_ UNITEtJ S'AYES COURTS
SOUTHERN DiSTRICT OF TEXAS FILED

IN THE UNITED STATES DISTRICT COURT SEP 3 02U05

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

MICHAEL N. MILBY, CLERK OF COURT

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Plaintiff
v.
TEXAS EAR, NOSE & THROAT CONSULTANTS, P.L.L.C. Defendant.

§ §

3374

§ CIVIL ACTION NO. _ _ _ _ __

§

§

§

§ JURY TRIAL DEMANDED

§

§

ORIGINAL COMPLAINT 1. This is an action under Title VII of the Civil Rights Act of 1964, as amended, and Title I of the Civil Rights Act of 1991, as amended, to correct unlawful employment practices on the basis of opposing discrimination and to provide appropriate relief to Sally Farris who was adversely affected by such practices. The Defendant, Texas Ear, Nose & Throat Consultants, P.L.L.C. ("Defendant" or "TENT") unlawfully terminated Ms. Farris in retaliation for opposing what she believed to be unlawful employment practices, specifically for reporting actions by a TENT physician she reasonably believed could be sexual harassment or result in sexual harassment liability.
JURISDICTION AND VENUE 2. 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 706 (f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e-5(f)(1) and (3) ("Title VII") and Section 102 of the Civil Rights Act of 1991, as amended, 42 U.S.C. §1981A.

3. Venue is proper in this court because the unlawful erriploymenf practices alleged below were and are now being committed within the jurisdiction of the United States District Court for the Southern District of Texas, Houston Division.
PARTIES 4. Plaintiff, the Equal Employment Opportunity Commission ("Commission") is an agency of the United States of America charged with the administration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Section 706 (f)(1) and (3), 42 U.S.C. §2000e-5 (f)(1) and (3). 5. Defendant Texas Ear, Nose & Throat Consultants, P.L.L.C. has continuously been and is now doing business in the State of Texas and the City of Houston and has continuously had more than 15 employees. TENT may be served with process by serving its registered agent in Texas, Simon "Trey" W. Hendershot, III, 1800 Bering Drive, Suite 600, Houston, Texas 77057. 6. At all relevant times, TENT has continuously been an employer engaged in an industry affecting commerce with the meaning of Sections 701 (b),(g) and (h) of Title VII, 42 U.S.C. §2000e(b), (g) and (h).
STATEMENT OF CLAIMS 7. More than thirty days prior to the institution of this lawsuit, Sally Farris filed a charge of discrimination with the Commission alleging violation of Title VII by TENT, her former employer. All conditions precedent to the institution of this lawsuit have been fulfilled.
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8. Since at least 2003, TENT has engaged in unlawful employment practices at its Houston and Sugarland, Texas offices in violation of Section 704(a) of Title VII.
9. Ms. Farris began working for TENT in July 1999. As a result of her strong performance, the following year she was elevated to the position of Practice Administrator; She continued in that position throughout her employment until she was summarily fired in December 2003. As the Practice Administrator, she supervised all of the employees of TENT other than the partner physicians. She reported directly to TENT's Board. She received regular salary increases and merit bonuses as a result of her exemplary job performance.
10. In February 2003, Ms. Farris became aware that a TENT physician had been observed in a prolonged kiss with a nurse under his direct supervision. Concerned, she ultimately discussed the matter with the employee who had observed the incident and agreed that she would keep the employee's identity confidential as she pursued the matter further. Ms. Farris was worried that the physician's actions could subject TENT to liability for sexual harassment. Ms. Farris ultimately contacted TENT's attorney to discuss what steps should be taken and was advised that she should present the matter to TENT's Board for further action. The attorney indicated a course of action that should be taken by the Board, which included directly confronting the physician about his behavior while keeping the identity of the employee witness confidential.
11. Ms. Farris advised the Board about the physician's behavior at its March 2003 meeting and the guidance she received from the attorney. It was clear that the some members of the Board were already aware or had heard of similar behavior by this physician and the nurse. The Board indicated that the matter would be discussed with the
-3-

physician and agreed to keep the employee's identity confidential. The following week, the

physician at issue confronted Ms. Farris, began to verbally attack her using profanity and

told her "you had no business going to the Board." He subsequently told her she had to

talk to the employee who had observed the incident and she had to tell her she did not see

what she thought she had seen. She refused.

12.

On information, this physician demanded that the Board fire Ms. Farris

immediately. The Board did not act on his request at that time, but he mobilized staff

against Ms. Farris and constantly undermined her authority. The doctor in question

significantly contributes to the partnership's financial success.

13. The following month, Ms. Farris wrote to TENT's corporate counsel advising

him of the negative reaction to her report and that working conditions had deteriorated

because of the mobilization efforts against her. He made no response to this letter. The

working atmosphere became more and more hostile against Ms. Farris in the ensuing

months.

14. Without warning, at the September 2003. Board meeting, Ms. Farris was

. presented with a two page document entitled "Recommendations for Improvement 9/2/03

Counseling Statement." The document purported to list shortcomings in her performance;

these had not been discussed with her previously. When she attempted to address the

items at the meeting as they were being read, she was instructed to keep quiet. After the

list was read, the members of the Board were given an additional opportunity to add any

comments. Although no criticisms were made, one Board member said that this was unfair

and that Ms. Farris should be given the chance to address the items listed. She was not,

however, provided that opportunity at the meeting. At no time did the Board ever meet and

-4-

discuss whether or not she was meeting the recomrifendations or needed to make additional improvements.
15. Ms. Farris again wrote to TENT's corporate counsel advising him what had occurred and told him about the document presented to her. She also indicated that she felt she was being retaliated against for reporting the physician's conduct. She received no response to this letter.
16. Three months after the September Board meeting, Ms. Farris was fired on December 9,2003.
17. The effect of the practices complained of above has been to deprive Ms. Farris of equal employment opportunities and otherwise adversely affect her status as an employee because of her protected activity of opposing employment practices she believed to be discriminatory in violation of Title VII.
18. The unlawful employment practices described above were intentional and were committed with malice or with reckless indifference for the federally protected civil rights of Ms. Farris.
PRAYER FOR RELIEF WHEREFORE, the Commission respectfully requests that this Court: 19. Grant a permanent injunction enjoining TENT, 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 opposition to discrimination; 20. Order TENT to institute and carry out policies, practices and procedures which provide equal employment opportunities for women and which eradicates the effects of its past and present unlawful employment practices;
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21. Order TENT to make Ms. Farris whole by providing appropriate back-pay, with prejudgment interest in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects ofthe unlawful employment practices she was subjected to;
22. Order reinstatement into a comparable position for Ms. Farris or award front pay in the amounts to be proven at trial if reinstatement is impractical;
23. Order TENT to make Ms. Farris whole by providing compensation for past and future pecuniary losses resulting from the unlawful practices described above, including out-of-pocket expenses such as job search expenses and insurance expenses in amounts to be proven at trial;
24. Order TENT to make Ms. Farris whole by paying compensatory damages to Ms. Farris for her past and future non-pecuniary losses including emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses she suffered as a result of the unlawful employment practices described above, in amounts to be proven at trial;
25. Award punitive damages to Ms. Farris for TENT's malicious and/or reckless conduct described above, in amounts to be proven at trial;
26. Award pre-judgment and post-judgment interest on all amounts recovered as allowed by law;
27. Order all affirmative relief necessary to eradicate the effects of its unlawful employment practices;
28. Award the Commission its costs in this action; and 29. Grant such other and further relief as the Court deems necessary and proper.
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JURY TRIAL DEMANDED 30. The Commission requests a jury trial on all questions of fact raised by its complaint.
Respectfully submitted, EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
JAMES L. LEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel 1801 L. Street, N.W. Washington, D.C. 20507
at y . Boutchee Attorn -in-Charge TBN: 02717500 SDN: 10145 Houston District Office 1919 Smith Street, 7th Floor Houston, Texas 77002 (713) 209-3399 Fax: (713) 209-3402 Email: kathy.boutchee@eeoc.gov ATTORNEYS FOR PLAINTIFF
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OF COUNSEL
:(imSache
Regional Attorney HOt1ston District Office 1919 Smith, 7th Floor Houston, Texas 77002 (713) 209-3398 Fax: (713) 209-3402
S lcomplalnOSlcomplalntslTX ENT Complalntfinal wpd
-8-

JS44 (Rev. 07/89)

e

a

CIVIL COVER SHEET

,.

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the ming and service of pleadings or other papers as required by law, except as provided by local rules of court. This form.

approved by the Judicial Conference oflbe United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE

OF THE FORM.)

I(a) PLAINTIFFS
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

DEFENDANTS -- ----
TEXAS EAR, NOSE & THROAT CONSULTANTS, P.L.L.C.

(b) COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF _ _ __
(EXCEPT IN U.S. PLAINTIFF CASES)

COUNTY OF RESIDENCE OF FIRST LISTED DEFENDANT _ _ __
(IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE
TRACT OF LAND INVOLVED

(c) ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER)
Kathy Boutchee, Trial Attorney EEOC-Houston District Office 1919 Smith Street, 7th Floor Houston, Texas 77002 (713) 209-3399

ATTORNEYSQFKNO~

II. BASIS OF JURISDICTION

(pLACE AN x IN ONE BOX ONLY)

[xli u.s. Government
Plaintiff [] 2 U.S. Government
Defendant

[] 3 Federal Question (U.S. Government Not a Party)
[] 4 DIversity (Indicate Citizenship of Parties in Item III)

III. CITIZENSHIP OF PRINCIPAL PARTIES (pLACE ANx IN ONE BOX

(For Diversity Cases Only)

FOR PlAINTIFF AND ONE BOX FOR DEFENDANT)

PTF DEF

PTF DEF

Citizen ofTbis State [] 1 [] I I ncorporated or Principal Place [ ] 4 [] 4

of Business in Tbls State

Citizen of Another State [] 2 [] 2 Incorporated and Principal Place [ ] 5 [] 5

Citizen or Subject of a

[ ] 3 [] 3

of Business in Another State Foreign Nation

[]6 []6

Foreign Count

IV. CAUSE O F ACTION (CITE TIlE U 5 CIVIL STATIJTE UNDER WHICH YOU AREFIUNGANO WRITIl A BRJEF STATEMENT OF CAUSE. 00 NOTCITEJUR]SmCTIONALSTATIJTE5 UNUlSSDlVERSJ1Y)
Texas Ear, Nose & Throat Consultants, P.L.L.C. engaged in unlawful employment practices by discharging Ms. Farris in retaliation for opposing what she believed to be unlawful practices, specifically for reporting actions by a TENT physician she reasonably believed could be sexual harassment or result in sexaul harassment liability in violation of Title VII. Defendant has engaged in unlawful employment practices in violation of Sections 706(f)(1) and 3 of Title VII, 42 U.S.C. Sections 2000e-5(f)(I) and (3) and Section 102 of the Civil Rights Act of 1991, as amended, 42 U.S.c. §1981A.

V NATURE OF SUIT (pLACE AN xlN ONE BOX ONLy)

CONTRACT
[] 110 Ins,"""", (] 120 Manne [] 130 Milia-Act [] 140 N.gotublelnsUument
[]~;J=i&;
[] lSI Moolcan: Act
[]J.~~:"':=)
[] ~~~:Overpa"""Of
[] 160 Stockholders' SUlIS [] 190 OthaCmtracl [] 195 CO
REAL PROPERTY
[] 210 Utnd Condemnation [] 220 Fo=l= [] 230 Renl Lease &; GJectmenl [] 240 Torts 10 Land [] 24S Ton Product wblltly
n 290 All Other Real Property

TORTS

PERSONAL INJURY [] 310 AIrplane [] 315 AtrplanePnxlu<lwblltly (] 320 .....uJu.be1 &; sland..(] 330 Fedcntl Fmpl..,...· Iiamltly
(] 340 Manne (] 345 Manne Product Uabt1tly (]35OMotorVelttcJe (] 355 Motor Vdu,l. Producl
l.Jablhty
(] 360 ()thao P"""",I IJuwy

PERSONAL INJURY
[] 36\.':.t~":
[] 36t.~ IJuury-PnxIu<l
[] 36~~::;W InJWY
PERSONAL PROPERTY [] 370 OtIte<fuud [] 371 Tnrthmlaldtng [] 380 OtIte<PmonaI_Damage
[] ~~II:-' Damage Product

CIVIL RIGHTS (] 441 V_g
[X] 442 FmpIO)mel>I (] 443 lJousmglAccommodaUOllS
(] 444 W,IJltrc (] 440 ()thao CMI RJgltts

PRISONER PETITIONS [] 510 Motions 10 V " " " ' _
Habeas Coopus
[] 530 GencntJ [] 53S Death Penally [] 540 Mandamus &; Other
[] 550 Other

FORFEITUREIPENALTY
[] 610 """cult= (] 620 0tIte< Food &; Druo
[] ~:i::':.~izurcOf
[] 630 UQu<r uws [] 640 R.R &; Truck [] 650 Autme Regs [] 660 OccupatwnaJ SafutyllJealth
[] 690 LABOR
[] 710 Fall l.tIbor Standards Act
[] no l.tIborlMgmt ReJauons
[] 7i~~:!: Reponmg
[] 740 Ratlway ulxr Act [] 790 0tIte< ulxr Ltll"."" []79l,.FmpIRd I~Seamly

BANKRUPTCY
[] 422 Appeal 2. USC J>8
[] 423 WllhdnlwaJ 28 usc IS7
PROPERTY RIGHTS
[] 820 C<>p>nghls [] 830 PalClU
(]840T~
SOCIAL SECURITY
[] 861 ~A (13950) [] 862 BJacJc Lung (923) [] 863 OIWClDIWW (40S(g) [] 864 SSID TIlle XVI [] 865 RSI (40S(g»
FEDERAL TAX SUITS
[] ~7~": (U S PLamulT...
[] 871 IRS-ThInJParty26 USC 7609

OTHER STATUTES
(] 400 SIa", R e a _ , [] 410 Anu,:"" [] 430 Banb and Banktng [] 450 c~cc Rales/etc [] 460 Depor1aUllll [] 4~lnn""""')andConupl
[] 810 Sele<l1ve 5eMce [] Ml!..s:"uestc~ues/
[] 87~2~~~haJlenge
[] 891 Agncullul'al Acts [] 892 Ecooonuc Stablill'3tlOn Act [] 893 EnviroomenlAl Matters [] 894 Energy AIIocallon Act [] 895 F...oom of JnJlonnauon Act
[] ~~:=s=::uon
[] 950 COOSbtutlonahlyofSlate Statutes [] 890 Other SlalUlOl"y ActIons

VI. ORIGIN
[X] 1 Original
Proceeding

(PLACE AN x IN ONE BOX ONLy)

[] 2 Removed from

[] 3 Remanded from

State Court

Appellate Court

[] 4 Reinstated or Reopened

Transferred from [] 5 another district (specify)

Appeal to Dislrict

[] 6 Multidislrict

[] 7 Judge from

Litigation

Magistrate Judgment

VII. REQUESTED IN

CHECK IF THIS IS A CL~S ACTION

COMPLAINT:

[] UNDER F.R.C.P. 23

DEMANDS

Check YES only if demanded in complaint:

.JURy DEMAND,

[X] YES

[] NO

DOCKET NUMBER

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

§

COMMISS ION,

§

§

Plaintif!,

§

§

v.

§

§

TEXAS EAR, NOSE & THROAT

§

CONSULTANTS, P.L.L.C.

§

§

Defendant.

§

- -- - - - - - - - - -- -- - - - - ---§

CIVIL ACTION NO. H-05-3374 JURY TRIAL DEMANDED

AMENDED ORIGINAL COMPLAINT

l. This is an action under Title VII of the Civil Rights Act of 1964, as

amended, and Title I of the Civil Rights Act of 1991 , as amended, to correct unlawful

employment practices on the basis of opposing discrimination and to provide appropriate relief

to Sally Farris who was adverse ly affected by such practices. The Defendant, Texas Ear, Nose &

Throat Consultants, P.L.L.C. ("Defendant" or " TENT') unlawfully terminated Ms. Farris in

retaliation for opposing what she believed to be unlawful employment practices, specifically for

reporting actions by a TENT physician she reasonably believed could be sexual harassment or

result in sexual harassment liability.

JURISDICTION AND VENUE

2. Jurisdiction of this court is invoked pursuant to 28 U.S.C. §§451 , 1331 ,

1337. 1343 and 1345. This action is authorized and instituted pursuant to Section 706 (f)(1) and

(3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e-5(f)(l) and (3)

("Title VII" ) and Section 102 of the Civil Rights Act of 1991 , as amended, 42 U.S.C. § 1981A.

EXHIBIT

I ----LA-!....--

-1-

3. Venue is proper in this court because the unlawful employment practices alleged below were and are now being committed within the jurisdiction of the United States District Court for the Southern District of Texas, Houston Division.
PARTIES 4. Plaintiff, the Equal Employment Opportunity Commission ("Commission") is an agency of the United States of America charged with the administration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Section 706 (1)(1) and (3), 42 U.S.C. §2000e-5 (1)(1) and (3). 5. Defendant Texas Ear, Nose & Throat Consultants, P.L.L.c. has continuously been and is now doing business in the State of Texas and the City of Houston and has continuously had more than 15 employees. TENT may be served with process by serving its registered agent in Texas, Simon "Trey" W. Hendershot, III, 1800 Bering Drive, Suite 600, Houston, Texas 77057. 6. At all relevant times, TENT has continuously been an employer engaged in an industry affecting commerce with the meaning of Sections 701 (b),(g) and (h) of Title VII, 42 U.S.C. §2000e(b), (g) and (h).
STATEMENT OF CLAIMS 7. More than thirty days prior to the institution of this lawsuit, Sally Farris filed a charge of discrimination with the Commission alleging violation of Title VII by TENT, her fonner employer. All conditions precedent to the institution of this lawsuit have been fulfilled.
-2-

8. Since at least 2003, TENT has engaged in unlawful employment practices at its Houston and Sugarland, Texas offi ces in violation of Section 704(a) of Title VII.
9. Ms. Farris began working for TENT in July 1999. As a result of her strong performance, the following year she was elevated to the position of Practice Admini strator. She continued in that position throughout her employment until she was summaril y fired in December 2003. As the Practice Administrator, she supervised all of the employees of TENT other than the partner physicians. She reported directly to TENT's Board. She received regular salary increases and merit bonuses as a result of her exemplary job performance.
10. In February 2003, Ms. Farris became aware that a TENT physician had been observed in a prolonged kiss with a nurse under hi s direct supervision. Concerned, she ulti mately discussed the matter with the employee who had observed the incident and agreed that she would keep the employee's identity confidential as she pursued the matter further. Ms. Farris was worried that the physician's actions could subject TENT to liability for sexual harassment. Ms. Farris ultimately contacted TENT' s attorney to di scuss what steps should be taken. The attorney indicated a course of action that should be taken by the Board.
11. Ms. Farris advised the Board about the physician 's behavior at its March 2003 meeting and the guidance she received from the attorney. It was clear that some members of the Board were already aware or had heard of similar behavior by this physician and the nurse. The Board indicated that the matter would be di scussed with the physician and agreed to keep the employee's identity confidential. The following week, the physician at issue confronted Ms. Farris, began to verbally attack her using profanity and told her "you had no business going to
-3-

•

the Board." He subsequently told her she had to talk to the employee who had observed the

incident and she had to tell her she did not see what she thought she had seen. She refused.

12 .

On information, this physician demanded that the Board fire Ms. Farris

immediately. The Board did not act on his request at that time, but he mobilized staff against

Ms. Farris and constantly undennined her authority. The doctor in question significantly

contributes to the partnership' s financial success.

13 . The following month, Ms. Farris wrote to TENT's corporate counsel advising

him of the negative reaction to her report and that working conditions had deteriorated because

of the mobilization efforts against her. He made no response to this letter. The working

atmosphere became more and more hostile against Ms. Farris in the ensuing months.

14. Without warning, at the September 2003 Board meeting, Ms. Farris was presented

with a two page document entitled "Recommendations for Improvement 9/2/03 Counseling

Statement." The document purported to list shortcomings in her performance; these had not

been discussed with her previously. When she attempted to address the items at the meeting as

they were being read, she was instructed to keep quiet. After the list was read, the members of

the Board were given an additional opportunity to add any comments. Although no criticisms

were made, one Board member said that this was unfair and that Ms. Farris should be given the

chance to address the items listed. She was not, however, provided that opportunity at the

meeting. At no time did the Board ever meet and discuss whether or not she was meeting the

recommendations or needed to make additional improvements.

IS. Ms. Farris again wrote to TENT's corporate counsel advising him what had

occurred and told him about the document presented to her. She also indicated that she felt she

-4-

was being retaliated against for reporting the physician 's conduct. She received no response to thi s letter.
16. Three months after the September Board meeting, Ms. Farris was fired on December 9, 2003.
17. The effect of the practices complained of above has been to deprive Ms. Farris of equal employment opportunities and otherwise adversely affect her status as an employee because of her protected activity of opposing employment practices she believed to be discriminatory in violation of Title VII.
18 . The unlawful employment practices described above were intentional and were committed with malice or with reckless indifference for the federally protected civil rights of Ms. Farris.
PRAYER FOR RELIEF WHEREFORE, the Commission respectfu ll y requests that this Court: 19. Grant a pennanent injunction enjoining TENT, its officers, successors, assigns and all persons in active concert or participation with it, from engaging in employment practices whi ch discriminate on the basis of opposition to discrimination; 20. Order TENT to institute and carry out policies, practices and procedures which provide equal employment opportunities for women and which eradicates the effects of its past and present unlawful employment practices; 2 1. Order TENT to make Ms. Farris whole by providing appropriate back pay, with prejudgment interest in amounts to be detennined at trial, and other affinnative relief necessary to eradicate the effects of the unlawful employment practices she was subjected to;
-5-

22. Order reinstatement into a comparable position for Ms. Farris or award front pay in the amounts to be proven at trial if reinstatement is impractical;
23. Order TENT to make Ms. Farris whole by providing compensation for past and future pecuniary losses resulting from the unlawful practices described above, including out-ofpocket expenses such as job search expenses and insurance expenses in amounts to be proven at trial;
24. Order TENT to make Ms. Farris whole by paying compensatory damages to Ms. Farris for her past and future non-pecuniary losses including emotional pain. suffering, inconvenience. mental anguish. loss of enjoyment of life. and other non-pecuniary losses she suffered as a result of the unlawful employment practices described above, in amounts to be proven at trial ;
25. Award punitive damages to Ms. Farris for TENT's malicious and/or reck less conduct described above, in amounts to be proven allriat
26. Award pre-judgment and post-judgment interest on all amounts recovered as allowed by law;
27. Order all affirmative relief necessary to eradicate the effects of its unlawful employment practices;
28. Award the Commission its costs in this action; and 29. Grant such other and further reliefas the Court deems necessary and proper.
JUR Y TRIAL DEMANDED 30. The Commission requests a jury trial on all questions of fact raised by its complaint.
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Of Counsel:
James Sacher Regional Attorney Houston District Office 1919 Smith, 7· Floor Houston, Texas 77002 (713) 209-3398 Fax: (713)209-3402

Respectfully submitted,
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
JAMES L. LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel
1801 L. Street, N.W. Washington, D.C. 20507
By: /s/ Aimee L. McFerren Aimee L. McFerren Attorney-in-Charge KY Bar No.: 89912 S.D. ofTex. Bar No.: 36953 Houston District Office 1919 Smith Street, 7th Floor Houston, Texas 77002-8049 (713) 209-3390 Fax: (713) 209-3402
ATTORNEYS FOR PLArNTIFF

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 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

§

COMMISSION,

§

§

Plaint(ff,

§

§

v.

§

§

TEXAS EAR, NOSE & THROAT

§

CONSULTANTS, P.L.L.C.

§

§

Defendant.

§

-------------------------------§

CIVIL ACTION NO. H~05-3374 JURY TRIAL DEMANDED

CONSENT DECREE

Plaintiff, the United States Equal Employment Opportunity Commission ("Commission") and Defendant, Texas Ear, Nose & Throat Consultants, P.L.L.C. ("Defendant" or "TENT') agree to entry of this Consent Decree.

Background and History of Proceedings Charging Party Sally Farris ("Farris") filed a charge of discrimination with the
Commission (Charge No. 330-2004-04636) alleging Defendant violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. ("Title VII").
On September 30, 2005, after investigating the charge, the Commission commenced this action alleging Defendant violated Title VII when it terminated Farris in retaliation for her reporting what she thought to be activity prohibited by Title VII.
Defendant denies the EEOC's allegations, denies that it or any of its partners has engaged in any wrongful conduct in violation of Title VII, and asserts that it lawfully terminated Farris

-1-
Houston 3003665v.1

(
after she failed to improve her work performance despite counseling on specific performance issues.
To avoid the expense and inconvenience of litigation, the parties agree to compromise and settle disputed claims by this Consent Decree. The EEOC has insisted that this settlement be achieved by Consent Decree, pursuant to the EEOC's policy. This Consent Decree shall not be construed as an admission by Defendant of any unlawful conduct; to the contrary, Defendant denies that it is in any way liable to the EEOC or Farris and expressly denies that it has engaged in any unlawful employment practices or has retaliated against Farris.
Therefore, the parties stipulate to the jurisdiction of the Court and the satisfaction of all administrative prerequisites. The parties further waive hearing and entry of findings of fact and conclusions of law on all issues.
IT IS ORDERED: 1. This Consent Decree is entered in full and complete settlement of any and all claims
arising out of or asserted in Civil Action No. H-05-3374 and the above-referenced Charge on behalf of Sally Farris. This Consent Decree remains in effect for one year from the date of entry ("Consent Period").
Injunctive Relief 2. During the Consent Period, Defendant agrees it will not engage in any employment
practices which violate Title VII by unlawfully retaliating against any individual because she opposed any practice made an unlawful employment practice by Title VII or because she opposed a practice which she reasonably believed to be unlawful under Title VII, or
-2-
Houston 3003665v.1

because she filed a Charge of Discrimination with the EEOC, or provided testimony or evidence related to this lawsuit or to the investigation of EEOC Charge No. 330-200404636. 3. Defendant will maintain its written equal employment opportunity policy which sets forth the requirements of Federal laws against employment discrimination and that specifically includes that it is unlawful to retaliate against any current or former employee for opposing any practice made unlawful by Title VII.
Relief for Charging Party 4. Defendant agrees to pay the sum of TWENTY-SEVEN THOUSAND NO/IOO
DOLLARS ($27,000.00), less legally required tax deductions, to Sally Farris for back pay. Said sum shall be paid within fifteen (15) days from the date of entry of the Decree. Defendant shall mail or deliver the check to Ms. Farris at the address provided by the Commission to Defendant. A copy of the check disbursed to Ms. Farris shall be mailed to the Commission's undersigned counsel of record on the same day the check is mailed to her. S. Defendant agrees to pay the sum of THIRTEEN THOUSAND NOIIOO DOLLARS ($13,000.00) to Sally Farris for compensatory damages. No amounts will be withheld for taxation purposes. Defendant agrees to issue Internal Revenue Service ("IRS") Form 1099 to Ms. Farris who will have the sole responsibility for paying any federal, state or local taxes, including federal income tax that may be due on the aforementioned monetary award. Said sum shall be paid within fifteen (15) days from the date of entry of the Decree. Defendant shall mail or deliver the check to Ms. Farris at the address
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Houston 3003665v.1

provided by the Commission to Defendant. A copy of the check disbursed to Ms. Farris shall be mailed to the Commission's undersigned counsel of record on the same day the check is mailed to her. 6. Defendant agrees that within ten (10) days after entry of this Decree, it will remove from Charging Party's personnel file any documents referencing her charge of discrimination, the Commission's lawsuit or this Consent Decree entered in resolution of the lawsuit. These documents shall not be part of her personnel file but shall be kept segregated in a separate, confidential folder. Defendant agrees not to reference any of the following to any potential employer of Ms. Farris: her Charge of Discrimination, the Commission's lawsuit, or this Consent Decree entered in the Commission's lawsuit.
Effect of the Decree 7. This Consent Decree shall be binding on Defendant's specialized practice centers and all
successors-in-interest. Defendant will notify all such successors-in-interest of the existence and terms of this Consent Decree. 8. During the Consent Period, the Court shall retain jurisdiction to assure compliance with this Decree and to permit entry of such filliher orders or modifications as may be appropriate. The Commission is specifically authorized to seek Court-ordered enforcement of this Decree in the event of a breach of any of the provisions herein. 9. The Commission agrees that, in the event the Commission believes Defendant is in violation of any provision of this Consent Decree, the Commission shall notify Defendant, through their undersigned counsel, of such violation and afford Defendant the opportunity to remedy as may be appropriate any such alleged violation within 30 days of
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such notice, before instituting any legal action to enforce such provision(s).

10. Nothing in this Consent Decree shall be construed to preclude the Commission from filing a separate action under Title VII or any other statute which the Commission enforces in the future for any alleged violations by Defendant not resolved by this Decree.

11. Each party to this action shall bear their own costs and attorney's fees. 12. Each signatory certifies that he or she is authorized to execute this document on behalf of
the party whom he or she represents.

Signed this

I t ~ day of_--=~_r;;r=--=,----_·___"2006 at Houston, Texas.

J

x::::::&
Honorable Lynn

-.
N.

~ ~~ A----.~

United States District Judge

Houston 3003665v.1

AGREED AND CONSENTED TO:

ATIORNEY FOR PLAINTIFF EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION

ATTORNEY FOR DEFENDANT TEXAS EAR NOSE & THROAT CONSULTATNTS, P.L.L.c.

By,j'm...ti P71«" Cry 1""'" ;"",~) Aimee L. McFerren Kentucky Bar No. 89912 Federall.D. No. 36953 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Houston District Office 1919 Smith Street, 7th Floor Houston, Texas 77002-8049 (713) 209-3390 (713) 209-3402 (fax)

By~L~+ Douglas E. Hamel Texas Bar No. 08818300 Federal J.D. No. 3644 Vanetta L. Christ Texas Bar No. 24050417 Federal J.D. No. 611166 VINSON & ELKINS LLP 1001 Fannin Street, Suite 2500 Houston, Texas 77002 (713) 758-2036 (713) 615-5388 (fax)

Counsel for Plaintiff

Counsel for Defendant
Date: _\_tl....!./_\_~-f/_2_0_0__ ~ _

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 E.E.O.C. v. Texas Ear, Nose & Throat Consultants, P.L.L.C., Not Reported in F.Supp.2d...

2006 WL 626309 Only the Westlaw citation is currently available.
United States District Court, S.D. Texas, Houston Division.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
TEXAS EAR, NOSE & THROAT CONSULTANTS, P.L.L.C. Defendant.
No. Civ.A. H-05-3374. | March 10, 2006.
Attorneys and Law Firms
Aimee Lynn McFerren, Kathy D. Boutchee, Houston, TX, for Plaintiff.
Vanetta Loraine Christ, Vinson Elkins LLP, Douglas Edward Hamel, Vinson and Elkins, Houston, TX, for Defendant.
Opinion

MEMORANDUM AND ORDER

SMITH, Magistrate J.
*1 Before the court1 is defendant Texas Ear, Nose & Throat Consultants, P.L.L.C.’s (“TENT”) motion to strike paragraphs 10, 11, 13, and 15 of plaintiff Equal Employment Opportunity Commission’s complaint (Dkt.9). The EEOC has filed a response and a related motion for leave to amend their complaint by deleting contested portions of paragraph 10 (Dkt.Nos.12, 13). For the reasons explained below, the motion for leave to amend paragraph 10 of the complaint is granted, and the motion to strike the remaining paragraphs (11, 13, and 15) is denied.

1

This case has been referred to this court for all pretrial

matters by U.S. District Judge Lynn Hughes.

In its complaint, the EEOC alleges that TENT engaged in unlawful employment discrimination against Sally Farris, a former practice administrator or office manager for TENT. TENT contends that Farris disclosed communications protected by the attorney-client privilege to the EEOC and the EEOC in turn published these privileged communications in paragraphs 10, 11, 13, and 15 of the complaint. TENT requests the court strike all references in these paragraphs to what Farris said to

TENT’s attorney, or what TENT’s attorney said to her, because “these communications were for the purpose of obtaining legal advice or were legal advice subject to the privilege accorded attorney-client communications.”2

2

Dkt. 9.

The EEOC has agreed to remove disputed language from paragraph 10 of its complaint and has accordingly requested leave to file an amended complaint to reflect this change. This motion for leave to amend was filed well before the deadline set in the scheduling order, and the court will therefore grant such leave pursuant to Federal Rule of Civil Procedure 15(a).
On the remaining paragraphs of the complaint, however, the EEOC stands firm on the complaint as submitted. The EEOC affirms that “most of the language [TENT] moves to strike relates to purely factual events which are not subject to the privilege accorded attorney-client communications.”3 The court agrees. The statements in paragraphs 11, 13, and 15 are not confidential attorney-client communications and are therefore not privileged. Paragraph 11 describes Farris relating to TENT’s Board of Directors the purported behavior of a physician and that TENT’s corporate counsel gave her guidance in dealing with it. This paragraph does not put forward the substance of corporate counsel’s advice; it merely relates the Farris informed the Board of such advice. Paragraphs 13 and 15 state that Farris twice wrote to TENT’s corporate counsel to tell him that she felt she had been retaliated against for going to the Board.

3

Dkt. 12.

A corporate client has a privilege to refuse to disclose, and prevent its attorneys from disclosing, confidential communications between its representatives and its attorneys when the communications were made to obtain legal services. Nguyen v. Excel Corp., 197 F.3d 200, 206 (5th Cir.1999). Farris, however, was clearly not acting as a corporate representative seeking to obtain legal services on behalf of TENT when she sent these letters; these letters were sent to notify TENT that Farris believed that she was being unlawfully retaliated against by TENT. Cf. Upjohn Co. et al. v. United States, 449 U.S. 383, 395, 101 S.Ct. 677, 66 L.Ed.2d 584 (U.S.1981) (attorney-client privilege extends only to communications; it does not protect disclosure of underlying facts by those who communicated with an attorney). There is no aspect of TENT’s confidential communications with its counsel implicated here.
1

E.E.O.C. v. Texas Ear, Nose & Throat Consultants, P.L.L.C., Not Reported in F.Supp.2d...

*2 The motion to strike is therefore denied.

	  

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U.S. District Court SOUTHERN DISTRICT OF TEXAS (Houston) CIVIL DOCKET FOR CASE #: 4:05-cv-03374

CLOSED, MAG

EEOC v. Texas Ear, Nose & Throat Consultants, P.L.L.C. Assigned to: Judge Lynn N. Hughes Referred to: Magistrate Judge Stephen Smith Cause: 28:451 Employment Discrimination

Date Filed: 09/30/2005 Date Terminated: 10/16/2006 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Aimee Lynn McFerren EEOC 1919 Smith St 7th Floor Houston, TX 77002 713-209-3390 Fax: 713-209-3402 Email: aimee.mcferren@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathy D Boutchee EEOC 1919 Smith St 7th Floor Houston, TX 77002 713-209-3399 Fax: 713-209-3402 fax Email: kathy.boutchee@eeoc.gov TERMINATED: 10/14/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant Texas Ear, Nose & Throat Consultants, P.L.L.C.

represented by Vanetta Loraine Christ Vinson Elkins LLP First City Tower 1001 Fannin Ste 2300 Houston, TX 77002-6760 713-758-2624 Fax: 713-615-5137 Email: lchrist@velaw.com

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LEAD ATTORNEY ATTORNEY TO BE NOTICED
Douglas Edward Hamel Vinson and Elkins 1001 Fannin 2636 First City Tower Houston, TX 77002-6760 713-758-2036 Fax: 713-615-5388 Email: dhamel@velaw.com ATTORNEY TO BE NOTICED

Date Filed 09/30/2005 09/30/2005 09/30/2005 10/05/2005 10/13/2005
10/14/2005 11/04/2005
11/04/2005 11/04/2005

#

Docket Text

1 COMPLAINT against Texas Ear, Nose & Throat Consultants, P.L.L.C. (Filing fee $ 250) filed by Equal Employment Opportunity Commission.(bgoolsby, ) Additional attachment(s) added on 10/3/2005 (lfilmore, ). (Entered: 09/30/2005)
Summons Issued as to Texas Ear, Nose & Throat Consultants, P.L.L.C. , filed.(bgoolsby, ) (Entered: 09/30/2005)
2 ORDER FOR CONFERENCE. Initial Conference set for 12/19/2005 at 10:30 AM in Room 11122 before Judge Lynn N. Hughes. ( Signed by Judge Lynn N. Hughes ) Parties notified. (bgoolsby, ) (Entered: 09/30/2005)
Fee waived re: Federal Agency Pltf.1 Complaint , filed. (ejones, ) (Entered: 10/05/2005)
3 MOTION to Substitute Attorney Aimee L. McFerren in place of Kathy D. Boutchee by Equal Employment Opportunity Commission, filed. Motion Docket Date 11/2/2005. (Attachments: # 1 Proposed Order)(McFerren, Aimee) (Entered: 10/13/2005)
4 ORDER granting 3 Motion to Substitute Attorney Aimee L. McFerrin. Kathy D Boutchee is withdrawn.( Signed by Judge Lynn N. Hughes ) Parties notified.(dkelly, ) (Entered: 10/14/2005)
5 ORDER FOR DISCLOSURE. By five business days before the initial pretrial conference, the company and the worker will furnish each other with the ordered information and they must file a joint chronology.( Signed by Judge Lynn N. Hughes ) Parties notified.(dkelly, ) (Entered: 11/04/2005)
6 General Reference to Magistrate Judge Stephen Smith. Parties notified. (dkelly, ) (Entered: 11/04/2005)
7 ORDER for Initial Pretrial and Scheduling Conference. Initial Conference set for 12/13/2005 at 10:00 AM in Courtroom 702 before Magistrate Judge Stephen Wm Smith.( Signed by Judge Stephen Wm Smith ) Parties notified.(rkonieczny, ) (Entered: 11/04/2005)

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11/04/2005 11/14/2005 11/14/2005 11/30/2005 11/30/2005 11/30/2005 12/06/2005 12/13/2005 12/13/2005
02/06/2006 03/10/2006 05/01/2006 05/01/2006

8 RETURN of Service Executed as to Texas Ear, Nose & Throat Consultants, P.L.L.C. on 10/21/05 re: Original Complaint, filed.(mkallie, ) (Entered: 11/10/2005)
9 MOTION to Strike Privileged Communications and Answer by Texas Ear, Nose & Throat Consultants, P.L.L.C., filed. Motion Docket Date 12/5/2005. (Attachments: # 1 Proposed Order)(Hamel, Douglas) (Entered: 11/14/2005)
10 ANSWER to Complaint by Texas Ear, Nose & Throat Consultants, P.L.L.C., filed.(Hamel, Douglas) (Entered: 11/14/2005)
11 JOINT DISCOVERY/CASE MANAGEMENT PLAN by Equal Employment Opportunity Commission, filed.(McFerren, Aimee) (Entered: 11/30/2005)
12 RESPONSE in Opposition to 9 MOTION to Strike Privileged Communications and Answer, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Complaint # 2 Proposed Order)(McFerren, Aimee) (Entered: 11/30/2005)
13 Unopposed MOTION to Amend 1 Complaint by Equal Employment Opportunity Commission, filed. Motion Docket Date 12/20/2005. (Attachments: # 1 Complaint # 2 Proposed Order)(McFerren, Aimee) (Entered: 11/30/2005)
14 NOTICE Parties' Joint Chronology by Texas Ear, Nose & Throat Consultants, P.L.L.C., filed. (Attachments: # 1 Exhibit 1)(Hamel, Douglas) (Entered: 12/06/2005)
15 Minute Entry for proceedings held before Judge Stephen Wm Smith. SCHEDULING CONFERENCE held on 12/13/2005. Scheduling order to follow. Appearances: Douglas Edward Hamel, Aimee Lynn McFerren.(ERO:R.Konieczny), filed.(rkonieczny, ) (Entered: 12/13/2005)
16 SCHEDULING ORDER: ETT: 4 days. Jury trial Amended Pleadings due by 5/1/2006 Joinder of Parties due by 1/3/2006 Pltf Expert Witness List due by 4/3/2006 Deft Expert Witness List due by 5/1/2006 Discovery due by 8/31/2006 Dispositive Motion Filing due by 9/29/2006 Non-Dispositive Motion Filing due by 9/29/2006.( Signed by Judge Stephen Wm Smith ) Parties notified.(rkonieczny, ) (Entered: 12/13/2005)
17 NOTICE of Appearance by Vanetta Loraine Christ on behalf of Texas Ear, Nose & Throat Consultants, P.L.L.C., filed. (jmarchand, ) (Entered: 02/06/2006)
18 MEMORANDUM and ORDER denying 9 Motion to Strike, granting 13 Motion to Amend .( Signed by Judge Stephen Wm Smith ) Parties notified.(rkonieczny) (Entered: 03/10/2006)
19 DOCKETED IN ERROR. ATTORNEY WILL REFILE CORRECTLY. AMENDED ANSWER to by Texas Ear, Nose & Throat Consultants, P.L.L.C., filed. (Attachments: # 1 Exhibit Proposed Amended Answer)(Christ, Vanetta) Modified on 5/2/2006 (thanniable, ). (Entered: 05/01/2006)
22 AMENDED ANSWER to 1 Complaint by Texas Ear, Nose & Throat Consultants, P.L.L.C., filed. (jmarchand) (Entered: 05/26/2006)

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05/03/2006
05/26/2006 10/13/2006 10/16/2006 12/04/2006

20 MOTION to Amend by Texas Ear, Nose & Throat Consultants, P.L.L.C., filed. Motion Docket Date 5/23/2006. (Attachments: # 1 Exhibit Proposed Amended Answer# 2 Proposed Order Proposed Order)(Christ, Vanetta) (Entered: 05/03/2006)
21 ORDER granting 20 Motion to Amend Answer. Amended Answer deemed filed as of 5/1/2006.( Signed by Judge Stephen Wm Smith ) Parties notified.(jmarchand) (Entered: 05/26/2006)
23 MOTION for Settlement by Texas Ear, Nose & Throat Consultants, P.L.L.C., filed. Motion Docket Date 11/2/2006. (Attachments: # 1 Exhibit Consent Decree)(Christ, Vanetta) (Entered: 10/13/2006)
24 CONSENT DECREE. Case terminated on 10/16/2006.( Signed by Judge Lynn N. Hughes ) Parties notified.(dkelly, ) (Entered: 10/17/2006)
25 DOCKETED IN ERROR- RECEIPT of Transfer Letter re: transfer of case to Northern District of Texas, Dallas Division. New Case # assigned: 3:06CV2177 and received on 11/27/2006. , filed. (mmar, ) Modified on 12/6/2006 (mmar, ). (Entered: 12/05/2006)

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