Case 3:04-cv-00159-RP-RAW Document 42 Filed 09/07/05 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA
DAVENPORT DIVISION

WALKESHEIA WARD, DARLENA MCBRIDE, )

TANYA GARDNER, ROBERT DONELSON, )

RAQUEL MAIDEN, CHARLES SMITH,

)

LARONICA WILLIAMS, LATOYA YOUNG, )

MACHELLE GUY, ROSCOE HAYMON,

)

ROBERT WILLIAMS, DAMENICA JOHNSON, )

and JAMES THOMAS

)

)

Plaintiffs,

)

)

v.

)

)

VON MAUR, INC.,

)

)

Defendant.

)

Law No. 3:04-CV-00159-RP-RAW
FOURTH AMENDED COMPLAINT

Plaintiffs, Walkesheia Ward, Darlena McBride, Tanya Gardner, Robert Donelson, Raquel Maiden, Charles Smith, Laronica Williams, Latoya Young, Machelle Guy, Roscoe Haymon, Robert Williams, Damenica Johnson and James Thomas (collectively “Plaintiffs”), by their attorneys, Pedersen & Weinstein LLP, allege for their Fourth Amended Complaint against Defendant Von Maur, Inc. (“Von Maur” or “Defendant”) as follows:
JURISDICTION AND VENUE 1. Jurisdiction is based on 28 U.S.C. §§ 1331 and 1343, and principles of pendent and supplemental jurisdiction 2. Venue is proper in the Southern District of Iowa pursuant to 28 U.S.C. § 1391(a).
PARTIES 3. Walkesheia Ward (“Ward”), who is African American, is an adult individual who, at all times relevant to this Fourth Amended Complaint, has been a resident of the State of Iowa.

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Ward applied for a position with Defendant in May 2003, but was denied employment on the basis of her race.
4. Darlena McBride (“McBride”), who is African American, is an adult individual who, at all times relevant to this Fourth Amended Complaint, has been a resident of the State of Iowa. McBride applied for a position with Defendant in May or June 2003, but was denied employment on the basis of her race.
5. Tanya Gardner (“Gardner”), who is African American, is an adult individual who, at all times relevant to this Fourth Amended Complaint, has been a resident of the State of Illinois. Gardner applied for a position with Defendant in May 2003, but was denied employment on the basis of her race.
6. Robert Donelson (“Donelson”), who is African American, is an adult individual who, at all times relevant to this Fourth Amended Complaint, has been a resident of the State of Illinois. Donelson applied for a position with Defendant in May 2004, but was denied employment on the basis of his race.
7. Raquel Maiden (“Maiden”), who is African American, is an adult individual who, at all times relevant to this Fourth Amended Complaint, has been a resident of the State of Illinois. Maiden applied for a position with Defendant in August 2004, but was denied employment on the basis of her race.
8. Charles Smith (“Smith”), who is African American, is an adult individual who, at all times relevant to this Fourth Amended Complaint, has been a resident of the State of Illinois. Smith applied for a position with Defendant in September 2004, but was denied employment on the basis of his race.
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9. Laronica Williams (“L. Williams”), who is African American, is an adult individual who, at all times relevant to this Fourth Amended Complaint, has been a resident of the State of Iowa. L. Williams applied for a position with Defendant in July 2003, but was denied employment on the basis of her race.
10. Latoya Young (“Young”), who is African American, is an adult individual who, at all times relevant to this Fourth Amended Complaint, has been a resident of the State of Iowa. Young applied for a position with Defendant in 2003, but was denied employment on the basis of her race.
11. Machelle Guy (“Guy”), who is African American, is an adult individual who, at all times relevant to this Fourth Amended Complaint, has been a resident of the State of Illinois. Guy applied for a position with Defendant in 2003, but was denied employment on the basis of her race.
12. Roscoe Haymon (“Haymon”), who is African American, is an adult individual who, at all times relevant to this Fourth Amended Complaint, has been a resident of the State of Illinois. Haymon applied for a position with Defendant in August 2004, but was denied employment on the basis of his race.
13. Robert Williams (“R. Williams”), who is African American, is an adult individual who, at all times relevant to this Fourth Amended Complaint, has been a resident of the State of Iowa. R. Williams applied for a position with Defendant in April 2004 and June 2004, but was denied employment on the basis of his race.
14. Damenica Johnson (“Johnson”), who is African American, is an adult individual who, at all times relevant to this Fourth Amended Complaint, has been a resident of the State of
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Iowa. Johnson applied for a position with Defendant in 2001 or 2002 and again in or around June 2003, but was denied employment on the basis of her race.
15. James Thomas (“Thomas”), who is African American, is an adult individual who, at all times relevant to this Fourth Amended Complaint, has been a resident of the State of Iowa. Thomas applied for a position with Defendant in June of 2004, but was denied employment because of his race.
16. Von Maur is a retail department store with twenty-two stores in Illinois, Indiana, Iowa, Kentucky, Michigan, Minnesota, Nebraska and Kansas. Additionally, Von Maur has several warehouses/distribution centers that support the retail stores. One such warehouse is located in Davenport, Iowa. At all times relevant to this Fourth Amended Complaint, Defendant employed more than fifteen (15) employees and was engaged in an industry affecting commerce.
FACTUAL ALLEGATIONS Von Maur Systematically Excludes African American Applicants From Employment
17. Notwithstanding the African American population in Davenport and Scott County, Iowa, Von Maur employs very few African Americans in its retail store and warehouse. Upon information and belief, and based on Census Bureau data for Davenport and Scott County, in a race neutral environment, Von Maur would have employed two to three times the number of African Americans actually employed during the relevant time period.
18. The makeup of Von Maur’s employee population is skewed by race because of its intentionally discriminatory hiring practices and refusal to hire qualified African Americans. Some of Von Maur’s discriminatory hiring practices include, but are not limited to, the following:
a. failing to interview qualified African Americans for available positions;
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b. requiring African Americans to submit multiple applications before granting them interviews;
c. “losing” or “misplacing” applications of African Americans; d. discouraging African Americans from applying by claiming there are no available
positions; e. subjecting African Americans to stricter scrutiny during interviews; f. ignoring African Americans’ inquiries regarding the status of their employment
applications and/or efforts to provide additional information; g. exaggerating the job requirements to make it appear that African American
applicants are not qualified; and h. denying African Americans employment based on pretextual claims, such as
“poor credit history.” Von Maur Engaged In A Pattern And Practice Of Race Discrimination
19. Von Maur has and continues to engage in a pattern and practice of race discrimination. As further evidence of Von Maur’s discriminatory animus, upon information and belief, the few African Americans who have been hired by Von Maur have been subject to race discrimination and retaliation. For example, one African American woman was terminated from Von Maur’s warehouse shortly after she complained that her supervisor made racist comments to her. Further, it is not uncommon for African Americans hired by Von Maur to be terminated within a short period of time for pretexual reasons. For example, the Davenport Civil Rights Commission recently ordered Von Maur to compensate a former African American employee who worked in Von Maur’s retail store after finding her termination was a pretext for discrimination.
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20. Consistent with the discriminatory hiring practices described above, each Plaintiff applied for and was denied a position with Von Maur based on race, despite his or her qualifications. Moreover, following Von Maur’s rejection of each Plaintiff, Von Maur continued to interview and hire equally or less qualified white and non-minority applicants for the same positions for which Plaintiffs applied. All of the foregoing demonstrate Von Maur’s unlawful goal of striving to have an all-white, or nearly all-white, workforce. Walkesheia Ward
21. Ward applied for a full time position with Von Maur on or about May 29, 2003. Ward learned that Von Maur was hiring from an advertisement in the local paper. At the time of her application, Ward was pursuing a degree at Scott Community College and had several years of work experience.
22. Von Maur Human Resource Manager, Lisa Harthoorn (“Harthoorn”), interviewed Ward at 10:00 a.m. on or around May 30, 2003. Von Maur provides interviewers such as Harthoorn with a list of questions called the Warehouse First Interview Questions. The list contains fifteen questions that are purportedly tailored to various positions. Upon information and belief, during Ward’s interview, she was only asked approximately five questions from this list. Harthoorn did not ask questions that would have elicited Ward’s strengths and qualifications. For example, Harthoorn failed to ask Ward “what are three qualities you feel you could bring to Von Maur,” and “tell me about your most recent group effort. What was your role in reaching the goal?” Instead, Harthoorn asked whether Ward would be available to work overtime and whether her class schedule would interfere with the required work hours. Ward responded that she was interested in working overtime and that her school schedule would not interfere with the required work hours.
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23. Notwithstanding Ward’s qualifications, expressed interest in the position and availability, Harthoorn subjected Ward to undue scrutiny during the interview. To Ward, it appeared that Harthoorn had made up her mind about Ward before she asked a single question. Harthoorn continued to press Ward about her hours of availability even after Ward confirmed that her classes would not interfere with work.
24. At no time during the interview did Harthoorn provide any details to Ward about the available job. At the end of the interview, Harthoorn told Ward that there were no more positions available. When Ward questioned Harthoorn why she was interviewed if there were no positions available, Harthoorn told her Von Maur conducted random interviews on occasion.
25. Later on May 30, 2003, Ward’s Caucasian friend, Kristy Renkosik (“Renkosik”), also had an interview with Von Maur for the same position. Like Ward, Renkosik applied at Von Maur on May 29, 2003, in response to an advertisement in the local paper. Renkosik was also interviewed by Harthoorn, but her interview experience was very different than Ward’s.
26. Unlike Ward, upon information and belief, Harthoorn asked Renkosik approximately ten questions from the Warehouse First Interview Question, including “what are three qualities that you feel you could bring to Von Maur?” (Renkosik apparently only answered with one quality) and “tell me about your most recent group effort. What was your role in reaching the goal?” Also unlike Ward, Renkosik was given a second interview with manager Cathy Rockwell. Renkosik was not asked about her availability for overtime, and unlike Ward, Renkosik was given a tour of the warehouse and was told that Von Maur was an excellent place to work. Von Maur did not tell Renkosik there were no positions available; instead, Von Maur offered Renkosik a position, notwithstanding the fact that only hours earlier, Harthoorn had told Ward there were no positions available.
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27. Ward subsequently received a letter from Von Maur that provided a different explanation for the reason she was not hired. The letter simply stated words to the effect of, “You were given consideration for a position; however, at this time we are pursuing other candidates.” Von Maur never provided a legitimate, nondiscriminatory reason for not hiring Ward.
28. After rejecting Ward and hiring Renkosik, Von Maur continued to pursue other candidates. Von Maur interviewed and hired several equally or less qualified white and nonminority applicants for the position Ward was told was no longer available. Tanya Gardner
29. Gardner applied at Von Maur in or around May of 2003. Like Ward, Gardner applied in response to an advertisement in the local newspaper. After Gardner filled out her application, she was told by a Von Maur representative that she would be contacted by someone from Von Maur within a week.
30. However, when Gardner heard nothing from Von Maur, she went back to check on the status of her application. At that time, Gardner was told that Von Maur “lost” her application and was questioned whether she was sure she had applied. Gardner watched two women shuffle through papers, but they never found her application. Gardner was required to fill out a second application before she was interviewed.
31. Gardner was qualified for the position, and during her interview the Von Maur representative commented to Gardner that her past warehouse experience would be helpful for the job. Gardner felt that the interview went well, but shortly thereafter, she received a generic rejection letter. Von Maur never provided a legitimate non-discriminatory reason for failing to hire Gardner.
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32. After Gardner was rejected, she continued to see advertisements that Von Maur was hiring for the same position. Von Maur continued to interview and hire equally or less qualified white and non-minority applicants. Darlena McBride
33. McBride also applied at Von Maur in or around May of 2003. McBride filled out an application and, like Gardner, was told she would hear from Von Maur within a week. However, McBride never heard from Von Maur, so she went back to Von Maur to check on the status of her application. Also like Gardner, McBride was told that her application had been “lost.” McBride was required to fill out a second application before she was interviewed.
34. McBride felt the interview went well and was confident she would be offered a position, especially because the interviewer told her she was applying at a good time because Von Maur had so many positions available. Moreover, the interviewer told McBride Von Maur would call her to let her know where she would be placed. However, on or about June 12, 2003, McBride received a generic rejection letter. Von Maur never provided a legitimate nondiscriminatory reason for failing to hire McBride. Robert Donelson
35. Donelson applied to work in Von Maur’s warehouse in Davenport, Iowa in or around May 2004. Donelson was qualified for the position, but was not hired because of his race.
36. Donelson applied for the warehouse position shortly after he saw an advertisement in the paper. On Donelson’s employment application, as well as on the resume he submitted, Donelson listed his previous employment experience. Donelson was well-qualified for the position considering his fifteen years of warehouse experience, including supervisory responsibilities.
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37. Donelson was briefly interviewed and told that someone would contact him to let him know whether he would be hired. When Donelson did not hear from Von Maur for three or four days after he applied, he called Von Maur to check on the status of his application. Von Maur told Donelson it was still reviewing applications and that someone would contact him soon. However, Von Maur never contacted Donelson and he was not hired. Donelson was surprised that Von Maur did not hire him given his experience and qualifications. Donelson felt confident that he was an excellent candidate for the job and believes the only reason he was not hired was because of his race.
38. Notwithstanding Von Maur’s failure to hire Donelson, he continued to see advertisements in the newspaper indicating that Von Maur was seeking applicants for warehouse positions. Raquel Maiden
39. Maiden applied to work for Von Maur in or around August 2004. Maiden applied for the position of sales associate in Von Maur’s retail store in Davenport, Iowa. Maiden was qualified for the position, but was not hired because of her race.
40. Maiden applied to work for Von Maur shortly after she saw an advertisement in the paper. When Maiden applied in person in the Davenport store, she noticed there were no African American or other minority individuals working in the store.
41. On Maiden’s employment application, she listed her previous employment experience, which included retail and sales experience. Given her experience and qualifications, Maiden was confident she was an excellent candidate for the job. However, shortly following Maiden’s interview with a store manager, she received a letter from Von Maur which stated that she would not be hired.
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42. After Maiden received the rejection letter from Von Maur, she continued to see advertisements in the newspaper indicating that Von Maur was seeking applicants for the same position of sales associate at its retail store. Charles Smith
43. Smith applied to work for Von Maur in or around September 2004. Smith applied to work as a truck driver for Von Maur’s warehouse in Davenport, Iowa. Smith was qualified for the position, but was not hired because of his race.
44. Smith applied for a position with Von Maur shortly after he saw an advertisement in the paper. On Smith’s employment application, Smith listed his previous employment experience, which included approximately 30 years of experience as a truck driver and a clean driving record.
45. Smith was briefly interviewed at Von Maur’s corporate headquarters when he submitted his application and was told that someone would contact him soon. Approximately two days later, Von Maur sent Smith a letter advising him it had obtained a copy of his consumer credit report and that the report contained “derogatory information.” The letter also advised Smith to call the Director of Human Resources, Gayle Haun (“Haun”), if there was any information on the credit report that was inaccurate or that he would like to explain. The letter contained a telephone number for Smith to call Haun and further advised him that Von Maur planned to make its final hiring decision in approximately one week.
46. In response to Von Maur’s letter, Smith contacted Von Maur at least twice because there was information on his credit report that he wanted to discuss. Von Maur failed to return Smith’s calls, thereby denying him the opportunity to explain what he believed to be inaccuracies on his credit report. Accordingly, to the extent Von Maur attempts to use Smith’s
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credit report to justify its failure to hire Smith, Von Maur’s failure to allow him to explain the credit report demonstrates this explanation is a pretext for discrimination.
47. Following Von Maur’s rejection of Smith, he continued to see advertisements in the newspaper indicating that Von Maur was seeking applicants for the same position of truck driver. Laronica Williams
48. In or around July 2003, L. Williams applied for a position as a sales associate at Von Maur at its retail store in Davenport, Iowa. L. Williams applied for this position in person shortly after she saw an advertisement in the paper for openings at Von Maur’s retail store.
49. On L. Williams’ application for employment with Von Maur, she listed her previous employment experience, which included significant retail experience. The day after L. Williams submitted her application, she called Von Maur’s human resources department (where she had turned in her application) to follow up. The Von Maur employee with whom L. Williams spoke told L. Williams she could not find her application, but that someone would get back to her. However, no one from Von Maur called L. Williams.
50. A few days later L. Williams called Von Maur’s human resources department again to check on the status of her application. L. Williams was told that Von Maur was still reviewing applications and that someone would call her. Once again, however, no one from Von Maur ever called L. Williams and she was not hired.
51. In addition, L. Williams’ sister, Kara Williams (“Kara”), who is also African American, applied for a position at Von Maur at its retail store in Davenport, Iowa the same day L. Williams did. Kara also listed her retail experience on her application for employment, but she was not hired. At the time Kara applied, a Von Maur representative conducted a short
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interview with her, but when Kara called Von Maur to check on the status of her application, she was told it could not be located. Latoya Young
52. In or around 2003, Young applied to work in Von Maur’s warehouse located in Davenport, Iowa. Young applied in person after she saw an advertisement in the paper for warehouse, clerical and data entry positions.
53. Young completed the Von Maur application, including her qualifications and experience. Young had relevant work experience.
54. A Von Maur representative told Young someone would call her if Von Maur was interested, but no one from Von Maur called. Young called Von Maur several times after she applied, but Von Maur failed to return her calls.
55. Young eventually received a generic rejection letter from Von Maur. The letter said the position for which she applied had been filled. However, within the next week or two, Young saw the same advertisement that Von Maur was seeking applicants for warehouse, clerical and data entry position. Machelle Guy
56. Guy graduated from Western Illinois University in June 2000 with a degree in fashion merchandising. Shortly after she graduated, she applied for Von Maur’s executive training program. Guy was aware of Von Maur’s executive training program because Von Maur recruited fashion merchandising students on Western Illinois University’s campus. Guy interviewed for the position in Davenport, Iowa, but the very next day she received a rejection letter.
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57. Guy again applied to work for Von Maur in or around mid-2003. This time Guy applied after seeing an advertisement in the paper. According to the advertisement, Von Maur had an opening for the position of assistant buyer as well as open positions in the purchasing department.
58. In addition to her degree in fashion merchandising, by mid-2003, Guy had significant retail experience, including management experience.
59. Guy applied in person at Von Maur’s Davenport, Iowa corporate office. Guy submitted her employment application and resume, which listed her educational background and work experience.
60. When Guy turned in her application, she asked the person at the service desk whether she could speak with someone from human resources. Guy was told that no one was available, but that someone would be in touch with her regarding her application. However, like the other Plaintiffs, Guy never heard from Von Maur.
61. Guy was very interested in Von Maur’s executive training program, particularly given her degree and experience. Accordingly, Guy followed up with Von Maur on several occasions. Von Maur never returned Guy’s calls. Notwithstanding Von Maur’s failure to interview or hire Guy, she continued to see the advertisement in the paper that Von Maur was seeking to hire an assistant buyer and to fill positions in its purchasing department.
62. Von Maur’s refusal to interview or hire Guy was based on her race. Upon information and belief, Von Maur hired a less qualified white woman into its executive training program. Indeed, one of Guy’s former white co-workers was hired into the executive training program when she had only completed two years of college. Moreover, the white woman Von Maur hired was not pursuing a degree in fashion merchandising.
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Roscoe Haymon 63. On or around August 12, 2004, Haymon applied to work as a truck driver for
Defendant’s warehouse in Davenport, Iowa. He applied for this position shortly after he saw an advertisement in the newspaper.
64. The advertisement Haymon saw in the paper stated that applicants should apply in person at Von Maur’s corporate office. The qualifications specified in the ad included five years of driving experience, a clean driving record, and a neat appearance, among other things. Haymon met each of the stated qualifications. In fact, he had 27 years of experience as a truck driver for Eagle Foods.
65. Haymon went in to Von Maur on or around August 12, 2004 and submitted his application for employment. Haymon was told that no one was available to interview him, but that his application would be given to the supervisor.
66. On his application for employment with Von Maur, Haymon listed his 27 years of experience as a truck driver for Eagle Foods as well as awards he had received for his safe driving record. Notwithstanding his significant experience and clean driving record Von Maur never contacted Haymon to schedule an interview.
67. Instead, Haymon received a letter from one of Von Maur’s human resource managers dated August 23, 2004. The letter stated, in part: “Thank you for applying for a position with Von Maur. You were given consideration for a position; however, at this time we are pursuing other candidates. We will retain your application in our active file for six months.” After Haymon received this letter from Von Maur, he continued to see an advertisement in the newspaper indicating that Von Maur was seeking applicants for the position of truck driver.
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68. Haymon was surprised that Defendant did not hire him given his experience and qualifications. Haymon felt confident that he was an excellent candidate for the job and believes the only reason he was not hired was because of his race. Indeed, Defendant hired at least three of Haymon’s co-workers from his previous employer; all three are white. Each of these former co-workers had less experience than Haymon. Robert Williams
69. R. Williams applied to work for Von Maur in or around late April 2004, and again in or around June 2004. R. Williams applied for a position in Defendant’s warehouse in Davenport, Iowa.
70. R. Williams first applied for a position with Defendant shortly after he saw an advertisement in the newspaper. He submitted his application in person at Defendant’s corporate office. After completing his application, R. Williams waited approximately two hours for an interview. The white female who ultimately “interviewed” R. Williams spoke with him for only approximately two or three minutes. By comparison, white applicants were interviewed for fifteen to twenty minutes. Despite his qualifications, R. Williams was not offered the job.
71. In or around June 2004, R. Williams saw another advertisement in the newspaper that Defendant was hiring for the same warehouse position. R. Williams again applied in person and waited approximately two hours for an interview. While he waited to be interviewed, R. Williams became acquainted with other applicants and spoke with several of them before and after their interviews. Several Caucasian applicants told R. Williams they were offered positions during their interviews.
72. When R. Williams was finally interviewed, the interview lasted less than five minutes and once again R. Williams was not offered a job. Given his qualifications and
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experience, R. Williams was surprised that he was not hired, especially compared to some of the applicants who told R. Williams they were hired on the spot. For example, a white man who told R. Williams he was studying for his high school equivalency diploma told R. Williams he was hired. Likewise, a white woman wearing sweat pants and a T-shirt with stains was offered a job. R. Williams, who has a high school diploma and was studying to become an R.N., was dressed appropriately and felt confident that he was an excellent candidate for the job; he believes the only reason he was not hired was because of his race.
73. R. Williams’s African American cousin also applied for the warehouse position the same day, but like R. Williams, he was not hired. Damenica Johnson
74. Johnson first applied at Defendant in 2001 or 2002 in response to an advertisement for an opening in Von Maur’s credit department. Johnson previously worked for a credit union for four years, and in the credit union’s Visa department for two years, so Johnson believed her qualifications made her an excellent candidate for the position in Von Maur’s credit department. However, Johnson also indicated on her application that she was interested in any other open positions.
75. Johnson applied in person and submitted a résumé with her application. Johnson also discussed her experience and qualifications with the person at the front desk who took her application. Johnson was told someone from Von Maur would contact her, but she was never contacted.
76. Johnson called Von Maur to follow up on her application approximately three times. The first time Johnson called, she was told Von Maur was still looking through the applications. The second time she called, Johnson was told that the position was filled.
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However, after Johnson was told the position was filled, she continued to see the advertisement for the credit department position in the paper, so she called Von Maur again. This time Johnson was told Von Maur was no longer hiring for the position. Johnson was never interviewed.
77. Johnson applied for a similar position at Von Maur again in or around June 2003. Again she submitted her application and résumé in person and was told she would hear from someone at Von Maur shortly. However, despite her qualifications, no one from Von Maur contacted Johnson and once again she was not interviewed. James Thomas
78. Thomas applied to work for Von Maur in or around June 2004. Thomas applied for a position in Defendant’s warehouse in Davenport, Iowa after he saw an advertisement in the newspaper.
79. Thomas submitted his application in person at Defendant’s corporate office. After completing his application, Thomas waited approximately two hours for an interview. While he was waiting, Thomas observed that there were many other African American applicants waiting to be interviewed. Thomas also watched as several white applicants were taken from the open interview area and given tours of the warehouse. Several of the white applicants, who did not appear to be dressed appropriately for an interview, were offered jobs.
80. Thomas was briefly interviewed by a white man who did not appear to be interested in Thomas, notwithstanding his prior warehouse experience. Thomas was not given a tour of the warehouse, nor was he offered a job.
81. By comparison, Thomas’ white friend, who was not actively seeking employment because she was already employed, was offered a position during her interview. Unlike Thomas, his white friend had no warehouse experience.
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82. Thomas followed up on his application by telephone with Von Maur several times, but he was told Von Maur was not hiring. Von Maur refused to hire Thomas because of his race. The Company Failed to Exercise Reasonable Care To Prevent and Correct Unlawful Conduct
83. Von Maur’s failure to hire Ward, Gardner, McBride, Donelson, Maiden, Smith, Williams, Young, Guy, Haymon, R. Williams, Johnson, Thomas and countless other African American applicants has resulted in a disproportionately low percentage of African American employees at Von Maur.
84. Defendant’s management directed, encouraged, and participated in the abovedescribed unlawful conduct. Further, Defendant failed to exercise reasonable care to prevent and correct promptly any race discrimination.
85. Plaintiffs did not unreasonably fail to take advantage of any preventive or corrective opportunities provided by Defendant or to avoid harm otherwise.
86. The discrimination described above was consistent with Defendant’s standard operating procedure.
87. Defendant acted with malice or with reckless indifference to the federally protected rights of Plaintiffs. Timely Charges of Discrimination
88. Ward timely filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) and Davenport Civil Rights Commission in August of 2003. Ward requested a Notice of Right to Sue on December 27, 2004. The Right to Sue was issued on January 11, 2005.
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89. Donelson, Maiden, Smith, Haymon and R. Williams filed charges of race discrimination with the EEOC in February and March of 2005. Upon receipt of their Notices of Right to Sue, Donelson, Maiden, Smith, Haymon, and R. Williams will seek leave to amend this Complaint to add additional counts under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et al., as amended by the Civil Rights Act of 1991 (“Title VII”). Plaintiffs Suffered Damages
90. As a direct result of the unlawful conduct Plaintiffs experienced, they have suffered extreme emotional distress.
91. Plaintiffs have lost wages, compensation and benefits as a result of Defendant’s unlawful conduct.
92. Plaintiffs’ careers and reputations have been irreparably damaged as a result of Defendant’s unlawful conduct.
93. Plaintiffs suffered loss of enjoyment of life, inconvenience and other nonpecuniary losses as a direct result of Defendant’s unlawful conduct, as well as incurring attorneys’ fees and costs. Punitive Damages
94. Defendant acted and/or failed to act with malice or willfulness or reckless indifference to Plaintiffs’ rights. The conduct alleged herein was willful and wanton and justifies an award of punitive damages.
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COUNT I RACE DISCRIMINATION IN VIOLATION OF TITLE VII
(Ward v. Von Maur) 95. Ward realleges paragraphs 1 through 94 and incorporates them by reference as paragraphs 1 through 94 of Count I of this Complaint. 96. Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et al., as amended by the Civil Rights Act of 1991 (“Title VII”), makes it unlawful to discriminate against any individual in the terms, conditions, or privileges of employment, on the basis of race. 97. By the conduct as alleged herein, Defendant subjected Ward to racial discrimination in violation of Title VII. 98. Plaintiffs assert claims under Title VII under both a disparate treatment theory of liability, and a disparate impact theory of liability.
COUNT II RACE DISCRIMINATION IN VIOLATION OF SECTION 1981
(All Plaintiffs v. Von Maur) 99. Plaintiffs reallege paragraphs 1 through 98 and incorporate them by reference as paragraphs 1 through 98 of Count II of this Complaint. 100. 42 U.S.C. §1981, as amended by the Civil Rights Act of 1991, (“Section 1981”), prohibits discrimination based on race in the performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. 101. By the conduct as alleged herein, Defendants subjected Plaintiffs to race discrimination in violation of Section 1981.
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COUNT III RACE DISCRIMINATION IN VIOLATION OF IOWA CIVIL RIGHTS ACT
(Ward v. Von Maur) 102. Ward realleges paragraphs 1 through 101 and incorporates them by reference as paragraphs 1 through 101 of Count III of this Complaint. 103. The Iowa Civil Right Act, Iowa Code §216.1 et seq., makes it unlawful to refuse to hire, accept, register, classify, or refer for employment, to discharge any employee, or to otherwise discriminate in employment against any applicant for employment or any employee because of the race of such applicant or employee 104. By the conduct as alleged herein, Defendant subjected Ward to race discrimination in violation of the Iowa Civil Rights Act.
COUNT IV INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
IN VIOLATION OF IOWA COMMON LAW (All Plaintiffs v. Von Maur)
105. Plaintiffs reallege paragraphs 1 through 104 and incorporate them by reference as paragraphs 1 through 104 of Count IV of this Complaint.
106. Iowa law recognizes a cause of action for intentional infliction of emotional distress, which makes unlawful certain extreme and outrageous conduct that results in severe emotional distress.
107. Defendant intended to inflict severe emotional distress or had actual knowledge that severe emotional distress was certain to occur by engaging in the conduct described herein, in violation of Iowa law.
22

Case 3:04-cv-00159-RP-RAW Document 42 Filed 09/07/05 Page 23 of 24
108. Through its regular decision-making channels, and by persons authorized to act on behalf of Defendant, Defendant directed, encouraged and participated in the wrongful conduct alleged herein.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court find in their favor and against the Defendant as follows: a. Declare that the acts and conduct of Defendant violate Title VII of the Civil Rights Act of 1964 and 1991, Section 1981, and the Iowa Civil Rights Act; b. Declare that the acts and conduct of Defendant violate Iowa common law; c. Award Plaintiffs the value of all compensation and benefits lost as a result of Defendant’s unlawful conduct; d. Award Plaintiffs the value of all compensation and benefits they will lose in the future as a result of Defendant’s unlawful conduct under Title VII (Ward), Section 1981, Iowa Civil Rights Act (Ward), and Iowa common law; e. In the alternative to paragraph (d), reinstate Plaintiffs with appropriate promotions and seniority and otherwise make Plaintiffs whole; f. Award Plaintiffs compensatory damages under Title VII (Ward), Section 1981, Iowa Civil Rights Act (Ward), and Iowa common law; g. Award Plaintiffs punitive damages under Title VII (Ward), Section 1981, Iowa Civil Rights Act (Ward), and Iowa common law; i. Award Plaintiffs prejudgment interest; j. Award Plaintiffs reasonable attorneys’ fees, costs and disbursements; and k. Award Plaintiffs such other relief as this Court deems just and proper.
23

Case 3:04-cv-00159-RP-RAW Document 42 Filed 09/07/05 Page 24 of 24

DEMAND FOR TRIAL BY JURY

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs demand a trial

by jury on all questions of fact raised by the Complaint.

Dated: August 26, 2005

Respectfully submitted,

/s/ Jill Weinstein Jill Weinstein Pedersen & Weinstein LLP 309 W. Washington Suite 1200 Chicago, IL 60606 (312) 855-1200 (312) 855-1207 (facsimile) jweinstein@pwllp.com

24

 
 Case 3:04-cv-00159-RP-RAW Document 82 Filed 08/02/06 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA CENTRAL DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

vs.

)

)

VON MAUR, INC.,

)

)

Defendant.

)

------------------------------)

WALKESHEIA WARD, DARLENA

)

McBRIDE, TANYA GARDNER,

)

ROBERT DONELSON, RAQUEL

)

MAIDEN, CHARLES SMITH,

)

LARONICA WILLIAMS, LATOYA

)

YOUNG, MACHELLE GUY, ROSCOE )

HAYMON, ROBERT WILLIAMS,

)

DAMENICA JOHNSON and

)

JAMES THOMAS,

)

)

Plaintiff-

)

Intervenors,

)

)

vs.

)

)

VON MAUR, INC.,

)

)

Defendant.

)

No. 4:06-cv-00182-RP-RAW
RULING ON EEOC'S MOTION TO CONSOLIDATE AND PROPOSED PLAINTIFF-INTERVENORS' (PPIs') MOTION TO INTERVENE

The above motions [3, 4] are before the Court. Von Maur resists the motion to consolidate, and resists the motion to intervene in part. The motions are decided on the motion papers. LR 7.1.c.

Case 3:04-cv-00159-RP-RAW Document 82 Filed 08/02/06 Page 2 of 17
The PPIs have sued Von Maur in Ward, et al. v. Von Maur, Inc., No. 3:04-cv-00159-RP-RAW ("the Ward case"). The Equal Employment Opportunity Commission (EEOC) moves to consolidate this case with the Ward case for pretrial purposes. The Ward case was originally filed on December 29, 2004. The current, Fourth Amended Complaint alleges each of the PPIs was denied employment in 2003 or 2004 on the basis of their African-American race as part of a pattern or practice of racial discrimination. The PPIs applied for employment at Von Maur locations in the Davenport area. The lead plaintiff, Ward, brings her claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., 42 U.S.C. § 1981 (devolved from the Civil Rights Act of 1866), and the Iowa Civil Rights Act, Iowa Code § 216.1, et seq. (ICRA). The other PPIs' race discrimination claims are based solely on section 1981.
PPIs Robert Williams, Robert Donelson, Roscoe Haymon and Raquel Maiden filed charges with the EEOC on the basis of which the EEOC brought this action on April 19, 2006. The EEOC alleges that "[s]ince at least 2001" Von Maur violated Title VII by failing to hire African-Americans in sales associate, warehouse and truck driving jobs at its Davenport facilities. The lawsuit seeks relief, including instatement, for Williams, Donelson, Haymon and Maiden, as well as injunctive relief for three classes of similarlysituated African-Americans who were not hired, one class for each of the jobs noted.
2

Case 3:04-cv-00159-RP-RAW Document 82 Filed 08/02/06 Page 3 of 17
Consolidation EEOC seeks consolidation of this case with the Ward case
for all pretrial purposes because both cases share common issues of law and fact. Von Maur does not dispute that there are common issues of law and fact, but resists on the basis that consolidation would achieve no benefit, substantive law differences between the two actions would result in confusion and complexity, and consolidation would delay resolution of the Ward case to Von Maur's unfair prejudice.
Federal Rule of Civil Procedure 42(a) permits the consolidation of actions pending before a court which "involv[e] a common question of law or fact . . . ." Since there are undeniably common questions of law and fact between the two actions, the question is not whether the actions can be consolidated, but whether they should be. Consolidation has historically been "a matter of convenience and economy in administration," Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496 (1933), and has as its purposes the avoidance of unnecessary cost or delay. EEOC v. HBE Corp., 135 F.3d 543, 550 (8th Cir. 1998). Consolidation is inappropriate if it leads in the opposite direction, "to inefficiency, inconvenience or unfair prejudice to a party." Id. at 551. Whether to consolidate actions is vested in the court's discretion.
3

Case 3:04-cv-00159-RP-RAW Document 82 Filed 08/02/06 Page 4 of 17
The two actions are fundamentally very similar, indeed in some respects identical. They involve allegations of race discrimination in Von Maur's hiring practices at its Davenport locations. As discussed below, most of the PPIs are entitled to intervene of right in this case which will have the practical effect of factually morphing much of the Ward case into this one. See infra at 11-13. With arguably a couple of exceptions, the PPIs are members of one of the classes on whose behalf the EEOC has brought suit. Consequently, all, or nearly all, the discovery in the Ward case would be relevant to the claims or defenses in this case and vice versa. Pretrial consolidation has the potential to expedite pretrial preparation of this case while reducing the overall expense and inconvenience which would attend pursuing parallel causes of action. The degree of overlap in parties, claims, and factual basis supports the pretrial consolidation the EEOC requests. See 8 Moore's Federal Practice § 42.10[6][a][b] at 42-21, 22 (Matthew Bender 3d ed.).
In resistance Von Maur argues first that the cases are distinct because the Ward case involves hiring decisions that, for the most part, took place from mid-2003 to mid-2004 while the EEOC complaint alleges discrimination extending back to 2001 continuing to the present. The temporal period alleged in the EEOC's complaint includes the instances of race discrimination alleged in the Ward case. The four PPIs whose EEOC charges prompted this action applied
4

Case 3:04-cv-00159-RP-RAW Document 82 Filed 08/02/06 Page 5 of 17
for work in mid-2004. Moreover, evidence of racially discriminatory hiring practices from 2001 is relevant to the pattern and practice and systematic exclusion allegations in Ward. Clearly, the two actions overlap in this regard.
Von Maur notes that, except for Ward, the PPIs' allegations of race discrimination in that case are under section 1981 while the EEOC proceeds under Title VII. It argues there are significantly different standards for liability under the two statutes. As amended by the Civil Rights Act of 1991, Title VII liability turns upon proof that race was a "motivating factor" in an employment decision, 42 U.S.C. § 2000e-2(m), and the statutory "same decision" defense in 42 U.S.C. § 2000e-5(g)(2)(B) applies only to Title VII. These subtle differences affect primarily the jury instructions. To the extent relevant to consolidation, they have more to do with whether the cases should be consolidated for the purposes of trial. Von Maur's motivation and proffered reasons for the challenged hiring decisions are core factual issues common to both cases. Indeed, the United States Supreme Court has applied the analytical framework used in Title VII cases to cases under section 1981. Olmstead v. L.C. ex rel Zimring, 527 U.S. 581, 617 n.1 (1999); see Maxfield v. Cintas Corp. No. 2, 427 F.3d 544, 550 (8th Cir. 2005).
Finally, Von Maur resists consolidation claiming it would cause prejudicial delay in resolving the Ward case. The Ward case
5

Case 3:04-cv-00159-RP-RAW Document 82 Filed 08/02/06 Page 6 of 17
has a head start on discovery. The EEOC's action is a class action. The EEOC has said it intends to identify additional class members as a part of its lawsuit. Von Maur fears the breadth of the EEOC's class allegations will swallow the Ward case and require substantial additional discovery and pretrial proceedings which would significantly delay Ward. The prospect of delay is a legitimate concern, but a close look leads the Court to conclude significant delay from pretrial consolidation is not probable.
Though the EEOC is seeking class-based relief, it is not required to seek class certification. General Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 324 (1980). Consolidation does not risk delaying Ward for Fed. R. Civ. P. 23 proceedings. The EEOC says that "[b]arring the unforeseen," it will comply with the discovery deadlines currently set in Ward. Under the present deadlines, non-expert discovery is to conclude by September 15, 2006, plaintiffs' expert disclosures are due by October 30, 2006, defendants' by January 16, 2007, and rebuttal by February 15, 2007. The dispositive motion deadline is March 30, 2007. Trial has been set for October 15, 2007, more than fifteen months away. The Court agrees with Von Maur that the EEOC's willingness to comply with the non-expert discovery deadline now only about two months away seems overly ambitious. However, the October 15, 2007 trial date is far enough out to allow some flexibility in the deadlines without hazarding that date.
6

Case 3:04-cv-00159-RP-RAW Document 82 Filed 08/02/06 Page 7 of 17
Discovery has been ongoing in the Ward case, but according to the PPIs is far from completion and recently stalled with the appearance of new counsel for Von Maur. Depositions of only three of the plaintiffs have been taken. Those of the others have not been scheduled, Von Maur has not completed its document production, and apparently has told the PPIs it does not expect to do so until mid-July. When the discovery deadline was extended in February of this year, Von Maur noted plaintiffs had identified fifty-five persons with knowledge of facts pertaining to the claims and indicated it planned to take the depositions of a significant number of them. There is much discovery yet to be done in Ward.
Consolidation of these closely-related cases for pretrial purposes will serve the interests of efficiency and convenience advanced by Fed. R. Civ. P. 42(a). These benefits are not offset by the risk of significant delay in resolving the Ward case, the principal argument Von Maur has against consolidation. It follows unfair prejudice has not been shown. Accordingly, the motion to consolidate [3] is granted upon the terms set forth below.
7

Case 3:04-cv-00159-RP-RAW Document 82 Filed 08/02/06 Page 8 of 17
Intervention The PPIs move for leave to intervene as party-plaintiffs
to assert individual Title VII claims1 under the authority of Fed. R. Civ. P. 24(a)(1). That rule permits a person to intervene of right in an action "when a statute of the United States confers an unconditional right to intervene . . . ." The enforcement provisions of Title VII include a proviso that "[t]he person or persons aggrieved shall have the right to intervene in a civil action brought by the [EEOC] . . . ." 42 U.S.C. § 2000e-5(f)(1).2 This language confers an "absolute right" to intervene in favor of charging parties on whose charge(s) the EEOC's action is based. EEOC v. Missouri Pacific Railway Co., 493 F.2d 71, 74 (8th Cir. 1974); EEOC v. GMRI, Inc., 221 F.R.D. 562, 563 (D. Kan. 2004). "Person aggrieved" has been held to also include a person who has a "nearly identical" claim to a charging party even if the "nearly
1 In Count III of the proposed Intervenors' Complaint certain of the PPIs join their look-alike ICRA race discrimination claims now pending in Ward. There is no reason to decline the exercise of supplemental jurisdiction over the ICRA claims as plaintiffs request.
The Court notes the proposed Intervenors' Complaint does not contain a Count II. While in a footnote it states plaintiffs "also assert claims against Von Maur under 42 U.S.C. 1981 as pled" in the Ward case, the Intervenors' Complaint does not expressly seek relief under section 1981. If the footnote was intended to plead a section 1981 cause of action it is not in the Court's judgment sufficient to do so. See Fed. R. Civ. P. 10(b), (c).
2 No question is raised about the timeliness of the motion to intervene.
8

Case 3:04-cv-00159-RP-RAW Document 82 Filed 08/02/06 Page 9 of 17
identical" claimant has not previously filed a charge with the EEOC. See EEOC v. Northwestern Human Services, 2005 U.S. Dist. Lexis 23768, *7-8 (E.D. Pa. 2005)(citing and quoting from Spirt v. Teachers Ins. and Annuity Ass'n, 93 F.R.D. 627, 640-41 (S.D.N.Y.), aff'd in part and rev'd in part on other grds., 691 F.2d 1054 (2d Cir. 1982)). The parties agree Northwestern Human Services and Spirt correctly state the law in this regard.
The rationale for extending the right to intervene to others with nearly identical claims to the charging parties is derived from what has been referred to in the case law as the "single-filing rule." Calloway v. Partners Nat'l Health Plans, 986 F.2d 446, 449-50 (11th Cir. 1993). Under that rule a Title VII (or ADEA) plaintiff who has not filed an EEOC charge may join or "piggyback" as a party-plaintiff with another who has filed a charge so long as the EEOC charge was timely and not defective and the charging and non-charging plaintiffs were similarly situated and received the same alleged discriminatory treatment. Id. at 449; Foster v. Gueory, 655 F.2d 1319, 1322-23 (D.C. Cir. 1981); Allen v. Amalgamated Transit Union Local 788, 554 F.2d 876, 882-83 (8th Cir.), cert. denied, 434 U.S. 891 (1977); see Anderson v. Unisys Corp., 47 F.3d 302, 305 n.8 (8th Cir.); cert. denied, 516 U.S. 913 (1995); Mustafa v. United Auto Group, 2005 WL 1923107, *3 (E.D. Ark. 2005); Koren v. Supervalu, Inc., 2003 WL 1572002, *12 (D. Minn. 2003). The reasoning behind the rule is:
9

Case 3:04-cv-00159-RP-RAW Document 82 Filed 08/02/06 Page 10 of 17
It would be wasteful, if not vain, for numerous employees, all with the same grievance, to have to process many identical complaints with the EEOC. If it is impossible to reach a settlement with one discriminatee, what reason would there be to assume the next one would be successful.
Allen, 554 F.2d at 883 (quoting Oatis v. Crown Zellerbach Corp.,
398 F.2d 496, 498 (5th Cir. 1968)). The term "person aggrieved" is
used in 42 U.S.C. § 2000e-5(f)(1) to describe both a person who can
intervene in a case brought by the EEOC and a person who can bring
a private action if the EEOC does not go forward. If under the
single-filing rule a non-charging similarly-situated plaintiff is
allowed to sue as a "person aggrieved" so too should that person be
permitted to intervene in an EEOC case as a "person aggrieved" for
. . . it would be nonsensical for the courts to give the term "person aggrieved" as used in 42 U.S.C. § 2000e5(f)(1), one meaning for the purpose of determining a person's right to commence a private Title VII action and a second, different meaning in order to determine a person's right to intervene in an EEOC-filed Title VII action.
Spirt, 93 F.R.D. at 641.
Von Maur concedes, as it must, that R. Williams,
Donelson, Haymon and Maiden on the basis of whose charges the EEOC
sues (hereinafter "charging PPIs") are entitled to intervene of
right. It also does not contest the intervention of PPIs Smith and
Thomas as persons with nearly identical claims. It argues the
motion to intervene should be denied with respect to PPIs McBride,
Gardner, L. Williams, Young, Guy and Johnson because their claims
are not nearly identical in terms of temporal proximity and/or
10

Case 3:04-cv-00159-RP-RAW Document 82 Filed 08/02/06 Page 11 of 17
subject matter, and denied with respect to Ward because she has already brought a Title VII claim in the case in which she is the lead plaintiff (collectively the "disputed PPIs").
As to time frame, PPIs Donelson, Smith, R. Williams, Haymon and Thomas all applied for jobs in the April to September 2004 time period as truck drivers or warehouse workers in Davenport. Maiden applied in mid-2004 for a sales position in the Davenport store. The disputed PPIs applied for work between about May to July 2003, though Johnson first applied in 2001 or 2002, and Guy in 2000.
The Court does not believe the temporal difference between the two groups in application dates of about a year or less is alone significant enough to deprive the disputed PPIs of "nearly identical" claimant status. To begin with, the EEOC complaint alleges that Von Maur has engaged in continuing racially discriminatory hiring practices at its Davenport locations for warehouse, truck driver and sales associate positions since "at least 2001." (Complaint ¶ 7). Where the charging parties are alleged to have been the victims of a continuing practice of employment discrimination, the relevant time frame includes the period during which the discrimination is alleged to have occurred. There is, moreover, no assertion that Von Maur's hiring policies, practices or procedures were materially different at the time the disputed PPIs applied for work. McBride, Gardner, Young, Johnson
11

Case 3:04-cv-00159-RP-RAW Document 82 Filed 08/02/06 Page 12 of 17
and Guy applied at Von Maur's corporate headquarters, the same as Donelson and R. Williams. L. Williams, like Maiden, applied as a sales associate at Von Maur's store. The Court believes all the PPIs may be viewed as having applied for jobs during the same relevant time frame.
If the disputed PPIs applied for jobs in the same relevant time frame, and for work at the same Von Maur Davenport locations as they all allege, the "nearly identical" inquiry focuses on whether they applied for the same or similar warehouse, truck driver and sales associate positions as the charging PPIs. L. Williams sought the same job as Maiden at the same store. Young applied to work in Von Maur's warehouse as did R. Williams and like Williams, submitted her application at Von Maur's corporate headquarters. The claims of L. Williams and Young are properly viewed as nearly identical to those, respectively, of charging PPIs Maiden and R. Williams. Both have the right to intervene.
The proposed Intervenors' Complaint does not specify the jobs for which Gardner and McBride applied, but the movants say the decision maker in Gardner's case was the same person who made the decisions concerning Donelson and Smith. R. Williams and McBride also shared the same decision maker. This, together with the fact that McBride and Gardner applied at the same location as Donelson and the absence of evidence McBride and Gardner specifically applied for jobs other than the three pleaded in the EEOC's
12

Case 3:04-cv-00159-RP-RAW Document 82 Filed 08/02/06 Page 13 of 17
Complaint, leads the Court to conclude the claims of McBride and Gardner are sufficiently identical to give them the right to intervene.
Johnson and Guy present different pictures. Johnson applied for a position in Von Maur's credit department in response to an advertisement. She had previously worked for a credit union's credit card department. She applied first in June 2001 or 2002, and a second time for a similar position in June 2003. In the absence of any indication to the contrary, it is fair to assume the qualifications and job requirements for clerical work in the credit department differ significantly from those for the sales associate, warehouse and truck driver positions on which the EEOC bases its compliant. The same is true with respect to the executive training program for which Guy applied in 2001, and the assistant buyer and purchasing department positions she sought in mid-2003. There is no showing that these jobs were at all similar to those sought by the charging PPIs. Because of the apparent dissimilarity between the jobs for which Johnson and Guy applied and those for which the charging PPIs applied, the Court concludes the claims of Johnson and Guy have not been shown to be "nearly identical" so as to vest Johnson and Guy with the status of persons aggrieved entitled to intervene of right.
The Court agrees with Von Maur that Ward is not entitled to intervene of right. Ward filed a charge with the EEOC, requested
13

Case 3:04-cv-00159-RP-RAW Document 82 Filed 08/02/06 Page 14 of 17
and received a Right-to-Sue letter, and has initiated her own Title VII action. The enforcement provisions of Title VII set up a regime in which, generally, if the EEOC sues first the aggrieved employees may intervene of right, if the employee sues first the EEOC may seek permissive intervention under Fed. R. Civ. P. 24(b), but either way, ordinarily there is a single lawsuit. 42 U.S.C. § 2000e-5(f)(1); see EEOC v. Harris Chernin, Inc., 10 F.3d 1286, 1292 (7th Cir. 1993); McClain v. Wagner Elec. Corp., 550 F.2d 1115, 1119 (8th Cir. 1977). For this reason, the Eighth Circuit has held that "duplicative suits by the Commission and by employees cannot be maintained under § 706 [codified as amended at 42 U.S.C. § 2000e-5] of [Title VII]." Wagner Elec., 550 F.2d at 1119; see Missouri Pacific Railway Co., 493 F.2d at 75. It would be anomalous if only one in Ward's position could maintain duplicative Title VII actions, one founded on her own EEOC charge and the other as an intervenor in an action based on charges filed by another. Additionally, the reasons for allowing intervention in an EEOCfiled action by other persons with nearly identical claims has nothing to do with Ward's circumstances. She is a "person aggrieved" entitled to sue on the basis of her own charge of discrimination. No purpose is served by treating her as a "person aggrieved" with respect to the charges of others on which the EEOC bases its action.
14

Case 3:04-cv-00159-RP-RAW Document 82 Filed 08/02/06 Page 15 of 17
The motion to intervene is granted in part and denied in part [4]. It is granted with respect to PPIs Darlena McBride, Tanya Gardner, Robert Donelson, Raquel Maiden, Charles Smith, Laronica Williams, Latoya Young, Roscoe Haymon, Robert Williams and James Thomas and is denied with respect to PPIs Walkesheia Ward, Damenica Johnson and Machelle Guy. The intervenors shall file an appropriately revised complaint within twenty (20) days. They may include ICRA claims for PPIs Donelson, Haymon, Maiden, Smith and R. Williams as pleaded in the proposed Intervenors' Complaint submitted with the motion papers.
Motion to consolidate [3] granted. This action is consolidated for all pretrial purposes, including scheduling order deadlines, with Ward, et al. v. Von Maur, No. 3:04-cv-00159-RP-RAW. The pretrial scheduling order deadlines in Ward are incorporated by reference as the scheduling deadlines in this case. For present purposes this case shall come on for final pretrial conference and trial on the same dates currently set in the Ward case, September 28, 2007 and October 15, 2007, respectively. The parties shall comply with the requirements laid out in the order setting final pretrial conference in the Ward case. Accordingly, it is not necessary for the parties to file a separate proposed scheduling order and discovery plan in this case.
Counsel for the parties in both actions shall confer and not later than July 27, 2007 (approximately two months before the
15

Case 3:04-cv-00159-RP-RAW Document 82 Filed 08/02/06 Page 16 of 17

scheduled final pretrial conference in Ward) report to the Court their proposals concerning whether a consolidated trial of these actions should be had and, if they cannot agree, submit separate proposals and any appropriate motions pertaining to consolidation for trial. The Court will modify the final pretrial conference and trial dates in this case as may be appropriate in light of the parties' proposals.
Until further order, all filings in these cases will be made only in the earlier-filed action, No. 3:04-cv-00159-RP-RAW, using the following caption:
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA DAVENPORT DIVISION

WALKESHEIA WARD, DARLENA

)

McBRIDE, TANYA GARDNER,

)

ROBERT DONELSON, RAQUEL

)

MAIDEN, CHARLES SMITH,

)

LARONICA WILLIAMS, LATOYA

)

YOUNG, MACHELLE GUY, ROSCOE )

HAYMON, ROBERT WILLIAMS,

)

DAMENICA JOHNSON, and

)

JAMES THOMAS,

)

)

Plaintiffs,

)

)

vs.

)

)

VON MAUR, INC.,

)

)

Defendant.

)

______________________________)

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

NO. 3:04-cv-00159-RP-RAW (Consolidated for pretrial
purposes with 4:06-cv-00182-RP-RAW)

16

Case 3:04-cv-00159-RP-RAW Document 82 Filed 08/02/06 Page 17 of 17

vs.

)

)

VON MAUR, INC.,

)

)

Defendant.

)

------------------------------)

DARLENA McBRIDE, TANYA

)

GARDNER, ROBERT DONELSON,

)

RAQUEL MAIDEN, CHARLES SMITH, )

LARONICA WILLIAMS, LATOYA

)

YOUNG, ROSCOE HAYMON, ROBERT )

WILLIAMS, and JAMES THOMAS, )

)

Plaintiff-Intervenors, )

)

vs.

)

)

VON MAUR, INC.,

)

)

Defendant.

)

IT IS SO ORDERED. Dated this 10th day of July, 2006.

17

 
 Case 3:04-cv-00159-RP-RAW Document 203 Filed 08/29/08 Page 1 of 91

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA
DAVENPORT DIVISION

*

WALKESHEIA WARD,1 DARLENA McBRIDE, *

TANYA GARDNER, ROBERT DONELSON, *

RAQUEL MAIDEN, CHARLES SMITH,

*

LARONICA WILLIAMS,2 LATOYA YOUNG, *

MACHELLE GUY, ROSCOE HAYMON,

*

ROBERT WILLIAMS, DAMENICA JOHNSON, *

and JAMES THOMAS,3

*

*

Plaintiffs,

*

*

v.

*

*

VON MAUR, INC.,

*

*

Defendant.

*

*

*

EQUAL EMPLOYMENT OPPORTUNITY

*

COMMISSION,

*

*

Plaintiff,

*

*

v.

*

*

VON MAUR, INC.,

*

*

Defendant.

*

*

DARLENA McBRIDE, TANYA GARDNER, *

ROBERT DONELSON, RAQUEL MAIDEN, *

CHARLES SMITH, LARONICA WILLIAMS, *

3:04-cv-00159 (LEAD CASE)
MEMORANDUM OPINION AND ORDER 4:06-cv-00182 (consolidated for pretrial purposes)

1

The Estate of Walkesheia Ward is a substitute party for Walkesheia Ward. See

Clerk’s No. 169.

2

Laronica Williams was dismissed from the instant case by stipulation of the

parties. See Clerk’s No. 123.

3

James Thomas was dismissed from the instant case for failure to comply with

Court order. See Clerk’s No. 124.

Case 3:04-cv-00159-RP-RAW Document 203 Filed 08/29/08 Page 2 of 91

LATOYA YOUNG, ROSCOE HAYMON,

*

ROBERT WILLIAMS, and JAMES THOMAS, *

*

Plaintiff-Intervenors,

*

*

*

v.

*

*

VON MAUR, INC.,

*

*

Defendant.

*

*

Before the Court is Defendant, Von Maur, Inc.’s (“Von Maur” or “Defendant”) Motion

for Summary Judgment,4 filed June 2, 2008.5 Clerk’s No. 161. After being granted an extension

4

While disregarding Defendant’s arguments regarding the intentional infliction of

emotional distress claim made in its brief, the Court, nonetheless, refers to the pagination of

Defendant’s brief filed on June 2, 2008, as opposed to the amended brief subsequently filed by

Defendant, which deleted the intentional infliction of emotional distress arguments (as that claim

was previously dismissed with prejudice by stipulation of the parties). See Clerk’s Nos. 52, 175-

76.

5

Throughout its brief, Von Maur makes gratuitous remarks. See, e.g., Def.’s Br. at

18 (commenting that Plaintiffs’ anecdotal evidence consists of “rank speculation” and is

“illogical and paranoid”), 19 (“One is reminded of the line from Andrew Lloyd Weber’s musical,

Evita: ‘She didn’t say much, but she said it loud.’ And that fits the EEOC’s claim of pattern or

practice.”), 38-39 (“The original three plaintiffs (Ward, McBride and Gardner) promptly went on

television in January, 2005, after filing the complaint in late December, 2004, and their attorneys

promptly started passing out business cards at the Davenport Civil Rights Commission.”), 40

(“Now, Von Maur is caught in the trick bag of being blamed for not being able to produce

applications for five plaintiffs . . . all of which were undoubtedly validly destroyed in accordance

with EEOC’s own regulations, or the plaintiffs have fabricated the dates, which is a very real

possibility.”), 117 (“The EEOC must have known this information was, at least in large part, a

total fabrication by its class member.”) and (“The intriguing aspect of Miller’s testimony is that

he must have made it up as he went along.”), 121 (“This class member has ‘sham fact’ written all

over his – and EEOC’s – position.”) and (“Material questions of fact cannot be driven by one

side’s inability to get its falsehoods organized.”); Def.’s Reply Br. at 71 (“The only application

which could even remotely be at play, assuming his garbled, illogical and inconsistent testimony

deserves some credence, is his November, 2004 application.”). At best, these types of comments

are uncalled for, and at worst, they rise to the level of unprofessional conduct. See Sonkensen v.

Legal Servs. Corp., 389 N.W.2d 386, 389 (Iowa 1986) (finding it unprofessional, unethical, and

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(Clerk’s No. 180), Plaintiffs, the Estate of Walkeshia Ward (“Ward”), Darlena McBride (“McBride”), Tanya Gardner (“Gardner”), Robert Donelson (“Donelson”), Raquel Maiden (“Maiden”), Charles Smith (“Smith”), Latoya Young (“Young”), Machelle Guy (“Guy”), Roscoe Haymon (“Haymon”), Robert Williams (“Williams”), Damenica Johnson (“Johnson”) (collectively “Individual Plaintiffs”), and the Equal Employment Opportunity Commission (“EEOC”) (collectively “Plaintiffs”) filed a Response on July 18, 2008. Clerk’s Nos. 184, 185. After being granted an extension (Clerk’s No. 192), Von Maur filed a Reply on August 11, 2008. Clerk’s No. 195. The matter is fully submitted.
I. FACTS Von Maur is a privately held corporation headquartered in Davenport, Iowa. Def.’s Statement of Material Facts ¶ 1. Von Maur operates twenty-two high-end retail clothing, cosmetic, jewelry, and houseware department stores throughout the Midwest. Id. ¶ 2. The Plaintiffs allege that two Von Maur stores, specifically Von Maur Center and NorthPark, both located in Davenport, Iowa, failed to hire them on the basis of their race (African-American). Individual Plaintiffs6 filed the present lawsuit on December 29, 2004, alleging that Von Maur failed to hire them on the basis of their race in violation of Title VII, 42 U.S.C. § 2000e et seq.,

a violation of the Rules of Professional Responsibility to make personally demeaning remarks about opposing counsel, the trial court, and general classes of persons). While the remarks made by Von Maur do not rise to the level of being “outrageously unprofessional,” as they did in Sonkensen, counsel is cautioned to refrain from making this type of inappropriate remarks in future pleadings in this Court. See Husinga v. Federal-Mogul Ignition Co., 519 F. Supp. 2d 929, 932 n.1 (S.D. Iowa 2007).

6

Individual Plaintiffs Ward, McBride, and Gardner were the named plaintiffs in the

initial Complaint. The Complaint, however, was subsequently amended to include additional

plaintiffs.

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and 42 U.S.C. § 1981. See Clerk’s No. 1. On April 19, 2006, the EEOC filed a class action7 alleging that Von Maur failed to hire applicants on the basis of their race in violation of Title VII. See Case No. 4:06-cv-182, Clerk’s No. 1. Individual Plaintiffs McBride, Gardner, Donelson, Maiden, Smith, Young, Haymon, and Williams intervened in the EEOC case. See Case No. 4:06-cv-182, Clerk’s No. 15. On July 10, 2006, the Court granted Plaintiffs’ Motion to Consolidate the two cases for pre-trial purposes. See id.
A. Von Maur Center Von Maur Center houses the warehouse/distribution center,8 the corporate offices, the buyer functions, and the corporate human resources department, which is composed of two human resources managers, a benefits administrator, and human resources assistants. Def.’s Statement of Material Facts ¶¶ 5, 11. The human resources department at Von Maur Center “conducts store training, develops new hire orientation, and conducts follow-up training with the sales teams on training for new policies and procedures to help develop associates, department managers and executives.” Id. ¶ 12. Additionally, Von Maur Center also houses the staff for the mail room, the cafeteria, clerical positions, housekeeping, and other hourly positions. Id. ¶ 198 n.5. When an application is submitted to Von Maur Center, then human resources manager,

7

The current EEOC class members include Paul Parks (“Parks”), Marlene Jacks

(“Jacks”), Havilah Johnson (“Johnson”), La’Quan Miller (“Miller”), Lawanda Jones Allen

(“Allen”), and Jacqueline Ash (“Ash”) (collectively “Class Members”).

8

The warehouse, also referred to as the distribution center, is where all

merchandise is shipped. See Def.’s Statement of Material Facts ¶ 5.

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Lisa Peterson (“Peterson”),9 or then human resources assistant, Jill Trytten (“Trytten”) would initially screen the application. Id. ¶¶ 29, 33-34, 39-40, 214. The screening process involves reviewing the application and resume, if any, to determine the applicant’s10 work history, schedule, skills, and availability. See id. ¶¶ 217, 227. Peterson, for example, would screen applications based on “information concerning the applicant’s longevity, type of similar work, and other factors in the application that impressed her.” Id. ¶ 223. In effect, Von Maur used the screening process to initially determine if the applicant “might be a good fit in regard to scheduling” and whether the applicant would be “a viable candidate” for Von Maur. Id. ¶ 225. The screening process also involved talking to the applicant in person, or over the telephone, to “gain more information from the applicant,” such as the types of positions the person is seeking, their available hours, and any incomplete information on the application. See id. ¶¶ 216, 230, 234. Applicants would be screened out if the applicant could not meet the hours requirement or if no openings were available for the position(s) specified. See id. ¶ 218. However, the “vast” majority of applicants would pass the screening process. See id. ¶ 219.
Although Von Maur maintains a store-wide application process, each store makes independent hiring decisions for non-executive positions. See id. ¶ 128. In conducting interviews, Von Maur employs “behavior-based interviewing” which is premised on the fact that “a candidate’s past employment behavior is the best predictor of future behavior.” Id. ¶ 98. This behavior-based interviewing is taught from a video entitled, “More Than a Gut Feeling II.” See

9

Alan Place (“Place”) replaced Peterson in April of 2004 as human resources

manager for Von Maur Center. Id. ¶¶ 33-34.

10 The Court refers to the term “applicant” in the generic sense, i.e., to refer to an individual applying for a position with Von Maur.

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id. ¶¶ 96-98. Von Maur has used this video since at least 1993 to train employees who conduct interviews. See id. ¶¶ 96-97. Thus, following this behavior-based interviewing concept, the interviewer “will study the job requirements . . . and then tailor open-ended interview questions to elicit information from the candidates about his or her abilities in the past to solve problems.” Id. ¶ 98. Such behavior-based questions, according to Von Maur, allow the interviewer to predict the applicant’s future success or failure for the position(s) sought. See id. ¶ 103.
According to Von Maur, in reviewing an applicant for the first interview, there is no one factor that disqualifies an applicant, rather, the totality of the application is considered. Id. ¶ 274. Although Von Maur maintains a “First Interview Questions” form with pre-set questions, e.g., “What prompted you to apply at Von Maur?”, “Why are you interested in this position?”, “Describe a coworker that was difficult to work with,” etc., interviewers can use their own independent judgment and discretion to determine which questions to ask, so long as pertinent information is gathered to make a decision on an applicant. Id. ¶¶ 275, 280; see Def.’s App. at 2243-44. Except for an “open house” interviewing process, where all applicants who come in for open positions are interviewed, Peterson decides which applicants to interview. See Def.’s Statement of Material Facts ¶ 287. After conducting the first interview, lasting anywhere between five to thirty minutes, Peterson decides which applicants to pass on for a second interview. Id. ¶ 288. Peterson estimates that possibly less than 25%, but more than 10%, of the applicants from the first interview move on to a second interview. Id. ¶ 289. Of the applicants approved for a second interview, approximately 50% are hired by Von Maur.11 Id. ¶ 291.
11 It appears that Peterson conducted the first interview for hourly and warehouse positions, while Sheri Bealer (“Bealer”), Traffic Manager, usually conducted the first interview for truck drivers. See id. ¶¶ 286, 298; Def.’s App. at 84.
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During the second interview, applicants are provided with a written job description for the position(s). Id. ¶ 301. Von Maur also maintains a “Second Interview Questions” form with pre-set questions, e.g., “What are you looking for in your next job?”, “Where do you see yourself in 2 years?”, etc. Def.’s App. at 2095. If the position is within the “warehouse” and the second interviewer feels strongly about pursuing an applicant, the applicant is given a tour of the warehouse to provide a perspective of the work environment. See Def.’s Statement of Material Facts ¶ 312. After the second interview, the decision “to continue pursuing” the applicant is a collaboration between the two interviewers. See id. ¶ 310. Thus, according to Von Maur, no one is ever offered employment during the second interview. Id. ¶ 303.
If a decision is made to not pursue the applicant, a regret letter is sent. Id. ¶ 316. The letter would be used, for example, if the applicant is not qualified for the position or if there is a more qualified applicant. Id. ¶¶ 320, 321. Another version of a regret letter is sent to applicants who are qualified, but who sought a position that is currently not open or that does not exist. Id. ¶ 322. Both versions of the regret letter state that the application will be kept active for six months for possible future review. Id. ¶ 327. If, however, a decision is made to pursue the applicant, human resources will then conduct reference checks. See id. ¶¶ 329-30. Von Maur conducts a reference check to verify the information provided by the applicant. Id. ¶ 335. The reference check requires that a minimum of one reference listed on the application be contacted “who can actually speak to the actual work experience of the applicant.” Id. ¶ 331. If Von Maur decides to hire the applicant after the reference check, the applicant “will fill out a form allowing Von Maur to conduct a check through USIS (formerly USMA) which is a consumer reporting agency that checks the applicant against a theft database.” Id. ¶ 337. If the applicant accepts the
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position, Von Maur will, at that point, discuss wages, start date, and uniform requirements for warehouse positions. Id. ¶ 338.
B. NorthPark NorthPark, located in Davenport, Iowa, has a store manager, human resources personnel, area managers, retail sales personnel, housekeeping, and security staff. See id. ¶ 6. Within each store, the store manager is responsible for the overall store functioning, performance, appearance, sales, turnover, and compliance with Von Maur’s policies and procedures. Id. ¶ 126. The floor manager is responsible for staffing departments, conducting and writing reviews, hiring, meeting department sales goals, merchandising each department, customer service quality, resolution of customer concerns, and store cleanliness. Id. ¶ 127. The human resources personnel at the NorthPark store reports to Gayle Haun (“Haun”), Director of Human Resources, who works out of Von Maur Center. See id. ¶¶ 8, 9, 15. Haun, for the most part, conducts classroom training for employees conducting interviews. Id. ¶ 18. Haun also visits the Von Maur stores, audits the employee files and applications, conducts training, sits in on interviews and screenings, evaluates the individual human resources departments, and provides coaching to staff. Id. ¶ 19. It appears from the record that NorthPark follows the same screening, interviewing, and hiring process of that used at Von Maur Center. See generally Def.’s Statement of Material Facts.
C. Open House Interviewing: June 2003 and June 2004 In June 2003 and again in June 2004, Von Maur Center conducted “open house” interviewing. See id. ¶ 349. During an open house interview process, every person who comes in is guaranteed at least one interview, and is not subject to the initial screening noted above.
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See id. ¶ 350. In June 2003, Von Maur opened four new stores and needed additional staff for the warehouse (housed in Von Maur Center). Id. ¶ 354. Cathy Rockwell (“Rockwell”), the distribution center manager,12 informed human resources of her staffing needs in the warehouse. Von Maur subsequently advertised for a two day “open house” in June to fill the open warehouse positions. Id. ¶¶ 355-56; Def.’s App. at 1250. The advertisements, placed in local papers, stated that on-site interviews would be conducted at Von Maur Center. Def.’s Statement of Material Facts ¶ 357. During the open house, approximately five to six managers conducted the interviews. Id. ¶ 356.
The following year, Von Maur Center again advertised for a two-day open house scheduled for June 21 and 22, 2004. The open house interviews, advertised in local papers, yielded almost 200 applicants. Id. ¶ 385. It appears that Von Maur was filling open positions for merchandise processor (marking room), stock, and shipping and receiving, all within the warehouse (collectively referred to by the parties as “warehouse positions”). See id. ¶¶ 367, 379. After the first day of interviewing, Von Maur had enough applicants for the stock and shipping and receiving positions, but not for the merchandise processing positions. Id. ¶ 367. Accordingly, on the second day of the open house, Von Maur posted a sign at the entrance of the interview area which stated that Von Maur had “enough applicants for stock and receiving” but that applicants were “welcome to stay” – presumably to interview for the merchandise processing positions or to be considered for future openings. See id. ¶¶ 370-72, 382.
12 As the distribution center manager, Rockwell is responsible for ensuring that the products “go[] out to the stores,” unloading all inbound trailers, loading all outbound trailers, staffing, and overseeing vendor returns. Def.’s App. at 1252.
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D. Von Maur Policies 1. Equal employment policies. Von Maur maintains an anti-discrimination policy in its employee handbook which states: Von Maur provides equal employment opportunities (EEO) to all employees and applicants for employment wholly on the basis of ability, experience, training, performance and other factors which are related to the position and the degree or ability necessary to perform the job. This policy applies to all terms and conditions of employment, including but not limited to, hiring, placement, promotion, termination, layoff, recall, transfer, leaves of absence, compensation and training. Von Maur expressly prohibits any form of unlawful employee harassment, based on race, color, religion, gender, national origin, age or disability. Improper interference with the ability of Von Maur employees to perform their expected job duties is not tolerated. Id. ¶ 45 (emphasis in original). Von Maur’s application for employment provides: “Von Maur is an Equal Opportunity Employer. Regardless of race, color, age, marital status, religion, national origin, sex and mental or physical disability our practice is to ensure equal opportunity for each individual.” Id. ¶ 54. 2. Record-retention policy. Von Maur’s written document retention policy provides that applications be retained for one year. Id. ¶ 392. Each of the Von Maur stores retain applications for one year, then sends them to Von Maur Center. Id. ¶ 394. It appears that after the one year mark, the applications were at one point “deposit[ed]” in a garbage bin, but that later they were shredded, once Von Maur acquired an industrial shredder. Id. ¶ 403. Haun keeps any applications involved in employment discrimination claims in her office. Id. ¶ 395.
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E. Individual Plaintiffs 1. Estate of Walkesheia Ward. On or about May 29, 2003, Ward went to Von Maur Center with a former Caucasian coworker and friend, Kristy Renkosik (“Renkosik”) for employment applications. See id. ¶ 481. Both Ward and Renkosik filled out and returned an application to human resources. Id. ¶ 483. Ward, who was unemployed at the time, applied for “any open position” at Von Maur. Id. ¶¶ 476, 482. Ward stated on her application that she was never discharged by any employer, even though Ward received a document from her former employer, Kraft Foods, Inc./Oscar Mayer Foods Division, which stated that Ward was terminated effective August 2, 2002 “due to a violation of Company/Attendance Policy and Procedures.” Id. ¶ 479. Ward also stated on her application that she did not, during the past year, miss any days of work or school. Id. ¶ 484. Moreover, for a period of time after her employment with Oscar Mayer, Ward worked at Holiday Inn cleaning rooms. Id. ¶ 480. Ward, however, did not list her employment with Holiday Inn on Von Maur’s application form, although the form requests that applicants list their last four employers. Id. ¶ 484. Unaware of any discrepancies on Ward’s application, Peterson (the human resources manager at Von Maur Center) interviewed Ward on May 30, 2003. Id. ¶ 485. Because there was an immediate need to fill open merchandise processor positions, Peterson only considered Ward for that position. See id. ¶ 488. As noted previously, prior to scheduling a first interview, an application is screened by either Peterson or Trytten (the human resources assistant at Von Maur Center). See id. ¶ 214. During the screening process, the applicant is contacted by telephone to ensure that the applicant is available to work the required hours. See Def.’s App. at 1124, 1130. If the applicant is not
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available for the required hours, the applicant is screened out and would not be interviewed. See id. at 1130. Thus, Peterson testified that Ward “absolutely” stated during the screening process that she would be available for the required hours – because otherwise, Ward would not have been interviewed. Id. However, when Peterson attempted to confirm Ward’s availability to work the required hours during the interview, Peterson claims that Ward remained vague and non-committal. See id. at 1128; Def.’s Statement of Material Facts ¶ 496. Specifically, according to Peterson, Ward could not state for certain that she would be available, but answered that she “should be” or “probably could” be available for the required hours. See Def.’s App. at 1128. Peterson, moreover, stated that she had repeated and rephrased her questions to Ward numerous times, especially those questions relating to Ward’s availability, when all of a sudden, Ward “blurted out in almost a yell tone” that she was let go from Oscar Mayer because she “missed a lot of work due to attendance.” Id. at 1120, 1122. Peterson testified that Ward’s statement effectively ended the interview. Def.’s Statement of Material Facts ¶ 500. Ward denies that she told Peterson during the interview that she was let go from Oscar Mayer because she missed a lot of work. Pls.’ Am. Statement of Material Facts ¶ 70. Rather, Ward states that she told Peterson that she voluntarily left her employment with Oscar Mayer because the various shifts interfered with her full-time school schedule. Id. ¶¶ 71, 73. Peterson estimates that the entire interview with Ward took approximately fifteen minutes or less. Def.’s App. at 1119. Thereafter, Peterson made the decision not to hire Ward because Ward could not state with any certainty that she would be available for the hours required, and because Ward expressed that she had attendance problems in the past. See Def.’s Statement of Material Facts ¶ 506 (“Von Maur does not hire people with attendance problems.”). Ward was sent a standard regret letter from
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Von Maur.13 Id. ¶ 505. 2. Darlena McBride. On May 29, 2003, the same day that Ward filled out her application, McBride, who is
Ward’s mother, also went to Von Maur Center with Ward and Tanya Gardner (another plaintiff in this case) to get an application. Id. ¶ 531. On her application, McBride listed her former employment as a dental office assistant from July 1986 through May 1990. See id. ¶ 525. At some point, McBride learned that Von Maur Center was holding an open house interview and she returned approximately two weeks later, in mid-June 2003, to participate. See id. ¶ 532. McBride informed the receptionist that she had already filled out an application a couple of weeks before. The receptionist, however, could not locate McBride’s initial application and asked her to fill out another one. Id. ¶¶ 533-34. After completing another application, McBride waited approximately twenty-five minutes and was interviewed by Jeri Bryan (“Bryan”), assistant manager of the distribution center. See id. ¶¶ 537-38.
McBride, who applied for the positions of merchandise processor, data entry, and customer service, made a comment during the interview that Bryan found to be “offensive and negative.” Id. ¶¶ 539, 542. Specifically, McBride recounted an incident during her tenure as a dental assistant, when a “gay” man urinated all over the restroom and McBride refused to clean it up. Id. ¶ 540. Bryan, who happens to be a lesbian, found McBride’s comment concerning the “gay” man inappropriate, offensive, and negative. See id. ¶¶ 541-42. Given that the positions McBride applied for required the applicant to have proper communication skills, e.g.,
13 Renkosik, who was interviewed by Peterson on the same day as Ward, was hired by Von Maur. See Def.’s Statement of Material Facts ¶¶ 486, 518
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communicate well with others, use appropriate language, etc., Bryan had concerns about McBride’s communication skills. See id. ¶¶ 546, 550-51. Thus, Bryan decided not to pursue McBride as a candidate because she lacked communication skills, i.e., labeling a patient by his sexual orientation in an offensive and negative manner. See id. ¶¶ 543, 546, 549. On June 12, 2003, Von Maur sent McBride the standard regret letter. See id. ¶ 561. McBride, however, disputes that she made disparaging remarks about “gay people” during the interview. Pls.’ Am. Statement of Material Facts ¶ 179.
3. Tanya Gardner. On May 29, 2003, Gardner, friend of both Ward and McBride, went over to Ward’s house to visit. Def.’s Statement of Material Facts ¶ 567. Ward, however, was taking her mother, McBride, to Von Maur Center to get an application. Gardner went along with Ward and McBride to Von Maur Center. See id ¶ 566. Gardner also requested and completed an application. Id. ¶¶ 568-69. Approximately a week later, Ward advised Gardner that Von Maur Center was having an open house interview and suggested that Gardner attend the open house. Id. ¶ 570. On June 9, 2003,14 Gardner attended the open house interview and informed the receptionist that she had submitted an application previously and that she was still interested in employment with Von Maur. Id. ¶ 573. The receptionist, however, could not locate Gardner’s application and asked that she fill out another application. Id. ¶ 574. Gardner filled out another application and was interviewed for open warehouse positions by Haun, director of human
14 It is unclear from the record on what two days the June 2003 open house interview process took place. As it pertains to McBride, Von Maur notes that the 2003 open house took place in mid-June, while for Gardner, Von Maur notes that the open house took place on June 9, 2003. See id. ¶¶ 532, 573. Regardless, the parties do not dispute that both McBride and Gardner participated in Von Maur Center’s June 2003 open house.
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resources. Id. ¶ 576. During her interview with Haun, Von Maur contends that Gardner mentioned plans of
attending beauty school. See id. ¶¶ 578, 581. Gardner, however, states that she only mentioned that she hoped to attend beauty school some day. See Pls.’ Am. Statement of Material Facts ¶ 119. After the interview, Haun decided not to pass Gardner for a second interview because she had concerns about Gardner employment history. That is, on her application, Gardner listed her employment history as follows:
(1) Staples from July 1 through October 20, 1998; (2) IBP, dates uncertain but less than a year; (3) American Honda warehouse from March 16, 1999 through April 20, 1999; (4) Staples, part time, from May 5, 1999 through November 29, 2000; (5) Heinz from June 7, 2001 through August 28, 2001; (6) Unemployed from August 2001 through August 2002; and (7) Holiday Inn, housekeeping, from August 2002 to present (June 2003). Def.’s Statement of Material Facts ¶ 565. Based on this information, Haun had concerns about Gardner’s longevity, i.e., that Gardner would not stay long term with Von Maur as she had worked in several different places for short durations, seemed “unfocused,” and mentioned beauty school. See id. ¶ 581. Accordingly, Haun did not pass Gardner for a second interview. Id. 4. Robert Williams. In June 2003, Von Maur advertised open warehouse positions in the local newspaper. Pls.’ App. at 65. In response to the advertisement, Williams applied for the warehouse positions on or about June 23, 2003. Id. Williams was then asked to wait for an interview. Def.’s Statement of Material Facts ¶ 899. Williams waited approximately one and one-half to two hours for his interview, which last approximately three to five minutes. Pls.’ Am. Statement of
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Material Facts ¶¶ 147-48. Amy Davis (“Davis”), Von Maur Center’s Training Manager, interviewed Williams in her office. Def.’s Statement of Material Facts ¶¶ 903-04. Davis had concerns about Williams’ longevity in a warehouse position, noted that he was pursuing a degree in radiology, “a totally unrelated field,” and wondered if he could meet scheduling demands with his school load. Id. ¶¶ 905, 909. Davis consulted with either Rockwell or Bryan who told her that they had a number of applicants for warehouse positions with no longevity concerns. Id. ¶ 907. Davis, therefore, did not pass Williams for a second interview. Id. ¶ 910.
The following year, Von Maur Center advertised another open house, scheduled for June 21 and 22, 2004. On the second day of the open house, June 22, 2004, Williams again applied for employment with Von Maur. Id. ¶¶ 919-20. Williams applied for warehouse positions. Id. ¶ 920. After the first day of the open house, however, Von Maur claims that it had enough applicants for the “stock” and “shipping and receiving” positions. Id. ¶ 367. That is, Von Maur decided to fill all open stock and shipping and receiving positions with applicants from the first day of the open house (June 21), and posted a sign at the entrance of the interview area that stated Von Maur had “enough applicants for stock and receiving.” See id. ¶¶ 370-72, 921.
Regardless, Williams went to the reception desk and filled out an application. Id. ¶ 925. While waiting for his interview, Williams states that he heard a Caucasian woman wearing sweat pants and a “holey” t-shirt tell her friend that she was hired. Pls.’ Am. Statement of Material Facts ¶ 151. Williams also spoke to a Caucasian man who informed Williams that he had been hired and that he was currently going to school to get his GED. Id. ¶ 152. Williams observed that people who came in after him were interviewed before him. Id. ¶ 153. Williams, however, left the waiting area at least twice to smoke, and if an applicant is not present and does not
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answer when their name is called, the applicant is placed on the bottom of the interview list. See Def.’s Statement of Material Facts ¶¶ 363-65, 928-29. Bryan interviewed Williams for approximately five minutes. Id. ¶ 940; Pls.’ Am. Statement of Material Facts ¶ 154. During the interview, Williams told Bryan that he was interested in the warehouse positions. Def.’s App. at 1635. Based on this information, Bryan decided not to pursue Williams for further consideration because “shipping and receiving positions were filled and [Williams] was not considered for the merchandise processing position because of concerns about his employment longevity.” Def.’s Statement of Material Facts ¶ 942.
5. Robert Donelson. Donelson participated in Von Maur Center’s June 2004 open house. Specifically, Donelson came in on June 22, 2004, the second day of the open house, and applied for stock or shipping and receiving positions. Id. ¶ 588. After the first day of interviewing, however, Von Maur had enough applicants for the stock and shipping and receiving positions. Id. ¶ 367. Accordingly, on the second day of the open house, Von Maur posted a sign at the entrance of the interview area that stated Von Maur had “enough applicants for stock and receiving.” See id. ¶ 370. At the time Donelson applied with Von Maur, he was employed at John Deere PCD, earning $10.57 per hour. Id. ¶ 596. Prior to starting at John Deere on March 21, 2004, Donelson worked for Swords Veneer as a machine operator/supervisor, from June 1989 until they closed in December of 2003. Id. ¶ 595. As a supervisor at Swords Veneer, Donelson would schedule workers’ shifts, diagnose problems, give work orders, supervise and coordinate worker activities, interpret company policy, enforce safety regulations, hire employees, study and implement
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production schedules, estimate worker hours needed to complete a project, and address problems as they occurred. Id. ¶ 599. During his interview with Von Maur, he relayed his supervisory skills. Id. ¶ 600. Donelson first interviewed with Haun, who informed him that Von Maur had enough candidates for the stock and shipping and receiving positions from the day before. Id. ¶ 607. Donelson contends that during the interview process, he was asked if he could “prove that he had a high school diploma.” Id. ¶ 609. Next, Donelson was interviewed by an unidentified man, and they discussed Donelson’s supervisory skills. Id. ¶ 613. Donelson was then interviewed by a woman, who also reviewed his application and resume with him. See id. ¶ 615. Thereafter, Haun noted on Donelson’s application that he should be called if any positions in stock or shipping and receiving opened in the future. Id. ¶ 616.
Haun stated that she did not consider Donelson for the merchandise processor positions because even though such positions were still open, he was overqualified. See id. ¶¶ 620, 622. That is, the merchandise processor position is an entry-level position with a starting pay of $8.75. Id. ¶¶ 597, 620. Haun determined that, based on Donelson’s supervisory experience and current compensation at John Deere, he would find the entry-level position “unsatisfying” and thus, was unlikely to remain in the position long-term. Id. ¶ 620. It appears that although Donelson’s application was retained by human resources in “active status” for six months, such applications would be reviewed for subsequent openings only if Rockwell requested it. Id. ¶ 619. Regardless, Von Maur contends that it did not hire anyone into stock or shipping and receiving positions until July 18, 2005, well after Donelson’s six month “active status” had
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expired.15 Id. ¶ 618. 6. Roscoe Haymon. On or about August 12, 2004, Haymon applied for a truck driver position with Von
Maur. Id. ¶ 802. Haymon applied in-person at Von Maur Center and handed his application to the receptionist, who told him that no one was available to interview him because everyone was at lunch. See Def.’s App. at 573. The receptionist informed Haymon that someone would be in contact. Id. Bealer, who at that time was responsible for hiring, evaluating, and terminating truck drivers received Haymon’s application. See Def.’s Statement of Material Facts ¶ 837. Bealer asked Keith Turner (“Turner”), a Von Maur truck driver who had worked with Haymon for nine years at Eagle Foods what he thought of Haymon. See id. ¶ 847; Pls.’ App. at 1050. Turner stated that Haymon was “the nicest guy,” but that “he’s never in a hurry.” Def.’s Statement of Material Facts ¶ 848. Turner believes that he told Bealer that she may encounter the same problem with Haymon that she had with a former Von Maur truck driver, Matt Costello, who was known to take one to two hours longer than all the other truck drivers.16 Pls.’ App. at 1050. Bealer also spoke with Jane Morgan (“Morgan”), another Von Maur truck driver who had worked with Haymon at Eagle Foods.17 Def.’s Statement of Material Facts ¶ 852. Morgan testified that she told Bealer that Haymon would be a good person to hire, that she thought he had a perfect driving record, and that she would highly recommend Haymon. Pls.’

15 As noted above, pursuant to policy, Von Maur maintains applications “active” for six months for possible future openings. See id. ¶ 327.

16 On July 9, 2004, Costello voluntarily resigned from Von Maur because he was “dissatisfied” with his position. Def.’s App. at 1853.

17
drivers.

Morgan, Turner, and Haymon all used to work together at Eagle Foods as truck

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App. at 927. Although Morgan did not verbalize this concern, she wondered if Haymon would be able to get the “runs” completed within the allocated time. Def.’s App. at 963. Morgan, who described herself as “hyper” did, however, tell Bealer that Haymon drove more slowly than she did. Id.; Def.’s Statement of Material Facts ¶ 852. Based on Turner’s and Morgan’s impressions, Bealer decided not to pursue Haymon as a truck driver. On or about August 23, 2004, Von Maur sent Haymon the standard regret letter, informing him that his application would remain active for six months. Def.’s App. at 616.
7. Charles Smith. On August 22, 2004, Von Maur Center placed an advertisement for open regional truck driver positions. See Def.’s Statement of Material Facts ¶ 671. On September 16, 2004, Smith applied in-person for the truck driver position. Id. ¶ 670; Pls.’ Am. Statement of Material Facts ¶ 232. At the time of his application, Smith had thirty years of truck driving experience and had a safe driving record. Pls.’ Am. Statement of Material Facts ¶ 232. Smith was briefly interviewed by Place and Bealer when he submitted his application. Id. ¶ 233; Def.’s Statement of Material Facts ¶¶ 685, 687. That same day, pursuant to policy, Von Maur ran a credit check on Smith.18 Def.’s Statement of Material Facts ¶ 676. The credit report on Smith contained “derogatory information about his credit,” specifically that Smith had various debts, including extensive unpaid tax liens. Id. ¶¶ 689, 691. Haun wrote Smith advising him of the “derogatory information” and included the credit report for his reference. Id. ¶¶ 689-90. In the letter, Haun
18 Von Maur has a policy which requires truck driver applicants who are “further considered for employment” to undergo a credit check. Def.’s Statement of Material Facts ¶ 676.
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wrote, “[i]f there is any information on the credit report that is inaccurate or that you would like to contact us to explain, please feel free to give me a call . . . [w]e plan to make our final hiring decision in approximately one week.” Def.’s App. at 1462. After receiving the letter from Haun, Smith states that he contacted Von Maur on three different occasions to discuss his credit report. Pls.’ Am. Statement of Material Facts ¶ 237. The first time, Smith called Von Maur and left his name and phone number, requesting that Haun return his call. Two days later, Smith called and left a voice message with his name and number, requesting a return call. The third time, Smith again left a voice message with his name and number and stated that he was calling to explain his credit report. Id. According to Smith, no one returned his phone calls. Von Maur, on the other hand, contends that Smith never contacted Haun to explain his credit report. Def.’s Statement of Material Facts ¶ 698. Von Maur, accordingly, did not hire Smith because he did not respond to Haun’s letter regarding his credit report.19 Pls.’ Am. Statement of Material Facts ¶ 239.
8. Latoya Young. Sometime between May and the end of 2003, Young saw a newspaper advertisement stating that Von Maur was hiring for warehouse, data entry, and clerical jobs. Id. ¶ 159. In response to the advertisement, Young went in-person to fill out an application for all three positions. See id. ¶¶ 158-59. Although Von Maur does not have Young’s application, Von
19 Von Maur, moreover, states that even if Smith contacted Haun, his explanations would not have been sufficient to permit Von Maur to consider hiring him, as discussed in more detail below. Id. ¶¶ 701-02. That is, Von Maur will only consider hiring applicants if the derogatory credit report result from factors “beyond an applicant’s control, such as erroneous credit information, debts from a divorce or unexpected medical debts because of an applicant’s or family member’s hospitalization or medical care.” Id. ¶ 702.
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Maur admits that Young went to Von Maur Center to submit an application. Def.’s Statement of Material Facts ¶¶ 712, 722. Von Maur, moreover, admits that Young called a couple of days later to inquire about the status of her application and that she was told that Von Maur was still reviewing applications. Id. ¶ 724. A week later, Young again called to follow-up on her application, and was informed that someone would get back to her. Id. ¶ 725. Shortly thereafter, Young received a letter from Von Maur stating that the positions were filled. Id. ¶ 726. However, approximately a week after receiving her regret letter, Young claims she saw another advertisement in the newspaper for open warehouse positions. Id. ¶ 727.
9. Damenica Johnson. On June 10, 2003, Johnson applied for the sales audit, invoice keyer, and credit associate positions at Von Maur Center after seeing an advertisement for the positions. See id. ¶¶ 947, 949. Johnson turned in her application to Amy Nemmers (“Nemmers”), human resources assistant. Pls.’ Am. Statement of Material Facts ¶ 315. Johnson informed Nemmers about her credit union experience and asked how many people were going to be hired for the credit associate position. Id. ¶ 309. Nemmers stated that there were quite a few openings and that someone would get in touch with her. Id. Von Maur, however, did not contact Johnson. Johnson claims she continued to see advertisements for the same positions. Id. Von Maur contends that Johnson was not hired because she was screened out. See Def.’s Statement of Material Facts ¶ 959. Specifically, on her application under “please indicate the times you can work,” Johnson noted “5 to close” for Mondays through Fridays, “open to close” for Saturdays, and placed hyphens for Sundays. Def.’s App. at 736. Von Maur states that both the sales audit and invoice keyer positions are full-time positions which require working during
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the day, and that Von Maur has only one credit associate position scheduled for evenings and weekends, including Sundays. Def.’s Statement of Material Facts ¶¶ 957-58. That is, because Johnson indicated “5 to close” for Mondays through Fridays, she was screened out of the fulltime positions (sales audit and invoice keyer), and the hyphens for Sundays, presumably denoting that Johnson was not available to work on Sundays, screened her out for the evening/weekend credit associate position. Nemmers, however, testified that if the only issue is an applicant’s availability, her “normal practice” would have been to call the applicant to verify that the applicant was not available to work the required hours/days. See Pls.’ App. at 950. Nemmers, however, did not contact Johnson to verify whether she could work on Sundays. Pls.’ Am. Statement of Material Facts ¶ 317.
10. Machelle Guy. In 1999, Guy worked at Von Maur’s SouthPark store in the men’s furnishings department for approximately one month before she voluntarily resigned. Def.’s Statement of Material Facts ¶¶ 740, 742-43. In the summer of 2000, Guy applied for Von Maur’s executive training program at SouthPark. Id. ¶ 751. Von Maur interviewed Guy, but she was not hired for the program. Id. ¶¶ 753-56. Next, in June or July 2003, in response to a newspaper advertisement announcing openings for “buying jobs,” Guy applied for the Buyer and the Buyer Assistant positions. Pls.’ Am. Statement of Material Facts ¶ 271. Although Guy was not primarily interested in a clerical position (Buyer Assistant), Guy states she would have accepted any position that would have assisted her in getting into a “buying” position at Von Maur. See id. ¶¶ 274-75. According to Von Maur, if an applicant applies for the Buyer Assistant position but aspires to become a Buyer, Von Maur would inform the applicant that the most direct path to becoming a Buyer is to
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first work the retail store to “learn the store end of things.” Pls.’ App. at 801; Pls.’ Am. Statement of Material Facts ¶ 282. Accordingly, if the applicant is interested in taking this career path, Von Maur forwards the application to the retail store. Pls.’ Am. Statement of Material Facts ¶ 282. When Guy turned in her application, however, no one inquired about Guy’s interest nor did anyone inform her of the retail store option.20 Id. ¶ 283. Indeed, when Guy asked if there was anyone in human resources she could speak with, the receptionist stated that no one was available at that time and told Guy that someone would get back to her. Pls.’ App. at 760. Guy subsequently called Von Maur three times to follow-up on her application. On each occasion, she was either told that someone would get back to her or that the position was filled. Pls.’ Am. Statement of Material Facts ¶ 273. Guy, however, subsequently saw a newspaper advertisement for buying positions, which led her to believe that the positions were not filled. Id.
11. Raquel Maiden. In April of 2004, Maiden applied for a sales position at Von Maur’s NorthPark store. Def.’s Statement of Material Facts ¶ 624. Maiden’s “Application for Employment,” signed and dated April 22, 2004, states that Maiden was referred to Von Maur as a walk-in applicant. Def.’s App. at 856-57. Lisa Nelson (“Nelson”), a NorthPark floor manager, interviewed Maiden the following day, on April 23, 2004. Id. at 857; Pls.’ App. at 267-69. Although Nelson does not recall anything about Maiden’s interview, or Maiden for that matter, based on what she “read in
20 Von Maur does not have Guy’s 2003 application, but admits that “Guy went to Von Maur’s corporate headquarters and asked the receptionist for an application . . . which she then filled out.” Id. ¶¶ 775, 776.
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here” (presumably Maiden’s application, resume, and Nelson’s First Interview Question notes), Nelson “thought [Maiden] would be better suited to a fast-paced area.” Def.’s App. at 994-95. Nelson further testified that the notation “verbal” on Maiden application denotes that Nelson verbally told Maiden that Von Maur would be “pursuing other candidates for the open positions for the store, and that if something became available, [she] would call to set up another interview.” Id. at 995. Nelson states that Maiden’s application was then placed in the “active file,” i.e., Maiden’s application would remain on “active status” for six months for consideration for future openings. Id. at 991. Maiden claims that when positions subsequently opened in a “fast-paced area,” Von Maur did not contact Maiden, but instead hired white applicants, Mollie Rodman, Leanne Rade, and Amanda Wadsworth, all of whom applied for positions shortly after Maiden. Pls.’ Am. Statement of Material Facts ¶¶ 215-220.
Maiden testified that in July 2004, she again applied for employment at Von Maur after seeing a newspaper advertisement for open positions and was interviewed shortly thereafter. Id. ¶¶ 212-13. Von Maur, however, contends that Maiden’s July interview was a second-round interview from Maiden’s first application. See Def.’s Statement of Material Facts ¶ 643. Regardless, Maiden was interviewed on July 29, 2004 by Shelie Roldan (“Roldan”), NorthPark human resources manager.21 Id. During the interview, in response to: “Tell me about a time when you had to communicate negative or unfavorable information to someone,” Maiden recounted an incident at DHL where Maiden spoke to her manager about her pay after two coworkers informed Maiden that she was being paid less than they were being paid for the same
21 Notably, Roldan used the “Sales Associate Second Interview Questions” form during Maiden’s July 29, 2004 interview. Pls.’ App. at 272.
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job. See Def.’s App. at 836-37; Pls.’ App. at 273. When Maiden approached her DHL manager, Maiden was told that she should not be talking about pay, but Maiden was not disciplined in any manner for bringing the pay discrepancy to the manager’s attention. See Def.’s App. 837; Pls.’ App. at 273. Indeed, Maiden testified that she eventually received a raise “after my manager fought for me.” Def.’s App. at 837. At the time of Maiden’s interview, Von Maur had a policy that prohibited any discussion of wage or salary with anyone except human resources or payroll. Def.’s Statement of Material Facts ¶ 656. Thus, based on Maiden’s response, Roldan had concerns that Maiden would discuss her wage and salary with co-workers at Von Maur. See id. Additionally, Roldan had concerns about Maiden’s longevity in past employment22 and Maiden’s ambiguity regarding whether she wanted to work full- or part-time. See id. ¶¶ 658, 660. Roldan, therefore, decided not to hire Maiden and sent her a standard regret letter. Id. ¶¶ 658, 663.
F. EEOC Class Members 1. Paul Parks. On October 25, 2004, Parks applied for a truck driver position at Von Maur Center after seeing an advertisement for open positions. Id. ¶¶ 971, 975. An unidentified woman who took Parks’ application tried to get Parks an interview while he was there, but ultimately informed him that the person who needed to interview him could not see him at that time. Id. ¶¶ 980-81, 986. Parks was never interviewed for the position, even though he had twenty-five years of truck driving experience. Three days later, on October 28, 2004, Rich Pannell (“Pannell”), a Caucasian applicant, applied for a truck driver position after seeing the same advertisement.
22 Maiden’s resume listed the following employment history: Kids Club (May 2001 to May 2002), APAC (May to August 2002), One Solution Staffing (May to September 2003), and Kmart (September 2003 to January 2004). Pls.’ Am. Statement of Material Facts ¶ 214.
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Pls.’ App. at 556; Def.’s Statement of Material Facts ¶ 1004. Pannell, who had approximately nine years of truck driving experience at that time, was interviewed the same day. See Def.’s Statement of Material Facts ¶ 1005; Pls.’ App. at 557. Von Maur hired Pannell on December 20, 2004. Def.’s Statement of Material Facts ¶ 1004. Parks, however, received a regret letter from Von Maur stating that it hired “someone within their own workforce.” Id. ¶ 995. Von Maur contends that although Parks “met the minimum qualifications” for a truck driver, Pannell “was clearly the best qualified.” Def.’s Br. at 99.
2. Marlene Jacks. On May 21, 2004, Jacks, Associate Dean for Admissions at Grinnell College, applied at Von Maur’s NorthPark location for a part-time sales associate position to supplement her income. Pls.’ Am. Statement of Material Facts ¶¶ 185-86. At the time Jacks applied, she was not seeking a seasonal position, but rather was interested in a part-time position that would continue into the school year. Id. ¶ 191. That same day, Jacks was interviewed by Roldan. Id. ¶ 193. During the interview, which lasted approximately forty-five minutes to an hour, Roldan asked about Jacks’ availability. Def.’s Statement of Material Facts ¶¶ 1026-27. They discussed the fact that Jacks had a full-time position at Grinnell College, and that Jacks wanted to work about one day out of the week and possibly weekends. Id. ¶ 1026. On her application, Jacks wrote that she was available from 5-9 pm on Mondays, 4-9 pm on Wednesdays, Thursdays, and Fridays, and either 10-5 pm or 1-5 pm on Saturdays. Pls.’ Am. Statement of Material Facts ¶ 190. Roldan passed Jacks for a second interview. Three days later, on May 24, 2004, Jacks had a second interview with Bea Lommell (“Lommell”), then floor manager at NorthPark. Id. ¶ 193; Def.’s Statement of Material Facts ¶ 53. During the interview, they discussed Jacks’ travel
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schedule for Grinnell College. Def.’s Statement of Material Facts ¶ 1040. Despite Jacks’ educational and professional background, Lommell did not believe that
Jacks was any more impressive than any other Von Maur applicant. See id. ¶ 1041. Lommell and Roldan discussed Jacks’ application and concluded that Jacks wanted a summer job, that with her Grinnell College work schedule she would be unable to devote twenty hours a week, and that she would “be gone” by the time school started in the fall. Id. ¶ 1060. Lommell made the “judgment call” that Jacks would not give Von Maur the dependability and longevity Von Maur required once the school year started. See id. ¶ 1043. Approximately a week after her second interview, Jacks received a standard regret letter from Von Maur. Id. ¶ 1047.
3. Havilah Johnson. Johnson applied to Von Maur’s NorthPark store on three separate occasions. Johnson first applied to Von Maur shortly after her high school graduation, which was in May 2001. Pls.’ App. at 871. Johnson applied again approximately a month later, in June 2001. Id. There is conflicting testimony regarding the last time Johnson applied for employment at Von Maur.23 Initially, Johnson testified that although she did not know the exact dates of her applications, all three applications were in 2001. Def.’s App. at 762 (“Q: Okay, so in 2001, before June of 2001, you submitted three applications? A: I don’t know the exact date, but it was in 2001.”). Johnson testified that she applied to NorthPark before she started working at Valley Shelter in 2001. See id. at 744, 762. Lastly, when asked whether Johnson ever applied to Von Maur in 2002, 2003, 2004, or 2005, Johnson replied, “Not that I can recall.” Id. at 764. The following
23 The approximate date of Johnson’s application is significant because if Johnson’s third application for employment at NorthPark was prior to October 10, 2002, her claim would be barred by the statute of limitations, discussed infra.
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exchange, however, occurred during Johnson’s subsequent questioning by Plaintiffs’ counsel: Q: Okay. Now, maybe I was the only one who was confused, but I was confused by the dates here so I’d like to go over these. Do you recall applying to Von Maur three times; is that right? A: Yes, sir. Q: And the first time, as you just testified, was shortly after high school, right? A: Yes, sir. Q: And you graduated from high school in May of 2001? . . . A: Yes, sir. . . . Q: And the second time you applied to Von Maur in response to that ad, how long after the first application was the second application? . . . A: A month later – within a month later. . . . Q: Okay. Now, the third time you applied to Von Maur what was that in response to? A: An ad in the paper. Q: And do you recall when you applied for that job? A: It was the year of 2003. Q: And why do you remember that as the year that you applied the third time? A: Because of NYSP, the summer job that I held down through St. Ambrose, I needed to find another job, and I applied at Von Maur the same time that I applied for Family Resources. Q: And you’re sure of that?
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A: I’m positive. Pls.’ App. at 871-72. Johnson, however, testified that she started working at Family Resources in 2001. See Def.’s App. at 744 (“Q: When did you start working there? A: 2001.”). Regardless, Von Maur contends that Johnson was not hired because Johnson’s anticipated enrollment in college in the fall of 2001 would have made her unavailable for the required hours and she was, therefore, not qualified for the position. See Def.’s Statement of Material Facts ¶ 1088.
4. Lawanda Jones Allen. In the summer of 2003, Allen applied for a part-time sales associate position. Allen testified that she picked up an application in-person at NorthPark, took it home to fill out, and returned it in-person to the store. Id. ¶¶ 1090-91. At the time of her application, Allen was not specifically aware of any openings at NorthPark. Def.’s App. at 5. Von Maur did not contact Allen regarding her application. Def.’s Statement of Material Facts ¶ 1095. The following year, on or about June 26, 2004, Allen applied for a data entry position through the Quad City Times Virtual Career center, an online application process. See id. ¶ 1099. Allen states that Von Maur did not contact her regarding her online application. See Pls.’ Am. Statement of Material Facts ¶ 201. Von Maur, however, states that Place called and left a voice message for Allen on her answering machine. Def.’s Statement of Material Facts ¶ 1101. Specifically, there is a handwritten notation on Allen’s online application, “LM 7/9 @ 12:38.” Def.’s App. at 25. Roldan, moreover, states that she tried to call Allen on July 27, 2004 – another handwritten notation on Allen’s online application states, “Try to call Tuesday 7/27.” Def.’s Statement of Material Facts ¶ 1102; Def.’s App. at 26. Von Maur claims that Allen did
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not return the phone calls. Def.’s Statement of Material Facts ¶ 1103. 5. Jacqueline Ash. On June 22, 2004, Ash went to Von Maur Center’s open house after seeing the
advertisement in the newspaper. See id. ¶¶ 1115-18. Ash applied for open warehouse positions. Pls.’ Am. Statement of Material Facts ¶ 155. As noted above, however, after the first day of the open house, Von Maur had enough applicants for stock and shipping and receiving positions. Def.’s Statement of Material Facts ¶ 367. That is, Von Maur decided to fill all open stock and shipping and receiving positions with applicants from the first day of the open house (June 21), and posted a sign at the entrance of the interview area that stated Von Maur had “enough applicants for stock and receiving.” See id. ¶¶ 370-71, 921. Ash’s application, nonetheless, was accepted by Trytten. Id. ¶ 1122. Approximately five to ten minutes later, Place interviewed Ash, told her that she interviewed well, and passed her on for a second interview. Id. ¶¶ 111819, 1122. David Burke (“Burke”), director of operations, conducted Ash’s second interview. Id. ¶¶ 179, 1122. Burke also informed Ash that she interviewed well, but that her application would be kept on file because the warehouse positions were filled. Id. ¶ 1123. Less than two weeks later, on July 2, 2004, Von Maur claims that Rockwell called Ash to offer her a warehouse position with Von Maur. Id. ¶ 1130; Pls.’ Am. Statement of Material Facts ¶ 157. Rockwell, apparently, called Ash again on July 9, 2004. Def.’s Statement of Material Facts ¶ 1130. According to Von Maur, Ash never returned Rockwell’s phone calls. Id. Von Maur, therefore, did not hire Ash because she did not call back, while Ash claims that she only received a standard regret letter. Id. ¶¶ 1130, 1136; Pls.’ Am. Statement of Material Facts ¶ 157.
6. La’Quan Miller.
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Von Maur has an executive training program which is designed to provide additional training for individuals interested in moving into executive management positions or to “buying” roles. See Def.’s Statement of Material Facts ¶ 7. Individuals interested in Von Maur’s executive training program can apply through Von Maur’s website, submit an application inperson, be recruited on college campuses, or (presumably as a current employee) be identified as someone to enter the executive training. See id. ¶ 119. Individuals accepted into the executive training program are exposed to all responsibilities of a sales associate, go through new hire orientation, have additional training at the corporate office in the first months of employment, receive additional training by store management, work in the distribution center and the finance department, and “receive additional training on company philosophies, expectations, management philosophy, leadership, specific skills such as negotiations, and work with a buyer.” Id. ¶ 120.
In late 2004, as Miller was preparing to graduate from college, he applied online at Von Maur Center for entry-level corporate positions, like the executive training program. See Pls.’ Am. Statement of Material Facts ¶ 296. Specifically, Miller applied in October 2004, and again in November 2004, but did not hear back from Von Maur.24 See Def.’s Statement of Material Facts ¶ 1162. Von Maur does not have a record of Miller’s 2004 applications and claims that it did not have online application capacity until November 2004. See id. ¶¶ 1166-67. Von Maur
24 Miller contends that he applied to Von Maur’s Lombard, Illinois location at some point in 2004. Von Maur, however, claims it only has a record of Miller’s Lombard application dated June 2005. Regardless, the parties agree that Miller’s application to the Lombard store is not part of the current ligation. See Def.’s Br. at 121.
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also points out that on Miller’s subsequent June 27, 200525 application to its Lombard, Illinois store, Miller noted that he had not previously applied to Von Maur. See Def.’s App. at 1848.
II. STANDARD FOR SUMMARY JUDGMENT Summary judgment has a special place in civil litigation. The device “has proven its usefulness as a means of avoiding full-dress trials in unwinnable cases, thereby freeing courts to utilize scarce judicial resources in more beneficial ways.” Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991). In operation, the role of summary judgment is to pierce the boilerplate of the pleadings and assay the parties’ proof in order to determine whether trial is actually required. See id.; see also Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990). “[S]ummary judgment is an extreme remedy, and one which is not to be granted unless the movant has established his right to a judgment with such clarity as to leave no room for controversy and that the other party is not entitled to recover under any discernible circumstances.” Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 209 (8th Cir. 1976) (citing Windsor v. Bethesda Gen. Hosp., 523 F.2d 891, 893 n.5 (8th Cir. 1975)). The purpose of the rule is “‘not to cut litigants off from their right of trial by jury if they really have issues to try,’” Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 467 (1962) (quoting Sartor v. Ark. Natural Gas Corp., 321 U.S. 620, 627 (1944)), but to avoid “useless, expensive and time-consuming trials where there is actually no genuine, factual issue remaining to be tried.” Anderson v. Viking Pump Div., Houdaille Indus., Inc., 545 F.2d 1127, 1129 (8th Cir. 1976)
25 The Court notes that Miller’s application to the Lombard store is not dated. See Def.’s App. at 1852. However, there is a handwritten notation on the application that it was screened on June 29, 2005, and on July 11, 2005, and the final notation states, “7-14-05 not interested.” Id. at 1850.
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(citing Lyons v. Bd. of Educ., 523 F.2d 340, 347 (8th Cir. 1975)). The plain language of Federal Rule of Civil Procedure 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The precise standard for granting summary judgment is wellestablished and oft-repeated: summary judgment is properly granted when the record, viewed in the light most favorable to the nonmoving party and giving that party the benefit of all reasonable inferences, shows that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994). The court does not weigh the evidence nor make credibility determinations; rather, the court only determines whether there are any disputed issues and, if so, whether those issues are both genuine and material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Wilson v. Myers, 823 F.2d 253, 256 (8th Cir. 1987) (“Summary judgment is not designed to weed out dubious claims, but to eliminate those claims with no basis in material fact.”).
Employment actions are inherently fact based, and the Eighth Circuit has repeatedly cautioned that in employment discrimination cases, summary judgment should “seldom be granted . . . unless all the evidence points one way and is susceptible to no reasonable inferences sustaining the position of the nonmoving party.” Hindman v. Transkrit Corp., 145 F.3d 986, 990 (8th Cir. 1998) (citations omitted); see also Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994) (“summary judgment should seldom be used in employment-discrimination cases”);
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Hillebrand v. M-Tron Indus., Inc., 827 F.2d 363, 364 (8th Cir. 1987), cert. denied, 488 U.S. 1004 (1989). This is because “inferences are often the basis of the claim . . . and ‘summary judgment should not be granted unless the evidence could not support any reasonable inference’ of discrimination.” Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1156 (8th Cir. 1999) (quoting Lynn v. Deaconess Med. Ctr. – W. Campus, 160 F.3d 484, 486-87 (8th Cir. 1998)). This does not mean, however, that summary judgment is never proper in employment cases.
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact based on the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any. See Celotex, 477 U.S. at 323; Anderson, 477 U.S. at 248. Once the moving party has carried its burden, the nonmoving party must go beyond the pleadings and, by affidavits or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(c), (e); Celotex Corp., 477 U.S. at 322-23; Anderson, 477 U.S. at 257. “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247-48. An issue is “genuine,” if the evidence is sufficient to persuade a reasonable jury to return a verdict for the nonmoving party. See id. at 248. “As to materiality, the substantive law will identify which facts are material. . . . Factual disputes that are irrelevant or unnecessary will not be counted.” Id.
III. LAW AND ANALYSIS A. Statute of Limitations
1. Title VII.
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The parties agree that any cause of action under Title VII which occurred prior to October 10, 2002 is barred by the applicable 300-day statute of limitations. See Def.’s Br. at 11; Pls.’ Br. at 40. Despite this initial agreement, the parties dispute whether the claims asserted by certain Plaintiffs are barred. Von Maur contends that the causes of action asserted by Guy, Damenica Johnson, and Havilah Johnson are barred, while Plaintiffs counter that the claims by Guy, Damenica Johnson, and Havilah Johnson are timely.
As noted above, Guy applied to Von Maur’s executive training program in the summer of 2000 and was not hired. See Def.’s Statement of Material Facts ¶¶ 751, 755-56. This claim, that Von Maur failed to hire Guy in the summer of 2000, is barred by the statute of limitations. Indeed, Plaintiffs state that they “are not seeking redress for incidents prior to [the October 10, 2002] date.” Pls.’ Response Br. at 40. Guy’s subsequent claim, arising out of her June or July 2003 application, however, is not barred by the statute of limitations. Guy testified that she applied in June or July 2003 for Buyer and Buyer Assistant, in response to a newspaper advertisement announcing openings for “buying jobs.” Pls.’ Am. Statement of Material Facts ¶ 271. Von Maur does not contest that Guy filled out an application. See Def.’s Statement of Material Facts ¶ 775 (“Guy went to Von Maur’s corporate headquarters and asked the receptionist for an application and was given an application, which she then filled out.”). Rather, Von Maur contends that it does not have a record of Guy’s application, and without it, “it is possible to assume Guy never applied or that the application was discarded under the one year document retention policy or that the application was facially deficient or that Guy’s very abbreviated employment previously with Von Maur was considered.” Id. ¶ 776. Given Von Maur’s acknowledgment that Guys filled out an application, and Guy’s own testimony that she
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applied for Buyer and Buyer Assistant positions in June or July 2003, there is a genuine issue of material fact and the Court, therefore, cannot conclude as a matter of law that Guy’s failure to hire claim arising out of the June or July 2003 application is barred by the statute of limitations. Accordingly, Guy’s failure to hire claim stemming from her 2000 application is barred, while Guy’s failure to hire claim arising from her June or July 2003 application is not barred by the statute of limitations.
Next, Von Maur argues that any claims asserted by Damenica Johnson arising from her alleged applications to Von Maur’s credit department in 2001 and 2002 are barred by the statute of limitations. See id. ¶¶ 945-46. Again, Plaintiffs agree that they “are not seeking redress for incidents prior to [the October 10, 2002] date.” Pls.’ Response Br. at 40. Accordingly, because Plaintiffs do not dispute that Johnson’s 2002 application occurred prior to October 10, 2002, any claims arising from Johnson’s 2001 and 2002 applications are barred by the statute of limitations.26
Lastly, Von Maur contends that any claims asserted by Havilah Johnson are barred by the statute of limitations. As noted above, Havilah Johnson applied to Von Maur on three separation occasions. The parties agree that Johnson applied the first two times in 2001, first in approximately May 2001, and the second time a month later, in approximately June 2001. The parties dispute, however, the date of Johnson’s third and final application. During her deposition, Johnson testified that she applied all three times in 2001. See Def.’s App. at 762 (“Q: Okay, so in 2001, before June of 2001, you submitted three applications? A: I don’t know
26 Von Maur does not contest the timeliness of Johnson’s claim arising out of her June 10, 2003 application. See Def.’s Statement of Material Facts ¶ 947.
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the exact date, but it was in 2001.”). Johnson, moreover, testified that she applied to Von Maur before she started working at Valley Shelter in 2001. See id. at 744, 762. Johnson’s testimony, however, changed during subsequent questioning by Plaintiffs’ counsel. That is, in response to Plaintiffs’ counsel’s question regarding the time frame of her third application, Johnson testified that it “was in the year of 2003.” Pls.’ App. at 871 (“Q: Okay. Now, the third time you applied to Von Maur what was that in response to? A: An ad in the paper. Q: And do you recall when you applied for that job? A: It was the year of 2003.”). Johnson recalled the time frame because of the summer job she held during college, and that she “needed to find another job, and [she] applied to Von Maur the same time that [she] applied for Family Resources.” Id. Johnson, however, testified that she started working at Family Resources in 2001. See Def.’s App. at 744 (“Q: When did you start working there? A: 2001.”). Thus, even disregarding Johnson’s earlier testimony, and making all reasonable inferences in favor of Plaintiffs at this stage in summary judgment, the Court cannot find that Johnson applied in 2003. Indeed, the point of reference that Johnson recalled to determine when she applied to Von Maur for the third time was that she applied to Family Resources during the same time period, which was in 2001. Accordingly, the Court concludes that Havilah Johnson’s claims are barred by the statute of limitations.
2. 42 U.S.C. § 1981. In addition to the Title VII claims, Individual Plaintiffs also assert claims under § 1981. Von Maur states that because the two year statute of limitations applies to failure to hire cases under § 1981, Guy’s claim arising out of her alleged summer 2000 application to the executive program, and Damenica Johnson’s claim arising out of her applications to the credit department in 2001 and 2002 are barred. See Williams v. Hawkeye Cmty. Coll., 494 F. Supp. 2d 1032, 1042
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(N.D. Iowa 2007). Again, Plaintiffs state that they are “not seeking redress for incidents prior to [the October 10, 2002] date.” Pls.’ Response Br. at 40. Accordingly, Guy’s § 1981 claim arising out of her summer 2000 application and Johnson’s § 1981 claim arising out of her 2001 application to the credit department are barred. As for Johnson’s 2002 application, Plaintiffs do not argue that the claim is timely, and there is no indication in the record that the 2002 application was within the applicable limitations period. The Court, therefore, concludes that Johnson’s § 1981 claim arising out of her 2002 application to the credit department is also barred by the statute of limitations.27
B. Individual Plaintiffs’ Indirect Evidence of Discrimination In their Fourth Amended Complaint, Individual Plaintiffs allege that Von Maur failed to hire them on the basis of their race in violation of Title VII, 42 U.S.C. § 1981, and the Iowa Civil Rights Act (“ICRA”).28 In its class action, the EEOC alleges that Von Maur failed to hire class members on the basis of their race in violation of Title VII.29 A plaintiff may prove discrimination by using either direct or indirect (circumstantial) evidence. See Putman v. Unity Health Sys., 348 F.3d 732, 734 (8th Cir. 2003). Direct evidence of discrimination is rare because “there will seldom be eyewitness testimony as to the employer’s mental processes because a
27 Havilah Johnson, as an EEOC class member, did not assert a § 1981 claim. 28 As noted above, Count IV (intentional infliction of emotional distress claim) of Individual Plaintiffs’ Fourth Amended Complaint was dismissed with prejudice by stipulation of the parties. See Clerk’s No. 52. 29 Although Individual Plaintiffs allege violations of Title VII, § 1981, and the ICRA, the analysis under Title VII and § 1981 are identical, and that analysis does not significantly differ for the ICRA. See, e.g., Kim v. Nash Finch Co., 123 F.3d 1046, 1056 (8th Cir. 1997); Parada v. Great Plains Int’l of Sioux City, Inc., 483 F. Supp. 2d 777, 792 n.3 (N.D. Iowa 2007). Accordingly, the Court will analyze all three claims together.
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shrewd employer will not leave a trail of direct inculpatory evidence for the plaintiff to bring into court.” EEOC v. Liberal R-II Sch. Dist., 314 F.3d 920, 923 (8th Cir. 2002) (internal citation and quotation omitted). A plaintiff, therefore, may prove discrimination by using indirect (circumstantial) evidence. Under the three-part burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), a plaintiff must first demonstrate a prima facie case of intentional discrimination. If the plaintiff presents a prima facie case, then the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for its action. If the defendant meets that minimal burden, the burden then shifts back to the plaintiff to show that the defendant’s proffered non-discriminatory reason is merely a pretext for unlawful discrimination. See, e.g., Putman, 348 F.3d at 735. Here, Von Maur argues that Plaintiffs cannot establish a prima facie case for race discrimination.
To establish a claim for failure to hire on the basis of race, Plaintiffs must show, with respect to each Plaintiff that: (1) they are members of a protected class; (2) applied and were qualified for the job for which Von Maur was seeking applicants; (3) were rejected; and (4) after they were rejected, Von Maur continued to seek applicants with Plaintiffs’ qualifications. Harrison v. United Auto Group, 492 F.3d 972, 974 (8th Cir. 2007).30 Von Maur does not dispute the first element of the prima facie case, that the Plaintiffs are members of a protected class
30 The “Supreme Court and [the Eighth Circuit] have recognized that the prima facie case in discrimination suits varies somewhat with the specific facts of each case,” especially the fourth element. Hindman, 145 F.3d at 990-91 (citing McDonnell Douglas, 411 U.S. at 802 n.13). Specifically, in addition to the fourth element noted above, the Eighth Circuit and Iowa district courts have articulated the fourth element as, “the employer hired someone from outside the protected class,” see, e.g., Arraleh v. County of Ramsey, 461 F.3d 967, 975 (8th Cir. 2006), or “that the circumstances surrounding the employment decision give rise to an inference of unlawful discrimination.” Peterson v. Prosser, No. C08-4005-MWB, 2008 U.S. Dist. LEXIS 33581, at *15 (N.D. Iowa Apr. 23, 2008).
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(African-American). Von Maur, however, disputes the remaining elements in some respect with each Plaintiff. The Court will address the remaining elements for each Plaintiff in turn.
1. Ward’s evidence of discrimination. On or about May 29, 2003, Ward, who was unemployed at the time, went to Von Maur Center to apply for employment. Ward applied for “any open position” at Von Maur. On May 30, 2003, Peterson interviewed Ward. Because there was an immediate need to fill open merchandise processor positions, Peterson only considered Ward for that position. Ward was not hired. a. Prima facie case. Von Maur contends that Ward cannot establish the second element of the prima facie case, that Ward was qualified for the position. Ward contends that she was qualified for merchandise processor because she met the physical requirements of the position and there were no educational or experience requirements. Pls.’ Response Br. at 46. Von Maur states that Ward was not qualified for the position because, during the interview with Peterson, Ward could not state with certainty that she would be available for the hours required and had expressed that she had attendance problems in the past. Ward contends that Von Maur’s explanations, based on subjective hiring criteria, are more accurately categorized as Von Maur’s allegedly legitimate, non-discriminatory reasons for not hiring her, not a basis to refute Ward’s qualifications for the position. The Eighth Circuit has noted that “a plaintiff’s burden at the prima facie stage is less onerous where the employer’s hiring criteria are subjective,” as it pertains to the second element of the prima facie case. See Harrison, 492 F.3d at 974. Given that Von Maur has not pointed to an objective hiring criteria for which Ward did not qualify, the Court agrees with Plaintiffs’
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contention and finds that Ward was minimally qualified for the position. See Lyoch v. AnheuserBusch Cos., Inc., 139 F.3d 612, 615 (8th Cir. 1998) (“This lighter burden at the prima facie stage is justified by the fact that subjective criteria for [hiring] ‘are particularly easy for an employer to invent in an effort to sabotage a plaintiff’s prima facie case and mask discrimination.’” (citation omitted)). Because Von Maur does not dispute the third and fourth elements of the prima facie case, that Ward was rejected for the position and that Von Maur continued to seek applicants, the Court finds that Ward has satisfied her prima facie case.
b. Pretext for discrimination. Because Ward satisfied her prima facie case, the burden shifts to Von Maur to articulate a legitimate, non-discriminatory reason for not hiring her. As noted above, Von Maur states that it did not hire Ward because, during her interview with Peterson, Ward could not state with certainty that she would be available for the hours required and had expressed that she had attendance problems in the past. These non-discriminatory reasons satisfy Von Maur’s minimal burden, and the burden shifts back to Ward to show that Von Maur’s proffered nondiscriminatory reasons are merely a pretext for unlawful discrimination. To establish that Von Maur’s stated reasons are pretext, Ward first points out that as to her availability, she wrote on her application that she was “open” to work every day of the week, with a designation of “morning” for Mondays. See Pls.’ App. at 221. Peterson testified that Ward satisfied the availability requirement during her pre-interview screening process, otherwise, Peterson would not have interviewed Ward in the first instance. However, Peterson states that when she tried to re-confirm Ward’s availability during the interview, Ward did not answer with certainty, but only answered that she “should be” or “probably could” be available for the required hours. See
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Def.’s App. at 1128. Ward, on the other hand, testified that she was available for the required hours, and stated
as much during the interview. Ward attempts to discredit Peterson’s recollection of the interview by pointing out that Peterson testified that she was certain that she interviewed Ward after interviewing Renkosik, because Peterson recalled wanting Ward to do well on the interview because Renkosik, who worked with Ward at Oscar Mayer, was passed on for a second interview. It appears, however, that Peterson’s work calendar showed that Ward was interviewed first, before Renkosik was interviewed by Peterson. See Pls.’ Am. Statement of Material Facts ¶ 82. The Court, however, does not make credibility determinations. See Anderson, 477 U.S. at 252.
Additionally, Ward argues that Von Maur is changing its reasons for not hiring Ward. Ward points out that “years ago,” Von Maur informed the Davenport Civil Rights Commission that the “deciding factor” in not hiring Ward was that Ward told Peterson that Oscar Mayer fired her for missing work, while presently, in its motion for summary judgment, Von Maur contends that it did not hire her because she was not available for the required hours. These shifting explanations, according to Ward, demonstrate that Von Maur’s explanations are pretext for discrimination. See Arnold v. Nursing & Rehab. Ctr. at Good Shepard, LLC, 471 F.3d 843, 847 (8th Cir. 2006) (“A plaintiff may make a sufficient showing of pretext by . . . showing that an employer . . . made substantial changes over time in its proffered reason for an employment decision.” (internal citations omitted)). The Court disagrees.
In its position statement to the Davenport Civil Rights Commission, Von Maur stated that a couple of “red flags” were raised during Ward’s interview with Peterson. Specifically, Von
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Maur noted that Ward stated that her housekeeping job after her employment with Oscar Mayer was “ridiculous” and was worse than her job at Oscar Mayer, and that she wanted to bid on “easier” jobs at Oscar Mayer. See Pls.’ App. at 638-39. According to Von Maur, these comments by Ward raised questions about her attitude. Von Maur stated in its position statement to the Davenport Civil Rights Commission that the “deciding factor,” however, was Ward’s comment that Oscar Mayer let her go because she missed a lot of work. Id. at 639. Although Ward denies making that statement, the First Interview Questions sheet that Peterson filled out during the interview states, “‘Missed a lot of work [and] they [Oscar Mayer] let me go,’” in addition to, “Left Oscar Meyer [sic] 8/02 due to changing schedule (each week) conflicting [with] school schedule. She is now taking every classes [sic] [and] looking [to increase] day shift position.” Id. at 307. In its brief, Von Maur does address Ward’s availability concern as one reason for not hiring her, but Von Maur continues to note that Ward’s comment about her past attendance problems at Oscar Mayer was another reason for not hiring her. Here, Von Maur’s emphasis on one reason for not hiring Ward (availability), where it appears that there were multiple “red flags” (attitude, attendance, easy job), does not demonstrate that Von Maur’s nondiscriminatory reasons for not hiring Ward are pretext for discrimination. Accordingly, Ward has not satisfied her burden of establishing pretext under the McDonnell Douglas burden-shifting framework.
2. McBride’s evidence of discrimination. McBride applied for employment at Von Maur Center on May 29, 2003. Within a couple of weeks, after not receiving any response, McBride participated in Von Maur Center’s June 2003 open house. Although McBride had previously filled out an application, McBride was
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asked to complete another application because the receptionist could not locate McBride’s May 29 application. After completing another application for merchandise processor, data entry, and customer service positions, McBride waited approximately twenty-five minutes and was interviewed by Bryan. McBride was not hired.
a. Prima facie case. Von Maur contends that McBride cannot establish the second element of the prima facie case, that McBride was qualified for the positions. McBride states that she was qualified for merchandise processor, data entry, and customer service positions. After review of the job descriptions, it appears that McBride’s qualifications satisfy the objective experience and knowledge/skill requirements enumerated in the job descriptions. While Von Maur is certainly entitled, at trial, to rely on evidence that its subjective criteria and subjective impressions, free from any discriminatory animus, made McBride unqualified for merchandise processor, data entry, and customer service positions, at this stage in summary judgment, the Court finds that McBride met the minimum objective qualifications for the positions. See Harrison, 492 F.3d at 974 (“[A] plaintiff’s burden at the prima facie stage is less onerous where the employer’s hiring criteria are subjective.”); Lyoch, 139 F.3d at 615 (“This lighter burden at the prima facie stage is justified by the fact that subjective criteria for [hiring] ‘are particularly easy for an employer to invent in an effort to sabotage a plaintiff’s prima facie case and mask discrimination.’” (citation omitted)). Von Maur does not dispute the third element of the prima facie case, that McBride was rejected by Von Maur. Von Maur, however, disputes that McBride can satisfy the fourth
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element.31 Von Maur, however, acknowledges that it continued to seek applicants for the open positions. See Def.’s Br. at 55. Accordingly, McBride has satisfied her prima facie case.
b. Pretext for discrimination. Because McBride satisfied her prima facie case, the burden shifts to Von Maur to articulate a legitimate, non-discriminatory reason for not hiring her. As noted above, Von Maur states that it did not hire McBride because, during her interview with Bryan, McBride recounted an incident during her tenure as a dental assistant, when a “gay” man urinated all over the restroom and McBride refused to clean it up. Bryan, who happens to be a lesbian, found McBride’s comment offensive and inappropriate and felt that McBride did not have the proper communication skills needed for the positions for which she applied. This non-discriminatory reason satisfies Von Maur’s minimal burden, and the burden shifts back to McBride to show that Von Maur’s proffered non-discriminatory reason is merely a pretext for unlawful discrimination.
To establish that Von Maur’s reason is pretext for discrimination, McBride points to her testimony, wherein she testified that she never made any disparaging statement about gay people during the interview. The interview notes that Bryan took during McBride’s interview, however, state, “dental asst – gay gentleman urinated all over restroom – refused to clean.” Def.’s App. at 2289. It appears, therefore, that McBride did reference an incident involving a gay man during
31 Von Maur analyzed the fourth element under a different standard, i.e., that the position was not filled by someone in the protected class, which differs from the fourth element noted above, that after Plaintiffs’ were rejected, Von Maur continued to seek applicants with Plaintiffs’ qualifications. Harrison, 492 F.3d at 974.
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the interview, regardless of whether McBride considered the statement to be disparaging towards gay people. Bryan testified that she found McBride’s comment to be offensive and inappropriate, and made the decision not to pass McBride for a second interview. The Eighth Circuit has repeatedly explained that employment discrimination laws “have not vested in the federal courts the authority to sit as super-personnel departments reviewing the wisdom or fairness of the business judgments made by employers, except to the extent that those judgments involve intentional discrimination.” Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 781 (8th Cir. 1995). Thus, in this case, even if the Court found that McBride’s statement was not objectively disparaging against gay people, and that Bryan misconstrued McBride’s statement, the Court still cannot conclude that Von Maur’s explanation is pretext for discrimination. Indeed, employment discrimination laws “do not prohibit employment decisions based upon . . . erroneous evaluations, personal conflicts between employees, or even unsound business practices.” Hill v. St. Louis Univ., 123 F.3d 1114, 1120 (8th Cir. 1997); see Arnold, 471 F.3d at 847 (explaining that even when an employer makes an employment decision “upon a mistaken belief, the [plaintiff] still must offer some evidence that racial animus was at the root of the [employment decision]”).
Next, McBride claims that Von Maur’s “changes over time” in its proffered reason for not hiring her shows pretext. See Arnold, 471 F.3d at 847 (“A plaintiff may make a sufficient showing of pretext by . . . showing that an employer . . . made substantial changes over time in its proffered reason for an employment decision.” (internal citations omitted)). Specifically, in Von Maur’s answers to Plaintiffs’ interrogatories in September 2005, Von Maur stated that it did not hire McBride because of her communication skills. See Pls.’ App. at 175, 203. In February
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2006, Von Maur amended its answer, stating that it did not hire McBride because Bryan “believed that Ms. McBride’s frequent references to God during her interview were akin to proselytizing and that this would create problems in her communications with other employees.” Id. at 236, 245. In January 2007, after Bryan testified that her decision not to pass McBride for a second interview was based upon McBride’s comment about a gay man, not McBride’s alleged references to God, Von Maur filed another amended answer to Plaintiffs’ interrogatories, stating that Bryan’s “decision not to recommend McBride for a second interview was based in part on negative and offensive comments Ms. McBride made during her first interview regarding homosexuality.” Id. at 248; Pls.’ Am. Statement of Material Facts ¶ 174.
These alleged inconsistencies, according to McBride, demonstrate that Von Maur is offering a pretextual rationale for not hiring her. The Court disagrees. The Eighth Circuit explained that “[w]hile it is true that substantial changes over time in the employer’s proffered reason for its employment decision support a finding of pretext, this does not mean that an employer cannot elaborate on its proffered reason.” Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 855 (8th Cir. 2005) (internal citation and quotation omitted). Here, Von Maur has not substantially changed its proffered reason for not hiring McBride. Rather, Von Maur maintained from the start that it had concerns over McBride’s communication skills – and during the course of discovery merely amended the reason for its concern. See Engstrand v. Pioneer Hi-Bred Int’l, Inc., 946 F. Supp. 1390, 1400 (S.D. Iowa 1996) (finding no shifting reasons for termination where, of the twenty three reasons listed for plaintiff’s dismissal in defendant’s first answer to plaintiff’s interrogatories, sixteen remained and were encompassed in the scope of the amended answer). This is not a case of Von Maur changing its story. See generally Kobrin v. Univ. of
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Minn., 34 F.3d 698, 703 (8th Cir. 1994) (noting substantial change in employer’s reason for employment decision where employer hired an applicant for his expertise in psychoanalysis while stating plaintiff’s expertise was too focused on psychoanalysis). Accordingly, McBride has not satisfied her burden of establishing pretext under the McDonnell Douglas burden-shifting framework.
3. Gardner’s evidence of discrimination. On May 29, 2003, Gardner completed an application for employment with Von Maur Center. Within a couple of weeks, after not receiving any response, Gardner participated in Von Maur Center’s June 2003 open house. Although Gardner had previously filled out an application, Gardner was asked to complete another application because the receptionist could not locate her May 29 application. After completing another application for open warehouse positions, Gardner was interviewed by Haun. Gardner, however, was not hired. a. Prima facie case. Von Maur contends that Gardner cannot establish the second element of the prima facie case, that she was qualified for the positions. Gardner contends that she was qualified for the open warehouse positions. It appears that Gardner’s qualifications satisfy the objective requirements of the warehouse positions. Again, as noted above, while Von Maur is entitled, at trial, to rely on evidence that its subjective criteria and subjective impressions, free from any discriminatory animus, made Gardner unqualified for the warehouse position, at this stage in summary judgment, the Court finds that Gardner met the minimum objective qualifications for the positions. See Harrison, 492 F.3d at 974 (“a plaintiff’s burden at the prima facie stage is less
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onerous where the employer’s hiring criteria are subjective”); Lyoch, 139 F.3d at 615 (“This lighter burden at the prima facie stage is justified by the fact that subjective criteria for [hiring] ‘are particularly easy for an employer to invent in an effort to sabotage a plaintiff’s prima facie case and mask discrimination.’” (citation omitted)). Von Maur does not dispute the third element of the prima facie case, that Gardner was rejected by Von Maur. As to the fourth element of the prima facie case, the Court finds that Gardner satisfied this element because Von Maur acknowledges that it continued to seek applicants for the open positions. See Def.’s Br. at 58. Accordingly, Gardner has satisfied her prima facie case.
b. Pretext for discrimination. Because Gardner satisfied her prima facie case, the burden shifts to Von Maur to articulate a legitimate, non-discriminatory reason for not hiring her. Von Maur states that it did not hire Gardner because Haun, who interviewed her, had concerns over Gardner’s longevity with Von Maur given her employment history. This non-discriminatory reason satisfies Von Maur’s minimal burden, and the burden shifts back to Gardner to show that Von Maur’s proffered non-discriminatory reason is merely a pretext for unlawful discrimination. Gardner contends that Von Maur’s reason is pretext for discrimination because Von Maur hired Caucasian applicants who had worked less than one year with an employer, while Gardner had eighteen months of continuous employment at Staples working part-time. Specifically, Gardner points to Joanna Wakeland, who did not have continuous employment for a year, Michelle Niemi-Hirst, who only worked for three previous employers for a month or two, Jill North, who did not have continuous employment for a year, Rachel Cagle, who did not have more than thirteen months of continuous employment, and Dina Erxleben, who did not have continuous
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employment for two years. See Pls.’ Response Br. at 12. Von Maur, however, explains that it does not maintain a rigid requirement for a certain
number of continuous years in employment with a single employer for an applicant to be deemed a long-term hire. Rather, Von Maur acknowledges that determining longevity of an applicant is a subjective criteria which is based on the totality of the applicant’s circumstance. See Def.’s Reply App. at 16-17 (“Q: And I guess I wanted an explanation as to how having ten months at one job and a year and a half at another job does not demonstrate longevity. . . . A: I [Haun] think as we kind of discussed that longevity issue yesterday, you really look at the complete application and the positions that [the applicant] had, more of a set responsibility [the applicant] was at. . . .”). For instance, Von Maur states that Jill North, noted above, recently graduated from high school and therefore her employment history consisted only of short-term summer jobs. Moreover, North was recommended by Rockwell’s brother-in-law. See Def.’s Reply Br. at 34. While Gardner had various positions lasting from a little over a month to eighteen months, and she did not have a special recommendation. See Def.’s Statement of Material Facts ¶ 565. Von Maur, moreover, points to Jacqueline Gray, an African-American applicant who was hired, despite not having employment with the same employer for a year. See Def.’s App. at 1351-52. Thus, Von Maur contends that the longevity criteria, which admittedly is subjective, is not applied in a discriminatory manner. In Gardner’s case, Haun believed that Gardner’s employment history, coupled with Gardner’s response that she would like to attend beauty school in the future, did not make her likely to be a long-term hire.
As noted above, employment discrimination laws “have not vested in the federal courts the authority to sit as super-personnel departments reviewing the wisdom or fairness of the
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business judgments made by employers, except to the extent that those judgments involve intentional discrimination.” Hutson, 63 F.3d at 781. Here, even assuming that Haun was completely mistaken in her longevity concern with Gardner, and Gardner, in fact, would have worked at Von Maur long-term if she was hired, the Court still cannot conclude that Von Maur’s explanation is pretext for discrimination. Indeed, employment discrimination laws “do not prohibit employment decisions based upon . . . erroneous evaluations . . . or even unsound business practices.” Hill, 123 F.3d at 1120; see Arnold, 471 F.3d at 847 (explaining that even when an employer makes an employment decision “upon a mistaken belief, the [plaintiff] still must offer some evidence that racial animus was at the root of the [employment decision]”). Given that Von Maur hired both Caucasian and African-American applicants with more shortterm employment backgrounds, assessing longevity in context of that applicant’s situation, the Court cannot conclude that Von Maur’s reason for not hiring Gardner is pretext for discrimination. Accordingly, Gardner has not satisfied her burden under the McDonnell Douglas burden-shifting framework.
4. Williams’ evidence of discrimination. On or about June 23, 2003, Williams participated in Von Maur Center’s open house. Williams applied for the open warehouse positions and was interviewed by Davis. Due to longevity concerns, Davis did not pass Williams for a second interview. The following year, Williams again participated in Von Maur Center’s June 2004 open house. Williams applied for the open warehouse positions on June 22, 2004, the second day of the open house. Bryan interviewed Williams for approximately five minutes. Williams was not hired. a. Prima facie case.
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Von Maur contends that Williams cannot establish the second element of the prima facie case, that he was qualified for the positions. Williams states that he was qualified for the warehouse positions that he applied for in June 2003 and June 2004. Von Maur contends that Williams was not qualified because Von Maur had longevity concerns. As discussed above, this subjective criteria is more appropriate for the pretext analysis. Accordingly, the Court finds that Williams met the objective criteria for the warehouse positions and was, therefore, minimally qualified. See Harrison, 492 F.3d at 974 (“[A] plaintiff’s burden at the prima facie stage is less onerous where the employer’s hiring criteria are subjective.”). Because Von Maur does not dispute the third and fourth elements of the prima facie case, that Williams was rejected for the positions and that Von Maur continued to seek applicants, the Court finds that Williams has satisfied his prima facie case.
b. Pretext for discrimination. Because Williams satisfied his prima facie case, the burden shifts to Von Maur to
articulate a legitimate, non-discriminatory reason for not hiring Williams. Von Maur states that it did not hire Williams in 2003 because Davis, who interviewed him, had concerns over Williams’ likely longevity with Von Maur, given his employment history and his interest in pursuing a radiology degree. This non-discriminatory reason satisfies Von Maur’s minimal burden, and the burden shifts back to Williams to show that Von Maur’s proffered nondiscriminatory reason is merely a pretext for unlawful discrimination. Williams contends that Von Maur’s reason is pretext because Von Maur made substantial changes over time in its proffered reasons for an employment decision. See Arnold, 471 F.3d at 847.
1. June 2003 application.
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Specifically, Williams points to Von Maur’s April 2005 position statement to the Davenport Civil Rights Commission, where Von Maur stated that it did not hire Williams because of concerns with “how long he would stay on the job since he intended to go to school to obtain a position in the medical field.” Pls.’ App. at 65. In April 2008, however, Von Maur amended its answers to interrogatories to state that Von Maur did not hire Williams “because of concerns about his possible longevity with Von Maur.” See Pls.’ App. at 627, 629. This alleged inconsistency, according to Williams, demonstrates that Von Maur is offering a pretextual rationale for not hiring him. The Court disagrees. Von Maur’s reason for not passing Williams to a second interview was its concern with his longevity. The fact that Von Maur’s position statement specifies Williams’ intention to attend school in the future as the cause for its longevity concern, while its amended answers to Plaintiffs’ interrogatories provides the more generic “longevity” as a reason for not hiring Williams, does not amount to a substantial change in Von Maur’s proffered reason.
Next, Williams points to Caucasian candidates that were hired despite their intentions to pursue education in the future. See Pls.’ Response Br. at 11. Bryan and Peterson both testified that an applicant who is currently attending school or who plans to attend school in the future is not automatically disqualified from a position, but rather would warrant a follow-up about the applicant’s availability. See Pls.’ App. at 700-01, 971. In Williams’ case, it is unclear from the record if Davis followed-up about Williams’ availability. However, even assuming that Williams did, in fact, assure Davis about his availability to work the warehouse positions, Davis states that after consulting with either Rockwell or Bryan about her longevity concerns with Williams, that either Rockwell or Bryan informed Davis that they had a number of candidates
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without longevity concerns. Thus, given that Williams applied during Von Maur’s open house, Von Maur had ready access to a pool of applicants that did not pose any longevity concerns. See Def.’s Statement of Material Facts ¶ 910. Indeed, it may very well be that had Williams applied prior to or after the open house, he may have been hired despite Davis’ initial longevity concerns. However, Williams applied with a large number of applicants during the open house, where Von Maur presumably had access to more applicants – both qualified and unqualified – than usual. See Pls.’ App. at 58 (Von Maur had “hundreds” of applicants that applied just on the second day of the open house). Thus, Von Maur decided not to pass Williams on for a second interview because it had a pool of applicants who did not pose longevity concerns. Accordingly, Williams has not demonstrated that Von Maur’s reason for not hiring him in June 2003 is pretext for discrimination.
2. June 2004 application. As for Williams’ June 2004 application, Von Maur states that it did not hire Williams in 2004 because the positions were already filled and Bryan, who interviewed him, had concerns over Williams’ longevity. Williams contends that Von Maur’s reasons are pretext for discrimination because Von Maur made substantial changes over time in its proffered reasons. See Arnold, 471 F.3d at 847. Williams states that in its April 2005 position statement to the Davenport Civil Rights Commission, Von Maur stated that it did not hire Williams because the warehouse positions, specifically the stock and receiving positions, were filled. See Pls.’s App. at 66-68. Subsequently, Von Maur filed a supplemental position statement explaining that while the receiving and stock positions were filled, Williams was considered for the merchandise processing position, a warehouse position which was still open on the second day of the open
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house. See id. at 57-59. Even though Williams was considered for the merchandise processing position, Von Maur stated in its position statement that Bryan decided not to pass Williams for a second interview because of the “incomplete and sloppy” status of his application, which is inconsistent with the “attention to detail” quality sought in merchandise processing applicants. See id. at 58-59. Von Maur, additionally, stated that Bryan also had concerns about Williams’ longevity given his employment history. See id. at 58-59.
Moreover, in its answers to Plaintiffs’ interrogatories, Von Maur stated that Williams “was not offered a second interview based upon how he completed his application, which showed a lack of attention to detail.” Id. at 176. Bryan, however, testified that there was nothing about Williams’ application, in and of itself, that would have prevented him from being hired as a merchandise processor. See id. at 711-12. That is, the “incomplete and sloppy” status of Williams’ application would not have prevented Williams from getting the merchandise processor position. See id. at 712 (“Q: Okay. And you twice testified earlier that there was nothing in his application that should have prevented him from getting a merchandise processing position, correct? A: Correct.”). Even after Bryan’s testimony on January 30, 2007, Von Maur continued to maintain in its April 11, 2008 amended answers to Plaintiffs’ interrogatories that Williams was not hired “because of questions about his longevity with his previous employers and his manner of completing his application.” See id. at 627-28, 693. Presently, however, Von Maur only contends that Williams was not hired because of longevity concerns. Based on the record, it appears that Von Maur’s statement that it declined to hire Williams based on his “incomplete and sloppy” application is false and a substantial change from its current reason for declining to hire Williams – concerns over his longevity. See id. at 712. Accordingly, a rational
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trier of fact could find Von Maur’s varying reasons for not hiring Williams are evidence of pretext. See generally EEOC v. Wal-Mart Stores, Inc., 477 F.3d 561, 570 (8th Cir. 2007) (stating that “false or shifting reasons support a finding of illegal motivation” (citation omitted)); Peterson v. Scott County, 406 F.3d 515, 522 (8th Cir. 2005) (noting that a jury could reject the employer’s proffered reason because there was conflicting evidence on its believability); Bassett v. City of Minneapolis, 211 F.3d 1097, 1107 (8th Cir. 2000) (“[I]f the proffered reason is shown by conflicting evidence to be untrue, then the nonmoving party is entitled to all favorable inferences that the false reason given masks the real reason of intentional discrimination.”). Williams, therefore, has satisfied his burden of establishing pretext under the McDonnell Douglas burden-shifting framework for his 2004 application.
5. Donelson’s evidence of discrimination. Donelson participated in Von Maur Center’s June 2004 open house. Donelson applied for stock or shipping and receiving positions on the second day of the open house. After the first day of the open house, however, Von Maur states it had enough applicants for the stock and shipping and receiving positions. Donelson, nonetheless, was interviewed by Haun, who retained his application on active status for future openings for stock and shipping and receiving positions. Von Maur did not contact Donelson. a. Prima facie case. Von Maur does not dispute that Donelson can satisfy the second and third element of the prima facie case, that he was qualified for the warehouse positions and that he was rejected by Von Maur. Von Maur, however, claims that Donelson cannot establish the fourth element, that after he was rejected, Von Maur continued to seek applicants. Specifically, Von Maur contends
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that it did not hire any applicants for stock or for shipping and receiving positions until July 18, 2005, approximately a year after Donelson applied, and more than six months after Donelson’s application became inactive. In support, Von Maur points to a document listing the hire dates of employees in “Stock & Receiving” positions. See Def.’s App. at 2240. The chart shows that all current employees in the “Stock & Receiving” were hired on or before June 21, 2004, one was hired on July 12, 2004, and the rest were hired on or after July 18, 2005. See id. As for the applicant hired on July 12, 2004, Jesse Green, he applied and was interviewed on June 21, 2004. See id. at 1348. Von Maur, however, acknowledges that the merchandise processing position in the warehouse department was still open after June 21, 2004.
To satisfy the fourth element, Donelson points to other Caucasian applicants who were hired for open warehouse positions on or after June 22, 2004. See Pls.’ Am. Statement of Material Facts ¶ 95. Indeed, based on the “Warehouse Hires 06/01/03 to 6/01/05” chart, Von Maur did hire Caucasian applicants, as noted by Donelson, on or after June 22, 2004. See Pls.’ App. at 51-52. The chart, however, does not specify what positions the Caucasian applicants were hired into within the warehouse department (“stock and receiving” or merchandise processing), nor does Donelson argue that these applicants were hired into the “Stock & Receiving” positions rather than the open merchandise processing position. It appears, therefore, that Donelson is correct to assert that Caucasian applicants were subsequently hired into the warehouse department after he was rejected, but that no applicants were hired for the “Stock & Receiving” positions until almost a year later, as asserted by Von Maur. Accordingly, Donelson has not satisfied the fourth element as to the stock and shipping and receiving positions, but has satisfied the fourth element as to the merchandise processing position.
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b. Pretext. Because Donelson satisfied his prima facie case for the merchandise processing position, the burden shifts to Von Maur to articulate a legitimate, non-discriminatory reason for not hiring Donelson for the merchandise processing position. Von Maur states that it did not hire Donelson for the entry-level position of merchandise processing because he was overqualified. Specifically, Von Maur states that, given Donelson’s extensive supervisory experience, he was not well suited for the entry-level merchandise processing position. Def.’s Br. at 62-63. This non-discriminatory reason satisfies Von Maur’s minimal burden, and the burden shifts back to Donelson to show that Von Maur’s proffered non-discriminatory reason is pretext for discrimination. Donelson contends that Von Maur’s reason is pretext for discrimination because Von Maur made substantial changes over time in its proffered reason. See Arnold, 471 F.3d at 847. That is, Von Maur initially stated that Donelson was not hired because the positions were filled, then changed its reason to Donelson being overqualified for the position. However, once the Court distinguishes Von Maur’s reasons for not hiring Donelson for the two distinct positions of stock and shipping and receiving versus merchandise processing, both of which are in the warehouse department and referred to as “warehouse positions,” Donelson does not provide any evidence that Von Maur’s reason for not hiring him for the merchandise processing position is pretext for discrimination. See Robinson v. Potter, 453 F.3d 990, 994 (8th Cir. 2006) (stating that not hiring an applicant for being overqualified is a legitimate, non-discriminatory reason). Accordingly, Donelson has not satisfied his burden of establishing pretext under the McDonnell Douglas burden-shifting framework.
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6. Haymon’s evidence of discrimination. On or about August 12, 2004, Haymon applied for a truck driver position with Von Maur Center. Bealer, responsible for hiring truck drivers, received Haymon’s application and asked Turner and Morgan, two current Von Maur truck drivers who used to work with Haymon, what they thought of him. Both stated that Haymon was a nice guy, but that he was on the slower side. Bealer did not interview Haymon and he was not hired for the open truck driver position. a. Prima facie case. Von Maur contends that Haymon cannot establish the second element of the prima facie case, that he was qualified for the truck driver position. Haymon states that he was qualified for the truck driver position. Specifically, Von Maur contends that Haymon was not qualified because he “had a history of being unable to timely complete his deliveries.” Def.’s Br. at 87. Bealer, the Traffic Manager who would have interviewed Haymon, however, testified that, based on Haymon’s application, he was minimally qualified for the truck driver position. Pls.’ App. at 686 (“Q: Based on your review of this application, is Mr. Haymon minimally qualified for the position of truck driver at Von Maur? A: Yes.”). Accordingly, the Court finds that Haymon was qualified for the position. Because Von Maur does not dispute the third and fourth elements of the prima facie case, that Haymon was rejected for the position and that Von Maur continued to seek applicants, the Court finds that Haymon has satisfied his prima facie case. b. Pretext. Because Haymon satisfied his prima facie case, the burden shifts to Von Maur to articulate a legitimate, non-discriminatory reason for not hiring him. Von Maur states that it did not hire Haymon because when Bealer asked current Von Maur truck drivers, Morgan and
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Turner, both of whom had previously worked with Haymon at Eagle Foods, what they thought about Haymon as a truck driver, they both expressed concern over Haymon’s timeliness in completing deliveries. Based on this information, Bealer decided not to interview or hire Haymon. This non-discriminatory reason satisfies Von Maur’s minimal burden, and the burden shifts back to Haymon to show that Von Maur’s proffered non-discriminatory reason is pretext for discrimination.
To satisfy his burden to demonstrate pretext, Haymon points to the fact that Morgan did not tell Bealer that she (Morgan) thought that Haymon was a slow driver. Specifically, Haymon notes that Morgan testified that she told Bealer that Haymon had a perfect driving record and that she highly recommended that Von Maur hire Haymon. See id. at 927. Indeed, it appears that Morgan thought Haymon was a good person, with a perfect driving record, and recommended him “highly” to Bealer. Morgan, however, also testified that she told Bealer that Haymon was a slower driver than she was. Def.’s App. at 963. Although Morgan may have explained to Bealer that she (Morgan) was “hyper” and, therefore, might work faster than Haymon, the fact remains that Morgan did tell Bealer that Haymon “drives slower than me, and he moves slower than me.” Id. at 967. Thus, Morgan’s testimony shows that she did tell Bealer that she thought Haymon was a slow driver, at least compared to herself.
Next, Haymon claims that Turner did not tell Bealer that Von Maur should not hire Haymon, and that Turner even testified that if Turner owned a trucking company, he would hire Haymon. Pls.’ Response Br. at 24. Turner, indeed, did not tell Bealer not to hire Haymon. See Def.’s App. at 1529. Rather, Turner informed Bealer that Haymon was “never in a hurry [and that] he didn’t move very fast.” Id. at 1518. Turner also told Bealer that she may encounter the
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same problem with Haymon that she had with Matt Costello, a former Von Maur truck driver that took an hour or two longer than other drivers to get the deliveries done. See id. at 1528-29. In essence, Turner conveyed to Bealer his concerns that Haymon, although the nicest guy in the world, was going to “take [a] long” in completing deliveries. See id. at 1517, 1532. Finally, in terms of whether Turner would hire Haymon if he had his own trucking business, Turner testified that he would maybe hire Haymon “if it was a job that wasn’t so time critical,” but that if it was “a job where he had to be somewhere at a certain time, I don’t know if I would hire him.” Id. at 1533. Thus, Turner’s testimony shows that he did tell Bealer that he thought Haymon was a slow driver. Haymon, therefore, has not demonstrated that Von Maur’s reason for not hiring Haymon was pretext for discrimination. See Hutson, 63 F.3d at 781 (explaining that courts do not review the wisdom or fairness of the business judgments made by employers, except to the extent that those judgments involve intentional discrimination). Accordingly, Haymon has not satisfied his burden of establishing pretext under the McDonnell Douglas burden-shifting framework.
7. Smith’s evidence of discrimination. On September 16, 2004, Smith applied in-person for an open truck driver position. Smith was briefly interviewed by Place and Bealer when he submitted his application. Pursuant to Von Maur policy, it ran a credit check on Smith. Based on the credit information, Smith was not hired. a. Prima facie case. Von Maur contends that Smith cannot establish the second element of the prima facie case, that he was qualified for the truck driver position. Smith states that he was qualified for the
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position because, at the time of his application, he had over thirty years of truck driving experience. Von Maur contends that Smith was not qualified for the truck driver position because he did not pass a credit check, required of all truck driver applicants. Von Maur’s position description for a truck driver, however, does not mention passing a credit check as a qualification for the position. Von Maur, moreover, acknowledges that credit checks are performed on truck driver applicants only “if Von Maur is interested in further considering the candidate for employment.” Def.’s Br. at 73. It is difficult for the Court to imagine that Von Maur, or any employer for that matter, would further consider an applicant for employment who was not at least minimally qualified for the position. Smith not passing the credit check, therefore, appears to be the reason that Von Maur decided not to hire Smith, rather than a factor affecting Smith’s qualifications. Accordingly, the Court finds that Smith was minimally qualified for the truck driver position. Because Von Maur does not dispute the third and fourth elements of the prima facie case, that Smith was rejected for the position and that Von Maur continued to seek applicants, the Court finds that Smith has satisfied his prima facie case.
b. Pretext. Because Smith satisfied his prima facie case, the burden shifts to Von Maur to articulate a legitimate, non-discriminatory reason for not hiring him. Von Maur states that it did not hire Smith because his credit report came back with derogatory information, including back taxes totaling six figures, and because Smith did not call Von Maur to explain the derogatory information. That is, after receiving the credit report, Haun forwarded the report to Smith and wrote, “[i]f there is any information on the credit report that is inaccurate or that you would like to contact us to explain, please feel free to give me a call . . . [w]e plan to make our final hiring
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decision in approximately one week.” Def.’s App. at 1462. This non-discriminatory reason satisfies Von Maur’s minimal burden, and the burden shifts back to Smith to show that Von Maur’s proffered non-discriminatory reason is pretext for discrimination.
Smith contends that Von Maur’s reason for not hiring him is pretext for discrimination because Von Maur’s reasons have changed over time. Smith notes that Von Maur initially stated that he was not hired because he did not contact Haun to explain the derogatory information in his credit report, then Von Maur “changed” its reason and stated that it did not hire Smith because he had derogatory information on his credit report, including tax liens. The Court disagrees. Von Maur maintains that it did not hire Smith because he had derogatory information in his credit report, and Haun, not hearing from Smith, presumed that the information on the report was accurate. Based on the derogatory information, Haun made the decision not to hire Smith. This is not a case of shifting rationales. Indeed, Von Maur has not changed its proffered reason for not hiring Smith.
Next, Smith claims that he attempted to contact Haun on three different occasions after he received her letter, but that it was Haun who never returned Smith’s calls. Smith states that had he made contact with Haun, he would have explained that the tax liens resulted from a time when he was self-employed as a truck contractor, that one of his cellular phone bills was incorrect, that he was making payments for the other cellular phone bills, that he had retained an attorney to deal with the issues on his credit report, and that he wanted to be given a chance. Pls.’ Response Br. at 22. Von Maur, however, claims that Haun did not receive Smith’s messages, and that even if it had, Smith’s explanations would not have excused the derogatory information. That is, Smith did not have acceptable excuses such as divorce, health care bills, or
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incorrect credit information that would account for all the derogatory information on his credit report. See Def.’s Br. at 76. As noted above, employment discrimination laws “do not prohibit employment decisions based upon . . . erroneous evaluations . . . or even unsound business practices.” Hill, 123 F.3d at 1120.
Lastly, Smith contends that Von Maur’s reason for not hiring him is pretext for discrimination because Von Maur hired a Caucasian applicant, Michael Fahringer (“Fahringer”), for a Loss Prevention position even though Fahringer had derogatory information on his credit report. See Pls.’ Response Br. at 23. Von Maur states that Fahringer is not comparable to Smith because Fahringer contacted Haun and sent a letter with documentation explaining that “his student loans were in deferment prior to the derogatory credit report, the car payments had been made prior to the derogatory credit report, and the [cellular phone] invoice was a mistake.” Def.’s Reply Br. 44. These explanations and the corresponding documentation satisfied Von Maur that Fahringer’s credit report contained “inaccurate and erroneous information and that he was not delinquent on the reported accounts.” Id. Smith, on the other hand, acknowledged that the derogatory information in his credit report was accurate. Moreover, the explanations Smith would have provided to Haun, had he been able to reach her, would not have been satisfactory to excuse the derogatory information. See Hutson, 63 F.3d at 781 (stating that courts do not sit as super-personnel departments reviewing the wisdom or fairness of the business judgments made by employers). Smith, therefore, has not demonstrated that Von Maur’s reason for not hiring him was pretext for discrimination. Accordingly, Smith has not satisfied his burden of establishing pretext under the McDonnell Douglas burden-shifting framework.
8. Young’s evidence of discrimination.
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Sometime between May and the end of 2003, Young saw a newspaper advertisement stating that Von Maur was hiring for warehouse, data entry, and clerical jobs. In response, Young went in-person to Von Maur Center to fill out an application for all three positions. A couple of weeks later, Young received a rejection letter stating that all the positions were filled. Young, however, claims that she continued to see advertisements for open warehouse positions.
a. Prima facie case. Young contends that she established her prima facie case because she applied and was qualified for the positions, that she was rejected by Von Maur, and that Von Maur continued to seek applicants. Von Maur, however, claims that Young cannot establish her prima facie case because there is no evidence that Young even applied to Von Maur, and that even if she had, there is no evidence that Von Maur continued to seek applicants. First, as to whether Young even applied for a position, Von Maur states that pursuant to its record retention policy, all 2003 applications were maintained once it had notice of the present litigation. Von Maur, however, does not have Young’s 2003 application. This missing application, according to Von Maur, is evidence that Young did not apply. Despite its argument, Von Maur admits that “Young went to Von Maur headquarters, asked for and was given an application, which she filled out and returned to the person who had given her the application.” Def.’s Statement of Material Facts ¶ 722. Von Maur goes on to admit that “Young called Von Maur [a couple of days later] to inquire about the status of her application and was told that Von Maur was still reviewing applications.” Id. ¶ 724. Then, “[a] week later, [Young] called Von Maur and was told someone would get back to her.” Id. ¶ 725. Given Von Maur’s own statement of material facts, and despite its arguments to the contrary, the Court finds that Young applied for open positions
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sometime in 2003. Next, Von Maur contends there is no evidence that it continued to seek applicants after it rejected Young. Young, however, points to Von Maur’s 2001-2006 employee chart to demonstrate that Von Maur continued to seek and hire applicants after it rejected Young. See Pls.’ App. at 432-465. Although it is unclear from the chart what departments correspond with the positions that Young applied for in 2003, Von Maur does not dispute Young’s assertion. See Def.’s Reply Br. at 46-47. Accordingly, the Court finds that Young satisfied her prima facie case.
b. Pretext. Because Young satisfied her prima facie case, the burden shifts to Von Maur to articulate a legitimate, non-discriminatory reason for not hiring Young. Von Maur now contends that it did not hire Young because it did not receive an application from Young or that it lost her application. See Def.’s Reply Br. at 47; Def.’s Br. at 80. These non-discriminatory reasons satisfy Von Maur’s minimal burden, and the burden shifts back to Young to show that Von Maur’s proffered non-discriminatory reasons are pretext for discrimination. With regard to Young’s burden, the Court first notes that Von Maur’s own statement of facts admit that Young applied for positions at Von Maur, that a couple of days later, Young was told by Von Maur that applications were being considered, and that Young was told a week later that someone would get back to her. Von Maur cannot now claim in good faith that it lost her application or never received an application from Young. Indeed, Von Maur admitted that Young filled out an application. Def.’s Statement of Material Facts ¶ 722. Von Maur, moreover, admitted that it informed Young in a regret letter that she was not hired because the position was filled. Id. ¶ 726 (“About a week later, Young received a letter from Von Maur
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advising that the position was filled; Young did not retain a copy of this letter.”). This statement of fact by Von Maur is, again, inconsistent with Von Maur’s asserted reason for not hiring her, i.e, that it did not receive an application from Young or that it lost her application. Here, Von Maur does not account for its changing reasons for not hiring Young – from the position(s) being filled to Von Maur losing Young’s application. See Arnold, 471 F.3d at 847 (“A plaintiff may make a sufficient showing of pretext by . . . showing that an employer . . . made substantial changes over time in its proffered reason for an employment decision.” (internal citations omitted)); Kobrin, 34 F.3d at 703 (“Substantial changes over time in the employer’s proffered reason for its employment decision support a finding of pretext.”). Accordingly, a rational trier of fact could find Von Maur’s varying reasons for not hiring Young are evidence of pretext. Young, therefore, has satisfied her burden of establishing pretext under the McDonnell Douglas burden-shifting framework.
9. Johnson’s evidence of discrimination. Johnson applied for credit, sales audit, and invoice keyer positions on June 20, 2003,32 after seeing an advertisement for the positions. Nemmers, who took Johnson’s application, informed Johnson that there were quite a few openings in the credit department, and that someone would be in touch with her. Johnson called on three occasions to follow-up on her application and was told that the application was still being reviewed, and then that the positions were filled. Johnson, however, claims that she continued to see advertisements for the positions. a. Prima facie case. Von Maur contends that Johnson cannot establish the second element of the prima facie
32 As noted above, Johnson’s 2001 and 2002 applications are barred by the statute of limitations. Accordingly, the Court will limit its analysis to Johnson’s 2003 application.
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case, that she was qualified for the open positions. Specifically, Von Maur states that Johnson was not qualified based on her availability. That is, Johnson’s application states that she was available to work “5 to close” Mondays to Fridays, “open to close” on Saturdays, and a hyphen for Sundays. According to Von Maur, the positions that Johnson applied for did not accommodate the availability noted on her application. However, as discussed in detail below, Nemmers, the human resources assistant responsible for screening the applications, testified that the available hours that an applicant notes on an application “would not automatically disqualify them from the position” if the hours were inconsistent with what the position required. See Pls.’ App. at 945. Accordingly, at least for purposes of the screening process, it does not appear that the available hours noted on the application itself serve to automatically disqualify an applicant from consideration. Accordingly, the Court finds that Johnson satisfied her prima facie case.33
b. Pretext. Because Johnson satisfied her prima facie case, the burden shifts to Von Maur to articulate a legitimate, non-discriminatory reason for not hiring her. Von Maur states that it did not hire Johnson because Johnson was not available for the hours required for the positions. Specifically, Von Maur contends that the sales audit and invoice keyer positions are both fulltime positions, and did not accommodate the availability that Johnson noted on her application.
33 Von Maur argues for the first time in its reply brief that Johnson cannot satisfy the fourth element of the prima facie case. See Def.’s Reply Br. at 58. Because Von Maur did not raise this argument in its opening brief, the Court need not and will not consider it. See, e.g., South Dakota Mining Assoc., Inc. v. Lawrence County, 155 F.3d 1005, 1011 (8th Cir. 1998) (stating that issues not argued in an opening brief cannot be raised for the first time in a reply brief); Torgeson v. UNUM Life Ins. Co. of Am., 466 F. Supp. 2d 1096, 1121 (N.D. Iowa 2006) (“Ordinarily, inclusion of a new argument in a reply brief is improper as a matter of motion practice in this court, and indeed, in this circuit.” (internal citations omitted)); L.R. 7(g) (stating that a reply brief may be filed “to assert newly-decided authority or to respond to new and unanticipated arguments”).
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As for the credit department position, Von Maur states that it is also a full-time position, and the one credit department position with night and weekend hours requires occasional Sunday work, which precluded Johnson from consideration, given the availability on her application. These non-discriminatory reasons satisfy Von Maur’s minimal burden, and the burden shifts back to Johnson to show that Von Maur’s proffered non-discriminatory reasons are pretext for discrimination.
Johnson contends that Von Maur’s reasons for not hiring her are pretext for discrimination because Von Maur deviated from its screening practice. That is, Nemmers’ “normal practice” during the screening process is to call an applicant to verify availability if the hours on the application did not match the position’s requirement. See Pls.’ App. at 944, 950. Nemmers’ testified: “The times that [applicants] put on their application would not automatically disqualify them from the position if it was not verified with them that they could not work at other times.” Id. at 945. Stated differently, the availability listed on the application is “not going to keep [the applicant] from getting an interview or talking to a person.” Id. at 94445. Here, Johnson claims that despite Nemmers’ “normal practice” of calling applicants to verify availability, Nemmers did not contact Johnson. Indeed, Nemmers testified that she did not recall contacting Johnson. See id. at 949. Johnson, moreover, points to other Caucasian applicants who were hired despite the fact that their listed availability did not match up with the positions sought. See Pls.’ Am. Statement of Material Facts ¶ 327. It appears then, that Nemmers did not follow her “normal practice” in screening Johnson’s application. A reasonable jury, therefore, could reject Von Maur’s proffered reason for not hiring Johnson, given that Nemmers testified that availability listed on the application alone would not
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automatically disqualify an applicant, whereas that is precisely the reason Von Maur articulates for not hiring Johnson. See Gaworski v. ITT Commercial Fin. Corp., 17 F.3d 1104, 1110 (8th Cir. 1994) (noting that a jury could reject the employer’s proffered reason because there was conflicting evidence on its believability); see also Bassett, 211 F.3d at 1107 (“[I]f the proffered reason is shown by conflicting evidence to be untrue, then the nonmoving party is entitled to all favorable inferences that the false reason given masks the real reason of intentional discrimination.”). Johnson, therefore, has satisfied her burden of establishing pretext under the McDonnell Douglas burden-shifting framework. See Arnold, 471 F.3d at 847 (“[a] plaintiff may make a sufficient showing of pretext by . . . showing that an employer . . . failed to follow its own policies”).
10. Guy’s evidence of discrimination. Guy applied for “buyer” positions, Buyer and Buyer Assistant, in June or July 2003.34 According to Von Maur, if an applicant applies for the Buyer Assistant position, but aspires to become a Buyer, Von Maur would inform the applicant that the most direct path to becoming a Buyer is to first work the retail store to “learn the store end of things.” Pls.’ App. at 801; Pls.’ Am. Statement of Material Facts ¶ 282. When Guy turned in her application, however, no one inquired about Guy’s interest, nor did anyone inform her of the retail store option. When Guy called to follow-up on her application, she was told on various occasions that someone would get back to her, or that the position was filled. Guys claims, however, that she subsequently saw advertisements for open “buying” positions. a. Prima facie case.
34 As noted above, Guy’s 2000 application is barred by the statute of limitations. Accordingly, the Court will limit its analysis to Guy’s 2003 application.
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Guy contends that she established her prima facie case because she applied and was qualified for the positions, that she was rejected by Von Maur, and that Von Maur continued to seek applicants. Von Maur, however, claims that Guy cannot establish her prima facie case because there is no evidence that Guy even applied to Von Maur. That is, Von Maur states that pursuant to its record retention policy, all 2003 applications were maintained once it had notice of the present litigation. Von Maur claims that it does not have Guy’s 2003 application. This missing application, according to Von Maur, is evidence that Guy did not apply. Despite its argument, Von Maur admits that “Guy went to Von Maur’s corporate headquarters and asked the receptionist for an application and was given an application, which she then filled out.” Def.’s Statement of Material Facts ¶ 775. Von Maur goes on to admit that “Guy asked to speak to someone concerning the position, but was told that someone would need to get back to her.” Id. ¶ 778. Then, Von Maur states that “Guy called Von Maur three times and was told on each occasion that the company was still reviewing applications and someone would get back to her, although she did not hear from Von Maur after her calls.” Id. ¶ 782. Given Von Maur’s own statement of material facts, despite its arguments to the contrary, the Court finds that Guy applied for the “buying” positions, and, therefore, has satisfied her prima facie case.
b. Pretext. Because Guy satisfied her prima facie case, the burden shifts to Von Maur to articulate a legitimate, non-discriminatory reason for not hiring her. Von Maur contends that it did not hire Guy because it “could not find her [ ] application.” See Def.’s Br. at 85. In the alternative, it appears that Von Maur is claiming that even if it found her application, Guy was overqualified for the Buyer Assistant position. These non-discriminatory reasons satisfy Von Maur’s minimal
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burden, and the burden shifts back to Guy to show that Von Maur’s proffered non-discriminatory reasons are pretext for discrimination.
With regard to Von Maur’s position that it “could not find [Guy’s] application,” the Court notes that given Von Maur’s own statement of facts admitting that Guy applied for the positions at Von Maur, that Guy was told by Von Maur that applications were being considered and that someone would get back to her, Von Maur cannot now claim in good faith that it lost her application. Indeed, by its own admission, Von Maur considered Guy’s application.
Next, Von Maur contends that, in the alternative, Guy was not hired for the Buyer Assistant position because Guy was overqualified for the clerical position. Indeed, there is no dispute that Guy was not seeking a clerical position. Guy, however, states that she would have taken the clerical position if there were opportunities to advance, possibly to the Buyer position. Von Maur explained, unequivocally, that “[n]o individual at Von Maur becomes a buyer by moving up from a buyer assistant position, as that is not the career path for any employee to become a buyer.” Def.’s Statement of Material Facts ¶ 768 (emphasis added). Guy, however, points to a Caucasian employee who was promoted from Buyer Assistant to Buyer in January 2001. See Pls.’ App. at 438; Def.’s App. at 2273. Von Maur now admits that the Caucasian employee was promoted from Assistant Buyer to Buyer, but that “it was evident to Von Maur that transfer of an employee from clerical Buyer Assistant to Buyer to sales was not effective” and that “[b]y 2003, it was well established that buyers are better suited to beginning their career track in the store.” Def.’s Reply Br. at 49. That, however, is not what Von Maur initially stated in its material facts. Von Maur’s post hoc explanation regarding a “non-transfer” policy is inconsistent with its previously unequivocal statement that no individual ever gets promoted to
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the Buyer position from the Assistant Buyer position. See Bassett, 211 F.3d at 1107 (“[I]f the proffered reason is shown by conflicting evidence to be untrue, then the nonmoving party is entitled to all favorable inferences that the false reason given masks the real reason of intentional discrimination.”). Accordingly, a rational trier of fact could find Von Maur’s reasons for not hiring Guy are evidence of pretext. See Gaworski, 17 F.3d at 1110 (noting that a jury could reject the employer’s proffered reason because there was conflicting evidence on its believability). Guy, therefore, has satisfied her burden of establishing pretext under the McDonnell Douglas burden-shifting framework.
11. Maiden’s evidence of discrimination. Maiden applied twice for a sales associate position at the NorthPark store in April and July 2004. Maiden was interviewed by Nelson in April, who decided that Maiden would be better suited to a “fast-paced area.” Because there were no positions available in “fast-paced” areas at that time, Nelson placed Maiden’s application in “active status.” In July 2004, Maiden again applied for employment at NorthPark. Shortly thereafter, Maiden was interviewed by Roldan. Maiden was not hired. a. Prima facie case. Von Maur contends that Maiden cannot establish the second element of the prima facie case, that she was qualified for the position. Maiden states that she was qualified for the position of sales associate. Von Maur, however, states that Maiden was not qualified because, during her second interview,35 she made a statement that made Roldan, the interviewer, concerned as to
35 As noted above, there is a dispute between the parties as to whether the interview in July 2004 was Maiden’s second interview based on her April 2004 application, or whether Maiden’s July interview was a first interview following her July 2004 application.
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whether Maiden would be able to follow Von Maur’s policy prohibiting co-workers from discussing pay with each other. This subjective criteria, however, is more appropriately addressed in the pretext context. Given, moreover, that Von Maur admits that Maiden was passed on to a second interview, the Court finds that Maiden was minimally qualified for the sales associate position. As noted above, Von Maur is entitled at trial, to rely on evidence that its subjective criteria and subjective impressions, free from any discriminatory animus, made Maiden unqualified for the sales associate position. However, at this stage in summary judgment, the Court concludes that Maiden met the minimum objective qualifications for the position. See Harrison, 492 F.3d at 974 (“a plaintiff’s burden at the prima facie stage is less onerous where the employer’s hiring criteria are subjective”); Lyoch, 139 F.3d at 615 (“This lighter burden at the prima facie stage is justified by the fact that subjective criteria for [hiring] ‘are particularly easy for an employer to invent in an effort to sabotage a plaintiff’s prima facie case and mask discrimination.’” (citation omitted)). Von Maur does not dispute the third or fourth36 elements of the prima facie case. Accordingly, Maiden has satisfied her prima facie case.
b. Pretext. Because Maiden satisfied her prima facie case, the burden shifts to Von Maur to articulate a legitimate, non-discriminatory reason for not hiring her. Von Maur contends that it did not hire Maiden because Roldan had concerns that Maiden would not follow Von Maur’s policy prohibiting employees from discussing salary with co-workers, and had additional
36 Von Maur argues for the first time in its reply brief that Maiden cannot satisfy the fourth element of the prima facie case. See Def.’s Reply Br. at 41. Because Von Maur did not raise this argument in its opening brief, the Court need not and will not consider it. See supra note 33.
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concerns about Maiden’s longevity. These non-discriminatory reasons satisfy Von Maur’s minimal burden, and the burden shifts back to Maiden to show that Von Maur’s proffered nondiscriminatory reasons are pretext for discrimination.
Maiden contends that Von Maur’s reasons for not hiring her are pretext for discrimination. During the interview with Roldan, in response to a question,37 Maiden recounted an incident where Maiden spoke to her manager about “pay discrepancy for someone else doing same job,” and although the manager stated that Maiden “shouldn’t be talking about pay . . . [she] got pay increase next month.” See Pls.’ App. at 273. Although Maiden subsequently testified that she spoke to her manager about her pay only after two co-workers informed Maiden that she was being paid less than they were being paid for the same job, and that Maiden was not disciplined in any manner for bringing the pay discrepancy to the manager’s attention, this information was either not relayed to Roldan or Roldan misunderstood Maiden’s account of events. It is clear from Roldan’s notation during the interview, however, that Maiden’s manager told Maiden that she should not be talking about pay. Given that Von Maur, at the time, had a policy prohibiting employees from discussing salaries with co-workers, Roldan, based on her perception of Maiden’s story, had a basis to be concerned. Even if Roldan over-reacted, the Court does not sit as a super-personnel department reviewing the wisdom or fairness of the business judgments made by employers, unless of course those judgments involve intentional discrimination. Hutson, 63 F.3d at 781. As noted above, employment discrimination laws “do not prohibit employment decisions based upon . . . erroneous evaluations . . . or even unsound
37 Taken from the “Sales Associate Second Interview Questions” form, Roldan asked, “Tell me about a time when you had to communicate negative or unfavorable information to someone.” Pls.’ App. at 272-73.
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business practices.” Hill, 123 F.3d at 1120. Next, Maiden contends that Von Maur’s longevity concern is pretext for discrimination.
Maiden points to Peterson’s testimony that one year with an employer is sufficient for longevity. Von Maur, however, explains that it does not maintain a rigid requirement for a certain number of continuous years in employment with a single employer for an applicant to be deemed a longterm hire. Rather, Von Maur acknowledges that determining longevity of an applicant is a subjective criteria which is based on the totality of the applicant’s circumstance. Here, Maiden’s past employment history, at the time of her application, consisted of: one year at Kids Club (May 2001 to May 2002), three months at APAC (May 2002 to August 2002); four months at One Solution Staffing (May 2003 to September 2003), and four months at Kmart (September 2003 to January 2004). While Maiden worked one year at Kids Club, her more recent positions reflected a lack of longevity. Accordingly, Maiden has not established that Von Maur’s explanations for not hiring her are pretext for discrimination. Maiden, therefore, has not satisfied her burden of establishing pretext under the McDonnell Douglas burden-shifting framework.
12. EEOC Class Member: Parks’ evidence of discrimination. On October 25, 2004, Parks applied for a truck driver position at Von Maur Center after seeing an advertisement for open positions. Although Parks had twenty-five years of truck driving experience, he was never interviewed for the position. Von Maur, however, interviewed and hired Rich Pannell (“Pannell”), a Caucasian applicant who applied three days after Parks, on October 28, 2004. a. Pretext.
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Because Von Maur does not dispute that Parks can establish a prima facie case, the burden shifts to Von Maur to articulate a legitimate, non-discriminatory reason for not hiring Parks. Von Maur contends that it did not hire Parks because it hired a “more qualified” applicant, Rich Pannell.38 This non-discriminatory reason satisfies Von Maur’s minimal burden, and the burden shifts back to Parks to show that Von Maur’s proffered non-discriminatory reason is pretext for discrimination.
To satisfy his burden of demonstrating pretext, Parks first contends that Von Maur did not screen his application, which is contrary to its normal practice of screening all of its applications. It appears, however, that Von Maur did screen Parks’ application. Indeed, Parks testified that when he turned in his application to the receptionist, a lady “approached me and asked me a few questions about what I was applying for. And I think – I know I did, I told her.” Def.’s App. at 1032. Moreover, it appears that Parks was asked to provide copies of certain documents relating to his military discharge. Id. Thus, to the extent that Von Maur needed to screen Parks, it did so by having Parks answer “a few questions” and by requesting certain documentation.
Next, Parks contends that Von Maur hired a less qualified Caucasian applicant over him. Specifically, Parks points out that Von Maur hired Pannell, who only has eight and one-half years of truck driving experience, while Parks has at least twenty-five years of truck driving experience. Von Maur, however, notes that despite Parks’ experience, Pannell was better qualified for the position because Parks had a gap in his employment history and because Parks had not consistently driven a tractor trailer since 1991. Indeed, Parks’ resume shows that he had
38 Pannell, who is Caucasian, applied for the open truck driving position on October 28, 2004, three days after Parks. See Def.’s App. at 2458; Pls.’ App. at 427.
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a four year gap in employment from 2000 to April 2004. Def.’s App. at 1049. However, Pannell’s application also shows a gap in employment history – from June 1998 to May 2000. Id. at 2459. Thus, Von Maur cannot contend that Parks’ gap in employment history made him less qualified than Pannell when Pannell, himself, had a gap in employment history.
As for Parks’ experience driving tractor trailers, Parks’ resume also shows that he was a tractor/trailer operator (operated semi-hydraulic trailer) from April to September 2004. Parks subsequently testified that he did not consistently drive a tractor trailer since 1991, but there is no indication that Von Maur knew that information at the time Parks applied for the position. Von Maur argues that Pannell was, nevertheless, more qualified than Parks because Pannell “had 10 years of CDL driving history and was employed as a truck driver ten of the eleven previous years.” Def.’s Br. at 99. As explained by the Eighth Circuit, “[e]vidence of similar qualifications between [plaintiff] and the selected candidates is insufficient to support a finding of pretext; rather, [plaintiff] must show the finalists were less qualified than he.” Gilbert v. Des Moines Area Cmty. Coll., 495 F.3d 906, 916 (8th Cir. 2007). Here, it does not appear that Pannell is less qualified than Parks, despite the fact that Parks has more experience. It appears that Von Maur focused more on tractor trailer driving experience, and preferred drivers with more recent, as opposed to total, experience. See id. (“Although an employer’s selection of a less qualified candidate can support a finding that the employer’s nondiscriminatory reason for the hiring was pretextual, it is the employer’s role to identify those strengths that constitute the best qualified applicant.” (citation omitted)).
The Court’s concern, however, is that in rejecting Parks, Von Maur sent a letter to Parks stating that “Von Maur had hired someone within [its] own workforce.” Def.’s Statement of
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Material Facts ¶ 995. Presently, however, Von Maur states that it hired Pannell because he was more qualified than Parks. Pannell, of course, was a new hire, not yet part of Von Maur’s workforce. In regards to Parks’ regret letter, the following exchange took place:
Q: Okay. And after you left Von Maur, what was your next contact with Von Maur, if any? A: I think the only contact from that point on was, I think I got a letter indicating that they hired someone within their own workforce. I think. Def.’s App. at 1041. It is unclear to the Court whether Parks’ last “I think” refers to any contacts he had with Von Maur after filling out his application, or whether it refers to the reason that Von Maur provided for not hiring him. Regardless, Von Maur acknowledges in its statement of facts that Parks received a letter from Von Maur stating that it hired from its own workforce. With that established, Von Maur does not provide any explanation for the change in its reason for not hiring Parks – informing Parks that it hired from within versus hiring Pannell because he was more qualified. Indeed, it may have simply been a clerical error on Von Maur’s part in sending an incorrect rejection letter to Parks. At this stage in summary judgment, however, making all reasonable inferences in favor of Parks, the Court concludes that a rational trier of fact could find Von Maur’s varying reasons for not hiring Parks are evidence of pretext. See Peterson, 406 F.3d at 522 (noting that a jury could reject the employer’s proffered reason because there was conflicting evidence on its believability); see also Bassett, 211 F.3d at 1107 (“[I]f the proffered reason is shown by conflicting evidence to be untrue, then the nonmoving party is entitled to all favorable inferences that the false reason given masks the real reason of intentional discrimination.”); EEOC, 477 F.3d at 570 (stating that “false or shifting reasons support a finding of illegal motivation” (citation omitted)). Parks, therefore, has satisfied his burden of
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establishing pretext under the McDonnell Douglas burden-shifting framework. 13. EEOC Class Member: Jacks’ evidence of discrimination. In May 2004, Jacks applied for a part-time sales associate position at the NorthPark store.
Jacks, who is an Associate Dean for Admissions at Grinnell College, sought employment to supplement her income. Jacks was interviewed by Lommell and Roldan, both of whom thought Jacks interviewed well. Jacks was not hired.
a. Prima facie case. Von Maur contends that Jacks cannot establish the second element of the prima facie case, that she was qualified for the position. Jacks contends that she was qualified for the sales association position. Von Maur states that Jacks was not qualified because it had concerns over Jacks’ future availability and dependability, especially once school started. This subjective criteria, however, is more appropriately addressed in the pretext context. Given, moreover, that Jacks was passed on to a second interview, and that Von Maur “liked and wanted to hire Jacks,” the Court finds that Jacks was minimally qualified for the sales associate position. As noted above, Von Maur is certainly entitled at trial, to rely on evidence that its subjective criteria and subjective impressions, free from any discriminatory animus, made Jacks unqualified for the sales associate position. However, at this stage in summary judgment, the Court concludes that Jacks met the minimum objective qualifications for the position. See Harrison, 492 F.3d at 974; Lyoch, 139 F.3d at 615. Von Maur does not dispute the third or fourth elements of the prima facie case. Accordingly, Jacks has satisfied her prima facie case. b. Pretext. Because Jacks satisfied her prima facie case, the burden shifts to Von Maur to articulate a
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legitimate, non-discriminatory reason for not hiring her. Von Maur contends that it did not hire Jacks because Roldan and Lommell, Jacks’ first and second interviewers, respectively, had concerns about Jacks’ future availability and longevity once the school year started in the fall. These non-discriminatory reasons satisfy Von Maur’s minimal burden, and the burden shifts back to Jacks to show that Von Maur’s proffered non-discriminatory reasons are pretext for discrimination.
Jacks contends that she never told Roldan or Lommell that she was seeking a summer position. Rather, it was her intention to continue with the part-time sales associate position even after the school year started. Despite Jacks’ assertion, however, Jacks told Roldan during her interview that her responsibilities at Grinnell College included visiting high schools in her territory and attending college fairs, which required travel and took place in the fall. Def.’s Statement of Material Facts ¶ 1029. Thus, even if Jacks expressly told Roldan or Lommell that she was seeking a part-time position to continue into the school year, it was reasonable for Von Maur to have concerns about Jacks’ availability and longevity once the school year started, given that Jacks was required to travel to high school and college fairs. See Hutson, 63 F.3d at 781 (explaining that employment discrimination laws “have not vested in the federal courts the authority to sit as super-personnel departments reviewing the wisdom or fairness of the business judgments made by employers, except to the extent that those judgments involve intentional discrimination”). Thus, even if the Court determined that Roldan or Lommell misconstrued Jacks’ fall schedule and travel responsibilities to incorrectly presume that Jacks was only seeking a summer position, the Court still cannot conclude that Von Maur’s explanations are pretext for discrimination. Indeed, employment discrimination laws do not prohibit employment decisions
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based upon erroneous evaluations or even unsound business practices. Hill, 123 F.3d at 1120; see Arnold, 471 F.3d at 847. Jacks, accordingly, has not satisfied her burden of establishing pretext under the McDonnell Douglas burden-shifting framework.
14. EEOC Class Member: Allen’s evidence of discrimination. a. Allen’s 2003 application.
1. Prima facie case. Allen first applied for a part-time sales associate position in the summer of 2003 at the NorthPark store. Von Maur claims that it does not have a record of Allen’s application. Regardless, Von Maur contends that Allen cannot establish the fourth element of the prima facie case, that Von Maur continued to seek applicants after she was rejected. Allen, however, points to Von Maur’s employee hire chart to demonstrate that Von Maur continued to seek and hired sales associates after it rejected Allen. See Pls.’ App. at 432-465. As noted above, the Court cannot determine from the chart into what positions the applicants were hired. Nonetheless, Von Maur does not dispute Allen’s claim, and indeed, acknowledges that it sought and hired applicants after Allen was rejected. See Def.’s Br. at 111.
2. Pretext. Because Allen satisfied her prima facie case, the burden shifts to Von Maur to articulate a legitimate, non-discriminatory reason for not hiring her. Von Maur intimates that it did not hire Allen because she did not apply for the position in 2003, or because Von Maur lost her application. These non-discriminatory reasons satisfy Von Maur’s minimal burden, and the burden shifts back to Allen to show that Von Maur’s proffered non-discriminatory reasons are pretext for discrimination. Here, Allen does not offer any evidence that Von Maur’s reasons are
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pretext for discrimination.39 Accordingly, Allen has not satisfied her burden of establishing pretext for her 2003 application under the McDonnell Douglas burden-shifting framework.
b. Allen’s 2004 application. 1. Prima facie case.
On or about June 2004, Allen applied for a data entry position through an online application process. Von Maur contends that Allen was contacted on two occasions, July 9, 2004, and again on July 27, 2004, in an attempt to pursue her as a candidate. According to Von Maur, Allen never returned the telephone calls. Allen, however, contends that she never received the messages from Von Maur. The notations on Allen’s online application state, “LM 7/9 @ 12:38,” and “Try to call Tuesday 7/27.” Def.’s App. at 25, 26. Allen does not suggest that the notations are incorrect. Rather, she claims that she did not receive any message from Von Maur. See Pls.’ App. at 664 (“Q: After you submitted [the online application], did you hear from Von Maur? A: I didn’t hear anything. Maybe if my husband came home and heard a message, he probably didn’t tell me. . . . We both had busy lifestyles. I was at school. He was at school. He was working on his masters.”). It appears that Von Maur attempted to contact Allen to pursue her as a candidate and Allen, for some reason, failed to get the messages. Accordingly, even if the Court accepted Allen’s account of events, that she did not get the messages, Allen still cannot establish the third element of the prima facie case – that she was rejected by Von Maur. Allen, therefore, has failed to establish her prima facie case.
39 Plaintiffs’ blanket reasons to establish pretext for the Plaintiffs in general, i.e., shifting explanation for not hiring, inconsistent application of policy, and “inexorable zero,” i.e., that there were no African-Americans in the position, do not apply to the facts of Allen’s 2003 application for a part-time sales associate position.
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15. EEOC Class Member: Ash’s evidence of discrimination. On June 22, 2004, during Von Maur Center’s second day of its open house interviewing, Ash applied for all entry-level positions. Place interviewed Ash initially and passed her for a second interview. Both interviewers stated that Ash interviewed well, but informed her that all positions were filled. Ash subsequently received a standard regret letter. a. Prima facie case. Von Maur contends that Ash cannot establish the third element of the prima facie case, that she was rejected by Von Maur. Specifically, Von Maur states that it attempted to extend an offer of employment to Ash over the telephone on two occasions, but that Ash never returned the calls. Ash, on the other hand, states that she can establish the third element of the prima facie case because after her first or second interview, the interviewer told her that although she interviewed well, that all the positions were filled. See Pls.’ App. at 678. Ash, moreover, testified that a “couple weeks” after the interview, she received a regret letter from Von Maur. See id. at 677, 679. Accordingly, at this stage in summary judgment, the Court finds that there is a genuine of material fact as to whether Ash was rejected by Von Maur. Because Von Maur does not dispute that Ash can establish the remaining elements of the prima facie case, Ash has satisfied her prima facie case for purposes of summary judgment. b. Pretext. Because Ash satisfied her prima facie case, the burden shifts to Von Maur to articulate a legitimate, non-discriminatory reason for not hiring Ash. Von Maur states that it did not hire Ash because she did not return the telephone calls. This non-discriminatory reason satisfies Von Maur’s minimal burden, and the burden shifts back to Ash to show that Von Maur’s proffered
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non-discriminatory reason is pretext for discrimination. Here, Ash does not offer any evidence that Von Maur’s reason is pretext for
discrimination, other than her assertion that she never received any telephone messages from Von Maur. The notations on Ash’s application state, “LM 7/2,” “L/M 7/9/04,” and “no call back I called on 7/9/0/4 CR [Cathy Rockwell].” Def.’s App. at 2257. Ash does not suggest that the notations are incorrect, but rather asserts that she did not receive the telephone messages from Von Maur. It appears from the record that Von Maur attempted to contact Ash to extend her an offer of employment and Ash, for some reason, failed to get the messages. See Def.’s App. at 68 (“Q: “Okay. Has it happened on occasion where you – a message got erased or you didn’t get a message? A: Oh, yes.”). Accordingly, Ash has not produced any evidence that Von Maur’s reason for not hiring her – not returning the telephone calls – is pretext for discrimination. Ash, therefore, has not satisfied her burden of establishing pretext under the McDonnell Douglas burden-shifting framework.
16. EEOC Class Member: Miller’s evidence of discrimination. Miller states that in October 2004, and again in November 2004, he applied online for entry-level corporate positions at Von Maur Center. Miller claims that he qualified for the positions, but that no one from Von Maur contacted him. a. Miller’s October 2004 application.
1. Prima facie case. Von Maur contends that it did not have online capability until November 2004 and, therefore, Miller could not have applied online in October 2004. In support, Von Maur points to Haun’s testimony, where the following exchange took place: “Q: And how long has [the online
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application] been possible technologically within Von Maur? A: My recall is November of 2004.” See Def.’s App. at 383. Von Maur, therefore, states that Miller cannot establish the second element of the prima facie case, that he applied for an open position. Neither party, however, acknowledges the fact that Allen applied online for a data entry position in July 2004. It may be that Allen’s online application, submitted through the Quad City Times Virtual Career center, was a different “online” method than that used by Miller, however, neither party discussed this issue. Accordingly, at this stage in summary judgment, making all reasonable inferences in favor of Plaintiffs, the Court finds that Von Maur had the capability to accept online applications, at least in some form, as early as July 2004. Thus, given that Miller testified that he applied online in October 2004, the Court concludes that he has satisfied the second element of the prima facie case. Because Von Maur does not dispute that Miller can establish the remaining elements of the prima facie case, Miller has satisfied his prima facie case.40
2. Pretext. Because Miller satisfied his prima facie case, the burden shifts to Von Maur to articulate a legitimate, non-discriminatory reason for not hiring him. Von Maur intimates that it did not hire Miller because Von Maur never received or lost his application. These non-discriminatory reasons satisfy Von Maur’s minimal burden, and the burden shifts back to Miller to show that Von Maur’s proffered non-discriminatory reasons are pretext for discrimination.
40 To the extent that Von Maur’s reference, “[d]itto the above analysis,” in comparing Miller’s October 2004 online application to Von Maur Center with his alleged 2004 application to Von Maur’s Lombard, Illinois location is somehow an attempt to dispute that Miller was qualified for the positions at Von Maur Center because he was “applying for a summer job” when he applied to the Lombard store, that argument would be without merit as Miller testified that when he applied online in October 2004 to Von Maur Center, it was in an effort to seek full-time employment. See Def.’s Br. at 119; Def.’s App. at 923.
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Here, Miller states that Von Maur’s reasons are pretext for discrimination because of eleven executive trainees hired during 2001 to 2004, all were Caucasian. See Pls.’ App. at 530. Despite the initial disparity, Plaintiffs provide nothing more to demonstrate pretext through statistical evidence. See Hutson, 63 F.3d at 778 (recognizing that statistical evidence “may support a finding of pretext, particularly where there are independent, direct grounds for disbelieving the employer’s explanation for [the employment action]”); but see Coble v. Hot Springs Sch. Dist., 682 F.2d 721, 734 (8th Cir. 1982) (“Standard deviation analysis is not particularly helpful in evaluating the statistical significance of small samples.”). That is, Plaintiffs’ expert does not compare the number of executive hires to the number of executive applicants, or even mention the number of African-Americans in the relevant pool that are qualified for executive positions. Rather, Plaintiffs’ expert groups all current Von Maur employees and compares that number with the number of African-Americans working in “comparable” stores in the area, and with the number of qualified African-Americans available in the relevant pool. See Pls.’ App. at 644-47. This type of comparison does not aid the Court in determining whether Von Maur engaged in discriminatory hiring practices for executive positions during the relevant time period. Accordingly, Miller has not satisfied his burden of establishing pretext under the McDonnell Douglas burden-shifting framework or through statistical evidence.
b. Miller’s November 2004 application. 1. Prima facie case.
Miller testified that he again applied online in November 2004, for entry-level corporate positions at Von Maur Center. Von Maur states that because there were no open entry-level
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positions at Von Maur Center in November 2004, that Miller cannot establish the second element of the prima facie case, that he applied for open positions. A careful reading of Miller’s testimony supports Von Maur’s contention. Although Miller testified that the positions he applied for in October 2004 were “available” positions, there is no indication that the positions that Miller applied for in November 2004 were open. See Pls.’ App. at 917 (“Q: And what do you recall about the positions that were on-line as listed as available with Von Maur in October of 2004? A: What do you mean? Q: I mean, did they say they needed – they were hiring a buyer? A: Yes, those were available positions. Q: Did they say they had management trainee positions? A: Yes.”). The closest line of questioning the Court could identify which may even possibly suggest that the positions that Miller applied for online in November 2004 were open, is as follows:
Q: Okay. And we have talked about the buyer position that you applied for and the management trainee position, I guess; is that correct? A: There were other positions. Like I said, I don’t recall what else I applied for, but the positions that I did apply for, I met the qualifications unless I would have never applied for them, per that Web site. Q: Did the Web site describe the qualifications needed for the jobs? A: Yes. Q: What was described? A: I don’t recall. Q: Anything else that leads you to believe that Von Maur was discriminating against you by November of ‘04? A: Not that I recall. Q: Okay. . . . Do you have any idea how many people applied for these jobs, the jobs you say you saw on the Web site in the fall of ‘04?
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A: No. Id. at 921. Regardless, even if the Court were to conclude that Miller satisfied the second element, and hence established his prima facie case, Miller cannot establish pretext. Specifically, Von Maur states that it never received or lost Miller’s November 2004 online application. Thus, for the same reasons noted above in Miller’s October 2004 online application pretext analysis, Miller cannot establish pretext for discrimination. Accordingly, even if the Court determined that Miller satisfied his prima facie case, Miller’s claim would still fail because Miller has not satisfied his burden of establishing pretext under the McDonnell Douglas burden-shifting framework or through statistical evidence.
IV. CONCLUSION For the reasons stated above, Von Maur’s Motion for Summary Judgment (Clerk’s No, 161) is GRANTED IN PART and DENIED IN PART. Von Maur’s Motion for Summary Judgment is GRANTED as to Havilah Johnson, the Estate of Ward, Darlena McBride, Tanya Gardner, Robert Donelson, Roscoe Haymon, Charles Smith, Raquel Maiden, Marlene Jacks, Lawanda Jones Allen, Jacqueline Ash, and La’Quan Miller, and DENIED as to Robert Williams,41 Latoya Young, Damenica Johnson,42 Machelle Guy,43 Paul Parks, and as to any arguments asserted by Defendant not specifically addressed in this Order.
41 As discussed above, Von Maur’s Motion for Summary Judgement is granted as to any claims arising out of Robert Williams’ June 2003 application.
42 As discussed above, Von Maur’s Motion for Summary Judgment is granted as to any claims arising out of Damenica Johnson’s 2001 and 2002 applications.
43 As discussed above, Von Maur’s Motion for Summary Judgment is granted as to any claims arising out of Machelle Guy’s 2000 application.
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Case 3:04-cv-00159-RP-RAW Document 203 Filed 08/29/08 Page 91 of 91 IT IS SO ORDERED. Dated this ___29th___ day of August, 2008.
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 CasCea3s:e043-:c0v4--0c0v1-05091-R59P--RRPA-WRAWDoDcoucmuemnet n3t33031 FFiilleedd 1101//2192//200808PagPea1geof11o1f 11

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF IOWA DAVENPORT DIVISION

WALKESHEIA WARD, DARLENA McBRIDE, )

TANYA GARDNER, ROBERT DONELSON, )

RAQUEL MAIDEN, CHARLES SMITH,

)

LATOYA YOUNG, MACHELLE GUY,

)

ROSCOE HAYMON, ROBERT WILLIAMS, )

and DAMENICA JOHNSON,

)

)

Plaintiffs,

)

)

v.

)

)

VON MAUR, INC.,

)

)

Defendant.

)

)

)

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff, and

)

)

DARLENA McBRIDE, TANYA GARDNER, )

ROBERT DONELSON, RAQUEL MAIDEN, )

CHARLES SMITH, LATOYA YOUNG,

)

ROSCOE HAYMON, and ROBERT WILLIAMS, )

)

Plaintiff-Intervenors,

)

)

v.

)

)

VON MAUR, INC.,

)

)

Defendant.

)

)

No. 3:04-cv-00159-RP-RAW (Consolidated for pretrial purposes with 4:06-cv-00182-RP-RAW)
CONSENT DECREE

This action began on December 29, 2004, when a group of plaintiffs filed Civil Action

No. 3:04-cv-159 (the “Ward case”) against Von Maur, alleging that Von Maur has violated the

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and Section

1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981, by failing to hire African-Americans in

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various jobs because of their race. The Ward plaintiffs also asserted various state law claims. Presently, the Ward plaintiffs are Walkesheia Ward, Darlena McBride, Tanya Gardner, Robert Donelson, Raquel Maiden, Charles Smith, Latoya Young, Machelle Guy, Roscoe Haymon, Robert Williams, and Damenica Johnson. Ward, who died in January 2008, is now represented by her estate.
On April 19, 2006, the United States Equal Employment Opportunity Commission (“EEOC”) filed Civil Action No. 4:06-cv-182 under Title VII and the Civil Rights Act of 1991, a class action alleging that Von Maur has violated the Title VII by failing to hire AfricanAmericans in various jobs. The lawsuit sought back pay, compensatory and punitive damages, injunctive relief, and instatement for the Ward plaintiffs and for class members Paul Parks, Marlene Jacks, Havilah Johnson, La’Quan Miller, Lawanda Jones Allen, and Jacqueline Ash, all African-Americans who alleged that they were rejected for employment by Von Maur. In July 2006, this Court consolidated for discovery the lawsuits brought by the Ward plaintiffs and the EEOC against Von Maur. On August 29, 2008, this Court entered an order granting in part and denying in part Von Maur’s motion for summary judgment, dismissing the claims of class members Havilah Johnson, Jacqueline Ash, Marlene Jacks, La’Quan Miller, and Lawanda Jones Allen and certain of the Ward plaintiffs (the Estate of Walkesheia Ward, Tanya Gardner, Darlena McBride, Robert Donelson, Roscoe Haymon, Charles Smith, and Raquel Maiden). On September 22, 2008, the Court consolidated for trial all of the claims in those lawsuits.
Von Maur filed an Answer in which it denied the allegations of the EEOC’s Complaint. To avoid further litigation and to resolve disputed claims, the EEOC and Von Maur have agreed to this Consent Decree to fully and finally resolve all claims which were raised by the EEOC on behalf of Paul Parks, Marlene Jacks, Havilah Johnson, La’Quan Miller, Lawanda Jones Allen, and Jacqueline Ash in its Complaint in Civil Action No. 4:06-cv-182 (S.D. Iowa). The Ward plaintiffs are not a party to this Consent Decree.
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This Consent Decree shall be final and binding on the EEOC and on Von Maur, Von Maur’s directors, officers, agents, employees, successors, and assigns, and all persons in active concert or participation with Von Maur. This Decree does not constitute an adjudication of, or a finding on, the merits of the case for or against any party.
Unless otherwise indicated, any obligations contained or requirements of Von Maur contained in this Consent Decree shall apply only to Von Maur’s facilities in Davenport, Iowa.
CONSENT DECREE Upon the consent of the parties to this action, IT IS HEREBY ORDERED, ADJUDGED and DECREED that:
Non-Discrimination 1. Court’s Jurisdiction. This Court has jurisdiction over the parties and the subject matter of this action. 2. Prohibition Against Title VII Violations. Von Maur is enjoined from engaging in any employment practice which constitutes unlawful race discrimination under Title VII. Specifically, Von Maur facilities are enjoined from refusing to hire applicants based on their race. 3. Compliance with Title VII. Von Maur will comply fully with all provisions of Title VII. Nothing in this Consent Decree, either by inclusion or exclusion, shall be construed to limit Von Maur’s obligations under Title VII or the EEOC’s authority to process or litigate any charge of discrimination which may be filed against Von Maur in the future, or Von Maur’s ability to defend against any such claims. 4. No Retaliation. Von Maur will not engage in, implement, or permit any action, policy, or practice with the purpose of retaliating against any current or former applicant or employee because s/he opposed any action or practice which is unlawful under Title VII. Von
3

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Maur will not retaliate against individuals who filed a charge of discrimination alleging any such action or practice; testified or participated in any manner in any investigation (including, but not limited to, any internal investigation undertaken by Von Maur), proceeding, or hearing relating to any claim of employment discrimination in this case or otherwise; or who was identified as a possible witness in this action; asserted any rights under this Decree; or sought and/or received any monetary and/or non-monetary relief in accordance with the law.
Monetary Relief 5. Payments to Certain EEOC Class Members. Von Maur agrees to pay a total of $50,000 to Paul Parks, Marlene Jacks, Havilah Johnson, La’Quan Miller, Lawanda Jones Allen, and Jacqueline Ash in full settlement of the claims against Von Maur which were raised in the Complaints filed by the EEOC. The monetary relief will be paid in the following manner:
(a) The payments shall be treated as non-wage compensation (to be reported on a Form 1099) and not as taxable wages (subject to withholding on a Form W-2). Each class member shall be solely responsible for payment of his or her taxes relating to the respective payments. They shall not be responsible for any employer taxes for which Von Maur might be liable.
(b) Within 10 days of the entry of this Consent Decree, and Von Maur’s receipt of the Release Agreements and tax information, attached hereto as Exhibit B, executed by each class member, Von Maur shall send a $25,000 payment to Paul Parks, and payments of $5,000 each to Marlene Jacks, Havilah Johnson, La’Quan Miller, Lawanda Jones Allen, and Jacqueline Ash. Before those payments are made, the EEOC shall provide Von Maur with the class members’ addresses and Social Security numbers so that Von Maur can issue a Form 1099 to each individual receiving a payment.
(c) Von Maur shall mail the checks to Paul Parks, Marlene Jacks, Havilah Johnson, La’Quan Miller, Lawanda Jones Allen, and Jacqueline Ash by certified mail,
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return receipt requested, at addresses provided by the EEOC. Von Maur also will mail a photocopy of each check to Dennis R. McBride, Senior Trial Attorney, EEOC, 310 West Wisconsin Avenue - Suite 800, Milwaukee, WI 53203-2292, on the same day that it mails the checks to Parks, Jacks, Johnson, Miller, Allen, and Ash.
Posting of Notice 6. Within 10 days of the entry of this Consent Decree, Von Maur shall post samesized copies of the Notice attached as Exhibit A to this Decree on all non-public bulletin boards in Von Maur facilities in Davenport, Iowa, usually used by Von Maur for communicating human resources matters to employees. The notice shall remain posted for two years from the date on which this Decree is entered. Within 10 business days of the posting, Von Maur also shall send a letter to Dennis R. McBride, Senior Trial Attorney, EEOC, 310 West Wisconsin Avenue - Suite 800, Milwaukee, WI 53203-2292, enclosing a copy of the Notice, as signed by Von Maur, and stating the dates and locations of its posting. Von Maur shall ensure that the posting is not altered, defaced, or covered by any other material. If the posted copies become defaced, removed, marred, or otherwise illegible, as soon as practical Von Maur shall post a repost readable copy in the same manner as previously specified.
Training 7. During the duration of this Consent Decree, Von Maur shall provide the following training to managers and supervisors at all of its Davenport, Iowa, facilities:
(a) Von Maur shall provide semi-annual training sessions regarding the rights of applicants and employees under Title VII, and the employer’s obligations under Title VII, with an emphasis on what constitutes differential treatment of minority employees in the workplace, how to keep Von Maur free of such forms of discrimination, and what constitutes unlawful retaliation.
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(b) Each training session will include a live presentation by an executive, manager, or employee relations professional of Von Maur emphasizing Von Maur’s commitment to prevent discrimination and harassment.
(c) Von Maur shall first provide training in accordance with Paragraph 8(a) above no later than December 31, 2008. Von Maur shall then also provide such training during each six-month period ending on June 30, 2009; December 31, 2009, and June 30, 2010. 8. In addition to the training described in Paragraph 7 above, Von Maur shall provide training to all managers and all employees and supervisors in its Human Resources Department(s) at its Davenport, Iowa, facilities regarding how to conduct a prompt and effective investigation into allegations, complaints, or charges of employment discrimination. 9. No later than 30 days prior to the first day of the proposed training, Von Maur shall submit the name(s), address(es), telephone number(s), and curriculum vitae/resume(s) of its trainer(s), together with the date(s) of the proposed training sessions, to Dennis R. McBride, Senior Trial Attorney, EEOC, 310 West Wisconsin Avenue - Suite 800, Milwaukee, WI 532032292. Von Maur also shall provide the EEOC with copies of all written materials provided to the participants of the training sessions. 10. Within five business days after the training sessions have occurred, Von Maur shall send a letter to Dennis R. McBride, Senior Trial Attorney, EEOC, 310 West Wisconsin Avenue - Suite 800, Milwaukee, WI 53203-2292, certifying to the EEOC that the training has taken place and that the required personnel have attended.
Reporting 11. For two years from the entry of this Consent Decree and Order, Von Maur shall report the following information to the EEOC’s attorneys in writing on December 31, 2008; June 30, 2009; December 31, 2009, and June 30, 2010:
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(a) The names, addresses, and telephone numbers of all applicants for employment in Von Maur’s Davenport, Iowa, facilities.
(b) The names and races, if known, of applicants hired for employment in Von Maur’s Davenport, Iowa, facilities, and the titles of the jobs for which each applicant was hired.
(c) The names, addresses, and telephone numbers of all applicants to Von Maur’s Davenport, Iowa, facilities who make a formal or informal complaint of race discrimination and/or retaliation, including a summary of the nature of the complaint or retaliation allegation. Von Maur shall maintain all documents pertaining to such complaints and/or applications for the full two-year reporting period, and shall make such documents available for inspection by EEOC on 48 hours’ written notice (excluding weekends and holidays).
Dispute Resolution 12. If any party to this Consent Decree believes that another party has failed to comply with any provision of the Decree, the complaining party shall notify the other party of the alleged non-compliance within 10 business days of the alleged non-compliance and shall afford the alleged non-complying party 10 business days to remedy the non-compliance or to satisfy the complaining party that the alleged non-complying party has complied. If the alleged non-complying party has not remedied the alleged non-compliance within 10 business days, the complaining party may apply to the Court for appropriate relief.
Miscellaneous Provisions 13. Each party to this Decree shall bear its own costs, attorneys’ fees, and expenses. This includes, but is not limited to, the costs and expenses claimed by Von Maur in the “Bill of Costs” which it filed with the Court on September 12, 2008, and, as part of the agreements stated in this Decree, Von Maur has waived any right to tax those costs and expenses against the
7

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EEOC. Von Maur also has waived any right to tax those costs and expenses against the Ward plaintiffs.
14. The terms of this Decree are and shall be binding upon Von Maur’s present and future representatives, agents, directors, officers, assigns, and successors, in their capacities as representatives, agents, directors, and officers of Von Maur and not in their individual capacities. This Paragraph shall not be construed as placing any limit on remedies available to the Court in the event that any individual is found to be in contempt for a violation of this Decree.
15. This Consent Decree shall fully and finally resolve all claims which were raised by the EEOC on behalf of Paul Parks, Marlene Jacks, Havilah Johnson, La’Quan Miller, Lawanda Jones Allen, and Jacqueline Ash in its Complaint in Civil Action No. 4:06-cv-00182RP-RAW. It shall not affect the Ward plaintiffs in the litigation of their Complaint in Civil Action No. 3:04-cv-00159-RP-RAW.
16. This Consent Decree shall be filed in the United States District Court for the Southern District of Iowa, and shall continue in effect for two years. Any application by any party to modify or vacate the Decree during that period shall be made by motion to the Court on no less than 30 days’ notice to the other party.
17. This Court shall retain jurisdiction over this action in order to enforce the terms of this Consent Decree.
SO ORDERED, ADJUDGED, AND DECREED this _1_2__t_hday of N__o_v_e_m_b__e_r__, 2008. By the Court: ________________________________________________ Robert W. Pratt United States District Judge
Agreed to in form and content: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
8

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Dated: October 29, 2008 Dated: October 29, 2008

By its attorneys:
s/ Dennis R. McBride______________________________ John C. Hendrickson, Regional Attorney Jean P. Kamp, Associate Regional Attorney EEOC Chicago District Office 500 West Madison Street - Suite 2800 Chicago, IL 60661 Telephone: (312) 353-7719 Fax: (312) 353-8555 E-mail: john.hendrickson@eeoc.gov E-mail: jean.kamp@eeoc.gov
Dennis R. McBride Senior Trial Attorney EEOC Milwaukee Area Office 310 West Wisconsin Avenue - Suite 800 Milwaukee, WI 53203-2292 Telephone: (414) 297-4188 Fax: (414) 297-3146 E-mail: dennis.mcbride@eeoc.gov
VON MAUR, INC. By its attorneys:
s/ Matthew P. Pappas______________________________ Matthew P. Pappas, Esq. Terri L. Fildes, Esq. Pappas, Hubbard, O’Connor, Fildes, Secaras, P.C. 1617 Second Avenue - Suite 300 Rock Island, IL 61204 Telephone: (309) 788-7110 Fax: (309) 788-2773 E-mail: mpappas@phofs.com E-mail: tfildes@phofs.com
Elizabeth Hubbard, Esq. John C. O’Connor, Esq. Pappas, Hubbard, O’Connor, Fildes, Secaras, P.C. 900 W. Jackson - Suite 6W Chicago, IL 60607 Telephone: (312) 421-5960 Fax: (312) 421-5310 E-mail: ehubbard@phofs.com E-mail: joconnor@phofs.com

9

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Exhibit A
NOTICE TO ALL VON MAUR, INC. EMPLOYEES
This Notice is being posted pursuant to a Consent Decree entered by the federal court resolving a lawsuit filed by the Equal Employment Opportunity Commission (“EEOC”) against Von Maur Inc.
In its lawsuit, the EEOC alleged that Von Maur discriminated against certain AfricanAmerican applicants in regard to hiring in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). Title VII is a federal law which prohibits discrimination against employees and applicants for employment based upon race, color, sex, religion or national origin. Title VII also forbids employers to retaliate against employees or applicants who oppose discriminatory employment practices, file a charge of discrimination with a government agency, or testify or participate in an EEOC investigation.
To resolve this case, Von Maur and the EEOC have entered into a Consent Decree (without any admission of liability by Von Maur) which provides for monetary relief and also provides that:
 Von Maur will not discriminate in hiring on the basis of race.
 Von Maur will not retaliate against any person because (s)he opposed any practice made unlawful by Title VII, filed a Title VII charge of discrimination, participated in any Title VII proceeding, or asserted any rights under the Consent Decree.
 Von Maur will train all supervisory, management and human resources department employees at its Davenport, Iowa, facilities regarding race discrimination and Von Maur’s policy prohibiting race discrimination.
The EEOC enforces the federal laws against discrimination in employment on the basis of race, color, religion, national origin, sex, age, or disability. If you believe you have been discriminated against, you may call the EEOC at (414) 297-1110 or at (800) 669-4000. The EEOC does not charge fees and has employees who speak languages other than English.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE. This Notice must remain posted for 24 months from the date below and must not be altered, defaced or covered by any other material.

Date: ___________________

By: _____________________________________ Chairman and Chief Executive Officer Von Maur, Inc.

10

CasCea3s:e043-:c0v4--0c0v1-05091-R59P--RRPA-WRAWDoDcoucmuemnet n3t33031 FFiilleedd 1101//2192//200808PagPea1g1e o1f11o1f 11 Exhibit B

RELEASE In consideration for $_________ paid to me by Von Maur, Inc. in connection with the resolution of EEOC v. Von Maur, Inc., Civil Action 4:06-cv-182 (S.D. Iowa), I waive my right to recover for any claims of race discrimination arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1991, 42 U.S.C. § 1981a, that I had against Von Maur, Inc. prior to the date of this release and that were included in the claims alleged in EEOC’s complaint in EEOC v. Von Maur, Inc., Civil Action 4:06-cv-182 (S.D. Iowa). I understand that I will be solely responsible for the payment of any and all income taxes related to this payment and that I will be issued an IRS Form 1099 for this payment.

Dated: _________, 2008

________________________________________________ [EEOC Class Member]

State of _______________________) ) ss
County of _____________________)
Before me, a Notary Public in and for said State and County, duly commissioned and qualified, personally appeared ____________________, to me known to be the person described herein and who executed the foregoing instrument, and acknowledged that she executed the same as her free act and deed.
Signed and sworn to before me on this ______ day of ______________, 2008.
_________________________________________ Notary Public

11

 
 Case: 3:04-cv-00159-RP-RAW As of: 03/13/2019 07:21 PM CDT 1 of 31
TERMED,LEADTR,PROTO
U.S. District Court Southern District of Iowa (Davenport) CIVIL DOCKET FOR CASE #: 3:04−cv−00159−RP−RAW

Ward et al v. Von Maur Inc Assigned to: Senior Judge Robert W. Pratt Referred to: Magistrate Judge Ross A. Walters Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 12/29/2004 Date Terminated: 12/23/2008 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Walkesheia Ward Filed as Intervenor Plaintiff under 4−06−cv−182 (Estate of) TERMINATED: 09/04/2008

represented by Dorothy A OBrien O'BRIEN & MARQUARD, PLC 2322 EAST KIMBERLY ROAD SUITE 100 E DAVENPORT, IA 52807 563 355 6060 Fax: 355 6666 Email: dao@emprights.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erika E Pedersen Pedersen & Weinstein LLP 309 W. Washington Suite 1200 Chicago, IL 60606 312 855 1200 Fax: 312 855 1207 Email: epedersen@pwllp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marlita Ann Greve O'Brien & Greve PLC 2322 East Kimberly Road Davenport, IA 52807 563 355 6060 Fax: 355 6666 Email: mag@emprights.com TERMINATED: 12/06/2006 LEAD ATTORNEY

Jill Weinstein Pedersen & Weinstein LLP 309 W Washington Chicago, IL 60606 312−855−1200 Fax: 312−855−1207 Email: jweinstein@pwllp.com ATTORNEY TO BE NOTICED

Plaintiff
Darlena Mcbride Filed as Intervenor Plaintiff under 4−06−cv−182 TERMINATED: 09/04/2008

represented by Dorothy A OBrien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erika E Pedersen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:04-cv-00159-RP-RAW As of: 03/13/2019 07:21 PM CDT 2 of 31

Plaintiff Tanya Gardner Filed as Intervenor Plaintiff under 4−06−cv−182 TERMINATED: 09/04/2008
Plaintiff Robert Donelson Filed as Intervenor Plaintiff under 4−06−cv−182 TERMINATED: 09/04/2008
Plaintiff Machelle Guy Filed as Intervenor Plaintiff under 4−06−cv−182

Marlita Ann Greve (See above for address) TERMINATED: 12/06/2006 LEAD ATTORNEY
Jill Weinstein (See above for address) ATTORNEY TO BE NOTICED
represented by Dorothy A OBrien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erika E Pedersen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marlita Ann Greve (See above for address) TERMINATED: 12/06/2006 LEAD ATTORNEY
Jill Weinstein (See above for address) ATTORNEY TO BE NOTICED
represented by Dorothy A OBrien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erika E Pedersen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marlita Ann Greve (See above for address) TERMINATED: 12/06/2006 LEAD ATTORNEY
Jill Weinstein (See above for address) ATTORNEY TO BE NOTICED
represented by Dorothy A OBrien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erika E Pedersen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marlita Ann Greve (See above for address)

Case: 3:04-cv-00159-RP-RAW As of: 03/13/2019 07:21 PM CDT 3 of 31

TERMINATED: 12/06/2006 LEAD ATTORNEY

Jill Weinstein (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Raquel Maiden Filed as Intervenor Plaintiff under 4−06−cv−182 TERMINATED: 09/04/2008

represented by Dorothy A OBrien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erika E Pedersen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marlita Ann Greve (See above for address) TERMINATED: 12/06/2006 LEAD ATTORNEY

Jill Weinstein (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Charles Smith Filed as Intervenor Plaintiff under 4−06−cv−182 TERMINATED: 09/04/2008

represented by Dorothy A OBrien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erika E Pedersen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marlita Ann Greve (See above for address) TERMINATED: 12/06/2006 LEAD ATTORNEY

Jill Weinstein (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Laronica Williams Filed as Intervenor Plaintiff under 4−06−cv−182 TERMINATED: 11/28/2007

represented by Dorothy A OBrien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erika E Pedersen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marlita Ann Greve (See above for address) TERMINATED: 12/06/2006 LEAD ATTORNEY

Case: 3:04-cv-00159-RP-RAW As of: 03/13/2019 07:21 PM CDT 4 of 31

Jill Weinstein (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Latoya Young Filed as Intervenor Plaintiff under 4−06−cv−182

represented by Dorothy A OBrien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erika E Pedersen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marlita Ann Greve (See above for address) TERMINATED: 12/06/2006 LEAD ATTORNEY

Jill Weinstein (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Roscoe Haymon Filed as Intervenor Plaintiff under 4−06−cv−182 TERMINATED: 09/04/2008

represented by Dorothy A OBrien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erika E Pedersen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marlita Ann Greve (See above for address) TERMINATED: 12/06/2006 LEAD ATTORNEY

Jill Weinstein (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Robert Williams Filed as Intervenor Plaintiff under 4−06−cv−182

represented by Dorothy A OBrien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erika E Pedersen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marlita Ann Greve (See above for address) TERMINATED: 12/06/2006 LEAD ATTORNEY

Jill Weinstein (See above for address) ATTORNEY TO BE NOTICED

Case: 3:04-cv-00159-RP-RAW As of: 03/13/2019 07:21 PM CDT 5 of 31

Plaintiff James Thomas Filed as Intervenor Plaintiff under 4−06−cv−182, Terminated per order on 12/19/07 TERMINATED: 12/19/2007
Plaintiff Equal Employment Opportunity Commission Plaintiff in 4:06−cv−182

represented by James Thomas 1408 W 14th Street Davenport, IA 52803 PRO SE
Dorothy A OBrien (See above for address) TERMINATED: 10/02/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erika E Pedersen (See above for address) TERMINATED: 10/02/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marlita Ann Greve (See above for address) TERMINATED: 12/06/2006 LEAD ATTORNEY
Jill Weinstein (See above for address) TERMINATED: 10/02/2007 ATTORNEY TO BE NOTICED
represented by Dennis R McBride EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (WI) MILWAUKEE DISTRICT OFFICE 310 W WISCONSIN AVE SUITE 800 MILWAUKEE, WI 53203−2292 414 297 4188 Fax: 414 297 3146 Email: dennis.mcbride@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Lee EEOC − DC 1801 L STREET NW WASHINGTON, DC 20507 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gwendolyn Young Reams EEOC 1801 L Street NW Washington, DC 20507 ATTORNEY TO BE NOTICED
Jean Camp EEOC 310 W Wisconsin Ave Suite 800 Milwaukee, WI 53203 ATTORNEY TO BE NOTICED
Jill Weinstein

Case: 3:04-cv-00159-RP-RAW As of: 03/13/2019 07:21 PM CDT 6 of 31

(See above for address) ATTORNEY TO BE NOTICED

John Hendrickson EEOC MILWAUKEE DISTRICT OFFICE 310 W WISCONSIN AVE SUITE 800 MILWAUKEE, WI 53203−2292 ATTORNEY TO BE NOTICED

Plaintiff Damenica Johnson

represented by Jill Weinstein Pedersen & Weinstein LLP Suite 1200 309 W Washington Chicago, IL 60606 312−855−1200 Fax: 312−855−1207 Email: jweinstein@pwllp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Von Maur Inc

represented by Elizabeth L Hubbard ATTORNEY AT LAW 900 W. Jackson Boulevard Suite Six West Chicago, IA 60607 312−243−0007 Fax: 312−421−5310 Email: ehubbard@ehubbardlaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
John Campbell OConnor PAPPAS O'CONNOR, PC 900 W. Jackson Boulevard Six West Chicago, IL 60607 312−421−5960 Fax: 312−421−5310 Email: joconnor@poflegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew P Pappas PAPPAS O'CONNOR, PC 1617 Second Avenue Suite 300 Rock Island, IL 61201 309 788 7110 Fax: 309 788 2773 Email: mpappas@pappasoconnor.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Terri Lea Fildes PAPPAS O'CONNOR, PC 1617 Second Avenue

Case: 3:04-cv-00159-RP-RAW As of: 03/13/2019 07:21 PM CDT 7 of 31
Suite 300 Rock Island, IL 61201 309 788 7110 Fax: 309 788 2773 Email: tfildes@pappasoconnor.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles E Miller LANE & WATERMAN LLP 220 N MAIN ST SUITE 600 DAVENPORT, IA 52801 563 324 3246 Fax: 324 1616 Email: cmiller@l−wlaw.com TERMINATED: 04/19/2006
Diane M Reinsch LANE & WATERMAN LLP 220 N MAIN ST SUITE 600 DAVENPORT, IA 52801 309−785−1600 Email: dreinsch@l−wlaw.com TERMINATED: 04/19/2006

Date Filed 12/22/2008
12/02/2008 11/19/2008 11/12/2008 10/29/2008 10/29/2008 10/10/2008 10/10/2008 10/10/2008 10/09/2008

# Docket Text
334 STIPULATION of Dismissal by Roscoe Haymon, Robert Williams, Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Damenica Johnson, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Latoya Young. (Weinstein, Jill) (Entered: 12/22/2008)
333 NOTICE of Settlement Closing Document by Equal Employment Opportunity Commission (McBride, Dennis) (Entered: 12/02/2008)
332 ORDER for Closing Documents. Dismissal Papers due by 12/8/2008.Signed by Magistrate Judge Ross A. Walters on 11/19/2008. (nsr) (Entered: 11/19/2008)
331 ORDER re 330 Settlement Agreement filed by Equal Employment Opportunity Commission. Signed by Chief Judge Robert W. Pratt on 11/12/08. (mlm, ) (Entered: 11/12/2008)
330 SETTLEMENT AGREEMENT "Consent Decree" by Equal Employment Opportunity Commission. (McBride, Dennis) (Entered: 10/29/2008)
329 ORDER Granting Oral Request for Extension of Time to File Closing Documents. Dismissal Papers due by 11/21/2008. Signed by Magistrate Judge Ross A. Walters on 10/29/2008. (klw) (Entered: 10/29/2008)
328 TEXT ORDER. The hearing set for October 14, 2008, and trial set to begin October 20, 2008, shall be cancelled. Signed by Magistrate Judge Thomas J. Shields on 10/10/2008. (jeb) (Entered: 10/10/2008)
327 TEXT ORDER for Closing Documents. The court has been informed that this case has been resolved. The parties shall file closing documents by October 31, 2008. Signed by Magistrate Judge Thomas J. Shields on 10/10/2008. (jeb) (Entered: 10/10/2008)
326 TEXT ORDER granting 234 Motion in Limine; granting 239 Motion in Limine; finding as moot 246 Motion in Limine; finding as moot 252 Motion in Limine. Signed by Chief Judge Robert W. Pratt on 10/10/2008. (ajd, ) (Entered: 10/10/2008)
325 TEXT ORDER: ORDER granting 307 Von Maur's motion for leave to file overlength brief. The brief may stand in the record as filed at document 307 . Entered by Magistrate Judge Ross A. Walters on 10/9/2008. (Entered: 10/09/2008)

Case: 3:04-cv-00159-RP-RAW As of: 03/13/2019 07:21 PM CDT 8 of 31

10/09/2008
10/09/2008
10/08/2008 10/08/2008 10/08/2008 10/08/2008 10/08/2008 10/08/2008 10/08/2008 10/08/2008 10/08/2008
10/08/2008 10/08/2008 10/08/2008 10/08/2008 10/08/2008 10/08/2008 10/08/2008

324 TEXT ORDER Setting Hearing on ALL PENDING MOTIONS IN LIMINE Motion Hearing set for 10/14/2008 11:00 AM in Davenport − Room 120 − 1st Floor before Chief Judge Robert W. Pratt.. Signed by Chief Judge Robert W. Pratt on 10/9/08. (mlm, ) (Entered: 10/09/2008)
323 ORDER Setting Hearing on All pending Motions in Limine. Motion Hearing set for 10/14/2008 11:00 AM in Des Moines − Room 145 − 1st Floor South before Chief Judge Robert W. Pratt.. Signed by Chief Judge Robert W. Pratt on 10/9/2008. (mlm, ) (Entered: 10/09/2008)
322 REPLY re 257 MOTION in Limine Concerning Caption of Case filed by Von Maur Inc.(Pappas, Matthew) (Entered: 10/08/2008)
321 REPLY re 248 MOTION in Limine to Preclude Dismissed Plaintiffs from Testifying at Trial filed by Von Maur Inc.(Pappas, Matthew) (Entered: 10/08/2008)
320 REPLY re 245 MOTION in Limine Concerning Sexual Orientation of Decision−Maker filed by Von Maur Inc.(Pappas, Matthew) (Entered: 10/08/2008)
319 REPLY re 253 MOTION in Limine Concerning Von Maur's NorthPark Mall Location filed by Von Maur Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit Exhibit B)(Pappas, Matthew) (Entered: 10/08/2008)
318 REPLY re 259 MOTION in Limine Concerning Williams' Hearsay Testimony filed by Von Maur Inc.(Pappas, Matthew) (Entered: 10/08/2008)
317 REPLY re 258 MOTION in Limine Concerning EEOC Consent Decree or its Involvement in this Litigation filed by Von Maur Inc.(Pappas, Matthew) (Entered: 10/08/2008)
316 REPLY re 247 MOTION in Limine to Preclude Plaintiffs or Others from Testifying at Trial Concerning Other Litigation or Alleged Discrimination filed by Von Maur Inc.(Pappas, Matthew) (Entered: 10/08/2008)
315 REPLY re 254 MOTION in Limine Concerning Anticipated Testimony of Machelle Guy's Brother Concerning Shopping at Von Maur filed by Von Maur Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Pappas, Matthew) (Entered: 10/08/2008)
314 REPLY re 256 MOTION in Limine to Preclude Machelle Guy from Testifying at Trial Concerning Her Reactions to White Women Interviewers, 251 MOTION in Limine to Preclude Machelle Guy from Testifying at Trial Concerning her 2000 Application filed by Von Maur Inc.(Pappas, Matthew) (Entered: 10/08/2008)
313 REPLY re 261 MOTION in Limine to Exclude and Bar Evidence Concerning EEOC Cause Finding for Plaintiff Robert Williams filed by Von Maur Inc.(Pappas, Matthew) (Entered: 10/08/2008)
312 REPLY re 255 MOTION in Limine Concerning Guy's Hearsay Testimony filed by Von Maur Inc.(Pappas, Matthew) (Entered: 10/08/2008)
311 REPLY re 246 MOTION in Limine to Preclude Robert Williams from Testifying at Trial About his 2003 Application filed by Von Maur Inc.(Pappas, Matthew) (Entered: 10/08/2008)
310 REPLY re 252 MOTION in Limine to Preclude Plaintiffs from Presenting Evidence at Trial that Von Maur Does Not Have an Affirmative Action Plan filed by Von Maur Inc.(Pappas, Matthew) (Entered: 10/08/2008)
309 REPLY re 244 MOTION in Limine Concerning Court Order on Summary Judgment filed by Von Maur Inc.(Pappas, Matthew) (Entered: 10/08/2008)
308 REPLY re 260 MOTION in Limine Concerning Anticipated Testimony of Racial Composition of Various Positions at Von Maur filed by Von Maur Inc.(Pappas, Matthew) (Entered: 10/08/2008)
307 MOTION to file overlength brief regarding Reply Brief in Support of its Motion in Limine to Exclude Plaintiffs Expert Motions referred to Ross A. Walters. by Von Maur Inc. Responses due by 10/27/2008 (Attachments: # 1 Exhibit Exhibit A − Reply Brief, # 2 Exhibit Exhibit A to Reply Brief − Affidavit)(Pappas, Matthew) (Entered: 10/08/2008)

Case: 3:04-cv-00159-RP-RAW As of: 03/13/2019 07:21 PM CDT 9 of 31

10/07/2008
10/07/2008 10/07/2008 10/07/2008 10/06/2008 10/06/2008 10/06/2008 10/06/2008 10/06/2008 10/06/2008
10/06/2008 10/06/2008

306 ORDER ON PLAINTIFFS' OBJECTION TO MAGISTRATE JUDGE'S ORDER AWARDING FEES AND EXPENSES TO WARD PLAINTIFFS re 204 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Roscoe Haymon, Robert Williams, Damenica Johnson, Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Latoya Young re 200 Order on MotioAPPEAL OF MAGISTRATE JUDGE DECISION to District Court by Roscoe Haymon, Robert Williams, Damenica Johnson, Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Latoya Young re 200 Order on Motio filed by Walkesheia Ward, Tanya Gardner, Machelle Guy, Darlena Mcbride, Damenica Johnson, Charles Smith, Robert Donelson, Robert Williams, Raquel Maiden, Latoya Young, Roscoe Haymon. Signed by Chief Judge Robert W. Pratt on 10/7/2008. (dmh) (Entered: 10/07/2008)
305 REPLY in Further Support of Motion re 233 MOTION in Limine to Exclude Evidence of Prior Litigation and Administrative Claims filed by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young.(Weinstein, Jill) (Entered: 10/07/2008)
304 REPLY in Further Support of Motion re 236 MOTION in Limine to Exclude Von Maur's Supplemental Answer to Plaintiffs' Interrogatory No. 7 filed by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. (Attachments: # 1 Exhibit A)(Weinstein, Jill) (Entered: 10/07/2008)
303 REPLY in Further Support of Motion re 237 MOTION in Limine to Exclude Evidence of Arrests and Convictions filed by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young.(Weinstein, Jill) (Entered: 10/07/2008)
302 TEXT ORDER: For the reasons stated in 263 Objection filed by Damenica Johnson, Machelle Guy, Robert Williams, Latoya Young, consideration of 220 Bill of Costs filed by Von Maur Inc is premature and cannot be undertaken at this time. Signed by Clerk Marjorie Krahn on 10/6/2008. (Krahn, Marjorie) (Entered: 10/06/2008)
301 RESPONSE to Motion re 222 MOTION in Limine to Exclude Plaintiffs' Expert Testimony filed by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. Replies due by 10/17/2008. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Weinstein, Jill) (Entered: 10/06/2008)
300 RESPONSE to Motion re 238 MOTION in Limine to Exclude Evidence Related to Certain Plaintiffs Not Filing EEOC Charges filed by Von Maur Inc. Replies due by 10/17/2008. (Attachments: # 1 Exhibit A − Deposition Excerpt of Johnson, # 2 Exhibit B − Plaintiffs' Interrogatory Answers)(Pappas, Matthew) (Entered: 10/06/2008)
299 RESPONSE to Motion re 259 MOTION in Limine Concerning Williams' Hearsay Testimony filed by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. Replies due by 10/17/2008. (Attachments: # 1 Exhibit A)(Weinstein, Jill) (Entered: 10/06/2008)
298 RESPONSE to Motion re 255 MOTION in Limine Concerning Guy's Hearsay Testimony filed by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. Replies due by 10/17/2008. (Attachments: # 1 Exhibit A)(Weinstein, Jill) (Entered: 10/06/2008)
297 RESPONSE to Motion re 256 MOTION in Limine to Preclude Machelle Guy from Testifying at Trial Concerning Her Reactions to White Women Interviewers, 251 MOTION in Limine to Preclude Machelle Guy from Testifying at Trial Concerning her 2000 Application Plaintiffs' Consolidated Response to 251 and 256 filed by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. Replies due by 10/17/2008. (Attachments: # 1 Exhibit A)(Weinstein, Jill) (Entered: 10/06/2008)
296 RESPONSE to Motion re 254 MOTION in Limine Concerning Anticipated Testimony of Machelle Guy's Brother Concerning Shopping at Von Maur filed by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. Replies due by 10/17/2008. (Attachments: # 1 Exhibit A)(Weinstein, Jill) (Entered: 10/06/2008)
295 RESPONSE to Motion re 257 MOTION in Limine Concerning Caption of Case filed by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. Replies due by 10/17/2008.(Weinstein, Jill) (Entered: 10/06/2008)

Case: 3:04-cv-00159-RP-RAW As of: 03/13/2019 07:21 PM CDT 10 of 31

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

294 RESPONSE to Motion re 252 MOTION in Limine to Preclude Plaintiffs from Presenting Evidence at Trial that Von Maur Does Not Have an Affirmative Action Plan filed by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. Replies due by 10/17/2008.(Weinstein, Jill) (Entered: 10/06/2008)
293 RESPONSE to Motion re 248 MOTION in Limine to Preclude Dismissed Plaintiffs from Testifying at Trial filed by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. Replies due by 10/17/2008.(Weinstein, Jill) (Entered: 10/06/2008)
292 RESPONSE to Motion re 253 MOTION in Limine Concerning Von Maur's NorthPark Mall Location filed by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. Replies due by 10/17/2008.(Weinstein, Jill) (Entered: 10/06/2008)
291 RESPONSE to Motion re 260 MOTION in Limine Concerning Anticipated Testimony of Racial Composition of Various Positions at Von Maur filed by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. Replies due by 10/17/2008. (Attachments: # 1 Exhibit Plaintiffs 1086, # 2 Exhibit Plaintiffs 1087, # 3 Exhibit Plaintiffs 1088, # 4 Exhibit Plaintiffs 1089, # 5 Exhibit A, # 6 Exhibit B)(Weinstein, Jill) (Entered: 10/06/2008)
290 RESPONSE to Motion re 236 MOTION in Limine to Exclude Von Maur's Supplemental Answer to Plaintiffs' Interrogatory No. 7 filed by Von Maur Inc. Replies due by 10/17/2008.(Pappas, Matthew) (Entered: 10/06/2008)
289 RESPONSE to Motion re 233 MOTION in Limine to Exclude Evidence of Prior Litigation and Administrative Claims filed by Von Maur Inc. Replies due by 10/17/2008.(Pappas, Matthew) (Entered: 10/06/2008)
288 RESPONSE to Motion re 239 MOTION in Limine to Exclude Witnesses Not Identified During Discovery filed by Von Maur Inc. Replies due by 10/17/2008.(Pappas, Matthew) (Entered: 10/06/2008)
287 RESPONSE to Motion re 247 MOTION in Limine to Preclude Plaintiffs or Others from Testifying at Trial Concerning Other Litigation or Alleged Discrimination filed by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. Replies due by 10/17/2008. (Attachments: # 1 Exhibit Plaintiffs 1098, # 2 Exhibit Plaintiffs 1099, # 3 Exhibit Plaintiffs 1100, # 4 Exhibit Plaintiffs 1101, # 5 Exhibit Plaintiffs 1102, # 6 Exhibit Plaintiffs 1103, # 7 Exhibit Plaintiffs 1104, # 8 Exhibit Plaintiffs 1105, # 9 Exhibit Plaintiffs 1106, # 10 Exhibit Plaintiffs 1107, # 11 Exhibit Plaintiffs 1108, # 12 Exhibit Plaintiffs 1109, # 13 Exhibit A, # 14 Exhibit B)(Weinstein, Jill) (Entered: 10/06/2008)
286 RESPONSE to Motion re 232 MOTION in Limine to Exclude Evidence Related to Dismissed Claims and Parties filed by Von Maur Inc. Replies due by 10/17/2008.(Pappas, Matthew) (Entered: 10/06/2008)
285 RESPONSE to Motion re 235 MOTION in Limine to Exclude Evidence Related to Unemployment Compensation Benefits filed by Von Maur Inc. Replies due by 10/17/2008.(Pappas, Matthew) (Entered: 10/06/2008)
284 RESPONSE to Motion re 234 MOTION in Limine to Preclude Von Maur from Asserting or Arguing McKennon Affirmative Defense for Robert Williams filed by Von Maur Inc. Replies due by 10/17/2008.(Pappas, Matthew) (Entered: 10/06/2008)
283 RESPONSE to Motion re 231 MOTION in Limine to Exclude Personnel Files from Other Employers filed by Von Maur Inc. Replies due by 10/17/2008.(Pappas, Matthew) (Entered: 10/06/2008)
282 RESPONSE to Motion re 237 MOTION in Limine to Exclude Evidence of Arrests and Convictions filed by Von Maur Inc. Replies due by 10/17/2008.(Pappas, Matthew) (Entered: 10/06/2008)
281 RESPONSE to Motion re 245 MOTION in Limine Concerning Sexual Orientation of Decision−Maker filed by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. Replies due by 10/17/2008.(Weinstein, Jill) (Entered: 10/06/2008)
280 RESPONSE to Motion re 258 MOTION in Limine Concerning EEOC Consent Decree or its Involvement in this Litigation filed by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. Replies due by 10/17/2008.(Weinstein, Jill) (Entered:

Case: 3:04-cv-00159-RP-RAW As of: 03/13/2019 07:21 PM CDT 11 of 31

10/06/2008
10/06/2008
10/06/2008 10/03/2008 10/01/2008 10/01/2008 10/01/2008 10/01/2008 09/30/2008 09/30/2008 09/29/2008
09/29/2008 09/29/2008 09/29/2008 09/29/2008
09/27/2008

10/06/2008)
279 RESPONSE to Motion re 261 MOTION in Limine to Exclude and Bar Evidence Concerning EEOC Cause Finding for Plaintiff Robert Williams filed by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. Replies due by 10/17/2008. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Weinstein, Jill) (Entered: 10/06/2008)
278 RESPONSE to Motion re 246 MOTION in Limine to Preclude Robert Williams from Testifying at Trial About his 2003 Application filed by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. Replies due by 10/17/2008.(Weinstein, Jill) (Entered: 10/06/2008)
277 RESPONSE to Motion re 244 MOTION in Limine Concerning Court Order on Summary Judgment filed by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. Replies due by 10/17/2008.(Weinstein, Jill) (Entered: 10/06/2008)
276 OBJECTIONS to 275 Exhibit List by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. (Weinstein, Jill) (Entered: 10/03/2008)
275 Exhibit List (Amended) by Von Maur Inc. (Pappas, Matthew) (Entered: 10/01/2008)
274 Errata re 273 Proposed Jury Instructions filed by Von Maur Inc. (Pappas, Matthew) (Entered: 10/01/2008)
273 Proposed Jury Instructions by Von Maur Inc. (Pappas, Matthew) (Entered: 10/01/2008)
272 ORDER denying 212 Motion to Stay. Signed by Chief Judge Robert W. Pratt on 10/1/2008. (mlm, ) (Entered: 10/01/2008)
271 ORDER: Ruling on Defendant's Oral Motion to Conduct Discovery Depositions of Non−Party Emotional Distress Witnesses. Signed by Magistrate Judge Ross A. Walters on 9/30/2008. (klw) (Entered: 09/30/2008)
270 Exhibit List Plaintiffs' Supplemental Exhibit List by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. (Weinstein, Jill) (Entered: 09/30/2008)
269 REPLY re 212 MOTION to Stay Plaintiffs' Motion for Entry of Final Judgment Pursuant to Rule 54(b) and to Stay District Court Proceedings Pending Appeal MOTION to Stay Plaintiffs' Motion for Entry of Final Judgment Pursuant to Rule 54(b) and to Stay District Court Proceedings Pending Appeal filed by Roscoe Haymon, Robert Williams, Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Damenica Johnson, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Latoya Young.(Weinstein, Jill) (Entered: 09/29/2008)
268 ORDER FOLLOWING FINAL PRETRIAL CONFERENCE. See order for particulars. Signed by Magistrate Judge Ross A. Walters on 9/29/2008. (klw) (Entered: 09/29/2008)
267 STIPULATED PRETRIAL ORDER. Signed by Magistrate Judge Ross A. Walters on 9/29/2008. (klw) (Entered: 09/29/2008)
266 STATEMENT Plaintiffs' Objections to Additional Depositions. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Weinstein, Jill) (Entered: 09/29/2008)
265 TEXT ORDER: ORDER finding as moot 262 plaintiffs' motion for extension of time to respond to Von Maur's motion in limine to exclude plaintiffs' expert testimony 222 . The Court notes that plaintiffs already have until 10/6/2008 to respond to the motion. Entered by Magistrate Judge Ross A. Walters on 9/29/2008. (klw) (Entered: 09/29/2008)
264 REPLY re 204 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Roscoe Haymon, Robert Williams, Damenica Johnson, Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Latoya Young re 200 Order on MotioAPPEAL OF MAGISTRATE JUDGE DECISION to District Court by Roscoe Haymon, Robert Williams, Damenica Johnson, Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Robert Donelson,

Case: 3:04-cv-00159-RP-RAW As of: 03/13/2019 07:21 PM CDT 12 of 31

09/27/2008 09/27/2008
09/26/2008 09/26/2008 09/26/2008 09/26/2008 09/26/2008 09/26/2008
09/26/2008 09/26/2008 09/26/2008 09/26/2008 09/26/2008 09/26/2008 09/26/2008 09/26/2008 09/26/2008

Machelle Guy, Raquel Maiden, Charles Smith, Latoya Young re 200 Order on Motio filed by Roscoe Haymon, Robert Williams, Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Damenica Johnson, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Latoya Young.(Weinstein, Jill) (Entered: 09/27/2008)
263 OBJECTIONS to 220 Bill of Costs by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. (Weinstein, Jill) (Entered: 09/27/2008)
262 MOTION for Extension of Time to File Plaintiffs' Response in Opposition to Defendant's Motion in Limine to Exclude Plaintiffs' Expert Testimony Motions referred to Ross A. Walters. by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. Responses due by 10/14/2008 (Weinstein, Jill) (Entered: 09/27/2008)
261 MOTION in Limine to Exclude and Bar Evidence Concerning EEOC Cause Finding for Plaintiff Robert Williams by Von Maur Inc. Responses due by 10/14/2008 (Pappas, Matthew) (Entered: 09/26/2008)
260 MOTION in Limine Concerning Anticipated Testimony of Racial Composition of Various Positions at Von Maur by Von Maur Inc. Responses due by 10/14/2008 (Pappas, Matthew) (Entered: 09/26/2008)
259 MOTION in Limine Concerning Williams' Hearsay Testimony by Von Maur Inc. Responses due by 10/14/2008 (Attachments: # 1 Exhibit Exhibit A)(Pappas, Matthew) (Entered: 09/26/2008)
258 MOTION in Limine Concerning EEOC Consent Decree or its Involvement in this Litigation by Von Maur Inc. Responses due by 10/14/2008 (Pappas, Matthew) (Entered: 09/26/2008)
257 MOTION in Limine Concerning Caption of Case by Von Maur Inc. Responses due by 10/14/2008 (Pappas, Matthew) (Entered: 09/26/2008)
256 MOTION in Limine to Preclude Machelle Guy from Testifying at Trial Concerning Her Reactions to White Women Interviewers by Von Maur Inc. Responses due by 10/14/2008 (Attachments: # 1 Exhibit Exhibit A)(Pappas, Matthew) (Entered: 09/26/2008)
255 MOTION in Limine Concerning Guy's Hearsay Testimony by Von Maur Inc. Responses due by 10/14/2008 (Attachments: # 1 Exhibit Exhibit A)(Pappas, Matthew) (Entered: 09/26/2008)
254 MOTION in Limine Concerning Anticipated Testimony of Machelle Guy's Brother Concerning Shopping at Von Maur by Von Maur Inc. Responses due by 10/14/2008 (Attachments: # 1 Exhibit Exhibit A)(Pappas, Matthew) (Entered: 09/26/2008)
253 MOTION in Limine Concerning Von Maur's NorthPark Mall Location by Von Maur Inc. Responses due by 10/14/2008 (Pappas, Matthew) (Entered: 09/26/2008)
252 MOTION in Limine to Preclude Plaintiffs from Presenting Evidence at Trial that Von Maur Does Not Have an Affirmative Action Plan by Von Maur Inc. Responses due by 10/14/2008 (Pappas, Matthew) (Entered: 09/26/2008)
251 MOTION in Limine to Preclude Machelle Guy from Testifying at Trial Concerning her 2000 Application by Von Maur Inc. Responses due by 10/14/2008 (Pappas, Matthew) (Entered: 09/26/2008)
250 Proposed Jury Instructions by Von Maur Inc. (Pappas, Matthew) (Entered: 09/26/2008)
249 Proposed Voir Dire by Von Maur Inc. (Pappas, Matthew) (Entered: 09/26/2008)
248 MOTION in Limine to Preclude Dismissed Plaintiffs from Testifying at Trial by Von Maur Inc. Responses due by 10/14/2008 (Pappas, Matthew) (Entered: 09/26/2008)
247 MOTION in Limine to Preclude Plaintiffs or Others from Testifying at Trial Concerning Other Litigation or Alleged Discrimination by Von Maur Inc. Responses due by 10/14/2008 (Pappas, Matthew) (Entered: 09/26/2008)

Case: 3:04-cv-00159-RP-RAW As of: 03/13/2019 07:21 PM CDT 13 of 31

09/26/2008 09/26/2008 09/26/2008 09/26/2008 09/26/2008 09/26/2008 09/26/2008 09/26/2008 09/26/2008 09/26/2008 09/26/2008 09/26/2008 09/26/2008
09/26/2008 09/26/2008 09/26/2008 09/26/2008 09/26/2008 09/22/2008

246 MOTION in Limine to Preclude Robert Williams from Testifying at Trial About his 2003 Application by Von Maur Inc. Responses due by 10/14/2008 (Pappas, Matthew) (Entered: 09/26/2008)
245 MOTION in Limine Concerning Sexual Orientation of Decision−Maker by Von Maur Inc. Responses due by 10/14/2008 (Pappas, Matthew) (Entered: 09/26/2008)
244 MOTION in Limine Concerning Court Order on Summary Judgment by Von Maur Inc. Responses due by 10/14/2008 (Pappas, Matthew) (Entered: 09/26/2008)
243 Proposed Jury Instructions by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. (Weinstein, Jill) (Entered: 09/26/2008)
242 STATEMENT Stipulated Statement of the Case. (Weinstein, Jill) (Entered: 09/26/2008)
241 Proposed Jury Instructions by Robert Williams, Von Maur Inc, Damenica Johnson, Machelle Guy, Latoya Young. (Weinstein, Jill) (Entered: 09/26/2008)
240 Proposed Jury Instructions by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. (Weinstein, Jill) (Entered: 09/26/2008)
239 MOTION in Limine to Exclude Witnesses Not Identified During Discovery by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. Responses due by 10/14/2008 (Weinstein, Jill) (Entered: 09/26/2008)
238 MOTION in Limine to Exclude Evidence Related to Certain Plaintiffs Not Filing EEOC Charges by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. Responses due by 10/14/2008 (Weinstein, Jill) (Entered: 09/26/2008)
237 MOTION in Limine to Exclude Evidence of Arrests and Convictions by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. Responses due by 10/14/2008 (Weinstein, Jill) (Entered: 09/26/2008)
236 MOTION in Limine to Exclude Von Maur's Supplemental Answer to Plaintiffs' Interrogatory No. 7 by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. Responses due by 10/14/2008 (Weinstein, Jill) (Entered: 09/26/2008)
235 MOTION in Limine to Exclude Evidence Related to Unemployment Compensation Benefits by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. Responses due by 10/14/2008 (Weinstein, Jill) (Entered: 09/26/2008)
234 MOTION in Limine to Preclude Von Maur from Asserting or Arguing McKennon Affirmative Defense for Robert Williams by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. Responses due by 10/14/2008 (Weinstein, Jill) (Entered: 09/26/2008)
233 MOTION in Limine to Exclude Evidence of Prior Litigation and Administrative Claims by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. Responses due by 10/14/2008 (Weinstein, Jill) (Entered: 09/26/2008)
232 MOTION in Limine to Exclude Evidence Related to Dismissed Claims and Parties by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. Responses due by 10/14/2008 (Weinstein, Jill) (Entered: 09/26/2008)
231 MOTION in Limine to Exclude Personnel Files from Other Employers by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. Responses due by 10/14/2008 (Weinstein, Jill) (Entered: 09/26/2008)
230 Proposed Voir Dire by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. (Weinstein, Jill) (Entered: 09/26/2008)
229 TRIAL BRIEF by Robert Williams, Damenica Johnson, Machelle Guy, Latoya Young. (Weinstein, Jill) (Entered: 09/26/2008)
228 RESPONSE to Motion re 205 MOTION for Reconsideration Brief in Support of EEOC's Motion for Reconsideration of Dismissal of Havilah Johnson Claim filed by Von Maur Inc. Replies due by 10/2/2008.(Pappas, Matthew) (Entered: 09/22/2008)

Case: 3:04-cv-00159-RP-RAW As of: 03/13/2019 07:21 PM CDT 14 of 31

09/22/2008 09/22/2008 09/19/2008 09/18/2008 09/17/2008
09/17/2008 09/16/2008 09/12/2008 09/12/2008
09/12/2008 09/12/2008 09/11/2008 09/10/2008

227 RESPONSE to Motion re 212 MOTION to Stay Plaintiffs' Motion for Entry of Final Judgment Pursuant to Rule 54(b) and to Stay District Court Proceedings Pending Appeal MOTION to Stay Plaintiffs' Motion for Entry of Final Judgment Pursuant to Rule 54(b) and to Stay District Court Proceedings Pending Appeal filed by Von Maur Inc. Replies due by 10/2/2008.(Pappas, Matthew) (Entered: 09/22/2008)
226 ORDER granting 199 Motion to Consolidate Cases; denying 207 Motion to Bifurcate/Sever. Signed by Chief Judge Robert W. Pratt on 9/22/08. (mlm, ) (Entered: 09/22/2008)
225 Text Minute Entry for proceedings held before Magistrate Judge Ross A. Walters: Settlement Conference held on 9/19/2008. Continued by telephonic means. (klw) (Entered: 09/19/2008)
224 TEXT Minute Entry for proceedings held before Magistrate Judge Ross A. Walters: Settlement Conference held on 9/18/2008. To be reconvened telephonically 9/19/2008. (klw) (Entered: 09/19/2008)
223 RESPONSE to Motion re 204 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Roscoe Haymon, Robert Williams, Damenica Johnson, Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Latoya Young re 200 Order on MotioAPPEAL OF MAGISTRATE JUDGE DECISION to District Court by Roscoe Haymon, Robert Williams, Damenica Johnson, Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Latoya Young re 200 Order on Motio filed by Von Maur Inc. Replies due by 9/29/2008. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C)(Pappas, Matthew) (Entered: 09/17/2008)
222 MOTION in Limine to Exclude Plaintiffs' Expert Testimony by Von Maur Inc. Responses due by 10/6/2008 (Attachments: # 1 Exhibit Exhibits 1−4, # 2 Exhibit Exhibits 5−8, # 3 Exhibit Exhibit 9, # 4 Exhibit Exhibits 10−11)(Pappas, Matthew) (Entered: 09/17/2008)
221 NOTICE by Pappas, Hubbard, O'Connor, Fildes, Secaras, P.C. Notice of Change of Firm Name (Pappas, Matthew) (Entered: 09/16/2008)
220 BILL OF COSTS by Von Maur Inc. Deadline for Objections to Bill of Costs set for 9/29/2008. (Attachments: # 1 Exhibit Exhibit A − Itemization, # 2 Exhibit Exhibit B − Documentation)(Pappas, Matthew) (Entered: 09/12/2008)
219 Reply Brief in Support of Plaintiff's and EEOC's Motion to Consolidate Cases for Trial and in Opposition to Defendant's Motion for Separate Trials 199 by Equal Employment Opportunity Commission. Responses due by 9/29/2008 (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Errata Exhibit F, # 7 Exhibit Exhibit G, # 8 Exhibit Exhibit H, # 9 Errata Exhibit I, # 10 Exhibit Exhibit J, # 11 Exhibit Exhibit K, # 12 Exhibit Exhibit L, # 13 Exhibit Exhibit M, # 14 Exhibit Exhibit N, # 15 Exhibit Exhibit P, # 16 Exhibit Exhibit Q)(McBride, Dennis) Modified on 9/16/2008 (bp, correct docket entry). (Entered: 09/12/2008)
218 ORDER Setting Settlement Conference and for Settlement Conference Statements. Settlement Conference set for 9/18/2008 10:00 AM in Davenport Courthouse before Magistrate Judge Ross A. Walters. See order for particulars. Signed by Magistrate Judge Ross A. Walters on 9/12/2008. (klw) (Entered: 09/12/2008)
217 TEXT Minute Entry for proceedings held before Magistrate Judge Ross A. Walters:Status Conference with counsel held on 9/12/2008 re: arrangements for 9/18/08 settlement conference. Separate order to issue. (klw) (Entered: 09/12/2008)
216 NOTICE by Von Maur Inc re 215 Order on Motion for Attorney Fees, Notice of Previous Filing of Certification (Attachments: # 1 Exhibit Exhibit A − Certification)(Pappas, Matthew) (Entered: 09/11/2008)
215 ORDER granting 201 Plaintiff's Supplemental Petition for Expenses. Defendant's certification of compliance with 4/12/08 discovery order due within 10 days. See order for particulars. Signed by Magistrate Judge Ross A. Walters on 9/10/2008. (klw) (Entered: 09/10/2008)

Case: 3:04-cv-00159-RP-RAW As of: 03/13/2019 07:21 PM CDT 15 of 31

09/08/2008 09/05/2008
09/05/2008
09/05/2008 09/05/2008 09/04/2008 09/04/2008 09/04/2008 09/04/2008 09/04/2008
09/03/2008
08/29/2008 08/25/2008 08/21/2008

214 RESPONSE to Motion re 201 Supplemental MOTION for Attorney Fees Expenses Related to Dr. Goldman's Supplemental Report (Von Maur will not be filing a response brief) filed by Von Maur Inc. Replies due by 9/18/2008.(Pappas, Matthew) (Entered: 09/08/2008)
213 MOTIONS REFERRAL − NO DOCUMENT − 212 MOTION to Stay Plaintiffs' Motion for Entry of Final Judgment Pursuant to Rule 54(b) and to Stay District Court Proceedings Pending Appeal MOTION to Stay Plaintiffs' Motion for Entry of Final Judgment Pursuant to Rule 54(b) and to Stay District Court Proceedings Pending Appeal Motions referred to Robert W. Pratt. (don) (Entered: 09/05/2008)
212 MOTION to Stay Plaintiffs' Motion for Entry of Final Judgment Pursuant to Rule 54(b) and to Stay District Court Proceedings Pending Appeal Motions referred to Ross A. Walters. by Roscoe Haymon, Robert Williams, Damenica Johnson, Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Latoya Young. Responses due by 9/22/2008 (Weinstein, Jill) (Entered: 09/05/2008)
211 TEXT ORDER: ORDER ACCELERATING TIME FOR RESPONSE. Any response to defendant's Motion for Separate Trials 207 shall be filed within the time for reply to the pending motion to consolidate cases for trial 199 . Signed by Magistrate Judge Ross A. Walters on 9/5/2008. (nsr) (Entered: 09/05/2008)
210 MOTION REFERRAL − NO DOCUMENT − 205 MOTION for Reconsideration Brief in Support of EEOC's Motion for Reconsideration of Dismissal of Havilah Johnson Claim Motions referred to Robert W. Pratt. (bp, ) (Entered: 09/05/2008)
209 Errata Brief in Support of EEOC's Motion for Reconsideration of Dismissal of Havilah Johnson Claim re 208 Errata. (McBride, Dennis) (Entered: 09/04/2008)
208 Errata EEOC's Motion for Reconsideration of Dismissal of Havilah Johnson Claim re 205 Motion for Reconsideration, filed by Equal Employment Opportunity Commission. (McBride, Dennis) (Entered: 09/04/2008)
207 MOTION to Bifurcate/Sever Motions referred to Ross A. Walters. by Von Maur Inc. Responses due by 9/22/2008 (Pappas, Matthew) (Entered: 09/04/2008)
206 RESPONSE to Motion re 199 MOTION to Consolidate Cases for Trial filed by Von Maur Inc. Replies due by 9/15/2008.(Pappas, Matthew) (Entered: 09/04/2008)
205 MOTION for Reconsideration Brief in Support of EEOC's Motion for Reconsideration of Dismissal of Havilah Johnson Claim Motions referred to Ross A. Walters. by Equal Employment Opportunity Commission. Responses due by 9/22/2008 (Attachments: # 1 Certificate of Service, # 2 Declaration of Dennis R. McBride, # 3 Exhibit A to McBride Declaration, # 4 Exhibit B to McBride Declaration)(McBride, Dennis) (Entered: 09/04/2008)
204 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Roscoe Haymon, Robert Williams, Damenica Johnson, Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Latoya Young re 200 Order on Motion for Attorney Fees, (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit D, # 4 Exhibit E, # 5 Exhibit C)(Weinstein, Jill) (Entered: 09/03/2008)
203 ORDER granting in part and denying in part 161 Motion for Summary Judgment. Signed by Chief Judge Robert W. Pratt on 8/29/2008. (mlm, ) (Entered: 08/29/2008)
202 DECLARATION of Gayle Haun by Von Maur Inc. (Pappas, Matthew) (Entered: 08/25/2008)
201 Supplemental MOTION for Attorney Fees Expenses Related to Dr. Goldman's Supplemental Report Motions referred to Ross A. Walters. by Roscoe Haymon, Robert Williams, Damenica Johnson, Equal Employment Opportunity Commission, Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Latoya Young. Responses due by 9/8/2008 (Attachments: # 1 Exhibit A)(Weinstein, Jill) (Entered: 08/21/2008)

Case: 3:04-cv-00159-RP-RAW As of: 03/13/2019 07:21 PM CDT 16 of 31

08/19/2008 08/15/2008 08/13/2008 08/12/2008
08/12/2008 08/11/2008 07/28/2008 07/25/2008
07/24/2008 07/24/2008
07/23/2008
07/22/2008

200 ORDER granting 156 plaintiffs' Motion for Attorney Fees; granting 174 plaintiffs' Motion for Attorney Fees. See order for particulars. Signed by Magistrate Judge Ross A. Walters on 8/19/2008. (klw) (Entered: 08/19/2008)
199 MOTION to Consolidate Cases for Trial Motions referred to Ross A. Walters. by Roscoe Haymon, Robert Williams, Damenica Johnson, Equal Employment Opportunity Commission, Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Latoya Young. Responses due by 9/4/2008 (Weinstein, Jill) (Entered: 08/15/2008)
198 REPLY re 161 MOTION for Summary Judgment filed by Von Maur Inc. (Attachments: # 1 Appendix in support of reply brief) (bp, ) (Entered: 08/13/2008)
197 TEXT ORDER: ORDER rescheduling final pretrial conference. By agreement of the parties, the final pretrial conference in this case is reset to begin at 10:00 AM on Monday, 9/29/2008, by telephone conference call arranged by counsel for plaintiff. The Court may be reached at (515) 284−6217 for purposes of the conference. The parties shall comply with the requirements for final pretrial previously ordered. Entered by Magistrate Judge Ross A. Walters on 8/12/2008. (klw) (Entered: 08/12/2008)
196 TEXT ORDER: ORDER granting 195 defendant's motion for leave to file overlength brief. The case manager shall detach and file the brief and other attachments, linking them to defendant's motion for summary judgment 161 as a reply. Entered by Magistrate Judge Ross A. Walters on 8/12/2008. (klw) (Entered: 08/12/2008)
195 MOTION to file overlength brief Motions referred to Ross A. Walters. by Von Maur Inc. Responses due by 9/2/2008 (Attachments: # 1 Exhibit Exhibit A − Reply Brief, # 2 Appendix Reply Appendix)(Pappas, Matthew) (Entered: 08/11/2008)
194 TEXT Minute Entry for proceedings held before Magistrate Judge Ross A. Walters: Motion Hearing held on 7/28/2008 re 174 plaintiffs' MOTION for Attorney Fees in Connection with Motion for Sanctions and 156 plaintiffs' MOTION for Attorney Fees. Attorneys Jill Weinstein and Erika Pedersen appeared for plaintiffs; Matthew Pappas appeared for defendant. Ruling reserved. (klw) (Entered: 07/28/2008)
193 REPLY in Further Support of Motion for Attorneys' Fees in Connection with Motion for Sanctions re 181 Response to Motion, 174 MOTION for Attorney Fees in Connection with Motion for Sanctions filed by Roscoe Haymon, Robert Williams, Damenica Johnson, Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Latoya Young.(Weinstein, Jill) (Entered: 07/25/2008)
192 TEXT ORDER: ORDER granting in part 189 defendant's motion for extension of time to file reply. Defendant shall have until 8/11/2008 to file its reply to plaintiffs' and EEOC's response to motion for summary judgment 161 . Entered by Magistrate Judge Ross A. Walters on 7/24/2008. (klw) (Entered: 07/24/2008)
191 AMENDED DOCUMENT by Roscoe Haymon, Robert Williams, Damenica Johnson, Equal Employment Opportunity Commission, Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Von Maur Inc, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Latoya Young. Amendment to 185 Brief/Other. (Attachments: # 1 Supplemental Appendix to Statement of Material Facts, # 2 Appendix pages 532−581) (bp, ) (Entered: 07/24/2008)
190 TEXT ORDER: ORDER granting 188 plaintiff's Motion for Leave to File Amended Statement of Facts and Supplemental Appendix in Opposition to Defendant's Motion for Summary Judgment. The Clerk of Court shall detach and separately file plaintiff's "Amended Statement of Material Facts", "Supplemental Appendix", and "Appendix Pages PA 532−581", attached as Exhibits A, B, and C to the motion filed July 22, 2008. Signed by Magistrate Judge Ross A. Walters on 7/23/2008. (nsr) (Entered: 07/23/2008)
189 MOTION for Extension of Time to File Reply to Plaintiffs and EEOCs Response to Motion for Summary Judgment Motions referred to Ross A. Walters. by Von Maur Inc. Responses due by 8/11/2008 (Fildes, Terri) (Entered: 07/22/2008)

Case: 3:04-cv-00159-RP-RAW As of: 03/13/2019 07:21 PM CDT 17 of 31

07/22/2008
07/22/2008 07/21/2008 07/19/2008
07/19/2008 07/18/2008 07/11/2008 07/10/2008 07/01/2008 07/01/2008 06/30/2008

188 MOTION for Leave to File Amended Statement of Facts and Supplemental Appendix in Opposition to Defendant's Motion for Summary Judgment Motions referred to Ross A. Walters. by Roscoe Haymon, Robert Williams, Damenica Johnson, Equal Employment Opportunity Commission, Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Latoya Young. Responses due by 8/11/2008 (Attachments: # 1 Exhibit A − Amended Statement of Facts, # 2 Exhibit B − Supplemental Appendix, # 3 Exhibit C − PA 532−581)(Weinstein, Jill) (Entered: 07/22/2008)
187 NOTICE/MEMORANDUM IN OPPOSITION by Roscoe Haymon, Robert Williams, Damenica Johnson, Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Latoya Young re 161 MOTION for Summary Judgment (bp, ) (Entered: 07/22/2008)
186 TEXT ORDER: ORDER granting 183 plaintiffs' motion for leave to file overlength brief. The case manager shall detach and separately file the brief, linking it to plaintiffs' response 184 . Entered by Magistrate Judge Ross A. Walters on 7/21/2008. (klw) (Entered: 07/21/2008)
185 BRIEF Appendix to Statement of Facts in Opposition to Motion for Summary Judgment. (Attachments: # 1 Appendix 1−50, # 2 Appendix 51−100, # 3 Appendix 101−150, # 4 Appendix 151−200, # 5 Appendix 201−250, # 6 Appendix 251−300, # 7 Appendix 301−350, # 8 Appendix 351−400, # 9 Appendix 401−431, # 10 Appendix 432−481, # 11 Appendix 482−531, # 12 Appendix 532−581, # 13 Appendix 632−659, # 14 Appendix 660−709, # 15 Appendix 710−769, # 16 Appendix 770−819, # 17 Appendix 820−875, # 18 Appendix 876−925, # 19 Appendix 926−965, # 20 Appendix 966−1015, # 21 Appendix 1016−1052, # 22 Appendix 1053−1102, # 23 Appendix 1103−1136)(Weinstein, Jill) (Entered: 07/19/2008)
184 RESPONSE to Motion re 161 MOTION for Summary Judgment Statement of Facts in Opposition to Motion for Summary Judgment filed by Roscoe Haymon, Robert Williams, Damenica Johnson, Equal Employment Opportunity Commission, Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Latoya Young. Replies due by 8/4/2008.(Weinstein, Jill) (Entered: 07/19/2008)
183 MOTION for Leave to File Overlength Brief Motions referred to Ross A. Walters. by Roscoe Haymon, Robert Williams, Damenica Johnson, Equal Employment Opportunity Commission, Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Latoya Young. Responses due by 8/7/2008 (Attachments: # 1 Memorandum of Law in Opposition to Motion for Summary Judgment)(Weinstein, Jill) (Entered: 07/18/2008)
182 TEXT ORDER: ORDER setting hearing on requests for attorney fees and expenses in connection with earlier discovery and sanctions 156 and 174 . The motions shall come on for hearing at 10:00 a.m. on Monday, July 28, 2008, by telephone conference call arranged by counsel for plaintiffs. The Court may be reached at (515) 284−6217. Signed by Magistrate Judge Ross A. Walters on 7/11/2008. (nsr) (Entered: 07/11/2008)
181 RESPONSE to Motion re 174 MOTION for Attorney Fees in Connection with Motion for Sanctions filed by Von Maur Inc. Replies due by 7/25/2008. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Fildes, Terri) (Entered: 07/10/2008)
180 TEXT ORDER: For the reasons stated in plaintiffs' motion for extension of time, it is granted 179 . Plaintiffs shall have to and including July 18, 2008, to respond to Von Maur's motion for summary judgment 161 . Signed by Magistrate Judge Ross A. Walters on 7/1/2008. (nsr) (Entered: 07/01/2008)
179 MOTION for Extension of Time to File Plaintiff's Motion for Extension of Time For Filing Response to Defendant's Summary Judgment Motion Motions referred to Ross A. Walters. by Equal Employment Opportunity Commission. Responses due by 7/21/2008 (McBride, Dennis) (Entered: 07/01/2008)
178 AMENDED DOCUMENT by Von Maur Inc. Amendment to 164 Notice (Other) Brief in Support of Motion for Summary Judgment. (Pappas, Matthew) (Entered: 06/30/2008)

Case: 3:04-cv-00159-RP-RAW As of: 03/13/2019 07:21 PM CDT 18 of 31

06/30/2008 06/27/2008
06/26/2008 06/23/2008
06/19/2008
06/16/2008 06/13/2008 06/12/2008 06/11/2008 06/09/2008
06/09/2008 06/09/2008 06/04/2008 06/03/2008 06/03/2008

177 AMENDED DOCUMENT by Von Maur Inc. Amendment to 161 MOTION for Summary Judgment. (Pappas, Matthew) (Entered: 06/30/2008)
176 TEXT ORDER: For the reasons stated in defendant Von Maur's motion to amend, it is granted 175 . By not later than July 11, 2008, defendant Von Maur shall file an amended and substituted Motion for Summary Judgment to replace 161 and shall file a substituted brief in support of its motion for summary judgment 164 as required by LR 15. Defendant does not need to refile the attachments to the motion for summary judgment. Signed by Magistrate Judge Ross A. Walters on 6/27/2008. (nsr) (Entered: 06/27/2008)
175 MOTION to Amend/Correct 161 MOTION for Summary Judgment Motions referred to Ross A. Walters. by Von Maur Inc. Responses due by 7/16/2008 (Attachments: # 1 Exhibit A)(Pappas, Matthew) (Entered: 06/26/2008)
174 MOTION for Attorney Fees in Connection with Motion for Sanctions Motions referred to Ross A. Walters. by Roscoe Haymon, Robert Williams, Damenica Johnson, Estate of Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Latoya Young. Responses due by 7/14/2008 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Weinstein, Jill) (Entered: 06/23/2008)
173 REPLY in Further Support of Plaintiffs' Fee Petition re 165 Response to Motion, 156 MOTION for Attorney Fees filed by Roscoe Haymon, Robert Williams, Damenica Johnson, Estate of Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Latoya Young. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Weinstein, Jill) (Entered: 06/19/2008)
172 ORDER denying 166 Motion to Strike. See order for particulars. Signed by Magistrate Judge Ross A. Walters on 6/16/2008. (nsr) (Entered: 06/16/2008)
171 REPLY EEOC will not be filing a reply brief, Court may rule on documents provided re 170 Response to Motion filed by Equal Employment Opportunity Commission.(McBride, Dennis) (Entered: 06/13/2008)
170 RESPONSE to Motion re 166 MOTION to Strike Defendant's Statement of Material Facts in Support of Motion for Summary Judgement filed by Von Maur Inc. Replies due by 6/27/2008.(Pappas, Matthew) (Entered: 06/12/2008)
169 TEXT ORDER: ORDER granting 157 plaintiffs' motion for substitution of party. The Estate of Walkesheia Ward shall be substituted for Walkesheia Ward as a plaintiff in this action. Entered by Magistrate Judge Ross A. Walters on 6/11/2008. (Entered: 06/11/2008)
168 TEXT ORDER: ORDER ACCELERATING TIME TO RESPOND TO 166 plaintiffs' MOTION to Strike Defendant's Statement of Material Facts in Support of Motion for Summary Judgement filed by Equal Employment Opportunity Commission. Defendant shall repond to the motion by 6/12/2008. Signed by Magistrate Judge Ross A. Walters on 6/9/2008. (klw) (Entered: 06/09/2008)
167 BRIEF. (McBride, Dennis) (Entered: 06/09/2008)
166 MOTION to Strike Defendant's Statement of Material Facts in Support of Motion for Summary Judgement Motions referred to Ross A. Walters. by Equal Employment Opportunity Commission. Responses due by 6/30/2008 (McBride, Dennis) (Entered: 06/09/2008)
165 RESPONSE to Motion re 156 MOTION for Attorney Fees filed by Von Maur Inc. Replies due by 6/19/2008. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E)(Pappas, Matthew) (Entered: 06/04/2008)
164 NOTICE/BRIEF IN SUPPORT by Von Maur Inc re 161 MOTION for Summary Judgment (bp, ) (Entered: 06/03/2008)
163 TEXT ORDER: ORDER granting 162 defendant's motion for leave to file overlength brief. The case manager shall detach and separately file the brief attached to the motion, linking it to defendants' motion for summary judgment 161 . Entered by

Case: 3:04-cv-00159-RP-RAW As of: 03/13/2019 07:21 PM CDT 19 of 31

06/02/2008 06/02/2008
05/27/2008 05/21/2008
05/20/2008
05/19/2008 05/15/2008 05/15/2008 05/12/2008 05/07/2008 05/07/2008 05/06/2008

Magistrate Judge Ross A. Walters on 6/3/2008. (klw) (Entered: 06/03/2008)
162 MOTION to file overlength brief Motions referred to Ross A. Walters. by Von Maur Inc. Responses due by 6/23/2008 (Attachments: # 1 Exhibit Brief in Support of Defendant's Motion for Summary Judgment)(Pappas, Matthew) (Entered: 06/02/2008)
161 MOTION for Summary Judgment by Von Maur Inc. Responses due by 6/30/2008 (Attachments: # 1 Exhibit Material Statement of Facts in Support of Motion for Summary Judgment, # 2 Appendix Appendix Table of Contents, # 3 Appendix Part 1A, # 4 Appendix Part 1B, # 5 Appendix Part 2A, # 6 Appendix Part 2B, # 7 Appendix Part 3, # 8 Appendix Part 4, # 9 Appendix Part 5, # 10 Appendix Part 6, # 11 Appendix Part 7)(Pappas, Matthew) (Entered: 06/02/2008)
160 ORDER granting in part 147 Motion for Sanctions. See order for particulars. Signed by Magistrate Judge Ross A. Walters on 5/27/2008. (nsr) (Entered: 05/27/2008)
159 Text Minute Entry for proceedings held before Magistrate Judge Ross A. Walters: Motion Hearing held on 5/21/2008 re 147 plaintiffs' MOTION for Sanctions and 149 EEOC's Joinder in Plaintiff's Motion for Sanctions. Jill Weinstein appeared for plaintiffs; Dennis McBride appeared for EEOC; Matthew Pappas appeared for defendant. Oral argument on motions. Ruling reserved. (Court Reporter Kelli Mulcahy.) (klw) (Entered: 05/21/2008)
158 TEXT ORDER: ORDER rescheduling time of motion hearing. Due to changes in the Court's calendar arising from scheduling criminal duties, telephone hearing on plaintiffs' motion for sanctions [147, 149] shall commence at 1:30 PM on Wednesday, 5/21/2008. Counsel for plaintiffs shall made the arrangements for the call. The Court may be reached at (515) 284−6217. The Court apologizes for the short notice to counsel regarding scheduling this hearing. Entered by Magistrate Judge Ross A. Walters on 5/20/2008. (klw) (Entered: 05/20/2008)
157 MOTION to Substitute Party Estate of Walkesheia Ward Motions referred to Ross A. Walters. by Roscoe Haymon, Robert Williams, Damenica Johnson, Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Latoya Young. Responses due by 6/9/2008 (Weinstein, Jill) (Entered: 05/19/2008)
156 MOTION for Attorney Fees Motions referred to Ross A. Walters. by Roscoe Haymon, Robert Williams, Damenica Johnson, Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Latoya Young. Responses due by 6/4/2008 (Attachments: # 1 Exhibit A)(Weinstein, Jill) (Entered: 05/15/2008)
155 REPLY in Further Support of Motion for Sanctions re 147 MOTION for Sanctions, 150 Response to Motion filed by Roscoe Haymon, Robert Williams, Damenica Johnson, Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Latoya Young. (Weinstein, Jill) (Entered: 05/15/2008)
154 TEXT ORDER: ORDER setting hearing on plaintiffs' motion for sanctions [147, 149]. The motion shall come on for hearing at 10:00 AM on Wednesday, 5/21/2008 by telephone conference call arranged by counsel for plaintiffs. The Court may be reached at (515) 284−6217. Entered by Magistrate Judge Ross A. Walters on 5/12/2008. (klw) (Entered: 05/12/2008)
153 ORDER granting 133 plaintiffs' Motion to Compel as set out in ruling. Signed by Magistrate Judge Ross A. Walters on 5/7/2008. (klw) (Entered: 05/07/2008)
152 RESPONSE to Motion re 149 MOTION for Sanctions EEOC's Joinder in Plaintiff's Motion for Sanctions Pursuant to Rule 37(B) filed by Von Maur Inc. Replies due by 5/19/2008. (Pappas, Matthew) (Entered: 05/07/2008)
151 ORDER granting in part 143 Motion to Continue Discovery and Summary Judgment Deadlines. Dispositive Motion Deadline (summary judgment) is extended to 6/2/2008. Discovery deadline is extended to 6/12/2008. Signed by Magistrate Judge Ross A. Walters on 5/6/2008. (nsr) (Entered: 05/06/2008)

Case: 3:04-cv-00159-RP-RAW As of: 03/13/2019 07:21 PM CDT 20 of 31

05/05/2008 04/22/2008 04/21/2008 04/17/2008
04/14/2008
04/09/2008
04/09/2008 04/08/2008 04/04/2008
04/04/2008 04/04/2008 04/04/2008 03/21/2008 03/19/2008 03/19/2008

150 RESPONSE to Motion re 147 MOTION for Sanctions and Request for Oral Argument filed by Von Maur Inc. Replies due by 5/15/2008. (Attachments: # 1 Exhibit I thru K)(Pappas, Matthew) (Entered: 05/05/2008)
149 MOTION for Sanctions EEOC's Joinder in Plaintiff's Motion for Sanctions Pursuant to Rule 37(B) Motions referred to Ross A. Walters. by Equal Employment Opportunity Commission. Responses due by 5/9/2008 (McBride, Dennis) (Entered: 04/22/2008)
148 REPLY in Further Support of Its re 143 MOTION to Continue Discovery and Summary Judgment Deadlines, 146 Response to Motion, filed by Von Maur Inc. (Pappas, Matthew) (Entered: 04/21/2008)
147 MOTION for Sanctions Motions referred to Ross A. Walters. by Roscoe Haymon, Robert Williams, Damenica Johnson, Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Latoya Young. Responses due by 5/5/2008 (Attachments: # 1 Plaintiffs' Brief in Support of Motion for Sanctions, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H)(Weinstein, Jill) (Entered: 04/17/2008)
146 RESPONSE to Motion re 143 MOTION to Continue Discovery and Summary Judgment Deadlines filed by Roscoe Haymon, Robert Williams, Damenica Johnson, Equal Employment Opportunity Commission, Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Latoya Young. Replies due by 4/24/2008. (Weinstein, Jill) (Entered: 04/14/2008)
145 REPLY in Further Support of Motion to Compel re 142 Response to Motion, 133 MOTION to Compel Discovery Responses filed by Roscoe Haymon, Robert Williams, Damenica Johnson, Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Latoya Young. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Weinstein, Jill) (Entered: 04/09/2008)
144 ORDER ACCELERATING RESPONSE TIME: Before the Court is Von Maur, Inc.'s Motion to Continue Discovery and Summary Judgment Deadlines 143 . Any response to the motion shall be filed by the close of business on April 15, 2008. Signed by Magistrate Judge Ross A. Walters on 4/9/2008. (klw) (Entered: 04/09/2008)
143 MOTION to Continue Discovery and Summary Judgment Deadlines Motions referred to Ross A. Walters. by Von Maur Inc. (Pappas, Matthew) (Entered: 04/08/2008)
142 RESPONSE to Motion re 133 MOTION to Compel Discovery Responses filed by Von Maur Inc. Replies due by 4/16/2008. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Exhibit Exhibit G, # 8 Exhibit Exhibit H, # 9 Exhibit Exhibit I)(Pappas, Matthew) (Entered: 04/04/2008)
141 CORRECTED PROTECTIVE ORDER (FILING #140 WAS INCORRECT DOCUMENT). Signed by Magistrate Judge Ross A. Walters on 4/4/2008. (klw) (Entered: 04/04/2008)
140 PROTECTIVE ORDER PERTAINING TO EEO−1 REPORTS. Signed by Magistrate Judge Ross A. Walters on 4/4/2008. (klw) (Entered: 04/04/2008)
139 ORDER granting in part and denying in part 128 defendant's Motion to Strike Expert Opinions or Compel Production of EEO−1 Reports. See order for particulars. Signed by Magistrate Judge Ross A. Walters on 4/4/2008. (klw) (Entered: 04/04/2008)
138 TEXT Minute Entry for telephone conference held 3/20/2008 with counsel before Magistrate Judge Ross A. Walters. No order to follow. (nsr) (Entered: 03/21/2008)
137 ORDER granting in part and denying in part 125 Motion to Continue. Discovery deadline 4/12/2008. Dispositive Motion Deadline 5/12/2008. See order for details. Signed by Magistrate Judge Ross A. Walters on 3/19/2008. (klw) (Entered: 03/19/2008)
136 REPLY in Support of Motion to Strike Expert Opinions or Compel Production of EEO−1 Reports re 129 Response to Motion, 128 MOTION to Strike Expert Opinions or Compel Production of EEO−1 Reports filed by Von Maur Inc. (Attachments: # 1 Exhibit Exhibit to Defendant's Reply in Support of Motion to Strike Expert Opinions

Case: 3:04-cv-00159-RP-RAW As of: 03/13/2019 07:21 PM CDT 21 of 31

03/18/2008
03/18/2008 03/18/2008 03/07/2008
03/07/2008 03/07/2008 03/07/2008 02/25/2008 02/19/2008 02/06/2008
02/01/2008 12/19/2007 11/27/2007

or Compel Production of EEO−1 Reports)(Pappas, Matthew) (Entered: 03/19/2008)
135 DECLARATION of Jill Weinstein re 133 MOTION to Compel Discovery Responses, 134 Brief/Other Pursuant to L.R. 37.1 by Roscoe Haymon, Robert Williams, Damenica Johnson, Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Latoya Young. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16)(Weinstein, Jill) (Entered: 03/18/2008)
134 BRIEF in Support of Motion to Compel Discovery. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Weinstein, Jill) (Entered: 03/18/2008)
133 MOTION to Compel Discovery Responses Motions referred to Ross A. Walters. by Roscoe Haymon, Robert Williams, Damenica Johnson, Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Latoya Young. Responses due by 4/4/2008 (Weinstein, Jill) (Entered: 03/18/2008)
132 TEXT ORDER: ORDER concerning defendant's motion to modify scheduling order. The Court will enter a full ruling on the motion to modify scheduling order in the near term. However, for good cause shown, the dispositive motion deadline is continued to a date to be set in connection with the full ruling on the motion to modify scheduling order. Entered by Magistrate Judge Ross A. Walters on 3/7/2008. (klw) (Entered: 03/07/2008)
131 DECLARATION of Dennis R. McBride by Equal Employment Opportunity Commission. (Attachments: # 1 Attachments to McBride Declaration, # 2 Exhibits F−N to McBride Declaration)(McBride, Dennis) (Entered: 03/07/2008)
130 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission (McBride, Dennis) (Entered: 03/07/2008)
129 RESPONSE to Motion re 128 MOTION to Strike Expert Opinions or Compel Production of EEO−1 Reports EEOC and Plaintiffs' Opposition to Defendant's Motion to Strike Expert Opinions or Compel Production of EEO−1 Reports filed by Equal Employment Opportunity Commission. Replies due by 3/19/2008. (McBride, Dennis) (Entered: 03/07/2008)
128 MOTION to Strike Expert Opinions or Compel Production of EEO−1 Reports Motions referred to Ross A. Walters. by Von Maur Inc. Responses due by 3/13/2008 (Attachments: # 1 Exhibit Exhibits 1 thru 10)(Pappas, Matthew) (Entered: 02/25/2008)
127 REPLY to Plaintiffs' and EEOC's Opposition to Defendant's Motion to Modify Scheduling Order re 126 Response to Motion, filed by Von Maur Inc. (Attachments: # 1 Exhibit)(Pappas, Matthew) (Entered: 02/19/2008)
126 RESPONSE to Motion re 125 MOTION to Continue Defendant's Motion to Modify Scheduling Order filed by Roscoe Haymon, Robert Williams, Damenica Johnson, Equal Employment Opportunity Commission, Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Latoya Young. Replies due by 2/19/2008. (Attachments: # 1 Exhibit A)(Weinstein, Jill) (Entered: 02/06/2008)
125 MOTION to Continue Defendant's Motion to Modify Scheduling Order Motions referred to Ross A. Walters. by Von Maur Inc. (Attachments: # 1 Exhibit 11.28.07 ltr from EEOC to Von Maur, # 2 Exhibit 12.04.07 ltr to EEOC from Von Maur)(Pappas, Matthew) (Entered: 02/01/2008)
124 ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Chief Judge Robert W. Pratt on 12/19/07. (mlm, ) (Entered: 12/19/2007)
123 STIPULATION of Dismissal of Laronica Williams by Roscoe Haymon, Robert Williams, Damenica Johnson, Equal Employment Opportunity Commission, Walkesheia Ward, Darlena Mcbride, Tanya Gardner, Von Maur Inc, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Laronica Williams, Latoya Young. (Weinstein, Jill) (Entered: 11/27/2007)

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11/19/2007 10/31/2007 10/10/2007
10/10/2007 10/02/2007 10/02/2007
09/06/2007 09/05/2007 09/05/2007 09/04/2007 08/20/2007 06/05/2007 06/04/2007
05/08/2007

122 REPORT AND RECOMMENDATION CONCERNING DISMISSAL OF PLAINTIFF JAMES THOMAS. Written objections to Report and Recommendation due by 12/7/2007. Signed by Magistrate Judge Ross A. Walters on 11/19/2007. (nsr) (Entered: 11/19/2007)
121 ORDER extending time for plaintiff James Thomas to report concerning representation. Plaintiff Thomas shall have until 11/14/2007, to file a written statement concerning representation. Signed by Magistrate Judge Ross A. Walters on 10/31/2007. (nsr) (Entered: 10/31/2007)
120 ORDER adopting 119 PROPOSED AMENDED SCHEDULING ORDER AND DISCOVERY PLAN: Defendants Expert Witness Disclosures on non−damages issues due by 10/10/2007. Plaintiffs Rebuttal Witness Disclosures on non−damages issues due by 1/9/2008. Discovery Deadline on non−damages issues by 2/12/2008. Dispositive Motion Deadline due by 3/10/2008. See order for other specific deadlines agreed to by the parties.FPT/JT remain set as previously ordered. Signed by Magistrate Judge Ross A. Walters on 10/10/2007. (klw) (Entered: 10/10/2007)
119 PROPOSED SCHEDULING ORDER AND DISCOVERY PLAN Amended Joint Proposal on Scheduling Order. (Attachments: # 1 Exhibit Amended Scheduling Order)(Pappas, Matthew) (Entered: 10/10/2007)
118 CERTIFICATE. (Weinstein, Jill) (Entered: 10/02/2007)
117 ORDER denying 112 Motion for Sanctions; granting 113 Motion to Withdraw as Attorney. Attorney Jill Weinstein; Dorothy A OBrien and Erika E Pedersen terminated as to plaintiff James Thomas. Pedersen & Weinstein shall serve ruling and order on plaintiff Thomas. By not later than 10/26/2007, plaintiff Thomas shall file statement stating how he intends to proceed with prosecution of his claims. Clerk of Court shall show plaintiff Thomas on the docket as appearing pro se. Signed by Magistrate Judge Ross A. Walters on 10/2/2007. (nsr) (Entered: 10/02/2007)
116 RESPONSE to Motion re 112 MOTION for Sanctions filed by Pedersen & Weinstein LLP. Replies due by 9/18/2007. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Weinstein, Jill) (Entered: 09/06/2007)
115 CERTIFICATE. (Weinstein, Jill) (Entered: 09/05/2007)
114 TEXT ORDER: Counsel for plaintiff James Thomas has filed a motion to withdraw 113 . Service on the client is not shown. In compliance with LR 83.2.d.5, counsel should serve a copy of the motion on the client and file proof of service before the Court will rule on the motion. Entered by Magistrate Judge Ross A. Walters on 9/5/2007. (klw) (Entered: 09/05/2007)
113 MOTION to Withdraw as Attorney for James Thomas Motions referred to Ross A. Walters. by Pedersen & Weinstein LLP. Responses due by 9/21/2007 (Weinstein, Jill) (Entered: 09/04/2007)
112 MOTION for Sanctions against Plaintiff James Thomas and/or his counsel, or in the alternative to dismiss J Thomas from the pending litigation by Von Maur Inc. Motion referred to Ross A. Walters. Responses due by 9/6/2007 (Attachments: # 1 Affidavit−emails) [NOTE: Inadvertently filed in 4:06−cv−182−RP−RAW on 8/20/07](rmj) (Entered: 08/22/2007)
PUBLIC DOCKET ANNOTATION: Case was consolidated with 4−06−cv−182 for discovery. All motions should be filed in this case. All other pleadings should be filed in the appropriate case. (don, ) (Entered: 06/05/2007)
111 TEXT ORDER: ORDER granting 110 defendant Von Maur's Motion for Leave to Withdraw Affirmative Defense. Because Von Maur's answer was filed in 3:06−cv−00182 filed by the EEOC, prior to consolidation of these cases for pretrial purposes, Von Maur shall file an "Amended and Substituted Answer to Complaint" reflecting its withdrawal of Affirmative and Other Defense Number 9 in 3:06−cv−00182, not in 3:04−cv−00159. Signed by Magistrate Judge Ross A. Walters on 6/4/2007. (klw) (Entered: 06/04/2007)
110 MOTION Leave to Withdraw Affirmative Defense Motions referred to Ross A. Walters. by Von Maur Inc. Responses due by 5/25/2007 (Pappas, Matthew) (Entered:

Case: 3:04-cv-00159-RP-RAW As of: 03/13/2019 07:21 PM CDT 23 of 31

04/11/2007
04/10/2007 02/20/2007 01/26/2007 01/17/2007 01/11/2007
01/10/2007 01/10/2007
01/05/2007

05/08/2007)
109 ORDER granting 108 Amended Scheduling Order. Plaintiff and EEOC expert witness disclosures on non−damage issues are due September 2007. Defendant's expert witness disclosures on non−damages issues are due by 10/10/2007. Plaintiff's and EEOC's rebuttal expert witness disclosures on non−damages issues are due 11/9/2007. Discovery closes 12/12/2007. Dispositive motion deadline 1/9/2008; responses to dispositive motions due by 2/14/2008, replies to dispositive motions due by 3/4/2008. The final pretrial conference remains set for 9/12/2008 at 9:00 a.m. by telephone conference call placed by counsel for plaintiffs. The jury trial remains set 10/20/2008 at 9:00 a.m. before Chief Judge Pratt. The estimated length of trial is 10 days. Signed by Magistrate Judge Ross A. Walters on 4/11/2007. (nsr) (Entered: 04/11/2007)
108 Joint MOTION Joint Proposal on Scheduling Order Motions referred to Ross A. Walters. by Von Maur Inc. Responses due by 4/27/2007 (Attachments: # 1 Text of Proposed Order Exhibit A)(Pappas, Matthew) (Entered: 04/10/2007)
107 ORDER granting in part and denying in part 99 plaintiffs' and EEOC's Motion to Quash and 101 Motion for Protective Order. See ruling for particulars. Signed by Magistrate Judge Ross A. Walters on 2/20/2007. (klw) (Entered: 02/20/2007)
106 REPLY in Support of Plaintiffs' and EEOC's Motion to Quash and for Protective Order re 105 Response to Motion, filed by Roscoe Haymon, Robert Williams, Dominica Johnson, James Thomas, Walkesheia Ward, Darlena Mcbride, Tonya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Laronica Williams, Latoya Young. (Weinstein, Jill) (Entered: 01/26/2007)
105 RESPONSE to Motion re 99 MOTION to Quash Subpoena and for Protective Order, 101 MOTION for Protective Order filed by Von Maur Inc. Replies due by 1/29/2007. (Attachments: # 1 Exhibit CRST Subpoena# 2 Exhibit Haymon deposition excerpt)(Pappas, Matthew) (Entered: 01/17/2007)
104 TEXT ORDER: ORDER CONTINUING JURY TRIAL AND FINAL PRETRIAL CONFERENCE. In order to comply with the new deadlines set in the Amended Scheduling Order and Discovery Plan 102 , the jury trial before Chief Judge Pratt is continued to October 20, 2008, at 9:00 A.M. at the U.S. Courthouse in Davenport, Iowa. The estimated length of trial is 10 days. The final pretrial conference is continued to 9:00 A.M. on 9/12/2008 by telephone conference call placed by counsel for the plaintiff. The Court may be reached at (515) 284−6217 for the purposes of this conference. The parties shall comply with the requirements for final pretrial conference previously provided. The Court will determine later whether the cases will be consolidated for trial purposes. Signed by Magistrate Judge Ross A. Walters on 1/11/2007. (klw) (Entered: 01/11/2007)
103 ORDER: Ruling on unopposed motion for extenson of discovery deadline and order concerning scheduling order and consolidation. Motion granted 81 and the deadline is extended consistent with the separately adopted scheduling order 102 . Court will set aside time for a ten−day trial in accordance with trial ready date, a decision on consolidation for trial will be made later. Any motion to consolidate the cases for trial should be filed by 8/1/2007. Signed by Magistrate Judge Ross A. Walters on 1/10/2007. (nsr) (Entered: 01/10/2007)
102 ORDER granting 97 98 AMENDED SCHEDULING ORDERS. Add Parties due by 3/1/2007. Plaintiffs' and EEOC expert witness disclosures on non−damages issues are due by 3/30/2007. Defendant's Expert Witness disclosures on non−damages issues are due by 5/11/2007. Plaintiffs' and EEOC rebuttal expert witness disclosures on non−damages issues are due by 6/11/2007. Discovery closes 7/13/2007. Dispositive Motion Deadline 8/10/2007. Trial Ready deadline 3/24/2008. See order for other particulars. Signed by Magistrate Judge Ross A. Walters on 1/10/2007. (nsr) (Entered: 01/10/2007)
101 TEXT MOTION for Protective Order (see image under docket image 99 )Motions referred to Ross A. Walters. by Roscoe Haymon, Robert Williams, Dominica Johnson, James Thomas, Equal Employment Opportunity Commission, Walkesheia Ward, Darlena Mcbride, Tonya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Laronica Williams, Latoya Young. Responses due by 1/22/2007 (don, ) (Entered: 01/08/2007)

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01/05/2007 01/05/2007 12/06/2006 12/06/2006 12/06/2006 12/05/2006
12/05/2006 11/13/2006
11/13/2006 11/09/2006 10/13/2006 10/10/2006

100 BRIEF in Support of Plaintiffs' and EEOC's Motion to Quash and for Protective Order. 99 (Attachments: # 1 Exhibit A# 2 Exhibit B)(Weinstein, Jill) Modified on 1/8/2007 add link to motion(don, ). (Entered: 01/05/2007)
99 MOTION to Quash Subpoena and for Protective Order Motions referred to Ross A. Walters. by Roscoe Haymon, Robert Williams, Dominica Johnson, James Thomas, Equal Employment Opportunity Commission, Walkesheia Ward, Darlena Mcbride, Tonya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Laronica Williams, Latoya Young. Responses due by 1/22/2007 (Weinstein, Jill) (Entered: 01/05/2007)
98 PROPOSED SCHEDULING ORDER AND DISCOVERY PLAN. (Attachments: # 1 Text of Proposed Order)(Pappas, Matthew) (Entered: 12/06/2006)
97 PROPOSED SCHEDULING ORDER AND DISCOVERY PLAN Submitted by EEOC and Plaintiffs. (Attachments: # 1 Exhibit A)(Weinstein, Jill) (Entered: 12/06/2006)
96 TEXT ORDER: ORDER granting 95 motion to withdraw as counsel for plaintiff by Marlita Greve. Attorney Dorothy O'Brien has entered an appearance for the plaintiffs. The motion to withdraw 18 filed in 4:06−cv−182 should be stricken as the Court previously ordered that all filings would be made only in the lead case, 3:04−cv−159. Entered by Magistrate Judge Ross A. Walters on 12/6/2006.(klw) (Entered: 12/06/2006)
95 MOTION to Withdraw as Attorney Motions referred to Ross A. Walters. by Roscoe Haymon, Robert Williams, Dominica Johnson, James Thomas, Robert Donelson, Tanya Gardner, Machelle Guy, Roscoe Haymon, Damenica Johnson, Raquel Maiden, Darlena Mcbride, Charles Smith, James Thomas, Walkesheia Ward, Walkesheia Ward, Laronica Williams, Robert Williams, Latoya Young, Darlena Mcbride, Tonya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Laronica Williams, Latoya Young. Responses due by 12/22/2006 (Greve, Marlita) (Entered: 12/05/2006)
94 NOTICE of Appearance by Dorothy A OBrien on behalf of Roscoe Haymon, Robert Williams, Dominica Johnson, James Thomas, Walkesheia Ward, Darlena Mcbride, Tonya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Laronica Williams, and Latoya Young. (rmj) (Entered: 12/05/2006)
93 TEXT ORDER: The Court held a Fed. R. Civ. P. 16(b) conference with counsel on 11/9/2006. Ms. Weinstein, Ms. Pedersen, Mr. McBride, Mr. Pappas, and Ms. Hubbard appeared for their respective clients. As discussed, counsel shall confer and attempt to reach agreement on a scheduling order and discovery plan, including such items as the time for the EEOC to identify additional class members, expert disclosures, fact and expert discovery and dispositive motion dates. The parties shall also inform the Court of their positions with respect to the trial of these cases which have been consolidated for discovery purposes, and whether liability and damages discovery should be phased. The parties shall submit their joint and separate proposals, as the case may be, on or before December 6, 2006. Signed by Magistrate Judge Ross A. Walters on 11/13/2006. (nsr) (Entered: 11/13/2006)
92 ORDER granting in part 86 Motion to Compel. See order for particulars. Signed by Magistrate Judge Ross A. Walters on 11/13/2006. (nsr) (Entered: 11/13/2006)
91 TEXT Minute Entry for scheduling conference with counsel held before Magistrate Judge Ross A. Walters on 11/9/2006. Order to follow. (nsr) Modified on 11/11/2006 to add 'text' to the caption (jm). (Entered: 11/09/2006)
90 REPLY in Further Support of Renewed Motion to Compel re 89 Response to Motion, 86 MOTION to Compel filed by Roscoe Haymon, Robert Williams, Dominica Johnson, James Thomas, Walkesheia Ward, Darlena Mcbride, Tonya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Laronica Williams, Latoya Young. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Weinstein, Jill) (Entered: 10/13/2006)
89 RESPONSE to Motion re 86 MOTION to Compel filed by Von Maur Inc. Replies due by 10/20/2006. (Pappas, Matthew) (Entered: 10/10/2006)

Case: 3:04-cv-00159-RP-RAW As of: 03/13/2019 07:21 PM CDT 25 of 31

09/22/2006
09/22/2006 09/22/2006
08/08/2006 08/08/2006 08/07/2006 08/02/2006
07/31/2006 07/19/2006 07/19/2006
07/19/2006 07/17/2006 07/17/2006 06/05/2006 05/01/2006 04/24/2006 04/24/2006

88 DECLARATION of Jill Weinstein Pursuant to Local Rule 37.1 re 87 Brief/Other, 86 MOTION to Compel by Roscoe Haymon, Robert Williams, Dominica Johnson, James Thomas, Walkesheia Ward, Darlena Mcbride, Tonya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Laronica Williams, Latoya Young. (Weinstein, Jill) (Entered: 09/22/2006)
87 BRIEF in Support of Plaintiffs' Renewed Motion to Compel 86 . (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Weinstein, Jill) Modified on 9/25/2006 add link(don, ). (Entered: 09/22/2006)
86 MOTION to Compel Motions referred to Ross A. Walters. by Roscoe Haymon, Robert Williams, Dominica Johnson, James Thomas, Walkesheia Ward, Darlena Mcbride, Tonya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Laronica Williams, Latoya Young. Responses due by 10/10/2006 (Weinstein, Jill) (Entered: 09/22/2006)
85 Defendant's First Amended ANSWER to Complaint by Von Maur Inc.(Pappas, Matthew) (Entered: 08/08/2006)
84 Defendant's ANSWER to Intervenor Complaint by Von Maur Inc.(Pappas, Matthew) (Entered: 08/08/2006)
83 ORDER granting 81 Motion for Extension of Time of R16/Scheduling Order Deadlines. R. 16(b) set for 11/9/2006 at 9:00 AM. See order for particulars. Entered by Magistrate Judge Ross A. Walters on 8/7/2006. (klw) (Entered: 08/07/2006)
82 ORDER − Ruling on EEOC's Motion to Consolidate and Proposed Plaintiff−Intervenors' (PPIs') Motion to Intervene in Case No. 4:06−cv−182 (filed 7/10/2006 in 4:06−cv−182). Entered by Magistrate Judge Ross A. Walters on 8/2/2006. (This case is now lead case pursuant to Order). (klw) (Entered: 08/02/2006)
81 Unresisted MOTION for Extension of Time For Scheduling Order/R16 Deadlines of 12/31/06 by Equal Employment Opportunity Commission. Responses due by 8/17/2006 (McBride, Dennis) (Entered: 07/31/2006)
80 TEXT ORDER granting 77 Motion for Leave to Appear Pro Hac Vice . Attorney John O'Connor has been added to the docket. Entered by Marjorie Krahn, Clerk on 7/19/2006. (jm) (Entered: 07/19/2006)
79 First Intervenor COMPLAINT against Von Maur, Inc., filed by Robert Donelson, Tanya Gardner, Roscoe Haymon, Raquel Maiden, Darlena Mcbride, Charles Smith, James Thomas, Laronica Williams, Robert Williams, Latoya Young.(Weinstein, Jill) (Entered: 07/19/2006)
78 TEXT ORDER granting 76 Motion for Leave to Appear Pro Hac Vice . Attorney Elizabeth Huubard has been added to the docket. Entered by Marjorie Krahn, Clerk on 7/19/2006. (Attachments: # 1 attorney registration) (jm) (Entered: 07/19/2006)
77 MOTION for Leave to Appear Pro Hac Vice Receipt Number: 298392 Fee paid in the amount of $75. by Von Maur Inc. (Pappas, Matthew) (Entered: 07/17/2006)
76 MOTION for Leave to Appear Pro Hac Vice Receipt Number: 298380 Fee paid in the amount of $75. by Von Maur Inc. (Pappas, Matthew) (Entered: 07/17/2006)
75 TEXT ORDER: In view of the separate action filed by the EEOC, plaintiff's motion to amend scheduling order to extend the pleading deadline 69 is denied as moot. Entered by Magistrate Judge Ross A. Walters on 6/5/2006. (klw) (Entered: 06/05/2006)
74 RESPONSE to Motion re 69 MOTION for Extension of Time to Amend Complaint filed by Von Maur Inc. Replies due by 5/11/2006. (Pappas, Matthew) (Entered: 05/01/2006)
Set/Reset Deadlines: Responses due by 5/1/2006 to motion to amend scheduling order (don, ) (Entered: 04/25/2006)
73 TEXT ORDER: ORDER concerning 69 plaintiffs' Motion to Amend Scheduling Order to Extend Deadline to Amend Pleadings. This motion has been pending since 3/31/2006. No response to the motion has been filed. The Court extends the time to 5/1/2006 for defendant to file a response to the motion to amend scheduling order.

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04/21/2006 04/19/2006 04/12/2006 03/31/2006 03/31/2006 03/30/2006 03/30/2006 03/07/2006
03/06/2006 02/22/2006 02/22/2006 02/09/2006 02/08/2006

Entered by Magistrate Judge Ross A. Walters on 4/24/2006. (nsr) (Entered: 04/24/2006)
72 TEXT ORDER: Counsel has filed a motion to withdraw 71 . Substitute counsel has filed a concurrent appearance. The motion is granted. The appearances of Charles Miller and Diane Reinsch are terminated. Entered by Magistrate Judge Ross A. Walters on 4/21/2006. (klw) (Entered: 04/21/2006)
71 NOTICE of Appearance by Matthew P Pappas on behalf of Von Maur Inc (Pappas, Matthew) (Entered: 04/19/2006)
70 ORDER granting in part and denying in part 56 plaintiffs' Motion to Compel, denying 60 defendant's Motion for Protective Order. See ruling for particulars. Entered by Magistrate Judge Ross A. Walters on 4/12/2006. (klw) (Entered: 04/12/2006)
69 MOTION for Extension of Time to Amend Complaint by Roscoe Haymon, Robert Williams, Dominica Johnson, James Thomas, Walkesheia Ward, Darlena Mcbride, Tonya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Laronica Williams, Latoya Young. Responses due by 4/17/2006 (Weinstein, Jill) (Entered: 03/31/2006)
68 Minute Entry for proceedings held before Judge Ross A. Walters : Motion Hearing held on 3/30/2006 re 56 MOTION to Compel and 60 MOTION for Protective Order. (Court Reporter Linda Egbers.) (nsr) (Entered: 03/31/2006)
67 Minute Entry for proceedings held before Magistrate Judge Ross A. Walters : Motion Hearing held on 3/30/2006 re 56 plaintiffs' MOTION to Compel and60 defendant's MOTION for Protective Order. (Court Reporter Linda Egbers.) (klw) (Entered: 03/30/2006 (Entered: 03/30/2006)
66 Minute Entry for proceedings held before Magistrate Judge Ross A. Walters : Motion Hearing held on 3/30/2006 re 56 plaintiffs' MOTION to Compel and 60 defendant's MOTION for Protective Order. (Court Reporter Linda Egbers.) (klw) (Entered: 03/30/2006)
65 TEXT ORDER: ORDER setting hearing on 56 plaintiffs' motion to compel and 60 defendant's motion for protective order. These motions shall come on for hearing before the undersigned at the U.S. Courthouse in Rock Island, Illinois at 1:30 PM on Thursday, March 30, 2006. Counsel should check with chambers, (515) 284−6217, the day before hearing to ascertain the location as the Court may be moving to the Davenport courthouse during this time period. Entered by Magistrate Judge Ross A. Walters on 3/7/2006.(klw) (Entered: 03/07/2006)
64 REPLY To Plaintiff's Opposition to Defendant's Motion for Protective Order re 63 Response to Motion, filed by Von Maur Inc. (Attachments: # 1 Affidavit Affidavit of Gayle Haun# 2 Notice of Unpublished Opinion)(Reinsch, Diane) (Entered: 03/06/2006)
63 RESPONSE to Motion re 60 MOTION for Protective Order filed by Roscoe Haymon, Robert Williams, Dominica Johnson, James Thomas, Walkesheia Ward, Darlena Mcbride, Tonya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Laronica Williams, Latoya Young. Replies due by 3/6/2006. (Attachments: # 1 Exhibit A)(Weinstein, Jill) (Entered: 02/22/2006)
62 REPLY in Further Support of Motion to Compel re 61 Response to Motion filed by Roscoe Haymon, Robert Williams, Dominica Johnson, James Thomas, Walkesheia Ward, Darlena Mcbride, Tonya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Laronica Williams, Latoya Young. (Attachments: # 1 Exhibit A)(Weinstein, Jill) (Entered: 02/22/2006)
61 RESPONSE to Motion re 60 MOTION for Protective Order and Resistance to Plaintiff's Motion to Compel filed by Von Maur Inc. Replies due by 2/22/2006. (Reinsch, Diane) (Entered: 02/09/2006)
60 MOTION for Protective Order by Von Maur Inc. Responses due by 2/27/2006 (Attachments: # 1 Brief in support of motion (2) Declaration)(Reinsch, Diane) Modified on 2/9/2006 remove wording regarding resistance to motion to compel.(don, ). (Entered: 02/08/2006)

Case: 3:04-cv-00159-RP-RAW As of: 03/13/2019 07:21 PM CDT 27 of 31

02/03/2006 02/03/2006 02/03/2006
02/03/2006 01/26/2006 01/23/2006
01/13/2006 12/29/2005 11/23/2005 11/21/2005 10/12/2005 10/06/2005

Set/Reset Hearings: Final Pretrial Conference (Telephone) set for 9/28/2007 09:00 AM before Magistrate Judge Ross A. Walters. (don, ) (Entered: 02/06/2006)
Set Deadlines/Hearings: Dispositive Motion Deadline due by 3/30/2007. Jury Trial set for 10/15/2007 09:00 AM before Judge Robert W. Pratt. Per order #59 (don, ) (Entered: 02/06/2006)
59 TEXT ORDER: ORDER granting 58 joint motion to extend discovery deadlines and to continue the trial date. Non−expert discovery shall be completed by 9/15/2006. Plaintiffs' shall disclose their expert witnesses by 10/30/2006. Defendants' expert witness disclosures are due by 1/16/2007 (1/15/2007 falls on a legal holiday). Plaintiffs' rebuttal witness disclosures are due by 2/15/2007. The dispositive motion deadline is extended to 3/30/2007. Jury trial before Judge Pratt is continued to 10/15/2007 at 9:00 AM at the U.S. Courthouse in Davenport, Iowa. Estimated length of trial is ten days. Final pretrial conference is continued to 9:00 AM on 9/28/2007 by telephone conference call placed by counsel for the plaintiff. The Court may be reached at (515) 284−6217 for purposes of the conference. The parties shall comply with the requirements for final pretrial previously ordered. Entered by Magistrate Judge Ross A. Walters on 2/3/2006. (klw) (Entered: 02/03/2006)
58 MOTION for Extension of Time For Scheduling Order/R16 Deadlines of Discovery of Non−expert witness; Plaintiffs' disclosure of expert witness; Defendant expert witness disclosures;Rebuttal Witness disclosures;dispositive motion deadlin and trial ready date by Von Maur Inc. Responses due by 2/21/2006 (Reinsch, Diane) (Entered: 02/03/2006)
57 TEXT ORDER: ORDER granting 54 plaintiffs' Motion to Amend Scheduling Order to Extend Deadline to Amend Pleadings. The deadline for amending pleadings is extended to 4/4/2006. Discovery may proceed as to all issues as requested by defendant. Entered by Magistrate Judge Ross A. Walters on 1/26/2006. (klw) (Entered: 01/26/2006)
56 MOTION to Compel by Roscoe Haymon, Robert Williams, Dominica Johnson, James Thomas, Walkesheia Ward, Darlena Mcbride, Tonya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Laronica Williams, Latoya Young. Responses due by 2/9/2006 (Attachments: # 1 Brief in Support of Motion to Compel# 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Declaration of Jill Weinstein Pursuant to LR 37.1)(Weinstein, Jill) (Entered: 01/23/2006)
55 REPLY re 54 MOTION for Extension of Time to Amend Pleadings filed by Von Maur Inc. (Miller, Charles) (Entered: 01/13/2006)
54 MOTION for Extension of Time to Amend Pleadings by Roscoe Haymon, Robert Williams, Dominica Johnson, James Thomas, Walkesheia Ward, Darlena Mcbride, Tonya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Laronica Williams, Latoya Young. Responses due by 1/17/2006 (Weinstein, Jill) (Entered: 12/29/2005)
53 ORDER denying in part and granting in part 44 plaintiffs' Motion to Quash. See order for particulars. Entered by Magistrate Judge Ross A. Walters on 11/23/2005. (klw) (Entered: 11/23/2005)
52 STIPULATION of Dismissal of Count IV of Plaintiffs' Fourth Amended Complaint by Roscoe Haymon, Robert Williams, Dominica Johnson, James Thomas, Walkesheia Ward, Darlena Mcbride, Tonya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Laronica Williams, Latoya Young. (Weinstein, Jill) (Entered: 11/21/2005)
51 REPLY in Further Support of re 44 MOTION to Quash Subpoenas and for Protective Order filed by Roscoe Haymon, Robert Williams, Dominica Johnson, James Thomas, Walkesheia Ward, Darlena Mcbride, Tonya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Laronica Williams, Latoya Young. (Weinstein, Jill) (Entered: 10/12/2005)
50 AMENDED ANSWER to Complaint 42 Amended Complaint, by Charles E Miller, Diane M Reinsch on behalf of Von Maur Inc. and Jury Demand (don, ) (Entered: 10/06/2005)

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10/05/2005
10/05/2005 10/05/2005 10/05/2005 09/30/2005 09/14/2005 09/13/2005 09/07/2005 09/06/2005 09/06/2005 08/26/2005 08/26/2005
08/15/2005

49 TEXT ORDER: ORDER granting 48 plaintiffs' motion to amend scheduling order to extend deadline to amend pleadings to add Title VII claims. Defense counsel does not object to the request. The deadline for amending pleadings is extended to 1/4/2006. Counsel are reminded that a motion for leave to amend is still required in spite of the extension of the deadline. LR 15.1. Entered by Magistrate Judge Ross A. Walters on 10/5/2005. (nsr) (Entered: 10/05/2005)
48 Unresisted MOTION for Extension of Time For Scheduling Order/R16 Deadlines of amend pleadings by Roscoe Haymon, Robert Williams, Dominica Johnson, James Thomas, Walkesheia Ward, Darlena Mcbride, Tonya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Laronica Williams, Latoya Young. Responses due by 10/24/2005 (Weinstein, Jill) (Entered: 10/05/2005)
47 TEXT ORDER: ORDER granting 46 defendant's unresisted "Motion for Leave to File a First Amended Answer to Plaintiffs' Fourth Amended Complaint." The Clerk of Court shall detach and separately file defendant's "First Amended Answer to Fourth Amended Complaint and Jury Demand." Entered by Magistrate Judge Ross A. Walters on 10/5/2005. (klw) (Entered: 10/05/2005)
46 MOTION for Leave to File a First Amended Answer to Plaintiffs' Fourth Amended Complaint by Von Maur Inc. Responses due by 10/24/2005 (Attachments: # 1 First Amended Answer to Fourth Amended Complaint)(Reinsch, Diane) (Entered: 10/05/2005)
45 RESPONSE to Motion re 44 MOTION to Quash Subpoenas and for Protective Order (Brief in Support of Resistance to Plaintiffs' Motion to Quash Subpoenas filed by Von Maur Inc. Replies due by 10/13/2005. (Reinsch, Diane) (Entered: 09/30/2005)
44 MOTION to Quash Subpoenas and for Protective Order by Roscoe Haymon, Robert Williams, Dominica Johnson, James Thomas, Walkesheia Ward, Darlena Mcbride, Tonya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Laronica Williams, Latoya Young. Responses due by 10/3/2005 (Attachments: # 1 Exhibit A)(Weinstein, Jill) (Entered: 09/14/2005)
43 ANSWER to Amended Complaint (Fourth Amended Complaint) by Von Maur Inc.(Reinsch, Diane) (Entered: 09/13/2005)
42 4th AMENDED COMPLAINT against Von Maur Inc. , filed by Roscoe Haymon, Robert Williams, Dominica Johnson, James Thomas, Walkesheia Ward, Darlena Mcbride, Tonya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Laronica Williams, Latoya Young. (don, ) (Entered: 09/07/2005)
41 ORDER finding as moot 36 Motion for Summary Judgment, granting 38 Motion to file Fourth Amended Complaint. Clerk shall detach and separately file Fourth Amended Complaint. See order for particulars. Entered by Magistrate Judge Ross A. Walters on 9/6/2005. (nsr) (Entered: 09/06/2005)
40 RESPONSE to Motion re 38 MOTION to Amend/Correct 32 Amended Complaint, and for Denial of Defendant's Motion for Summary Judgment as Moot filed by Von Maur Inc. Replies due by 9/16/2005. (Reinsch, Diane) (Entered: 09/06/2005)
39 Errata Brief in Support of re 38 Motion to Amend/Correct, filed by James Thomas,, Walkesheia Ward,, Darlena Mcbride,, Tonya Gardner,, Robert Donelson,, Raquel Maiden,, Charles Smith,, Laronica Williams,, Latoya Young,, Machelle Guy,, Roscoe Haymon,, Robert Williams,, Dominica Johnson,. (Weinstein, Jill) (Entered: 08/26/2005)
38 MOTION to Amend/Correct 32 Amended Complaint, and for Denial of Defendant's Motion for Summary Judgment as Moot by Roscoe Haymon, Robert Williams, Dominica Johnson, James Thomas, Walkesheia Ward, Darlena Mcbride, Tonya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Laronica Williams, Latoya Young. Responses due by 9/12/2005 (Attachments: # 1 Fourth Amended Complaint)(Weinstein, Jill) (Entered: 08/26/2005)
37 MOTION for Summary Judgment Against Plaintiffs Dominica Johnson and LaToya Young by Von Maur Inc. Responses due by 9/8/2005 (Attachments: # 1 Memorandum in Support of Motion for Summary Judgment Against Plaintiffs Dominica Johnson and LaToya Young# 2 Statement of Undisputed Facts# 3 Appendix (corrected from

Case: 3:04-cv-00159-RP-RAW As of: 03/13/2019 07:21 PM CDT 29 of 31

08/15/2005 08/08/2005 08/04/2005 08/04/2005 08/03/2005 08/02/2005 08/02/2005 07/13/2005
07/11/2005
07/08/2005 07/07/2005 07/06/2005

previous filing))(Reinsch, Diane) Modified on 8/17/2005 Term motion, 2nd motion should have been filed as an errata to docket entry #36 (don, ). Modified on 3/27/2006 to unterminate motion, and term in small utility for CJRA. (ld). (Entered: 08/15/2005)
36 MOTION for Summary Judgment Against Plaintiffs Dominica Johnson and LaToya Young by Von Maur Inc. Responses due by 9/8/2005 (Attachments: # 1 Memorandum of Law in Support of Motion for Summary Judgment Against Plaintiffs Dominica Johnson and LaToya Young# 2 Statement of Undisputed Facts# 3 Appendix)(Reinsch, Diane) (Entered: 08/15/2005)
35 ANSWER to Amended Complaint (Third Amended) and Jury Demand by Von Maur Inc.(Reinsch, Diane) (Entered: 08/08/2005)
34 ORDER granting 33 Motion for Protective Order. Entered by Magistrate Judge Ross A. Walters on 8/4/2005. (klw) (Entered: 08/04/2005)
33 MOTION for Protective Order by Von Maur Inc. Responses due by 8/22/2005 (Attachments: # 1 Exhibit A − Stipulated Protective Order)(Reinsch, Diane) (Entered: 08/04/2005)
32 3rd AMENDED COMPLAINT against Von Maur Inc. , filed by James Thomas added, Roscoe Haymon, Robert Williams, Dominica Johnson, Walkesheia Ward, Darlena Mcbride, Tonya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Laronica Williams, Latoya Young. (don, ) (Entered: 08/03/2005)
31 TEXT ORDER: ORDER granting 30 plaintiffs' unopposed motion for leave to file third amended complaint. The Clerk of Court shall detach and file the Third Amended Complaint and should add James Thomas to the docket as an additional party plaintiff, represented by attorney Weinstein. Entered by Magistrate Judge Ross A. Walters on 8/2/2005. (klw) (Entered: 08/02/2005)
30 Unresisted MOTION to Amend/Correct Second Amended Complaint by Roscoe Haymon, Robert Williams, Dominica Johnson, Walkesheia Ward, Darlena Mcbride, Tonya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Laronica Williams, Latoya Young. Responses due by 8/19/2005 (Attachments: # 1)(Weinstein, Jill) (Entered: 08/02/2005)
29 ORDER SETTING TRIAL AND FINAL PRETRIAL CONFERENCE: Jury Trial is set for 12/11/2006 at 8:30 AM in Davenport 2nd Floor Courtroom before Judge Robert W. Pratt. Counsel shall meet with Judge Pratt in chambers at 8:00 a.m. on 12/11/2006. Estimated length of trial is 5 to 10 days. Final Pretrial Conference will be held by telephone conference call on 11/9/2006 at 9:00 AM before Magistrate Judge Ross A. Walters, said call to be placed by counsel for plaintiffs. Parties shall comply with the final pretrial requirements set forth in order. Scheduling and planning conference set for 7/20/2005 at 2:00 p.m. is canceled. Entered by Magistrate Judge Ross A. Walters on 7/13/2005. (nsr) (Entered: 07/13/2005)
28 ORDER granting 27 PROPOSED SCHEDULING ORDER AND DISCOVERY PLAN: Add Parties deadline 10/6/2005. Amended Pleadings due by 10/6/2005. Plaintiffs' Expert Witness Disclosures due by 3/20/2006. Defendant's Expert Witness disclosures due by 5/22/2006. Plaintiffs' Rebuttal Witness Disclosures due by 6/22/2006. Discovery: The parties will complete non−expert discovery by 2/6/2006, but the deadlines set forth in paragraphs 3, 4, and 5 of Scheduling Order and Discovery Plan will govern expert disclosure and discovery. Dispositive Motion Deadline 7/10/2006. Trial Ready date 11/6/2006. A jury demand has been filed and the estimated length of trial is 5 to 10 days. Parties have requested scheduling and planning conference. The conference will be held by telephone conference call on 7/20/2005 at 2:00 p.m. with telephone call placed by counsel for plaintiffs. Entered by Magistrate Judge Ross A. Walters on 7/11/2005. (nsr) (Entered: 07/11/2005)
27 PROPOSED SCHEDULING ORDER AND DISCOVERY PLAN. (Weinstein, Jill) (Entered: 07/08/2005)
26 REPORT of Rule 26(f) Planning Meeting. (Weinstein, Jill) Modified on 7/8/2005 (don, ) Refile as a proposed scheduling order. (Entered: 07/07/2005)
25 ANSWER to Amended Complaint (Second Amended Complaint) by Von Maur Inc.(Reinsch, Diane) (Entered: 07/06/2005)

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06/29/2005 06/17/2005
06/15/2005
06/15/2005
06/14/2005 06/13/2005 03/07/2005 03/03/2005 02/14/2005 02/01/2005 02/01/2005 01/27/2005 01/25/2005 01/25/2005
01/21/2005 01/21/2005 01/21/2005 01/20/2005

24 ORDER GIVING NOTICE OF DISMISSAL Rule 16 Dismissal deadline set for 7/13/2005. . Entered by Marjorie Krahn, Clerk on 6/29/2005. (Attachments: # 1 Local Rule 41.1# 2 R16 Worksheet) (ld, ) (Entered: 06/29/2005)
23 SECOND AMENDED COMPLAINT against Von Maur Inc. , filed by Roscoe Haymon, Robert Williams, Dominica Johnson, Walkesheia Ward, Darlena Mcbride, Tonya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Laronica Williams, Latoya Young. (sk, ) (Entered: 06/17/2005)
22 TEXT ORDER: ORDER granting 21 plaintiffs' unresisted Motion for Leave to File Second Amended Complaint. The Clerk of Court shall file the Second Amended Complaint attached to the motion. Entered by Magistrate Judge Ross A. Walters on 6/15/2005. Entered by Magistrate Judge Ross A. Walters on 6/15/2005. (nsr) (Entered: 06/15/2005)
21 Unresisted MOTION to Amend/Correct Amended Complaint by Walkesheia Ward, Darlena Mcbride, Tonya Gardner, Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Laronica Williams, Latoya Young. Responses due by 7/5/2005 (Attachments: # 1 Second Amended Complaint)(Weinstein, Jill) (Entered: 06/15/2005)
20 AMENDED COMPLAINT against Von Maur Inc. , filed by Robert Donelson, Machelle Guy, Raquel Maiden, Charles Smith, Laronica Williams, Latoya Young, Walkesheia Ward, Darlena Mcbride, Tonya Gardner. (sk, ) (Entered: 06/14/2005)
19 ORDER granting 16 plaintiffs' Motion for Leave to File Amended Complaint. See order. Entered by Magistrate Judge Ross A. Walters on 6/13/2005. (klw) (Entered: 06/13/2005)
18 REPLY re 16 MOTION for Leave to File Amended Complaint, 17 Response to Motion filed by Walkesheia Ward, Darlena Mcbride, Tonya Gardner. (Weinstein, Jill) (Entered: 03/07/2005)
17 RESPONSE to Motion re 16 MOTION for Leave to File Amended Complaint Resistance to Motion to Amend filed by Von Maur Inc. Replies due by 3/15/2005. (Reinsch, Diane) (Entered: 03/03/2005)
16 MOTION for Leave to File Amended Complaint by Walkesheia Ward, Darlena Mcbride, Tonya Gardner. Responses due by 3/3/2005 (Attachments: # 1)(Weinstein, Jill) (Entered: 02/14/2005)
15 ORDER re entry 14 −− written order inadvertently not attached to Order 14 .Entered by Magistrate Judge Ross A. Walters on 2/1/2005. (klw) (Entered: 02/01/2005)
14 ORDER granting 7 plaintiffs' Motion to Quash. See order for particulars. Entered by Magistrate Judge Ross A. Walters on 2/1/2005. (klw) (Entered: 02/01/2005)
13 REPLY re 10 Response to Motion, filed by Walkesheia Ward, Darlena Mcbride, Tonya Gardner. (Weinstein, Jill) (Entered: 01/27/2005)
11 NOTICE of Appearance by Charles E Miller on behalf of Von Maur Inc (Miller, Charles) (Entered: 01/25/2005)
10 RESPONSE to Motion re 7 MOTION to Quash Non−Party Subpoenas Resistance to Plaintiff's Motion to Quash Subpoenas filed by Von Maur Inc. Replies due by 2/4/2005. (Attachments: # 1 (Sealed) (Reinsch, Diane) Modified on 1/25/2005 (kb) Sealed Attachments: #1 per court order of 1/25/05. (Entered: 01/25/2005)
9 CERTIFICATE of Counsel Certificate of Interest by Diane M Reinsch on behalf of Von Maur Inc (Reinsch, Diane) (Entered: 01/21/2005)
8 ANSWER to Complaint with Jury Demand by Von Maur Inc.(Reinsch, Diane) (Entered: 01/21/2005)
Judge Ross A. Walters added. Judge Thomas J. Shields no longer assigned to case. (sk, ) (Entered: 01/21/2005)
7 MOTION to Quash Non−Party Subpoenas by Walkesheia Ward, Darlena Mcbride, Tonya Gardner. Responses due by 2/7/2005 (Greve, Marlita) (Entered: 01/20/2005)

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01/20/2005 01/12/2005 01/07/2005
01/04/2005 01/04/2005 12/30/2004 12/30/2004 12/29/2004

6 DECLARATION of Pursuant to LR 37.1 by Walkesheia Ward, Darlena Mcbride, Tonya Gardner. (Greve, Marlita) (Entered: 01/20/2005)
5 Filing fee: $ 150., receipt number 69885 for Pro hac admissions (sk, ) (Entered: 01/12/2005)
4 ORDER granting 2 Motion for Leave to Appear Pro Hac Vice for Erika Pedersen, granting 3 Motion for Leave to Appear Pro Hac Vice for Jill Weinstein . Entered by James R Rosenbaum Clerk on 1/7/2004. (sk, ) (Entered: 01/07/2005)
3 MOTION for Leave to Appear Pro Hac Vice by Walkesheia Ward, Darlena Mcbride, Tonya Gardner. (Greve, Marlita) (Entered: 01/04/2005)
2 MOTION for Leave to Appear Pro Hac Vice by Walkesheia Ward, Darlena Mcbride, Tonya Gardner. (Greve, Marlita) (Entered: 01/04/2005)
Filing fee: $ 150.00, receipt number 71024 for New Case by Walkesheia Ward, Darlena Mcbride, Tonya Gardner, Marlita Greve (fm, ) (Entered: 12/30/2004)
Judge Robert W. Pratt and Thomas J. Shields added. (fm, ) (Entered: 12/30/2004)
1 COMPLAINT and Jury Demand against Von Maur Inc, filed by Marlita Greve, Walkesheia Ward, Darlena Mcbride, Tonya Gardner, Von Maur Inc. Rule 16 Notice of Dismissal set for 4/28/2005. Notice of Dismissal for lack of Service deadline set for 4/28/2005. (Attachments: # 1 Civil Cover Sheet # 2 Appearance)(Greve, Marlita) (Entered: 12/29/2004)

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA
DAVENPORT DIVISION

WALKESHEIA WARD, DARLENA MCBRIDE, )

and TONYA GARDNER,

)

)

Plaintiffs,

)

)

v.

)

)

VON MAUR, INC.,

)

)

Defendant.

)

Judge Jury Trial Demanded

COMPLAINT

Plaintiffs, Walkesheia Ward, Darlena McBride, and Tonya Gardner (collectively

“Plaintiffs”), by their attorneys Pedersen & Weinstein LLP, allege for their Complaint against

Defendant Von Maur, Inc. (“Von Maur” or “Defendant”) as follows:

JURISDICTION AND VENUE

1. Jurisdiction is based on 28 U.S.C. §§ 1331 and 1343, and principles of pendent

and supplemental jurisdiction

2. Venue is proper in the Southern District of Iowa pursuant to 28 U.S.C. § 1391(a).

PARTIES

3. Walkesheia Ward (“Ward”), who is African American, is an adult individual who,

at all times relevant to this Complaint, has been a resident of the State of Iowa. Ward applied for

a position with Defendant in May 2003, but was denied employment on the basis of her race.

4. Darlena McBride (“McBride”), who is African American, is an adult individual

who, at all times relevant to this Complaint, has been a resident of the State of Iowa. McBride

applied for a position with Defendant in May or June 2003, but was denied employment on the basis of her race.
5. Tonya Gardner (“Gardner”), who is African American, is an adult individual who, at all times relevant to this Complaint, has been a resident of the State of Iowa. Gardner applied for a position with Defendant in May 2003, but was denied employment on the basis of her race.
6. Von Maur is a retail department store with twenty-two stores in Illinois, Indiana, Iowa, Kentucky, Michigan, Minnesota, Nebraska and Kansas. Additionally, Von Maur has several warehouses/distribution centers that support the retail stores. One such warehouse is located in Davenport, Iowa. At all times relevant to this Complaint, Defendant employed more than fifteen (15) employees and was engaged in an industry affecting commerce.
FACTUAL ALLEGATIONS Von Maur Systematically Excludes African American Applicants From Employment
7. Notwithstanding the African American population in Davenport and Scott County, Iowa, Von Maur employs very few African Americans in its retail store and warehouse. Upon information and belief, and based on Census Bureau data for Davenport and Scott County, in a race neutral environment, Von Maur would have employed two to three times the number of African Americans actually employed during the relevant time period.
8. The makeup of Von Maur’s employee population is skewed by race because of its intentionally discriminatory hiring practices, which include, but are not limited to the following:
a. failing to interview qualified African Americans for available positions; b. requiring African Americans to submit multiple applications before granting them
interviews; c. “losing” or “misplacing” applications of African Americans;
2

d. discouraging African Americans from applying by claiming there are no available positions;
e. subjecting African Americans to stricter scrutiny during interviews; f. exaggerating the job requirements to make it appear that African American
applicants are not qualified; and g. denying African Americans employment based on pretextual claims of “poor
credit history.” Von Maur Engaged In A Pattern And Practice Of Race Discrimination
9. Von Maur has and continues to engage in a pattern and practice of race discrimination. As further evidence of Von Maur’s discriminatory animus, upon information and belief, the few African Americans who have been hired by Von Maur have been subject to race discrimination and retaliation. For example, one African American woman was terminated from Von Maur’s warehouse shortly after she complained that her supervisor made racist comments to her. Further, it is not uncommon for African Americans hired by Von Maur to be terminated within a short period of time for pretexual reasons. For example, the Davenport Civil Rights Commission recently ordered Von Maur to compensate a former African American employee who worked in Von Maur’s retail store after finding her termination was a pretext for discrimination.
10. Consistent with the discriminatory hiring practices described above, each Plaintiff applied for and was denied a position with Von Maur based on race. Walkesheia Ward
11. Ward applied for a full time position with Von Maur on or about May 29, 2003. Ward learned that Von Maur was hiring from an advertisement in the local paper. At the time of
3

her application, Ward was a pursuing a degree at Scott Community College and had several years of work experience.
12. Von Maur Human Resource Manager, Lisa Harthoorn (“Harthoorn”), interviewed Ward at 10:00 a.m. on or around May 30, 2003. Von Maur provides interviewers such as Harthoorn with a list of questions called the Warehouse First Interview Questions. The list contains fifteen questions that are purportedly tailored to various positions. Upon information and belief, during Ward’s interview, she was only asked approximately five questions from this list. Harthoorn did not ask questions that would have elicited Ward’s strengths and qualifications. For example, Harthoorn failed to ask Ward “what are three qualities you feel you could bring to Von Maur,” and “tell me about your most recent group effort. What was your role in reaching the goal?” Instead, Harthoorn asked whether Ward would be available to work overtime and whether her class schedule would interfere with the required work hours. Ward responded that she was interested in working overtime and that her school schedule would not interfere with the required work hours.
13. Notwithstanding Ward’s qualifications, expressed interest in the position and availability, Harthoorn subjected Ward to undue scrutiny during the interview. To Ward, it appeared that Harthoorn had made up her mind about Ward before she asked a single question. Harthoorn continued to press Ward about her hours of availability even after Ward confirmed that her classes would not interfere with work.
14. At no time during the interview did Harthoorn provide any details to Ward about the available job. At the end of the interview, Harthoorn told Ward that there were no more positions available. When Ward questioned Harthoorn why she was interviewed if there were no positions available, Harthoorn told her Von Maur conducted random interviews on occasion.
4

15. Later on May 30, 2004, Ward’s Caucasian friend, Kristy Renkosik (“Renkosik”), also had an interview with Von Maur for the same position. Like Ward, Renkosik applied at Von Maur on May 29, 2003, in response to an advertisement in the local paper. Renkosik was also interviewed by Harthoorn, but her interview experience was very different than Ward’s.
16. Unlike Ward, upon information and belief, Harthoorn asked Renkosik approximately ten questions from the Warehouse First Interview Question, including “what are three qualities that you feel you could bring to Von Maur,” (Renkosik apparently only answered with one quality) and “tell me about your most recent group effort. What was your role in reaching the goal?” Also unlike Ward, Renkosik was given a second interview with manager Cathy Rockwell. Renkosik was not asked about her availability for overtime, and unlike Ward, Renkosik was given a tour of the warehouse and was told that Von Maur was an excellent place to work. Von Maur did not tell Renkosik there were no positions available; instead, Von Maur offered Renkosik a position, notwithstanding the fact that only hours earlier, Harthoorn had told Ward there were no more positions available.
17. Ward subsequently received a letter from Von Maur that provided a different explanation for the reason she was not hired. The letter simply stated words to the effect of, “you were given consideration for a position; however, at this time we are pursuing other candidates.” Von Maur never provided a legitimate, nondiscriminatory reason for not hiring Ward.
18. After rejecting Ward and hiring Renkosik, Von Maur continued to pursue other candidates. Von Maur interviewed and hired several equally or less qualified white and nonminority applicants for the position Ward was told was no longer available.
5

Tonya Gardner 19. Gardner applied at Von Maur in or around May of 2003. Like Ward, Gardner
applied in response to an advertisement in the local newspaper. After Gardner filled out her application, she was told by a Von Maur representative that she would be contacted by someone from Von Maur within a week.
20. However, when Gardner heard nothing from Von Maur, she went back to check on the status of her application. At that time, Gardner was told that Von Maur “lost” her application and was questioned whether she was sure she had applied. Gardner watched two women shuffle through papers, but they never found her application. Gardner was required to fill out a second application before she was interviewed.
21. Gardner was qualified for the position, and during her interview the Von Maur representative commented to Gardner that her past warehouse experience would be helpful for the job. Gardner felt that the interview went well, but shortly thereafter, she received a generic rejection letter. Von Maur never provided a legitimate non-discriminatory reason for failing to hire Gardner.
22. After Gardner was rejected, she continued to see advertisements that Von Maur was hiring for the same position. Von Maur continued to interview and hire equally or less qualified white and non-minority applicants. Darlena McBride
23. McBride also applied at Von Maur in or around May of 2003. McBride filled out an application and, like Gardner, was told she would hear from Von Maur within a week. However, McBride never heard from Von Maur, so she went back to Von Maur to check on the
6

status of her application. Also like Gardner, McBride was told that her application had been “lost.” McBride was required to fill out a second application before she was interviewed.
24. McBride felt the interview went well and was confident she would be offered a position, especially because the interviewer told her she was applying at a good time because Von Maur had so many positions available. Moreover, the interviewer told McBride Von Maur would call her to let her know where she would be placed. However, on or about June 12, 2003, McBride received a generic rejection letter. Von Maur never provided a legitimate nondiscriminatory reason for failing to hire McBride.
25. After McBride was rejected, Von Maur continued to interview and hire equally or less qualified white and non-minority applicants for the same position for which she applied. The Company Failed to Exercise Reasonable Care To Prevent and Correct Unlawful Conduct
26. Von Maur’s failure to hire Ward, Gardner, McBride and countless other African American applicants has resulted in a disproportionately low percentage of African American employees at Von Maur.
27. Defendant’s management directed, encouraged, and participated in the abovedescribed unlawful conduct. Further, Defendant failed to exercise reasonable care to prevent and correct promptly any race discrimination.
28. Plaintiffs did not unreasonably fail to take advantage of any preventive or corrective opportunities provided by Defendant or to avoid harm otherwise.
29. The discrimination described above was consistent with Defendant’s standard operating procedure.
30. Defendant acted with malice or with reckless indifference to the federally protected rights of Plaintiffs.
7

Ward Timely Filed Charges of Discrimination 31. Ward timely filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) and Davenport Civil Rights Commission in August of 2003. Ward requested a Notice of Right to Sue on December 27, 2004. Plaintiffs Suffered Damages
32. As a direct result of the unlawful conduct Plaintiffs experienced, they have suffered extreme emotional distress.
33. Plaintiffs have lost wages, compensation and benefits as a result of Defendant’s unlawful conduct.
34. Plaintiffs’ careers and reputations have been irreparably damaged as a result of Defendant’s unlawful conduct.
35. Plaintiffs suffered loss of enjoyment of life, inconvenience and other nonpecuniary losses as a direct result of Defendant’s unlawful conduct, as well as incurring attorneys’ fees and costs. Punitive Damages
36. Defendant acted and/or failed to act with malice or willfulness or reckless indifference to Plaintiffs’ rights. The conduct alleged herein was willful and wanton and justifies an award of punitive damages.
COUNT I RACE DISCRIMINATION IN VIOLATION OF TITLE VII
(Ward v. Von Maur) 37. Ward realleges paragraphs 1 through 36 and incorporates them by reference as paragraphs 1 through 36 of Count I of this Complaint.
8

38. Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et al., as amended by the Civil Rights Act of 1991 (“Title VII”), makes it unlawful to discriminate against any individual in the terms, conditions, or privileges of employment, on the basis of race.
39. By the conduct as alleged herein, Defendant subjected Ward to racial discrimination in violation of Title VII.
COUNT II RACE DISCRIMINATION IN VIOLATION OF SECTION 1981
(All Plaintiffs v. Von Maur) 40. Plaintiffs reallege paragraphs 1 through 39 and incorporates them by reference as paragraphs 1 through 39 of Count II of this Complaint. 41. 42 U.S.C. §1981, as amended by the Civil Rights Act of 1991, (“Section 1981”), prohibits discrimination based on race in the performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. 42. By the conduct as alleged herein, Defendants subjected Plaintiffs to race discrimination in violation of Section 1981.
COUNT III RACE DISCRIMINATION IN VIOLATION OF THE IOWA CIVIL RIGHTS ACT
(Ward v. Von Maur) 43. Ward realleges paragraphs 1 through 42 and incorporates them by reference as paragraphs 1 through 42 of Count III of this Complaint. 44. The Iowa Civil Right Act, Iowa Code §216.1 et seq., makes it unlawful to refuse to hire, accept, register, classify, or refer for employment, to discharge any employee, or to
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otherwise discriminate in employment against any applicant for employment or any employee because of the race of such applicant or employee
45. By the conduct as alleged herein, Defendant subjected Ward to race discrimination in violation of the Iowa Civil Rights Act.
COUNT IV INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
IN VIOLATION OF IOWA COMMON LAW (All Plaintiffs v. Von Maur)
46. Plaintiffs reallege paragraphs 1 through 45 and incorporate them by reference as paragraphs 1 through 45 of Count IV of this Complaint.
47. Iowa law recognizes a cause of action for intentional infliction of emotional distress, which makes unlawful certain extreme and outrageous conduct that results in severe emotional distress.
48. Defendant intended to inflict severe emotional distress or had actual knowledge that severe emotional distress was certain to occur by engaging in the conduct described herein, in violation of Iowa law.
49. Through its regular decision-making channels, and by persons authorized to act on behalf of Defendant, Defendant directed, encouraged and participated in the wrongful conduct alleged herein.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully requests that this Court find in their favor and against the Defendant as follows: a. Declare that the acts and conduct of Defendant violate Title VII of the Civil Rights Act of 1964 and 1991, Section 1981, and the Iowa Civil Rights Act;
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b. Declare that the acts and conduct of Defendant violate Iowa common law; c. Award Plaintiffs the value of all compensation and benefits lost as a result of Defendant’s unlawful conduct; d. Award Plaintiffs the value of all compensation and benefits they will lose in the future as a result of Defendant’s unlawful conduct under Title VII (Ward), Section 1981, Iowa Civil Rights Act (Ward), and Iowa common law; e. In the alternative to paragraph (d), reinstate Plaintiffs with appropriate promotions and seniority and otherwise make Plaintiffs whole; f. Award Plaintiffs compensatory damages under Title VII (Ward), Section 1981, Iowa Civil Rights Act (Ward), and Iowa common law; g. Award Plaintiffs punitive damages under Title VII (Ward), Section 1981, Iowa Civil Rights Act (Ward), and Iowa common law; i. Award Plaintiffs prejudgment interest; j. Award Plaintiffs reasonable attorneys’ fees, costs and disbursements; and k. Award Plaintiffs such other relief as this Court deems just and proper.
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DEMAND FOR TRIAL BY JURY Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs demand a trial by jury on all questions of fact raised by the Complaint.

Dated: December ____, 2004

Respectfully submitted,
/s/ Marlita A. Greve Attorney for Plaintiff O’BRIEN & GREVE, P.L.C. 2322 East Kimberly Road Davenport, IA 52807 Telephone: (563) 355-6060 FAX: (563) 355-6666 E-Mail: mag@emprights.com

Subject of Motion for Admission Pro Hac Vice Erika Pedersen Jill Weinstein Pedersen & Weinstein LLP 309 W. Washington Suite 1200 Chicago, IL 60606 (312) 855-1200 (312) 855-1207 (facsimile)

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CERTIFICATE OF SERVICE The undersigned hereby certifies that a true copy of the foregoing instrument was served upon the attorney of record for each party to the above-entitled cause by enclosing the same in an evelope addressed to each such attorney at their last known address as shown below, with postage fully paid, and by depositing said envelope in a United States Post Office depository on the 29th day of December, 2004. Copy to: Diane Reinsch Lane & Waterman, LLP 224 18th Street, Suite 500 Rock Island, Illinois 61201
/s/ Marlita A. Greve Attorney for Plaintiff O’BRIEN & GREVE, P.L.C. 2322 East Kimberly Road Davenport, IA 52807 Telephone: (563) 355-6060 FAX: (563) 355-6666 E-Mail: mag@emprights.com
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