of in paragraph 7 above has been to deprive Theresa Sharkey and other African American employees of equal employment opportunities and otherwise adversely affect their status as employees, because of their race (African American) .
9. The unlawful employment practices complained of in paragraph 7 above were, and are, intentional.
10. The unlawful employment practices complained of in
3

paragraph 7 above were, and are, done with malice or with reckless indifference to the federally protected rights of Theresa Sharkey and other African American employees.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant Employer, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in race discrimination with regard to promotions and any other employment practice which discriminates on the basis of race, African American. B. Order Defendant Employer to institute and carry out policies, practices, and programs which provide equal employment opportunities for African Americans, and which eradicate the effects of its past and present unlawful employment practices. C. Order Defendant Employer to make whole Theresa Sharkey and other aggrieved African American employees, by providing appropriate backpay with prejUdgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to reinstatement and promotion of Theresa Sharkey and other aggrieved African American employees. D. Order Defendant Employer to make whole Theresa Sharkey
4

and other aggrieved African American employees, by providing 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 Defendant Employer to make whole Theresa Sharkey and other aggrieved African American employees by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in paragraph 7 above, including emotional distress, pain and suffering, embarrassment, humiliation and loss of enjoyment of life, in amounts to be determined at trial.
F. Order Defendant Employer to pay Theresa Sharkey and other aggrieved African American employees 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.
5

JURY TRIAL DEMAND The Commission requests a jury trial on all questions of fact
raised by its complaint.
JAMES L. LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel
<ro:Y\~rL~ KATHARINE W. KORES Regional Attorney Tennessee Bar No. 6283

Supervisory Trlal Attorney

Tennessee Bar

9346

(I .

~

/

CELIA S. LINER

Senior Trial Attorney Arkansas Bar No. 90183

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION 1407 Union Avenue, Suite 621 Memphis, Tennessee 38104 Telephone No. (901) 544-0075

6

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

PLAINTIFF

VS.

3:05CV00218-WRW

TOBACCO SUPERSTORES, INC.

DEFENDANT

ORDER

Pending is Plaintiff’s Motion for Leave to File Additional Interrogatories.1 Defendant responded and objected to additional discovery.2
Plaintiff is permitted to file twenty-five (25) additional interrogatories. The twenty-five limit includes discreet sub-parts. In other words, twenty-five non-hyphenated wordy interrogatories. Plaintiff’s Motion is GRANTED.
IT IS SO ORDERED this 26th day of July, 2006.

/s/Wm. R. Wilson, Jr. UNITED STATES DISTRICT JUDGE

1Doc. No. 16. 2Doc. No. 19.

 
 Case 3:05-cv-00218-BRW Document 104 Filed 06/06/08 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

PLAINTIFF

VS.

3:05CV00218-WRW

TOBACCO SUPERSTORES, INC.

DEFENDANT

AMENDED ORDER

Pending are Defendant’s Motion for Partial Summary Judgment Regarding the Temporal

Scope of the Class (Doc. No. 53) and Motion for Summary Judgment Based on Judicial Estoppel

(Doc. No. 65), to which Plaintiff has responded to both (Doc. Nos. 59, 69). For the reasons set

forth below, Defendant’s Motion for Partial Summary Judgment Regarding the Temporal Scope

of the Class is DENIED in part and GRANTED in part while Defendant’s Motion for Summary

Judgment Based on Judicial Estoppel is DENIED.

I. BACKGROUND

The Equal Employment Opportunity Commission (“EEOC”) asserts that Defendant

Tobacco Superstores violated Title VII of the Civil Rights Act of 1964 and the Civil Rights Act

of 1991 by engaging in discrimination through a pattern and practice of failing to promote

African-Americans to store manager and assistant store manager since at least March 2000.1

This current action arises from an EEOC charge filed by Theresa Sharkey filed on

March 27, 2002.2 The EEOC has identified thirty-four additional individuals or class members

1Doc. No. 1. 2Id.
1

Case 3:05-cv-00218-BRW Document 104 Filed 06/06/08 Page 2 of 17
who seek to join in this case. It has defined the affected class as those current and former African-American employees who were employed by Tobacco Superstores from “at least March 2000 to present.”3
Tobacco Superstores former promotion policy relied on an informal procedure where potential candidates were identified based upon the store manager’s or area supervisor’s belief that the employees were interested in promotion. The belief was formed during conversations with store clerical personnel where they indicated an interest in promotion.4
On July 11, 2003 Tobacco Superstores changed its promotion policy.5 Tobacco Superstores implemented a formal policy to identify applicants and communicated those procedures to its employees. Employees were now notified, by a posting in all stores, that any employee seeking a promotion to a managerial position must send a resume or application to Tobacco Superstores’s corporate office. Applications were kept on file for six months and considered for all managerial positions that became available in the stores where the employee requested to be considered.6
In September 2004, Tobacco Superstores began having new employees review and sign the policy.7 They also made several small changes to it. For example, at the time of a
3Id. 4Doc. No. 54. 5Id. 6Id. 7Id.
2

Case 3:05-cv-00218-BRW Document 104 Filed 06/06/08 Page 3 of 17
management vacancy in a store, Tobacco Superstores asked all store clerical employees to indicate whether they were interested in the position and to fill out a form indicating their intent.8
Defendant Tobacco Superstores argues that the temporal scope of the class of affected African-Americans should be narrowly defined to claims arising from September 28, 2001 to March 27, 2002. Defendant makes three specific arguments: (1) that the earliest date for an actionable claim against it is September 28, 2001; (2) that class member Michelle Jackson Bass and Solita Brown cannot “piggyback” on Ms. Sharkey’s charge of discrimination because the statute of limitations has run on their claims; and finally, (3) the EEOC’s forward temporal limit should be defined either by the date of Ms. Sharkey’s charge or, at the latest, the date that Tobacco Superstores changed its policy.
Defendant also argues that it is entitled to partial summary judgment as to claims relating to Theresa Sharkey, Eunice Beavers, Carolyn Arnold, and Shirley Murray, based on judicial estoppel. Defendant contends that since these class members have filed for bankruptcy and failed to include their claims against Defendant as a possible asset, they should be judicially estopped from making a claim in this Court and should be dismissed from the current action. II. STANDARD
Summary judgment is appropriate only when there is no genuine issue of material fact, so that the dispute may be decided on purely legal grounds.9 The Supreme Court has established guidelines to assist trial courts in determining whether this standard has been met:
8Id. 9Holloway v. Lockhart, 813 F.2d 874 (8th Cir. 1987); Fed. R. Civ. P. 56.
3

Case 3:05-cv-00218-BRW Document 104 Filed 06/06/08 Page 4 of 17
The inquiry performed is the threshold inquiry of determining whether there is the need for a trial -- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.10
The Court of Appeals for the Eighth Circuit has cautioned that summary judgment is an
extreme remedy that should only be granted when the movant has established a right to the
judgment beyond controversy.11 Nevertheless, summary judgment promotes judicial economy
by preventing trial when no genuine issue of fact remains.12 I must view the facts in the light
most favorable to the party opposing the motion.13 The Eighth Circuit has also set out the burden
of the parties in connection with a summary judgment motion:
[T]he burden on the party moving for summary judgment is only to demonstrate, i.e.,“[to point] out to the District Court,” that the record does not disclose a genuine dispute on a material fact. It is enough for the movant to bring up the fact that the record does not contain such an issue and to identify that part of the record which bears out his assertion. Once this is done, his burden is discharged, and, if the record in fact bears out the claim that no genuine dispute exists on any material fact, it is then the respondent’s burden to set forth affirmative evidence, specific facts, showing that there is a genuine dispute on that issue. If the respondent fails to carry that burden, summary judgment should be granted.14
Only disputes over facts that may affect the outcome of the suit under governing law will
properly preclude the entry of summary judgment.15
10Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). 11Inland Oil & Transport Co. v. United States, 600 F.2d 725, 727 (8th Cir. 1979). 12Id. at 728. 13Id. at 727-28. 14Counts v. MK-Ferguson Co., 862 F.2d 1338, 1339 (8th Cir. 1988) (quoting City of Mt. Pleasant v. Associated Elec. Coop., 838 F.2d 268, 273-74 (8th Cir. 1988) (citations omitted)). 15Anderson, 477 U.S. at 248.
4

Case 3:05-cv-00218-BRW Document 104 Filed 06/06/08 Page 5 of 17
III. DISCUSSION A. Class Members Who Allege Claims Prior to September 28, 2001 Defendant argues that only claims based on allegations occurring on or after
September 28, 2001 are timely. Defendant contends that claims by Sophia Allen, Christine Anderson, Jamie Brown, Portia Davis, Michelle Jackson Bass, Taylor Murphy, Vonda Pearson, Syrita Stubenfield, and Citia Wells (Chew) should be dismissed as untimely. Plaintiff contends that this argument is moot because the named class members above have already been dismissed from the case. However, Defendant argues that Plaintiff still seeks relief for a class “since at least March 2000,"16 and Plaintiff has added and dropped members at will. Defendant seeks finality on this issue.
In order to bring suit a Title VII suit in federal court, a plaintiff must first file an administrative charge with the EEOC within 180 days after the “alleged unlawful employment action occurred.”17 Job assignments, transfers, and non-promotions constitute completed acts at the time they occur and do not constitute continuing violations, even if some of the effects do no occur until later and are long lasting.18 Thus, the time for filing an EEOC charge runs from the date of a discriminatory act. All discriminatory acts that occurred more than 180 days before the filing of the charge are time-barred under Title VII.19
16Doc. No. 1. 1742 U.S.C. § 2000e-5(e)(1) 18Gipson v. KAS Snacktime Co., 83 F.3d 225, 229 (8th Cir. 1996). 19Robinson v. Sears, Roebuck & Co., 111 F.Supp.2d 1101, 1117 (E.D. Ark. 2000).
5

Case 3:05-cv-00218-BRW Document 104 Filed 06/06/08 Page 6 of 17
However, courts have regularly held that the timely filing of an administrative charge by a named plaintiff in a class action satisfies the charge obligation of all members of the class.20 This is known as the “piggybacking” rule. Piggybacking is permitted when: (1) the charge being relied upon must be timely and not otherwise defective; and (2) the individual claims of the filing and non-filing plaintiffs must have arisen out of similar discriminatory treatment in the same time frame.21 Thus, since Ms. Sharkey’s charge was filed on March 27, 2002, the time period for Title VII claims must begin no earlier than 180 days before to March 27, 2002, or September 28, 2001.
Defendant notes that Plaintiff can argue that the continuing violation doctrine is applicable which would extend the time period of discriminatory acts. This would allow Plaintiff to add claims to actions occurring before September 28, 2001. The continuing violation doctrine allows courts to consider conduct that would ordinarily be time barred as long as the untimely incidents represent an ongoing unlawful employment practice.22
However, the continuing violation doctrine does not include discrete discriminatory acts like failure to promote. The Supreme Court held that discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.23 The Court reasoned that discrete acts, such as failure to promote, are easy to identify.24
20Id. 21Id. 22AMTRAK v. Morgan, 536 U.S. 101, 107 (2002). 23Id. 24Id.
6

Case 3:05-cv-00218-BRW Document 104 Filed 06/06/08 Page 7 of 17
Although other discriminatory acts may have occurred before the filing, only incidents that took place within the timely filing period are actionable.25
So, if the piggybacking rule was applicable, class members seeking to piggyback on Ms. Sharkey’s charges are limited to damages for the period between September 28, 2001 to March 27, 2002. Claims made by Sophia Allen, Christine Anderson, Jamie Brown, Portia Davis, Michelle Jackson Bass, Taylor Murphy, Vonda Pearson, Syrita Stubenfield, and Citia Wells (Chew), and others who seek claims outside that time period are therefore dismissed as untimely. Thus, the class must not include persons whose Title VII claims arose before September 28, 2001. Accordingly, Defendant’s Motion for Summary Judgment as to Class Members Who Allege Claims Prior to September 28, 2001 is GRANTED.
B. Class Members Who Were No Longer Employed by Defendant as of September 28, 2001
Similarly, Defendant argues that summary judgment is appropriate for any former employees whose employment ended 180 days before Ms. Sharkey filed her EEOC charge, or on September 28, 2001.
In Greene v. Carter Carburetor Company, the Eight Circuit held that termination of employment puts at rest the employment discrimination because the discharged individual is no longer an employee.26 Thus, the date of discharge or resignation is the controlling date and a charge of employment discrimination must be filed in relation to that date.27 So, former employees and class members who were no longer employed by Defendant as of
25Id. 26Greene v. Carter Carburetor Co., 532 F.2d 125 (8th Cir. 1976). 27Olson v. Rembrandt Printing Co., 511 F.2d 1228, 1234 (8th Cir. 1975).
7

Case 3:05-cv-00218-BRW Document 104 Filed 06/06/08 Page 8 of 17
September 28, 2001 are time barred from making claims now.28 Accordingly, Defendant’s Motion for Summary Judgment as to Class Members Who Were Not Employed by Defendant as of September 28, 2001 is GRANTED.
C. Piggybacking Class Members Bass and Brown Defendant argues that class members Michele Jackson Bass and Solita Brown should also be dismissed since they failed to file lawsuits within ninety days after receiving their right to sue notices for charges they filed with the EEOC, and they cannot piggyback on Ms. Sharkey’s charges to avoid the statute of limitations for filing their own case. Plaintiff argues that piggybacking is inapplicable because it is suing on behalf of the class members. Ms. Bass has already been dismissed by Plaintiff as a class member so this discussion will focus on Ms. Brown’s claims. The Eighth Circuit has permitted plaintiffs who did not filed administrative charges to piggyback on timely filing of an administrative charge filed by another claims who purported to represent the interests of a class of similarly situated employees as discussed above.29 However, any members of the class who does not file an administrative charge is bound by the statute of limitations applicable to his or her charge.30 Even if those plaintiffs are piggybacking on another employee’s timely administrative charge, once they file separate administrative charges, they cannot rely any further on the other claimant’s actions and must file suit after receiving their
28See Leach v. Standard Register Co., 94 F.R.D. 621, 625 (W.D. Ark. 1982)(citing Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239 (3rd Cir. 1975)(holding that only employees who left the employer more than 180 days before the filing of the EEOC charge are barred from the class).
29Anderson v. Unisys, 47 F.3d 302 (8th Cir. 1995). 30Id. at 309.
8

Case 3:05-cv-00218-BRW Document 104 Filed 06/06/08 Page 9 of 17
right to sue letters.31 Thus, any claimant who files an administrative charge and receives a right to sue letter from the EEOC must file suit within ninety days after receiving that letter to preserve their cause of action.
In this case, Ms. Brown filed an administrative charge with the EEOC on July 6, 2001. She received a right to sue notice on July 10, 2001, but she failed to file suit against Defendant. She cannot piggyback on Ms. Sharkey’s claim since she filed her own administrative charge. In order to maintain her suit, she should have filed suit within ninety days after receiving her right to sue notice -- she did not.
For the above stated reasons, Defendant’s Motion for Summary Judgment as to Piggybacking Class Members Brown is GRANTED.
D. Forward Temporal Scope of Class 1. Class Members Who Allege Discrimination After Ms. Sharkey Filed Her Charge
Defendant argues that claims of class members alleging non-promotions occurring after Ms. Sharkey filed her charge -- March 27, 2002 -- must be supported by a separate EEOC charge and should be dismissed if one was not filed. Defendant contends that any other ruling would allow the EEOC to continually add new class members.
Alternatively, Defendant argues that claims arising after Defendant changed its discrimination policy should be dismissed as well. Plaintiff contends that there are material questions of fact. Specifically, Plaintiff argues that it is unclear whether Defendant’s promotion policy was effective and stopped the discriminatory practice or was consistently applied.
31Id. 9

Case 3:05-cv-00218-BRW Document 104 Filed 06/06/08 Page 10 of 17
Defendant provides three reasons why the temporal scope should be limited: (1) the charges allege a definite time frame and the allegations by Ms. Sharkey occurred at only one store; (2) there are individuals in the class that were not identified during the administrative process; and (3) there was no notice to Defendant of these additional class members.
Defendant cites an Eleventh Circuit case, Hipp v. Liberty National Life Insurance Company, which held that the proper temporal scope should be limited to plaintiffs who alleged discriminatory treatment within 180 days before the representative charge was filed.32 Plaintiff argues that the Eleventh Circuit case is not binding. It contends that since it has met all the jurisdictional requirements, Plaintiff’s claims arising after March 27, 2002, are proper.
In Hipp, the court held that the appropriate forward looking cut-off date is the date the representative filed their charge with the EEOC and reasoned that a forward temporal scope was appropriate in order for the defendant to have notice of the charges against it.33
Defendant argues that the court’s reasoning in Hipp should apply to the present action. Defendant contends that it was never properly notified concerning the other aggrieved parties other than Ms. Sharkey. Plaintiff disagrees.
Plaintiff argues that Hipp is not binding and the facts are not applicable to the present case. Plaintiff contends that Defendant, unlike the defendant in Hipp, had notice of possible post-charge promotion claims on March 27, 2002. Defendant was also notified on July 7, 2005 that there was reasonable cause to believe Defendant had discriminated against a class of
32Hipp v. Liberty National Life Insurance Co., 252 F.3d 1208 (11th Cir. 2001). 33Id. at 1225.
10

Case 3:05-cv-00218-BRW Document 104 Filed 06/06/08 Page 11 of 17
African-Americans. According to Plaintiff, the parties tried to reach agreement on this issues but were unsuccessful so Defendant had notice.
In Kelley v. Harvest Foods, Inc., Judge Howard held that due to the broad scope a grievance charged in an EEOC complaint stating a pattern of continuing discriminatory conduct, as opposed to an isolated instance, the defendant was aware of the nature and extent of the claims. He concluded that to require another administrative proceeding with the EEOC, encompassing essentially the same claims would be useless and ineffectual.34
The overall objectives in requiring a plaintiff to invoke the procedural requirements of Title VII before filing suit in federal court are: (1) to afford the EEOC an opportunity to promote conciliation between the parties; and (2) to afford prompt notice to the employer of the purported Title VII violation.35
Ms. Sharkey’s charge put Defendant on notice that she was alleging a broad discriminatory policy and practice. Further, Defendant was aware of the charges against it since the parties tried to reach an agreement on this issues but were unsuccessful. Thus, since Defendant had notice of the alleged violations, Defendant’s Motion for Summary Judgment Regarding the Forward Temporal Scope of the Class is DENIED.
2. Class Member Who Allege Discrimination After Defendant Changed Promotion Policy
Defendant argues that the forward temporal scope should be limited to the date Defendant changed its allegedly discriminatory practice. Defendant contends that the claims of
34Kelley v. Harvest Foods, Inc., 780 F. Supp. 605 (E.D. Ark. 1992). 35Id.
11

Case 3:05-cv-00218-BRW Document 104 Filed 06/06/08 Page 12 of 17
nine class members who were employed after July 11, 2003 should be dismissed since their claims occurred after Defendant implemented its new promotion policy. Plaintiff argues that Defendant has not presented evidence to show that the existence of the new policy ended the alleged discriminatory practice.
Plaintiff argues that even after the policy was implemented, there is a factual dispute over the effectiveness of the policy and the consistency in which the policy was applied. Plaintiff has produced testimony and several exhibits which provide questions of material fact, making summary judgment as to this issue inappropriate. For example, Plaintiff lists several individuals who were promoted after the new policy was implemented. However, after examining their files, these individuals had not submitted applications or resumes as required by the new policy. Also, several class member who were hired after the new policy was implemented do not recall signing the form. Finally, implementation of a new policy does not necessarily end the discriminatory practice.
Thus, there are material questions of fact in dispute as to whether Defendant’s promotion policy eliminated the racially discriminatory promotion decisions. Accordingly, Defendant’s Motion for Summary Judgment is DENIED.
E. Defendant’s Claim of Judicial Estoppel Defendant argues that summary judgment is appropriate on Plaintiff’s claims because some class members did not list this action as a possible asset in their bankruptcy proceedings. Theresa Sharkey, Eunice Beavers, Shirely Murry, and Carolyn Arnold all filed for bankruptcy at one time.
12

Case 3:05-cv-00218-BRW Document 104 Filed 06/06/08 Page 13 of 17
Ms. Sharkey and her husband filed for bankruptcy on February 5, 2001. She filed her charge against Defendant more than one year later on March 27, 2002. The Sharkeys’ petition was then converted to a Chapter 7 petition in 2003, and their debts were discharged by the bankruptcy court on November 17, 2003.
Ms. Beavers filed for bankruptcy on August 25, 2004. She never filed a charge against Defendant, and she did not list it in her bankruptcy petition. At the time Ms Beavers’s petition as filed, Plaintiff had not filed suit. Ms. Beavers’s debts were then discharged by the bankruptcy court on September 14, 2007.
Similarly, Ms. Murry filed for bankruptcy on December 8, 2004. She, like Ms. Beavers, did not file a charge against Defendant nor did she list this action in her bankruptcy proceeding. However, as of April 24, 2007, there has been no discharge of her debt.
Finally, Ms. Arnold filed for bankruptcy on October 11, 1991 and her debts were discharged on January 13, 1992. Ms. Arnold’s bankruptcy occurred more than a decade before the present action.
Judicial estoppel is a common law doctrine where a party who has assumed one position in his pleadings is estopped from later assuming an inconsistent position.36 In other words, judicial estoppel “prevents a person who states facts under oath during the course of a trial from denying those facts in a second suit, even though the parties in the second suit may not be the same as those in the first.”37
36New Hampshire v. Maine, 532 U.S. 742, 749 (2001). 37Monterey Dev. Corp. v. Lawyer’s Title Ins. Corp., 4 F.3d 605, 609 (8th Cir. 1993).
13

Case 3:05-cv-00218-BRW Document 104 Filed 06/06/08 Page 14 of 17
The Supreme Court has outlined three factors to determine whether judicial estoppel can be invoked.38 The three factors are not an exhaustive formula for determining whether judicial estoppel applies, but they aid a court in determining whether to apply the doctrine.39
The three factors are: (1) a party’s later position must be clearly inconsistent with its earlier position; (2) there must be a perception that the party deliberately misled either the first or second court; and (3) the party seeking to asset an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.40
Defendant assert that the above class members’ failure to disclose this action as an asset is an admission that no such claim exists, and they should be judicially estopped from claiming it now. However, judicial estoppel is not appropriate unless the judicial forum or process has been abused, and there is expressed reluctance to apply judicial estoppel in the absence of a knowing misrepresentation or fraud on the court.41
In Stallings, the Eighth Circuit held that in a bankruptcy context, the effect of not listing a cause of action on the petition is equivalent to representing to the court that such a claim does not exist.42 The Court noted however that judicial estoppel does not apply when a debtor’s
38New Hampshire, 532 U.S. at 750-751. 39Stallings v. Hussmann Corp., 447 F.3d 1041, 1048 (8th Cir. 2006). 40New Hampshire, 532 U.S. at 750-751. 41Total Petroleum, Inc. v. Davis, 822 F.2d 734, 738 n.6 (8th Cir. 1987). 42Stallings, 447 F.3d at 1048.
14

Case 3:05-cv-00218-BRW Document 104 Filed 06/06/08 Page 15 of 17
previous position was taken because of a good-faith mistake rather than as part of a scheme to mislead the court.43
The Eighth Circuit held that it may generally be reasonable to assume that debtor who fails to disclose a substantial asset in bankruptcy proceedings gain an advantage, the specific facts of a case may weigh against such an inference.44 Careless or inadvertent disclosures are not the equivalent of deliberate manipulation.45 The Eighth Circuit warned that judicial estoppel should only apply as an extraordinary remedy when a party’s inconsistent behavior will result in a miscarriage of justice.46 It concluded that a rule that the required intent for judicial estoppel can be inferred from the mere fact of nondisclosure in a bankruptcy proceeding will unduly expand the reach of judicial estoppel in post-bankruptcy proceedings and will result in the preclusion of viable claims on the basis of inadvertent or good-faith inconsistencies.47
Although the class members should have listed this action as a possible asset in their bankruptcy proceeding, I do not find sufficient evidence of an intent to knowingly misrepresent or defraud the Court based on the failure to list an EEOC charge in the bankruptcy proceeding. Under the facts presented, I can find no reason to conclude that Ms. Sharkey. Ms. Beavers, Ms. Arnold, or Ms. Murray have abused a judicial forum or process, or practiced a knowing misrepresentation or fraud on the Court.
43Id. at 1049. 44Id. 45Id. 46Id. 47Id.
15

Case 3:05-cv-00218-BRW Document 104 Filed 06/06/08 Page 16 of 17
Since the class members did not file this action, they are not a party to this action, and they have no control over the EEOC’s decision to bring this action, I will not expand the doctrine of judicial estoppel to hold that the class members abused the judicial process when they are not in control over the case.48 Plaintiff, the EEOC, is the master of its own case and the statute49 gives it the authority to evaluate the strength of the public interest at stake. Here, the EEOC, brings this lawsuit to discourage employers from basing promotion decisions on race.
Because there is insufficient evidence of an intent to knowingly misrepresent or fraud, summary judgment is not appropriate. Further, since the EEOC is bringing this action against Defendant, judicial estoppel should not apply to the class members named above. Accordingly, Defendant’s Motion for Summary Judgment based on Judicial Estoppel is DENIED. IV. CONCLUSION
For the above stated reasons, Defendant’s Motion for Summary Judgment Regarding the Temporal Scope of the Class (Doc. No. 53) is GRANTED in part and DENIED in part as follows:
1. Defendant’s Motion for Summary Judgment as to Class Members Who Allege Claims Prior to September 28, 2001 is GRANTED.
48See EEOC v. Apria Healthcare Group, Inc., 222 F.R.D. 608 (E.D. Mo., 2004).(holding that a former employee should not be judicially estopped because she had no control over the EEOC’s decision to bring the lawsuit); EEOC v. Digital Connections, Inc., No. 3:05-0710 2006, U.S. Dist. LEXIS 69529 (M.D. Tenn., September 26, 2006) (holding that the charging party did not abuse the judicial process when she did not list an EEOC charge in her bankruptcy position since the EEOC decided to bring suit).
4942 U.S.C. § 2000e-5(f)(1). 16

Case 3:05-cv-00218-BRW Document 104 Filed 06/06/08 Page 17 of 17 2. Defendant’s Motion for Summary Judgment as to Piggybacking Class Member Ms. Brown is GRANTED. 3. Defendant’s Motion for Summary Judgment as to the Forward Temporal Scope of the Class is DENIED. Defendant’s Motion for Summary Judgment Based on Judicial Estoppel (Doc. No. 65) is DENIED. IT IS SO ORDERED this 6th day of June, 2008.
/s/Wm. R. Wilson, Jr. UNITED STATES DISTRICT JUDGE
17

 
 Case 3:05-cv-00218-BRW Document 176 Filed 08/04/08 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION

FILED
U.S. DISTRICT COURT EASTERN DISTRICT ARKANSAS
AUG 0 42008

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

TOBACCO SUPERSTORES, INC.

)

)

Defendant.

)

CIVIL ACTION NO. 3:05-cv-00218 WRW

CONSENT DECREE

Introduction For purposes of settlement and compromise only, the parties advise the Court that they wish to resolve the instant controversy without the expense, delay, and burden of further litigation. Plaintiff, Equal Employment Opportunity Commission (hereinafter the "Commission"), has instituted this action on behalf of Theresa Sharkey and a class of African Americans, alleging that Defendant Tobacco Superstores, Inc. (hereinafter "TSS"), failed to promote Ms. Sharkey and other African American employees to
.
management positions because of their raca, African American, and constructively discharged Ms. Sharkey because other race, African American, in violation of Title VII
ot the Civil Rights Act ot 1964 (hereinafter ''Title VII").
The Defendant has consistently denied and continues to deny that it engaged in any unlawful employment practices as alleged by the Commission or that it otherwise violated Title VII.

Case 3:05-cv-00218-BRW Document 176 Filed 08/04/08 Page 2 of 14
In the event this proposed Consent Decree is not approved or does not become final, then it shall not be admissible in evidence in any subsequent proceeding in this action. Further, this Consent Decree shall not be admissible in any other action now pending or which may be filed in the future, except as to enforcement proceedings.
This Consent Decree constitutes the complete and exclusive agreement between the parties with respect to the matters referred to herein.1 No waiver, modification or amendment of any provision of this Consent Decree shall be effective unless made in writing and signed by both parties. No representations or inducements to compromise this action have been made, other than those recited or referenced in this Consent Decree.
The Court has reviewed the terms of the proposed Consent Decree in light of the applicable laws and regulations the statements and representations of counsel for all parties, and hereby approves the Consent Decree.
I. JURISDICTION The United States District Court for the Eastem District of Arkansas, Jonesboro Division, has jurisdiction over the parties and subject matter of this litigation.
II. GENERAL PROVISIONS This Consent Decree, being entered with the consent of the parties for purposes of settlement, shall not constitute an adjudication on the merits of this lawsuit and shall not be construed as an admission by Defendant of any violation of Title VII or any
1 During the course of this action, the Commission filed for partial summary judgment to have Defendant and all other corporations owning Tobacco Superstore retail stores determined as an integrated enterprise. As the Court had not ruled on that Motion as of the date of this Decree, this Consent Decree applies only to Defendant, Tobacco Superstore, Inc.
2

Case 3:05-cv-00218-BRW Document 176 Filed 08/04/08 Page 3 of 14
executive order, law, rule or regulation dealing with or in connection with discrimination, harassment, or retaliation in employment.
Ill. SCOPE AND DURATION OF DECREE 1. By entering into this Consent Decree, the parties do not intend to resolve any charge of discrimination currently pending before the Commission other than Charge No. 250-A2-00710, filed by Theresa Sharkey, that created the procedural foundation for the complaint in this case. 2. This Consent Decree constitutes the complete and exclusive agreement between the Commission and Defendant, with respect to the matters referred to herein and arising out of Charge No. 250-A2-00710. This Decree shall not be considered in any manner to be dispositive of any other charges now pending before any office of the Commission, or other lawsuits, if any, pending against TSS located in Forrest City, Arkansas, other than this lawsuit and the above-mentioned charge. Further, this Decree shall not be used as precedent in the event of any future charges that may be filed against TSS alleging race discrimination. 3. The terms of this Decree shall be three years from the date of entry, which shall be considered as the effective date of this Decree. 4. The Court shall retain jurisdiction over the parties and this Consent Decree until the expiration of three years or satisfaction of all provisions of the Decree, whichever is later.
IV. INJUNCTIVE RELIEF
1. Defendant, its officers, agents, management, (including supervisory employees}, successors and assigns, are hereby enjoined from failing to promote
3

Case 3:05-cv-00218-BRW Document 176 Filed 08/04/08 Page 4 of 14
African American employees of TSS on the basis of race.
2. Defendant, its officers, agents, employees, and all persons acting in
concert with TSS are hereby enjoined from retaliating against any employee or applicant for employment.
V. GENERAL RELIEF 1. Within 30 days of entry of this Decree, Defendant shall create and
distribute to all employees with hiring authority written job descriptions for assistant manager and manager positions that dearly define the knowledge, skills, and abilities required by each position and the qualifications required for each position. The written job descriptions shall become effective immediately upon issuance.
2. Within 30 days of entry of this Decree, Defendant shall create a written
promotion policy that is disseminated to all employees and posted at each location at which TSS does business. The policy shall indude procedures by which employees shall be notified of promotional opportunities, procedures for application, and procedures for selecting the successful candidate.
3. Defendant shall require each employee to read and sign a copy of its nondiscrimination policy and its promotion policy, and each employee shall be given copies of both policies. Thereafter, whenever a new employee is hired, he or she will be required to read and sign copies of the non-discrimination policy and the promotion policy and will be given copies of these policies.
4. David Cohn and Larry Cobb shall personally advise management employees that TSS has a strong and clear commitment to a workplace free of race discrimination and that race discrimination by any person, including any management
4

Case 3:05-cv-00218-BRW Document 176 Filed 08/04/08 Page 5 of 14
official, supervisor, vendor, supplier, third party or customer, against any TSS employee is prohibited and will not be tolerated.
VI. TRAINING 1. TSS shall conduct race discrimination awareness training to all supervisory and management personnel employed by TSS in Arkansas, Mississippi and Missouri. This training shall be mandatory for all management-level employees, induding but not limited to managers and supervisors; shall be no less than three hours in duration; and shall be conducted within 90 days of entry of this Decree. 2. The training topics shall include, at a minimum, (i) Title VII's prohibition of race discrimination and retaliation with respect to any term, condition, or privilege of employment; (ii) TSS policies and procedures for the prevention of race discrimination in general and as they relate to its promotion policy specifically; and (iii) TSS procedures for reporting, investigating, and remedying race discrimination or retaliation complaints in the workplace. 3. Within 120 days after the date of entry of this Consent Decree by the Court, TSS shall provide the Commission with copies of the training materials and related documentation evidencing the accomplishment of training compliance for all supervisory and management personnel. The aforementioned documentation shall indude the names and position of the individuals attending the training and the time each individual spent at the training. 4. Defendant shall maintain in its Corporate Office a record of each person trained pursuant to paragraph 1.
5

Case 3:05-cv-00218-BRW Document 176 Filed 08/04/08 Page 6 of 14
VII. EQUAL EMPLOYMENT OPPORTUNITY POLICY
Defendant shall adopt as an Equal Employment Opportunity Policy the statement
attached as Exhibit A. A copy of this policy shall be distrtbuted to each employee with
hislher first paycheck issued in August 2008.
VIII. MONETARY RELIEF
1. TSS shall pay total monetary relief in the amount of $425,000.00 to resolve this lawsuit. TSS will place $425,000 in escrow within 10 days of the entry of this Decree. TSS will notify the Commission within 2 days after the money has been deposited into escrow. This amount will constitute TSS's total liability regarding monetary relief.
2. As soon as reasonably possible, the Commission shall provide TSS with a distrtbution list setting forth the names and amounts of back pay and compensatory damage allocations to be made to Ms. Sharkey and class members. All applicable withholdings shall be deducted from the back pay award. Within 15 days of forwarding this distlibution list to Defendant, the Commission will send to each person on the list a copy of the Release of Claims form attached as Exhibit B.
3. Upon receipt of a fully-executed Release from Charging Party Sharkey and/or any class members, the Commission will then forward the releases to the attorneys for TSS. TSS shall have 10 business days to forward, via certified mail, a check to the individual in the amount shown on the distribution list.
4. TSS shall prepare and distribute W-2 and 1099 tax reporting forms to Charging Party Sharkey and class members and shall make appropriate reports to the Internal Revenue Service.
6

Case 3:05-cv-00218-BRW Document 176 Filed 08/04/08 Page 7 of 14
5. Late payment of the checks will be subject to the accrual of interest on the amount unpaid, calculated pursuant to 28 U.S.C. sec. 1961.
6. A photocopy of the checks shall be sent to the attention of Celia S. Liner, Senior Trial Attorney, Equal Employment Opportunity Commission, Memphis District Office, 1407 Union Avenue, Suite 901, Memphis, Tennessee 38104.
IX. POSTING AND POLICIES 1. Within 30 days of the entry of this Consent Decree, TSS shall post and keep posted for three years, in conspicuous places upon their premises, where notices to employees are customarily posted, Exhibit C, and shall report in writing to the Commission upon compliance with this paragraph, to the attention of Celia Liner, Senior Trial Attorney, Memphis District Office, 1407 Union Avenue, Suite 901, Memphis, TN 38104, with a statement that identifies the date of the postings and locations of the posted notices. 2. TSS shall post and cause to remain displayed the poster required by Section 711 of Title VII, 42 U.S.C. § 2000e-10(a). 3. TSS shall also post and keep posted in a location where notices to employees are customarily posted, a copy of its policy and procedures for reporting or preventing discrimination in the workplace.
X. REPORTING 1. TSS shall, for periods indicated below, submit to the Commission semiannual reports listing:
(1) each vacancy in an assistant manager or manager position occurring within the prior six months;
7

Case 3:05-cv-00218-BRW Document 176 Filed 08/04/08 Page 8 of 14
(2) the name, address, home telephone number, and races of all employees who applied for the promotion;
(3) the name and race of the successful candidate; (4) each African American employee either hired or promoted to an
assistant manager or manager position during the six month period; (5) the location for which the person was hired or promoted and the
date of the hire or promotion; (6) a description of all complaints of race discrimination from any TSS
store location during the six month period; and (7) the investigation conducted by TSS in response to each complaint,
and the resolution of the complaint The first report shall be submitted six months after entry of the Decree. Each subsequent report shall follow at six month intervals as long as this Consent Decree remains in effect. These reports shall be sent to Celia S. Liner, Senior Trial Attomey, at the Memphis District Office address, with a statement that identifies such reports as being submitted consistent with this Decree. With the submission of its first report, TSS shall indicate the date of completion of each requirement under Section V (General Relief) was satisfied. 2. All other reporting required by any other Section of this Decree shall likewise be made to Celia S. Liner at the Memphis District Office address.
XI. REFERENCES
1. If any potential employer of Theresa Sharkey requests a job reference, the request shall be forwarded to the attention of Larry Cobb, Retail Operations Manager, at
8

Case 3:05-cv-00218-BRW Document 176 Filed 08/04/08 Page 9 of 14

TSS Corporate headquarters. The reference from TSS shall be identical to Exhibit D and shall be signed by Larry Cobb. No mention of Ms. Sharkey's charge of discrimination or this lawsuit shall be made as part of any reference.
2. No mention of this lawsuit shall be made as part of a reference given for any class member in this case.
XII. RECORD KEEPING 1. TSS shall maintain race and gender identifies of employees so as to satisfy all reporting obligations under 29 C.F.R. §1602.7, "Employee Information Report EE0-1." 2. TSS shall file its Employee Information Report EE0-1 on a yearly basis, pursuant to 29 C.F.R. §1602.7.
XIII. COSTS
Each party shall bear that party's own costs, attorneys' fees, and expenses.

DATE: t/!!,lat'

V.LLIAM RUJ1 Rf)i6k
UNITED STATES DISTRICT JUDGE

9

Case 3:05-cv-00218-BRW Document 176 Filed 08/04/08 Page 10 of 14

FOR DEFENDANT:

r;;Z~Z

ENRY P. JULIEN, JR.

ROBERT P. LOMBARDI

The Kullman Firm

11 00 Poydras Street,

1600 Energy Centre

New Orleans, Louisiana 70163

(504} 524-4162 telephone

(504} 5

9

~

FOR THE COMMISSION:

RONALD S. COOPER General Counsel
JAMES LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel

~dw-F E . WILLIAMS
RQioMI Attorney
fllu~ :k. ,/
CELIA S.fNER Senior Trial Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

1407 Union Avenue, Suite 901

Memphis, Tennessee

,e. (901} 544-0075 telephone
(901} 544-0111 fax
w~ @i

f);tf4- /Jtl. ~---
{)1ft}

WILLIAM A. CASH, JR. J~ervisory Trial Attorney tpl,ff..-
&jl~6 ../)t/A) ~

PAMELA B. DIXON Senior Trial Attorney

Little Rock Area Office 820 Louisiana, Suite 200 Little Rock, AR 72201 (501) 324-5065 telephone (501) 324-5991 fax

10

Case 3:05-cv-00218-BRW Document 176 Filed 08/04/08 Page 11 of 14
EXHIBIT A
EQUAL EMPLOYMENT OPPORTUNITY
Tobacco Superstore. Inc. is committed to a policy of equal employment opportunity with respect to all employees and applicants for employment This policy prohibits disaimination on all legally-protected bases, including, but not limited to, race, color, sex, age, disability, religion, and national origin.
This policy will be observed in the recruitment, hiring, and on-the-job treatment of individuals. Decisions regarding terms and conditions of employment, including promotions, transfers, wages, discipline and discharge, will be made in accordance with this policy.
Supervisors, managers, and assistant managers are responsible for setting the appropriate tone in the workplace, providing direction on implementation of this policy, and fully complying with this policy. All employees, and in particular, officers, managers, and supervisors, are responsible for conducting themselves in a manner that does not violate this policy and shall immediately report known, suspected, or potential violations of this policy. Failure to immediately report discrimination or harassment in violation of this policy can result in discipline.
If you believe you have been disaiminated against or harassed, or if you are a witness to discrimination ~ harassment, you should report it immediately to any
manager or supervisor or to Larry Cobb at Corporate Office, at
lanyc@tobaccosuper.com or at 870-633-0099, regardless of whether the person who engaged in the disaimination or harassment is a co-worker, supervisor, customer, vendor, or other non-employee. All complaints and/or reports will be promptly and thoroughly investigated in as impartial and confidential manner as possible. A timely resolution of each complaint will be reached and communicated to the parties. If a complaint of disaimination and/or harassment is found to be valid, immediate and appropriate corrective action will be taken, which may include discipline up to and including termination from employment.
LARRY COBB, OPERATIONS MANAGER
11

Case 3:05-cv-00218-BRW Document 176 Filed 08/04/08 Page 12 of 14

EXHIBITS

RELEASE

In consideration of the payment to me by Tobacco Superstore, Inc. (ISS") of

$._ _ _ _ ___.1 <name>. hereby fully and forever release and discharge TSS, its

successors, and assigns, including its present officers, employees and agents, from any

claim or obligation based on alleged race discrimination, retaliation, or any other

unlawful practice in violation of Title VII of the Civil Rights Act of 1964, which was or

could have been raised in EEOC v. Tobacco Superstore, Inc., Civil Action No. 3:05-cv-

00218 (E.D. ArK.).

I have read this Release and I execute it voluntarily, without coercion or threat of

reprisal.

IN WITNESS WHEREOF, this Release is signed and executed by me on the_

day of

2008.

12

Case 3:05-cv-00218-BRW Document 176 Filed 08/04/08 Page 13 of 14
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Memphis District Office
1401 Onion Awnue, Suite 901 Memphio, TN 38104
Notional Contact Cenmr: (BOO) 669-4000 National Contact Cen1BrTTY: (800) 669-&20
Momphlo S1aW. Line: (8156) 408-8075 Momphlo DlrKt Olol: (001) 544.0119
TTY (901) 544-o112 FAX (901) 544.0111
EXHIBIT C
NOllCE
1. This Notice to all employees of Tobacco Superstores, Inc. ("TSS") is being posted as part of an agreement between TSS and the Equal Employment Opportunity Commission.
2. Title VII of the Civil Rights Act of 1964, as amended, is a federal law that provides that it shall be an unlawful employment practice for an employer to fail or refuse to hire, to promote or to discharge any individual or otherwise to discliminate against any individual because of such individual's race or color.
3. TSS supports and will comply with Title VII in all respects and will not take any action against employees because they have opposed employment practices made illegal by Title VII or exercised their rights under the law by filing charges with the Equal Employment Opportunity Commission, or because they testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under Title VII.
4. If you believe that you have been discliminated against because of your race, you may contact the Equal Employment Opportunity Commission (EEOC) at the following national toll-free number: 1-800-669-4000. If you have a TTY device for hearing impaired: TTY number is 1-800-669-6820. You may also contact the EEOC's Little Rock Area Office and the Memphis District Office at the following numbers: (501) 324-5014 TTY; (501) 324-5081; and (901)544-0119; TTY (901) 544-0112.
5. JHIS IS AN OFfiCIAL NOllCE AND MUST NOT BE DEFACED By MYONE
This Notice must remain posted for 3 years from the date below and must not be altered, defaced, or covered by any other material.

Tobacco Superstores, Inc.

Date

13

Case 3:05-cv-00218-BRW Document 176 Filed 08/04/08 Page 14 of 14

To VI/hom It May Concem:

EXHIBITD
REFERENCE LETTER

This letter is in response to your inquiry regarding the employment of Ms. Theresa Sharkey while employed at Tobacco Superstores, Inc. Ms. Sharkey worked at Tobacco Superstores, Inc. as a Clerk from February 2, 2001 through October 22, 2001.
Company policy does not permit us to give out any other infOrmation conceming Ms.
Sharkey's employment.

Very truly yours,

LARRY COBB Tobacco Superstores, Inc.

14

 
 Case: 3:05-cv-218 As of:10/16/2016 08:55 PM CDT 1 of 15
CLOSED,JTR,JURY
U.S. District Court Eastern District of Arkansas (Jonesboro) CIVIL DOCKET FOR CASE #: 3:05−cv−00218−BRW

Equal Employment Opportunity Commission v. Tobacco Superstores Inc Assigned to: Judge Billy Roy Wilson Cause: 42:2000 Job Discrimination (Race)
Plaintiff

Date Filed: 09/19/2005 Date Terminated: 08/04/2008 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Equal Employment Opportunity Commission

represented by Celia S. Liner Equal Employment Opportunity Commission 1407 Union Avenue Suite 900 Memphis, TN 38104 (901) 544−0075 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Faye A. Williams Equal Employment Opportunity Commission 1407 Union Avenue Suite 900 Memphis, TN 38104 901−544−0088 Email: faye.williams@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katharine W. Kores Equal Employment Opportunity Commission 1407 Union Avenue Suite 900 Memphis, TN 38104 (901) 544−0135 TERMINATED: 03/31/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Terry Beck Equal Employment Opportunity Commission 1407 Union Avenue Suite 900 Memphis, TN 38104 (901) 544−0138 TERMINATED: 05/30/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adele Rapport Equal Employment Opportunity Commission 1407 Union Avenue Suite 900 Memphis, TN 38104 901−544−0113 TERMINATED: 08/01/2006

Case: 3:05-cv-218 As of:10/16/2016 08:55 PM CDT 2 of 15
ATTORNEY TO BE NOTICED
Darin B. Tuggle Equal Employment Opportunity Commission 1407 Union Avenue Suite 900 Memphis, TN 38104 901−544−0137 ATTORNEY TO BE NOTICED
Pamela B. Dixon Equal Employment Opportunity Commission 820 Louisiana Street Suite 200 Little Rock, AR 72201 501−324−5065 Email: pamela.dixon@eeoc.gov ATTORNEY TO BE NOTICED
William A. Cash , Jr. Equal Employment Opportunity Commission 820 Louisiana Street Suite 200 Little Rock, AR 72201 (501) 324−5539 Email: william.cash@eeoc.gov ATTORNEY TO BE NOTICED

V. Defendant Tobacco Superstores Inc

represented by Brad J. Beavers Beavers & Cline Post Office Box 924 Forrest City, AR 72336−0924 870−633−3141 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Henry P. Julien , Jr. The Kullman Firm 1100 Poydras Street Suite 1600 New Orleans, LA 70163 (504) 524−4162 Email: hpj@kullmanlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert P. Lombardi The Kullman Firm 1100 Poydras Street Suite 1600 New Orleans, LA 70163 (504) 524−4162 Email: rpl@kullmanlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen L. Scott The Kullman Firm

Case: 3:05-cv-218 As of:10/16/2016 08:55 PM CDT 3 of 15
600 University Park Place Suite 340 Birmingham, AL 35209 205−871−5858 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christine S. Goldberg The Kullman Firm 4605 Bluebonnet Boulevard Suite A Baton Rouge, LA 70809 225−906−4250 Email: csg@kullmanlaw.com ATTORNEY TO BE NOTICED
Jennifer Robbins Guckert Amedisys, Inc. 5959 South Sherwood Forest Boulevard Baton Rouge, LA 70816 225−299−3873 Fax: 225−292−2031 Email: jennifer.guckert@amedisys.com ATTORNEY TO BE NOTICED
Thomas J. Woodford The Kullman Firm 63 South Royal Street Suite 1100 Mobile, AL 36602 251−432−1811 Email: tjw@kullmanlaw.com ATTORNEY TO BE NOTICED

Date Filed 09/19/2005 09/19/2005 09/19/2005 09/19/2005 10/18/2005
10/19/2005
10/20/2005 11/09/2005 11/16/2005

# Docket Text
1 COMPLAINT against Tobacco Superstore, Inc , filed by Equal Employment Opportunity Commission.(jct) (Entered: 09/19/2005)
DEMAND for Trial by Jury by Equal Employment Opportunity Commission. (jct) (Entered: 09/19/2005)
Summons Issued as to Tobacco Superstore, Inc.; returned to pltf's counsel. (jct) (Entered: 09/19/2005)
***Set Flags: "Jury"; "JFF". (jct) (Entered: 09/19/2005)
2 WAIVER OF SERVICE Returned Executed by pltf Equal Employment Opportunity Commission. Tobacco Superstore, Inc waiver sent on 9/20/2005, answer due 11/19/2005. (tlw) (Entered: 10/18/2005)
3 NOTICE of Appearance by Pamela B. Dixon on behalf of Equal Employment Opportunity Commission (Dixon, Pamela) (Modified on 10/20/2005 to attach signed document) (bfw). (Entered: 10/19/2005)
NOTICE OF DOCKET CORRECTION: 3 Notice of Appearance − (modified to attach signed document) (bfw) (Entered: 10/20/2005)
4 ANSWER to Complaint by deft Tobacco Superstore, Inc.(tlw) (Entered: 11/09/2005)
5 INITIAL SCHEDULING ORDER (DOC):Rule 26(f) Conference to occur by 1/18/2006; Rule 26(f) Report due by 2/1/2006; Jury Trial set for 10/16/2006 at 9:00 AM in Jonesboro, Courtroom #324, before Judge William R. Wilson Jr.(maj) (Entered: 11/16/2005)

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11/16/2005 02/01/2006 02/06/2006
02/06/2006 03/30/2006 03/31/2006
03/31/2006 03/31/2006 05/23/2006 05/23/2006 06/13/2006 06/15/2006 06/19/2006
06/19/2006 06/26/2006 06/28/2006
07/26/2006 07/26/2006 07/26/2006

6 CERTIFICATE OF MAILING by the Clerk re doc #5 Initial Scheduling Order (maj) (Entered: 11/16/2005)
7 REPORT of Rule 26(f) Planning Meeting by Equal Employment Opportunity Commission. (Dixon, Pamela) (Entered: 02/01/2006)
8 FINAL SCHEDULING ORDER (DOC): Jury Trial set for 10/16/2006 at 9:00 AM in Jonesboro Courtroom #324 before Judge William R. Wilson Jr; Discovery due by 8/1/2006; Motions due by 8/16/2006; Pretrial Disclosure Sheet due by 9/18/2006.(maj) (Entered: 02/06/2006)
9 CERTIFICATE OF MAILING by the Clerk re doc #8 Final Scheduling Order (maj) (Entered: 02/06/2006)
10 MOTION to Substitute Attorney (Proposed Order submitted) by Equal Employment Opportunity Commission. (Rapport, Adele) (Entered: 03/30/2006)
11 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER granting 10 Plaintiff's Motion to Substitute Attorney. Accordingly, Ms. Adele Rapport is added as Plaintiff's counsel and Ms. Katharine Kores is relieved as Plaintiff's counsel of record. Signed by Judge William R. Wilson Jr. on 03/31/06. (dmm, ) (Entered: 03/31/2006)
12 CERTIFICATE OF MAILING by the Clerk of 11 Order on Motion to Substitute Attorney. (jct) (Entered: 03/31/2006)
*** Attorney Katharine W. Kores terminated pursuant to 3/31/06 Text Entry Order. (jct) (Entered: 03/31/2006)
13 AGREED PROTECTIVE ORDER regarding confidential discovery material. Signed by Judge William R. Wilson Jr. on 5/22/06. (jct) (Entered: 05/23/2006)
14 CERTIFICATE OF MAILING by the Clerk of 13 Agreed Protective Order. (jct) (Entered: 05/23/2006)
15 UNOPPOSED MOTION to Continue 10/16/06 trial date, MOTION for Extension of Time to Complete Discovery & Other Deadlines, by Equal Employment Opportunity Commission. (jct) (Entered: 06/13/2006)
16 MOTION for Discovery − For Leave to Serve Additional Interrogatories (Proposed Order Submitted) by Equal Employment Opportunity Commission. (Liner, Celia) (Entered: 06/15/2006)
17 AMENDED FINAL SCHEDULING ORDER (DOC): Jury Trial reset for 8/13/2007 at 9:00 AM in Jonesboro Courtroom #324 before Judge William R. Wilson Jr; Discovery due by 5/30/2007; Motions due by 6/13/2007; Pretrial Disclosure Sheet due by 7/13/2007.(maj) (Entered: 06/19/2006)
18 CERTIFICATE OF MAILING by the Clerk re doc #17 Amended Final Scheduling Order (maj) (Entered: 06/19/2006)
19 RESPONSE in Opposition re 16 MOTION for Discovery − For Leave to Serve Additional Interrogatories (Proposed Order Submitted) filed by Tobacco Superstore, Inc. (Lombardi, Robert) (Entered: 06/26/2006)
20 REPLY to Response to Motion re 16 MOTION for Discovery − For Leave to Serve Additional Interrogatories (Proposed Order Submitted) filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Exhibit 1, D's Responses to P's First Interrogatories# 2 Exhibit exhibit 2, secretary of state documents# 3 Exhibit exhibit 3, June 1 letter)(Dixon, Pamela) (Entered: 06/28/2006)
21 ORDER granting 16 Pltf's Motion for leave to serve additional interrogatories. Signed by Judge William R. Wilson Jr. on 7/26/06. (jct) (Entered: 07/26/2006)
22 CERTIFICATE OF MAILING by the Clerk of 21 Order. (jct) (Entered: 07/26/2006)
23 MOTION to Substitute Attorney (Proposed Order Submitted), MOTION to Withdraw as Attorney (Proposed Order Submitted) by Equal Employment Opportunity Commission. (Dixon, Pamela) (Entered: 07/26/2006)

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08/01/2006
08/01/2006 09/27/2006 02/01/2007 02/05/2007 03/13/2007
04/02/2007 04/03/2007 04/11/2007 04/12/2007 04/16/2007 04/16/2007
05/29/2007 05/30/2007 05/30/2007
05/30/2007
05/30/2007

24 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER granting 23 Plaintiff's Motion to Substitute Attorney. Accordingly Ms. Adele Rapport is relieved as counsel and Ms. Faye Williams is substituted as counsel of record for Plaintiff.Signed by Judge William R. Wilson Jr. on 08/01/06. (dmm, ) (Entered: 08/01/2006)
***Attorney Faye A. Williams for Equal Employment Opportunity Commission added. Attorney Adele Rapport terminated pursuant to 24 Text Entry Order. (mkf, ) (Entered: 08/01/2006)
25 NOTICE of Appearance by Jennifer R. Guckert on behalf of Tobacco Superstore, Inc (Guckert, Jennifer) (Entered: 09/27/2006)
26 First MOTION to Extend Time Unopposed Motion to Extend Expert Deadlines by Tobacco Superstores Inc. (Lombardi, Robert) (Entered: 02/01/2007)
27 ORDER granting 26 Motion to Extend Time. Deadlines for case in chief and rebuttal expert reports are extended to 4/10/07 & 5/1/07. Signed by Judge William R. Wilson Jr. on 2/5/07. (jct) (Entered: 02/05/2007)
29 AMENDED ORDER, re 27 Order, Jury Trial before Judge William R. Wilson Jr. set for 8/14/2007 at 09:00 AM in Jonesboro Courtroom (large) #324. All other deadlines set by the previous Order remain in full force and effect. This Amended Order further amends the Scheduling Order previously entered. Signed by Judge William R. Wilson Jr. on 3/13/07. (jct) (Entered: 03/13/2007)
31 NOTICE of Appearance by Christine S. Goldberg on behalf of Tobacco Superstores Inc (Goldberg, Christine) (Entered: 04/02/2007)
32 NOTICE of Appearance by Darin B. Tuggle on behalf of Equal Employment Opportunity Commission (Tuggle, Darin) (Entered: 04/03/2007)
33 MOTION to Extend Time of Trial Deadlines and Trial by Equal Employment Opportunity Commission (Dixon, Pamela) (Entered: 04/11/2007)
34 BRIEF IN OPPOSITION filed by Tobacco Superstores Inc re 33 Motion to Extend Time (Goldberg, Christine) (Entered: 04/12/2007)
35 REPLY to Response to Motion re 33 MOTION to Extend Time of Trial Deadlines and Trial filed by Equal Employment Opportunity Commission. (Liner, Celia) (Entered: 04/16/2007)
36 DECLARATION of Celia Liner in Support of Reply to Defendant's Opposition to Motion to Modify Scheduling Order Extending Trial Deadlines and Trial by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit No. 1# 2 Exhibit No. 2# 3 Exhibit No. 3# 4 Exhibit No. 4)(Liner, Celia) (Entered: 04/16/2007)
37 ATTORNEY APPEARANCE by Stephen L. Scott for Tobacco Superstores Inc. (jct) (Entered: 05/29/2007)
38 MOTION to Substitute Attorney William A. Cash, MOTION to Withdraw as Attorney Terry Beck by Equal Employment Opportunity Commission (Cash, William) (Entered: 05/30/2007)
39 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER granting 38 Plaintiff's Motion to Substitute Counsel. Accordingly, William Cash is substituted and Terry Beck is relieved as Plaintiff's counsel.Signed by Judge William R. Wilson Jr. on 05/30/07. (dmm) (Entered: 05/30/2007)
40 ORDER REFERRING CASE to Magistrate Judge John F. Forster, Jr. for Settlement Conference. The parties will be contacted directly by Magistrate Judge Forster's Courtroom Deputy, Cecilia Norwood, for the setting of the Settlement Conference. This case is currently set on Judge Wilson's trial docket for the week of 8/13/07 in Jonesboro. Signed by Judge William R. Wilson Jr. on 5/30/07. (jct) (Entered: 05/30/2007)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Proceedings held before Judge William R. Wilson Jr: Telephone Conference held on 5/30/2007 regarding discovery matters; Order to be entered. (Court Reporter C.

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06/01/2007
06/05/2007 06/19/2007 06/25/2007
08/22/2007 08/22/2007
09/04/2007 11/13/2007 11/13/2007 11/13/2007 11/20/2007 11/27/2007
12/13/2007

Newburg) (maj) (Entered: 05/30/2007)
43 ORDER, pursuant to the 5/30/07 telephone conference, holding in abeyance 33 Motion to Continue & extend deadlines until the Settlement Conference being scheduled in front of Judge Forster has been resolved. Plaintiff's verbal motion to compel the production of personnel files is granted, subject to an appropriate Protective Order. Plaintiff's verbal motion to compel production of checks issued to pay Tobacco Superstores' fines is granted. Signed by Judge William R. Wilson Jr. on 6/1/07. (jct) (Entered: 06/01/2007)
45 SCHEDULING ORDER:Settlement Conference set for 6/19/2007 10:00 AM in Little Rock Courtroom #545 before Magistrate Judge John F. Forster Jr. Signed by C. Norwood at the direction of the Court on 6/5/07. (mcn) (Entered: 06/05/2007)
47 Minute Order. Proceedings held before Judge John F. Forster Jr.: Settlement Conference held on 6/19/2007. No settlement reached. (Court Reporter cn.) (mcn) (Entered: 06/20/2007)
48 FINAL AMENDED SCHEDULING ORDER (DOC): Jury Trial reset for 7/29/2008 at 9:00 AM in Jonesboro Courtroom #324 before Judge William R. Wilson Jr; Discovery due by 5/14/2008; Motions due by 5/29/2008; Pretrial Disclosure Sheet due by 6/30/2008. MOTION to Extend Time of Trial Deadlines and Trial filed by Equal Employment Opportunity Commission GRANTED. (maj) (Entered: 06/25/2007)
50 MOTION to Compel Responses to Its Ninth Set of Requests for Production of Documents to Defendant by Equal Employment Opportunity Commission (Liner, Celia) (Entered: 08/22/2007)
51 MEMORANDUM re 50 MOTION to Compel Responses to Its Ninth Set of Requests for Production of Documents to Defendant filed by Equal Employment Opportunity Commission (Memorandum in Support) PROPOSED ORDER SUBMITTED (Attachments: # 1 Exhibit No. 1 − Plaintiff's Ninth Set of Requests for Production of Documents# 2 Exhibit No. 2 − Defendant's Response to Plaintiff's Ninth Request for Production of Documents# 3 Certificate of Consultation)(Liner, Celia) (Entered: 08/22/2007)
52 BRIEF IN OPPOSITION filed by Tobacco Superstores Inc re 50 Motion to Compel, 51 Memorandum, (Chrestman, Jennifer) (Entered: 09/04/2007)
53 MOTION for Partial Summary Judgment Regarding the Temporal Scope of the Class by Tobacco Superstores Inc (Chrestman, Jennifer) (Entered: 11/13/2007)
54 BRIEF IN SUPPORT filed by Tobacco Superstores Inc re 53 Motion for Partial Summary Judgment (Attachments: # 1 Exhibit 1−4, # 2 Exhibit 5−8, # 3 Exhibit 9−12, # 4 Exhibit 13−14, # 5 Exhibit 15, # 6 Exhibit 16−18, # 7 Exhibit 19−22, # 8 Exhibit 23−26)(Chrestman, Jennifer) (Entered: 11/13/2007)
55 STATEMENT OF FACTS (Local Rule 56.1) re 54 Brief in Support, 53 Motion for Partial Summary Judgment filed by Tobacco Superstores Inc. (Chrestman, Jennifer) (Entered: 11/13/2007)
56 Unopposed MOTION for Extension of Time to File Response/Reply to Defendant's Motion for Summary Judgment by Equal Employment Opportunity Commission (Dixon, Pamela) (Entered: 11/20/2007)
57 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER granting 56 Plaintiff's Unopposed Motion for Extension of Time to File Response. Accordingly, Plaintiff's response to the Motion for Summary Judgment must be filed by 5 p.m., Friday, December 14, 2007. Signed by Judge William R. Wilson, Jr on 11/27/07. (dmm) (Entered: 11/27/2007)
59 RESPONSE in Opposition re 53 MOTION for Partial Summary Judgment Regarding the Temporal Scope of the Class filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit No. 1 − Plaintiffs 14th Supplemental Response to Interrogatories, # 2 Exhibit No. 2 − Def's Response to EEOC's Ist Interrog, # 3 Exhibit No. 3 − Pat Pamm depo excerpts, # 4 Exhibit No. 4 − Brandon depo excerpts, # 5 Exhibit No. 5 − Bell depo excerpts, # 6 Exhibit No. 6 − Ashley document, # 7 Exhibit No. 7 − Ashley depo excerpts, # 8 Exhibit No. 8 − Reese

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12/13/2007 12/14/2007
12/18/2007 12/18/2007 01/16/2008 02/29/2008 02/29/2008 02/29/2008 03/13/2008 03/13/2008
03/24/2008

document, # 9 Exhibit No. 9 − REsponse to Production Request, # 10 Exhibit No. 10 − Hicks document, # 11 Exhibit No. 11 − Logan document, # 12 Exhibit No. 12 − Freeman document, # 13 Exhibit No. 13 − Pippenger document, # 14 Exhibit No. 14 − Peoples document, # 15 Exhibit No. 15 − Morgan document, # 16 Exhibit No. 16 − Baker document, # 17 Exhibit No. 17 − Beltran document, # 18 Exhibit No. 18 − Marteny document, # 19 Exhibit No. 19 − Radford document, # 20 Exhibit No. 20 − Horchler document, # 21 Exhibit No. 21 − Herring document, # 22 Exhibit No. 22 − Faries document, # 23 Exhibit No. 23 − Deless document, # 24 Exhibit No. 24 − Vera Sumpter's declaration, # 25 Exhibit No. 25 − TSS Bates 5928 thru 5933, # 26 Exhibit No. 26 − Hamm promotion doc 1, # 27 Exhibit No. 27 − Hamm promotion doc 2, # 28 Exhibit No. 28 − Bates document, # 29 Exhibit No. 29 − Chambers document, # 30 Exhibit No. 30 − Unreported Case No. 1, EEOC v. Custom Co., Inc, # 31 Exhibit No. 30 − Unreported Case 2, EEOC v. Cabot Co)(Liner, Celia) . (Entered: 12/13/2007)
60 RESPONSE re 55 Statement of Facts (Local Rule 56.1) by Equal Employment Opportunity Commission (Liner, Celia) (Entered: 12/13/2007)
61 ADDENDUM filed by Equal Employment Opportunity Commission to 59 Response in Opposition to Motion,,,,,, This Addendum filing is to replace previously filed Exh 9 to Docket 59. This Addendum filing of Exh. 9 properly includes 37 pages of docs. (TSS 1624−1660) that was inadvertently omitted from the previously filed Exh. 9. (Attachments: # 1 Document TSS 1624 thru 1660, attachments to Exh. 9 Response to Req. for Prod.)(Liner, Celia) (Entered: 12/14/2007)
62 MOTION for Extension of Time to File Response/Reply In Support of Motion for Summary Judgment by Tobacco Superstores Inc (Chrestman, Jennifer) (Entered: 12/18/2007)
63 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER granting 62 Defendant's Motion for Extension of Time to File Reply. Accordingly, Defendant's Reply must be filed by 5 p.m., January 18, 2008. Signed by Judge William R. Wilson, Jr on 12/18/07. (dmm) (Entered: 12/18/2007)
64 REPLY to Response to Motion re 53 MOTION for Partial Summary Judgment Regarding the Temporal Scope of the Class filed by Tobacco Superstores Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Chrestman, Jennifer) (Entered: 01/16/2008)
65 MOTION for Summary Judgment Based on Judicial Estoppel by Tobacco Superstores Inc (Chrestman, Jennifer) (Entered: 02/29/2008)
66 BRIEF IN SUPPORT filed by Tobacco Superstores Inc re 65 Motion for Summary Judgment Based on Judicial Estoppel (Attachments: # 1 Exhibit 1−2, # 2 Exhibit 3−4, # 3 Exhibit 5−11, # 4 Exhibit 12, # 5 Exhibit 13−16, # 6 Exhibit 17−19, # 7 Exhibit 20, # 8 Exhibit 21−27)(Chrestman, Jennifer) (Entered: 02/29/2008)
67 STATEMENT OF FACTS (Local Rule 56.1) re 65 Motion for Summary Judgment, 66 Brief in Support, Bases on Judicial Estoppel filed by Tobacco Superstores Inc. (Chrestman, Jennifer) (Entered: 02/29/2008)
68 RESPONSE re 67 Statement of Facts (Local Rule 56.1) (Plaintiff's Response to Defendant's Statement of Material Facts in Support of Its Motion for Partial Summary Judgment Based on Judicial Estoppel) by Equal Employment Opportunity Commission (Attachments: # 1 Exhibit No. 1 − Sharkey Charge of Discrimination)(Liner, Celia) (Entered: 03/13/2008)
69 RESPONSE in Opposition re 65 MOTION for Summary Judgment Based on Judicial Estoppel filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit No. 1 − Sharkey Charge of Discrimination, # 2 Exhibit Unpublished Case − Small v. Ark. Fair Housing Commission, # 3 Exhibit Unpublished Case − EEOC v. Outback Steak House, # 4 Exhibit Unpublished Case − EEOC v. J.P. Street & Co., # 5 Exhibit Unpublished Case − EEOC v. Digital Connections, Inc., # 6 Exhibit Unpublished Case − EEOC v. Winslow Mem. Hosp. Inc.)(Liner, Celia) (Entered: 03/13/2008)
70 REPLY to Response to Motion re 65 MOTION for Summary Judgment Based on Judicial Estoppel filed by Tobacco Superstores Inc. (Attachments: # 1 Exhibit A, # 2

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Document)(Lombardi, Robert) (Entered: 03/24/2008)
71 MOTION for Partial Summary Judgment on Judicial Estoppel or Integrated Enterprise by Equal Employment Opportunity Commission (Liner, Celia) (Entered: 04/25/2008)
72 BRIEF IN SUPPORT filed by Equal Employment Opportunity Commission re 71 Motion for Partial Summary Judgment on Judicial Estoppel or Integrated Enterprise (Attachments: # 1 Exhibit List to Memo in Support of Motion for Partial Summary Judgment, # 2 Exhibit No. 1 − Allen Complaint, Doc 1, # 3 Exhibit No. 2 − Orig. and Amended Answer, Document 2, 16, # 4 Exhibit No. 3 − David Cohn depo excerpts, # 5 Exhibit No. 4 − Allen Doc. 32, # 6 Exhibit No. 5 − Allen doc 68, # 7 Exhibit No. 6 − Allen doc. 69, # 8 Exhibit No. 76 − Allen doc 76, # 9 Exhibit No. 8 − Allen doc 169, # 10 Exhibit No. 9 − Interrogatories, # 11 Exhibit No. 10 − David Cohn Trial Testimony, p. 562, # 12 Exhibit Cobb Trial Testimony, p.904−5, 909, 970−71, # 13 Exhibit No. 12 − Larry Cobb 30b6 depo excerpts, # 14 Exhibit No. 13 − Letter dated April 1, 2004, # 15 Exhibit Larry Cobb depo excerpts, # 16 Exhibit No. 15 − Exh 2 to Cobb 30b6 depo, # 17 Exhibit No. 16 − Don Morgan file, # 18 Exhibit No. 17 − Shannon Cox file, # 19 Exhibit No. 18 − April Messick docs, # 20 Exhibit No. 19 − Barbara Avery Shults docs, # 21 Exhibit No. 20 − Jennifer Boyd docs, # 22 Document No. 21 − Sherrie Herrell Springer file, # 23 Exhibit No. 22 − James Phillips docs, # 24 Exhibit No. 23 − Ashley Thompson Partain file, # 25 Exhibit No. 24 − Weddington depo excerpts, # 26 Exhibit No. 25 − Defs Response to Production)(Liner, Celia) (Entered: 04/25/2008)
73 STATEMENT OF FACTS (Local Rule 56.1) re 71 Motion for Partial Summary Judgment on Judicial Estoppel or Integrated Enterprise filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit List to Statement of Material Facts, # 2 Exhibit No. 1 − Incorporation docs, # 3 Exhibit David Cohn depo excerpts, # 4 Exhibit No. 3 − Interrogatories, # 5 Exhibit No. 4 − Cobb 30b6 depo excerpts, # 6 Document No. 5 − Parker depo excerpts, # 7 Exhibit No. 6 − Weddington depo excerpts, # 8 Exhibit No. 7 − McNamee depo excerpts, # 9 Exhibit No. 8 − Mills depo excerpts, # 10 Exhibit No. 9 − Exh. 4 to Cobb 30b6 depo, # 11 Exhibit No. 10 − Exh. 2 to Cobb 30b6 depo, # 12 Exhibit No. 11 − Whitlock depo excerpts, # 13 Exhibit No. 12 − Cobb depo excerpts, # 14 Exhibit No. 13 − Exh 4 to Cobb depo, # 15 Exhibit No. 14 − Exh 2 to Cobb depo, # 16 Exhibit No. 15 − Akers Douglas depo excerpts, # 17 Exhibit No. 16 − Dooley 30b6 depo excerpts, # 18 Exhibit No. 17 − Allen Cohn depo excerpts, # 19 Exhibit No. 18 − Light depo excerpts, # 20 Exhibit No. 19 − Defs Response to Production, # 21 Exhibit No. 20 − Williams depo excerpts, # 22 Exhibit No. 21 − TSS Bates #13260, # 23 Exhibit No. 22 − AR Tobacco Control Board docs, # 24 Exhibit No. 23 − Exh 9 to Cobb 30b6 depo, # 25 Exhibit No. 24 − Mylene Baxter docs, # 26 Exhibit No. 25 − TSS Pay Increase documents, # 27 Exhibit No. 26 − Christy Price docs, # 28 Exhibit No. 27 − Tobacco Server Awareness Forms)(Liner, Celia) (Entered: 04/25/2008)
74 Unopposed MOTION for Extension of Time to File Response/Reply as to 71 MOTION for Partial Summary Judgment on Judicial Estoppel or Integrated Enterprise by Tobacco Superstores Inc (Attachments: # 1 Proposed Order)(Lombardi, Robert) (Entered: 05/05/2008)
75 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER granting 74 Defendant's Unopposed Motion for Extension of Time to File Response. Accordingly, Defendant's response to Plaintiff's Motion for Partial Summary Judgment 71 must be filed by 5 p.m., May 20, 2008.Signed by Judge William R. Wilson, Jr on 05/05/08. (dmm) (Entered: 05/05/2008)
77 ORDER OF REASSIGNMENT. Case reference reassigned to Magistrate Judge J. Thomas Ray. Signed at the Direction of the Court on 5/13/2008. (thd) (Entered: 05/13/2008)
79 Cross MOTION for Partial Summary Judgment as to Judicial Estoppel and Integrated Enterprise by Tobacco Superstores Inc (Lombardi, Robert) (Entered: 05/20/2008)
80 BRIEF IN SUPPORT filed by Tobacco Superstores Inc re 79 Motion for Partial Summary Judgment, 71 Motion for Partial Summary Judgment on the Issues of Judicial Estoppel and Integrated Enterprise and Opposition (Attachments: # 1 Exhibit 1, # 2 Exhibit 2 (part a), # 3 Exhibit 2 (part b), # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit

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05/20/2008 05/20/2008 05/22/2008 05/23/2008
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05/28/2008 05/30/2008 05/30/2008 06/04/2008
06/04/2008 06/04/2008 06/04/2008 06/04/2008

5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Attachment)(Lombardi, Robert) (Entered: 05/20/2008)
81 STATEMENT OF FACTS (Local Rule 56.1) re 79 Motion for Partial Summary Judgment in Support of Its Cross−Motion for Summary Judgment filed by Tobacco Superstores Inc. (Lombardi, Robert) (Entered: 05/20/2008)
82 STATEMENT OF FACTS (Local Rule 56.1) re 71 Motion for Partial Summary Judgment in Opposition to Plaintiff's Motion for Partial Summary Judgment filed by Tobacco Superstores Inc. (Lombardi, Robert) (Entered: 05/20/2008)
83 Unopposed MOTION for Extension of Time to File Response/Reply as to 79 Cross MOTION for Partial Summary Judgment as to Judicial Estoppel and Integrated Enterprise (Proposed Order Submitted) by Equal Employment Opportunity Commission (Liner, Celia) (Entered: 05/22/2008)
84 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER granting 83 Plaintiff's unopposed Motion for Extension of Time to File Response to Defendant's Cross−Motion for Partial Summary Judgment 79 . Accordingly, Plaintiff's response must be filed by 5 p.m., Monday, June 16, 2008. Signed by Judge William R. Wilson, Jr on 05/23/08. (dmm) (Entered: 05/23/2008)
85 Unopposed MOTION for Extension of Time to File Motions for Summary Judgment by Tobacco Superstores Inc (Lombardi, Robert) (Docket text modified on 5/28/2008 to indicate the proposed order was filed as an attachment in error.) (thd) (Entered: 05/27/2008)
86 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER granting 85 Defendant's unopposed Motion for Extension of Time to File Dispositive Motions. Accordingly, all dispositive motions must be filed by 5 p.m., Thursday, June 5, 2008. Signed by Judge William R. Wilson, Jr on 05/28/08. (dmm) (Entered: 05/28/2008)
NOTICE OF DOCKET CORRECTION re: 85 Unopposed MOTION for Extension of Time to File Motions for Summary Judgment. CORRECTION: The docket text was modified to indicate the proposed order was filed as an attachment to docket entry 85 in error. (thd) (Entered: 05/28/2008)
88 MOTION to Strike Defendant's Supplemental Initial Disclosures by Equal Employment Opportunity Commission (Dixon, Pamela) (Entered: 05/30/2008)
89 BRIEF IN SUPPORT filed by Equal Employment Opportunity Commission re 88 Motion to Strike (Attachments: # 1 Exhibit A − D)(Dixon, Pamela) (Entered: 05/30/2008)
90 ORDER GRANTING in part and DENYING in part 53 Defendant's Motion for Partial Summary Judgment as follows: Defendant's Motion for Summary Judgment as to Class Members Who Allege Claims Prior to 9/28/01 is GRANTED; Defendant's Motion for Summary Judgment as to Piggybacking Class Members Bass & Brown is GRANTED; Defendant's Motion for Summary Judgment as to the Forward Temporal Scope of the Class is DENIED. Defendant's 65 Motion for Summary Judgment Based on Judicial Estoppel is DENIED. Signed by Judge William R. Wilson, Jr on 6/4/08. (jct) (Entered: 06/04/2008)
92 MOTION for Summary Judgment on Solita Brown's Failure to Promote Claim by Tobacco Superstores Inc (Lombardi, Robert) (Entered: 06/04/2008)
93 BRIEF IN SUPPORT filed by Tobacco Superstores Inc re 92 Motion for Summary Judgment on Solita Brown's Failure to Promote Claim (Attachments: # 1 Exhibit)(Lombardi, Robert) (Entered: 06/04/2008)
94 STATEMENT OF FACTS (Local Rule 56.1) re 92 Motion for Summary Judgment on Solita Brown's Failure to Promote Claim filed by Tobacco Superstores Inc. (Lombardi, Robert) (Entered: 06/04/2008)
95 MOTION for Partial Summary Judgment on Theresa Sharkey's Constructive Discharge Claim by Tobacco Superstores Inc (Lombardi, Robert) (Entered: 06/04/2008)

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06/09/2008
06/09/2008 06/09/2008 06/10/2008
06/10/2008

96 BRIEF IN SUPPORT filed by Tobacco Superstores Inc re 95 Motion for Partial Summary Judgment on Theresa Sharkey's Constructive Discharge Claim (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Lombardi, Robert) (Entered: 06/04/2008)
97 STATEMENT OF FACTS (Local Rule 56.1) re 95 Motion for Partial Summary Judgment on Theresa Sharkey's Constructive Discharge Claim filed by Tobacco Superstores Inc. (Lombardi, Robert) (Entered: 06/04/2008)
98 MOTION for Partial Summary Judgment Regarding the EEOC's Pattern or Practice Claim by Tobacco Superstores Inc (Lombardi, Robert) (Entered: 06/05/2008)
99 BRIEF IN SUPPORT filed by Tobacco Superstores Inc re 98 Motion for Partial Summary Judgment Regarding the EEOC's Pattern or Practice Claim (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Lombardi, Robert) (Entered: 06/05/2008)
100 STATEMENT OF FACTS (Local Rule 56.1) re 98 Motion for Partial Summary Judgment Regarding the EEOC's Pattern or Practice Claim filed by Tobacco Superstores Inc. (Lombardi, Robert) (Entered: 06/05/2008)
101 MOTION for Partial Summary Judgment on the Mixed−Motive Affirmative Defense by Tobacco Superstores Inc (Lombardi, Robert) (Entered: 06/05/2008)
102 BRIEF IN SUPPORT filed by Tobacco Superstores Inc re 101 Motion for Partial Summary Judgment on the Mixed−Motive Affirmative Defense (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Document, # 18 Document, # 19 Document, # 20 Document, # 21 Document, # 22 Document, # 23 Document, # 24 Document, # 25 Document, # 26 Document, # 27 Document)(Lombardi, Robert) (Entered: 06/05/2008)
103 STATEMENT OF FACTS (Local Rule 56.1) re 101 Motion for Partial Summary Judgment on the Mixed−Motive Affirmative Defense filed by Tobacco Superstores Inc. (Lombardi, Robert) (Entered: 06/05/2008)
104 AMENDED ORDER re 90 Order: Deft's 53 Motion for Summary Judgment Regarding the Temporal Scope of the Class is GRANTED in part and DENIED in part; granted as to Class Members Who Allege Claims Prior to 9/28/01; granted as to Piggybacking Class Member Ms. Brown; and denied as to the Forward Temporal Scope of the Class; Deft's 65 Motion for Summary Judgment Based on Judicial Estoppel is DENIED. Signed by Judge William R. Wilson, Jr on 6/6/08. (vjt) (Entered: 06/06/2008)
106 MOTION for Extension of Time to File Response/Reply as to 101 MOTION for Partial Summary Judgment on the Mixed−Motive Affirmative Defense, 92 MOTION for Summary Judgment on Solita Brown's Failure to Promote Claim, 98 MOTION for Partial Summary Judgment Regarding the EEOC's Pattern or Practice Claim, 95 MOTION for Partial Summary Judgment on Theresa Sharkey's Constructive Discharge Claim by Equal Employment Opportunity Commission (Dixon, Pamela) (Entered: 06/09/2008)
107 Unopposed MOTION for Extension of Time to File Response/Reply as to 88 MOTION to Strike Defendant's Supplemental Initial Disclosures by Tobacco Superstores Inc (Lombardi, Robert) (Entered: 06/09/2008)
108 NOTICE by Tobacco Superstores Inc of Conflict (Attachments: # 1 Document)(Lombardi, Robert) (Entered: 06/09/2008)
109 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER finding as moot 107 Defendant's unopposed Motion for Extension of Time to File Response to Plaintiffs' Motion to Strike 88 , since the current due date for the response is 5 p.m., Friday, June 13, 2008. Signed by Judge William R. Wilson, Jr on 06/10/08. (dmm) (Entered: 06/10/2008)
111 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER granting, in part, 106 Plaintiff's Motion for Extension of Time to File Responses to Defendant's Motions for Summary Judgment 92 98 95 101 . Plaintiffs are given to and including, Monday, June 23, 2008 −− by 5 p.m. −− within which to file

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06/23/2008

responses to Defendants Motions for Summary Judgment. Since the trial date is near, replies by Defendant must be filed by Friday, June 27, 2008 −− by 5 p.m. −− which are limited to 6 pages each.Signed by Judge William R. Wilson, Jr on 06/10/08. (dmm) (Entered: 06/10/2008)
113 RESPONSE re 108 Notice (Other) , Plaintiff's Response to Defendant's Notice of Conflict by Equal Employment Opportunity Commission (Cash, William) (Entered: 06/10/2008)
114 REPLY re 113 Response (Non Motion) to Notice of Conflict by Tobacco Superstores Inc. (Lombardi, Robert) (Entered: 06/12/2008)
115 RESPONSE in Opposition re 88 MOTION to Strike Defendant's Supplemental Initial Disclosures filed by Tobacco Superstores Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Attachment 1, # 5 Attachment 2, # 6 Attachment 3)(Lombardi, Robert) (Entered: 06/13/2008)
116 RESPONSE in Opposition re 79 Cross MOTION for Partial Summary Judgment as to Judicial Estoppel and Integrated Enterprise filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit − Larry Cobb depo excerpts, # 2 Exhibit − Charlie Parker depo excerpts)(Liner, Celia) (Entered: 06/16/2008)
117 RESPONSE re 81 Statement of Facts (Local Rule 56.1) by Equal Employment Opportunity Commission (Attachments: # 1 Exhibit − Larry Cobb depo excerpts, # 2 Exhibit − Charlie Parker depo excerpts, # 3 Exhibit − Melissa Akers depo excerpts, # 4 Exhibit − Euel Weddington depo excepts)(Liner, Celia) (Entered: 06/16/2008)
118 RESPONSE in Opposition re 92 MOTION for Summary Judgment on Solita Brown's Failure to Promote Claim filed by Equal Employment Opportunity Commission. (Attachments: # 1 Affidavit of Celia S. Liner)(Liner, Celia) (Entered: 06/19/2008)
119 RESPONSE in Support re 79 Cross MOTION for Partial Summary Judgment as to Judicial Estoppel and Integrated Enterprise filed by Tobacco Superstores Inc. (Lombardi, Robert) (Entered: 06/20/2008)
120 RESPONSE in Opposition re 98 MOTION for Partial Summary Judgment Regarding the EEOC's Pattern or Practice Claim, 95 MOTION for Partial Summary Judgment on Theresa Sharkey's Constructive Discharge Claim, 101 MOTION for Partial Summary Judgment on the Mixed−Motive Affirmative Defense filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Cobb depo excerpts, # 2 Exhibit Defendant's Response to 1st Set of Interrogs,, #3 REMOVED − See Docket Entry 122 for replacement, # 4 Exhibit Ashley depo excerpts, # 5 Exhibit Thompson depo excerpts, # 6 Exhibit Cobb Trial Testimony excerpts, # 7 Exhibit PACER Docket Sheet Darrough v TSS, # 8 Exhibit Mouton doc TSS 11158, # 9 Exhibit Marlo Williams doc TSS 11480, # 10 Exhibit Hamm depo excerpts, # 11 Affidavit Affidavit of Kathy Klinger, # 12 Exhibit Cole−Leach depo excerpts, # 13 Affidavit of Kaye Gustavus, # 14 Affidavit Affidavit of Vicky Kindrick, # 15 Exhibit Hancock depo excerpts, # 16 Exhibit Papa depo excerpts, # 17 Exhibit EEOC 00737−00747, # 18 Exhibit EEOC 00731−00736, # 19 Exhibit Defendant's Response to 3rd Request for Production, # 20 Exhibit Sharkey depo excerpts, # 21 Exhibit David Williams depo excerpts, # 22 Exhibit Bearden Trial Testimony excerpts, # 23 Exhibit Whitlock depo excerpts, # 24 Exhibit TSS 00651−00653)(Liner, Celia) (Attachment #3, Cohn Deposition Exhibits, was removed from the docket on 6/24/2008 at the request of the filing party and pursuant to instructions from Chambers; the party filed the corrected document as docket entry 122 .) (thd) (Entered: 06/23/2008)
121 RESPONSE re 97 Statement of Facts (Local Rule 56.1), 100 Statement of Facts (Local Rule 56.1), 103 Statement of Facts (Local Rule 56.1) by Equal Employment Opportunity Commission (Attachments: # 1 Exhibit Sharkey depo excerpts, # 2 Exhibit Arnold depo excerpts, #3 REMOVED − see 123 for Replacement document # 4 Exhibit Humble doc TSS 2715, # 5 Exhibit Martin doc TSS 0534, # 6 Exhibit Hancock depo excerpts, # 7 Exhibit Ashley depo excerpts, # 8 Exhibit Hamm depo excerpts, # 9 Exhibit Beltran doc TSS 1790, # 10 Exhibit Beavers depo excerpts, # 11 Affidavit Affidavit of Vera Sumpter, # 12 Exhibit Schultz doc TSS 11003, # 13 Exhibit Franklin doc TSS 10869, # 14 Exhibit Bell depo excepts, # 15 Exhibit Childers depo excerpts, # 16 Exhibit Bell doc TSS 7214, # 17 Exhibit Williamson doc TSS 7547, #18 REMOVED − see 124 for Replacement Document, # 20 Exhibit Combs doc

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TSS 10288, # 21 Exhibit Cobb depo excerpts, # 22 Exhibit Finch depo excerpts, # 23 Exhibit Riggs doc TSS 9179, # 24 Exhibit Jackson depo excerpts, # 25 Exhibit Murry depo excerpts, # 26 Exhibit Neal depo excerpts, # 27 Exhibit Pugh docs TSS 0268, 0251, 0224, # 28 Exhibit Williams doc TSS 3644, # 29 Exhibit Pugh depo excerpts, # 30 Exhibit Defendant's Response to !st Set of Interrogs, # 31 Exhibit Richardson depo excerpts, # 32 Exhibit Roach depo excerpts, # 33 Exhibit Scott depo excerpts, # 34 Exhibit Smith doc TSS 0391, # 35 Exhibit Davis doc TSS 9207, # 36 Exhibit Mills depo excerpts)(Liner, Celia) (Attachment #3 Brodell documents was removed from the docket (see 123 for replacement document and Attachment #18 Lipe documents was removed from the docket (see 124 for replacement document) on 6/24/2008 at the request of the filing party and pursuant to instructions from Chambers.(thd) (Entered: 06/23/2008)
122 NOTICE of Filing correction document to replace Attachment #3 Cohn depo excerpts re 120 Response in Opposition to Partial Motion for Summary Judgment by Equal Employment Opportunity Commission (Liner, Celia) (Docket text modified on 6/24/2008 to correct the description of the document filed.) (thd) (Entered: 06/23/2008)
123 NOTICE of Filing correction to replace Attachment # 3 April Brodell docs, and to redact personal identifying information re: 121 Response to Statement of Facts filed by Equal Employment Opportunity Commission. (Liner, Celia) (Docket text modified on 6/24/2008 to correct the description of the document filed and remove duplicate text.) (thd) (Entered: 06/23/2008)
124 NOTICE of Filing correction to replace Attachment #18, Melanie Lipe docs, and to redact personal identifying information re: 121 Response to Statement of Facts by Equal Employment Opportunity Commission (Liner, Celia) (Docket text modified on 6/24/2008 to correct the description of the document filed and remove duplicate text.) (thd) (Entered: 06/23/2008)
NOTICE OF DOCKET CORRECTION re: 122 , 123 , and 124 Notices. CORRECTION: The docket entries were modified to correct the description of the documents filed as follows: 122 NOTICE of Filing correction document to replace Attachment #3 Cohn depo excerpts re 120 Response in Opposition to Partial Motion for Summary Judgment; 123 NOTICE of Filing correction to replace Attachment # 3 April Brodell docs, and to redact personal identifying information re: 121 Response to Statement of Facts; and, 124 NOTICE of Filing correction to replace Attachment #18, Melanie Lipe docs, and to redact personal identifying information re: 121 Response to Statement of Facts. (thd) (Entered: 06/24/2008)
NOTICE OF DOCKET CORRECTION re: 120 Response in Opposition to Motion for Summary Judgment and 121 Response to Statement of Facts. CORRECTION: Docket entry 120 was modified to remove Attachment #3, Cohn Deposition Exhibits (see docket entry 122 for correct document) at the request of the filing party and pursuant to instructions from Chambers. Docket entry 121 was modified to remove Attachment #3, Brodell Documents (see 123 for correct document) and to remove Attachment #18, Lipe Documents (see 124 for correct document)at the request of the filing party and pursuant to instructions from Chambers. (thd) (Entered: 06/24/2008)
125 RESPONSE in Support re 101 MOTION for Partial Summary Judgment on the Mixed−Motive Affirmative Defense, 98 MOTION for Partial Summary Judgment Regarding the EEOC's Pattern or Practice Claim, 95 MOTION for Partial Summary Judgment on Theresa Sharkey's Constructive Discharge Claim filed by Tobacco Superstores Inc. (Attachments: # 1 Exhibit, # 2 Exhibit)(Lombardi, Robert) (Entered: 06/27/2008)
126 PRETRIAL DISCLOSURE SHEET by Equal Employment Opportunity Commission. (Dixon, Pamela) (Entered: 06/30/2008)
127 PRETRIAL DISCLOSURE SHEET by Tobacco Superstores Inc. (Lombardi, Robert) (Entered: 06/30/2008)
128 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER finding as moot 92 Defendant's Motion for Summary Judgment on Plaintiff Solita Brown's Failure to Promote Claim, based on Plaintiff's response to the motion 118 . Signed by Judge William R. Wilson, Jr on 07/02/08. (dmm) (Entered:

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07/03/2008
07/07/2008 07/08/2008 07/08/2008 07/09/2008
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07/14/2008
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07/02/2008)
129 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER At the request of the parties, this case is referred to Magistrate Judge J. Thomas Ray for a Settlement Conference. The parties will be contacted directly by Judge Ray's chambers for the setting of the Settlement Conference. This case is currently set on Judge Wilson's trial docket for the week of July 29, 2008, in Jonesboro, Arkansas. Signed by Judge William R. Wilson, Jr on 07/03/08. (dmm) (Entered: 07/03/2008)
131 NOTICE of Hearing: Settlement Conference set for 7/16/2008 at 09:00 AM in Little Rock, AR, Courtroom # 1C, before Magistrate Judge J. Thomas Ray. (ksm) (Entered: 07/07/2008)
133 MOTION to Amend/Correct 127 Pretrial Disclosure Sheet by Tobacco Superstores Inc (Lombardi, Robert) (Entered: 07/08/2008)
134 BRIEF IN SUPPORT filed by Tobacco Superstores Inc re 133 Motion to Amend/Correct Pre−Trial Disclosure Sheet (Lombardi, Robert) (Entered: 07/08/2008)
135 ORDER GRANTING 50 Plaintiff's Motion to Compel. Defendant must produce the documents requested in Plaintiff's Ninth Set of Requests for Production of Documents by 5 p.m., July 18, 2008. Signed by Judge William R. Wilson, Jr on 7/9/08. (jct) (Entered: 07/09/2008)
137 AMENDMENT TO ORDER, re 135 Order on Motion to Compel, Defendant must produce the subject documents by 12 noon next Tuesday, July 15, 2008. Signed by Judge William R. Wilson, Jr on 7/9/08. (jct) (Entered: 07/09/2008)
139 MOTION in Limine by Equal Employment Opportunity Commission (Dixon, Pamela) (Entered: 07/09/2008)
140 BRIEF IN SUPPORT filed by Equal Employment Opportunity Commission re 139 Motion in Limine (Attachments: # 1 Exhibit Exhibits 1 − 4)(Dixon, Pamela) (Entered: 07/09/2008)
141 MOTION in Limine to Exclude Testimony by Equal Employment Opportunity Commission (Dixon, Pamela) (Entered: 07/09/2008)
142 BRIEF IN SUPPORT filed by Equal Employment Opportunity Commission re 141 Motion in Limine (Attachments: # 1 Exhibit Exhibit 1)(Dixon, Pamela) (Entered: 07/09/2008)
143 MOTION in Limine Regarding Criminal Acts by Equal Employment Opportunity Commission (Dixon, Pamela) (Entered: 07/09/2008)
144 BRIEF IN SUPPORT filed by Equal Employment Opportunity Commission re 143 Motion in Limine (Attachments: # 1 Exhibit Exhibits 1 − 9)(Dixon, Pamela) (Entered: 07/09/2008)
145 MOTION for Reconsideration re 135 Order on Motion to Compel, 137 Order by Tobacco Superstores Inc (Lombardi, Robert) (Entered: 07/10/2008)
146 ORDER modifying 135 Order on Motion to Compel & 137 Amendment to Order to require the Defendant to bring its documents to the Settlement Conference on 7/16/08 to be presented to U.S. Magistrate Judge J. Thomas Ray in camera. Judge Ray, of course may, in his discretion, order this information disclosed to the Plaintiff there and then. Signed by Judge William R. Wilson, Jr on 7/10/08. (jct) (Entered: 07/10/2008)
148 ORDER authorizing Faye Williams, Celia Liner, Henry P. Julien, Robert P. Lombardi, Brad Beavers, Larry Cobb & David Cohn to bring a cell phone, laptop computer or personal digital assistant into the Courthouse on 7/16/08 for the scheduled settlement conference, subject to rules contained in said Order. Signed by Magistrate Judge J. Thomas Ray on 7/14/08. (jct) (Entered: 07/14/2008)
150 RESPONSE in Opposition re 133 MOTION to Amend/Correct 127 Pretrial Disclosure Sheet filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit No. 1 − Letter dated 7−14−05 to Henry Julien, # 2 Exhibit No. 2 − Letter dated 7−21−05 to Karen Johnson., # 3 Exhibit No. 3 − Fax cover Sheet dated 7−21−05, # 4

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07/14/2008 07/14/2008 07/15/2008
07/15/2008 07/15/2008
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07/16/2008 07/16/2008 07/16/2008 07/17/2008 07/17/2008 07/17/2008

Exhibit No. 4 − Conciliation Failure letter, # 5 Exhibit NO. 5 − Letter dated 10−17−06 to Henry Julien, # 6 Exhibit NO. 6 − Letter dated 11−8−06 to Henry Julien, # 7 Exhibit No. 7− Letter dated 1−5−07 to Celia Liner)(Liner, Celia) (Entered: 07/14/2008)
151 OBJECTIONS by Equal Employment Opportunity Commission re 127 Pretrial Disclosure Sheet. (Dixon, Pamela) (Entered: 07/14/2008)
152 OBJECTIONS by Tobacco Superstores Inc re 126 Pretrial Disclosure Sheet. (Lombardi, Robert) (Entered: 07/14/2008)
153 RE−NOTICE of Hearing: The Settlement Conference originally scheduled for 7/16/2008 has been cancelled and is rescheduled for Tuesday, 7/22/2008 at 09:00 AM, in Little Rock, AR, Courtroom # 1C, before Magistrate Judge J. Thomas Ray. (ksm) (Entered: 07/15/2008)
155 MOTION in Limine on the Issue of Damages by Tobacco Superstores Inc (Lombardi, Robert) (Entered: 07/15/2008)
156 BRIEF IN SUPPORT filed by Tobacco Superstores Inc re 155 Motion in Limine to Preclude Plaintiff from Introducing Evidence of Damages and Precluding the Testimony of the Proposed Witness, Nancy Kincaid (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Lombardi, Robert) (Entered: 07/15/2008)
157 MOTION in Limine by Tobacco Superstores Inc (Lombardi, Robert) (Entered: 07/15/2008)
158 BRIEF IN SUPPORT filed by Tobacco Superstores Inc re 157 Motion in Limine (Lombardi, Robert) (Entered: 07/15/2008)
159 MOTION to Strike 157 MOTION in Limine, 155 MOTION in Limine on the Issue of Damages by Equal Employment Opportunity Commission (Dixon, Pamela) (Entered: 07/16/2008)
160 BRIEF IN SUPPORT filed by Equal Employment Opportunity Commission re 159 Motion to Strike (Dixon, Pamela) (Entered: 07/16/2008)
161 BRIEF IN OPPOSITION filed by Tobacco Superstores Inc re 144 Brief in Support, 143 Motion in Limine Regarding Prior Criminal Acts (Lombardi, Robert) (Entered: 07/16/2008)
162 BRIEF IN OPPOSITION filed by Tobacco Superstores Inc re 141 Motion in Limine, 142 Brief in Support to Exclude Testimony or Evidence Regarding Involuntary Terminations of Class Members from Defendant and Testimony or Evidence Regarding Bankruptcy Filings by Class Members (Lombardi, Robert) (Entered: 07/16/2008)
163 REPLY to Response to Motion re 133 MOTION to Amend/Correct 127 Pretrial Disclosure Sheet filed by Tobacco Superstores Inc. (Lombardi, Robert) (Entered: 07/16/2008)
164 MOTION for Sanctions Under Fed. R. Civ. Proc. 37(c)(1) and Motion to Strike Nancy Kincaid as a Witness, MOTION to Strike 126 Pretrial Disclosure Sheet () by Tobacco Superstores Inc (Lombardi, Robert) (Entered: 07/16/2008)
165 BRIEF IN SUPPORT filed by Tobacco Superstores Inc re 164 Motion for Sanctions, Motion to Strike Nancy Kincaid as a Witness (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Lombardi, Robert) (Entered: 07/16/2008)
166 MOTION to Substitute Attorney Thomas J. Woodford by Tobacco Superstores Inc (Woodford, Thomas) (Entered: 07/17/2008)
167 BRIEF IN OPPOSITION filed by Tobacco Superstores Inc re 159 Motion to Strike (Lombardi, Robert) (Entered: 07/17/2008)
168 MOTION to Strike 126 Pretrial Disclosure Sheet Plaintiff's Deposition Designations by Tobacco Superstores Inc (Lombardi, Robert) (Entered: 07/17/2008)

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169 BRIEF IN SUPPORT filed by Tobacco Superstores Inc re 168 Motion to Strike Plaintiff's Deposition Designations (Lombardi, Robert) (Entered: 07/17/2008)
170 MOTION for Sanctions Regarding Plaintiff's Failure to Disclose Alleged Promotion Opportunities by Tobacco Superstores Inc (Lombardi, Robert) (Entered: 07/17/2008)
171 BRIEF IN SUPPORT filed by Tobacco Superstores Inc re 170 Motion for Sanctions Regarding Plaintiff's Failure to Disclose Alleged Promotion Opportunities (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Lombardi, Robert) (Entered: 07/17/2008)
172 RESPONSE to Motion re 155 MOTION in Limine on the Issue of Damages filed by Equal Employment Opportunity Commission. (Dixon, Pamela) (Entered: 07/21/2008)
173 RESPONSE to Motion re 157 MOTION in Limine filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Exhibits 1 − 7)(Dixon, Pamela) (Entered: 07/21/2008)
174 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) Minute Entry for proceedings held before Magistrate Judge J. Thomas Ray: The parties appeared for a Settlement Conference held on 7/22/2008. The parties reached a full and complete settlement with the agreement made part of the record as Exhibit "A". Plf−Celia S. Liner, Faye A. Williams, Pamela B. Dixon, William A. Cash, Jr. Dft−Brad J. Beavers, Henry P. Julien, Jr., Robert P. Lombardi. (ERO−Kathy McBryde) (ksm) (Entered: 07/22/2008)
176 CONSENT DECREE pursuant to settlement of this cause of action. Each party shall bear that party's own costs, attorneys' fees and expenses. Signed by Judge William R. Wilson, Jr on 8/4/08. (jct) (Entered: 08/05/2008)