's'n .,...-.

.

:0
,~

:

)

,!:.J!~'-:! "L1"SIG

SEP 29 2003

lie.] v

IN THE UNITED STATES DISTRICT COURT

S~ : I lid 52 dJ&::)WTHE NORTHERN DISTRICT OF ILLINOIS

-'\.:1 C'" - -',

EASTERN DIVISION

SU.:J-U:J I

EQUAL EMPLOYMENT OPPORTUNITY)

COMMISSION,

)

6851 CIv8M0g,..~. NO.

.

)

Plaintiff,

)

)

v.

)

)

WIDTEHALL HOTEL, Ltd.

)

MAGISTRATE JUDGE ASHlviAN

)

Defendant.

)

JURy TRIAL DEMAND

)

NATURE OF THE ACTION

This is an action under Title I ofthe Americans with Disabilities Act of 1990 and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices. The Equal Employment Opportunity Commission ("E~9C'') alleges that Whitehall Hotel, Ltd. failed to accommodate Eric Olden's disability and solicited from him and other applicants information about their disabilities, prior to making them an offer of employment.
JURISDICTION AND VENUE l. Jurisdiction of this Court is invoked pursuantto 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 107(a) ofthe Americans with Disabilities Act of 1990 ("ADA',), 42 U.S.C. § 12117(a), which incorporates by reference Section 706 and Section 707 ofTitle VII ofthe Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-5, and § 20000e-7. 2. The employment practices alleged to be unlawful were committed within the State of Illinois.
PARTIES 3. Plaintiff EEOC is the agency of the United States of America charged with

1
\~

the administration, interpretation and enforcement of Title I of the ADA and is expressly authorized to bring this action by Section 107(a) of the ADA, 42 U.S.C. § 12117(a), which incorporates by reference Section 706(f)(1) and (3),42 U.S.C. § 2000e-S(f)(I) and (3).
4. At all relevant times, Whitehall Hotel. Ltd ("Defendant") was continuously doing business in the State of Illinois and continuously had at least 15 employees.
5. At all relevant times, Defendant had continuously been an employer engaged in an industry affecting commerce under Section 101(5) ofthe ADA, 42 U.S.C.§ 12111(5), and Section 101(7) of the ADA, 42 U.S.C. § 12111(7), which incorporates by reference Sections 701(g) and (h) of Title VII, 42 U.S.C. §§ 2000e(g) and (h).
6. At all relevant times, Defendant was a covered entity under Section 101(2) of the ADA, 42 U.S.C. § 12111(2).
STATEMENT OF CLAIMS 7. More than thirty days prior to the institution of this lawsuit, Eric Olden filed a charge with the EEOC alleging violations of Title I of the ADA by Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled. 8.· In 2001 Defendant failed to accommodate Eric Olden, in violation of Section 102(b)(S) ofTitle I of the ADA, 42 U.S.c. § 12112(b)(S). 9. The effect of the practices complained of in paragraph 8 above has been to deprive Eric Olden of equal employment opportunities and otherwise adversely affect his status as an employee, because of his disabilities. 10. The unlawful employment practices complained of in paragraph 8 above were intentional. 11. The unlawful employment practices complained of in paragraph 8 above were done with malice or with reckless indifference to the federally protected rights of Eric Olden. 12. Since at least 1999 Defendant has engaged in a pattern or practice of soliciting from applicants information concerning their disabilities, prior to making them an offer of
2

- "

employment, in violation of Section 102(d)(2) of Title I ofthe ADA, 42 U.S.C. § 12112(d)(2).
13. The effect of the practices complained of in paragraph 12 above has been to deprive Eric Olden of equal employment opportunities and otherwise adversely affect his status as an employee, because ofhis disabilities, and to interfere with the employment opportunities of and adversely affect other applicants.
14. The unlawful employment practices complained ofin paragraph 12 above were intentional.
15. The unlawful employment practices complained of in paragraph 12 above were done with malice or with reckless indifference to the federally protected rights of Eric Olden and other applicants.

PRAYER FOR RELIEF

Wherefore, the Commission respectfully requests that this Court:

A. Grant a permanent injunction enjoining Defendant, its officers, successors,

assigns, and all persons in active concert or participation with it, from engaging in

employment practices which discriminate on the basis of disability.

B. Order Defendant to institute and carry out policies, practices, and programs

which provide equal employment opportunities for qualified individuals with disabilities,

and which eradicate the effects of the unlawful employment practices of Defendant.

C.

Order Defendant to make whole Eric Olden by providing compensation

for pecuniary losses resulting from the unlawful employment practices described in

paragraph 8 above, in amounts to be determined at trial.

D. Order Defendant to make whole Eric Olden by providing compensation for

nonpecuniary losses resulting from the unlawful practices complained of in paragraph 8

above, including emotional pain, suffering, inconvenience, loss of enjoyment oflife, and

3

..
humiliation, in amounts to be determined at trial. E. Order Defendant to pay Eric Olden punitive damages for its malicious and
reckless conduct, as described in paragraph 8 above, in an amount to be determined at trial.
G. Order Defendant, because of the unlawful practices complained of in paragraph 8 above, to make whole Eric Olden by providing him appropriate back pay with pre-judgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of the unlawful employment practices, including but not limited to rightful place reinstatement of Eric Olden;
H. Order Defendant to make whole Eric Olden and adversely affected applicants by providing them compensation for pecuniary losses resulting from the
'I
unlawful employment practices described in paragraph 12 above, in amounts to be determined at trial.
1. Order Defendant to make whole Eric Olden and adversely affected
applicants by providing compensation for nonpecuniary losses resulting from the unlawful practices complained ofin paragraph 12 above, including emotional pain, suffering, inconvenience, loss of enjoyment of life, and humiliation, in amounts to be determined at trial.
J. Order Defendant to pay Eric Olden and adversely affected applicants punitive damages for its malicious and reckless conduct, as described in paragraph 12 above, in an amount to be determined at trial.
4

· .,.
K. Grant such further relief as the Court deems necessary and proper in the public interest.
L. Award the Commission its costs ofthis action. JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its complaint.
ERIC DREffiAND General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel
I '-'~g. 0 h>lruj\IT
SupervISOry Trial Attorney
,Atn.r1W>, (,)o.£t!~~
Gordon Waldron Senior Trial Attorney Equal Employment Opportunity Commission Chicago District Office 500 W. Madison St., Suite 500 Chicago, Illinois 60661 (312) 353-7525
D:\MyfIles\Myfiles\AdminFiles\ADAFiles\Whitehall\compIaint.wpd
5

Civil Cover Sheet

http:/~d.uscourts.govIPUBUCJFonnsIlIIltoJs44.cfin

DOCf{HEO UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
SEP 29 2003
Civil Cover Sheet
This automated JS-44 conforms generally to the manual JS-44 approved by the Judicial Conference ofthe United States in September 1974. The data is required for the use ofthe Clerk ofCourt for the purpose of initiating the civil docket sbeet. The information contained herein neither replaces nor supplements the ftIing and service of pleadings or other papers as required by law. This form is authorized for use only in the Northern District of Illinois.

Plamtiff(s): U.S. Equal Employment Opportunity Commission

Defendant(s):WhitehaU Hotel, Ltd.

County of Residence:

County of Residence: Cook

Plaintiff's Atty:

Gordon G. Waldron

Defendant's Atty:

Equal Employment Opportunity

Commission 500 W. Madison Street, Suite 2800 Chicago, lllinois 60661

08C 6851

(312) 353-7525

JUDGE JOHN W n4R~A"

II. Basis of Jurisdiction:

1. U.S. Gov't Plaintiff

ill. Citizenship of Principal Parties (Diversity Cas.s Only)
Plaintiff:- NtA Defendant:- NtA

MAG/STRA'T'-
II:;

JUD GEASH~

".:l
M ,.J .",

<..l

N. Origin: V. Nature of Suit:

1. Original Proceeding 442 Employment

LL_ ~en

c::.'
,:)

M o

::>

VI.Cause of Action:

Title I ofthe Americans With Disabilities Act ofl990 ("ADA") 42

U.S.C. § 12101 et seq., and Title I of the Civil Rights Act of 1991, 42

U.S.C. § 1981a, to correct unlawful employment practices on the

basis of disability.

VII. Requested in Complaint

Class Action: No

Dollar Demand:

Jury Demand: Yes

Vill. 'This case IS NOT a refiling of a previously dismissed case.

Signature: ~.~1t>L.LL.n~L==-_W..:....:...;4.:::..'d=--,-r~:...:o..__j!..,;(._,).--,"t",-6..::Q.l=--__

1 of2

9129/039:45 AM

In the Matter of

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DOCI'~T:"
SEP 292003

U.S. Equal Employment Opportunity Commission,

v.

Plaintiff,

6851

Whitehall Hotel, Ltd.,

* Defendant.

,',.

~,..-

APPEARANCES ARE HEREBY FIL BY THE UNDERSIGNED AS A1TORNEY{SJP~N W

U.S. Equal Employment Opportuni bommission, Plaintiff

I.t~C;.:',~

DAI?~

II '.

III;:~ JlJDGF .......

.. "

SIGNA-lURE

NAME
Gordon G. Waldron

VINjI4t /:\'YIl/rG ( 1 /

I V FIRM Equal Employment Opportunity Commission

Equal Employment Opportunity Commission

STREET ADDRESS 500 W. Madison St., Suite 2800

STREETADDRES. 500 W. Madison St., Suite 2800

CITYISTATWlIP

I Chicago, Illinois 60661

TELEPHONE NUMBER

FAX NUMBER

(312)353-7525

(312) 353-8555

E-MAIL ADDRESS
gordon.waldron@eeoc.gov

IDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE)
ARDC No. 02920646

MEMBER OF 11UAL BAR?

YES

NO D

TRIALATTORNEY?

D

/< >I /II / j~/lj A I A

CI1YISTATFmP

•

Chicago, Illinois 60661

TELEPHONE NUMBER
(312) 886-9124

FAXNlMBER
(312) 353-8555

E-MAIL ADDRESS gregory.gochanour@eeoc.gov

IDENTIFICATION NUMI£Il (SEE ITEM 4 ON REVER.SE)
ARDC No. 06210804
MEMBER OF TRIAL BAR?

NO D

TRIAL ATIORNEY1

YES

D NO

DESIGNATED AS LOCAL COUNSEL?
/
SlClNAnJRE

YES

D D NO

(D)

N1 J6im .Hendri~son

Equal mployment Opportunity Commission

"ADD••'" 59 0 W. Madison St., Suite 2800

I CllYIliTA.~ Chicago, Illinois 60661

TELEPHONE NUMBER

FAX NUdBER

(312) 353-8551

(312) 353-8555

8-MAIL ADDRES' J•Ohn.he' ndrickson@eeoc.gov

IDENTIFICATION NUMBER (SEE ITEM 4 ON REVERS!)
ARDC No. 01187589

MEMBEROFTRIAL BAR?

D YES ~ NO

FIRM STREET ADDRESS CITY1STATEJZIP TELEPHONE NlIvUIER E-MAIL ADDRESS

..,.,'-'~
!.{)
.-..
- - L--, a: I
C"\
I w ' " FAXtAJ.tsEII. [~ l:_ ~ ("") a

IDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE)

,..
"
J
~
..~ -~;-
L .. ::
-, -
-, -
CJ
u~ ~

MEMBER OF TRlAL BAR?

YES D NOD

TRIAL ATIORNEY'/

YES Ii"! NO D

TRIAL ATIORNEY'l

YES D Nl)D

DESIGNATED AS LOCAL COUNSEL?

D D YES

NO

DESIGNATED AS LOCAL COUNSEL?

YES

 
 INTHEUNITEDSTATESDISTRICTCOUR~:r~J9JJ:::)

FOR THE NORTHERN DISTRICT OF ILLINOIS APR 2

.

EASTERN DIVISION

7 2004

EQUAL EMTLOYMENT OPPORTUNITY )

COMMISSION,

)

JUOGEJO _ UN/TEO STAT:./,N W. DARRAH
..S C'/STR/CT
CML ACTION NO. 03 C 6851 COURT

)

Plaintiff,

)

) FIRST AMENDED COMPLAINT

v.

)

)

WHITEHALL HOTEL, LTD. and

)

WHITEHALL HOTEL RESTAURANT, )

INC.,

)

)

DOCKETE
APR 28 200-

Defendants. •

) JURy TRIAL DEMAND

)

NATURE OF THE ACTION

This is an action under Title I of the Americans with Disabilities Act of 1990 and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices. The Equal Employment Opportunity Commission ("EEOC") alleges that Whitehall Hotel, Ltd. and Whitehall Hotel Restaurant, Inc. failed to accommodate Eric Oden's disability and solicited from him and other applicants information about their disabilities, prior to making them an offer of employment.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 107(a) ofthe Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12117(a), which incorporates by reference Section 706 and Section 707 of Title VII ofthe Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-5, and § 20000e-7. 2. .The employment practices alleged to be unlawful were committed within the State of Illinois.

1
\1;

PARTIES

3. PlaintiffEEOC is the agency of the United States ofAmerica charged with

the administration, interpretation and enforcement of Title I of the ADA and is expressly

authorized to bring this action by Section ,107(a) of the ADA, 42 U.S.C. § 12117(a),
which incorporates by reference Section 706(t)(1) and (3), 42 U.S.C. § 2000e-5(t)(l) and

(3).

/

4. At all relevant times, Whitehall Hotel, Ltd. and Whitehall Hotel Restaurant,

Inc. ("Defendants") were continuously doing business in the State ofIllinois and

continuously had at least 15 employees.

5. At al1 relevant times, Defendants had continuously been employers engaged

in an industry affecting commerce under Section 101(5) of the ADA, 42 U.S.C.§

12111(5), and Section 101(7) of the ADA, 42 U.S.C. § 12111(7), which incorporates by
reference Sections 701(g) and (h) of Title VII, 42 u.s.c. §§ 2000e(g) and (h).

6. At all relevant times, Defendants were covered entities under Section

101(2) ofthe ADA, 42 U.S.C. § 12111(2).

STATEMENT OF CLAIMS

7. More than thirty days prior to the institution of this lawsuit, Eric aden filed

a charge with the EEOC alleging violations of Title I ofthe ADA by Defendants. All

conditions precedent to the institution ofthis lawsuit have been fulfilled.

8. In 2001 Defendants failed to accommodate Eric aden, in violation of

Section I02(b)(5) ofTitIe I of the ADA, 42 U.S.C. § 121 12(b)(5).

9. The effect of the practices complained ofin paragraph 8 above has been to

deprive Eric aden of equal employment opportunities and otherwise adversely affect his

status as an employee, because of his disabilities.

10. The unlawful employment practices complained of in paragraph 8 above

were intentional.

II. The unlawful employment practices complained of in paragraph 8 above

2

were done with malice or with reckless indifference to the federally protected rights of

Eric Oden.

12. Since at least 1999 Defendants have engaged in a pattern or practice of

soliciting from applicants information concerning their disabilities, prior to making them

an offer ofemployment, in violation of Section 102(d)(2) of Title I ofthe ADA, 42
"'
U.S.C. § 12112(d)(2).

13. The effect of the practices complained ofin paragraph 12 above has been to

deprive Eric Oden of equal employment opportunities and otherwise adversely affect his

status as an employee, because of his disabilities, and to interfere with the employment

opportunities of and adversely affect other applicants.

14. The unlawful employment practices complained of in paragraph 12 above

were intentional.

15. The unlawful employment practices complained of in paragraph 12 above

were done with malice or with reckless indifference to the federally protected rights of

Eric Oden and other applicants.

PRAYER FOR RELIEF

Wherefore, the Commission respectfully requests that this Court:

A. Grant a permanent injunction enjoining Defendants, their officers,

successors, assigns, and all persons in active concert or participation with them, from

engaging in employment practices which discriminate on the basis of disability.

B. Order Defendants to institute and carry out policies, practices, and

programs which provide equal employment opportunities for qualified individuals with

disabilities, and which eradicate the effects of the unlawful employment practices of

Defendants.

C.

Order Defendants to make whole Eric Oden by providing compensation

for pecuniary losses resulting from the unlawful employment practices described in

paragraph 8 above, in amounts to be determined at trial.

3

D. Order Defendants to make whole Eric Oden by providing compensation for nonpecuniary losses resulting from the unlawful practices complained ofin paragraph 8 above, including emotional pain, suffering, inconvenience, loss ofenjoyment oflife, and humiliation, in amounts to be determined at trial.
E. Order Defendants to pay Eric Oden punitive damages for their malicious and reckless conduct, as described in paragraph 8 above, in an amount to be determined at trial.
G. Order Defendants, because of the unlawful practices complained ofin
paragraph 8 above, to make Whole Eric Oden by providing him appropriate back pay with
pre-judgment interest, in amounts to be determined at trial, and other affIrmative relief necessary to eradicate the effects ofthe unlawful employment practices, including but not limited to rightful place reinstatement ofEric Oden;
H. Order Defendants to make whole Eric Oden and adversely affected applicants by providing them compensation for pecuniary losses resulting from the unlawful employment practices described in paragraph 12 above, in amounts to be determined at trial.
I. Order Defendants to make whole Eric Oden and adversely affected applicants by providing compensation for nonpecuniary losses resulting from the unlawful practices complained of in paragraph 12 above, including emotional pain, suffering, inconvenience, loss of enjoyment of life, and humiliation, in amounts to be determined at trial.
J. Order Defendants to pay Eric Oden and adversely affected applicants punitive damages for its malicious and reckless conduct, as described in paragraph 12 above, in an amount to be determined at trial.
K. Grant such further relief as the Court deems necessary and proper in the public interest.
L. Award the Commission its costs of this action.
4

JURY TRIAL DEMAND The Commission requests a jury trial on all questions of fact raised by its complaint.
ERIC DREIBAND General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel
~./J, W.wJr~
Gordon Waldron Senior Trial Attorney Equal Employment Opportunity Commission Chicago District Office 500 W. Madison St., Suite 500 Chicago, Illinois 60661
(312) 353-7525
5

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

WHITEHALL HOTEL, LTD. and

)

WHITEHALL HOTEL RESTAURANT, )

INC.,

)

)

Defendants. '

)

)

CIVIL ACTION NO. 03 C 6851 FIRST AMENDED COMPLAINT
JURy TRIAL DEMAND

NATURE OF THE ACTION

This is an action under Title I of the Americans with Disabilities Act of 1990 and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices. The Equal Employment Opportunity Commission ("EEOC") alleges that Whitehall Hotel, Ltd. and Whitehall Hotel Restaurant, Inc. failed to accommodate Eric Oden's disability and solicited from him and other applicants information about their disabilities, prior to making them an offer of employment.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 107(a) of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12117(a), which incorporates by reference Section 706 and Section 707 of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-5, and § 20000e-7. 2. The employment practices alleged to be unlawful were committed within the State ofIllinois.

1

PARTIES 3. PlaintiffEEOC is the agency ofthe United States ofAmerica charged with the administration, interpretation and enforcement ofTitle I ofthe ADA and is expressly authorized to bring this action by Section 107(a) of the ADA, 42 U.S.C. § 12117(a), which incorporates by reference Section 706(t)(1) and (3), 42 U.S.C. § 2000e-:5(t)(1) and (3). 4. At all relevant times, Whitehall Hotel, Ltd. and Whitehall Hotel Restaurant, Inc. ("Defendants") were continuously doing business in the State ofIllinois and continuously had at least 15 employees. 5. At all relevant times, Defendants had continuously been employers engaged jin an industry affecting commerce under Section 101(5) ofthe ADA, 42 U.S.C.§· 12111(5), and Section 101(7) of the ADA, 42 U.S.C. § 12111(7), which incorporates by reference Sections 701(g) and (h) of Title VII, 42 U.S.C. §§ 2000e(g) and (h). 6. At all relevant times, Defendants were covered entities under Section 101(2) ofthe ADA, 42 U.S.C. § 12111(2).
STATEMENT OF CLAIMS 7. More than thirty days prior to the institution ofthis lawsuit, Eric aden filed a charge with the EEOC alleging violations ofTitle I ofthe ADA by Defendants. All conditions precedent to the institution of this lawsuit have been fulfilled. 8. In 2001 Defendants failed to accommodate Eric aden, in violation of Section 102(b)(5) of Title I offue ADA, 42 U.S.C. § 12112(b)(5). 9. The effect offue practices complained of in paragraph 8 above has been to deprive Eric aden of equal employment opportunities and otherwise adversely affect his status as an employee, because ofhis disabilities. 10. The unlawful employment practices complained of in paragraph 8 above were intentional. 11. The unlawful employment practices complained of in paragraph 8 above
2

were done with malice or with reckless indifference to the federally protected rights of

Eric Oden.

12. Since at least 1999 Defendants have engaged in a pattern or practice of

soliciting from applicants information concerning their disabilities, prior to making them

an offer of employment, in violation of Section 102(d)(2) of Title I ofthe ADA, 42

U.S.C. § 12112(d)(2).

13. The effect ofthe practices complained of in paragraph 12 above has been to

deprive Eric Oden of equal employment opportunities and otherwise adversely affect his

status as an employee, because ofhis disabilities, and to interfere with the employment

opportunities of and adversely affect other applicants.

14. The unlawful employment practices complained of in paragraph 12 above

were intentional.

15. The unlawful employment practices complained ofin paragraph 12 above

were done with malice or with reckless indifference to the federally protected rights of

Eric Oden and other applicants.

PRAYER FOR RELIEF

Wherefore, the Commission respectfully requests that this Court:

A. Grant a permanent injunction enjoining Defendants, their officers,

successors, assigns, and all persons in active concert or participation with them, from

engaging in employment practices which discriminate on the basis of disability.

B. Order Defendants to institute and cany out policies, practices, and

programs which provide equal employment opportunities for qualified individuals with

disabilities, and which eradicate the effects ofthe unlawful employment practices of

Defendants.

C.

Order Defendants to make whole Eric Oden by providing compensation

for pecuniary losses reSUlting from the unlawful employment practices described in

paragraph 8 above, in amounts to be determined at trial.

3

D. Order Defendants to make whole Eric Oden by providing compensation for nonpecuniary losses resulting from the unlawful practices complained of in paragraph 8 above, including emotional pain, suffering, inconvenience, loss of enjoyment oflife, and humiliation, in amounts to be determined at trial.
E. Order Defendants to pay Eric Oden punitive damages for their malicious and reckless conduct, as described in paragraph 8 above, in an amount to be determined at trial.
G. Order Defendants, because of the unlawful practices complained ofin paragraph 8 above, to make whole Eric Oden by providing him appropriate back pay with pre-judgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of the unlawful employment practices, including but not limited to rightful place reinstatement ofEric Oden;
H. Order Defendants to make whole Eric Oden and adversely affected applicants by providing them compensation for pecuniary los~es resulting from the . unlawful employment practices described in paragraph 12 above, in amounts to be determined at trial.
I. Order Defendants to make whole Eric Oden and adversely affected applicants by providing compensation for nonpecuniary losses resulting from the unlawful practices complained of in paragraph 12 above,including emotional pain, suffering, inconvenience, loss of enjoyment of life, and humiliation, in amounts to be determined at trial.
J. Order Defendants to pay Eric Oden and adversely affected applicants punitive damages for its malicious and reckless conduct, as described in paragraph 12 above, in an amount to be determined at trial.
K. Grant such further relief as the Court deems necessary and proper in the public interest.
L. Award the Commission its costs of this action.
4

, .

<

!

JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its complaint.
ERIC DREIBAND General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel

,~ ,,6. (,Jc&r~
Gordon Waldron Senior Trial Attorney Equal Employment Opportunity Commission Chicago District Office 500 W. Madison St., Suite 500 Chicago, Illinois 60661 (312) 353-7525
5

 
 F' L E
~-q~

0\1';
REeEfVEf> f

MICHAEL W. DOi:'.>li'cS IN THE UNITED STATES J))STRICT C6URT

~ ::I 2005

CLERK. U.S. DISTRICT COURrOR THE NORTHF:RN DISTRICT OF ILLINOiS MICHAEl,

.

,.

EASTERN DIVISION

ClERk Us O/W. D088/NS
• ' . STRICT COURT

EQUAL EMPLOYMENT OPPORTUNITY)

ii

COMMISSION,

~ CML ~CTlON NO. 03 C 6851

J!

Plaintiff,
v.
WHITEHALL HOTEL, LTD. and
WHITEHALL HOTEL RESTAURANT, INC., WHITEHALL HOTEL, LLC
Defendants.

) ) SECOND AMENDED COMPLAINT )
)
)
)
)
)
) JURY TRIAL DEMAND
)

NATURE OF THE ACTION

This is an action under Tille 1 of the Americans with Disabilities Act of 1990 and Tille 1 of the Civil Rights Act of 1991 to correct unlawful employment practices. The Equal Employment Opportunity Commission ("EEOC") alleges that Whitehall Hotel, Ltd., Whitehall Hotcl Restaurant, Inc., and Whitehall Hotel, LLC ("Defendants") failcd to accOlrunodate Erie Oden's disability and solicited from him and other applicants information about their disabilities, prior to making them an offer of employmcnt.
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 tu Section 107(a) of the Americans with Disabilities Act of 1990 ("ADA"). 42 U.S.C. § 12117(a). which incorporates by reference Section 706 and Section 707 of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-5, and § 20000e-7. 2. The employment practices alleged to be unlawful were committed within the State of Illinois.

1

PARTIES 3. Plaintiff EEOC is the agency of the United States of America charged with the administration, interpretation and enforcement of Title 1 of the ADA and is expressly authorized to bring this action by Section 107(a) of the ADA, 42 U.S.C. § 12117(a), which incorporates by reterence Section 706(f)(1) and (3), 42 U.S.C. § 2000e-5(f)(1) and (3). 4. At all relevant times, Whitehall Hotel, LId. was continuously doing business in the State of Illinois and continuously had at least 15 employees. 5. At all relevant times, Whitehall Hotel Restaurant, Inc. was continuously doing business in the State of Illinois and continuously had at least 15 employees. 6. At all relevant times, Whitehall Hotel, LLC was continuously doing business in the State of Illinois and continuously had at least 15 employees. 7. At all relevant times, Whitehall Hotel, Ltd. had continuously been an employer engaged in an industry atfecting commerce lmder Section 101(5) ofthc ADA,
42 U.S.C.§ 12111(5). and Section 101(7) (If the ADA, 42 U.S.C. § 12111(7), which
incorporates by reference Sections 701(g) and (h) of Title VII, 42 U.S.C. §§ 2000e(g) and (h).
8. At all relevant times, Whitehall Hotel Restaurant, Inc. had continuously been an employer engaged in an industry atrecting commerce under Section 101(5) of the ADA, 42 U.S.C.§ 12111(5), and Section 101(7) ofthe ADA, 42 U.S.C. § 12111(7), which incorporates by reference Sections 701(g) and (h) of Title VII, 42 U.S.C. §§ 2000e(g) !md (h).
9. At all relevant times, Whitehall Hotel, LLC had continuously been an employer engaged in an industry affecting commerce under Section 101(5) ofthc ADA, 42 U.S.C.§ 12111(5), and Section 101(7) of the ADA, 42 U.S.C. § 12111(7), which incorporates by reference Sections 701(g) and (h) ofTitle VII, 42 U.S.C. §§ 2000e(g) and (h).
2

10. At all relevant times, Whitehall Hotel, Ltd. was a covered entity under Section 101(2) of the ADA, 42 U.S.C. § 12111(2).
II. At all relevant times, Whitehall Hotel Restaurant, Inc. was a covered entity under Section 101(2) of the ADA, 42 U.S.C. § 12111(2).
12. At all relevant times, Whitehall Hotel, LLC was a covered entity under Section 101(2) of the ADA, 42 U.S.C. § 12111(2).
STATEMENT OF CLAIMS 13. More than thirty days prior to the institution ofthis lawsuit, Eric Oden filed a charge with the EEOC alleging violations of Title I of the ADA by Defendants. All conditions precedenlLO the institution of this lawsuit have been fulfilled. 14. Tn 2001 Defendants failed to accommodate Eric Oden, in violation of Section 102(b)(5) ofTitle I of the ADA, 42 U.S.C. § 121 12(b)(5). 15. The dIcet of the practices complained of in paragraph 8 above has been to deprive Eric Oden of equal employment opportunities and otherwise adversely affect his status as an I:mp\oyee, because of his disabilities. 16. The unlawful employment practices complained of in paragraph 8 above were intentional. 17. The unlawful employment practices complained of in paragraph 8 above were done with malice or with reckless indifference to the fedcrally protected rights of Eric Oden. 18. Since at least 1999 Detimdants have engaged in a pattern or practice of soliciting from applicants information concerning their disabilities, prior to making them an oITer of employment. in violation of Section 102(d)(2) ofTille I of the ADA, 42 U.S.C. § J2112(d)(2). 19. The effect of the practices complained of in paragraph 12 above has been to deprive Eric Oden of equal employment opportunities and otherwise adversely affect his status as an employee, because of his disabilities, and to interfere with the employment
3

opportWlities of and adversely affect other applicants. 20. The unlawful employment practices complained of in paragraph 12 above
were intentional. 21. The unlawful employment practices complained of in paragraph 12 above
were done with malice or with reckless indifference to the federally protected rights of Eric Oden and other applicants.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: II. Grant II permanent injunction enjoining Defendants, their officers. successors, assigns, and all persons in active concert or participation with them, from engaging in employment practices which discriminate on the basis of disability. B. Order Defendants to institute and carry (Jut policies. practices, and programs which provide equal employment opportunities for qualified individuals with disabilities, and which eradicate the effects of the unlawful employment practices of Delimdants. C. Order Defendants to make whole Eric Oden by providing compensation for pecuniary losses resulting !I'om the unlawful employment practices described in paragraph 8 above, in amounts to be determined at trial. D. Order Defendants to make whole Eric Oden by providing compensation for nonpecuniary losses resulting from the unlawful practices complained of in paragraph 8 above, including emotional pain, suffering, inconvenience. loss of enjoyment of life. and humiliation, in amounts to be detennined at trial. E. Order Defendants to pay Eric Oden punitive damages for their malicious and reckless conduct, as described in paragraph 8 above, in an amount to be determined at trial. O. Order Defendants. because of the unlawful practices complained ofin paragraph 8 above. to make whole Eric Oden by providing him appropriate back pay with
4

pre-judgment interest, in amounts to bc determined at trial, and other affirmative relief necessary to eradicate the effects ofthc unlawful employment practices, including but not limited to rightful place reinstatement of Eric Oden;
II. Order Defendants to make whole Eric Oden and adversely affected applicants by providing them compensation for pecuniary losses resulting from the unlawful employment practices described in paragraph 12 above, in amounts to be determined at trial.
1. Order Defendants to make whole Eric Oden and adversely atfected applicants by providing compenslltion for nonpecuniary losses resulting from the unlawful practices complained of in paragraph 12 above, including emotional pain, suffering, inconvenience, loss of enjoyment of life, and humiliation, in amounts to be determined at trial.
J. Order Defendants to pay Eric Oden and adversely aflected applicants
punitive damages for its malicious and reckless conduct, as described in paragraph 12 above, in an amount to be determined at trial.
K. Grant such further relief as the Court deems necessary and proper in the public interest.
L. Award the Commission its costs ofthis action.
5

JURy TRIAL DEMAND
The Commission requests a jury trial on all questions offact raised by its complaint.
ERIC DREIBAND General Counsel
GWENDOLYN YOUNG REAMS
Associate General Counsel Equal Employment Opportunity Commission 1800 L Street, N.W. Washington, DC 20507
~Suom~k Trial Attorney Equal Employment Opportunity Commission Chicago District Officc 500 W. Madison St., Suite 500 Chicago, Tllinois 60661 (312) 353-7525 6

•
V'kstlaw.
Nol Reported in F.Supp.2d 21K)3 WL 22439864 (N.D.lll.) (Cit. as: 2003 WL 22439864 (N,D,III,))

•

Page 2 of8

P.gc I

H Only the Westlaw citation i::; cum.,'ntly availabh:.
Uniled States Pistrict Courl, N.D. Illinois, Easlt:m Division.
Tammy WIUGII'l', Plaintiff, v.
Timothy J. TOUIIY, er aI., Defend.nts,
No. 97 C 742.
Oct. 28, 2003.
rred Speck, Law Offices of Fred Speck r.teI.,
Chicagn, IL, Arthur P. Santicrman, Auonu~Yt Palatine, It, for plaintiff
Ubi O. O':-.Ieal, Ubi O. O'Ne.l & Assoc., Mitchell Bruce Kaltcn, Michael C. Moody. Kelly A. McCloskey, Limo T, Cherian O'Rourke,
j
McCloskey & Mondy, Arthur F.. En~elland, pm sc, Chicago, IL, Nicholas J. Lagattuta, Richard A.
March, Lagattuta & DeGrazia r .C., Schtlumbnrg,
II., Louis R. Orlando, Chicago, lL, for defendants.
MEMORANDUM OPINION AND ORW.R
BROWN, Magistrate].
.) This ca,e comes to be heard Oil the Touhy Defendants' Motion to Strike PI.intitl',
Supplemental Attlwers ("the 'l'ouhy Defendants' Motion"). Inkl 199.1 For the rcasons sct forth below, it is hereby ordered as follows:
(a) the Touhy Defendant..;' Motion is granted in part and denied in part~ subject to certain condition!ol D.!oI set fm1h hcl()w; and (h) Plaintiff, counsel, Fred Speck, mu,t personally pay the Touhy Defendants' ree, and costs 111 b1'inging the motion.
Factual flackground
TIle facto; underlying this case and the history of

discovery arc tH.:t out in tlus court's previous orders dated Octobel' 1.1, 2002 and September 8, 2003. [Dkl 145, 207.] F.ct discovery closed on July 15, 2003. However, fact oisco'v'ery disputes cont.inue~ as reflected in the present nlOti011.
This matter is based on a long .nd complex factual situation involving civil and crlrnhlal proceedings in various courts in Chit;ago and Canada. All (Jf the proceedings, including this lawsuit, stem from a collision in 1987 between. commerci.l truck and a
car in which Tanuny Wright ("Tanuny") was riding as a passenger. Tammy was seriously injured and rL'11dcml a quadriplegic. rollowing Ihe collision, Tammy's husband, Anthony [)c Silv~ retained the Chicago law finn of Tonhy & Associates or attorney Timothy Touhy <>I allllmey Arthur England, Or some combinoiltioll thereof. to open i! probate estate for Tammy and pursue a personal injUlY lawsuit. The estate was opl:Tll:d in tlit: Probate Division of the Circuit Court of Cnuk CDunty and Anthony wa!ol appointed guardian of Tanuny's person and estate. However, Tammy's paTCnl~, Emest and Christine Wright, [FNI] have been Tammy's earc-takt:rs since the collision.
FN I. Christine Wright is now deceased.
"lb(; plainliff in this action is the Manitoba, Canada cstate of Tammy Wright through her Conunittee consisting of Ernest Wright, THuuny's father, and Thomas Frain. (First Am. Compl. '~I 1.2.) [Okt 169.J The operative pleading is the first Amended Compl.illt, which was filed in April 2()03 and allege. four counts. [Dkt 169.] Count I alleges a breach of fiduciary duty, claiming, inter alia, thlit C"crtain defendants, including attorney Timothy Touhy, refused to forward insurance paymcnls Irllm the Manitoba Public Insurance Company 10 Tammy's parents; that certain ddbruJal1ts kidnapped Tammy anci attempted to trilnsport her furcibly over rhe Canadian·U.S. border to Chieas,,; and thai, although required by court order! cOltain defendant attnmcys, including TimuLhy Touhy, refused to release Tanuny's case file to her new attnrncy!ol. (Fi"t Am. Compl. ',1 16.) Counts II, III and IV

4;>2005 Thomson/West, No Claim to ()rig. li .S. GtlVt. Work3.

http://print.westlaw.com!delivery.html?dest=atp&fonnat=HTMLE&dataiIi=B005 58000000... 2/1/2005

•

•

Page 3 of8

Not Reported in F .Supp.2d Z003 WL 22439864 (N.D.III.)
(Cite as: 2003 WI. 22439864 (N.n.IlI.))

Page 2

allege the same facts under theories of aidi11g and ahelting breach uf fiduciary duty, false imprisonment, ~nd inlentiQnal int1iction of ~moliollal distress.
'the Touhy J.)efendants' Motion is based on
plaintiffs alleged failure to r.:omply with certain
discovery requests in a timely fashion. Specifically, the Touhy Defendants claim that the pl.intiff foile<l to disclose the idl~ntity of c!c.:ven individuals who have knowledge of the alleg.tion, cont,ined in the
Fin;t ;\mended Cmnplaint in cumpliancc with an
order entered ill 1998 by theil-Magistrate Judge p.lImeyer .nd Federal Rule of Civil Procedure 26(e)
and, " a result, ,hould be barred trom calling Ihes.
individuals li.'i witm:.s~c~ al trial.
*2 Sometime prior to August 1998, tile Touhy Dcfcm1anls sJ....'1"VCU inlcrrogaloril:s on the plaintiff, asking the plaintiff, inter alia, to identity all individuals who have knowledge conceruing Ule allegations contained in the Amended Complaint anu to pruvide Ii Jc:scriplion of the nature of each individual ')oj intimnation. (Dets.' Mot.. Ex. A, Intenog. No.7.) According to the Touhy DeCemLmts, after the plaintiff faih.:u tu respond to the,e interrogatories, Ihe Touhy Defendants filed a motion (0 compel. (1).fs.' Mot. 11 2.) It appears Uwt
the plaintiff then responded to the intclTogatmics
but that its answers were immfficient because, on
Augu~l lB, 1998, thtn.Magistratt Judgc Pallmcyer granted the Touhy Defendants' motion to compel and ordered the plaintift~ hm:r a/t(l, to suppkmcnt its answer to IntetTogatory No. 7 .nd idelltify al/ individual.) who hcn't'. Anuwletige concerning tlie
bu:idenl giving l'i.\·e to this lawsuit. IDkt n1
(emphasis added).]
In Septemher 1998. the pl.intl!!" served Amended Answers to Interrogatories on the defendants. Ln its Amended Answer.s, lhe phtintil1' argued that In\orrogatory No. 7 was "impossible to answer ... uverly broad and bunlen~omcll but noncthc1f;SS gavt,: the following Jist of individu"ls with IIrelevantt flfSt-hand information" I.~oncernlng the 8Ueg~ltions contained in the AIllend..:u Complaint:
all of the- parties to this cause of action (including Tommy and her guat·dian.) (knowledge of .11 allegations)i all health car~ provider:; in Chicligo, Phoenix anu Winnipeg who gave any as.sistance to Tammy, names and addresses unknown (her

condition}j members Qf the Winnipeg Plllice Department, names and addresses not currently remembered except for an unidentified opl:rator, Rml Oliver, Bob Marshall and DOllg McDimliad (sp"?), addresses unknown (Tammy" .bduction); mcmhcrs of Canadian law enforcement at the Emerson, Manitoha, ClmadianU.S. bordeI'I names and addresses not known (attcmpt. to take Tammy acroSS the border)~ Dr. Michael Stambrook, Winnipeg, Manitoba (dfec( of kiunapping on Talluuy); Jack Montgomery, Crown Attorney for Manitoba, and his .!afr, names and addresses unknown (kidnapping); Joel Deltocchi, Asst. U.S. Attorney f()f the Northern Distri('l of IlIinois, and his staff, .nd f.D.!. Agent Lee W. lIarbaugh, and his staff, all at 219 S. Dearburn St., Chicago IHinois (kidnapping). (Defs.' Mot.. Ex. D at. 4·5.)
On Scp1c'mbt"T 3, 1998, Judge PaHmeyer granted a founh motion to compel brought hy the T()uhy Defendants and of(lcrt!u the plaintiff to respond to certain interrogatories and req\lests to prod\l,. by Stl'tcmbcr 9, 1WK. lOkt 70.] Although it is uncleor from the docket whether thal order specifically required Ihe plaintiff to funher amend its answer to Illten'osatory No.7, the plaintiff ,ervcd it. IITSt Supplement to Amended Answers to rntenogatoric~ on September 15, 1998, stating in relevant part: "Rf.SPONSF. NO.7: PI.intitlil ha,," iucntiJicd all individuals." (Defs.· Mot., Ex. E at 2) (emphasis in
original). rFN21
FN2. There is no evidence that the plaintiff further supplemented its answer to Interrogatory No. 7 liOer September 15, 1998 until July 2003, when it filed the sllpplcmenhti ~n:)weIS that aloe the subject of the Touhy Defendants! Motion. Although the plainliff claims that it Hupplcnll."llled its amiwcnl in August 2002 (Pl.', Resp. ~ 4), it does not state (or even suggest) that it tUrther supplemented ils answer to Interrogatory No. 7 .fter September 1998. Thus, tile answers to Intcm)gatory No.7 sct forth above are thl::' only answers considered by tIllS court.
"3 On March 31, Z003, this court extended the tact discovery cut-off date ITom July X, 2003 l<> July 15,2003, and set a status hearing 011 July 15,2003.

l1J 2005 Thom,un/We,1. No Claim II) ()ri~. u.s. Guvl. Works.

http://print.westlaw.com/delivery.html?dest=atp&fonnat=HTMLE&dataid=B00558000000... 2/1/2005

•

•

Page 4 ol'S

Not Reported in F.Supp.2d
2003 WL 22439864 (KD.IIl.)
(Cite .s: 2003 WI. 22439864 (N.D.III.ll

Pagc]

[Dkt 163.] This C()Ult I1hm ()Tdcrcd iliat any mutions seeking leave to ••tend the fuct discovery cut-oft date should be noticed for hearing on July 15th, and
must identify spccHical1y what additionl:ll discovery needs to be taken. [Id.] On July 11, 2003, the plaintiff filed a motion to extend g","rail), tho deadline for bringing any motions to extend discovery. [Dkt 197.]
At the .July 15, 2003 hearing, this eourt extended
fact discovery for the limited purpose of allowing
the parties 10 compk·h.~ the depositions of Timothy Touhy. Fred ::;pcck Bod Maric ::;icottc and held that "[a]ny furthel' discovery sought by any party nlllst he fir:.;t the suhject of meet and c(mfcr and, if nu agreement can be reached t then a motion may be .ought." IDkt 198.]
At the July ] 51h hearing, plainti!1's counsd. Fred Speck, stated that he had recently sent the defendants supplemental answerS to interrogatoric~, which included additional name~ of individuals with knowledge cOllceming the allegations in the Fit'st Amended Cmnptainl Couns!:! lilr the: T(luhy Defend.nts, Mitchell Katlen, objected, .rguing that fact discovery wa£ eh)£ed and it w~s "simply \(m late" to identify individuals with knowledge J'egarding the facts of this CaSe.
In the July 2003 supplemental answers, the plaintiII
idenlified·~ fur the first timc··cleven individuals whu
have knuwlcdgc concerning the facts of thi$ case: (1) C.N. Mac Kinnon--S.,gont 011 Duty for the Royal Canadian M(Juntcd Pulice at the Emerson Detachment, P.O. Box 421, Emerson~ Manitoba, ROA OLO, Canada; (2) Ven Layhon IFN31--lJ.S. Customs Supervisor, at the U.S. Customs Port of Entry, Pembin•• North Dakot.; (3) Michael H. Mach--U.s. Cu,tom. Service Agent: (4) Jame, E. Strand-U.S. Customs Service Agent; (5) Anthony L. On.tad; (6) Tcrry Krcit>..C'"madian Custom. Agents, Emerson, Conada: (7) Drion Kress-AtlOnley, Winnipt'g, Manitoba; (8) William Munky... Att{)mcy. Chicago, T1hnois; (9) John Garafolo--i\ltomey, Chicago; (10) Hob Clifford--Atloruey, Chicago; (11) Kevin
Durkin--Attomey. Chicago. (Defs.' Mot., Ex. r at
1-2.)
FN3. According to the parties, Vera L.yhon is now deceased.

The plaitltiff claims that it added these individuals because defcndant Timothy J. Touhy st. ted new alleg~tions lit hi:;, July 8th deposition 0,· "recent
discoveries" were made at the depositions of other defendants. (PI.'. Re,p. 11 ~.) The Touhy
Uc\cndants .rgue that "[t]he plaintiffs attempt to link its late and deficient di:·a:lm.urc.s to the timin!\: uf tho defendants' depositions is unavailing" because: all of thr.;sc individua1s were ~jther "plaintHl's own counsel" 01' known to plaintiff "prior to the time it tilctl tbe imllant suit." (Defs.t
Reply at 3, 7.)

Tn their briefs, the parties gll to great lengths
arguing when exactly the plaintiff served its supplemental answers on the Touhy OcCendant.. The Touhy DeCendants clainl that dle plaintiff did not serve it~ i5upplemcnta] answers until July 21, ZOGJ-six days after dIe close of fact discovery. (Oefs.' Mot. II 8.) 111e plajnhn' contenus th.t it'
served its supplemental answe" on July 11, 2003--three days before the close of fact discovery.
(PI.'s Resp. 11 8.) However, whether 01' not tlle
plaintiff st:rvcd these suppk'mcnlal an~wcrs lx.:[brl~
01' after July 15, 2003 is inullaterial compared to the more significant issue and the focus of this court's
analysis--whether tlle plaintiff and its counsel violated Judge Pallmr.::ycr'!i Augu:!t 2~, ] 99g oruer .. well .. Federal Rul.s of Civil Procedure 26(g) .nd (e).

1. Legal Siandard

Analysis

*4 The importance of full and fair discovery to tile resolution of litigation in the federal court." cannot be underestimated. "In our system of civil litigation,
the discovery process is the principal means hy
waich lawyers and parties assemble ti.,. facts, and decide what information 10 present at trial." DU/ii:s
v. USN Commu"s.. Inc., 2000 WI. 1694325 at *1
(N.D.lIl. Oct.23, 2000) (Schenkior, M.J.). The Federal Rules of Civil Procedurc arc designed to
promote liberal discovery in an elIort to narrow the issues for trial and (0 pre..'ent unfair surprise. S~fllts~ v. Illinois Dept. of Human Servs., 2001 WI. 987590
at *1 (N.D.1l1. Aug.2B, 2001) (PallmeY<f. J.). See
a/so Scranton Gil/cite Communr., Illc. v.
Dorlll.au,en. 1998 WL 566668 at '1 (N.D.TIl. Allg.26, 1998) (Urbom, J.).

(t: 2005 1burnson/Wcst. Nt) Claim to Orig. U.S. Govt. Works.

http://prillt.wcstlaw.com/d~livery.hI1l11?dest=atp&fonnat=llTMLE&dataid~B0055g000000... 2/1/2005

•

•

Page 5 of8

Not Reportod in F.Supp.2d 2003 WL 22439864 (N.D.TII.) (Cite as: 1003 WI. 22439864 (N.D.lU,))

Pagc 4

In light of these goals, each party has an obligatiun under Rille 26(g) to make a rea.anoble inquiry into the faels of Ihe case before making il. discovery disclo,ure, or responses. Fed.R.Civ.P, 26(g). The
duty (0 make a "reasonable: in4uiryH is satisfied if the investigation undertaken by the attorney and the conclusions drawn therefrom are reasonable under the circmn,tane••. Fcd.R.Civ.P. 26(g), Advisory Commitlee NOles, 1983 Amendment. lJlLimalely, what iR rcas()nablc is a m.atter for the court to rlccidc on the totality of the circumslances. /d.
If a court finds Ihal a party violated Rule 2G(g) without significant ,justification, the imposition of sanctions i, mandalory. Specifically, Rille 26(g)(3) pmvides:
If without substantial jU:o!lification a ~ertification is mat.1~ in violation of the mle, the court, upon motion or its own inillalive, shall impose upon the person who I1lade the certification, Lhe party on wh",e behalf Ihe disclos\ll'e, request, respon,,', or objection is made, or both, tin lippropl'iate l)anctinn. which may include an order to pay the amount of tl,e reasonable \:xp!""Il.Ses incurred because of lhe violation, including a Tcasonable attorney's fee. Fed.R.Civ.P.2o(g)(3).
Furthermore, Rule 26(e)(2) requires a litigant "seasonably to amend a prior responst" to an interrogatoryt request for production, or request for admission if the- part)' learns that Ihe response is in some material respect incomplete or incorrect.!! Fed.R.Civ.P, 26(e)(2). No motion to compel is nccessary. Scranton CiWt'ite Commurts.. Inc .. 1998 WL 566668 at • \, The duty to supplemenl discovery requc~t~ linl;l:crs on without subsequent s()licitatiun. Id. (citing Pasant l'. Jackson Natl. L~k III,. Co., 137 F.R.D. 255, 257 (N.lHI1.l991).
A parly thaI violates Rule 26(e)(2) without ~uh~tantial justific.ation rish significant sanctions. Rule 37(0)(1) provide,: "A party thaI withoul ~ubstanlial justification fails ." to amend a prior respon.e 10 di,eovery as required by Rule 26(e)(2), is not, unless such failure i3 h~mlless, pl!nniUed to use il.'i evidence at a lria~ al a hearing, 01' on a motion any witness or infonlliltion not su disclosed." Fed.R.Ci v.I'. 37(c)(1). Rule 37(0)( I) idso permits a coun tu impose "uilier appropriate sanctions!" including. but not llmitctl to, aUurney's

fees aud costs. /d. In determining whether to cxclud~ evidence or award sanctions, the court 1l1\Lt;;t not only consider the impurtance of the evidence to the ca~c but Olust weigh that importance againsl the possible prejudice to Ihe contesting parly resulting from its admission into evidence, S(.7ranton Gillette CommulIS'" Inc., 1998 WL 56666H al ·2. Indeed, the goal hehind Rule 26(e)(2) is to prevent any unfair, prejudicial surprisc at lril:ll. /d,
2. Brian Kr",s, Wrtliam Murtiay. Bob Clifford alld
Kf!vin Durkin
'S liour of the individuals identified in the plaintitl's supplemental nnswers--Brian Kress, William Murday, Dab Clifford, and Kevin Durkin-·were the pl.inlifrs own attorneys in the ulldl.'Tlying state coull proceedingK (which look place in the mid-1990s) or in the Canadian proceedings, The plain!i IT cerlainly knew these attorneys in 1998; however, it did not list them in iLs initial answers or its first supplemental answers.
At the Octobcr 2, 2003 hearing, plaintiffs counsel ,tatd that he added tilese attorneys to plainLil1', an,wer lu Interrogatory No, 7 after Mr. Tuuhy made cemin ,tatements at his deposilion (taken in 2003) contradicting his previous testimony. Specifically, the plaintitl claim, thaI Mr. 'foully testified at hi, deposition that he had "detailed negotiations" and made Ujoinl efforts!! with Mr. Kress and Mr. Murday to forward the disabiliLy payments he received frorn Manitoba Public Insurance Company to the Wrights. (1'1.'8 Resp. 11 9.) However, ar.cording to the plaintilT, Mr. Touhy previously testiiied that "he had not attempted to fOlWard said TIlnnie. (10 dIe Wrights]." (ld.) (cmphasi. in origin.I). Based on Lbis "new allegation," the plaintiff now wants to eall Mr. Kcess and Mr. Mun..lHy lu rebut Mr. Touhy's deposition testimony.
In addition, the plaintilT claims that Mr, Touhy leslified at his deposition thaI he had his file for Tammy's case copied at the print shop in his building and "advi.ed [Mr.] Clifford's olliee" (where Mr. Durkin also worked) that the liIe was available for pick-up upon paymenl for the copying.
(PI:, Resp. 11 9.) Howevcr, according 10 the
plaintiff, Mr. l'uuhy gave sworn te:litim(my in the Illinois Probate Courl in 1996 that he did not tum

<l:: 2005 Thom,on/West. No Claim to OriA, U.S. GOYl. Works,

http://print.we5tlaw,c()m/delivcry.html,!dest=atp&fomlat~HTMLE&dataid=B00558000000... 2/112005

•

•

Page 6 oC8

NOL Reported in F.Supp.2d 2003 WL 22439864 (N.D.Ill.)
(Cite a.; 2003 WI, 22439864 (N.D.III.))

Page 5

over his file to Me. Clifford's law otnces. (ld.)

The fact d,.t Mr. Tuuhy alll'gcdly "l.hanged his story" at hi~ deposition docs nul cxcust: the

plaintiffs patent failure to name Mr. Kress, Mr.

Murday. Mr. CliJTord and Mr. J)urkin in its initial

or amended answers to InLL'TTogatnry Nu. 7, which

of .oughL tile identities of all individuals with

knowledge

the allcgalic)lls in the Amended

Complaint. The plaintiff cannot deny that it knew the identity of these individuals~~ils ()wn

.ttomeys--and the ",Ie, they played in tlle

underlying litigation back in t998. when Judge

l'allJlleyer specifically ordered the plaintiff to

supplement its all!\wcr tu Interrogatory No. 7 and

provide names of all individuals with knowledge 01

thl: event.... giving rise to this lawsuiL. However, instead of providing the Touhy nef~mrla.nts with thc

names of thcst: aUorm:ys in its inltial answers, the

plaintiff waited to supplement its answer until iJ

,tetermined thai rhese individuals h<ld know/edge
that was "srjill to its own case. This type ~)f

selective disclosure is directly at odds with the spirit

of lihcral di,covery and clearly violate, Rule 26(0).

Because the plaintiff has not provided any valid

reason why it did not previously supplement its

a.nswer to Interrogatory No.7 to incl\,de Ul. nam•• and c(}nlacl infurmation for thc:~c attorncys, it has

foiled to comply with Rule 26(e) and those individual> should be 'tricken front plaintiffs

supplemental answers.

*6 On the other hand, the Touhy Dcfcr1(iant'\ un not-and call1lot--claim thqt they w~re unaware of the idelltity of plaintiffs former attorneys, Rased on
that fact and Ole nature of the purported testimony that plaintift's counsel plans to elicit from each of thc:)c attorneys, it would bt: unfairly prcjut.licial to
bar these individuals from testifying at trial as rebuttal witnesses. Thcrefore, this court finds dlat
Mr. Kress, Mr. Murday, Mr. Clifford and Mr. Durkin may be callt:u ali rcbullal wilnl:sst:s at trial
but the subject matter of their testimony shall be limited to the matters plaintiffs counsel identified at the hearing. Specific.lly, Mr. Kress and Mr. Murday may be called solely to rebut testimony by Mr, Touhy that he negotiated or made etlorts with them to forward certain disability payments to the Wrights. and Mr. Clifford and Mr. Durkin IIlliy be called solely to rebut testimony by Mr. Touhy that he infoffiled tbeir office tl13t his files had been

copied and were w.itinS to be rcLrieved at the copy center in hi.s buililing.
2. CN. Mac Kin""", Vera Layho". Mi"ha.l Mach. Jwne:l' SJrand, AnthollY Onstad and Terry Kr€!itz
TIle plaintiff claim, that C.N. Mac Kinnon, Vera Layhon, Michael H, Mach, James E, Strand,
Antbony L. Onstad and Terry Kreitz became known a.... Q. rcsull of lithe conunencemellt of the deposition
of Defend.nt Judith Schoen, and re.ultanL investigation and doc.:ument procuremenlII and ".dditional deposition[s] of the other Defendants" (P!.·, Rc<p. , 9(h)). However. the plaimiff does not attach 01' cite to any portion of any dcpo~ili()n
transcript l~) !iUpport its position, In factI a review of Ms, Schoenls deposition transcript shows lhl:lt she
diu mIL iuentify any of tllese individuols during her deposition.
The Touhy Defcnd.nts. on the other hand, point to several documents indicating that the plaintiff or plaintiffs counsel kncw or shoult.l have known the identity of at. least some of the,. individual. prior to
July 2003. For example, a review of Anthony
Lobue's deposition transcript ~h(lWN that plaintifrs
coun••1 questioned him regarding Terry Kreitz in May 2003. Additionally, in one of their pleading' in
the underlying prohate litigation, the Wrights
specificoUy identified U.S. Custom Otnci.I,
Michael Mach and Anthony Onsted as being present at tile Emerson border on Fehruary 3, 1992. !'inally. in March 1995, Magistrate Judge Ilobrick specifically identified Terry Krdtz, C.N, Mal: Kinnon, Vera Layhon, Michael H. Mach tmd
Anthony Onstad in a published opinion captioned [" Ihe. Maller Q( rhe &troditio" of Kulekow.I'ki.l', 881 JI.Supp. 1126, 1133 (N.D.IlI.1995), rev'd, DeSilva v. DiLeo Ilardi, 125 F.3d 1110 (7th Cir.1997). which
was an opini()n rrom the cxlrlidilion hearing, Based on those documents, it appears that the plaintiff know Or at tl,e very least should have known Ihe idclltilic,; of thcKC individuals much earlier than Juiy 2003. Yet, again, the plaintiff chose to wail tu identify these individuahi until it dctemlined lhat their knowledge was useful to its own case.
*7 Even if the plaintiff could show thal il only recently determined the identities of these customs officials, the qucl'Ilion still remains tiS to why plaintiff 01' its counsel wai ted so many years aner

f;: 2005 Thomson/West. No Claim to Orig. U.S. GoV!. Works.

http://print.westlaw.comldelivery.html?dest=atp&formllt=HTMLE&dataid~B00558000()OO... 2/1/2005

•

•

Page 7 of l!

Not Reported in F.Supp.2d
2003 WL 22439864 (N.D.III.) (Cite as: 2003 WL 22439864 (N.P.IlI.»

Page 6

the:: filing of Ihis lawsuit to investigate who was pl"eSellt at the U.s.-Canadian border on February 3, 1992. At the hearing, plaimiffs counsel stated tha~ prior to Ms. Shoen's dcposition he thought the
1
confrontation at the border lasted only for a brief period. Apparently, Ms. Shoen leslifieu Ih.1 the confrontation at the hordC!:r la!Jted approximately seven houts, which caused plai.ntiffs counsel to investigate fur the first lime who wa.s present at the scene, However, one of plamtift's central claims 111
this lawsuit is that, on February 3, 1992, certain defendants anempted to transport Tammy across the e.md.·U.S. border. (Firsl Am. CampI. ." 16(e). Dased on that all_gation, the plaintiff certainly had • duty In invc!oItigall! who Wi!l.S presenl and what transpired lit the borrier on Fehruary 3, 1992. Yet,
over the course of five years, plaintiffs counsel admill<uly railed 10 make any inquiries as to who was present at the border and only llanlOd the individual~ I:lflt... their knowlt:dge seemed inlportant to plaintiff's cas•.
Again, however, the' Touhy Defendants cannot claim dlar they were completely blind-sided by plillntitl's addition of these individual:.t to iL.; supplemental answers. All of the defendants knew that I:l confrontation took place at the U.S.-Can.adian horder on Fchruary 3, 1992 and, in fact, five of the defendants were present at the scene and involved in the confrontation. Additionally, ~cvcrJ.l of lhe docWllenls submitted by the Touhy Defendants in support of their motion (e.g., the pleading ji'om the probale COurl and Ihe March 1995 published opinion hy Magistrate Judge Rohriek) illustrate that the defendants, including the Touhy Defendants, knew or could have known th<.~ identity of these indlvirluals several years ago,
However, the defendants may have been relying on the fact that the plaintiff did not li~t them and made 110 effort before the close of discovery to obtain the depositions of these individuals, who are outside the subpoena power of dIe Northe", iJistricl of Illinois, t:lS an imlietltiun thal the plainLilT had on intention t() l're,ell! their testimony at trial. See Fed.R.Civ.P. 32(a)(3)(H). The plainliff now ,ugge,l, thaI these individuals may testify in person at the trial. [FN4]
FN4. At the October 2. 200.1 hearillS, plaintiffs counsd indicated thal the Canadian govemment is willing to pay the

tTllvd ex.penses for its employees to testify
at the trial of this casco
The testimony of these Cus,1011l:.t officials may be important as to what occurred at the border on Febmary 3. 1992. However, be..,.use Ihese individuals are o\ltside the subpoena POWCT of Lhis court aud fact m!rlcuve1'y is closed, the only way tlleir testimony can be presented i. if Ihey appear in Chicago lo lcstify. Therefore, in the interest of fai1'lless, this coun fll1ds that the appropriate remedy i~ to accclcrdtc their lc~lirnony in Chicago. and to allow C.N. Mac Kinnon, Michael H. Mach, ht.mcs K Str.nd, Anlhony L. Onstad and Terry Kreitz to be named as persons with knowledge and calleu as
wilncssc::::» at uial if anci oltly if the plaintiff or a.
third. party pays I<IT Ihem 10 lr.vel 10 Chicago to sit for a deposition before January 15, 2004. If the plaintill' ulles nol make these individuals available for deposition ill Chicago before January 15, 2004, they arc strieke'll from pl.intiITs supplemental answers and barred from testifYing at trial. This remedy presr.:rves the testimony of these witnesses, so that if they arc unahle to appear h:ller their le'limony can be presented, yet allo"" the defendants sufficient time in advance of the trial lo do any follow up suggested by the testimony oj these witnesses. Thus, If C.N. Mac Kinnon, Michael H. Mach, James E. Strand, Anthnny L. On,lau Or Terry Kreitz are deposed pursuant 10 this order and any new material infonnation (including, but not limited to, the idl~nthy of any individua.ls not previously named who were present at the border) is divulged dwing Ihe dt:posiliun. tht: ddc:ndants may file a motion to extend f~ct discovery for the limited PUTpt).!;c of investigating this new material information. l1lis does not foreclose any party from presenting a witness who ha.1Ii been deposed as a live witness at the trial.
*8 Decnuse Vera Laybon is decea.sed, the issue as to whether or 110t to bar her from tcsliJying at trial i~ moot.
4. John Gamjolo
The T()uhy Defendant!,; claim that John Ganfolo represented the defendant Trucking Company in the underlying state court personal injury case and was known lo plaintiff and its counsel since dle early 1990s. (Defs: Reply at 3. 5.) In it, re,pOnse, tho

(02005 Thomson/West. No Claim to Orig. U.S. Govl. Works.

http://print.wllstlaw.comldeli very .hlmI?dest=atp& ronn al~HTMLE&dataid=B 0055800()()OO.,. 21 I12005

•

•

Page 8 ofS

Not Reported in F .supp.2d 2003 WL 22439864 (N.D.Ill.) (Cite as: 2003 WI. 22439864 (N.D.IlI.))

Fage 7

plaimiff dw. !lot dispute it, prior knowledge of Mr. Garafalo or his role ill the underlying casco Rathel\ tlle plainti!I simply states lhal its counsel recently learned that Mr. Oarafolo told Winnipeg otrici.l, thaL he:: did not seek a medical exam (If Tammy Wright until six monU" after her alleged abduction. (PI.', Resp. , 9(0).) That i. nut. basis upon which the plaintiff can supplement its answer just as facl discovery is closing. At the hearing on the Touhy Defendants Motion, plaintiff's couru;el admitted that he 'p"kc wilh Mr. Garafolo ill 1993, but that he did not ask him when he sought a medical exam of Tammy. That constiultes a patent rlljlur~ to investigate by plaintit)', cIlunsel. and there is no justification for plainlilT's wailing five years to add Mr. Garafolo to its all:!iWer to Interrogatory NO.7. Therefore, Mr. Garafolo is stricken from plaintift1s supplemental anSWl'TS and lhe plaintiff is barred from calling Mr. Garafolo as a. witness at trial.
S.lrnpositiolf ojAttornr.ys' Fees amI L'o.-.tJ

oblig.tion. Counsel must adapl their "style" to follow Ihe Federal Rules of Civil Procedure alld the court's orders.
Therefore, pu,"uant to Rules 37, 26(g) and 26(e),
I-'1td ~'peck m\",1 pemmally pay the Touhy Defendants the attorneys' fees and costs that the Touhy Defendant':s incurred in preparing) filing and arguing the present motion. Counsel for rbe Touhy Defendants ,hall serve Mr. Speck with • ,lalement of such fees and C()st!!l no later than November 10, 2UU3. specifying tbe date, time and nalure of the services rend,"ed and the applicable billing r.te .nd identifying .11 costs. This includes lime for legal and faClual research but does not include any time for interoffice consultation with otheI lawyers. By November 24, 2003, Mr. Speck must serve a statcment (If any specific item disputed and pay in full any amount not disputed. The parties shall comply wilh Local Rule 54.3(e) and (t) with respect to any disputed item.

Rule 37 provides for the imposition of tlltomeys' fees and co~b incurred by the other party when II party fails to comply with an order or amend a priUf
response to discovery as required by Rule 26(e)(2),
unless the court finds the failure was :mbstanllal1y juslillccJ. Fed.R.Civ.P. 37. Furthermore, as set forth
above, Rule< 26(g) and 26(e) pennit a court to iIt'IPose attorneys' fees and cost.') when a party has violated those rules wilhout substantial justification.

*9 IT IS SO ORDERED. 2003 WL 22439864 (N.D.!I!) END OF DOCUMENT

Tn this easc, Mr. Speck has not offered any sllbstantial justification or O!.ny persuasive explanation for the untimely disclosure of these
t:1CVCl1 individuals. In fact, at the argument on the Touhy Defendant', M{)liun, Mr. Speck explained that it is not his "style" to undertake an investigation until he hears what the other side has to say, in this CIl!iC, at lhe deposition of the defendants. See also Pl.'s Resp. Touhy D.f,.' Mot. Cite Add'i AU~lOrity '1 S. [Dkt 221.1 TImt arGument completely ignores the amrIIltl.tiv~ obligation of a party to make a reasonable inquiry in order tu rc:;pund to Jisco..·ery
l'mpllundcd by another porty. TIle plaintiff and its
coun.sel had an obligation to invc~tigatc a11d provide infonnation t.hat the defendants had a right to have,
whetlier or no/ lhe plaintiff wanted to have that information. That obligation WOIS reinforced by two separate orders hy Judge Pallmcycr. There is simply
00 excuse for Mr. Speck to have ignored that

:P 2005 Thonlson/West. No Claim to Orig. U.S. G()vl. Works.

http://print.westlaw.comideliyeI)'.h(ml?dest~atp&fol'mat=HTMLE&dalaid=B00558000000... 2/1/2005

• •
CERTIFICATE OF SERVICE Jeanne B. Szromha, an allomcy, hereby certifies lhal she caused a copy oflhe foregoing Notice of Motion and Plaintiff EEOC's Molion for Leave to File Second Amended Complaint, Instanter and For Rule 37(c) Sanctions to be sent by facsimile and by U.S. Mail, postage prepaid, to counselor record at the following address:
Susan Bogart. Law Offices of' Susan Bogalt
30 North LaSalle Street Suite 2900
Chicago, Illinois 60602 (312) 263-5013 (fax)
Dated: February 3, 2005
2

•

• '

EXHIBIT A

t,

• •

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff v.
WHITEHALL HOTEL, LTD. Defendant

CIVIL ACTION NO.
03 C 6651

ANSWER TO COMPLAINT
Defendant, Whitehall Hotel Ltd. does he~eQy answe~ the Equal
Employment Oppo~tunity Commission ("EEOC") as follows:
NATURE OF THE ACTION
This is an action under Title I of the Americans with Disabilities Act of 1990 and Title I of the Civil Rights Act of 1991 to correct unlawful employment p~actices. The Equal Employment opportunity Commission ("EEOC") alleges that Whitehall Hotel, Ltd. failed to accommodate Eric Oden' s disability and solicited from him and other applicants info~ation about their disabilities, prior to making them an offer of employment.
Answer: Defendant admits that the present complaint purports
to be filed under the Americans with Disabilities Acts. Defendant
denies any and all factual allegations set forth in this
introductory paragraph. Defendant can neither admit or deny any
legal conclusions set forth in this introductory paragraph.
JURISDICTION AND VENUE
1. Jurisdiction of this Court is invoked pU~l3uant to 26 U.S.C.§§451, 1331, 1337, 1343 and 1345. This action is autho~i~ed and instituted pursuant to Section l07(a) of the Americans with
1

• •
Disabilities Act of 1990 ("ADA"), 4~ U.S.C. §l2117 (a), which incorporates by ~eference Section 706 and Section 707 of Title VII of the Civil Rights Act of 1963 ("Title VIl") , 42 U.S.C. §~OOOe-5, and §2000e-7.
RESPONSE, Defendant admits that the Plaintiff has invoked this
court's jurisdiction under the above refe~enced statutes. 2. The employment practices alleged to be unlawful were
committed within the State of Illinois.
RESPONSE, Defendant denies that it committed unlawful
employment practices and is without sufficient information to form
a belief as to the remainder of the allegation in paragraph 2.
Defendant cannot admit or deny that portion of paragraph 2 that
states conclusions of law.
3. Plaintiff EEOC is the agency of the United States of America charged with the administration, interpretation and enforcement of Title I of the ADA and is expressly authorized to bring this action by Section 107(a) of the ADA, 42 U.S.C.§12l17(a), which incorporates by reference Section 706 (f) (1) and (3), 42 U.S.C. §2000e-S (E) (1) and (3).
RESPONSE; Defendant admits that the EEOC is an agency of the
United States. Defendant can neither admit nor deny the legal
conclusion that the EEOC is expressly authorized to bring this action.
4. At all relevant times, Whitehall Hotel, Ltd. (" Defendant") was continuously doing business ;i,n the State of Illinois and continuously had at least 15 employees.
RES~ONSE: Denied.
S. At all relevant times, Defendant had continuously been an employer engaged in an industry affecting commerce under Section 101(5) of the ADA, 42 U.S.C.§12111(S), and Section 101(7) o~ the
2
. - --- - - - - - - - - - - - - - _

• •
ADA, 42 U.S.C.§12111(7), which incorporates by references Section 701{g) and (h) of Title VIr, 42 U.S.C.§§2000e(g) and (h).
RESPONSE: Penied. 6. At all relevant times, Defendant was a covered entity under Section 101(2) of the ADA, 42 u.S.C.§12111(2).
RESPONSE: Denied.
STATEMENT OF CLAIMS
7. More than thirty days prior to the institution of this lawsuit, Eric Oden filed a charge with the EEOC alleging violations of Title I of the ADA by Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled.
RESPONSE: Defendant is without sufficient information and belief to admit or deny paragraph 7 and can neither admit nor deny conclusions of law contained therein.
8. In 2001 Defendant failed to accommodate Eric Oden, in violation of Section l02(b) (5) of Title I of the ADA, 42 U.S.C.§12112(b} (5).
RESPONSE: Denied. 9. The effect of the practices complained of in parag~aph 8 above has been to deprive Eric Oden of equal employment opportunities and otherwise adversely affect his status as an employee, because of his disabilities.
RESPONSE: Denied. 10. The unlawful employment practices complained of in paragraph 8 above were intentional.
RESPONSE: Denied.
3

• •
11. The unlawful employment practices complained of in
paragraph a above were done with malice or with reckless
indifference to the federally protected rights of Eric Oden.
RESPONSE: Denied. 12. Since at least 1999 Defendant has engaged in a pattern or practice of soliciting from applicants information concerning their disabilities, prior to making them an offer of employment, in violation of Section 102{d) (2) of Title I of the ADA, 42 U.S.C.§12112 (d) (2) .
RESPONSE: Denied. 13. The effect of the practices complained of in paragraph 12 above hae been to deprive Eric Oden of equal employment opportunities and otherwiee adversely affect his status as an employee, because of his disabilities, and to interfere with the employment opportunities of and adversely affect other applicants.
RESPONSE: Denied. 14. The unlawful employment practices complained of in paragraph 12 above were intentional.
RESPONSE; Denied. 15. The unlawful employment practices complained of in paragraph 12 above were done with malice or with reckless indifference to the federally protected rights of Eric Oden and other applicants.
RESPONSE: Denied.
4

• •
FIRST AFFIRMATIVE DEFENSE
Plaintiff's claims are barred as it has failed to state a claim upon which relief may be granted under Rule 12 of the Federal Rules of Civil Procedure.
SECOND AFFIRMATIVE DEFENSE
Plaintiff's claims are barred because it has failed to exhaust administrative remedies.
THIRD AFFIRMATIVB PEFENSE
Plaintiff's claims are barred because Defendant made good faith efforts to comply with Americans with Disabilities Act.
FOURTH AFFIRMATIVE DEFENSE
Plaintiff'S right to equitable relief is barred because to the extent Plaintiff has suffered any damages there is an adsquate remedy at law.
FIFTH AFFIRMATIVE DEFENSE
Plaintiff's claim and relief are barred to the extent Plaintiff has failed to mitigate damages.
SIXTH AFFIRMATIVE DEFENSE
Plaintiff's claims are barred because defendant'S employment decisions are based upon reasonable factors and are not discriminatory.
5

• •
SEVENTH AFFIRMATIVE PEFENSE Plaintiff's claims are barred by the doctrine of laches.
EIGHTH AFFIRMATIVE DEFENSE Defendant reserves the right to raise additional affirmative defenses as established through discovery in this case.
RESPECTFULLY SUBMITTED, WHITEHALL HOTEL LTD.
l
I
i
By: __~-.-1 ~----~~_AA1..~..·.I-
One Of
Susan Bogart Law Offices of Susan Bogart 30 North LaSalle St., Ste. 2900 Chicago, IL 60602 (312) 263-0900 ext. 7014 J. Joseph Little One Wacker Drive Suite 2222 Chicago, IL 60601 (312) 644-6831
6

• •
EXHIBITB

. ,

•

•

IN TIlE UNITED STATES DISTRlCT COL"RT FOR THE NORTHERN DISTRlCT OF ILLINOIS
EASTERN DMSION

EQUALENWLOYMENTOPPOR~
COMMISSION,
Plaintiff,
v.
WHITEHALL HOTEL LTD.• and WlllTEHALL HOTEL RESTAURANT, lNC.,
Defendants.

)

)

)

) Case No. 03 C 6851

'

)

) Judge John W. Darrah

) U.S. Magistrate Judge Ashman

)

)

)

)

DEFENDANTS RESPONSE TO EEOC'S FlRS'!" REQUEST FOR ADMISSION
NOW COMES the v,.bitehall Defendants and in t~nse to the EEOC'li Fim Requert fOI Ad.mis&iOll states as fo Ilows;

1. In at least 20 calendar weeks in the year 2000, WhitehalJ Hotel Restaurant, In~. bad more than 14 individuals on its payroll.

ANSWER: Deny
(1) In at least 20 calendar weeks in the year 200 1, Whitehall Hotel Restaurant, Inc.
had more tban 14 iDdividuals on ilS payroll.

ANSWER: neay

3. In at leWlt 20 calendar weeks in the year 2000, Wbitehall Hotel Restaurant, Inc. had more than 100 iadividuaIs on its payroll.

ANSWER: Deny
~ In at least 20 caIcmdllt weeks in the year 2001, Whitehall Hotel Restaurant, hw.
had more than 100 individuals on its payroll

ANSWER: Deny

5. In at least 20 calendar weeks in the year 2000, Whitehall Hotel Restaurant, Inc. had more than 200 individuals on its payroll.

1

......._ . _ - - - - - - - - - - - -

. ,

•

•

ANSWER: Deny
6. In at least 20 calendar weeks in the year 2001, Whitehall Hotel Restaurant, In~. had mOn! than 200 individual~ on its payroll.
ANSWER: Deny
7. In at least 20 calendar weeks in the year 2000, W'hitehall Hotel Restaurant, Inc. had more than 500 individuals on its payroll.
ANSWER: Deny
8. In at least 20 calendar weeks in the year 2001, Whitehall Rotcl Restaurant, Inc. had more than 500 individuals on its payroll.
ANSWER: Deny
9. In at least 2D calendar weeks in the year 2000, Whitehall Hotel, Ltd. had more than 14 iDdividua.ls on its payroll.
ANSWER: Deny
10. In as least 20 calendar weeks in the year 2DO I, Whitehal1 Hotel, Ltd. had more than 14 iIIdividuals on its payroll.
ANSWER: DelIy
II. In at \east 20 calendar weeks ill the year 2000, Whitehall Hotel, lid. had more than 100 individuals on its payroll.
ANSWER: Deny
12. Tn allelloll120 calendar weeks in the year 2001, Whitehall Hotel, Ltd. had more than 100 individuals on its payroll.
ANSWER: DeJlY
13. In at least 20 calendar weeks in the year 2000, Whitehall Hotel, Ltd. bad more
than 200 individuals on its payroll.
ANSWER.: Deny
14. In at least 20 calemlw'weeks in the year 2001, Whitehall Hotel, Ltd. had more
than 200 individuals on its payroU.

2

• •
IS. In a.t least 20 calendar weeks in lhe Year 2000, Whitehall Hotel, Ud. had more
than 500 individuals on its payroll.
ANSWER: DeilY
16. In at lcast 20 call11ldarweeb in the Year 2001, Whitehall Hotel, Ltd. had mOrc than 500 individuals on its payroll.
ANSWER: DeDy
17. In at least 20 calendar weeks in the ~ 2000, the entity or entities who owned the restaurant in the Whitehllli Hotel where Eric Oden worked in 2001 had more than 14 individuals on iu payroll.
ANSWER: DefcDdall1s object to Request to Adlllit No. 17 11$ It !Icelll illformatioll ftom uDDamecl and 1IIIideatilled DOD parties. Reqlusls for adiDisaion are not discovery devices bat, rather, are Daed to ertablish the truth or ~enuinelless oC a matter in order to elimilllte tile Deed to prove the matter at trial or to HmIt tile tl'iable .....es of fm Defendanu objeet becense contrary to Rille 36(a) oetbe Fed. R.C.P., the reqaest does Dot leek information within the ICOpe or Rule Z6(b)(l) of the Fed. RoC.P., because It:seela information I:Ollcemillg Ilnidmtified and 1I1111amed DOIl-partlo.
DefeDdaDts are unable til admit or deny Request to Admit No. 17 beeause tile forJD of tlc request is compound ad calla Cor lell&1 conclDslolI and. beuUlIe use of the phrase "who owued tbe restRlInnt" is vague, amblpous and SBJceptlble tel multiple iDterpretltloas.
18. In at least 20 calendar week' in the yelll 2001. Ihe entity or entities who owned the
restaurant in the Whitehall Hotcl where Eric Odell worked in 2001 hod more than 14 individuals
on its payroll.
ANSWER; DefeDdanu object to Request to Admit No. 18 as it leeks IIlConuation
from Ulll1lllBed . .4 lIuid_tlfted DOD parti~ Requesu for adminion are not dilleovery devices but. rather, are used to establlsll the truth or genulDeuels Of a matter in order to ellmln.te tbe Deed to puve the Ill8tter at trial or to Ii:mlt the CrIable buiue, of fact.
DefelldlUlu object beeau5e coutnry to Rule 36(a) of the Fed. a.c.P.. tile request does oat
or seek illformatlou withlD the lCOpe Rlale l6(b)(I) of the Fed. RoC.P., beeau.e It seeks
information COD~/'Ilin& 1InideotUIeci . .d IIllllamed. non-partiell.
Derendantt are IUUlble to admit or dellY Request to Admtt No. 18 because the form o(the request Is compoDud aad calls for a legal coDclusion and bec:nse u~ of the pbrase ..,.,110 oWlled the restaurant" II vague, ambiguoUll IIDd lusceptible to muldple InterpretatiollS.
3

• •
19, In at least 20 calendBr weeks in the year 2000, the omcity or entities who owned the restaurant in the Wbitehall Hotel where Eric Oden worked in 2001 had mote than 100 individuals on it5 payroll.
ANSWER: Defeadana objet' wReqllett to Admit NCI. U as It seeks Informatloa
from IIInamed and unidentified Don parties. Re4[uats for admlslioo are not discovery
deviees but, ratber, a.-e IlSed to establlsb the truth or genuineness of a matter In order to eliminate the need to prDVe tbe matter at trial or to limit the triable isSlles of (act. '.
De1endants object beeallse cootrary to Rule 36(a) oC the Fed. ac.p., the request d4l<ls not
leek ioformatioo witJllD 1he scope of Role 16(b)(1) of tbe Fed. R.C.P., becaase it seeks i.connation tODl:enaiDg unideotified aad uDllalUed DOD-parties.
Oefendaats are Itnable to admit or deny Request to Admit No. 111 because the fonn of tile request is compound ud calls ror a legal eoacluslon and because nse of tile phrase "who OWDed the restaDraDt" Is vague, amb1luoas aod slls<:eptible to maltiple interpretations.
20. In at least 20 calendllr weeks in the yev 200 I, the entity or entities who ()WIled the reatalltant in the Whitehall Hotel where Eric OdeD worked in 2001 bad more than 100 individuals on its payrolL
ANSWER: Deftlldants object to Request to Admit No. 10 as It leeks iJlfonrultion from nanamed aod unidentified non panks. Requests for admlssloo are aot discovery dcvkes bnt, ratkcr, are used to establish the truth IIr genuiDeullllS of a matter In order to ell1nlnate the need to prove the _tter at trial or to JJmJt tbe triable Issues of fact. Defeaduu obJeet because eGDtruy to Rille 36(a) of tlae Fed. RoC.P., the request does not seek tnforlDatlon wltbln the $COpe of Rule %6(b)(1) of the Fed. RoC.P., because It seeb iulormatlou eoaceruing uuideudned and uunamed non-parties.
Defendants are IIl1able to admit or deny Reqaest to Adm:It No. %0 because the Corm of the request Is conapound !lad calls for a legal concluloa aDd bel2use aBe of the pbrale "wllo owoed tbe restaurant" is vague, ambiguous and slI5ceptJ'ble to multiple interpretatioD&
21. In at least 20 calendar wee\uj in the year 2000, the catityor entities who owned the rea;taurant in the Whitehall Hotel where Eric Oden worked in 2001 had more than 200 individuals on its payroll.
ANSWER: DefeDdants object to Reque5t to Admit No. 21 as it seeks iaCormatiou from unnmed and unidentified non pardee. ReqaeltJ for admlsilion are not discovery
devices but, rather, are 115m westablish the tru1h or lenlllDencss or a matter Iu order to
elimiDate tile need to prDve the matter at trlal or to limit the triable iss.a of lll!t.
Defelldants objed beeallse contrary wRIlle 36(a) oftbe Fed. R.C.P., tbe reqllen does Dot
seek InformatioD within the lcope of Rule 2,6(b)(1) oUhe Fed. R.C.P., beealue it seeb io1onnatiou concerniDg unidentilled and ullDlimed nOD-parties.
4

• •
DefendaDts an anable to admit or deay Requellt to AdnIIt No. 21 because the form of the request is eompouad and calla for a leglll collelusioo IUId because WIt of the phrase "who owned the restaurant" Is vague, ambiguous .ad s.sceptible to multiple iDterpre..tio.....
22. In at least 20 calendar weeks in the year 2001 , the entity or entities who owned the resta.tll'Mt in the Whiteball Hotel where Eric Oden worked in 2001 bad more tlum 200 individuals on its payroll.
ANSWER: Defendants object to Request to Admit No. 11 as It seeks information from unnamed md Ilnldentitled non parties. Requestl for admilsioq are nut dJscovery devices bnt, ratker, are used to establish the Il'Utk or genuineness oCa BUltter in order to eliminate the need to prove the matter at trial or to limIt the triable iAUes of fact. Defendants object beeau~e colltrary to Rille 36{a) of the Fed. B.c.P., tile request does not seek laiOlrmation within the scope of Rule 26(b)(1) of the Feel. RoC.P., beellUle It seeks iuf.rmatlon eOI1c:emlng unidentified and uDDamed non-parties.
Defelldml.$ are uuble to admit or delly Request to Admlt No. n because the form oelhe
request" eompoud and calls Cor a legal coulusiol1 and because use of the phrase "wbo oWlIed the restaurallt" Is vague, amblguollS ud 5U1l:eptlble to mnltiple IDterpretatlooL
23. In at least 20 calendar weeks in tlul year 2000, the entity or entities who owned the
re&\iiUI'aIlt in the Whitehall Hotel where Eric Ode.. worked in 2ao I had more than SOO
individuals 00 its payroll.
ANSWER: DeCendants object to Request to Admit No. 13 as It seeks Informatloa
from Ill1llaJlled and aaidentified non parties. Requests Cor admission are not dlItovery
or devices but, rather, are used to establish the truth or gelliliaeuess a matter In order to
eliminate die need to prove the matter at trial or to limit the tl1able islues of fact.
Defendants object becaule contrary to Rule 36(a) of dJ.t Fed.. RoC.P., the l'eqUellt d.oes 1I0t seek IDformatioD wttbin the lmpeofRule Z6{b)(1) ofthc Fed. R.CP., because It seeks Information coneel'll.illg unidentiOed and uDDamed Don-partie••
Defe.dana are ullable to admit or deny Request to Admit No. :!3 because the fonn oftbe request I, compound IUId calls for a legal OOI1CiWlioo and beeause use of the Ilhtlile "who owned the restaurant" is vaalle, ambiguous and sUiceptibJe to IlUlltiple interpretatioDL
24. In at least 20 calendar weeks in the year 2001, the entity or entities who owned the restaurant in the Whitehall Hotel where Eric Oden worked in 2001 had more than SOO individuabi on iii payroll.
ANSWER: DefelldlUll.$ object to Request to Admit No. 24 as it seeks information from uWlamll!d and ull.idelltifted 11011 parties. Requesm for admblliol1 are 1I0t discovery
devilD but, rather, ere 1l.ed to ellltablish tile trlltll or gelluineneJS of a matter In orller to
5

--------------------------------------------

-_._-----------_._--

•

•

ellmJnate tbe need to prove the matter at trial or to Unlit the triable issues of faet. Dereodanu object becaule contrary to Rule 36(a) of tbe Fed. RoC.P., tbe reqU(llIt does oot seek iIformatiOD witbln the ROpe ofRDIe 26(11)(1) of the Fed. R.C.P., because it seeks Information cooceraiog unidentified lDd uuumed oon-parties.
De1ellclallts an onable to admit or deoy Request to Admit No. Z4 bl:l:ule the form of the
or requ(lllt Is cotnpo1ll1d and caIb for alepJ condusio;>l1 a.ud because nse tle phrase "wbo
owoed the mtaunut" I, vagu.e, ambiguous ud susceptible to mnltlple interpretatlods.
25. Tn at least 20 calendar weeks in the year 2000, the entity Qr .mtities who operated the restaurarrt in the Whitehall Hotel where Eric Odm worked in 2001 had more than 14 individuals on its payroll.
ANSWER: Defendants object to Req\lest to Admit No. 15 as It seeks Inrormation froOlIlDllamed and uDidentiJied Don paJ1les. Requests tor adlnlHioD are oot dtseovery
devices bit, rather. are pled to estabUsh the nth or gealdnenellS of. matter ill order to
eHmmate the Deed to prove tile matter at trial or to limit the triable issues or fact. Defeodant8 object beeaue cODtrary to Rule 36(a) of the Fed. RC.P., the request does Dot seek lDformatioo witbin the scope of Rllle l(i(b)(l) of the Fed. R.C.P., beeause It seeD iDformatioll CODterDiog ullideudfted aDd uDOamed non-parties.
Defeudutli are UUllble to admit or deny Request to Admit No_ 2S because the fotOl of tbe reqDest is eIIOlpounci ad calli for a lC8al COllclulloa aad because use of the phrase "who operated tbe restauraot" is vague, ambiguous and susceptible to multiple Ioterpretstioos.
26. In Mleast 20 calendac weeks in the year 2001, the entity or entities who operated therestaura.ntin the Whitehall Hotel where Eric Oden worked in 2001 had marc than 14 individuals on its payroll.
ANSWER: DefeDdanu object tel Reqllest to Admit No. 2:6 115 it seeks Information from W1W1med and unideotlfled oon parties. Requests for admlUiOD lire Dot dilco,"ery devices but, rather, an nsed to establish tbe trutb or gcnmeness of a maUcr ill order to e1imillate the Deed to prove the matter Ill: trilll or to limit the triable luues of fa!;t. Defeadaotll obje.:t beeau.e tOlltrary to RDle 36(a) oC the Fed.ItC.P., the request does not
seek information within the ICOpe tlf Rule 26(b)(1) of the Fed. RoC.P.. hel:BUlie it seeks
IDfonnation conceralDl ..tdeotlfled and Dnamed non-partles_
DeCeDdaDtII lU'e Ullable to admit or dear Request to Admit No. 26 because the form of the request Is compound aud calls for a legal cODclusiOll and beca.use llse of tbe phraae ''who
operated tile restaurant" is vague, amblguoQS aad susceptible to mDltlple Ioterpntatioo!.
27. In at least 20 calendar weeks in the year 2000, the entity or entities who operated the restaurant in the Whitehall Hotel where Eric Oden worked in 2001 had mwe than 100 iudividuals on ita pa.yroll.

6

• •
ANSWER: Defendants objett to Request to AdDlit No. 1'7 as it seeks 1nformatioo from unnaDled and unidentified non parties. Requests for IUimisslon are not disclJVe.r)' devtces but. ratlJer, are usee! to estabUsh tbe truth or geauineaeas of a IIl8tter In order to elIll1iDllte the need to prove tbe matter a. trial or to limjt tbe triable IIll1es of fact. Defenduts object because CODtrary to Rule 3G(a) of the Fed. R.C.P., the request dGe$ not seek iafonnatlon within the scope of RIlle 26(b)(l) oftbe Fed. RoC.P., because it seeb information concerning uoldentiOed and unnamed non-partie..
Defendants are unable to admIt or deny Request to Admit No. 27 because the form of the request is compound and eaUs for a legal <:onausioa and be4:ause lise of the pbnse "who operated tbe reJtaUrBDt" Is vague, ambiguous and susceptible to multiple interpntatioul.
28. In at least 20 calendar weeks in the year 2001. the entity Of entities who operated the restaut1ll1t in the Whitehall Hotel where Eric Oden warted in 2001 had more than 100
individuals on its payroll.
ANSWER; Defol!ndanta Object to Request to Admit ~o. 18 as [t seeb infonn.tioD from IIl1aamed and Dliidentified non plUdes. Requests for admlnion are not ~uvery devices but, ratber, are used Ie estabUsb the truth or genuineness of a lII8tter in order 10 eUminate the \leed Co prove the matter at trial or • Umit the triable issoes of Cact. Ddendants objec:t because eentrary to Rule 36(8) of the Fed. R.C.P., the request does Dot seek informatiml widlln the scope ofRDle 26(b)(1) of tile Fed. R.C.P., lI_se it see". iufurmatloll conterning uDidentlfted an(l .Ullamed u\MI-part!Q.
Defeudauts are unable to a.dmit Of deby Re'la.est tc Admit No. 28 because the form oCtile
recjlle5t illlCmpound aDd eallll for a lep! coD.cluriou PIId becall8e use oftbe phnue "who operated the restauraDt" IJ vague, amblpflllS and sl1sceptible to mIltiple Intupretatlons.
29. In at least 20 calendar weeks in the year 2000, the entity or entities who operated the restaurwrt in the Whitehall Hotcl where Eric Odell worked in 200 1 had more than 200 individual! on its payroll.
ANSWER: Defendauta object to Request to Admit No. 29 as it seeks iafonnatioo frem lUlIlamed and uuide\ltified IIOD parties. Requests for acllnisslOlI are \lot discovery devices but, rather, are used to establish the truth fir genuiueaess of. matter ill order to eliminate the n~ to preve tile matter at trial or te Umit the triable inUei of fact.. Defelldants obJeI!t because eo.trary to Rule 36(a) of the Fed. RoC.P., tbe request does Dot see" IDCurmatioll wlthiD the leope of RIlle Z6(b}(1) of the Fed. RoC.P., because It seelu Infonrurtion cOIIeeming unideutlfied and IlDDamed Dou"partin.
Defendants are liDable to adutit or de.y RequMt to Admit No. 2? beeaaae the fonn of the request Is ~ompound and caUl for aler:1Il conanaieu .ad beca••e DIe of the phrae "who operated the rMtaurant" I, vague, ambignODS ad suneptlble to multtple Interpretadonl.
7

• •
30. In at least 20 calendar weeks in the year 2001, the eotity or entities who operated the n:fiaurant in the Whitehall Hotcl where Eric Oden worked in 2001 had more than 200 individuals on its payroll.
ANSWER: DefepdaDu object to Request to Admit No. 30 as It seeks luformation from IDDamed aud ualde.ntilled noa parties. Requests for admission are 110t discovery de"lces but, rather, are used to establbh the truth or genuine.ness of It matter iD. order to
eIbnlDlIte tbe need to prove the matter at trial or to limit the auble Iisiles of CiW:. '
DeCeadmts object beeause contrary to Rule 36(a) of the FeeL R.C.P., the ~uest does not m!Ok iDCormltiOll withlD. 1IIe scope of Rule 26(b)(1) of the Fed. R.C.P., becanse it seeks infonnatiol1 con<:erniDg unidenti1led aad uDOamed non-parties.
Defendants are unable to admit or deny Request to Admit No. 30 becau8e tile form of tile request Is compound and calls for a lellal cODclustoR lII1d because Ule of the phrase "wllo operated tbe redanraat'" Is Yape, ambiguous and susceptible to tDultiple Interptetatlans.
31. In at least 20 calendar weeks in the year 2000, the entity or entities who operated the restaurant in tbe Whitehall Hotel where Eric Odeo worked in 2001 had more than 500 individuals on its payroll.
ANSWER: DefimduUi objel:t to Request to Admit No. 31 as it seeks informatica from ullnamed and unidenttlled DOD parties. Reque1ts [OJ:' adllli"toll are not cllseovf;ry device1 bat, rather, In: used to establbb the !fllth or genulueness of a matter in order to e\imllllte the Deed to prtl"e the matter at trial or to limit tile trlablf; Issues of ract. Defendants object because contrary to:Rule 36(a) oftbe Fed. RC.P., the req:.est does not
seek iruormatlon within tile &cope of Rulc 16(b)(1) or the Fed. RoCP., because It seekli
information concerniug unidentified and ulIDamed uoa-parties.
Defelldants are uuble to admit or deny Request to Admit No. 31 beeause the form of the reqnest lIIeompound ud calIs for a legal OOIlclusiOllllJld because ule oUbe pbrase "who operated tile restaurBDt" Is "ague, ambigaoul mild susceptible to multiple interpretations.
32. Iu at least 20 calendar weeks in the year 2001, the entity or entities woo operated
the restaurant in the Whitehall Hotel where Eric Oden worked in 2001 had more than 500
individuals on its payrolL
ANSWER: Defendauts object to Request to Admit No. 32 IS It seeb information from unllam.ed ud lUlidentified lion putles. Requests Cor admission are not discovery devices but, rather, are used to establish the truth or geuuinen8ls of. matter In order to
e1isulDate the lleed to prove the matter at tria. QI' to Umlt the trt.ble issues of fact.
Defelldaau objed beeanlle coatrary to Rnle 36(a) of tile Fed. R.C.P.. the request does Dot seek informatloD within the stOpe of Rule 26(b)(1) of the Fed. R.C.P., beeause it seek_ inform.tioll concerning unidentified and IlDnamed nOD-pa.rties.
8

• •
Defendants are uDable to admit or deny Requ.est to A4mit No. 3Z because the fonn of tile
req!lest is compound aDd calls for a legal coucl....ioD ud because ase of the phr-.sc "who operated the restaurant" is vague, ambiguous and susceptible to multiple interpretatioos.
33. In at least 20 calendar weeks in the year 2000, the entity or entities who owned the Whitehtlil Hotel where ErIc Oden worked in 2001 had more than 14 individuals on its payroll.
ANSWER: Detendaots object to Request to Admit No. 33 .IS it seeks information from uonamed ad unideutified lion parties. Requestli for admllllion IllC lIot discovery devices bllt, rat"er, lin used to establish the truth or geuuiDeness ofII matter in order to eliminate the Deed to prove the matter at trial or to limit the triable Issues of fuct. Defendallts object because OOIltrary to Rule 36(a) olthe Fed. R.C.P., the req~e.t does Ilot seek inlormatloa within the scope or Rule 26(bXl) of the Fed. R.C.P., because it seeks lDformalioo eoucerulng nnidenUfIeclud ulllUlmed Don-parties.
Defendants are aable to admit or deQy Request to AdmIt No. 33 beealile tile Corm of the request is compouud aad calla for a legal co.cl1l510n and beeause lI!Ie of the pbraac "who owned the Whitehall Hotel" is vague, ambiguous and susceptible to mlldple mtefpretations.
34. In at least 20 calendar wceb in the yeax 2001, the entity or entities who owned the Whitehall Hotel w~ Eric Oden worked in lOOl had tnQre than 14 individuals on its payroll.
ANSWER: Defendants object to Request to Admit No. 34 :IS it seeks informatioD ....om unuamed md lInldentified uon partie-. Requests for admilliou are nol discovery
devices but., rather, are used to establish the truth or lelluineness of a matter In oreler to
eHlIlinate the ueed to prove tile matter at trial or to limit the triable IlIsuel or fact. Defendants object beeall.le contrary to Rule 36(a) 01 the Fed. R.C.P., tile request dDCS not seek informatiou within the scope of Rule 26(b)(1) of the F.d. 1l.c.P., because It seeks information conceralal uuldeatlfied and uunDled Bon-plllties.
nefcnduts are uDable to adwit or deny Reqwest tel Admit No. 34 becallSe the fOnD of the requst 1$ eompound ad calls tor a legal couclaslon aud beeaan IIle oltlle phrue "who
owned the Whitehall IloteI"1s vaglle, ambiguous and slIlIeeptlble to muJtlple Interpretatloa..
35. In at least lO calendar weeks in the yelU' 2000. 1he entity Of entities who owned the Whit~haI1 Hotel where Eric Oden worked in 2001 had more than 100 individuals on its payroll.
ANSWER: Defendllllts objeet to Request to AdmIt No. 35 lIS It seeks informatlOli from unnamed .ad uuidcntHled uon partle8. Requests lor admi.slon are net discovery d.evlees but, rather, are used to estab1l5h the truth or geDulneness of a matter In order to eliminate the ueed to prove the lIlatter at trial or to limit tbe tridJle 1.luel of fact.
9

• •
Defendants object because contrary to Rille 36(a) of the Fed. R.C.P., the requst does not seek Information within the "ope of Rule 16(b)(1) mille Fed. B.C.P., becllu~e It seeks illfol'UlatkJa eon~rning uDldentified and unnamed DOD-parties.
DefeJI.dants are unable to admit or dellY Request to Admit No. 3S because tbe rorm of the request ill compo.lld and eaJls for a legal conclusion and becaDe Ule of th" phrase "who owned the WhitehaJl Ho~l" is vagu, ambigllous and IDSceptible to multiple interpretations.
36. In at least 20 c&lendarweeks in the year2001, the entity or entities who owned the Whitehall Hotel where Eric Oden worked in 2001 bad Il10re than 100 individuals on its payroll.
ANSWER: D..rendllllb object to Request to Admit No. 36 as it IlI!!b information from uanamed and allidentified non parties. Requests for dml5s1.on are not disoovery devices but, ruther, a.re used to establ\s\l the truth or genuiueaellS of & DIIltter in ordo:.; to eliminate the need to ptOVl!! tile matter at trial or to limit the triable issues of fact. Defeudants object becaule contrary to Rule 3'(a) of tbe Fed. RoC.P., the request does not seek inrormatioD within the ,cope of Rule 26(b)(1) of the Fed. R.C.P., bec.ule it seeks informatiOIl concerning unidentified ud nnlllUlled Don-parties.
DeCelldllltlJ are unable to admit or dear Request to Admit No. 36 because the form of the request is compound and eatb for a lI,gal to.c1usion and because usc of the phrase "who oWlled Ike Wbiteh"U Botel" ill v.goc, a:QlhlguolI.$ =--d IU$.;eptible to multiple Interpretations.
37. In at lelUt 20 calendar weeks in the year 2000. the entity or entities who owned the Whitehall Hotel where Eric Oden worked in 2001 had. more !han 200 individuals on ils payroll.
ANSWER: DefeDdantlJ object to Request to Admit No. 37 as it SlI!!kIJ iJlformation fl'om IIDDlUDed "nd unideatlfied nOD parties. RequcstlJ for admislion are DOt diseove.'y
deviees but, rather, are ped to establish the trutb or ;enUiDUleIJl of a matter io order to
eUmiutc the need to prOVe the mltter at trial or to Hmlt the triable \slUes of fad DefeDdants object bel;anse contrary to Rule 36(&) of the Fed. R.C.P., the request does not 811!!k information within the scope of Rule Z6(b)(l) of the Fed. R.c.P.• because It seekJ information coocernillg un!deutified and ullnamed _oo-parties.
Defendants are uuable to admit or deny Request to Admit No. 37 becaDse the COI'lll of the
request Is eO!llpouneluel can, for Illegal OODclnsion anel because use of the pbrue "wbo
OWDed the Whitehall Hotel" Is vague, IUI1blguons and slISceptlble to mnJUple IDterpretattoas.
38. In at least 20 calendar weeks in the year 2001, the entity or entities who owned the Whitehall Hotel where Eric Oden worked in 2001 had more than 200 individuals on its payroll.
10

• •
ANSWER: Defendallts obJeet to Request to Admit No. 38 as it leeks information from uunamed ud unidentified non partie5. Requestli for admlsslGD are Dot discovery devices but, rather, are .sed to establish the truth or gellulu.enels of a matter in order to eliminate the Deed to pro"e the matter at trial or to Umit the triable \gael of faet. Defendants object beeau5e eontr.ry to Rule 36(a) of the Fed. RoC.P., tbe request does not seek IororDllltion within tile scope of Rule Z6(b)(1) of the Fed. R.C.P., because It seeks lIIfonnadon conceruing unidentified ud unlUlmed DOD-pardee.
Defendlll1u are unable to admit or deny Request to Admit No. 38 because tbe (Ol'lll 01 the request b eompound and caIJs for a legal conchlllion and beeallM IIle of tile pbrase "woo owlled the WbltebaU Hotel" Is Vllglle, amblguOll1 and ,a_ptlble to maldple interpretations.
39. Tn at least 20 calcodar weeks in the year 2000. the entity or entities Who owned the WhitdIall Hotel where Eric Oden worked in 2001 bad more than SOO individUllis on ih payroll.
ANSWER: Defendants object to Request to Admit No. 39 ItS It seeks Information from IInllamed and unidentified non parties. Requests for admission are not discovery devll!es bue, rather, are used to establish tbe trudl or Kepn.entsl of" matter iD order to eliminate tile Deed to prove the matter at trilll or to limit the triable issues of fal:t. Delenduu object bel:allse contrary to Rule 3fi(a) of the Fed. R.C.P., the reqaest does not
_II. Information within the scope 01 Rule Z6(b)(1) of the Fed. a.c.P., bel!allSe It seeks
laformation concemlnll unidentified lind UDDlimed non-partles.
Defendants are anable tc admit or deny Request to Admit No. 39 because the form (Jf the requeet is eontpound and cans (or" Iegllconduslon and boeause ule of the pbra.e "wbo ~Ded lbe WlIiteball Hotel" Is ValUe, ambiguous and IPeeptible to mpltiple
illterpretatioD!.
40. In at least 20 cllleodar weeks in the year 2001, the entity or entities Who owned the Whitehall Hotel where Eric Oden woiked in 2001 h.ad more than 500 individuals on its payroll.
ANsWER: Defendants obieet to Request to Admit No. 40 as it leeks illformatioD from aDnamed and unidentified ncn parties. Reqnats (or admissiou are Dot dlleovery devices bUt, rather, are used to establisb the truth or genlliDelleils of Il matter In order to ellmlaate the need to prove the matter at trial or to Umit the triable baues of fact. Defendants ubjeet beeallse contnry to RJ1le 36(a) of the Fed. R.c.P., the request does Dot seek Iufonuatlon within fbe scope of Rule l6(b)(1) or fbe Fed. R.C.1'., because it leekli IJJfofll1lltion coneenalng nnldentlfled ..d unnamed nOD-parties.
Defepdants are uuable to admit or deny Request to Admit No. 40 beuuse the form oCthe request is romJIGUlld and ealJa Cor a le&al coaelnsion and because ule of the pbralle "who owned tile WhitebaD Hotel" II vague, ambiguous and sus~eptlble to multiple iDterpretattoD'.
II

• •
41. In at least 20 cal.;.ndax m:eks in the year 2000. the cmtity or entitles who owned the Whitehall Hotel where Eric aden worked in 2001 had !!Jore than ]4 individuals on itls payroll.
ANSWER: Defendauts object to Request to Admit No. ,,1 as it seeks Infornuwoo from uunamed aud unidentified DOn parties. Requellts for ..dmlss'oa are not discovery devices bat, rather, are used to establbh tile truth or geIJlIineDeSS of a matter ia onler to eliJllinate the need to prove the matter at trial or to limit tbe triable bSlle5 of fact. , Defeudants object beca.se contrary to Rule 36(a) of tile Fed. a.c.P., the request does Ilot leek iDformatioll within tile scope of Rule 26(b)(1) of the Fed. R.C.P., because it seeks infol'1lJatioll cODcernlng uoid~tified IIDd UDlllllDed uon-plll1l.es.
DefcodanUi are uullble to admit or deIJY Request to Adllllt No. 41 because the form of the request is compound IIlId calls for .. leg..1coucluslon aud becau•• use of the phrase '<Wbo owued the WIlitehaD Holel" b v;que, ambiguous IIlId susceptible to multiple interpretadoDs.
42. In lit Il:ast 20 calendar weeks in the ~ 200 I. the entity Or entities who apenlted the Whitehall Hotel wIlere Eri.c Oden worked in 2001 had !!Jore tban 14 individullls on its pa)TOll.
ANSWER: Defend.llbl obJeet to Reqnest to AdDlil: No. 42 all it seel. Inforllllltion from ullnamed ...d lInideutified Don PIlr1ies. Reqnests for adlnissloD are not dlseovery
devices but, ~ather, are used to estIbUsh the truth or geDulnMlel$ of II matter in onler to eUmiaate tb.e Deed to prove the matter at trial or to limit the triable Issues oC fad.
DefUldants object beealllS8 contrary to RDIe 36(a) of the Fed. R.C.P., tile request dOes lIot seek informadOll within the scope of Rule 26(b)(1) ofthe Fed. RoC.P., because It seetu informatioll cOllcerning unidentified Ind unnamed Don-plU'ties.
Defendants are .Dlble to admit 0.. deny Request to Admit No. 42 becau.e tile form of tile request iA I!ODlponnd od calli fa.. a legal cOllclusion ud because u8e 01 the phrase "who operated the Whitehill Botel" is vague, ambiguous aDd slIsceptible to multiple in.erpretations.
43. In at least 20 calendar weeks in the year 2000, the c:ntityor entitie. who operated the Whitehall Hotoel where Eric Oden woned in 2001 had more than 100 individuals on its payroll
ANSWER.; Defendanh object to Request to Admit No. 43 as it .eeb iIIfonnation
from unDIUIltd aud ullidentifled non parties. RequesUJ'or admil,iOll are not diKovery devltel bllt, rather, lU'e ued to establi.!lb the trIlt" or geDllillellCS8 of a matter In order to eliminate file Deed to prove the matter at trial or to limit the triable lssuel of fact. Deleudanu object bee....e eoottery to Rule 36(8) of tte Fed. R.C.P., the nques1 doell not seek inforDIAtioQ wlthlll tile seope orR1I.Ie 16{b)(J) ofthe Fed. R.C.P., beeaUle it seeks information com:eming unl4ellti.fled and uUl1Imed lIOD-parties.
12

• •
Defend8llta are unable to adlllit or deny Reqaest to Admit No. 43 beeause the form of tbe n:qnest 15 compound and caU. for a legal conclusion and because Il.e of tbe phrase "who operared the Whitehall Hotel" 15 vagu~, ambiguous and susceptible to mulUple Interprlltati.al.
44. 1n at least 20 calendar weeks in the year 2001, the emity or entities who operated the Whltcball Hotel where Eric Oden worked in 2001 had more than 100 individuals on its payroll.
ANSWER: Defendanta obje;t to Request to Admit No. 44 as It seeks infonnatioQ from annamed ud unidentified Don parties. Requests for admilsion are Rot discovery dmees but, rather, are used to elItabHsb thll trutlt or geDQUlllnesa ofa matter In order to eUmlDate the need to prove tile matter at trial or to IlIIIlt the triable issues of faet. Defelldallta object beeaQse contrary to RuJe 36(a) of the Fed. R.C.P., the request dees not leek blforDlRtton within 1he scepe 01 Rule 16(b)(I) or the Fed. R.C.P., beeause It seek!! I.CClrm.tion coDceraing unidelltUled aDd IlIlBamed DOD-parties.
Defendaots are unable to admit or deny Request to Admit No. 44 because the fonn ofthe
reqaest ill compouod 8lId calls CDI' a legal co.dlllio1J and bel:ause use of the phnse «Wbo operated the Whitehall Hotcl" is vague, IlIIllllgllOItS and susceptaole to mwtiple interpl'etatioDS.
45. b! at least 20 calendax weeks in the year 2000, the entity or entities who operated
the Whitehall Hotel where Eric Oden worked in 2001 had more than 200 individuals on its
payroll.
ANSWER: Defenduts object to Request to AdJDit No. 45 a. it seeks Information from UDllamed and uDideDtifI.ed DOD parties. Reqllests for lldUliasiOil are uot cI.lJcovery devices but, rather, are used to establish the truth or geDlimeaes, of a matter in order to e1imblate the Deed to prove tile matte.- at trial or to Hmlt the triable iSlltes of lact. Derendu" obJed beclUlSC coatrary to Rule 36(1) of the Fed. R.C.P., the l'equest does IIOt seek iDrormadoll within the scope of Rule 16(b)(1) of tb.e Fed. R.C.P., beeaule It seeks b.tonnatiOil concerniBg IlDideotlfied snd nunamed Doa-partles.
DeleDdan" are IIDable to admit or deDY Request to Admit No. 45 because the form of tile request is compoand and calls for a lell1 conciusioo nd because use of the phrase ''who operated the Whitmall Hotel" Is Vllgue, aJIlbigUOIU and suleeptlble to multiple
IoterpI'eClltioDS.
46. In at least 20 calendar weeks in the year 2001, the entity or entities who ope!alcd the Whitehall Hotel where Eric Oden worked in 200I had more than 200 individuals on its payroll.
ANSWER: DefeDdanu obje~t to :Request to Admit No. 46 as it seelu informatioD
13

• •
Crom unnamed ••d ualdentlfied nOD parties. Requests for admission are lIot discovery de'llice$ but, r"'cr, are llSed to establish the truth or genuiDeDess ora matter lu order to eliminate the need to prove the matter at trial or to Umit tile triable maues of faet.
Defeudants object: because CODtrary to Rule 36(11) of the Fed. R.C.]'., tile request does Dot leek iaforlUlltion wltbin Ibe scope of Rale 26(b)(1) of the Fed. R.C.P., becanse it seeks
information concerning unidentified aud uDumed non-parties.
DefeadaBis are unable to adl1lit or deD)' Request to Admit No_ 46 because tbe form ofthe
requat Is cOJnpolilld and calli ror a legal concuo. . and bee. .se use of the phrase "who operated the White1laU Hotel" ls vague, IUIlbiguOU5 IlDd susceptible to multiple
InterpntaUOD8.
41. In at lewit 20 calendar weeks in the }'eaZ 2000, the entity or entities who operated the Whitehall Hotel where Eric Oden worked in 2001 had more than 500 individ~s on its
payroll.
ANSWER: Defendants object to Request to Admit No. 47 as it seeks information
from DDuamed and unidentified Don parties. Reqnests for .dmissioD .re not discovery de"tices but, rather, are used to establish the tl'uth or genu'llenen IIf a matter ill order to elimlDate the need to prove the matter at trial or to limit the triable Issues of fact. DefeudaDta objoet becalUle eDlltrary to Rule 36(a) orthe Fed. R..C.P., tile requeu doel uut
seek information within the scope oCRaie 16(b)(1) oUbe Fed. R.c,P., because It seeks information roDellrDllIg anideDttfled and UDDllIJIed non-parties.
nef'eudants ate uDable to admit or deny Request tQ Admit No. 47 bllcanse tile ronn of the reqUM 1& compound and calls for a legal cOUeJUSIoD and becatlle use of the pbrale ''wbo operated the Whitehall Ho~l" Is vague, ambignou3 and slIlceptible to multiple iaterpretatlOlla.
48. In at least 20 calend8l' weeks in the ye!ll' 2001. the entity or entitie:! wbo operated
the Whitehall Hotel when: Eric Oden worked in 2001 had more than sao individuals on its
payroll.
ANSWER: nefelldlDta objeet to Request to Admit No. 48 as it seeks iIlformatkln from unnamed and aaidentified nOll plll'tles. Reqlletta for admiYioD are Dot discovery devil\el but, rather, a .... ullell to eltabUs. the truth Dr ieDllinenClIL of a IIUItter ill order to elImiDate the Deed. to prove the matter at trial. or to limit the triab~ Issues of (act. Defendanis objK:t because contrary to RD.le 36(a) of the Fed. R.C.P., the request does Ilot
seek Information within the loope or Rule Z6(b)(1) of the Fed. R..C.P., beeaale It seeks
infonnation eODcerDlog ullideatified and a.named nOll-parties.
14

• •
IHfendants are uable to admit or deny Requm to Admit No. 48 because the form of tbe requ~t is eompound and caDs for a legal conclusiod and bec:ause use lit the phrme "who operated tIIe'Wbitebail Hotel" is vague, amblguolls and susceptible tlI mllltipie intel'pretatious.
Susan Bogart Law Offices ofSusan Bogart 30 NortlJ. LaSalle St, Ste. 2900 Cb.icago, II.. 60602 (312) 263·0900 ext. 7014 J. Joseph Little Law Offices One East Wacker Drive Suite 2222 ChiCllgll. IT. 60601 (312) 644-6831
15

• •
CERTIFICATE OF SERVICE The undersigned attomey does hereby certify that he caused to be seJ;Ved. upon counsel for EEOC, JellIlIle Szromba, 500 West Madison St., Ste. 2800, Chicago, IL 60661 Defendants Responses and Obj ections to the EEOC's Requests to Admit by depositing a copy ofsame ijl the U.S. mails on ttle 9'" day of September, 2004.
Ittl i /() {l-
(StT
16

• •
EXHIBIT C

• •

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DlSTRICf OF ILLINOIS
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
WHITEHALL HOTEL, LTD. and WHITEHALL HOTEL RESTAURANT, INC.
Defendallu.

) ) ) No. 03 C 6851 ) ) Judge John W. Darrah ) U.S. Magistrate Judie Ashman ) ) ) )
)

TO: ALL PERSONS ON ATTACHED SERVICE LIST

NOTICE OF 3Q{b)(6) DEPOSITION

PLEASE TAKE NOTICE that, plU'Suant to Rule 30(b)(6) of the Federal Rules of Civil

Procedure, Plaintiff Equal Employment Opportunity Commission (the ''EEOC'') shall take the

deposition upon oral examination of Defendants Whitehall Hotel, Ltd. and Whitehall Hotel

Restaurant, Inc. (''Whitehall''), on Wednesday, September Z2, 2004 commencing at 9:30 a.m.,

before a certified court reporter, at the offlFCS of EEOC, 500 W. Madison, Suite 2800, Chicago,

minois. At the scheduled time and place, Defendants shall present. the officers(s), agent{s), or

employee{s) who is (are) designated by Defendants to testify on its behalf and who has/have

knowledge about the subject matters set forth below. Defendants shall identify prior to the

deposition such person or persons who will testify about each subject. The deposition will

continue from day to day until completed. The instructions and definitions lIS set forth in the

EEOC's First Set of Interrogatories and Request for Production of Documents should be

followed in response to (his Notice of Deposition.

• •

Subjects of Deposition

1. Identity of the entity or entities who a) owned the restaurant in the Whitehall

Hotel where Eric Oden worked in 200 I; and b) operated the restaurant in the Whitehall Hotel

where Erie Oden worked in 2001.

2. Identity of the entity or entities who a) owned the Whitehall Hotel in which Erie

Oden worked in 2001; and b) operated the Whitehall Hotel in which Eric Oden worked in 2001.

3. Identity of and cxplana.lion of any and all legal. contractual, and managerial

relationships between or lIlTlong the entities identified above.

4. Identity of and explanation of any and all relationships between and among

Whitehall Hotel, Ltd. and its parent, subsidiary(ies), and affiliates.

5. Identity of and explanation of any and all relationships between and among

Whitehall Hotel Restaurant Inc. and its parent, subsidiary(ics), and affiliates.

6. The number and identity of employees employed on each day of calendar years

2000 and 200 I by the entity who owned and opemted the restaurant in the Whitehall Hotel where

Eric Oden worked.

7. The number and identity of employees employed on each day of calendar years

2000 and 200 I by the entity who owned and operated the Whitehall Hotel where Eric Oden

worked.

8. Th", number and identity of employees employed by the Whitehall Hotel

Restaurant Inc. on each day ofcalendar years 2000 and 2001.

9.

The number and identity of employees employed by the Whitehall Hotel Ltd. on

each day of calendar years 2000 and 2001.

2

• •
10. Identity of the entity that employed Danella Walker at any time during 2001.
II. Identity ofthc entity that employed Thomas BeleHeu at any time during 200!.

Documents to Be Produced Prior to Deposition
me. L Payroll records from Whitehall Hotel Restaurant from 2000 and 2001.
2. Payroll records from Whitehall Hotel, Ltd. from 2000 and 2001. 3. Payroll records from 2000 and 2001 from the entity that owned and operated the
Whitehall Hotel where Eric Oden worked. 4. Payroll records from 2000 and 2001 from the entity that owned and operated the
restaur-m! in the Whitehall Hotel where Erie Oden worked.

September 14, 2004

Respectfully submitted,
~~ro4F~ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 500 West Madison Street Suite 2800 Chicago, Illinois 60661 (312) 353-7546

3

• •
CERTIFICATE OF SERVICE
Jeanne B. S7.Tomba, an attorney, hereby certifies that she caused a copy of the foregoing Notice of30 (b)(6) Deposition to be sent to counsel ofrecord at the following addresses:
By Hand Delivery Susan Bogart. Law Offices of Susan Bogart 30 North LaSalle Street Suite 2900 Chicago, TIlinois 60602
By u.S. Mail J. Joseph Little One East Wacker Drive Suite 2222 Chicago, Illinois 60601
Dated: September 14,2004

• •
EXHIBITD

• •

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Chicago District Office

500 West Madi.,n St.• Suite 2KtlO

ChiclIgo, It 60U(j1-2S11

PI!: (312)353·2713

T'fV, (l12) 313-2421

PlUi RGVlEW~ FAX, (312) 353-4041 MlilliAHON FAX: (312) 353-6676 flEARINr,S FAX, (1Il) 336-SBI

STATE'" LOCAL fAX: (m) 3)3""41 ~NFOj{CEMF.NTFAX: (312) RRfi-116R
WGAL FAX, (JI2) J5HSlS

December 17. 2004

Via U.S. Mail and Facsimile (312) 263-5013

Stlsan Bogart, Esq. Law Offices of Susan Bogart 30 North LaSalle Street Suite 2900 Chicago, llIinois 60602

Rc: EEOC v. Whitehall, 03 C 6851

Dcar Ms. Bogart:

Pursuant to Judge Darrah's December 8, 2004 Order, Defendants m'ust respond to certain discovery requests rnade by EEOC because such requested inforrnation has been ruled by the Court to he discoverable. Please provide these responses on or before December 31, 2004:

I. Responses to EEOC's First Request for Admission, Nos. 17-48.

2. In response to EEOC's First Request for Admission No.2, Defendants deny that, in at least 20 calendar weekH in the year 200 1, Whiteball Hotcl Restaurant, Inc. had more than 14 employees on its payroll, yet Defendants produced payroll documents belying that claim. For example, according to payrOll records produced by Defendants, in the first 20 weeks of 200 1, Whitehall Hotel Restaurant, Inc. employed the following number of employees:

Number of Employees

Pay Period 1 (Weeks 1 and 2):

19

Pay Period 2 (Weeks 3 illld 4):

17

Pay Period 3 (Weeks 5 and 6):

19

Pay Period 4 (Weeks 7 and 8):

17

Pay Period 5 (Weeks 9 ami 10):

17

Pay Period 6 (Weeks II and 12):

20

Pay Period 7 (Weeks 13 and 14):

20

Pay Period 8 (Weeks 15 and 16):

20

- - - - - - - - - - - - - - - - - - - - - - - _ ....
• •

Susan Bogart, Esq. December 17, 2004 Page 2

Pay Period 9 (Weeks 17 and 18):

18

Pay Periou 10 (Weeks 19 and 20):

17

Please correct your response to EEOC's First Request for Admission No.2 on or before December 31, 2004, or EEOC will seek fees and costs fOT hringing a motion in court under Rule 37(c).

3. Responses tv EEOC's Second Set of Interrogatories, Nos. II, 12, and 13.

4, Financial information sought in BROC's FiTst Request for Production of Documents.

EEOC is entitled to all of the above information and it is all the subject of discovery requcsts already submitted by EEOC. If Defendants do not provide this infonnation on or before December 31,2004, EEOC will he fOTced to file a motion to compel.

Sincerely,
J~=~

• •

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSJON

Chicago District Office

500 Wl!sl Madisun St., Suite 2800 (:hiclisu,IL60661

P]]: (312)353-1713

TOO: (JI2)353-242I

IlNFORCEMENT FAX, (J12) 886-1168

LEGAL FAX: (J12.) 353-8555

TELEFAX TRANSMITTAL COVER PAGE
OFFICIAL GOVERNMENT BUSINESS

Date: December 17. 2004

Please deliver the rollowing pages to: Name: Susan Bogart, J<:sq.

Re: EEOC v. Whitehall, 03 C 6851.
From: Jeanne B. Szromba, Esq.,Trial Attorney (312) 353-7546 Tolal numher of pages:._3_ (including cover page)
IF YOU DO NOT RECEIVli: AU, PAGES OR HAVR ANY PROBLEMS RECEIVING THIS TRANSMITTAL, PI,EASE CALL SENDER AT THE NUMBER ABOVE AS SOON AS POSSIBLE.
CONFIDENTIALITY NOTICE
This communication is intended l'or the sole use of the person(s) to whom il is addressed and may contain information that is privileged, can fidcntial and exempt from disclosure. Any dissemination, distribution or copying of this communication by anyone other than the intended recipient or the person responsible for its delivery is strictly prohibited. If you have received this C(}mmunication in error, please call this oflice immediately ilnd either destroy the communication or return it to the above address.
SPECIAL INSTRUCTIONS I COMMENTS:

• •
cont I rmat I on Report - Memory Send

Pap

001

Date I Time: IT-Oec-l004 Dl:ITPI

Line 1

3IZ3538555

Llna Z

~achlne 10 LEGAL

Data

To

NUlber of PalOS

Start tim~

End tlmo

POIOI ••nt
Statu.

Job number

043

043
17-0" 01: 161>11 SSIlI2263SDI3
003 17-00' 01: 161>11 11-0" 01 :171m 003
OK
........ SEND SUCCESSFUL ",**

'U.s.

'EQ'l.JAL

Jj

:l

VIP

l

.

.OYlW:£N Cbic.aMD

TDlsO~'IIi:I'PliO t. ROT:[Ulll"eI..l

T

"

'

!

(

CO~SSJ:CJ.'0I0I'SW_~ """'1Q--1,"!'.I~...•.•. uU~hcct.:Dl68c(I'oiQ\

f".I, (31 Z) :t~:t--271;J

~·bD. (20~.') lI~-:i4:i.l

~FO~cnf>ool2!.N-I"IF""'X: (31.2.) • • 6-1i68

LiUJI ....c.. .........)11:: (,11101.) ••tu_.~.

TELEFAX T:R.ANSJ.v.IITTAL COVER. PA.GE
OFFXC• .AL GC>VERN~NT BUS1NE"""

li&.o; Egpc y "Wb"'.,n." 0.:1 c:: 68$1..

FrO:rD! , ...... oc»; a .....9mb.... 'E-q Tri•• AUg......." (312) 3..,3-7.,,.6
Total :Ii\llnb~ ofpa&cs:_3_ (toc1l,1d.iz1a; ..~Qver p~..)

IF ~OY.1 n o NO.... REC'ltI"v.lio.A..LL .l
THIS "rR.Al'($;tvDTTA1;. PL:E.A.t9E C

A l'ALGLES5JOi:N ~D~EV R A ~T~ THE.N.aOolvn.Ul:J...}.:B!;M R AS.."JlUiInICO~ErAvI!JiI::SHO GO

N

AS "OSS:UU..J.t.~

CCtNFIPgNTIAT lTV NOT'reE

T'hi& ZZUIi>'

OOa"L'(Du Q.ODl-.i=

.n.iol!l.t.ion iJl i.n.1"onna:nO

inbs.tid.¢d fur 'P 'tb,a:f,; i. privi

the sole leged..,.

ie' ~UnISdCdI.eo:tn" dl:: ujsalp laK:loSd< laaxl (.l iaI )mt op

t

V:Ift4o\rQn~diJt.i8acl.aQd~.Udrr&w.a

&c:

d

IjlDd

,po .iA:.n:D1:.ywndd:i.Acf~I4~~iill1pl1iLti_._onl..Q. dr

istr mG

ibution per.CN=L

o~pr OoDopa)ilbin1aeof~utr:h.i1ua.

c.ODlDJ.unl~UQn. 'by a.n,yQp.<a
deliv.n'Y .hl IIIma'[l.y'l,lorCJbl;"'bito

util
Q::d.

c

r

t:han

the

:I:I!"you. 11.v~ rV.c.c:iv~d ...-:his uorrun\1l1luation Dtt'Or. pi.eIlUlCl ~J thi.5 omtrll;! ~""i~~ ~d. ei~

d."'QrQ:Y tbe con'I.JP~Q...'tiolO or ret!~ &1: 'rO thA:;: a;bQ'V8 iM1dr'ofiN1.

SPECIA.I.. Il.'iISTR:UCT10NS I COl\lIl\llE~S;

• •
EXHIBIT E

__ '?~~.Q!!_•.?.005 5, 41 PM

•

p.l!

SUSAN BOGART
LAW OFFICBS OF SUSAN BOGART
30 NOll'lH US'" F STRu,r • 2VTH FLOOR CHICAGO. ILUNO/s fiOtiIJ2

JanWI!)' S, 2005
Via Facsirmle
Je111110 Szromba
EEOC 500 West MadisoD Stn!et Chicago, II.. 60661
RAI: EEOCv. Whitehall, 04 C 6831
Deu Ms. Sr:romha:
This letter will address your letters dated December 17 and 21, 2004.
Deeember 17, 2004 Letter
First, let me advise that I find these letters quite coufilBina. All you know. the December 8 wdcr to which you n,r", in yow: December1? 100t« W1III Judge D8tlah's denial ofDefendants'
Motion for Protective Order regarding the Rule 3O(b)(6) deposition notice ofth" EEOC. Ali you also know, Defendants have previously identified Danella Walker as the person who would appelll' and answer questions 1'1 I in the Deposition Notice. Indeed, Defendants offm'«! to have Ms. Walker testify to the oontents ofthe Notice during her earlier depositions. and indeed she did
so testifY as to cenain of tbll items, but tho EEOC :refused to proeoed as to all itomw to whith defendants did not exist. Thus,lIlJ to items I-II, what remlWlli ia scheduling Ms. WaIkcr's depOsition. ICyou willh to provide mil with dates.l oan contact her and detcnnine whiCh of the
dates you propose work for her as well as myself.
Second, IllI my letter oftoday's date indicates, we have already produced all documents responsive to th" document request contained in th~ Rule 30(b)(6) with the exception of document TCqucat number 3. We m:c prepared to make thoae rwards avaJlable for inspection at my office as ofFrlday or we can forward to 1\ copying service whieh )1>U designate for copying at your expense. The documents i\nI as I bave indillated volwninous.
Thin!, the o;ourt's December 8 order did not address lIllY other discovery requcsts ofthe d..rendant. Thus, your paragraphs nwnbered 1,3, and 4 in your December 17 were not the subject of the court's order and I have no idea what you arc ....ying as defendants have filed responses to all your discovery requests and tholiC responsCii are complete to the beat of dofcndanta

-Jan 05 2005 5:41PM HP .SERJET 3200

•

p ...

know'Iedge. Al.O, to the exllmt that you intended )'Our o..COIIIbct' 17 letter to be a. Rule 37 requctt to nosolve dlsagreemcnta as to discovery, IIllJl not aware ofwbat the di&agrol:lllleJ\ts are as to
these discovery items so please advise me. YOW' DecCIllber 17 letter doeIIllOt do that.

I'ounh, we are not able to vorify III ofthis date the OOWlting you set forth in paragraph 2 of )'Our Deoember 17 llltter. Again, this was not tile subject aftho Court'~ D".;ombor 8 <>Tdcr. We Ille endeavorini to determine how you arrived at the JIUlDbem you liBt there and to determine if the numbers you list ale accurate. Your amilrllfY date of compliance of December 31 was, III!I I indicated in our teleplume c:onVCl'UtiODB end 8ubsequeotly confirmed by conail, not the subject of
'" court OTdcr as your December 17 tOOor might be read to imply and is entirely UDl'eaSOIlablc: due
to the vlJC&tion 8d>cdul". ofWhitehaU pet50nnel and royself. Neverthel....., tbat task Is and hils been underway since JanUN}' 3 and will be completed I expect within the next couple day". It a
supplemental response to Request to Admit No.2 is in order, We will supplement our nosponse.

December 21,2004 Letter

Fifth. pleue be advised that defendants have responded to defeudants First Document
Request NO. l ' and in fact served)'Ou with Supplemental Responses on September 22, 2004
which included a lupplernCllI to Request NO. IS. Thus, your suggestion that we have not
previou.sly done so following your AUguI'l 4 Motion to Compel is incattoct.

Sixth, you assert in your December 21 letter that the "BEOC also claims that the tbllowing question asked on Defendants' application waamega!: Have you ever been Oleriously injured? ONo 0 Yos. Please delCrlbe." While Ibis ill tb.e firlt that I a.ro aware of such II claim, b becllllSe there is no dUCUfOcnt or pleading or discovery fCX{Uest tbat I could find in which \his
alleged claJm hils ever been identified, I am not sure of the purp08e ofyour assertion on December 21, 2004. ThUll, there does not appear to be a;nythlng that Whitehall can address insofar as this assertion is concerned.

Seventh, attached to your De~ 21 letter is a "Second Requcllt fbr PtodlUluon of

Documents". This Wall servoo by facsimile on defendants on Decembm: 21, 2004. TINS,

defendants have until January 20, 2005 to respond. However, let me advise that per the testimony

ofDanella Walker, the first BUCb application Tevioion was produc:ed to tbe> EEOC's investigator

in 2001 fOr approval and approval was rcceived. So. a copy of this nwised application should be

in your files.

vez:; I~A4

SUSAN BOGART r - (

• •
EXHIBITF

• •

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Chicago District Office

'00 W..t Mudison st.. Suite 2800

Chicago, IL 60661·2511

PH: (312)l53-2711

TrY: (3ll) )5H4Zl

FILl! RllVmWS FAX: (JI2) J5)-404] Mr.tltATION PAX: (312)353-M16 IIEARlNa$ FAX: (312) ~~6-5l.'

STAT" & LOCAt. ~'AX: (312)353-4041 ENFORCEMENT FAX: (Jll) ii6-ll6S
LIlGAL FAX: (312) 35J08SSS

January 12, 2005
By Facsimile (312)263.5013 Susan Bogart, Esq, Law Offices of Susan Bogart 30 North LaSalle Street Suite 2900 Chicago, Illinois 60602
Re: EEOC v, Whitehall, 03 C 6851
Dear Ms. Bogart:
I am writing, pursuant to Rule 37, in response to your letter of January 5, 2005 in which
you request some clarification on some discovery issues,
Rule 30(b)(6) Deposition
1. Please confinn (ha( you and your wi(ness(es) are available on January 27,2005.
2, Defendants have now produced payroll records from three entities in response to the four document requests submitted as part ofEEOe's 30(b)(6) notice, The documents produced yesterday you say are responsive to the third request: payroll records from "the entity that owned and operated the Whitehall Hotel." Please confirm that the payroll records previously prodnced, labeled Whitehall Hlltel Restaurant, were submitted in response to the first request and fourth request ("payroll records _, _from the entity that owned and operated (he restaurant in the Whitehall Hotel.. ,"),
3. Please provide the legal name of the entity whose payroll records were produced to EEOC yesterday.
Whitehall Hotel Restaurant, Inc.
I. Please advise me as to whether you intend to supplement or change your response to EEOC's request to admit with respect to the number of employees at Whitehall Hotel Restaurant, Inc, In your letter of January 5, you say you will know ill "a few days."

• •
2. Please confirm that defendants do not have any of the financial records requested hy EEOC with respect to Whitehall Hotel Restaurant, Inc.
Applications
1. I have received (he heavily redacted application you sent on January 10, 2005. It is not helpful. EEOC needs a dated, filled out employment application in order to determine the earliest date when defendants began using the revised application. Please send the earliest dated application in defendants' possession in response to this documert request.
2. In its Document Request No. IS, EEOC asked for all employment applications containing written responses to thc questions EEOC claimed were illegal under the ADA. I do not understand your response to this request in your January 5 leller. Are you saying that the only employment application received by defendants between 1999 and 2004 containing such responses was Eric Oden's? Please clarify. Tflhere were others already produced, please identify them. Tf there are others not yet produced, please produce them.
As you know, our discovery cut-off date in this case is fast approaching. Please provide a response to this letter by January 19, 2005, so that we know whether EEOC must file a motion to compel on any of these issues.
On a different nole, I have received your draft Agreed Order. 1 will review it and get a response to you in the next rew days.
Sincerely,
0- ~cAm;w~C~
Jeanne B. Szromba

• •
Cont i rmat Ion Report - Memory Send

Pue

001

Data I Tlo.: 12-Jan-20D5

Line I

3123538555

lin. Z

Machine ID LEGAL

04:12po

Job n••ber

293

Dat.

12-Jan 04:11pm

T.

N.mb.r .f papa

003

Start 11 ••

INan 04:11pm

End tiMe

INa. 04:11pe

Pliot sent

Stat.1

Job nuober

m

DOl
OK
**. *** SEND SUCCESSFUL

FACSIN.lILE TRANSl\<IITTAL COVER P ......Gl!: OFFICIA.I. GO~T DVSlCNESS
_ 0 _ 'r:alIO :&EOC ca:n:'4.GO Dl:STRICT Ol1'....CE LEGAL D1V"IsxON l'e.D'\&&r,Y 12. 2005
Susan BlD.an:
312-2c53-S0~3
~connC!l .s~'ba
Trial Auan1ey
"l"o~ N'utra"bCd' of Pa.e": ----1... Cinclvdinll vazulniUAl ~ 'PaKI#')
IF VO"UDO NOT lit.:BClUVHAL1..:F'"AGBS OkHAv::a A:NV PR.O.~ iiBCiU'ViN"oTHLS FAX "l"k.AN"S!r4ISSION. PJ"....)S.A.$B c.A.LL:

IF TH:l'S F.A...X T.R..AN"S~Sl:ON IS DI:R.EC'l."AD TO MOaB TaAN ONE A.DJ:Ja.BSUBE. PLJiASB CO:Jl'Y ~ p);sTR.un.JTE TO A.L:(.. ADDlUlSI!iBBS.
CONFIDENT1ALrr¥ NOTXCE

.A.uI;Y Ai smnhurtfon" <1ip~'PDD. or aopyiua: p;f'thi. ~VDiaat:iDA. by -o.yQ:p8 oUt.e:I' than Tho '-~ :r->'pJ..~:c CH' 'the per!lcn1 ralllPc::r.a.aib18 far i'tB dali.'VWIQ'" P ae:dg(1y p...-o~"Q.

uua ,t J:f'>"(IU haVD ~"V'1Xi

COft""",,"ic.a.tion 111 0D"0r. ple&a. ~1" 1bia oftlge fuu:ned.i~Y II!I.DCl

eJ.~ doat:ro)"'tb.CI ~1.Q:I.iaa:till)'D ~ rII!I~ to the: .bO'VCl .addl:'a1ls.

- - - - - - - - -------- ----
• •
EXHIBITG

-J.n 21 2005 2:03PH HP tiSERJET 3200

•

p. 1

SUSAN BOGART LAW OFFICES OFSllSA.NBOGART 30 NORTHLASALLE ST., STE. 1900
ClllCAGO, IL 60601

Tele: 31:l-:lIiJ-0900, ext. 70U
Date: JaDDIUY :n, Z005

Fuslmlls: JIJ-263-$On

TO: Jeanne 9:u-v0lba-312-353-8SS5 J. Llttle-31%·644-5300

FROM: SDlau Bogart

Re: EEOC v. Whlteball, 03 C 6831-Relponse to JaDulU')' 11,1005 letter.

The documenl$ IWcompanying this IcJecopy U'amlllislli<;lll coIltWn infOIDla.tion from the law
practice ofthe 4w OffiCCli of Susan Bogart which is confidential or privileged. The informilkon
ill inlended 10 be for the usc of the indiYidllal or entity DBnled on this transmission sheet. lfyou are nat the intCl'ldcd recipient, be aware that any disclosure. copying. diatrib\ltion or use ofthe QQllten18 ofthie telooopied infOJDlltion is prohibited. If you havo Tecleived this telecopy in ClTor,
please notify us by telephone immediately $0 that we can lIIIlIIIge Cor die rMev a1 ofthe original
documents at no COilt to you.
IF YOU DO NOT RECEIVE ALL OF THE PAGES INDICATBD ABOVE, PLEASE CALL AS
SOON AS POSSIBLB. TELEPHONE: 312-263-5013.

II

·~an 21 2005 2:03PM HP tiSERJET 3200

•

p.2

SUSAN BOGART LAW OFFICES OF SUSAN BOGART
3() NORTH LASALLE STJUIIrr· 2<)rH FLQOR CHICAGO. ILLINOIs 60602

Via FlIIIQimile
JelU1lle Szromba
EBOC
SOO West Madison st.
Chicago. n. 60661

January 21,2005

He: EEOC v. Whitehall. 03 C 6851
Dear Ms. Szromba:
nus letWl' will ICIlYo lIB II response to yourleUer dated January 1:1. 2005 wh;oh l'u'1'oru to be a Rulli 37 lotter regardlng discovery disputes but seeks "clarifioation".
L Yes, we ate prepared to prgcccd un January 27, 200S with the Rule 30(b)(6) Depo.ition Notice. We will plan on being III your offic;c at 9;30 a.m.
2. We have produocd /ill documents rcspoll5ivc to Document Rcquests 1 'tI1rough 4 of the Rule 3O(b)(6) Notice.
3. Agajn, we have provided all documents responaive to tho Rule 3O(b)(6) subpoena and hilli the traIlsmiltal iwllcaled. !he documents produced 10 you on JanUSl}' 11 were responsiv~ to requeat No.3. The arc the RiCOrd5 uf Whitehall Holel LLC.
4. J IIsve advi8cd you that We do inlend to 8upplement response to discovery within the discovery period. I did not say ~ "few cia>",". What I said was within the discovery period.
S. We do not know what "~Ia1 ~ords" you are referrina to as to the Whitehall Hotel
Restaurant Inc. If you are referring to tax returns, as we have advised, we have been Wlable to
date to locate tax rotuma for tbis entity for lIle l'eIIS<lM previou&l.y speoified. Ifwe do, we will
forward them to you.
6. I have responded to your Second RIoqueot fo.. Production ofI)Q"umcnts, in which you ad the revised EmplOYMent Application that was revised in 2001 and providod to your
investigator. You Bought the earliest completed application and it hu been provided to you with a slIItemcnt that we beUeve it Wi\!J filled out in Docember 2001 or later. It is reapoZlBive. That is

'Jan 21 2005 2.03PM HP tiSERJET 3200

•

the best we ~an offer as the Appli~ation was not dated by the AppllolUlt, but the application WBB revi,ed as of November 2001 as it reflects. It is responsive to YOW' document request and you do not indicate in what rospoot it is not. That tlwt that )'I)U do not find it "helpful"
is DOl of course a requimnent ofthe Fcdozal Rules of Civil Procedure.
7. I am atiJl not dClll' on how defendants have failed to comply with Docwncnt R.cqu est No. 1S. In your leller you requelt IIPPlications from 1999-2004, HoweYCO', Judge D&IT~h '. order
dated August 30, 2004 ruling on YOllr motion to compel, made cleaT that Defendanm wore only required to produce ''The requed for othcrr cmployeea who IiOUght un acCOrmtlodatiort eluring
Qden'& employment ..." Oden willi employed during II period of 2001. We have complied with that Document Request as I have previously indioated.

AN BOGART

• •
EXHIBIT H

• •

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Chicago District Office

50" W"I M.disO!l se, S"lc 2800
Chicago, lL 606(11-151 t
PH: (312) J5J·271.
Try: (312) 353·2421

. >ILE REVIEWS FAX: (J12) 353-4<141 MHIJIAnON FAX: (JI2) 353-6676 HEARINns fAX: (JI2) 8g~5391

STATH& LOCAL FAX: (JI2) 353-4<141 ENFORCHMENT fAX: (JI2) 8~(,·1168
UiOAL FAX: (312) 353·8;55

January 27, 2005

By Hand Delivery Prior to 30(h)(6) Deposition Susan Bogart, Esq. Law Offices of Susan Bogart 30 North LaSalle Street Suite 2900 Chicago, Illinois 60602

Dear Ms. Bogart:

Re: EEOC v. Whitehall, 03 C 685 I

In YOllr Answer to EEOC's First Amended Complaint, you claim that EEOC docs not have jurisdiction over Whitehall Hotel Restaurant, fnc. bccause that entity does not have the requisite number of employees for coverage under the ADA. h1 your answer to EEOC's First Request for Admissions, Request No.2, you deny that Whitehall Holel Restaurant Inc. had more
(han 14 employees during at \cast twenty pay periods in 2001. ill my letter to you of December
17,2004, I asked you to correct this response inligbt of the dOCllments you produced conllnning Ihal Whitehall Hotel Restaurant Inc, indeed had more than 14 employees during that lime period. To date, you have not done so,
Furthermore, in your answers to EEOC's First Request for Admjssion~, you refuse to
answer the requests relating to the "entity that owned the hotel where Erie Oden worked" and
relating to the "entity that operated the hotel where Eric Odcn worked." Yet, Danella Walker, in
her fact deposition, testilled that there were approximately 140 employees working at the Whitehall Hotel during 2001. Please admit, on the record, that Ihe entity thaI oWlled and/or operated the hotel where Eric Odcn worked emph)yed approximately 140 people in 2001. If you refuse 10 do so, EEOC will seek fees and costs for bringing a motion in court in accordance with Rulc 37(c),

In view of the ahove, if yon continue 10 refuse to admit that EEOC has jurisdiction over
Whitehall Hotel Restaurant Inc., EEOC will be forced (0 estahlish jurisdiction during this
deposition. If forced to do so, EEOC will seek fees and costs for bringing a motion in conrt in accordance with Rule 37(c).
~mba~ Sincerely, ~

• •
EXHIBIT I

" ,

.ANEUAWAl.KER JANUARY27.20rl' 30(bX6) WllITEHAI.I. HOTEL

oo$,~-.S,::t1$11;';t' . l I

IN TIIIl UNITED STATEiS J1ISTRICT COURT

. 2

''OK '11m NORTIlERN DiSTIller OF ILLINOIS

3

J!AS1'ERN DIVISION

I 4 EQUAL EMPLOYMENT OPPOR11JNlTY )

"'8" 1

, """ "r r:r I 3

1 MS, SZROMBA: Why

gq on

1" / /

2 record,

,..

I!

3 4

for tMheS.DaeofeGnAdaRntT!:ha1t1t'h. me y••pgoosiintigofnoarwsiartd wn.i~~."

5 COMMISSION,

)

5 3()(bX6) dep""iLion at this juncture is a waste o f ' , .

6

I'laiJltift', )

6 everybody" lime aod money.

7

) No, U3 C 6lI51

7

We have oooceded the jurisdictional

B WH1'Il'HALL HOTEL, LTD. and ) H,m. Juhn W. DamI~

8 issue .., to the employer of Mr. Eric Oden in the

9 W1UTEIi>\IJ. H(lr~LRIlSTAURANT, ) 1I.!I. M'll. Aslun>n 9 summary judgment pape... 'lbere is, th(.....,fore. no

10 INC,.

)

1(J jurisdictional '...ue remaining ... 10 any Defendant

11

Defendants. )

J1 that's named.

12

'I'he JO(hX6) deposilion of Wlll'ffiIIALL

12

'lbe 30(bX6) deposition is iolCnded to

13 HOTEL, LTD., and WHITF.IIALL HOTEL ~~STAIJRANT, INC., 13 be a fi,bing expedition. It i. not focused on any

14 thntugh DANEllA WAU<F.K, \l1lo1lC!l fot e!l:aRlinalion,

14 faet that will Ix relevant to prove any fact in

15 taken pursuant to the Fcd~rllll{u'eN (,fCivii

15 dispute in lhe .wnmary judgment proceedingi' in the

16 PnJCeduse urtbe United States lJimr;Li Q)urts

16 case pending Ixlore the judge.

17 ~rtahung to tne lakil," of deposiliOllli, taken

17

And if we do prevail in the summary

18 bdOTt: y, UNI)A UOIlSCII, II NotlUY .t'ubli~ within and

18 judj,,'TJIenl. we will. of course. include all of the

19 fOlthe County of' l)uPasc, Stllte of Illinois, Ilnd II. 20 ~rtified Sbortbftnd RCpcrr1Cr, alR No. 84-3108, or'

19 exo";",, .s part of our ",..L'I, bul we w....nt 10 put 20 the Plainliff on notice that any objection on the

2.) ltJid!tUlle., 111 Suite 28OO,.s00 W~t MaJi.~ SUret,

21 nOlion thaI somehow these =1>< arc not n..,.....ry

22 t'hicago.llIi[loi", UTI the 27tb day of Janwary, A.D.

22 are n:aUy their doing because we feel thai these

2:1 2005, at 10:33 a.m. 24

23 questions .rc really irrelevant at this juncture. 24 MR. GOCHANOUR: Let'••tan by indica~ng!hat

I PRESENT:

Page 2

Page 4

1 this is the 30(bX6) deposition of Whitehall Hotel,

2 EQUAL BMPLOYMENTOPPORTUNITY C'.OMMISS10N. 2 Ud., and Whitehall Hotel Restaurant, Inc.

3 (500 West Madison S1.ree1., Suite 2!D.1,

3

Could you swear in Ihe witne"", pI""",,?

4

Chicago. lIIinois 606fi1,

4

(WHEREUPON. the witness wus duly

5

31UIIM1I93), by:

5

sworn.)

6 MR. GREGORY <JOCHANOUR,

Ii

DANEI.Li\ WALKER.

7

Mll.11lANNE SZROM1lA. orut

7 caJled as a witness herein, baving been first duly

II

MR AARON DeCAMP,

8 sworn, was examined and le!.1ified as follow.:

9

~d OD behalf en lhc Plaintiff;

9

EXAMINATION

10

10 BY MR GOCHANOUR:

11

LAW OFFlCF.'i Of SUSAN BOGART.

11 Q. Could you state your name for the

12

(:10 North laSalle ~Iroc:t, 29th Fklor,

..

12 record, pl...<;8?

13 ChictlgO, Illinois 6060'2. 14 112-263-1l'JOO). by:

13 A Danella Walker. 14 Q. And what's your position. Ms. Walker?

15 MS. SIISAN BOGART and

15 A DIrector of Human Resou""",.

16

MR. JAY UTILE,

16 Q. And what company is yoU! employer?

17

appeared on behalf of the Defendants

III

and tile Deponent.

19

17 I\. The Whitehall Hotel. 18 Q, Is that the corporate name of the entily
19 that employs you or doe. it do busincs.~ a.. the

20

20 Whitehall Hotel'l

21 REPORTED BY: V. UNJlA BOEscn. CSR No. S<t-JlOO,

21

))0 you undetstaod the distinction?

2Z

22 MS. BOGART: 1bal'S a compound question.

Z3

23 BY THE WITNESS:

Z4

24 A. Would you clarify that for me. please?

ESQUIRE DEPOSITION SERVICF.'l. LLC - CHICAGO 312.782.~OH7 IlOO.708.8087 FAX: 312.704.4950

1 (Pages 1 to 4)

• •
EXHIBITJ

•

•

....'r ~...,

/

/ .... - '\,

\ ,#

. . . ./ '

"

1""/".. ~::".', .," '\'-."

..!~" ,

c' "j;)

"\

IN

THE

UNITED

STATES

DISTRlCf

i,t/
CODR·

~'..{} . 6.P

,'

b' '

FOR THE NORTHERN DISTRICT OF ILLlNors .~''''i'

"'.' .,-: ../

EASTERN DIVISION

';:~" .. <.'>"

EQUAL EMPLOYMENT OPPORTmTIY
COMMISSION,
Plaintiff,
v.
WHlTEHALL HOTEL LTD., and WlUTEHALL HOTEL RESTAURANT, lNC.,
Defendants.

) ) ) ) CIIS~ Ko. 03 C 6851 )
) Judge Jow. W. Darrah ) U.S. Magistrate Judge Ashman ) ) ) )

DEFENDANTS ANSWER TO EEOC'S SECOND SET OF INTERROGATOlUES
NOW COMES, the Whitehall Defendants and in response to the EEOC's Second Set of Interrogatories states as follows:

ll. Identify the eutit}' or entities who (a) owned the restaurant in the WhitehaU Hotel where Eric Oden wocked in 2001; and (b) operated the ~l ill the Whitehall Hotel where
Eric Oden worked in 2001.

ANSWER: The Defendan13 object to Interrogatory Nt). 11 ulider Rille 33 of tll.e Fed. R.C.P. bec:a.u$e it seeks informatioll ~olleemhlK uDidentifted and unnamed llolt-pU1ies.
Defcudanu ranller object OD the grolllld tIlat Intel'l'Ogato.y No. 11 seeks inConaatioD wIIi~h b Olluide the ~eope of Rule 26 (b)(1) of the Fed. R.C.P. II it does not seek facts whkh
are relevaat to this aiR (Jr whith will lead to the discovery of discoverable . .d. ..dlDiulllle evideoce. De{epdlllts fnrtber object on tile ground that luterrogatory No. 11 does not ~k {am, but legal coBclasioos.

12. Identify the entity or entities who Ca) owned the Whitehall Ho~l in which Eric Oden worked in 2001; and (b) operated the Whitehall Hotel inwmchEric Oden worked in ZOOI.

ANSWER: The DefeDdanI.$ object to Interrogatory No. 12 lIDder RIlle 33 cor Ibe Fed.

RoC.P. because it saelu infOJ'lllatfoll coneern:lug unidentiRed md 1I1luaned Itoa'parties.

Dd'ea.d.anu rurtb.er object 011 tile ground that IDterrogatory No. 11 ..,kI lDfol1ll&tioll
racta whiclJ Is oatslde tb.e scope 01 Rule 26 (b)(l) of tile Fed. R.c.P. lUI It doa Ilot seek or whith are relevaDt to this cate or wbleb wiIlleali. to the discovery discoverable and

admlsU.ble eviden(e. DefendlUlts ruther object on the grcIllDd that IaterroptoTy No. 12

does not seek facts, bllt leta! eOllc:luslol18.

.

1

_---- --_....

. ,

•

•

CERTIFICATE OF SERVICE
The undersigned cOW1Sel doell hereby certify that he caused to be served upon counsel for the EEOC, JC8JUle B. S2J'omba. EEOC, 500 W. Madison St, Ste. 2800, Clrlc:ago,lL 60661 De:fendant& Responses :.ud Objections to the EEOC's Second Set ofInt=Qgalaries by depQsiting a COpy of same iII. the U.S. mails on the 9" day of September,

3
__ .... . - - - " '

• •
13, Identify and explain any and all legal relationships between Or ll3:lloog the entities identified in your Answer.> to Intercogatozy Nos. 11 and 12. ANSWER: The Derendants obje~ to Interrogatory No. 13 IInder Rule 33 DC the Fed. R.C.P, because It seeks information con~eruinll unidentified and unnamed nou-parties, Defendaats further object on the ground that IDwrrogatol'Y No. 11 seeks lnfo~tio. which is outside the scope of Rule 26 (b)(l) of the Fed. R.C-P. as it doe. Dot seek facts Which are relevant to thiJ ~ase or wllieli witllead to the dbcovery oC diacoverable and admlsalble evidence. l)efenrutnlll further object on the ground that IDtelTtlptory No. 13 does DOt seek fseils, but coaclusiODs.
Susan Bogart Law Offices ofSusan Bogart 30 North LaSalle St.. Ste. 2900 Chicago, II. 60602 (312H63-0900 eKt. 7014 J. JOIIepll Little Law Offices One East Wacker Drive Suite 2222
Chicago, n.. 6060I
(312) 644-6831
:z

• •
EXHIBITK

• •
United States DIstrIct Court, Northern District of Illinois

NUll: Df A.af1aned J.d."
at' M ...... l-d;l'

John W. Darrah

5UU»g J1Id., If' Othu til.. AHllotG Jaqlt

CASE NUMBER

03 C 6~51

DATE

October 12, 2004

CASE TlTL'E

EEOC v, Whitehall Hotel, Ltd., et al.

[k\ the f(lll~lwlngbot (it) indicate Ulc PBny flllng U1~ mohon, c.Qj., I=IJatl\urrl dfJretd4nl. 3rt! paTty pllmllff. mul (h) liltlk: brit-fit Ihe a.al\I1C

L_ _ _ _ _ _ _ MOTION:

()(tbe motion \)gjni prwcnkd·l

---l

DOCKET ENTRY:

(1) Cl

(2)

[J

Filed motion of [ we listinQ in "Motion" box .boye.] Btief in support ofmollon due _ _'

(3)

[J

(4)

[J

(5) o

(6) o

(7) o

(8) o

(9) o

N1swer briefto molion du,_ _, Reply 10 BIlower brief due_ _.

RulingiHearing on _ _ "I for _._.......t _ _' Status heariniCbeldicontinued 10J [set forIN·..1tilT] On _ _ set for _ _ al .....,~.
Pretrial <unfcron",[heldlcontinued 10] (.ct for/re·stt forl 0" _ _ '01 til, _ _ at _ _'

Tri.I[.oI fOlI......OI for] on _ _ .t ___.

[Bench/Jury trial] [HeAring] beldlcontinued I<> _ _ at •.___.

,,,,,,era! This c••e i. dismissed [with/without] prejudice Ind without coslslby/all'ccmentlpursuanl (0)

o 1'RCP4(1Il} 0

Rule 21 0 FRCP41(.}(I) Cl FRCP41(aX2},

(IO) • [Other docket entry] Defendants' Motion to Quash is denied. Statu. hearing scheduled for 10120/04 is stricken. See reven;e side of Miulltc Order.

• (lj)

[Por further de",il .ee order on the reVerse .i<lc ufthe original minute order,]

No noti," f'QCiUlrod. advi!ial. \n Optd ~un,

No nolieCi rcq~itcd.

NOlie. mailed by jwige's sl.tT.
N(ltified cuuMfil by Mop~m:.

OCT 1 3 2004

Dackl!ttnSlo mall notices.

Moil AO 45U tbrm.

Cup)' 10 jooCelmaglstmto judge.

,."mmom
dept,lly',
~nj1i"l.

.' "1

""

•

•

ORDER

Defendant corporations seek to quash a Rule 3O(b)(6) Notice of Deposition in which Plaintiffseekli to have Defendants identify an officer. agent or employee to testify about eleven items regarding, in part. the identity of entities who owned or operated either of the Defendants and the identity and explanation of any and all relationships between and among the DefendBDts and their parents, subsidiaries and affiliates. Defendants Object to all but two ofthe items, arguing that the information sought is beyond the operations of the Defendants and related to unidentified and unnamed entities. Plnintiff argues that it merely trying to identify the entity that employed the charging pany in light of repeated clailllli by the
Defendants that the EEOC was suing the wrong defendant. "Parti•• may obtuill discovery regarding any matter, not privileged, that is relevant to the claim....
Relevant information need not be admi~sible at trial tfthe discovery appears to be reasonably calculut1'rl to lead to the discovery of admissible evidence...." Fed. R. eiv. P. 26(b)(\).
The infonnation sought by Plaintiff is arguably relevant 10 the EEOC's claim and appears to be [c,,"ollahly calculated to lead to the discovery ofadmissible evidence. Accordingly. Defendants' Motion
to QI,UISh is denied.

· . , ..

uJitED ~ STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

Michael W. Dobbins CLERK

/' r' : '/ ""','Office of the Clerk

r ','

.. '.~ .

ii',:: ··::l~

Gordon G. Waldron United States Equal Employment opportunity commissidn'
500 West Madison Street Suite 2BOO Chicago, IL 60661

f [j ?r'.' ,i

Case Number: 1:03-cv-06851
Title: EEOC v. Whitehall Htl Ltd Assigned Judge: Honorable John W. Darrah

MINUTE ORDER of 10/12/04 by Hon. John W. Darrah: Defendants' motion to quash EEOC's Rule 30(b) (6) subpoena is denied [29-1). Status hearing scheduled for 10/20/04 is stricken. (See reverse of minute order.) Mai led notice

This docket entry was made by the Clerk on October 13, 2004

ATTENTION:

This notice is being sent pursuant to Rule 77(d) of the Federal Rules of Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was generated by ICMS, the automated docketing system used to maintain the civil and criminal docltets of this District. If a minute order or other document is enclosed, please refer to it for
additional information.

For scheduled events, motion practices, recent opinions and other information, visit our web site at www.ilnd.uscourts.gov

Check our web site for CourtWeb--a concise listing of rulings by judges, Check for rulings on noticed motions. Also, subscribe to Courtwatch--a free service--lO receive e-mail notification of CourtWeb postings.

To apply for a PACER account, call 1.BOO.676.6856

• •
EXHIBITL

• •

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILliNOIS
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION.

)

Plaintiff.

) No. 03 C 6851

)

v.

) Judge Jobn W. Darrah

) U.S. Magistrate Judge Ashman

WHlTEHAI,L HOTEL. LTD. and

)

WHITEHALL HOTRJ, RESTAURANT, INC. )

)

Defend'ants.

)

------~ ..

)

TO; ALL PERSONS ON ATTACHED SERVICE LIST

RE·NOTICE OF 30(b)(61 DEPOSITIQN

PLEASE TAKE NOTTCE that, pursuant to Rule 30(b)(6) of the Federal Rules of Civil

Procedure, Plaintiff Equal Employment Opportunity Commission (the "EEOC") shaH take the

deposition upon or~l ex.amination of Defendants Whitehall Hotel, Ltd, and Whitehall Hotel

Restaurant, inc, ("Whitehall"), on Tuesday, November 9,2004 commencing at 9:30 a.m., before

a certified court reporter, at the offices ofEEQC, 500 W. Madison, Suite 2800, Chicago, JJJinois.

At the scheduled time and place, Defendants shall present the officers(s), agent(s), or

employee(s) who is (are) designated by Defendants to testify on its behalf and who haslhave

knowledge about the subject matters set forth below. Defendants shaH identify prior to the

deposition such person or persons who will testify about each subject. The deposition will

continue Irom day to day until compleled, The instructions and definitions as set forth in thc

EEOC's First Set of interrogatories and Reque~t for Production of Documents should be

followed in response to this Notice of Deposition,

• •
Subleers of Deposition I. Idontity of the entity or entities who a) owned the restaurant in the Whitehall Hotel where Eric Oden worked in 2001; and b) operated the restaurant in the Whitehall Hotel where Eric Oden worked in 2001. 2. Identity ofthe entity or entities who a) owned the Whitehall Hotel in which Eric Oden worked in 2001; and b) operated the Whitehall Hotel in which Eric Oden worked in 2001. 3. Identity of and explanation of any and all legal, contractual, and managerial relationships between or among the entities identified above. 4. Identity of and explanation of any and all relationships between and among Whitehall Hotel, Ltd. and its parent, subsidiary(ies). and affiliates. 5. Identity of and explanation of any and all relationships between and among Whitehall Hotel Restaurant Inc. and its parent, subsidiary(ies), and affiliates. 6. The number and identity of employees employed on each day of calendar years 2000 and 2001 by the entity who owned and operated the restaurant in the Whitehall Hotel where Eric Odcn worked. 7. The number and identity of employees employed on each day of calendar years 2000 and 2001 by the entity who owned and operated the Whitehall Hotel where Eric Oden worked. 8. The numher and identity of employees employed by the Whitehall Hotel Restaurant loc. on each day of calendar years 2000 and 2001. 9. The number and identity of employees employed by the Whitehall Hotel Ltd. on each day of calendar years 2000 and 2001.
2

• •
10. Identity of the entity that employed Danella Walker at any time dwing 2001.
11. Identity of the entity that employed Thomas Belelieu at any time during 2001.

Documents to Be Produced Prior to Deposition 1. Payroll records from Whitehall Hotel Restaurant Inc. from 2000 and 2001.
2. Paytoll records from Whitehall Hote), Ltd. from 2000 and 2001. 3. Payroll records from 2000 and 2001 from the entity that owned and operated the
Whitehall Hotel where Eric Oden worked. 4. Payroll records from 2000 and 200 I from the entity that owned and operated thc
restaurant in the Whitehall Hotel where Eric Oden worked.

October 28. 2004

Respectfully submitted,

eB. Szromba QUAL EMPLOY COMMISSION 500 West Madison Street Suite 2800 Chicago, illinois 60661
(312) 353·7546

3

• •
CERTIFICATE OF SERVICE
Jeanne B. Szromba. an attorney. hereby certifies that she cllUSed a copy ofthe foregoing Re-Nolice of 30 (b)(6) Deposition to be sent to counsel ofrccord at the following addresses:
By Facsimile aDd U.S. Mail Susan Bogart. Law Offices of Susan Bogart 30 North LaSalle Street Suite 2900 Chicago, lllinois 60602
By U.S. Mail J. Joseph Little One East Wacker Drive Suite 2222 Chicago. 11linois 6060 I

Dated: October 28, 2004

~Ma~ anne B. Szroma

• •
cont I rmat I on Report - Memory Send

Pa,e

001

Date' Til.: 2B-OCt-2004 03:52P1

Lin. 1 3123538555

Lin. 2

Wachlne 10 LEGAL

JDb "umber

Date

To

Numblr .f PUBS

Start ti..

End tile

Pa. . . . . . t

Status

JDb nuaber

m

422 28-0ct 03:50pm 8B263501l 005 2B-Qct 03:50"" 28-Qct 03:52po' 005 OK
*** SEND SUCCESSFUL •••

FACS~~ T~S~TT......:L C:OVRR..PAGE O:FFJ:C1AL GO~NT BUSINESS
:I1'RONl THE E)COC: ~C:AGO DJ:$'J;'JiUCT OlP'FYCIC LEGAL n:cvJ:SJ:ON
D81:.:

S'U"anDQ~
~ 12:00263..~O l3

JeannoS~ba
'T'&"ial .A.~

.s- "rowl ;N'uznl;I~ ocr...,.•

(i.n.gl"udJPiI ~tta1. ~ver p~).

F'f,LQrU!I Nll.i::D.bll!rr: 312/353-7546

La T.dOf.,. x.z. .
312.f88tii..7492
IF' TH:Is}i:'.A.X T~.;JON x.s D:z::R.ECT.B.D TO MOBB ~ ONE ADP.KBSS:sl!. PLBASB
COPY' .AND oXS"'rl1Ul:lUTB TO ~ .A.DDlUiSeBBS~
CONFIDICNTIALrrY NOT'XCE ThJ_ ~'UDiOfII1:ion is fnte;a.ded 1b.E' 'th. aole UJI.. o:t't:he p~.) to ~hQII;Q 11 :i.s/I ~_1!Id. ISDd. may eo.n'l:a.in :b:lfbn:Da'h~ mat: p :privih~,pcl,. ClQP1id2lQtPtl .Bb..d ~IiiIEDP'c: ~ di..::loaU%"C. .t'\.Q.y d.i.!!I.~~ dJ&Cnp~on OT ClgpyiDs CII£~ ~m;U;ro by -.EL~II!I otlUn' thlIIID 0:.0 m:t_dad rwcIIlp"""","t or ~ PII!!DIOP ~oltll Jbr i g delivery i$ str1e:tly prOhib1ted. If'yov bav.:t ~1IF:lVed this conunynlga'tlom. I..D ~r. pl.avo eo~ 'thi. Ofti.t;::;1iI ~dJ.&U!d)l' ancl .lthc:r "'....tTQy 1f:a,e:! co;n-",,!'T'i ",.do:o or nrtu:I"D. it 'l:b 'theI abov. . .~•.

• •
EXHIBITM

• •
United States District Court, Northern District ofllLinois

Name or M.!iI~D.ed Jud&r. (lr M~l!lstr;ate Jullgli!

John W, DaTl'ah

SItClD£ 11lda' if O!'her Ilia. AutiJI1d ,)udp

CASE NUMBER

03 C 6851

DATE

December 8, 2004

CASE TITLE
MOTION;

EEOC 'I, Whitehall Hotel, Ltd" et al.
(11\ tho following bo'l 'a) ill4ic.te.lhc: paJtr r.lin~th", moUDD,Ii",t plaintiff', defcndanl. 31'dpanyp'aintiff,llfId (b)SClltcbricnythc naNr't.
oClhc motion beirla presented.)

DOCKET ENTRY:

(I) o

Filed motion of [ ~,. listing ill "Motion" box above,)

(2) CJ Rrir:fin support ofnlotion due ___'

(3) o

Answer brief to motion du~_ _• Reply to answer briefduc_,

(4) o (5) o

Ruling/Hcaring on _ _ ~ct for _ _ at _ _' $to\u. h"ring[hel<lkontillu,d to] [••1forlre·,,, for] on _ _ ••t for _ _ ot _ _'

o (6)

Pretrial conf.ronc.[h.ldlcontinucd 10) [.et forlr..,o\ for) on _ _ ,et fOI" _ _ It _ _ ,

(7)

o

Trial[sol for/re·.., for] on _ _ at _ ._.'

o (8)

[B.ncb/Jury trial]lH"ringJ beldlcontinucd to _ _ .t _ _'

(9) o

Thi. eao. i, di,mi95ee! [wilh/without] prejudice one! without c05ts[oyJagreementipursuanl to]
o FRC1'4(m) 0 Gen.ral Rule 21 0 FRCP4I(.)(I) 0 FRCP41(.)(2),

(10) • (Other docket entry] Defendants' Motion for a Protective Order is denied, See re'lClse side ofMillute Order.

• (II)

[For furlhor detail .ee order on the reverse side of the

No notices required, a4viac4 in Dpetl c(Jun.

No notices requited.

Notl~es mailed by iudgc'$ ~all Notified ccunli:c1 by lelephoTlc. Oocketing 10 mnil notices.

Mlil 1\0 450 fO(I1).

t('Iwtf'O(lm
deputy',
illi~ials

. '.1 " '1,

!

• •
:,1
ORDER
D~fendants seek a protective order relating to aRul. 30(b)(6) Notice of Deposition in which Plaintiff seek. to have Defendants identify an omecr, agent or entployee to testify about eleven items regarding, in part, the identity of entities who owned or operated either of the Defendants and the identity and explanation ofany and all relationships between and among the Defendants andtheirparents, SUbsidiaries anu affiliates.
Defendants previously filed a Motion to Quash the same Notice of Deposition for which the Defendants now seek a protective order. Defendants' Motion to Quash was denied because the illfonnation sought by Plaintitrwas arguably relevant to the EEOC's elaim and appeared to be reasonably calculated to lead to the diScovery of admissible evidence. In essence, Defendants' present Motion for a Protective Ordor sc~ks to limit the deposition addressed in the Motion to Quash, making the same or similar arguments previQusly rejected by the Court. These arguments have been rejected by the Court.
Based on the above, Defendant,' Motion for a Protective Order is denied.

• •
EXHIBITN

.,.

•

•

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

Plaintiff,

) ) No. 03 C 6851

)

v.

) Judge John W. Darrah

) U.S. Magistrate Judge Ashman

WHITEHALL HOTEL, LTD. and

)

WHITEHALl. HOTEL RESTAURANT, INC. )

)

Defendants.

)

_ _ _ _ _ _ _ _ ._ _ _ _ _ _ _ _.....-1

TO: ALL PERSONS ON ATTACHED SERVICE LIST RE-NOTICE OF 30fb)(6) DEPOSITION

PLEASE TAKE NOTICE that, pursuant to Rule 3O(b)(6) orthe Federal Rules of Civil

Procedure, PiaintiffEqual Employment Opportunity Commission (the "EEOC") shall take the

deposition upon oral examination of Defendants Whitehall Hotel, Ltd. and Whitehall Hotel

Restaurant, Inc. ("Whitehall"), on Thursday, January 27, 2005 commencing at 9:30 a.m.,

before a certified court reporter, at the offjces ofEEOe. 500 W. Madison, Suite 2800, Chicago,

lllinois. At the scheduled time and place, Defendants shall present the officers(s), agent(s), or cmployee(s) who is (are) designated by Defendants to testify on its behalf and who haslhave

knowledge about the subject matters set forth below. Defendants shall identify prior to the

deposition such person or persons who will testifY about each subject. The deposition will

continue from day to day until completed. The instructions and definitions as sel forth in the

EEOC's ('irst Set of Interrogatories and Request for Production of Doeuments should be

followed in resp()l1SC to this Notice ofDcposition.

• •
Sublects of Deposition 1. Identity of the entity or entities who a) owned the restaurant in the Whitehall Hotel where Eric Oden worked in 2001; and b) operated the restaurant in the Whitehall Hotel where Eric Oden worked in 2001. 2. Identity of the entity or entities who a) owned the Whitehall Hotel in which Eric Oden worked in 2001; and b) operated the Whitehall Hotel in which Eric Oden worked in 2001. 3. Identity of and explanation of any and aU legal, contractual, and managerial relationships between or among the entities identified above. 4. Identity of and explanation of any and all relationships between and among Whitehall Hotel, Ltd. and its parent, subsidiary(ics), and affiliates. 5. Identity of and explanation of any and all relationships between and among Whitehall Hotel Restaurant Inc. and its parent, subsidiary(ies), and affiliates. 6. The number and identity of employees employed on each day of calendar years 2000 and 2001 by the entity who owned and operated the restaurant in the Whitehall Hotel where Eric Oden worked. 7. The number and identity of employees employed on each day of calendar years 2000 and 2001 by the entity who owned and operated the Whitehall Hotel where Eric Oden worked. 8. The number and identity of employees employed by the Whitehall Hotel Restaurant Inc. on each day of calendar years 2000 and 2001. 9. The number and identity of employees employed by the Whitehall Holel Ltd. on each day of calendar years 2000 and 2001.
2

. '

•

•

10. Identity of the entity that employed Danella WaJker at any lime during 2001. II. Identity of the entity that employed Thomas Belelieu at any time during 200 I.

Documepts to Be Produced Prior to Deposition

1. Payroll records from Whitehall Hotel Restaurant Inc. from 2000 and 2001.

2.
~ ..-"

. -....

Payroll records from Whitehall Hotel, Ltd. from 2000 and 2001.

/

( 3.)' Payroll records from 2000 and 2001 from the entity that owned and operated the

\..., ..;,-/ ~~

Whitehall Hotel where Eric Odcn worked.

4. Payroll records from 2000 and 2001 from the entity that owned and operated the

restaurant in the Whitehall Hotel where Eric Oden worked.

January 7. 2005

Respectfully submitted,

J e B. Szromba EQUAL EMPLOYM OPPORTUNITY COMMISSION 500 West Madison Street Suite 2800
Chicago, TIlinois 60661 (312)353-7546

3

• •
CERTIFICATE OF SERVICE
Jeanne B. Szromba, an attorney, hereby certifies that she caused a copy of the foregoing Re-Notice ofJO (b)(6) Deposition to be sent to counsel of record at the following addresses:
By Facsimile and U.S. Mail Susan Bogart. Law Offices of Susan Bogart 30 North LaSalle Street Suite 2900 Chicago, Illinois 60602
By U.S. Mail J. Joseph Little One East Wacker Dri.ve Suite 2222 Chicago, lllinois 60601
Dated: J~uaty 7, 2005

• •
EXHIBIT 0

----p-.--

!'lIgc 15
eet hotel, fyour
Inn?
was
you
when you rthe ?
luman
rage 16
lSI the one :s'/ .\ Westcm ,. Holiday those two 1ies were
? properties
etor of . corporate
rented in
'ages 13 to 16)

• DANELLA D. WALKER, NQVEMBIlR.OO4

Page 17

I

Q. Have your duties changed .inc. 20007

I this law.wt.

Page 19

2

A. No.

2 MS. SZROMBA: The Whitehatt Hotel is not the

3

Q. Who do you undorstaDd yOllr employer to

3 subje<.1 ofthe lowsuit?

4 be, what entily?

4 MS. BOGART; No.

5 A. The Whilehall HOlel.

5

M~. SZROMBA: So you are instructing her not

6 Q. Since you matted working al the hOLel

6 to answer on that basis'?

7 have yuu alway. considered yourself an employee of 7

MS. IlOGART: Right

K the Whitehall1-1otel?

8 BY MS. SlROMBA:

9

A. Y...

9 Q. Have you heard of It Whitehall Hotel

10 Q. Do you know ~ow many omployees the

10 employee named Ilric aden?

II Whitehall Hotel has approxiInately currently?

II

A. Ves.

12 A. Currently? 150.

12 Q. Who did he work fbr in 200 t?

13 Q. Do you know •.

13 A. Tho name -. I'm sorry.

14 A. The hotel.

14 Q. Who did Eric Qden work for i~ 200 I?

15

Q. The horel. Are you including employees

15

A. He worked for Bart Hosmer.

16 who work .t the other two hotel,'/

16 Q. What entity employed him in 200 I ?

17 A. No.

17 A. The ,.....urant.

18 Q. This is ju.1 in the building thats

1K Q. Is that Ihe nome ••

19 ,'lIiled tho Whitehall Butul?

20 A. Yes.

,

19 A. The Whitehall Hotel Restaurant.

20

Q. When you told IDe a little earlier that

21

Q. 150. Du you know approximately how many 21 approximately 140 people worked at the Whitehall

22 employee, worked there in 2000 .. I'm sorry - in

22 Hotel in 2001, are you including restaurnnt

23 2001?

23 employees?

24 A. I recall 140.

24 A. No.

1 Q. Again, we are talking j us! in Ihe

r"S~ 18
1

Page 20
Q. 111 200 I were you the ~uman resource'S

2 Whitehall Hotel il:lelf?

2 director for the Whitehall Hotel Restaurant'/

3 A. Ye., yos.

3 A. Yes.

4 Q. Do you know approximately how many

4 Q. And also for the Whiteh.1I Hotel?

5 .'fiployees worked at the Bost W.'fitem Grant Park in 5 A. Yes.

6 200I?

6 Q. For any othor entities?

7 MS. BOGARr: I am going 10 object on relevance 7

A. The ones named before.

8 grounds.. "i'here is no reason .• I'll instruct her

8 Q. Tbose other two hoM.?

9 not to answer. This is the subject ofa to--be 10 motion for a protective order.

9 A. Yes.
10 Q. SO tho•• three hOlels plu, the Whitehail

II MS. SZROMBA: You are instructing her not to It Hotel Restaurant; is that correct?

12 answer?

I

12

13 MS. BOGART: Yeah, any question. beyo"d what 13

A. Yes. Q. And any other entities for which yOIl

14 you have 3:Jked right now. Uls an the SUbject of

14 were tbe human resources director in 200 I?

15 your Rule 30(bX6). It's (lOt relevant 10 Ihe

15 A. No.

16 pre!ilent suit.

16

(WHEREUPON, discus.i,m wos had

17 DY MS. SlROM1\A:

17

off the record between the wilness

18 Q. In 2001 yOlllTlent\oned about 140 worked 18

and Ms. Bogart "utside the

19 III the Whitehall, the Whitehall Hotel. Whll!

19

hearing of other counsel and the

20 departments did they work in? What were the

20

court reporter.)

21 different depanmentli in the hutel in 2001?

21 BY MS. SZROMBA:

22 MS. BOGART: I am also going to instruct her 22 Q. In 200 I as n human resources director II!

23 not to answer as this entity is not the subject of

23 the Whitehall how many diff.rent employees did you

24 thi, lawsuit. Th••ubj""t of your 30(b)(6), but not 24 monage or, you know, control the HR functions for

ESQUJRll DEPOSITION SERVICES, LLC· CHICAGO 3J2.782.8087 800.708.8081 FAX,312.704.4950

5 (p"¥os 17 to 20)

tNEl.l.A D. WALKER, NOVIlMBER4,20'

I tho.e employ"",,?

PII¥t: 2J
I MS. SZROMBA: On these que.uon, at this

2 MS. ROGART: 1lUll going to objecl. She can

2 deposition?

3 answer insofar as the reStaurant is concenled.

3

MS. BOGART: Of COli"'. It', all related to

4 MS. SZROMBA: I am asking about her job as the 4 the JO(b)(6) deposition.

5 llR director, how many L'IIIploy••, was she involv<XI 5 MS. SZROMBA: All right. That', YOllr

6 with. Thi. is perfoc11y legitimate in a rael

G position_' underPit8nd. BL"Cau~c if you are not

7 deposition for her responsibilitie!!_

7 successful, we are ioing to have. to bring Ms. Walker

8 MS. BOGART; It', irrelevanl. It h.. nothing

8 back as a fact witness to answer thesli: questions.

9 to do with thi~ lawsuit..

9 MS. BOGART: Well, I guess w. will.

10 MS. SZROMBA: Where she wenllo high ,ehool 10 MS. SZROMBA: Okay.

I I arguably doe,,"~ either.

II MS. BOGART: 1 have no objection to .sking

12

MS. llOOART: Yes, it does. It has to do with

12 qllestions related to Eric Oden.

13 backb'1'Ound infonnation.

13 MS. SlROMBA: All ormy questions are related

14 MS. SZROMIlA: As tilT as how many people she 14 to this lawsuit. 1know YOll have a difference of

15 had to manage their HR functions for is what her job 15 opinion on that.

!6 is .t the Whilehall and how ii'S chlll1goo.

16 MS. BOGART: 1do. The Whitehall Holel has

17 MS. BOGART: She has identified the number of 17 nothing to do with this witness.

18 employees. She h.., identified whO! her joh duti.s

18 MS. SZROMBA: But YOll don't in,truel B witness

19 and n:sponsibil ities ate. You can ask her those

19 n~ to answer because of your difference of opinion

20 questions.

20 on the breodth ofthe ",Ievont··

21

But the only thing thar, relevant for

2! MS. BOGART: Iwld you I hove a problem with

22 dlis depolSition is Whitehall Hotel Restaurant, Inc.

22 the scope oflhe 30(b)(6) ··this i. 30(b)(6)

23 and the other entity that's named in the lawsuit and 23 material ~- and that we were going 1.0 file a

24 Brie Oden.

24 protective order. And that's noticed for the 9th,

Poge22

I

MS. SZROMlJA: Su,,,", 1 mea", I know your

I not fOT today.

'''''' 24

2 position.

2

And so, you know, irwe are going to go

3

MS. BOGART: You have gOI. 30(b)(6) notice 3 forward on the 9th, these qne!<Otions can h~ ask.ed on

4 which deals with .11 these olh", i,.ues.

4 the 9th. I think thaI that's -- the 30(b)(6) notice

5 MS. SZROMBA: No. It only deal' with number 5 is inappropriate at thi,juncture. And I have said

G of employ..". Rut the problem I am having is

6 that to the judge, and he said sit down and talk

7 your ••

7 about it.

8

MS. BOGART: It h.., got 12, 15 or 20 different 8

So if we can't resolve it, thenI will

9 entities, So there i~ no reason Wbe answering

9 be filing a protective ordc...

10 these questions because it will come u.p jn the

10 MS. SZROMBA: Okay.

11 30(b)(6).

II BY MS. SZROMBA:

12 MS. SZROMBA: If you are in'tructing the

12 Q. When you staMed working at the

13 witness not III answer questions because they are not 13 Whitehall Hotel, Ms. Walker, did you receive any

14 relevant, there is no basis in the fedeml nIles for

14 policies, employment policies, for the hotel?

15 ~aying you don't have to answer any que!<tiion thllt's 15

A. Yes.

16 nol relevonl.

16 Q. When did you first receive policies

17

MS. BOGART: I believe that ifs harassment.

17 relaling to Whitehall Hotel?

18 I believe it's a fishing expedition. I believe thar

18 A. 1994,July.

19 there .s no basis fur the EEOC to be aliking the..o;;e

19 Q. Was that the month you started at the

20 questions.

20 hotel?

21

MS. SZROMllA: So will you file" protective 21

A. V••.

22 "rder?

22

Q. Do you recall whL~her Ihe policies you

23

MS. BOGART: 1objed ond I am going to file a 23 received in 1994 included a policy relating to the

24 protective order.

24 American, with Dis.bilitie, Acl?

IlSQUtRE DEPOSmON SERVICES, LLC - CHICAGO 312.782.8087 800.708.8087 FAX: 312.704.4950

6 (Pages 21 to 24)

• •
EXIDBITP

• •

Memo: 30 (b)(6) DepositioD of DaDella Walker

Sublects of Deposition
1. Identity of the entity or entities who a) owned the restaurant in the Whitehall Hotel where Eric Oden worked in 2001; and b) operaled the rest.urant in the Whitehall Holel where Eric Oden worked in 2001.
(A) Whit.hall Hotel Restaunmt owned by Whitehall Hotel Restaurant, Inc. which was employer of Erk: Oden
(B) Whitehall Hotel Restauraut operated by Whitehall Hotel Restaurant, Ine. whl.h was employer of Erie Oden

2.

Identity of the entity or entities who a) owned the Whitehall Hotel in which Eric Oden

worked in 2001; and b) operated tho Whitehall Hotel in which Eric Oden worked in 2001.

(A) Whitehall Hotel owned by Whitehall Hotel, LLC; Eric Oden wa. not employed by Whitehalillotel, LLC, Dor did Eric Ode. work In the Whitehall Hotel

(B) Whitehall Hotel operated by Whitehall Hotel, LLC; Eric Oden waS not employed by Whitehall Hotel, LLC, nor did Eric Oden work in the Whitehall Hotel

3.

Identity of Wld explanation or any and all legal, contractual, and managerial relationships

between or among the entities identified above.

Whitehallllotel Restaurant, Ine. owns and operates the Whitehall Hotel Restaurantlocat.d in
the first floor of the 5 story Putn.m Building, localed adjacent to the II slory Whitehall Hotel building. Whiteball Hotel Restaurant, Inc. I...... space in the Putnam Building from Whitehall Hotel, I,Le, tbe owner o£the real property.

There are minimal maolgerlal rel.llon.hlps between several Whitehall Hotel senior management staff and the restaurant staff.

There arc no cootracls, olher than the lease, between Whitehall Hotel, LLC aod Whitehall Hotel Restaurant, Ine. There are no otber legal relationships between Whitehall Hotel
Restaurant, Inc. and Whitehall Hotel, LLC.

4.

Identity of and explanation of any and all relationships between and among Whitehall Hotel,

Ltd. and itS parent, subsidiary(ies), and affiliates.

Whitehallllotel, Ltd. is owned by Individuals and ha. no parent entity nor any subsidillircs.

Whitehallllotel, Ltd. affiliates are Whitehall Holel Restauraut, lnc. and Whitehallllotel, LLC Whitchallllote' Restaurant, Inc. i. directly 100% owoed by Sn Yen aod ben.ficially owned by her spou.e Bert Yen. Whitehall Hotel, Ltd. I. owned directly 100% by Su Yen and Bert Yen. Wbiteball Hotel, Ltd. Is the corporate manager of Whitehall Hotel, LLC

• • . - - - - - - - - - - - - - - - - - - - - - - - - - - ---_....__.. -

5.

Identity of ond explanation of any and all relationships between and among Whitehall Hotel

Re.qtaurant Inc. and its parent, subsidiary(ies), and affiliates.

Whitehall Hot.1 Restaurant, Inc. is owned an individual and has no parent entity nor any snbsidiaircs.

Whitehall Hotel Restaurant, In•.•tfiliates are Whitehall Hotel Restanrant, Inc_ and Whitehall
Hotel, LLC Wbitehall Hotel Restaurant, Inc. I. directly 100% owned by Su Yen and benefidally owned by her .pouse Bert Yen. Whiteball Hotel, Ltd. Is owned directly 100% by Su Yen and Bert Yen. Whitehall Hotel, Ltd. i. the corporate manager of Whitehall Hotel, LLC

6.

The number and identity of employees employed on each day ofcalendar years 2000 and

2001 by the entity who owned and operated the restaurant in the Whitehall Hotel where Eric Oden worked.

The owner of Whiteball Hotel Restaurant, Inc. Is an individual and has no employees.

The restaurant was owned and operated by Whitehall 80tel Restaurant, Inc., which WI. tbe employer of Eric Oden. The employee information regarding Wbiteball Hotel Restaurant, Inc. is contained in the documentory responses to discovery previously provided in this case.

7.

The n\l!llber and identity of employees eroployed on each day of calendar year. 2000 and·

2001 by tile entity who owned and operated the Whiteball Hotel where Eric Oden worked.

Eric Oden was not employed by the entity operating the Wbiteball Hotel.

The empJoyeelnformadon regarding the Whitehall Hotel is contained In the documeutory responses to discovery previously provided In this case.

8.

The number and identity of employees employed by the Whitehall IIotel R••taunwt Inc. on

each clay of calendar years 2000 and 2001.

The employee information regarding Wbitehall Hotel Restaurant, Inc. i. contained in the documentory respon... to discovery previously provided in this case.

9.

The nwnber and identity of employee$ employed by the Whitehall Hotel Ltd. on each day of

calendar years 2000 and 2001.

Whlt.hallllotel, Ltd. ha. no employees.

10. Identity ofthe enlily that employed Donella Walker at any time during 2001.
Whiteball Hotel, LLC
i
II. Identity of the entity that employed Thoonas Belelieu at any time during 2001. Wbitehall Hotel, LLC

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERNDMSION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
WHITEHALL HOTEL, LTD.; WHITEHALL RESTAURANT, INC.; and WHITEHALL HOTEL, LLC,
Defendants.

)

)

)

)

)

No. 03 C 6851

)

)

Judge John W. Darrah

)

)

)

)

)

MEMORANDUM OPINION AND ORDER

Plaintiff, the Equal Employment Opportunity Commission, filed suit against Defendants,

Whitehall Hotel, Ltd.; Whitehall Restaurant, Inc.; and Whitehall Hotel, LLC, alleging violation of

the American with Disabilities Act. The EEOC's charges stem from the treatment of one of

Defendants' previous employees, Eric Oden. The EEOC also alleges that Defendants engaged in

a pattern or practice of soliciting certain information from its applicants in violation of the ADA.

Presently before the Court is Defendants' Motion for Summary Judgment.

BACKGROUND

The Whitehall Hotel Restaurant, Inc. employed more than fifteen employees during each of

the first twenty calendar weeks of200l. (Plaint.'s 56. I(b)(3) Statement '\II). In March 2001, Oden

applied for and was hired as a cook at the Whitehall Hotel. (Id., '\12). The job duties of the pantry

cook position include: the preparation for salads, cold appetizers, desserts; partially working with

cafeteria food; and partially setting up special events. (rd., '\13).

In March 2001, Whitehall Hotel's employment application sought the following pertinent information:
Can you perform job related functions without () with () reasonable accommodations? Please describe what reasonable accommodations are needed, if any: (Def. 's 56. I(a)(3) Statement ~ 7). In his employment application, Oden did not check either box in response to the first question and indicated "I am learning disabled adult" to the second inquiry. (Plaint. 's 56.I(a)(3) Statement ~ 5). Oden was interviewed by three people when he applied for a cook position with Whitehall: Danella Walker, Thomas Belelieu, and Bart Hosmer. (Id., ~ 6). Walker was aware ofOden's disability and considered Oden a learning disabled individual. (Id., ~ 7). During his interview, Oden advised Whitehall that as an accommodation he would like to be able to take notes at his work station and keep the notes at his work station. (Id., ~ 19). When he began his employment, Oden reported to Executive Chef, Bart Hosmer. (Plaint. 's 56.1 (b)(3) Statement ~ 20). In late April 2001, Walker, of Human Resources, and Janine Falvo, the Head Chef, wanted to meet with Oden to discuss performance issues with Oden's work; Oden refused to meet with Walker and Falvo. (Def. 's 56.1(a)(3) Statement 11 16). On April 25, Falvo complained to Oden about his work performance. (Plaint. 's 56.1(a)(3) Statement 11 10). Falvo also had discussions with Walker about terminating Oden's employment because of his performance issues during this time frame. (Id., ~~ 23-24). That same month, Oden's mother wrote a letter to Belelieu wanting to address the performance-related issues raised with Oden on April 25, requesting a conference to discuss Oden's employment at Whitehall. (Id.,11 11). During this same time frame, Oden's mother
2

contacted Walker to discuss aden's work at WhitelI*n. (Id., ~ 12). aden's mother wrote additional letters to Walker concerning aden's work at Whitlehall in May, July, and August 2001.
At some point between April and September 2001, Joseph Rosetti replaced Hosmer as the Executive Chef. (Def. 's 56.1 (a)(3) Statement, 11; Plaint. 's 56.1(b)(3) Statement 21). After his first meeting with aden, Rosetti thought that aden lacked knowledge of the products in the kitchen; lacked knowledge ofthe dishes he was preparing; lacked knowledge ofthe recipes he was preparing;
and was inconsistent in the way that he worked, in his appearance, and in the way in which he
worked with others. Rosetti had concerns about Oden's performance because Rosetti spent more time with aden than any other employee. Rosetti wrote aden up for a performance-related issue and for sleeping on the job. (Def. 's 56. I(a)(3) Statement, 12). aden acknowledges that he worked slower than others and that on occasion he required people to repeat instructions. (Plaint. 's 56.I(b)(3) Statement' \8).
an April 29, 200 I, following conversations with aden's mother and in an attempt to address aden's performance issues, Whitehall changed aden's working hours, reduced his workload, and retained him for basic cooking skills. (Def.'s 56.1(a)(3) Statement, 21; Plaint.'s 56.1(b)(3) Statement, 27). aden testified that the accommodation for which he asked and was not provided was more patience. (Def.'s 56.1(a)(3) Statement, 20).
As a result of slow business conditions, including slow business conditions after the September 11,200 I terrorist attack, aden's hours were reduced. (Def.'s 56.1 (a)(3) Statement, 17).
3

Sometime after the reduction in his hours, Oden stopped calling in for work and did not return to Whitehall. (Id., '\118). Whitehall made at least one attempt to contact Oden to notify him that he was placed back on the schedule after his last day in September 2001. (Plaint.'s 56.l(b)(3) Statement '\117).
In November 200 I, Whitehall changed its employment application, removing the abovequoted language regarding accommodations. (Def. 's 56.1 (a)(3) Statement '\19).
ANALYSIS Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact." Fed R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986) (Celotex). All of the evidence and the reasonable inferences that may be drawn from the evidence are viewed in the light most favorable to the nonmovant. Miller v. American Family Mutual Ins., 203 F.3d 997,1003 (7th Cir. 2000). Summaryjudgment may be granted when no "reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (Anderson). However, a party cannot defeat summary judgment by relying on
unsubstantiated facts. See Greer v. Board 0/Educ. a/the City a/Chicago, 267 F.3d 723,729 (7th
Cir. 2001) (Greer). Defendants argue that Plaintiffs claim for injunctive reliefbased on Whitehall's employment
application should be denied because the application was changed in November 200 I and the alleged improper language was removed.
To obtain broad injunctive relief to enjoin the future use of a discriminatory practice, the plaintiff must establish that the employer is engaged in a discriminatory practice and/or that the
4

employer discriminated against an employee and the employer failed to prove that the violation is not likely to recur. See EEOCv. North Gibson Sch. Corp., 266 F.3d 607, 621 (7th Cir. 2001) (North Gibson); EEOC v. Harris Chernin, Inc., 10 F.3d 1286,1292 (7th Cir. 1993).
Here, the EEOC alleges that the application completed by Oden in 2001 violated the ADA by asking about any disabilities. Defendants dispute that the 200 I application violated the ADA. However, the Court need not reach the merits of that argument. The 2001 application was revised in November 200 I, and the revised application no longer contains the objected language. Furthermore, Defendants have produced the revised application with the November 2001 revision date; and the Defendants' use ofthe application without the alleged discriminatory language has not been rebutted. Accordingly, the EEOC's claim for injunctive relief fails. See North Gibson, 266 F.3d at 621 (upholding dismissal of EEOC's claim for injunctive relief because the EEOC failed to identify discriminatory practice currently in use nor that it had a reasonable expectation that a discriminatory practice would be adopted in the future).
Defendants next argue that the EEOC has failed to establish a prima facie case of discrimination.
The ADA prohibits discrimination against a qualified individual with a disability "because of the disability of such individual in regard to job application procedures, the hiring, ... job training, and other terms and conditions, and privileges of employment." 42 U.S.C. § 12112(a). A plaintiffmust first establish the threshold requirement that he has a disability as defined by the ADA. See Hoffman v. Caterpillar, Inc., 256 F.3d 568,572 (7th Cir. 200 I) (Hoffman). Disability is defined as "(A) a physical or mental impairment that substantially limits one or more ofthe major life
5

activities of such individual; (B) a record of such impainnent; or (C) being or regarded as having such an impainnent. 42 U.S.C. § 12102(2). Here, Defendants regarded Oden as being disabled.
In addition to establishing a disability as defined in the ADA, a plaintiff must also demonstrate that he is qualified for the position in question. A plaintiff is a qualified individual if:
(I) he satisfies the prerequisites for the position, i.e., he has the proper training and experience; and
(2) he can perfonn the essential functions of the position with or without reasonable accommodations. See Hoffman, 568 F.3d at 572; 29 C.F.R. app. § 1630.2(m).
Defendants contend that Oden was unable to perfonn the essential functions of his position ofcook with or without reasonable accommodations. Oden concedes that he had perfonnance issues while employed as a cook with Defendants. Oden's supervisor, Rosetti, believed that Oden lacked the appropriate knowledge for his position and that Oden's work was inconsistent. Falvo also believed that Oden was notperfonning as he should. Furthennore, Oden's difficulties in his position continued although he requested, and received, an accommodation to take notes at his work station and keep such notes at his work station.
Plaintiff contends that even if he had the difficulties testified to, he may have been able to perfonn the essential functions of his job with additional accommodations. Defendants' additional accommodations following their detennination that Oden was not able to perfonn his present position included changing Oden's hours, reducing his workload, and retaining him for basic cooking skills. The record is silent as to whether Oden was able to perfonn his new responsibilities. Furthennore, while Oden concedes that he refused to meet once with Defendants to discuss his perfonnance issues, Defendants also concede that Oden and his mother attempted to further discuss the issues; and there is no evidence that any further attempts were made to detennine what
6

accommodations may be put into place. Accordingly, a genuine issue of material fact exists as to whether Oden was able to perform the essential functions of his job with additional accommodations. See Bultemeyer v. Fort Wayne Community Schs., 100 F.3d 1281, 1284-85 (7th Cir. 1996) (Bultemeyer) (reversing grant of summary judgment after finding that genuine issue of material fact existed as to whether plaintiff could perform his essential job functions with a reasonable accommodation).
The ADA requires "an employer to make whatever accommodations are reasonably possible in the circumstances to perform the functions essential to his position." Miranda v. Wisconsin Power & Light Co., 91 F.3d lOll, 1017 (7th Cir. 1996). "It is the employer's prerogative to choose a reasonable accommodation; an employer is not required to provide the particular accommodation that an employee requests." Jay v. Internet Wagner. Inc., 233 F.3d 1014, 1017 (7th Cir. 2000). However, the reasonableness ofan accommodation is best determined through a flexible, interactive process that involves both the employer and the employee. Furthermore, both parties must act in good faith. See Bultemeyer, 100 F.3d at 1285-87.
In the instant case, Defendants had provided Oden with the accommodations that he requested. After identifying that Oden still could not perform his job functions, Defendants "accommodated" Oden by changing his job functions and hours. However, genuine issues of material fact exist as to whether Defendants engaged in good faith in the interactive process in an attempt to determine the appropriate reasonable accommodation. The undisputed facts above demonstrate that Oden and his mother attempted to discuss Oden's performance problem, but questions remain as to whether Defendants actually engaged in an interactive process or simply
7

chose to change aden's hours and responsibilities, Accordingly, genuine issues ofmaterial fact exist

as to whether Defendants failed to accommodate Oden's disability.

Lastly, Defendants argue that back pay is not an appropriate remedy in the instant case.

However, Defendants did not raise this argument until their reply brief. Accordingly, the argument

is waived. See Carmichael Payment Center, Inc., 336 F.3d 636, 642 (7th Cir. 2003).

For the reasons stated above, Defendants' Motion for Summary Judgment is granted in

part and denied in part. Summary Judgment is granted as to Plaintiffs claim for injunctive relief

and denied as to the remaining claim.

Q1uiL (

\. JOrnJ
~d

W. DARRAH States District

Judge

8

 
 · '."'

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

WHITEHALL HOTEL LTD.,

)

WHITEHALL HOTEL RESTAURANT, INC., and)

WHITEHALL HOTEL LLC.

)

)

Defendants.

)

Case No. 03 C 6851 Judge John W. Darrah

AGREED ORDER

This Agreed Order is agreed to by Plaintiff United States Equal Employment Opportunity

Commission ("EEOC"), and Defendants Whitehall Hotel, Ltd., Whitehall Hotel Restaurant, Inc.,

and Whitehall Hotel, LLC (collectively "Whitehall") and is hereby entered by this Court in final

resolution of this matter.

WHEREAS, EEOC filed its Complaint in this action alleging that Whitehall violated

Title I of the Americans with Disability Act of 1990 42 U.S.c. § 12101, et seq. and Title I of the

Civil Rights Act of 1991 ("the ADA"), as set forth in the Complaint;

WHEREAS, Whitehall denies the allegations of the EEOC's Complaint;

WHEREAS, EEOC and Whitehall have agreed to finally resolve this action through the

Court's entry of this Agreed Order; and

WHEREAS, the EEOC and Whitehall have agreed and stipulate and the Court finds as

follows:

A. The terms and provisions of this Agreed Order are adequate, fair, reasonable,

equitable, and just, and the rights of the parties, Eric Oden, and the public interest are adequately

protected hereby; B. This Agreed Order conforms with the Federal Rules of Civil Procedure and the
ADA and is not in derogation of the rights and privileges of any person; and C. Nothing in this Agreed Order should be construed as an admission by any party
regarding either liability or non-liability. NOW THEREFORE, THE COURT ORDERS AS FOLLOWS: OTHER EEOC ACTIONS BARRED I. After entry of this Agreed Order by the Court, EEOC shall not initiate any
litigation against Whitehall, or any of its subsidiaries, affiliates, units, or divisions, predicated upon or with respect to any claims which could have been brought under the determination made in EEOC Charge Number 210 Al 4962, and the complaints filed in this case, and any such litigation by EEOC shall be barred by this Agreed Order.
RELEASE 2. The executed release of Eric Oden is annexed to this Agreed Order as Exhibit A. In the event that Whitehall were not to provide monetary relief to Eric Oden in the amount and as provided by this Agreed Order, then the release executed shall be automatically deemed void without further act or deed by the Court or any person.
MONETARY RELIEF 3. Within 15 calendar days of the Court's entry of this Agreed Order, Whitehall shall provide $\5,000 (Fifteen Thousand Dollars) in monetary relief, in the aggregate, to Eric Oden. Within said 15 calendar days, Whitehall shall deliver or cause to be delivered to Eric Oden at his home address of \0848 South Parnell, Chicago, Illinois 60628, a check in the
2

- - - - - - ' " - , . , " " " ' ,. ._ - - -
amount of$15,000 (Fifteen Thousand Dol1ars), No deductions shal1 be made from this amount. Whitehall shall issue a Form 1099 for this amount. Contemporaneously with such delivery, Whitehall shal1 provide a copy of such check to EEOC.
TRAINING 4, Defendants agree to provide training on the requirements of the ADA as follows: Within three (3) months after entry of this Agreed Order, Whitehall shal1 provide this training to all managers who work in the Whitehall Hotel and/or Restaurant Within five (5) business days of the occurrence of the training, Whitehall agrees: (i) to provide to EEOC any and all copies of pamphlets, brochures, outlines or other written materials scheduled to be provided to the participants of the training sessions and identify the proposed trainer by providing his or her resume; and (ii) to certifY to EEOC in writing that every manager at Whitehall has received the training, DURATION OF AGREED ORDER AND RETENTION OF JURISDICTION 5, All provisions of this Agreed Order shall be in effect (and the Court will retain jurisdiction to enforce the Agreed Order) for a period of three (3) months from the date of entry of this Agreed Order.
MISCELLANEOUS PROVISIONS 6, Each party to this Agreed Order shal1 bcar its own expenses, costs and attorneys' fees, 7, The terms of this Agreed Order are and shall be binding for a period of three (3) months from the date of entry, upon the present and future representatives, agents, directors, officers, assigns and successors of Whitehall in their capacities as representatives, agents,
3

directors, officers of Whitehall, and not in their individual capacities. 8. When this Agreed Order requires the submission by Whitehall of notices or other
materials to the EEOC, they shall be mailed to: Attn: Jeanne Szromba, Trial Attorney, Equal Employment Opportunity Commission, Chicago District Office, 500 West Madison Street, Suite 2800, Chicago, Illinois 60661. When this Agreed Order requires submission by the EEOC of materials to Whitehall, they shall bemailedtoSusanBogart.30N.LaSalle.Suite2900.Chicago. Illinois 60602.
4

For the EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
1801 L Street, N.W. Washington, D.C. 20507
Eric Dreiband General Counsel
James Lee Deputy General Counsel
Gwendolyn Young Reams Associate General Counsel

For Whitehall Hotel:
Sus n Bogart, Esq. Law Offices of Susan ,ogart 30 North LaSalle Street Suite 2900 Chicago, IL 60602

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION 500 West Madison Street, Suite 2800 Chicago, II . ois.-9%61 (312 5i..P.i~

ional Attorney
.~J2~,-
Diane I. Smason Supervisory Trial Attorney

The Honorable John W. Darrah United States District Judge

sAarojn D~eC~a·mPc"~ .;;;?
Trial Attorney
DATE: _?'+/_J.+-I....",~J,=_ -/ __
5

EXHIBIT A
RELEASE AGREEMENT
In consideration for $15,000 paid to Eric Oden by Whitehall Hotel, Ltd., Whitehall Hotel Restaurant, Inc., and Whitehall Hotel, LLC (collectively, "Whitehall"), in connection with the resolution of EEOC v. Whitehall Hotel, Ltd., Whitehall Hotel Restaurant, Inc., and Whitehall Hotel, LLC, No. 03 C 6851 (N.D.lll.), we, Eric Oden and Dr. Jean Oden, waive our right to recover for any claims of disability discrimination under Title I of the Americans with Disabilities Act of 1990 (the "ADA"), 42 U.S.C. §121 01 et ~., that we had against Whitehall prior to the date of this release and that were included in the claims alleged in EEOC's complaint in EEOC v. Whitehall Hotel, Ltd., Whitehall Hotel Restaurant, Inc., and Whitehall Hotel, LLC, No. 03 C 6851.

a-. 'YJl5'!- ,i/~ AOtJS-
Date'

Eric Oden

That I, I':ric Odcn 01' IOg'IS South PHinclI Avellue o('thc City o(,Chicago, County u('Cook, Statc llr IIlinllis, has 11I,lllc, clliistituted and appoinled, and Ill' TIIESE PRESENTS do lIIakc, cOllstitute alld appoillt Jallles& Jcallt),(lt.~II, 108'18 South Parllell, of the CilY urChicagu, Cuunty oreuok alld Stalc or Jllilluis as Illy lluc sullicicIIl alld lawltli alllllllc),s or rcpl csclIlativcs ill lacllo ael, lIIallage alld cllllducl all Illy albir, lcialive lu (I) plUcurillg and coonlillaling applUpl iale services flOIll any Iucal, statc or l'edcral enlity dcsignalcd by law to provide service lu disabled cilizcns al\(I "'rthatl'ulpuse includes thc aUlilolity tu inspect, sccule copics orcducationalreculds, IIIcdical rCCOI ds, ur uther Idated IcCOlds; or (2) to intcract wilh any ClllpluYIIICllt clllity, publk, privatc 01 IIUII-Illl-PI olit tll illspcct or PIOCUI C copies of Illy cillpluynlclltl ccords, as wcll as, assist ill detcllnining apPlopriatc acelllllllllllialiolls whieil include the righltu have a rcprcscntalivc orlllY chuicc illcluded ill \Vol k colll'ercllccs which lIIost likely could illcrcasc anxictics which illlpacl negatively UpOIl 111)' all'ective disability ami prcvcllts IIIC Ii 0111 litilly par ticipalillg ill the c()III'ercllcc, 'Illd (3) with allY clltity busincss, public, Plivate, lIull-llll-I'IOlit, lcdclal, statc llIlucal agcllcy negotiatc disnilllination relicl; initiate and cngagc illprc-litigatiull alld/uriitigaliull PIOCCSSCS ill Illy "'"Ill', plal'c alld stcad alld UIlIllY \JehaJl; tu tlo allli exccute allY or allnccessary acts, <lceds alldthillgs 'IS Itlllv alld ill cver), respel'! as I IIlight 01 cliuld d" IYCle I l'ers(lll<llIy plesellt 01 capable
or duillg
Alld, I hercby dedare lhat any aclor thing done hereailcr by Illy said aUlllncys shall be binding on llIysdl; legal and pClsollalrcpreselllalive and assign. This PUWER OF ATTORNEY in cases of llisabilily, illClllllpclclicc or inabilily to aCl shalillul be allcctell alld I hel cby lIonlinate ano appuint Illy hereill lIarned allulneys as Illy legal guardians allli relcase lhell! [h)\11 [lusting bund as such.
GI~f~=11)1;~~~' CL/.L"'C)~

{ State ul' Illinois coulllv"l'eook, I, :>(~'}) '/JI/;"t((c!~:. a Notary Public in alld lesiding ill :;ai<l cuunly, inlhe slalc

nllllcsaill, IJU IIEltEl3Y CERTIFY that h~,,_~~Lic_QlLcl! is pcrsonally knowlI ~'be the sarlle

[,ClS"" \\I,ose lIallle hc subscribed to the IlJreguing ilistrulllclIl arid acklluwledgclI Lilal he cXCCUlC'L

the salllc Illl' the pUlp"se t.hercin
alld ollicial scalthis _,_(.,Jl~~)ol'

lC~I~P"2((:I"I"C--l-.1-.---In'

WITNL'SWS·pf ':ftEOI" yl;ciclIlltu AD, 20.<..2:1_ . / ' / ' .

sellllY

halld/'-'/,.-

'~~~f~~i/1;///;;kC~:'-=//

'.

OFFICIAL SEAL
FRED TRIMUEL
NOTARY PUBLIC. sU\J[ OF ILLINOIS MY CUMMISSION EXNnES:02/17/03
,,'\"'.,,-.

 
 Mil\uLe Order Forll\ (06197)

United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge

John W. Darrah

Sitting Judge if Other than Assigned Judge

CASE NUMBER

03C6851

DATE

8/30/2004

CASE TITLE
MOTION:

EEOC vs. Whitehall, et. al.
[In the followmg box (a) mdlcate the party filmg the motion, e.g., plamtlff, defendant, 3rd party plaintiff, and (b) state bneflythe nature of the motion being presented.]

DOCKET ENTRY:

( I) o

Filed motion of [ USe listing in "Motion" box above.]

(2) o

Brief in support of motion due ___ '

(3)

o

Answer brief to motion due_ _ _. Reply to answer brief due_ _ _.

(4) o

RulinglHearing on ___ set for ___ at ___.

(5) o

Status hearing[heldleontinued to] [set for/re-set for] on ___ set for ___ at ___.

(6) o

Pretrial conferenee[heldlcontinued to] [set forlre-set for] On ___ set for ___ at ___.

(7) o

Trial[set for/re-set for] on ___ at ___.

(8) o

[Bench/Jury trial] [Hearing] heldlcontinued to ___ at ___.

(9) o

This case is dismissed [with/without] prejudice and without costs[by/agreementlpursuant to]
o FRCP4(m) 0 Local Rule 41.1 0 FRCP41(a)(l) 0 FRCP4I(a)(2).

(10).

[Other docket entry] For the reasons stated in the attached memorandum opinion and order,

plaintiff's motion to compel is granted in part and denied in part. Defendants shall produce the materials,

consistent with the above rulings, within 21 days from the date ofthis order. Enter Memorandum Opinion

and Order.

• (11)

[For further detail see order attached to the original minute order.]

-
--;-
-

No notices required, advised in open court. No notices required. Notices mailed by judge's staff. Notified counsel by telephone. Docketing to mail notices. Mail AO 450 form. Copy to judge/magistrate judge.

I) ill lid Dc: Sn~ ~UDZ

courtroom

MF

deputy's

initials

.•. (1.\1 .'n-,il'll ,I
Dale/time received in central Clerk's Office

number ofnoLices
AUG 31 2004
dale doekeLed
\S
doekeLing depuly inilials
date mailed nOLiec
mailing <lepuly iniLials

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

lHJ~ff~~'i"~'"l

i4PiJ

ilt!....:' .': . ",'

: .

EQUAL EMPLOYMENT OPPORTUNITY

AUG 3 1 2004
)

COMMISSION,

)

)

Plaintiff,

)

)

No. 03 C 6851

v.

)

)

Judge Johu W. Darrah

WHITEHALL HOTEL, LTD. aud WHITEHALL )

RESTAURANT, INC.,

)

)

Defendants.

)

MEMORANDUM OPINION AND ORDER

Plaintiff, the Equal Employment Opportunity Commission, filed suit against Defendants,

Whitehall Hotel, Ltd. and Whitehall Restaurant, Inc., alleging violation of the American with

Disabilities Act. The EEOC's charges stem from the treatment of one of Defendants' previous

employees, Eric Oden. Presently before the Court is the EEOC's Motion to Compel.

The EEOC seeks to compel Defendants to fully respond to certain interrogatories and

document requests. Defendants contend that they have fully responded to the requests, and any

additional information sought is merely a fishing expedition by the EEOC.

"Parties may obtain discovery regarding any matter, not privileged, that is relevant to the

claim.... Relevant information need not be admissible at trial if the discovery appears to be

reasonably calculated to lead to the discovery of admissible evidence...." Fed. R. Civ. P. 26(b)(1).

The EEOC seeks information regarding Defendants' employment policies from

January 1, 2000 to the present. Defendants produced its employment policies in effect during the

time prior to Oden's hiring in 2001 and during his employment in 2001. The EEOC contends that

it is entitled to the employment polices prior to and after Oden's employment because such information is relevant to punitive damages. The EEOC fails to explain how the prior and post employment policies are relevant to punitive damages. Accordingly, this request is denied.
The EEOC also seeks all of the training records for the training Defendants provided their employees from January 1, 2000 to present relating to the ADA. Defendants contend that the information sought is not relevant to Oden's allegation that the Defendants failed to accommodate Oden. The training records arguably include information relevant to the EEOC's claim and appear to be reasonably calculated to lead to the discovery ofadmissible evidence. Accordingly, this request is granted.
The EEOC seeks information regarding complaints ofdisability discrimination filed against Defendants for the period of January 2000 to the present. Defendants responded to the request that during the time period Oden was employed by Defendants, it was not aware of any complaints of discrimination other than Oden's complaint for failure to accommodate. The EEOC contends that Defendants' response is inadequate because in its complaint, the EEOC alleges that Defendants engaged in a pattern and practice ofdiscrimination against disabled employees from January I, 1999 to the present. Defendants argue that the EEOC's pattern and practice allegation is not included in Oden's EEOC charge; therefore, the EEOC is precluded from pursuing such a claim.
Generally, a plaintiff cannot bring claims in a lawsuit that were not included in his EEOC charge. See Cheek v. Western & Southern Life Ins. Co., 31 F.3d 497,500 (7th Cir. 1994)(Cheek). However, the EEOC may allege in a complaint unlawful conduct that it has discovered during the
2
. ' , ' /

course of its investigation, provided there is a reasonable nexus between the initial charge and the subsequent allegations in the complaint. See EEOCv. WaIner & Assoc., 91 F.3d 963, 968 (7th Cir. 1996).
In his EEOC charge, Oden complained that Defendants failed to accommodate him for his disability and that he was discriminated against because ofhis disability. Based on its investigation, the EEOC has also alleged that Defendants had a pattern and practice of engaging in discrimination based on an individual's disability. Such allegations have a reasonable nexus between the original charge and the complaint. Accordingly, this request is granted.
The EEOC also seeks information of any requests for an accommodation based on a disability made by an employee or applicant for employment of Defendants from January 1, 2000 to the present. Defendants responded with information relating to Oden. Defendants objected to information outside of the time period Oden was employed by Defendants and for other persons. The request for other employees who sought an accommodation during Oden's employment is relevant to the claim and reasonably calculated to lead to the discovery of admissible evidence. Accordingly, the request is granted.
Lastly, the EEOC requests affidavits or statements by individuals with knowledge ofclaims or defenses. Defendants objected to the request, asserting that such information is protected by both the attorney-client and attorney-work privilege. Defendants did not provide a privilege log because it has no such documents to provide at this time. In light of the absence ofany such documents, the EEOC's request is denied. However, consistent with the Federal Rules of Civil Procedure, Defendants must supplement its disclosures and responses, including a privilege log if a privilege is asserted, if such documents become known to Defendants.
3

. (,

,

For the reasons stated above, Plaintiffs Motion to Compel is granted in part and denied in part. Defendants shall produce the materials, consistent with the above rulings, within 21 days from the date ofthis order.

nited States District Judge

4

 
 Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge

John W, Darrah

Sitting Judge if Other than Assigned Judge

CASE NUMBER

03 C 6851

DATE

12/13/2004

CASE TITLE
MOTION:

EEOC vs, Whitehall Hotel, Ltd" et, a1.
[In the following box (a) indicate the party filing the mohOn, e.g., plamhff, defendant, 3rd party plaintiff, and (b) state bneOy the nature of the motion being presented.]

DOCKET ENTRY:

(1) o

Filed motion of [ use listing in "Motion" box above,]

(2) o

Brief in support of motion due ___'

(3) o

Answer brief to motion due_ _ _. Reply to answer brief duc_ _ _,

(4) o

RulinglHearing on _ _ _ set for _ _ _ at _ _ _ '

(5) o

Status hearing[held/eontinued to] [set for/re-set for] on ___ set for ___ at ___'

(6) o

Pretrial confercnce[held/continued to] [set for/re-set for] on ___ sct for ___ at ___'

(7) o

Trial[set for/re-set for] on ___ at ___'

(8) o

[Bench/Jury trial] [Hearing] held/continued to ___ at ___'

(9) o

This case is dismissed [with/withollt] prejudice and without costs[by/agreement/pursuant to]
o FRCP4(m) 0 Local Rule 41.1 0 FRCP41(a)(I) 0 FRCP41(a)(2),

(10).

[Otller docket entry] For the reasons stated in the attached memorandum opinion and order,

defendants' motion to compel and for sanctions is granted in part and denied in part, Defendants' motion

to dismiss and for sanctions is denied, Plaintiff shall produce the materials, consistent with the above

rulings, within 21 days from the date of this order, Enter Memorandum Opinion and Order.

• (II)

further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

Notices mailed by judge's stafr.

l'\otilied cOllllsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom

MF

deputy's

initials

"-(.;J ',,', '.,'\

mailing deputy inilials

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DOCKETED

EQUAL EMPLOYMENT OPPORTUNITY

)

DEC 1 Ii 2004

COMMISSION,

)

)

Plaintiff,
v.

) )

No. 03 C 6851 DEC 7520114

)

)

Judge John W. Darrah

WHITEHALL HOTEL, LTD. and WHITEHALL

)

RESTAURANT, INC.,

)

)

Defendants.

)

MEMORANDUM OPINION AND ORDER

Plaintiff, the Equal Employment Opportunity Commission, filed suit against Defendants,

Whitehall Hotel, Ltd. and Whitehall Restaurant, Inc., alleging violation of the American with

Disabilities Act. The EEOC's charges stem from the treatment of one of Defendants' previous

employees, Eric Oden. Presently before the Court are Defendants' Motion to Compel and for

Sanctions and Motion to Dismiss and for Sanctions.

Motion to Compel and for Sanctions

Defendants seek to compel the EEOC to fully respond to certain interrogatories and

document requests.

"Parties may obtain discovery regarding any matter, not privileged, that is relevant to the

claim . . .. Relevant information need not be admissible at trial if the discovery appears to be

reasonably calculated to lead to the discovery ofadmissible evidence ...." Fed. R. Civ. P. 26(b)(1).

Defendants seek documents relating to Plaintiffs allegations in the Complaint and in

preparing the Complaint (Document Request Nos. I and 2). The EEOC objects to such production

on grounds ofattorney-client privilege and attorney work product privilege. The EEOC has not filed a privilege log as to the documents it believes are not discoverable pursuant to privilege. The EEOC is ordered to produce such privilege log within 21 days of this order.
Defendants seek documents pertaining to compensation and benefits received by Plaintiff (Request No.6). The EEOC objects, arguing that the request is overbroad, unduly burdensome, and an invasion of privacy. The EEOC also argues that the information sought is not relevant because it is not seeking backpay for Oden beyond the date of his removal from the work schedule at Defendant's hotel. The EEOC failed to indicate why the request is overbroad, unduly burdensome, or an invasion of Oden's right to privacy in light of the suit brought by Oden. Furthermore, the requested documents appear to be reasonably calculated to lead to the discovery of admissible evidence other than that relating to backpay. Accordingly, this request is granted.
Defendants seek documents relating to Defendants' interrogatory propounded on Plaintiff. The EEOC provided its administrative file in response to the request. Defendants argue that the EEOC should specify which documents in the file it relies upon as responsive to the request. The EEOC has sufficiently responded to the request. See Fed. R. Civ. 33(d). Accordingly, this request is denied.
Defendants seek information on any other persons who form the class identified in the Complaint (Interrogatory No.3). The EEOC objects, arguing that it need not disclose other individual class members because it will not be seeking monetary relieffor any such individuals and is only seeking injunctive reliefwith respect to this issue. The identity of other individuals that were allegedly discriminated against by Defendants in support of any injunctive relief are discoverable. Accordingly, this request is granted.
2

Defendants also seek clarification as to the EEOC's responses to Interrogatory Nos. II, 12, and 17, to which the EEOC responded by citing its administrative file. Unlike the above document request, citation to the administrative file fails to adequately answer the interrogatory, i.e., identification ofpractices constituting allegation of"unlawful employment practices" and obtaining information about other applicants before offering such individual's employment. Accordingly, the EEOC must provide a narrative and/or identify with specificity the documents responsive to each interrogatory.
Defendants seek information regarding Oden's current and previous employment and efforts to retain employment after Defendants' hotel (Interrogatory Nos. 4 and 8). The EEOC argues the interrogatories are overbroad, unduly burdensome, vague, and request irrelevant information. The requested information is reasonably calculated to lead to the discovery of admissible evidence. Accordingly, this request is granted.
Defendants seek information regarding monies received by Oden from any sources, including disability benefits (Interrogatory Nos. 9, 17, and 21). The EEOC argues that the requests seek information that is not relevant to a claim or defense. Defendants counter that such information is relevant to its defenses and is discoverable. Such information that is not protected from disclosure by statute (i.e., other EEOC charges protected by statute) is reasonably calculated to lead to the discovery of admissible evidence. Accordingly, this request is granted.
Defendants seek an itemization of damages sought by Oden. The EEOC responds that it is seeking up to the $100,000 cap in damages but fails to itemize such damages or indicate how such damages are calculated. The requested information is discoverable and the request is granted.
3

·
Defendant seeks the identification of Oden's disability or disabilities, a definition of such disabilities, and facts supporting the assertion that the Defendants' failed to accommodate Oden as to these disabilities (Interrogatory No. 13). The EEOC responded that the request seeks a legal conclusion and, without waiving such objection, cited to the EEOC's administrative file. In its response to the instant motion, the EEOC states that Oden suffers from a learning disability and intermittent depression. The EEOC has failed to adequately answer the interrogatory; accordingly, this request is granted.
In Interrogatory Nos. 14 and 15, the Defendants seek what "effects" occurred as a result of the Defendants' alleged discriminatory practices. In response, the EEOC objects that the interrogatory is "unclear" and cites to its administrative file. The EEOC has failed to adequately answer the interrogatory; accordingly, this request is granted.
Defendants' Interrogatory No. 16 seeks information supporting the EEOC's request for punitive damages. The EEOC responded that the Defendants refused to discuss accommodations, harassed and belittled Oden, reduced Oden's work schedule, and ultimately removed him from the work schedule. Defendants argue that the EEOC should supplement its answer because of facts learned at depositions. All parties are required to supplement discovery by Rule.
Lastly, while the title of Defendants' motion indicates that they are seeking sanctions, Defendants failed to demonstrate that sanctions should be assessed against the EEOC and failed to seek such relief in its motion. Accordingly, sanctions are not awarded.
Motion to Dismiss and for Sanctions Defendants also seek to have the case dismissed pursuant to Federal Rules ofCivil Procedure 37 and 45 for Oden's failure to appear for his deposition.
4

Federal Rule of Civil Procedure 37(b)(2) provides, in pertinent part:
If a party ... fails to obey an order to provide or permit discovery .. . the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
* * "
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof.
* * "
In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantiallyjustified or that other circumstances make an award of expenses unjust.
A Rule 37(b)(2) dismissal requires a showing by clear and convincing evidence of willfulness, bad
faith or fault on the part of the noncomplying party. See Maynard, 332 F.3d at 467-68.
Federal Rule of Civil Procedure 45 provides, in pertinent part, that a person who fails to
appear pursuant to subpoena maybe held in contempt of court. Fed. R. Civ. P. 45(e).
Defendants' motion fails for multiple reasons. First, sanctions, including dismissal, under
Rule 37(b)(2) may be ordered if a party fails to comply with a court order. Here, there has been no
court order that Oden testify at a deposition. Furthermore, the Defendants have failed to demonstrate
that Oden's failure to appear at two ofhis scheduled depositions was willful or in bad faith. Instead,
Defendants cite to scheduled depositions that Defendants cancelled and indicate that Oden did not
appear for such depositions. Such misleading statements border as sanctionable themselves. Lastly,
Oden's deposition has been completed; and Defendants fail to demonstrate any prejudice by the few-
days delay between the last scheduled deposition date and the actual deposition date.
5

For the reasons stated above, Defendants' Motion to Compel and for Sanctions is granted in part and denied in part. Defendants' Motion to Dismiss and for Sanctions is denied. Plaintiff shall produce the materials, consistent with the above rulings, within 21 days from the date of this order.
ited States District Judge
6

 
 CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

Page 1 of 14

CASREF, CLOSED, NOLAN, PROTO, REOPEN
United States District Court Northern District of Illinois - CM/ECF LIVE, Ver 3.0 (Chicago)
CIVIL DOCKET FOR CASE #: 1:03-cv-06851

EEOC v. Whitehall Htl Ltd, et al Assigned to: Hon. John W. Darrah Demand: $0 Cause: 42:12101 Americans with Disabilities Act

Date Filed: 09/29/2003 Date Terminated: 09/13/2005 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Gordon G. Waldron United States Equal Employment Opportunity Commission 500 West Madison Street Suite 2800 Chicago, IL 60661 (312) 353-7525 Fax: (312)35 -8555 Email: gordon.waldron@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron R. DeCamp Equal Employment Opportunity Commission 500 W. Madison Street 2800 Chicago, IL 60661 (312)353-7722 Email: aaron.decamp@eeoc.gov ATTORNEY TO BE NOTICED

Diane Ilene Smason United States Equal Employment Opportunity Commission 500 West Madison Street Suite 2800 Chicago, IL 60661 (312) 353-7568 Email: diane.smason@eeoc.gov ATTORNEY TO BE NOTICED

Gregory M. Gochanour United States Equal Employment Opportunity Commission 500 West Madison Street

https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?659416329029415-L_353_0-1

4/23/2007

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

Page 2 of 14

V. Defendant Whitehall Hotel, Ltd.
Defendant Whitehall Hotel Restaurant, Inc.

Suite 2800 Chicago, IL 60661 (312) 886-9124 Email: gregory.gochanour@eeoc.gov ATTORNEY TO BE NOTICED
Jeanne B. Szromba United States Equal Employment Opportunity Commission 500 West Madison Street Suite 2800 Chicago, IL 60661 (312) 353-7546 Email: jeanne.szromba@eeoc.gov ATTORNEY TO BE NOTICED
John C. Hendrickson United States Equal Employment Opportunity Commission 500 West Madison Street Suite 2800 Chicago, IL 60661 (312) 353-8551 Fax: (312) 353-8555 Email: john.hendrickson@eeoc.gov ATTORNEY TO BE NOTICED
represented by J Joseph Little Hamblet, Oremus & Little One East Wacker Drive Suite 2222 Chicago, IL 60601 (312) 644-5200 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Bogart Law Offices of Susan Bogart 30 North LaSalle Street Suite 2900 Chicago, IL 60602 (312) 263-0900 Email: sbogart514@aol.com ATTORNEY TO BE NOTICED
represented by J Joseph Little

https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?659416329029415-L_353_0-1

4/23/2007

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

Page 3 of 14

Defendant Whitehall Hotel LLC

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Bogart (See above for address) ATTORNEY TO BE NOTICED

Date Filed 09/29/2003
10/02/2003 11/14/2003 12/02/2003 12/02/2003 12/03/2003
12/08/2003
01/29/2004
01/29/2004 02/12/2004

#

Docket Text

1 COMPLAINT; jury demand - Civil cover sheet - Appearance(s) of John C. Hendrickson, Gregory M. Gochanour, Gordon G. Waldron as attorney (s) for plaintiff ( No summons(es) issued.) ( Documents: 1-1 through 1-3) (las) (Entered: 09/29/2003)

SCHEDULE set on 10/2/03 by Hon. John W. Darrah : Status hearing set for 12/10/03 at 9:00 a.m. Mailed notice (maf) (Entered: 10/02/2003)

2 WAIVER of service of summons as to defendant sent on 10/31/03 (las) (Entered: 11/17/2003)

3 MOTION by defendant to extend the time to answer or otherwise plead ; Notices (las) (Entered: 12/04/2003)

4 ATTORNEY APPEARANCE for defendant by J Joseph Little, Susan Bogart (las) (Entered: 12/04/2003)

5 MINUTE ORDER of 12/3/03 by Hon. John W. Darrah : Defendant's motion for an extension of time to answer or otherwise plead to the complaint is granted [3-1] to and including 1/29/03. Status hearing set for 12/10/03 is stricken and reset to 1/20/04 at 9:00 a.m. Mailed notice (las) (Entered: 12/04/2003)

6 MINUTE ORDER of 12/8/03 by Hon. John W. Darrah : The minute order of 12/3/03 is amended to reflect that the defendant has to and including 1/29/04 to answer or otherwise plead to the complaint. Status hearing set for 1/20/04 is stricken and reset to 1/29/04 at 9:30 a.m. Mailed notice (las) (Entered: 12/08/2003)

SCHEDULE set on 1/29/04 by Hon. John W. Darrah : Status hearing held. Pretrial order to be submitted on 2/27/05. Pretrial set for 3/3/05 at 11:30 a.m. Jury trial set for 3/28/05 at 10:00 a.m. Mailed notice (maf) (Entered: 01/29/2004)

7 ANSWER by defendant to plaintiff's complaint [1-1]; Notice (hp) (Entered: 02/02/2004)

8 MINUTE ORDER of 2/12/04 by Hon. John W. Darrah : Parties' Rule 26 (a)(1) disclosures to be made by 02/13/04. Fact discovery ordered closed

https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?659416329029415-L_353_0-1

4/23/2007

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

Page 4 of 14

04/19/2004 04/20/2004 04/27/2004
04/27/2004 05/05/2004 05/25/2004 05/27/2004 06/30/2004 07/23/2004 07/29/2004 08/04/2004 08/04/2004 08/09/2004

on 09/30/04. Plaintiff's expert reports are due by 10/15/04. Defendant's expert reports are due by 11/05/04. The plaintiff has until 04/15/04 to join additional parties and until 04/19/04 to amend its pleadings. Dispositive motions to be filed by 11/15/04. Plaintiff will prepare a proposed pretrial order by 02/15/04. Joint pretrial order to be filed by 02/27/05. Pretrial conference set for 03/03/05 at 11:30 a.m. Jury trial set for 03/28/05 at 10:00 a.m. (Entered Agreed Order). Mailed notice (ar) Modified on 02/17/2004 (Entered: 02/17/2004)
10 MOTION by plaintiff EEOC for leave to file first amended complaint and to file first amended complaint instanter ; Notice. (jmm) (Entered: 04/28/2004)
9 ATTORNEY APPEARANCE for plaintiff by Jeanne B. Szromba and Diane Ilene Smason. (jmm) (Entered: 04/21/2004)
11 MINUTE ORDER of 4/27/04 by Hon. John W. Darrah: Plaintiff's motion for leave to file first amended complaint and to file first amended complaint instanter, is granted [10-1]. Responsive pleadings to be filed by 5/25/04. Rule 26(a)(1) disclosures to be exchanged by 5/18/04. Status hearing set for 6/16/04 at 9:00 a.m. Mailed notice (jmm) (Entered: 04/28/2004)
12 FIRST AMENDED COMPLAINT [1-1] by plaintiff EEOC adding Whitehall Hotel Restaurant, Inc.; jury demand. (jmm) (Entered: 04/28/2004)
SCHEDULE set on 5/5/04 by Hon. John W. Darrah : Status hearing set for 6/16/04 is stricken and re-set to 6/30/04 at 9:00 a.m. Mailed notice (maf) (Entered: 05/05/2004)
13 ANSWER by defendants to amended complaint [12-1]; Notice (rmm) (Entered: 05/26/2004)
14 ATTORNEY APPEARANCE for defendants by Joseph Little and Susan Bogart (las) (Entered: 05/28/2004)
SCHEDULE set on 6/30/04 by Hon. John W. Darrah : Status hearing held . Mailed notice (maf) (Entered: 06/30/2004)
19 MOTION by defendant Whitehall Htl Ltd to compel (Attachment); Notice.. (lc) (Entered: 08/12/2004)
15 RESPONSE by plaintiff EEOC to defendants' motion to compel (Attachment). (vmj) (Entered: 07/30/2004)
20 MOTION by plaintiff to quash subpeona and for protective order (Attachment); Notice. (lc) (Entered: 08/12/2004)
21 MOTION by plaintiff to compel discovery responses (Attachments); Notice. (lc) (Entered: 08/12/2004)
16 REPLY by defendant in support of motion to compel (Attachment); Notice. (air) (Entered: 08/11/2004)

https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?659416329029415-L_353_0-1

4/23/2007

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

Page 5 of 14

08/09/2004 08/09/2004 08/09/2004 08/09/2004 08/10/2004
08/20/2004 08/30/2004
09/03/2004 09/14/2004 09/20/2004 09/20/2004 09/22/2004 09/24/2004 09/28/2004

17 MOTION by defendants to enforce subpoena directed to Hyatt (Attachment) with response; Notice. (air) (Entered: 08/11/2004)
17 RESPONSE by defendants to EEOC's motion to quash and for protective order with motion; Notice. (air) (Entered: 08/11/2004)
18 RESPONSE by defendants to to the EEOC's motion to compel, with opposition (Attachments); Notice. (gma) (Entered: 08/11/2004)
18 OPPOSITION by defendants to the EEOC's motion to compel, with response (Attachments); Notice. (gma) (Entered: 08/11/2004)
22 MINUTE ORDER of 8/10/04 by Hon. John W. Darrah : Plaintiff's motion to quash the subpeona [20-1] and for protective order [20-2] is denied in part and granted in part. Protective order to follow. Defendant's motion to enforce subpoena directed to Hyatt is granted [17-1]. Plaintiff's motion to compel discovery responses [21-1] is taken under advisement. Defendant's motion to compel is granted [19-1]. Mailed notice (lc) (Entered: 08/12/2004)
23 REPLY by plaintiff in support of its motion to compel discovery responses [21-1] (las) (Entered: 08/23/2004)
24 MINUTE ORDER of 8/30/04 by Hon. John W. Darrah : For the reasons stated in the attached memorandum opinion and order, plaintiff's motion to compel is granted in part and denied in part [21-1]. Defendants shall produce the materials, consistent with the above rulings, within 21 days from the date of this order. Entered Memorandum Opinion and Order. Mailed notice (las) (Entered: 08/31/2004)
25 MOTION by plaintiff EEOC to extend discovery cut-off date ; Notice. (jmp) (Entered: 09/15/2004)
26 MINUTE ORDER of 9/14/04 by Hon. John W. Darrah : Plaintiff's motion to extend discovery cut-off date to 11/15/04 is granted [25-1]. Mailed notice (jmp) (Entered: 09/15/2004)
27 MINUTE ORDER of 9/20/04 by Hon. John W. Darrah : Entered Stipulated Protective Order). Mailed notice (las) (Entered: 09/21/2004)
29 MOTION by defendants to quash EEOC's Rule 30(b)(6) subpoena (Attachments) (las) (Entered: 09/29/2004)
30 REVISED NOTICE by defendants of its motion to quash EEOC's Rule 30(b)(6) subpoena [29-1] (las) (Entered: 09/29/2004)
28 RESPONSE by plaintiff to defendants' motion to quash EEOC's Rule 30 (B)(6) Subpoena(Attachments) (las) (Entered: 09/27/2004)
31 MINUTE ORDER of 9/28/04 by Hon. John W. Darrah : Defendants' motion to quash EEOC's Rule 30(b)(6) subpoena [29-1] is entered and briefed as follows: response by 10/4/04, reply (if necessary), by 10/12/04. Status hearing set for 10/20/04 at 9:00 a.m. Mailed notice (las) (Entered: 09/29/2004)

https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?659416329029415-L_353_0-1

4/23/2007

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

Page 6 of 14

10/04/2004 10/12/2004
10/29/2004 11/01/2004 11/01/2004 11/04/2004
11/08/2004 11/08/2004 11/09/2004
11/10/2004 11/10/2004 11/15/2004 11/16/2004 11/19/2004

32 REPLY by defendant in support of their motion to quash EEOC's Rule 30 (b)(6) subpoena [29-1]; Notice (las) (Entered: 10/05/2004)
33 MINUTE ORDER of 10/12/04 by Hon. John W. Darrah : Defendants' motion to quash EEOC's Rule 30(b)(6) subpoena is denied [29-1]. Status hearing scheduled for 10/20/04 is stricken. (See reverse of minute order.) Mailed notice (las) (Entered: 10/13/2004)
34 MOTION by Whitehall Htl Ltd and Whitehall Htl Rest to dismiss and for sanctions (Attachments); Notice (las) (Entered: 11/05/2004)
35 MOTION by defendants for scheduling order ; Notice (las) (Entered: 11/05/2004)
36 MOTION by defendants to compel and for sanctions (Attachments); Notice (las) (Entered: 11/05/2004)
37 MINUTE ORDER of 11/4/04 by Hon. John W. Darrah : Defendant's motion to compel [36-1] and for sanctions [36-2] and defendant's motion for dismissal [34-1] and sanctions sanctions [34-2] is entered and briefed as follows: response by 11/12/04, reply by 11/19/04. Status hearing set for 12/2/04 at 9:00 a.m. Defendant's motion to set a scheduling order is granted [35-1]. Plaintiff's to file any expert reports by 11/3/04, defendant's expert reports by 12/21/04. Dispositive motions to be filed by 12/21/04. Response by 1/11/05, reply by 1/25/05. In court hearing set for 2/24/05 at 9:00 a.m. Mailed notice (las) (Entered: 11/05/2004)
38 REFERRAL ORDER of 11/8/04 The case is referred to the Hon. Nan R. Nolan from the Hon. John W. Darrah to conduct settlement conference. (For further details see order). Mailed notice (cem) (Entered: 11/09/2004)
41 MOTION by defendants for protective order (Attachments); Notice (rmm) (Entered: 11/17/2004)
SCHEDULE set on 11/9/04 by Hon. Nan R. Nolan : Settlement conference set for 12/10/04 at 9:30 a.m. Parties are reminded that Judge Nolan requires compliance with the enclosed standing order before conducting a settlement conference. Mailed notice (hmb) (Entered: 11/09/2004)
39 RESPONSE by plaintiff to defendants' motion to compel [36-1] and for sanctions [36-2] (vkd) (Entered: 11/16/2004)
40 RESPONSE by plaintiff to defendants' motion to dismiss [34-1] and for sanctions [34-2] (Exhibits). (vkd) (Entered: 11/16/2004)
43 Filed 11/15/04 plaintiff EEOC's Response to motion for protective order [41-1]. (Attachments). (gl) (Entered: 11/17/2004)
42 MINUTE ORDER of 11/16/04 by Hon. John W. Darrah : Defendant having presented its' motion for a protective order in open court, a ruling will be made by mail. Mailed notice (rmm) (Entered: 11/17/2004)
44 REPLY by defendants in support of motion to compel [36-1]; Notice.

https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?659416329029415-L_353_0-1

4/23/2007

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

Page 7 of 14

11/19/2004 11/23/2004 11/23/2004 11/24/2004 12/01/2004 12/02/2004
12/08/2004 12/13/2004
12/15/2004
12/21/2004 12/21/2004 12/21/2004 01/11/2005 01/11/2005

(gma) (Entered: 11/22/2004)
45 REPLY by defendants in support of motion to dismiss [34-1] (Attachments). (gma) (Entered: 11/22/2004)
47 SUPPLEMENT by plaintiff to its response to defendants' motion to dismiss and for sanctions [40-1]; Notice (las) (Entered: 11/30/2004)
49 MOTION by plaintiff to revise scheduling order ; Notice (las) (Entered: 12/03/2004)
46 REPLY by defendant in support of its motion for protective order [41-1]; Notice (las) (Entered: 11/29/2004)
48 OPPOSITION by defendant to plaintiff's motion to revise scheduling order; Notice (las) (Entered: 12/02/2004)
50 MINUTE ORDER of 12/2/04 by Hon. John W. Darrah : Plaintiff's motion to revise scheduling order is granted in part and denied in part [49-1]. Discovery is extended to 2/1/05. All other dates to stand. Mailed notice (las) (Entered: 12/03/2004)
51 MINUTE ORDER of 12/8/04 by Hon. John W. Darrah : Defendants' motion for protective order is denied [41-1]. (See reverse of minute order.) Mailed notice (rmm) (Entered: 12/09/2004)
52 MINUTE ORDER of 12/13/04 by Hon. John W. Darrah : For the reasons stated in the attached memorandum opinion and order, defendants' motion to compel [36-1] and for sanctions is granted in part and denied in part. [36-2] Defendants' motion to dismiss [34-1] and for sanctions [34-2] is denied. Plaintiff shall produce the materials, consistent with the above rulings, within 21 days from the date of this order. Entered Memorandum Opinion and Order. Mailed notice (eav) (Entered: 12/15/2004)
53 MINUTE ORDER of 12/15/04 by Hon. Nan R. Nolan : Pursuant to settlement conference held on 12/10/04, parties report that they are unable to reach a settlement. All matters related to the referral of this action having been concluded, the case is returned to the assigned judge. Mailed notice (las) (Entered: 12/16/2004)
54 MOTION by defendants for summary judgment ; Memorandum in support ; Notice (las) (Entered: 12/22/2004)
55 LOCAL RULE 56.1 Statement of undisputed facts in support of summary judgment by defendants (las) (Entered: 12/22/2004)
56 EXHIBITS by defendants in support of their motion for summary judgment [54-1] (las) (Entered: 12/22/2004)
57 RESPONSE by plaintiff to defendants' motion for summary judgment [54-1]; Notice (las) (Entered: 01/12/2005)
58 RULE 56.1(b) response to defendants' rule 56.1(a) Statement of undisputed facts in support of summary judgment by plaintiff (las) (Entered: 01/12/2005)

https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?659416329029415-L_353_0-1

4/23/2007

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

Page 8 of 14

01/11/2005 01/26/2005 01/26/2005 01/26/2005 01/27/2005 02/03/2005 02/03/2005
02/03/2005 02/09/2005
02/09/2005 02/09/2005
02/24/2005

59 EXHIBITS by plaintiff in support of its rule 56.1(b) response to defendants' motion for summary judgment [58-1] (las) (Entered: 01/12/2005)
60 REPLY by Defendants Whitehall Hotel, Ltd.,and Whitehall Hotel Restaurant, Inc. to plaintiff's Rule 56.1(b) response to defendants' Rule 56.1(a) statement of undisputed facts in support of summary judgment ; Notice (las, ) (Entered: 01/28/2005)
61 MOTION by Defendants Whitehall Hotel, Ltd.,and Whitehall Hotel Restaurant, Inc. to strike EEOC ex.D, Declaration of Eric Oden, and exhibits G-J to summary judgment and statements of fact relying thereon. (las, ) (Entered: 01/28/2005)
62 REPLY by Defendants Whitehall Hotel, Ltd.,and Whitehall Hotel Restaurant, Inc. to EEOC's response to defendants' motion for summary judgment 57 (las, ) (Entered: 01/28/2005)
64 DECLARATION of Eric Oden by Equal Employment Opportunity (las, ) (Entered: 01/28/2005)
66 MOTION by Plaintiff Equal Employment Opportunity Commission for leave to file second amended complaint, instanter12, and motion for Rule 37(c) sanctions (Attachments: # 1 Second Amended Complaint)(gma, ) (Entered: 02/04/2005)
67 NOTICE of Motion by Jeanne B. Szromba for presentment of MOTION by Plaintiff Equal Employment Opportunity Commission for leave to file second amended complaint, instanter12, and motion for Rule 37(c) sanctions 66 before Honorable John W. Darrah on 2/9/2005 at 09:00 AM. (gma, ) (Entered: 02/04/2005)
68 RESPONSE by plaintiff EEOC's to Defendants motion to strike EEOC's Ex. D. Declaration of Eric Oden, and Exhibts G-J to summary judgment and statements of fact relying thereon 61. (gcy, ) (Entered: 02/07/2005)
69 MINUTE entry before Judge John W. Darrah : Plaintiff's motion for leave to file a second amended complaint, instanter is granted 66. Defendant to respond by 2/23/05. Plaintiff's motion for Rule 37 sanctions is denied 66. Defendant's motion to strike certain exhibits is denied 61. Pretrial conference set for 3/3/05 is re-set to 3/24/05 at 1:30 p.m. Pretrial order to be filed by 3/17/05. (las, ) (Entered: 02/09/2005)
70 SECOND amended complaint by Equal Employment Opportunity Commission against Whitehall Hotel LLC, Whitehall Hotel, Ltd.,and Whitehall Hotel Restaurant, Inc. (las, ) (Entered: 02/10/2005)
71 REPLY by Defendants Whitehall Hotel, Ltd. and Whitehall Hotel Restaurant, Inc. in support of motion to strike EEOC Ex. D, declaration of Eric Oden, and exhibits G-J to sumamry judgment and statement of fact relying thereon; Notice. (las, ) Modified on 1/23/2006 (ym, ). (Entered: 02/11/2005)
72 MINUTE entry before Judge John W. Darrah : For the reasons stated in

https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?659416329029415-L_353_0-1

4/23/2007

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

Page 9 of 14

02/24/2005 02/24/2005 02/24/2005 03/01/2005
03/04/2005 03/04/2005
03/08/2005 03/11/2005 03/14/2005 03/14/2005 03/15/2005
03/15/2005

the attached memorandum opinion and order, defendant's motion for summary judgment is entered in part and denied in part. Summary judgment is granted as to plaintiff's claim for injunctive relief and denied as to the remaining claims. Enter memorandum opinion and order. Pretrial conference set for 03/24/05 and jury trial set for 03/28/05 are vacated. Civil case terminated. Mailed notice (lxs, ) (Entered: 02/28/2005)
73 ENTERED JUDGMENT Signed by Judge John W. Darrah on 2/24/2005: Mailed notice (lxs, ) (Entered: 02/28/2005)
74 MEMORANDUM Opinion and Order Signed by Judge John W. Darrah on 2/24/2005: Mailed notice (lxs, ) (Entered: 02/28/2005)
75 MOTION by Defendants to strike and dismiss second amended complaint; Notice; Exhibit A.(lxs, ) Modified on 5/12/2006 (ym, ). (Entered: 02/28/2005)
76 MINUTE entry before Judge John W. Darrah : The 2/24/05 minute order is amended to reflect that the case is still pending as to the outstanding claims. Case reinstated. The judgment in this case is hereby vacated. Pretrial conference set for 3/24/05 at 11:30 a.m. Jury trial set for 3/28/05 at 9:00 a.m. Mailed notice (eav, ) (Entered: 03/02/2005)
77 MOTION by Plaintiff Equal Employment Opportunity Commission to extend trial date (gma, ) (Entered: 03/04/2005)
78 NOTICE of Motion by Jeanne B. Szromba for presentment of MOTION by Plaintiff Equal Employment Opportunity Commission to extend trial date 77 before Honorable John W. Darrah on 3/15/2005 at 09:00 AM. (gma, ) (Entered: 03/04/2005)
79 OPPOSITION by defendants to EEOC's motion to continue trial date77 (las, ) (Entered: 03/10/2005)
81 ATTORNEY Appearance for Plaintiff Equal Employment Opportunity Commission by Aaron R. DeCamp;Notice. (ar, ) (Entered: 03/17/2005)
82 MOTION by Defendants for enlargement of time to file pretrial order. (ar, ) (Entered: 03/17/2005)
83 NOTICE of Motion by Defendants for presentment of their motion for enlargement of time to submit pretrial order 82 before Honorable John W. Darrah on 3/15/2005 at 09:00 AM. (ar, ) (Entered: 03/17/2005)
80 MINUTE entry before Judge John W. Darrah : Defendant's motion for an enlargement of time to submit the pretrial order is granted. Pretrial order to be filed by 3/21/2005. Plaintiff's motion to extend the trial date is denied 77. Defendant's motion to strike and dismiss the second amended complaint is entered and briefed as follows: response by 3/18/05, reply by 3/21/05. Ruling on pretrial conference on 3/24/05 at 11:30 a.m. No notice (lcw ) (Entered: 03/16/2005)
Set/Reset Deadlines as to Defendant's motion to strike and dismiss the

https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?659416329029415-L_353_0-1

4/23/2007

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

Page 10 of 14

03/17/2005
03/17/2005 03/17/2005 03/22/2005 03/29/2005 04/12/2005 04/18/2005 04/28/2005 04/28/2005 04/28/2005 04/28/2005 04/28/2005

second amended complaint is entered 75 and briefed as follows: response by 3/18/2005, reply by 3/21/2005. (lcw ) (Entered: 03/16/2005)
84 MINUTE entry before Judge John W. Darrah : Pretrial conferfence set for 03/24/05 is reset to 05/05/05 at 1:30 PM. Pretrial order to be filed by 04/28/05. Jury trial set for 03/28/05 is reset to 05/09/05 at 9:00 AM. Defendant's motion to strike or dismiss the second amended complaint 75 is entered and briefed as follows: Response by 03/22/2005; Reply by 03/29/2005. Status hearing set for 4/21/2005 at 09:00 AM. Mailed notice (ar, ) (Entered: 03/21/2005)
Set/Reset Hearings pursuant to Judge Darrah's minute order dated 03/17/05: Pretrial conference is reset to 05/05/05 at 1:30 PM. Jury Trial reset to 05/09/05 at 9:00 AM. (ar, ) (Entered: 03/21/2005)
Set Deadlines/Hearings pursuant to Judge Darrah's minute order of 03/17/05: Pretrial order to be filed by 04/28/05. (ar, ) (Entered: 03/21/2005)
85 RESPONSE by plaintiff Equal Employment Opportunity Commission to defendants' MOTION to strike and dismiss second amended complaint 75. (lcw, ) (Entered: 03/25/2005)
86 REPLY by Defendants in support of their motion to dismiss second amended complaint; Notice 75. (ar, ) Modified on 3/31/2005 (ar, ). (Entered: 03/31/2005)
87 MINUTE entry before Judge John W. Darrah : Defendans' motion to strike and dismiss second amended complaint 75 is denied. The status hearing scheduled for 04/21/05 is stricken. (For further detail see order). Mailed notice (ar, ) Modified on 4/14/2005 (ar, ). (Entered: 04/14/2005)
88 MINUTE entry before Judge John W. Darrah : Pretrial Conference set for 05/05/05 is reset to 05/04/2005 at 11:30 AM. Mailed notice (ar, ) (Entered: 04/19/2005)
91 EXHIBIT A by Plaintiff to its motion in limine to exclude evidence relating to Eric Oden's employment at Hyatt Hotel. (RESTRICTED).(ar, ) (Entered: 05/02/2005)
92 PROPOSED Jury Instructions by Whitehall Hotel, Ltd., Whitehall Hotel Restaurant, Inc., and Whitehall Hotel LLC (las, ) (Entered: 05/04/2005)
93 MOTION by Defendants Whitehall Hotel, Ltd., Whitehall Hotel Restaurant, Inc., and Whitehall Hotel LLC in limine to bar evidence of compensatory and punitive damages and strike jury demand (las, ) (Entered: 05/04/2005)
94 MOTION by Plaintiff Equal Employment Opportunity Commission in limine to exclude defendants' affirmative defenses of undue burden and direct threat (las, ) (Entered: 05/04/2005)
95 MOTION by Defendants Whitehall Hotel, Ltd., Whitehall Hotel Restaurant, Inc., and Whitehall Hotel LLC in limine to bar evidence of a

https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?659416329029415-L_353_0-1

4/23/2007

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

Page 11 of 14

04/28/2005 04/28/2005 04/28/2005 04/28/2005
04/28/2005 04/28/2005 04/28/2005 04/29/2005 04/29/2005
05/02/2005 05/03/2005 05/03/2005

power of attorney in favor of Jeanne Oden; to bar Jeanne Oden's testimony concerning her alleged expertise in the area of disabilities; and to bar her testimony on matters of which she has no personal knowledge (las, ) (Entered: 05/04/2005)
96 MOTION by Defendants Whitehall Hotel, Ltd., Whitehall Hotel Restaurant, Inc., and Whitehall Hotel LLC in limine to bar admission of evidence of alleged back pay before a jury (las, ) (Entered: 05/04/2005)
97 MOTION by Plaintiff Equal Employment Opportunity Commission in limine to exclude Social Security Administration documents and related testimony (las, ) (Entered: 05/04/2005)
98 MOTION by Defendants Whitehall Hotel, Ltd., Whitehall Hotel Restaurant, Inc., and Whitehall Hotel LLC in limine to bar evidence of allegedly unlawful employment applications and request for injunctive relief (las, ) (Entered: 05/04/2005)
99 MOTION by Defendants Whitehall Hotel, Ltd., Whitehall Hotel Restaurant, Inc., and Whitehall Hotel LLCto dismiss this case on the grounds of Laches or in the alternative to bar evidence of any alleged damages because the EEOC's action against Whitehall on Oden's behalf has not complied with the Administrative requirements, is untimely and not in the public interest (las, ) (Entered: 05/04/2005)
100 NOTICE of filing of defendants motions98,96,93,95 and99 (las, ) (Entered: 05/04/2005)
101 MOTION by Plaintiff Equal Employment Opportunity Commission in limine to exlclude evidence relating to Eric Oden's employment at Hyatt Hotel. (gcy, ) (Entered: 05/04/2005)
102 OBJECTIONS by defendants to plaintiff's proposed jury instructions. (gcy, ) (Entered: 05/04/2005)
89 MOTION by Plaintiff Equal Employment Opportunity Commission to permit counsel who are not members of the trial bar to appear alone at trial (gma, ) (Entered: 04/29/2005)
90 NOTICE of Motion by Aaron R. DeCamp for presentment of MOTION by Plaintiff Equal Employment Opportunity Commission to permit counsel who are not members of the trial bar to appear alone at trial 89 before Honorable John W. Darrah on 5/10/2005 at 09:00 AM. (gma, ) (Entered: 04/29/2005)
103 ANSWER to second amended complaint by defendants; Notice. (amb, ) (Entered: 05/05/2005)
105 RESPONSE by Equal Employment Opportunity Commission to defendants'motion to dismiss based on Laches and other grounds99; Notice (las, ) (Entered: 05/09/2005)
106 RESPONSE by Equal Employment Opportunity Commission to defendants' motion in limine to bar evidence of a power of attorney in

https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?659416329029415-L_353_0-1

4/23/2007

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

Page 12 of 14

05/03/2005 05/03/2005 05/03/2005 05/04/2005
05/05/2005 05/06/2005 05/06/2005 05/06/2005
05/06/2005 05/06/2005 05/06/2005 05/06/2005 05/09/2005

favor of Jean (sic) oden; to bar Jean (sic) Oden's testimony concerning her alleged expertise in the area of disabilities; and to bar her testimony on matters of which she has no personal knowledge 95 (las, ) (Entered: 05/09/2005)
107 RESPONSE by Equal Employment Opportunity Commission todefendants' motion in limine to bar evidence of compensatory and punitive damages and strike jury demand 93 (las, ) (Entered: 05/09/2005)
108 OBJECTIONS by plaintiff to defendants' proposed jury instructions and special verdict form (las, ) (Entered: 05/09/2005)
111 JURY Verdict Form (rmm, ) (Entered: 05/11/2005)
104 MINUTE entry before Judge John W. Darrah : Pretrial conference held. The parties are ordered to jointly prepare the following: A brief statement of the case, consisting of one short paragraph, followed by the names of trial counsel and the parties they represent followed by a list of witnesses that may be called during the trial. This material shall be provided to the court in chambers by noon, 5/6/05. Mailed notice (las, ) (Entered: 05/05/2005)
109 RESPONSE by defendants to EEOC's motion for non trial bar members to try the instant case 89 ; Notice of filing (eav, ) (Entered: 05/10/2005)
112 JOINT statement by parties requested by the court ; Notice (las, ) (Entered: 05/12/2005)
113 REVISED Jury Instructions by Equal Employment Opportunity Commission; Notice.(tlm) (Entered: 05/17/2005)
114 RESPONSE by Equal Employment Opportunity Commission to defendants' MOTION by in limine 98 to bar evidence of allegedly unlawful employment applications and request for injunctive relief.(tlm) (Entered: 05/17/2005)
115 REPLY by Equal Employment Opportunity Commission in Support of its motion to permit counsel who are not members of the trial bar to appear alone at trial 89. (tlm) (Entered: 05/17/2005)
116 RESPONSE by plaintiff EEOC to defendants' motion in limine to bar evidence of alleged disability of depression.(tlm) (Entered: 05/17/2005)
117 RESPONSE by Plaintiff EEOC to defendants' motion in limine to bar admission of evidence of alleged back pay before a jury.(tlm) (Entered: 05/17/2005)
118 REVISED special verdict form by Plaintiff Equal Employment Opportunity Commission (tlm) (Entered: 05/17/2005)
110 MINUTE entry before Judge John W. Darrah : Jury Trial set for 5/9/2005 is reset to 6/13/2005 at 09:00 AM. All trial subpoenas are entered and continued to 6/13/2005. Telephoned notice (rmm, ) (Entered: 05/10/2005)

https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?659416329029415-L_353_0-1

4/23/2007

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

Page 13 of 14

05/10/2005 05/11/2005
05/20/2005 05/20/2005 05/31/2005
05/31/2005 06/01/2005 06/07/2005 06/07/2005 06/08/2005

119 PROPOSED Voir Dire Questions by Equal Employment Opportunity Commission ; Notice.(mjc, ) (Entered: 05/17/2005)
120 MINUTE entry before Judge John W. Darrah : Plaintiff's motion in limine 94, 97, 101 and defendants' motions in limine 93, 95. 96, 98, 99 are denied without prejudice to movant to raise the same objection at the appropriate time during trial. The parties' failure to object during trial will be deemed a waiver of these objections. Defendant's motion to dismiss the case on grounds of Laches or, in the alternative to bar EEOC's action [99' is denied without prejudice to refile. Defendants' motion for extension of time 82 is denied as moot. Plaintiff's motion to permit counsel who are not members of the trial bar to appear alone at trial 89 is denied. Docketing to mail notice (jmp, ) (Entered: 05/18/2005)
121 MOTION by Plaintiff Equal Employment Opportunity Commission for referral to magistrate judge for a settlement conference. (rbf, ) (Entered: 05/23/2005)
122 NOTICE of Motion by Jeanne B. Szromba for presentment of motion for referral to Magistrate Judge for settlement conference 121 before Honorable John W. Darrah on 5/31/2005 at 09:00 AM. (rbf, ) (Entered: 05/23/2005)
123 MINUTE entry before Judge Nan R. Nolan : Settlement Conference set for 6/8/2005 at 04:00 PM. Parties are reminded that Magistrate Judge Nolan requires compliance with her Standing Order regarding Settlement Conference, which is available on the court's website at www.ilnd.uscourts.gov. Notice given in open court. (hmb, ) (Entered: 05/31/2005)
124 MINUTE entry before Judge John W. Darrah : Plaintiff's motion for referral to Magistrate Judge for a settlement conference 121 is granted. This case is referred to Magistrate Judge Nolan for a settlement conference. Status hearing set for 6/9/2005 at 9:00 AM. No notice (eav, ) (Entered: 06/01/2005)
125 EXECUTIVE COMMITTEE ORDER:Case referred to Magistrate Judge Nan R. Nolan to conduct hearings and enter appropriate orders on the following pretrial motion/matter: settlement conference. Signed by Executive Committee on 6/1/05. (cdy, ) . (Entered: 06/03/2005)
126 MOTION by Defendants for sanctions (gma, ) (Entered: 06/08/2005)
127 NOTICE of Motion by Susan Bogart for presentment of MOTION by Defendants for sanctions 126 before Honorable John W. Darrah on 6/14/2005 at 09:00 AM. (gma, ) (Entered: 06/08/2005)
128 MINUTE entry before Judge Nan R. Nolan : Settlement conference held on 6/8/2005, at which the parties were unable to reach a settlement agreement. All matters related to the referral of this action having been concluded, the case is returned to the assigned judge. Judge Nan R. Nolan no longer referred to the case. Judicial staff mailed notice. (hmb, ) (Entered: 06/09/2005)

https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?659416329029415-L_353_0-1

4/23/2007

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket Report

Page 14 of 14

06/09/2005 06/10/2005 06/14/2005
06/20/2005 06/28/2005 06/29/2005 09/13/2005 09/13/2005

129 MINUTE entry before Judge John W. Darrah : Status hearing held on 6/9/2005. No notice (eav, ) (Entered: 06/10/2005)
130 MINUTE entry before Judge John W. Darrah : Jury Trial set for 6/13/05 is re-set to 6/14/2005 at 10:00 a.m. Notified counsel by telephone. (gcy, ) (Entered: 06/14/2005)
131 MINUTE entry before Judge John W. Darrah : Defendant's motion for sanctions 126 is denied as moot. Parties have reached a settlement in this case. Jury trial set for 6/14/05 is vacated. Status hearing set for 6/21/2005 at 9:00 a.m. for presentation of dismissal order. No notice (eav, ) (Entered: 06/15/2005)
132 MINUTE entry before Judge John W. Darrah : Status hearing set for 6/21/05 is re-set to 6/28/05 at 09:00 AM. Mailed notice (maf, ) (Entered: 06/20/2005)
133 MINUTE entry before Judge John W. Darrah : Status hearing held. Parties are unable to come to an agreement to settle this case. Jury trial set for 9/12/05 at 9:00 a.m. No notice (las, ) (Entered: 06/29/2005)
134 TRANSCRIPT of proceedings for the following dates: 06/14/05 before the Honorable John W. Darrah (ar, ) (Entered: 07/08/2005)
135 MINUTE entry before Judge John W. Darrah : Enter agreed order. Terminating case. Anypending dates or motions are terminated as moot. Mailed notices (gcy, ) (Entered: 09/15/2005)
136 AGREED ORDER Signed by Judge John W. Darrah on 9/13/2005: (gcy, ) (Entered: 09/15/2005)

PACER Service Center
Transaction Receipt

PACER Login: Description: Billable Pages:

04/23/2007 22:15:01

hs0328

Client Code:

Docket Report Search Criteria:

9

Cost:

1:03-cv-06851 0.72

https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?659416329029415-L_353_0-1

4/23/2007