1 Mary Jo O’Neill, AZ Bar #005924, Mary.ONeill@eeoc.gov

C. Emanuel Smith, MS Bar #7473, Emanuel.Smith@eeoc.gov

2 Lucila G. Rosas, CA Bar #187345, Lucila.Rosas@eeoc.gov

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

3 Phoenix District Office 3300 N. Central Ave., Suite 690

4

Phoenix, AZ 85012 Telephone: (602) 640-5025

Fax: (602)640-5009 5 Attorneys for Plaintiff

6
UNITED STATES DISTRICT COURT
7

8

FOR THE DISTRICT OF ARIZONA

9

10 Equal Employment Opportunity

11 Commission,

12

Plaintiff,

13

vs.

14 Creative Networks, LLC, an Arizona

15 corporation, and Res-Care, Inc., a

16 Kentucky corporation,

17

Defendants.

) Case No.:

)

)

)

COMPLAINT

)

)

)

(JURY TRIAL DEMANDED)

)

)

)

)

)

)

)

)

)

18

19

NATURE OF THE ACTION

20

This is an action under Title VII of the Civil Rights Act of 1964, as amended, 42

21 U.S.C. § 2000e et seq. (“Title VII”) and Title I of the Civil Rights Act of 1991, 42 U.S.

22 C. § 1981a, to correct unlawful employment practices on the basis of retaliation and to

23 provide appropriate relief to Ms. Rhonda Encinas-Castro and Ms. Kathryn Allen who

24 were adversely affected by such practices. The EEOC alleges that Defendants, Creative

25 Networks, LLC and Res-Care, Inc., discriminated against Ms. Encinas-Castro and Ms.

26 Allen in retaliation for having opposed discrimination and/or participating in a

27 proceeding pursuant to Title VII, including an investigation of alleged employment

28 discrimination.

1

1

JURISDICTION AND VENUE

2

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

3 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 706 (f)

4 (1) and (3) of Title VII of the Civil Rights Act of 1964, as amended (Title VII), 42 U.S.C.

5 §2000e-5 (f) (1) and (3), and Section 102 of the Civil Rights Act of 1991, 42 U.S.C.

6 §1981(a).

7

2. The employment practices alleged to be unlawful were and are now being

8 committed within the jurisdiction of the United States District Court for the District of

9 Arizona.

10

PARTIES

11

3. Plaintiff, the Equal Employment Opportunity Commission (the

12 "Commission"), is the agency of the United States of America charged with the

13 administration, interpretation and enforcement of Title VII, and is expressly authorized to

14 bring this action by Sections 706 (f) (1) and (3) of Title VII, 42 U.S.C. §2000e-5 (f) (1)

15 and (3).

16

4. At all relevant times, Defendant Creative Networks, LLC has continuously

17 been an Arizona corporation doing business in the State of Arizona, and the City of

18 Surprise and has continuously had at least 15 employees.

19

5. At all relevant times, Defendant Creative Networks, LLC has continuously

20 been an employer engaged in an industry affecting commerce within the meaning of

21 Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h).

22

6. At all relevant times, Defendant Res-Care, Inc. has continuously been a

23 Kentucky corporation doing business in the State of Arizona, and the City of Surprise and

24 has continuously had at least 15 employees.

25

7. At all relevant times, Defendant Res-Care, Inc. has continuously been an

26 employer engaged in an industry affecting commerce within the meaning of Sections

27 701(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h).

28

2

1

STATEMENT OF CLAIMS

2

8. More than thirty days prior to the institution of this lawsuit, Ms. Encinas-

3 Castro and Ms. Allen filed a charge with the Commission alleging violations of Title VII

4 by Defendants. All conditions precedent to the institution of this lawsuit have been

5 fulfilled.

6

9. Since at least May 2003, Defendants subjected Ms. Encinas-Castro to

7 adverse employment actions in retaliation for opposing what she reasonably believed was

8 discrimination and/ or participating in a proceeding pursuant to Title VII, including but

9 not limited to filing a charge of discrimination with the EEOC, in violation of Section

10 704 (a) of Title VII, 42 U.S.C. Section 2000e-3 (a). These practices include but are not

11 limited to discipline and termination.

12

10. Since at least May 2003, Defendants subjected Ms. Allen to adverse

13 employment actions in retaliation for opposing what she reasonably believed was

14 discrimination and/ or participating in a proceeding pursuant to Title VII, including but

15 not limited to being named as a witness in Ms. Encinas-Castro’s charge of discrimination,

16 in violation of Section 704 (a) of Title VII, 42 U.S.C. Section 2000e-3 (a). These

17 practices include but are not limited to discipline and threats of termination.

18

11. The effect of the practices complained of above have been to deprive Ms.

19 Encinas-Castro and Ms. Allen of equal employment opportunities and otherwise

20 adversely affect their employment status on account of retaliation.

21

12. The unlawful employment practices complained of above were and are

22 intentional.

23

13. The unlawful employment practices complained of above were done with

24 malice and/or reckless indifference to the federally protected rights of Ms. Encinas-

25 Castro and Ms. Allen.

26

PRAYER FOR RELIEF

27

Wherefore, the Commission respectfully requests that this Court:

28

3

1

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

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

3 retaliation or any other employment practice against employees who oppose practices

4 made unlawful by Title VII or are participating in a proceeding pursuant to Title VII.

5

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

6 programs which provide equal employment opportunities for employees who oppose

7 unlawful employment discrimination, and which eradicate the effects of its past and

8 present unlawful employment practices.

9

C. Order Defendants to make whole Ms. Encinas-Castro and Ms. Allen by

10 providing appropriate back pay and benefits with prejudgment interest and other

11 affirmative relief necessary to eradicate the effects of their unlawful employment

12 practices, including other appropriate relief to be determined at trial.

13

D. Order Defendants to make whole Ms. Encinas-Castro and Ms. Allen by

14 providing compensation for past and future pecuniary losses resulting from the unlawful

15 employment practices complained of above, including but not limited to medical

16 expenses or other out of pocket expenses in amounts to be determined at trial.

17

E. Order Defendants to make whole Ms. Encinas-Castro and Ms. Allen by

18 providing compensation for past and future non-pecuniary losses resulting from the

19 unlawful practices complained of above, including but not limited to pain and suffering,

20 emotional distress, inconvenience, loss of enjoyment of life, loss of self-esteem and

21 humiliation, in amounts to be determined at trial.

22

F. Order Defendants to pay Ms. Encinas-Castro and Ms. Allen punitive

23 damages for its malicious and reckless conduct complained of above, in amounts to be

24 determined at trial.

25

G. Grant such further relief as the Court deems necessary and proper in the

26 public interest.

27

H. Award the Commission its costs of this action.

28

4

1

JURY TRIAL DEMAND

2

The Commission requests a jury trial on all questions of fact raised by this

3 Complaint.

4
DATED this 30th day of September, 2005.
5

6

Respectfully submitted,

7

JAMES L. LEE

8

Deputy General Counsel

9

GWENDOLYN YOUNG REAMS

10

Associate General Counsel

11

EQUAL EMPLOYMENT OPPORTUNITY

12

COMMISSION

1801 L Street, N.W.

13

Washington, D.C. 20507

14

15

s/Mary Jo O’Neill

16

MARY JO O’NEILL

Regional Attorney

17

18

s/ C. Emanuel Smith

C. EMANUEL SMITH

19

Supervisory Trial Attorney

20

21

s/ Lucila G. Rosas

LUCILA G. ROSAS

22

Trial Attorney

23
EQUAL EMPLOYMENT OPPORTUNITY

24

COMMISSION, Phoenix District Office

25

3300 N. Central Ave., Suite 690

Phoenix, AZ 85012

26

(602) 640-5025

27

Attorneys for Plaintiff

28

5

 
 1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Equal Employment Opportunity

)

Commission,

)

10

)

Plaintiff,

)

11

)

vs.

)

12

)

Creative Networks, LLC and Res-Care,)

13 Inc.,

)

)

14

Defendants.

)

)

15

)

No. CV 05-3032-PHX-SMM
MEMORANDUM OF DECISION AND ORDER

16

17

Pending before the Court is Defendant Res-Care, Inc.’s (“Res-Care”) Motion to

18 Dismiss Plaintiff Equal Employment Opportunity Commission’s (the “EEOC”) Complaint

19 pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be

20 granted. (Dkt. 8.) The EEOC has filed a response to Res-Care’s Motion, to which Res-Care

21 has replied. (Dkts. 10, 15.) Based on the parties’ briefs, the Court issues this Order.

22

BACKGROUND

23

On September 30, 2005, the EEOC filed a Complaint against Creative Networks, LLC

24 (“Creative Networks”) and Res-Care, the parent company of Creative Networks, alleging

25 claims of employment discrimination under Title VII of the Civil Rights Act of 1964, as

26 amended, 42 U.S.C. §§ 2000e, et. seq., and Title I of the Civil Rights Act of 1991, 42 U.S.C.

27 § 1981a. (Dkt. 1.) The EEOC alleges that both Creative Networks and Res-Care

28 discriminated against Rhonda Encinas-Castro and Kathryn Allen “in retaliation for having

1 opposed discrimination and/or participating in a proceeding pursuant to Title VII, including

2 an investigation of alleged employment discrimination.” (Dkt. 1 at 1.)

3

The Complaint is divided into four sections. The first section contains allegations

4 concerning jurisdiction and venue (id. at ¶¶1-2); the second section sets forth allegations

5 about the parties (id. at ¶¶3-7); the third section sets forth general allegations regarding

6 Creative Networks’ and Res-Care’s alleged discrimination (id. at ¶¶8-13); and the fourth

7 section contains a prayer for a permanent injunction, back pay, medical expenses, emotional

8 distress damages, and punitive damages (id. at 4).

9

The general allegations in the third section of the Complaint describe Creative

10 Networks’ and Res-Care’s alleged discrimination in broad strokes. In paragraphs 9 and 10,

11 for example, the EEOC alleges that “Defendants” subjected Ms. Encinas-Castro and Ms.

12 Allen to “adverse employment actions in retaliation for opposing what [they] reasonably

13 believed was discrimination and/or participating in a proceeding pursuant to Title VII.” (Dkt.

14 1 at ¶¶9-10.) The EEOC does not allege which persons discriminated against Ms. Encinas-

15 Castro and Ms. Allen, precisely when the alleged discrimination occurred, or the exact

16 circumstances surrounding the alleged discriminatory conduct. The remaining general

17 allegations claim that the “unlawful employment practices” of Creative Networks and Res-

18 Care were “intentional” and “done with malice and/or reckless indifference to the federally

19 protected rights of Ms. Encinas-Castro and Ms. Allen.” (See id. at ¶¶ 11-13.)

20

On November 18, 2005, Creative Networks filed an Answer to the Complaint and

21 Res-Care filed a Motion to Dismiss for failure to satisfy Fed.R.Civ.P. 12(b)(6). (Dkts. 7-8.)

22 Res-Care contends dismissal is warranted because “it has no relationship to this case other

23 than being the corporate parent of [co-defendant] Creative Networks.” (Dkt. 8 at 2.)

24 Relying on Watson v. Gulf & Western Indus., 650 F.2d 990 (9th Cir. 1981), and Morgan v.

25 Safeway Stores, Inc., 884 F.2d 1211, 1213-14 (9th Cir. 1989), Res-Care contends it is

26 entitled to dismissal because “a parent corporation that does not exercise day-to-day control

27 over its subsidiaries’ employment matters cannot be sued for the subsidiaries’ alleged

28

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1 wrongdoing.” (Dkt. 8 at 4.) Although Res-Care cites a correct proposition of law in support

2 of its Motion, the factual support it seeks to have applied is not contained within the EEOC’s

3 Complaint but, rather, in extraneous documents outside the pleadings. See Dkts. 8, Ex. 2;

4 15, Ex. 1. For the reasons set forth below, Res-Care’s Motion to Dismiss will be denied.

5

DISCUSSION

6 A. The Court Will Take Judicial Notice of Res-Care’s Form 10-K

7

Under Federal Rule of Evidence 201, a trial court must take judicial notice of facts “if

8 requested by a party and supplied with the necessary information.” Fed.R.Evid. 201(d). A

9 fact is appropriate for judicial notice if it is “not subject to reasonable dispute in that it is

10 either (1) generally known within the territorial jurisdiction of the trial court or (2) capable

11 of accurate and ready determination by resort to sources whose accuracy cannot reasonably

12 be questioned.” Fed.R.Evid. 201(b). The Court may take judicial notice of public records,

13 such as SEC filings. Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d

14 1022, 1025 n.2 (9th Cir. 2006). The consequences of taking judicial notice are significant.

15 Judicial notice precludes either party from introducing evidence to disprove that fact. Rivera

16 v. Philip Morris, Inc., 395 F.3d 1142, 1151 (9th Cir. 2005). The Ninth Circuit has

17 accordingly urged district courts to be cautious in taking judicial notice and to do so only

18 when the “matter [is] beyond reasonable controversy.” Id.

19

In order to prove it is the parent company of Creative Networks, Res-Care requests

20 the Court take judicial notice of its Form 10-K filed with the SEC on May 21, 2005. (Dkt.

21 8 at 2 n.2.) The Court agrees. Dreiling v. American Express Co., 458 F.3d 942, 946 n.2

22 (9th Cir. 2006) (court may take judicial notice of SEC filings). Because taking judicial notice

23 of Res-Care’s Form 10-K in its entirety could have unforeseen consequences later in this

24 litigation, the Court will take judicial notice only of those facts appearing in the Form 10-K

25 that are both undisputed and relevant to the issues presented in the Motion to Dismiss – that

26 Res-Care is the parent company of Creative Networks. See Dkt. 8, Ex. 1 at 39. The Court

27 will take judicial notice of this fact only for purposes of deciding Res-Care’s Motion to

28

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1 Dismiss. See Dreiling, 458 F.3d at 946 n.2 (in ruling on motion to dismiss, court may

2 consider documents referred to in complaint or any matter subject to judicial notice).

3 B. The Court Will Not Consider Matters Outside the Complaint

4

In its Motion to Dismiss, Res-Care readily concedes that the EEOC has filed a

5 Complaint against Creative Networks and Res-Care alleging unlawful employment practices.

6 (Dkt. 8 at 2.) Res-Care does not challenge the sufficiency of the EEOC’s pleading, nor does

7 it contend that the EEOC’s allegations are vague or conclusory. See Dkts. 8, 15. Rather, in

8 addition to requesting judicial notice of its Form 10-K, Res-Care submits (i) an

9 Administrative Services Agreement between Res-Care and Creative Networks, executed on

10 January 5, 1998 (the “Agreement”); and (ii) the Affidavit of James C. Plutowski. (Dkts. 8,

11 Exs. 1-2; 15, Ex. 1.) Res-Care contends it is entitled to be dismissed because, “[u]nder the

12 Agreement, Res-Care agrees to provide certain administrative services for Creative

13 Networks, but specifically excludes responsibility for personnel and employment issues.”

14 (Dkt. 8 at 3.) Further, Mr. Plutowski avers that, “to date Res-Care has done nothing to assist

15 Creative Networks with respect to any employment-related policy or practice.” (Dkt. 15 at

16 4) (emphasis in original).

17

Among other things, the EEOC argues that Res-Care’s Motion is “premature” because

18 no discovery has been conducted. (Dkt. 10 at 2.) The Court agrees that Res-Care’s attempt

19 to convert its Motion to Dismiss to a Motion for Summary Judgment, based on documents

20 extraneous to the Complaint, is premature because even the preliminary stages of discovery

21 and disclosures under Fed.R.Civ.P. 26(a) have not yet occurred. Thus, any attempt by the

22 EEOC to assert facts in a summary judgment proceeding is premature, to say the least.

23 Accordingly, the Court rejects Res-Care’s invitation to rely on material outside the pleadings

24 and invoke the provisions of Fed.R.Civ.P. 56. See Dkt. 8 at 3 n.3 (“If the EEOC challenges

25 Res-Care’s motion on this issue, converting this matter to a Rule 56 motion, Res-Care will

26 provide an affidavit confirming that neither Ms. Encinas-Castro nor Ms. Allen were ever

27 employed by Res-Care.”).

28

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1

In the Ninth Circuit, “a motion to dismiss is not automatically converted into a motion

2 for summary judgment whenever matters outside the pleading happen to be filed with the

3 court and not expressly rejected by the court.” North Star Int’l v. Arizona Corporation

4 Comm’n, 720 F.2d 578, 582 (9th Cir. 1983) (holding that district court properly treated

5 motion as motion to dismiss, despite presence of affidavits, where there was no indication

6 of the court’s reliance on outside materials and the court expressly stated that it was

7 dismissing for failure to state a claim upon which relief could be granted); Keams v. Tempe

8 Tech’l Inst., Inc., 110 F.3d 44, 46 (9th Cir. 1997) (“a 12(b)(6) motion need not be converted

9 into a motion for summary judgment when matters outside the pleading are introduced,

10 provided that ‘nothing in the record suggest[s] reliance’ on those extraneous materials”).

11 Rather, “a district court must take some affirmative action to effectuate conversion.”

12 Swedberg v. Marotzke, 339 F.3d 1139, 1142 (9th Cir. 2003).

13

In denying Res-Care’s Motion to Dismiss (infra at 5-7), the Court has not relied on

14 the extraneous information submitted by Res-Care and referred to by the EEOC. Rather, in

15 accordance with Ninth Circuit precedent, all extraneous documents outside the pleadings

16 have been excluded from the Court’s determination of whether the EEOC has alleged a claim

17 upon which relief may be granted against Res-Care. North Star Int’l, 720 F.2d at 582.

18 C. The EEOC Has Properly Alleged A Claim Upon Which Relief May Be Granted

19

1. Standard of Review

20

A complaint may not be dismissed for failure to state a claim “‘unless it appears

21 beyond doubt that the plaintiff can prove no set of facts in support of [the] claim which

22 would entitle [the plaintiff] to relief.’” Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th

23 Cir. 1987) (citation omitted). If as a matter of law it is clear that no relief could be granted

24 under any set of facts that could be proved consistent with the allegations, “a claim must be

25 dismissed, without regard to whether it is based on an outlandish legal theory or on a close

26 but ultimately unavailing one.” See Neitzke v. Williams, 490 U.S. 319, 327 (1989). On a

27 motion to dismiss for failure to state a claim, the court must presume all factual allegations

28

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1 of the complaint to be true and draw all reasonable inferences in favor of the nonmoving

2 party. Usher, 828 F.2d at 561. Moreover, civil rights complaints are to be liberally

3 construed. Gobel v. Maricopa County, 867 F.2d 1201, 1203 (9th Cir. 1989), abrogated on

4 other grounds by Merritt v. County of Los Angeles, 875 F.2d 765, 769 (9th Cir. 1989).

5 When a court has taken judicial notice of facts, the court may also consider such facts in

6 evaluating a motion to dismiss. Dreiling, 458 F.3d at 946 n.2.

7

2. The EEOC Has Stated a Claim Against Res-Care

8

As previously stated, Ninth Circuit jurisprudence holds that “[i]n the absence of

9 special circumstances, a parent corporation is not liable for the Title VII violations of its

10 wholly owned subsidiary.” See Watson, 650 F.2d at 993. In Watson, the Ninth Circuit Court

11 of Appeals affirmed the trial court’s grant of summary judgment to a parent corporation

12 because there was “no indication that the parent-subsidiary relationship [was] a ‘sham’ or

13 that circumstances exist that would render the parent liable for debts of its subsidiary.” Id.

14 The Court of Appeals observed that the result would be different, however, if there had been

15 evidence that the parent “participated in or influenced the employment policies” of the

16 subsidiary, or that the parent “had undercapitalized [the subsidiary] in a way that defeated

17 potential recovery by a Title VII plaintiff.” Id.

18

Although Res-Care cites a correct proposition of law in support of its Motion to

19 Dismiss, neither Watson nor its progeny require the plaintiff in a civil rights action to

20 affirmatively allege that the parent-subsidiary relationship at issue is a “sham,” that the

21 parent “participated in or influenced the employment policies” of the subsidiary, or that the

22 parent undercapitalized the subsidiary in a way that defeated potential recovery by a Title VII

23 plaintiff. See Watson, 690 F.2d at 992-93. More importantly, Watson demonstrates that it

24 is not beyond doubt that the EEOC can prove not set of facts in support of the claim alleged

25 against Res-Care. See Watson, 650 F.2d at 993. Because Res-Care has failed to demonstrate

26 that, as a matter of law, no relief could be granted under any set of facts that could be proved

27 consistent with the EEOC’s allegations, Res-Care’s Motion to Dismiss will be denied. See

28

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1 Usher, 838 F.2d at 561 (“unless it appears beyond doubt that the plaintiff can prove no set

2 of facts in support of [the] claim which would entitle [the plaintiff] to relief”).1

3

Accordingly,

4

IT IS HEREBY ORDERED DENYING Res-Care’s Motion to Dismiss. (Dkt. 8.)

5

IT IS FURTHER ORDERED that the Court Deputy shall schedule and issue an

6 order setting a Rule 16 Preliminary Pretrial Conference pursuant to Fed.R.Civ.P. 16(b).

7

DATED this 29th day of December, 2006.

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1 Although the EEOC did file its response to Res-Care’s motion approximately two

weeks late, the Court rejects Res-Care’s argument that the EEOC has consented to its Motion

27 to Dismiss under LRCiv 7.2(i).

28

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 1 WO

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE DISTRICT OF ARIZONA

7

8 Equal Employment Opportunity) No. CV-05-3032-PHX-SMM

Commission,

)

9

) ORDER

Plaintiff,

)

10

)

v.

)

11

)

Creative Networks, LLC and Res-Care,)

12 Inc.,

)

)

13

Defendants.

)

)

14

Before the Court is Plaintiff’s Motion to Strike or in the Alternative Leave to File

15

Surreply Re: Creative Network’s LLC Additional Pleadings (Doc. 121). In the Motion to

16

Strike, Plaintiff asks the Court to strike Defendant Creative Networks, LLC’s Exhibits to

17

its Reply in Support of its Motion for Partial Summary Judgment (Doc. 115-2, Exhibits

18

A-F), Reply to EEOC’s Local Rules of Practice 56.1(b) Response to Defendant’s

19

Statement of Facts and exhibits (Docs. 116, 116-2) and Response to Plaintiff EEOC’s

20

Statement of Facts (Doc. 118) and exhibits (Doc. 118-2, Exhibits 1-4). Additionally,

21

Plaintiff requests that the Court grant it leave to file a surreply addressing any exhibits or

22

documents not stricken. Having considered the Motion to Strike, the Court finds as

23

follows.

24

BACKGROUND

25

In the present case, Defendant initially filed a Motion for Partial Summary Judgment

26

(Doc. 97) and Separate Statement of Undisputed Facts in Support of its Motion for Summary

27

Judgment (Doc. 98). Then, on May 14, 2008, Plaintiff filed a Response to the Motion for Partial

28

Summary Judgment (Doc. 106) and Local Rule of Practice 56.1(b) Response to Defendant’s

1 Separate Statement of Facts (Doc. 107). Next, on June 2, 2008, Defendant responded by filing a

2 Reply in Support of its Motion for Partial Summary Judgment (Doc. 115), Response to

3 Plaintiff’s Statement of Facts (Doc. 118), and Reply to Plaintiff’s Local Rule of Practice 56.1(b)

4 Response to Defendants’ Separate Statement of Facts (Doc. 116). Plaintiff filed the instant

5 motion on August 12, 2008 (Doc. 121).

6

STANDARD OF REVIEW

7

A. Motion to Strike

8

Under the Local Rules of Civil Procedure, a motion to strike may be filed in only

9 two situations: (1) when the motion to strike is authorized by statute or rule, or (2) when

10 the motion to strike seeks to strike a filing or submission because it is prohibited by

11 statute, rule, or court order. LRCiv. 7.2(m)(1). Furthermore, objections to the admission

12 of evidence submitted in support of or opposition to a motion are not appropriate for a

13 motion to strike.

14

An objection to the admission of evidence offered in support of or

opposition to a motion must be presented in the objecting party’s responsive

15

or reply memorandum (or, if the underlying motion is a motion for

summary judgment, in the party’s response to another party’s separate

16

statement of material facts) and not in a separate motion to strike or other

separate filing.

17

LR Civ. 7.2(m)(2). Similarly, any response to the objection must be included in the reply

18

memorandum for the underlying motion filed by the responding party, rather than in a

19

separate responsive memorandum. Id.

20

B. Motion for Summary Judgment

21

Pursuant to the Local Rules of this Court, a party filing a motion for summary

22

judgment (the moving party) is required to file a statement detailing each material fact

23

that the party relies on to support its motion. LRCiv. 56.1(a). This statement is to be

24

filed separately from the motion and memorandum of law. Id. Likewise, the opposing

25

party must have one statement, filed separate from the memorandum of law, that includes

26

any disputes the nonmoving party has with the moving party’s statement of facts,

27

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1 supporting citations to the record, and any new facts they wish to offer in opposition.

2 LRCiv 56.1(b).

3

Any party opposing a motion for summary judgment shall file a statement,

separate from that party’s memorandum of law, setting forth: (1) for each

4

paragraph of the moving party’s separate statement of facts, a

correspondingly numbered paragraph indicating whether the party disputes

5

the statement of fact set forth in that paragraph and a reference to the

specific admissible portion of the record supporting the party’s position if

6

the fact is disputed; and (2) any additional facts that establish a genuine

issue of material fact or otherwise preclude judgment in favor of the moving

7

party.

8 Id. These disputes include any objections the nonmovant has with the moving party’s

9 statement of facts. LRCiv. 7.2(m)(2). The non-movant’s Response shall not exceed

10 seventeen pages, excluding attachments and the required responsive statement of facts

11 discussed above. LRCiv. 7.2(e).

12

While a Reply memoranda of eleven pages is allowed, the Local Rules do not

13 authorize a separate Statement of Facts in the Reply as they explicitly do for a Response.

14 Id. Should a moving party have any objections or replies to facts or arguments contained

15 in the Response or its accompanying statement of facts, these “. . . must be included in the

16 responding party’s reply memorandum for the underlying motion and may not be

17 presented in a separate responsive memorandum.” LRCiv. 7.2(m)(2).

18

DISCUSSION

19

First, Plaintiff moves the Court to strike several exhibits attached to Defendant’s

20 Reply brief, including excerpts from depositions transcripts of Ginger Call, Kathryn

21 Allen, Edna Faulkner, Ron Cornelison, and Rhonda Encinas-Castro, as well as an

22 affidavit from Ron Cornelison with supporting documentation (Doc. 115, Exhibits A-F).

23 Plaintiff argues that these exhibits should not be considered by the Court because they

24 represent new evidence that Plaintiff has had no opportunity to address (Doc. 121, 2-3).

25 In making this argument, Plaintiff relies heavily on Provenz v. Miller, where the Court

26 stated, “Where new evidence is presented in a reply to a motion for summary judgment,

27 the district court should not consider the new evidence without giving the [non-] movant

28 an opportunity to respond.” 102 F.3d 1478, 1483 (9th Cir. 1996), cert. denied 522 U.S.

- 3 -

1 808 (1997) (quoting Black v. TIC Inv. Corp., 900 F.2d 112, 116 (7th Cir. 1990)).

2 Although Defendant allegedly had this evidence at the time it filed its Motion for

3 Summary Judgment, Plaintiff contends Defendant waited until its Reply motion to offer it

4 in an attempt to preclude Plaintiff from addressing the new exhibits (Doc. 121, 2:19-23).

5 As a result, the exhibits should be stricken, or at the very least, Plaintiff given an chance

6 to respond using a surreply (Id. 3:24-4:11).

7

There is no dispute that a party may not file “new” evidence with a reply and then

8 deprive the opposing party of an opportunity to respond to the new evidence. Provenz,

9 102 F.3d at 1483. The Court has examined the challenged exhibits and concludes that

10 they do not constitute new evidence. Rather, they rebut arguments first raised by Plaintiff

11 in its opposition to Defendant’s Motion for Summary Judgment. Consequently, the

12 submissions were proper and Plaintiff’s Motion to Strike as it pertains to the specified

13 exhibits is denied.

14

Second, Plaintiff moves the Court to strike Defendant’s Response to Plaintiff

15 EEOC’s Statement of Facts and exhibits (Docs. 116, 116-2) as well as Defendant’s Reply

16 to EEOC’s Local Rules of Practice 56.1(b) Response to Defendant’s Statement of Facts

17 (Doc. 118) and exhibits (Doc. 118-2, Exhibits 1-4). Plaintiff contends that these

18 documents are in fact supplemental summary judgment replies, and as such, are

19 prohibited by the Federal Rules of Civil Procedure as well as the Local Rules which

20 provide for the filing of a single eleven-page Reply (Doc. 121, 4:14-21). Plaintiff argues

21 that the two documents are attempts by Defendant to make further legal and factual

22 arguments in support of its summary judgment motion (Id. 5:14-21). According to

23 Plaintiff, any such argument must be contained in the Reply filed by Defendant (Id. 5:22-

24 26).

25

Local Rule of Civil Procedure 7.2 specifically prohibits “a separate responsive

26 memorandum” to make “any objections or replies to arguments or facts made in the

27 Response.” LRCiv. 7.2(m)(2). The purpose behind Defendant’s Response to Plaintiff

28 EEOC’s Statement of Facts and Defendant’s Reply to EEOC’s Local Rules of Practice

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1 56.1(b) Response to Defendant’s Statement of Facts is to dispute statements and

2 arguments made in the Plaintiff’s Response. The instant motion does fall within the

3 purview of LRCiv 7.2(m)(2), and thus, these disputes should have been included in

4 Defendant’s Reply memorandum.

5

Accordingly,

6

IT IS HEREBY ORDERED granting in part and denying in part Plaintiff’s

7 Motion to Strike or in the Alternative Leave to File Surreply Re: Creative Network’s LLC

8 Additional Pleadings (Doc. 121).1

9

IT IS FURTHER ORDERED STRIKING Response to Plaintiff’s EEOC’s

10 Statement of Facts (Doc. 118) and exhibits (Doc. 118-2, Exhibits 1-4), as well as Reply to

11 EEOC’s Local Rule 56.1(b) Response to Defendant’s Statement of Facts and exhibits

12 (Docs. 116, 116-2) without prejudice with leave to refile in accordance with the Federal

13 and Local Rules of Civil Procedure. The amended Reply shall be filed no later than

14 Friday, January 9, 2009.

15

IT IS FURTHER ORDERED that Defendant Creative Networks, LLC’s Exhibits

16 to its Reply in Support of its Motion for Partial Summary Judgment (Docs. 115-2,

17 Exhibits A-F) are not stricken.

18

IT IS FURTHER ORDERED DENYING Plaintiff’s Motion for Leave to File a

19 Surreply (Doc. 121).2

20

21

22 1 The motion is granted insofar as Defendant Creative Networks LLC’s Response to
23 Plaintiff’s EEOC’s Statement of Facts (Doc. 118) and exhibits (Doc. 118-2, Exhibits 1-4) as

24

well as Reply to EEOC’s Local Rule 56.1(b) Response to Defendant’s Statement of Facts (Docs. 116, 116-2) will be stricken. The motion is denied insofar as Defendant Creative

25 Networks LLC’s Exhibits to its Reply in Support of its Motion for Partial Summary

Judgment will not be stricken (Docs. 115-2, Exhibits A-F). 26

27

2 The parties are advised to review the Federal Rules of Civil Procedure, the Local

Rules for this district, and relevant Ninth Circuit authority regarding setting forth new facts

28 and arguments in Responses and Replies to summary judgment motions.

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1

DATED this 12th day of December, 2008.

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 1 WO

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IN THE UNITED STATES DISTRICT COURT

6

FOR THE DISTRICT OF ARIZONA

7

8 EQUAL EMPLOYMENT

) No. CV 05-3032-PHX-SMM

OPPORTUNITY COMMISSION,

)

9

) MEMORANDUM OF DECISION AND

Plaintiff,

) ORDER

10

)

v.

)

11

)

CREATIVE NETWORKS, LLC, an )

12 Arizona corporation, and RES-CARE, )

INC., a Kentucky corporation,

)

13

)

Defendants.

)

14

)

15 Before the Court is Defendants Creative Networks, LLC and Res-Care, Inc.’s
16 (collectively, “Defendants”) Motion for Partial Summary Judgment (Doc. 97).
17 Having considered the parties’ memoranda and other submissions, the Court now issues
18 this Memorandum of Decision and Order denying Defendants’ motion.1
19 FACTUAL BACKGROUND
20 Plaintiff, the Equal Employment Opportunity Commission (“EEOC”), alleges that
21 Defendants “discriminated against Rhonda Encinas-Castro and Kathryn Allen in
22 retaliation for having opposed discrimination and/or for having participated in a
23 proceeding pursuant to Title VII, including an investigation of alleged employment
24 discrimination.” (Doc. 106) Specifically, Rhonda Encinas-Castro (“Encinas-Castro”)
25

26

27

1 Defendants requested oral argument in connection with their Motion for Partial Summary

Judgment (Doc. 97). The parties have had the opportunity to submit evidence and briefing.

28 Accordingly, the Court finds the pending motion for summary judgment suitable for decision

without oral argument and Defendants’ request is denied. See LRCiv 7.2(f), 56.2.

1 claims that her employer, Creative Networks, LLC (“Creative Networks”), retaliated

2 against her by firing her for filing a discrimination charge with the EEOC (Doc. 97, 1:25-

3 2:1). Kathryn Allen (“Allen”) claims that Creative Networks retaliated against her by

4 holding a corrective counseling session after she was identified as a witness in Encinas-

5 Castro’s EEOC charge (Id. 2:1-4). Defendant Res-Care, Inc. (“Res-Care”) is the parent

6 corporation of Creative Networks.

7

On May 16, 2003, Encinas-Castro filed a charge of discrimination with the EEOC

8 (Pl’s Statement of Facts (PSOF) ¶ 1). After an EEOC representative interviewed

9 Encinas-Castro, she was told that the EEOC would finish the charge and mail it to her for

10 her signature (Id.). Subsequently, Encinas-Castro received the EEOC charge in the mail,

11 and she signed and dated it on Tuesday, May 20, before mailing it back to the EEOC

12 (Id.). The EEOC received the signed charge on Friday, May 23 (Id.). Encinas-Castro’s

13 charge specifically included Allen’s name as a witness to the discriminatory comments

14 (Id. ¶ 2).

15

Upon filing her charge with the EEOC, Encinas-Castro told several coworkers that

16 she had gone to the EEOC to file a charge (Id. ¶ 3). On May 16, the day Encinas-Castro

17 filed her discrimination charge, she advised Millie Santiago that she had gone to the

18 EEOC to file a charge and identified Allen as a witness (Id.; Doc. 106, Ex. 2, Encinas-

19 Castro Decl. ¶¶ 5-7). A few days later, on May 19, Encinas-Castro advised Ginger Call

20 (“Call”) that she had gone to the EEOC to file a charge and identified Allen as a witness

21 (PSOF ¶¶ 3, 9). Call was a Project Manager with Creative Networks (Id. ¶ 8). Call then

22 informed Jennifer Clark (“Clark”), Call’s supervisor, that there was a rumor that Encinas-

23 Castro was going to file a charge of discrimination with the EEOC (Id. ¶ 10). Clark

24 indicated that she was going to pass the information onto Ron Cornelison (“Cornelison”),

25 Executive Director for Creative Networks (Id. ¶¶ 11, 24). Also, on May 19, Encinas-

26 Castro told Bonnie Cooper (“Cooper”) that she had filed an EEOC charge and named

27 Allen as a witness (Id. ¶¶ 3-4). Cooper then told Call that Encinas-Castro had filed a

28

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1 charge, and Call told Cooper that she had already elevated the information about the

2 charge to Cornelison (Id. ¶ 4).

3

Sometime after filing her charge, Encinas-Castro informed Allen that she had

4 named her as a witness in the charge and that the EEOC may be contacting her (Id. ¶ 5).

5 In turn, Allen confided in Edna Faulkner (“Faulkner”), Coordinator for the Maricopa

6 Integrated Health Services (“MIHS”) and Division of Developmental Disability

7 (“DDD”), about Encinas-Castro’s charge (Id. ¶¶ 5-6). Allen also told Faulkner that she

8 had been mentioned as a witness in Encinas-Castro’s charge (Id. ¶ 6). On May 29, 2003,

9 Faulkner told Allen that she had been called into a meeting, “they” are aware of Encinas-

10 Castro’s charge and “everything is going to really explode now.” (Id. ¶ 7). Allen testified

11 that Faulkner had said Leary and Clark were at the May 29 meeting (Doc. 106, Ex. 5,

12 Allen Dep. 91:16-24).

13

Sometime before May 30, Call spoke again with Clark and Cornelison and advised

14 them of a rumor that Encinas-Castro had gone to the EEOC (PSOF ¶ 12). Cornelison and

15 Clark replied, “Let’s bring [Encinas-Castro] in and have a discussion with her.” (Id.) A

16 meeting with Encinas-Castro was held on May 30 and that same day, Cornelison fired

17 Encinas-Castro (Id. ¶¶ 13-14).

18

After she was fired, Encinas-Castro called Allen and told her about the termination

19 (Doc. 106, Ex.5, Allen Dep. 95:13-14). Minutes later, Faulkner came to Allen’s office

20 and indicated that Cornelison wanted to speak with Allen (Id. 95:14-16). In attendance at

21 this meeting was Allen, Cornelison, Clark, Faulkner, and Operations Manager, Linda

22 Leary (“Leary”) (Id. ¶ 15). The EEOC claims that Cornelison, Clark, and Faulkner all

23 knew about Encinas-Castro’s charge when they met with Allen (PSOF ¶¶ 5-6,9,12).

24 During the meeting, Cornelison told Allen, “I want to tell you something right now, I

25 could fire you right now, because this is a right-to-work state, and I don’t even have to

26 have a reason, but I want to give you a chance to be a successful employee here.” (Id. ¶

27 16) Cornelison then asked Allen what she knew about Encinas-Castro’s EEOC charge

28 (Id. ¶ 17). When Allen denied knowing anything, Cornelison told Allen, “‘Well, there’s

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1 been talk that you have been calling back and forth to the Surprise office and spreading

2 rumors,’ and . . . ‘I want to really try and make you successful here,’ and . . . ‘I, out of all

3 the people in this company since I’ve started, I’ve noticed you with a negative attitude.’”

4 (Id. ¶ 18) Prior to the May 30 meeting, Allen had never been disciplined or counseled for

5 performance problems before (Id. ¶ 21).

6

During the meeting, Cornelison allegedly spoke to Allen in a belligerent and

7 hostile manner (Id. ¶ 22). Since Encinas-Castro worked in the Surprise office until her

8 termination, Allen took the reference to her communications with the Surprise office to

9 mean her conversations with Encinas-Castro about the discrimination (Id. ¶ 20). Faulkner

10 also took the comments about the Surprise office to mean Allen’s conversations with

11 Encinas-Castro, since the two women were friends (Id. ¶ 30). At the end of the meeting,

12 Cornelison indicated that he was going to have Faulkner monitor Allen in the future (Id.

13 ¶ 34).

14

Allen believed her job was threatened based upon (1) Cornelison’s statement that

15 Allen could be fired “right now” because “Arizona is a right-to-work state”; (2) the

16 reference by Cornelison to the EEOC charge filed by Encinas-Castro shortly after her

17 termination earlier in the day; (3) Cornelison’s angry and hostile demeanor; and (4)

18 Encinas-Castro’s termination on the same day (Id. ¶ 23). During the meeting, Allen never

19 acknowledged that she had a poor attitude or that she would improve her job

20 performance. (Id. ¶ 33) Leary told Allen that the meeting was not related to Allen’s job

21 performance (Id.).

22

Two months later, Allen quit her job, despite receiving no further counseling

23 (Def.’s Statement of Facts (“DSOF”) ¶ 19). After Allen gave Faulkner her notice of

24 resignation, she did not return to work the last two weeks (Id.).

25

PROCEDURAL BACKGROUND

26

27

28

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1

Allen filed a complaint against Defendants with the EEOC on June 3, 2003 (Doc.

2 97, Ex. A).2 On September 30, 2005, the EEOC filed suit, on behalf of Allen, under Title

3 VII of the Civil Rights Act of 1964, as amended, and Title I of the Civil Rights Act of

4 1991 (Doc. 1). The EEOC alleged that Defendants subjected Allen to adverse

5 employment actions in retaliation for opposing what she reasonably believed was

6 discrimination and/or participating in a proceeding pursuant to Title VII, including being

7 named as a witness in Encinas-Castro’s charge of discrimination (Doc. 1, ¶ 10). The

8 alleged retaliatory acts included discipline and threats of termination (Id.).

9

STANDARD OF REVIEW

10

A court must grant summary judgment if the pleadings and supporting documents,

11 viewed in the light most favorable to the nonmoving party, “show that there is no genuine

12 issue as to any material fact and that the moving party is entitled to judgment as a matter

13 of law.” Fed. R. Civ. P. 56(c); see Celotex Corp v. Catrett, 477 U.S. 317, 322-23 (1986);

14 Jesinger v. Nev. Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). Substantive law

15 determines which facts are material. See Anderson v. Liberty Lobby, 477 U.S. 242, 248

16 (1986); see also Jesinger, 24 F.3d at 1130. “Only disputes over facts that might affect the

17 outcome of the suit under the governing law will properly preclude the entry of summary

18 judgment.” Anderson, 477 U.S. at 248. The dispute must also be genuine, that is, the

19 evidence must be “such that a reasonable jury could return a verdict for the nonmoving

20 party.” Id.; see Jesinger, 24 F.3d at 1130.

21

A principal purpose of summary judgment is “to isolate and dispose of factually

22 unsupported claims.” Celotex, 477 U.S. at 323-24. Summary judgment is appropriate

23 against a party who “fails to make a showing sufficient to establish the existence of an

24

25

2This complaint alleged that after Allen’s name was referenced in Encinas-Castro’s

EEOC charge, Allen was called into a meeting with Cornelison, Faulkner, Clark, and Leary

26 (Doc. 97, Ex. A). During the meeting, “Cornelison made false accusations about me, advised

27 me my work performance would be monitored, and threatened to terminate my employment.” (Id.) Additionally, “Cornelison harassed me and intimidated me by advising me that Arizona

28 is a right to work state and he could terminated [sic] my employment at any time.” (Id.)

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1 element essential to that party’s case, and on which that party will bear the burden of

2 proof at trial.” Id. at 322; see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th

3 Cir. 1994). The moving party need not disprove matters on which the opponent has the

4 burden of proof at trial. See Celotex, 477 U.S. at 323-24. The party opposing summary

5 judgment need not produce evidence “in a form that would be admissible at trial in order

6 to avoid summary judgment.” Id. at 324. However, the nonmovant “may not rest upon

7 the mere allegations or denials of [the party's] pleadings, but . . . must set forth specific

8 facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); see Matsushita

9 Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-88 (1986); Brinson v.

10 Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995).

11

DISCUSSION

12

Defendants seek partial summary judgment on the EEOC’s claim of retaliation

13 related to Allen, asserting there are no genuine issues of material fact from which a jury

14 could conclude that Defendants retaliated against Allen in violation of Title VII.

15 Specifically, Defendants assert that the EEOC cannot establish a prima facie case of Title

16 VII retaliation as to Allen for two reasons: (1) the counseling session was not an adverse

17 employment action and (2) the EEOC cannot establish a causal link between Allen’s

18 name appearing in Encinas-Castro’s EEOC charge and the alleged retaliatory act of the

19 May 30, 2003 counseling session (Doc. 97, 5:3-7).

20 I. Preliminary Evidentiary Issues

21

Defendants ask the Court to disregard the declarations submitted by Encinas-

22 Castro and Allen as self-serving and contradictory of their deposition testimony (Doc.

23 128, 7:11:13, 8:1-10). The Court finds that consideration of the declarations submitted by

24 Encinas-Castro and Allen is appropriate under Ninth Circuit caselaw. In SEC v. Phan,

25 the Ninth Circuit pointed out that declarations often are “self-serving” “[a]nd properly so,

26 because otherwise there would be no point in submitting [them].” 500 F.3d 895, 909 (9th

27 Cir. 2007). As a result, [t]hat an affidavit is self-serving bears on its credibility, not on its

28 cognizability for purposes of establishing a genuine issue of material fact.” Id. A court

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1 can disregard a self-serving declaration at summary judgment only in certain situations,

2 such as when a declaration offers only conclusions, or is based upon facts outside the

3 declarant’s personal knowledge. Id. Here, the declarations are properly based upon

4 Encinas-Castro and Allen’s own actions about which they have personal knowledge (Doc.

5 106, Ex. 2, Encinas-Castro Decl; Doc. 106, Ex. 6, Allen Decl).

6

Nor is the fact that much of Encinas-Castro and Allen’s declarations describe

7 conversations held with other Creative Networks employees that cannot otherwise be

8 corroborated a defect. As the court pointed out in Phan, this is not unusual and is likely to

9 be the case with most conversations. 500 F.3d at 910. As a result, the participant is not

10 disqualified from testifying about the exchange, subject to a credibility determination by

11 the finder of fact. Id. Since a court does not judge credibility, such self-serving

12 declarations can create a genuine issue of material fact sufficient to defeat summary

13 judgment. Anderson, 477 U.S. at 250 (“Credibility determinations, the weighing of the

14 evidence, and the drawing of legitimate inferences from the facts are jury functions, not

15 those of a judge, whether he is ruling on a motion for summary judgment or for a directed

16 verdict.”).

17

Moreover, Defendants argue that the declarations contradict Encinas-Castro and

18 Allen’s deposition testimony (Doc. 128, 7:11:13, 8:1-10). Defendants are correct that a

19 party cannot create a genuine issue of material fact by contradicting his earlier deposition

20 testimony. See Leslie v. Grupo ICA, 198 F.3d 1152, 1157 (9th Cir. 1999); Block v. City

21 of L.A., 253 F.3d 410, 419 n.2 (9th Cir. 2001). However, the example given by

22 Defendants in their Reply does not demonstrate any such contradiction (Doc. 128, n.5).

23 In her deposition testimony on June 13, 2007, Encinas-Castro testified that she told Call

24 that she had gone to the EEOC to file a charge of discrimination (Doc. 128, Ex. E,

25 Encinas-Castro Dep. 87:21-88:8). In her later declaration, Encinas-Castro stated that she

26 told Call that she had gone to the EEOC to file a charge and that Allen’s name was

27 referenced in the charge (Doc. 106. Ex. 2, Encinas-Castro Decl. ¶ 5). Encinas-Castro’s

28 declaration elaborates on her conversations with Call and other managers and provides

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1 additional detail of the content of those conversations. Allen’s declaration similarly

2 provides further explanation of the May 30 meeting without being contradictory of her

3 earlier deposition (Doc. 106, Ex. 6, Allen Decl.). Therefore, the Court will consider both

4 of the declarations when deciding the present summary judgment motion.

5 II. Retaliation

6 The EEOC alleges retaliation in violation of Title VII of the Civil Rights Act of
7 1964, 42 U.S.C. § 2000e et seq. Title VII makes it an unlawful employment practice for
8 an employer to discriminate against an individual because she has opposed any
9 employment practice made unlawful by Title VII, or because she has made a charge,
10 testified, assisted, or participated in any manner in an investigation under Title VII. 42
11 U.S.C. § 2000e-3(a). To establish a prima facie retaliation claim under Title VII, an
12 employee must show that (1) she engaged in a protected activity; (2) her employer
13 subjected her to an adverse employment action; and (3) a causal link exists between the
14 protected activity and the adverse action. Passantino v. Johnson & Johnson Consumer
15 Prods., Inc., 212 F.3d 493, 506 (9th Cir. 2000); Ray v. Henderson, 217 F.3d 1234, 1240
16 (9th Cir. 2000); Little v. Windermere Relocation, Inc., 301 F.3d 958, 969 (9th Cir. 2002).
17 To show the requisite causal link, the plaintiff must present sufficient evidence to raise an
18 inference that the protected activity was the likely reason for the adverse action. Cohen v.
19 Fred Meyer, 686 F.2d 793, 796 (9th Cir. 1982). Essential to such a showing is evidence
20 that the employer was aware that the plaintiff had engaged in protected activity. Id.
21

22

If a plaintiff has shown a prima facie retaliation claim, then the burden shifts to the

23 defendant to furnish legitimate nondiscriminatory reasons for the adverse employment

24 action. Ray, 217 F.3d at 1240. If the defendant meets that burden, then the plaintiff bears

25 the ultimate burden of demonstrating that the reason was merely a pretext for a

26 discriminatory motive. Id. The plaintiff may show pretext “either directly by persuading

27 the court that a discriminatory reason more likely motivated the employer or indirectly by

28 showing that the employer’s proffered explanation is unworthy of credence.” Villiarimo

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1 v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002). Circumstantial evidence

2 relied on to show pretext must be “both specific and substantial.” Id.

3

A. Protected Activity

4 Although Defendants dispute that being referenced in an EEOC charge constitutes
5 a protected activity, this argument was raised for the first time in their Reply (Doc. 121,
6 4:14-17; 7:9-10). The EEOC was unable to respond to these new arguments, and
7 therefore, the Court declines to consider them. See Lane v. Dept. of Interior, 523 F.3d
8 1128, 1140 (9th Cir. 2008) (noting that it is in the district court’s discretion whether to
9 consider an argument first raised in a reply brief).
10
B. Adverse Employment Action 11

12

Defendants argue that the EEOC cannot present evidence on the second and third

13 elements: that Allen experienced an adverse employment action or that there is a causal

14 link between a protected activity and the adverse employment action (Doc. 97, 5:3-7). To

15 establish an adverse employment action, the EEOC asserts that Defendants subjected

16 Allen to adverse conditions after she was named in Encinas-Castro’s EEOC charge by

17 holding the May 30 counseling session (Doc. 106, 8:6-28). The United States Supreme

18 Court has held that a plaintiff must demonstrate that a reasonable employee would have

19 found the challenged action materially adverse, meaning conduct that would “dissuade a

20 reasonable worker from making or supporting a charge of discrimination.” Burlington

21 Northern Santa Fe Railroad Co. v. White, 548 U.S. 53, 68 (2006) (citations omitted).

22

Defendants assert that the May 30 meeting was held to modify Allen’s poor job

23 performance through counseling (Doc. 97, 7:17-18). Any mention of termination by

24 Cornelison was not a threat, but rather a possible consequence if Allen did not improve

25 her job performance (Id. 7:6-11; DSOF ¶ 14). Furthermore, Defendants contend that

26 Allen was never suspended, demoted, or the recipient of a bad performance review (Doc.

27 97, 7:12-13). In the company’s view, the counseling session was viewed as a success

28

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1 because no further criticism of Allen was ever reported (Id. 7:14-16). According to

2 Defendants, nothing at the meeting rose to the level of conduct that would dissuade a

3 reasonable worker from making or supporting a charge of discrimination, and thus, there

4 was no adverse employment action to support a retaliation claim (Id. 7:18-22).

5

In response, the EEOC alleges that the purpose of the meeting was not to address

6 Allen’s job performance, but rather to threaten Allen’s job as a way of deterring any

7 future assistance of Encinas-Castro’s discrimination charge (Doc. 106, 8:12-15). On the

8 same day that Cornelison fired Encinas-Castro, he arranged a meeting with Allen and

9 three other Creative Networks managers (Id. 8:15-16). Cornelison allegedly stated, “I

10 want to tell you something right now, I could fire you right now, because this is a right-

11 to-work state, and I don’t even have to have a reason, but I want to give you a chance to

12 be a successful employee here.” (Id. 8:17-19; PSOF ¶ 16) Cornelison’s manner

13 throughout the meeting was supposedly belligerent and hostile towards Allen (Doc.

14 106,8:21; PSOF ¶22). Cornelison allegedly later asked Allen whether she “knew

15 anything about this EEOC charge.” (Doc. 106, 8:22; PSOF ¶ 17) When she answered

16 no, Cornelison said, “Well, there’s been talk that you have been calling back and forth to

17 the Surprise office and spreading rumors.” (Doc. 106, 8:23-24; PSOF ¶ 18) Allen had

18 never been disciplined previously and Cornelison allegedly did not identify any

19 performance issues at the May 30 meeting (Doc. 106, 8:19-20; PSOF ¶ 21). The meeting

20 ended by warning Allen that Faulkner would be monitoring her work going forward (Doc.

21 106, 8:26-28; PSOF ¶ 34).

22 As to this second element of a prima facie retaliation claim, the EEOC has
23 established a genuine issue of material fact as to whether Allen suffered an adverse
24 employment action. The threats of termination and hostile conduct at the May 30 meeting
25 is reasonably likely to deter others from engaging in protected activity. See Ray, 217
26 F.3d at 1243.
27

28

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1

C. Causal Link

2

To establish causation, the EEOC relies heavily on timing. Proximity of time

3 between protected activity and an adverse action may support an inference of causation.

4 Ray, 217 F.3d at 1244. “Evidence based on timing can be sufficient to let the issue go to

5 the jury, even in the face of alternative reasons proffered by the defendant.” Passantino,

6 212 F.3d at 507 (citation omitted). “It is [also] important to emphasize that it is

7 causation, not temporal proximity itself, that is an element of plaintiff’s prima facie case,

8 and temporal proximity merely provides an evidentiary basis from which an inference can

9 be drawn.” Porter v. Cal. Dept. of Corr., 419 F.3d 885, 895 (9th Cir. 2005) (emphasis

10 added) (citing Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997)).

11 Thus, the Court must look not only to timing but to all of the circumstances to determine

12 whether an inference of causation is possible. See Coszalter v. City of Salem, 320 F.3d

13 968, 978 (9th Cir. 2003).

14 Defendants argue that the EEOC has no evidence to establish the necessary causal
15 link between the EEOC charge filed by Encinas-Castro that referenced Allen and any
16 retaliatory conduct directed at Allen in the May 30 meeting (Doc. 97, 5:23-25).
17 Defendants contend that without evidence that the employer knew about an employee’s
18 protected activity when it took an adverse employment action, the causal link is missing
19 and a Title VII retaliation claim cannot be established by Allen (Id. 5:25-6:1). See
20 Cohen, 686 F.2d at 796.
21 In the present case, Defendants claim that none of the participants at the May 30
22 meeting learned of Allen’s association with Encinas-Castro’s discrimination charge until
23 five days later when Creative Networks received the charge in the mail on June 4 (Doc.
24 97, 6:4-6; DSOF ¶¶ 3-6). Specifically, Faulkner stated at her deposition that the subject
25 of Allen’s connection to the EEOC charge was not discussed at the May 30 meeting with
26 Allen (DSOF ¶ 5). Cornelison stated that the rumor of Encinas-Castro going to the EEOC
27 was discussed in the May 30 meeting with Encinas-Castro, but not in the meeting with
28

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1 Allen later that day (Id. ¶ 6). As a result, Defendants could not engage in retaliatory

2 conduct if they did not know of Allen’s involvement with the Title VII charge (Doc. 97,

3 6:6-9).

4

The EEOC responds by noting the close time proximity between the filing of

5 Encinas-Castro’s EEOC charge on May 16, 2003 referencing Allen as a witness and the

6 subsequent May 30, 2003 counseling session with Allen (Doc. 106, 5:22-24). According

7 to the EEOC, this temporal proximity, when combined with evidence that Encinas-Castro

8 told several people about her charge and Allen’s inclusion in it, raises a genuine issue of

9 material fact as to whether Defendants were aware of the charge and Allen being named

10 as a witness prior to the May 30 meeting (Id. 5:24-28).

11 Indeed, the EEOC has presented sufficient evidence to create a genuine issue of
12 material fact with regards to the causal nexus between the protected activity and the
13 adverse employment action. In regards to timing, Encinas-Castro filed her charge of
14 discrimination with the EEOC on May 16, 2003 (PSOF ¶¶ 1,15). Allen’s name was
15 included in the charge as a witness (Id.). Less than two weeks later, on May 30, Allen
16 was summoned to a meeting with Cornelison, Faulkner, Clark, and Leary (PSOF ¶ 15).
17 At this meeting, Cornelison allegedly inquired whether Allen knew anything about
18 Encinas-Castro’s EEOC charge and threatened to terminate her for spreading rumors with
19 the Surprise office, where Encinas-Castro worked (PSOF ¶¶ 16-18).
20 Furthermore, there is evidence that three managers present at the May 30 meeting
21 knew about Encinas-Castro’s EEOC charge, including Cornelison, Clark, and Faulkner.
22 After Encinas-Castro informed Allen about the charge, Allen told Faulkner that Encinas-
23 Castro had filed a charge with the EEOC and listed Allen as a witness (Doc. 106, 6:6-8;
24 PSOF ¶¶ 5-6). On May 19, 2003, Encinas-Castro told Call about her charge and the
25 inclusion of Allen’s name as a witness (Doc. 106, 6:12-15; PSOF ¶ 9). Call then advised
26 Cornelison and Clark about the discrimination charge (Doc. 106, 6:15-16; PSOF ¶ 12).
27 This same evidence also indicates that at least one manager, Faulkner, knew Allen’s name
28

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1 was referenced as a witness (PSOF ¶¶ 5-6). As a result, the EEOC’s evidence is

2 sufficient to create a prima facie case of retaliation under Title VII. See Chuang v. Univ.

3 of Cal. Davis, Bd. of Trustees., 225 F.3d 1115, 1124 (9th Cir. 2000) (“Under the

4 McDonnell Douglas framework, ‘[t]he requisite degree of proof necessary to establish a

5 prima facie case for Title VII . . . on summary judgment is minimal and does not even

6 need to rise to the level of a preponderance of the evidence.’”) (quotation omitted).

7

D. Pretext

8 Defendants did not make an argument regarding pretext for retaliation in its
9 motion for summary judgment. In its motion for summary judgment, Defendants mainly
10 argued that the EEOC could not establish a prima facie case for retaliation. Because the
11 EEOC has established a prima facie case of retaliation, Defendants’ motion for summary
12 judgment is denied. However, as the issues regarding a legitimate nondiscriminatory
13 reason and pretext should be addressed as a matter of law before engaging in pretrial
14 matters, the Court will allow the parties to file an additional motion for summary
15 judgment, if they so desire.
16
CONCLUSION 17

18

Summary judgment is not proper as to Kathryn Allen’s claim for retaliation under

19 Title VII because the EEOC has demonstrated a prima facie case for the retaliation claim.

20

Accordingly,

21

IT IS HEREBY ORDERED DENYING Defendants Creative Networks, LLC

22 and Res-Care, Inc.’s Motion for Partial Summary Judgment (Doc. 97).

23 IT IS FURTHER ORDERED that the parties may file a motion for summary
24 judgment regarding the issues of legitimate nondiscriminatory reasons and pretext for
25 Allen’s retaliation claim by April 10, 2009, if they so desire.
26

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DATED this 9th day of March, 2009.

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 1 WO

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5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE DISTRICT OF ARIZONA

7

8 EQUAL EMPLOYMENT

) No. CV 05-3032-PHX-SMM

OPPORTUNITY COMMISSION,

)

9

) MEMORANDUM OF DECISION AND

Plaintiff,

) ORDER

10

)

v.

)

11

)

CREATIVE NETWORKS, LLC, an )

12 Arizona corporation, and RES-CARE, )

INC., a Kentucky corporation,

)

13

)

Defendants.

)

14

)

15 Before the Court is Defendant Res-Care, Inc.’s (“Res-Care”) Motion for Summary
16 Judgment (Doc. 93). Having considered the parties’ memoranda and other submissions,
17 the Court now issues this Memorandum of Decision and Order granting Res-Care’s
18 motion.1
19 FACTUAL BACKGROUND
20 On September 30, 2005, the Equal Employment Opportunity Commission
21 (“EEOC”) filed a complaint against Creative Networks, LLC (“Creative Networks”) and
22 its parent company, Res-Care, alleging unlawful employment practices under Title VII of
23 the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., and the Civil Rights
24 Act of 1991, 42 U.S.C. § 1981a (Doc. 1). The EEOC’s claim is that Rhonda Encinas-
25

26

27

1 Res-Care requests oral argument in connection with its Motion for Summary Judgment (Doc. 93). The parties have had the opportunity to submit evidence and briefing.

28 Accordingly, the Court finds the pending motion for summary judgment suitable for decision

without oral argument and Res-Care’s request is denied. See LRCiv 7.2(f), 56.2.

1 Castro (“Encinas-Castro”) and Kathryn Allen (“Allen”), two former Creative Networks

2 employees, were retaliated against “for having opposed discrimination and/or for having

3 participated in a proceeding pursuant to Title VII, including an investigation of alleged

4 employment discrimination.” (Id.)

5 Res-Care’s Acquisition of Creative Networks/Hiring of Ron Cornelison

6

Res-Care purchased Creative Networks in 1998 (Doc. 104, Pl’s Statement of Facts

7 (“PSOF”) ¶ 4). Creative Networks is a wholly-owned subsidiary of Res-Care (Id. ¶ 35).

8 Following the acquisition, Freda Smith (“Smith”), Res-Care’s Vice President of

9 Operations, determined that Creative Networks needed new leadership (Id. ¶¶ 1, 5).

10 Smith was supervised at the time by Martin Miller (“Miller”), Senior Vice President of

11 the Region for Res-Care (Id. ¶ 3). In the spring of 2001, Smith and Miller asked Ron

12 Cornelison (“Cornelison”) to become Executive Director of Creative Networks (Id. ¶ 7).

13 Smith was involved in hiring Cornelison because it was her job to select and hire the

14 individuals that led Res-Care’s subsidiaries (Id. ¶¶ 2, 6). Cornelison was the director of

15 Creative Networks during April and May of 2003 when the alleged retaliatory acts

16 against Encinas-Castro and Allen occurred (Id. ¶ 16).

17

As the Vice President of Operations, Smith visited Creative Networks four to five

18 times each year (Id. ¶ 9). Smith and Miller held bi-weekly conference calls with the

19 directors of Res-Care’s subsidiaries, including Cornelison (Id. ¶ 10). Personnel matters

20 were not discussed in these conference calls because the directors of the individual

21 subsidiaries handled those matters themselves (Doc. 104, Ex. 1, Smith Dep. 21:4-22:13).

22 Additionally, Res-Care supplied its subsidiaries with written policy manuals that included

23 information on employee benefits, such as paid time off and health insurance (PSOF ¶¶

24 11-12). Any changes to the manual to suit a particular subsidiary’s needs were approved

25 by Res-Care’s regional staff (Id. ¶ 11).

26 Investigation of Employee Complaints

27

Prior to the hiring of Cornelison, Smith held meetings with employees of Creative

28 Networks to address problems at the site during the transition period (Id. ¶ 19). Anne

- 2 -

1 Phillippi (“Phillippi”), a former Creative Networks employee, wrote a letter to Smith on

2 October 3, 2003 in which she complained that Cornelison had verbally attacked her skills

3 and damaged her reputation (Id. ¶ 20). Smith felt Phillippi’s letter was from someone

4 with sour grapes (Id. ¶ 21). Res-Care sent staff from Georgia to work with Phillippi and

5 counsel her about her job performance (Id. ¶ 22). Additionally, Smith personally

6 counseled Phillippi at Creative Networks on one occassion regarding her job performance

7 (Id. ¶ 23). Furthermore, Res-Care sent Phillippi to Georgia to teach her Res-Care’s way

8 of doing business (Id. ¶ 24).

9

While Res-Care had the power to investigate employee complaints against

10 Cornelison, Res-Care did not investigate the complaint of Phillippi because Smith felt

11 Phillippi was a person with “sour grapes.” (Id. ¶¶ 25-26) As the Vice President of

12 Operations, Smith was tasked with handling employee complaints at Res-Care’s

13 subsidiaries, including Creative Networks, as well as being aware of EEOC complaints

14 against Creative Networks (Id. ¶¶ 27-28). Smith also had some responsibility for

15 investigating discrimination charges filed with the EEOC (Id. ¶ 28). Despite this

16 responsibility, Smith never met Encinas-Castro or investigated her charges of

17 discrimination (Id. ¶ 30). After conversations with Cornelison, Smith believed that

18 Encinas-Castro “talked too much” and that there were “issues with her performance.”

19 (Id.)

20 Administrative Service Agreement

21

On January 5, 1998, Res-Care and Creative Networks entered into an

22 Administrative Service Agreement (“Agreement”) (Id. ¶ 37). This Agreement has been in

23 effect continuously since its enactment in 1998 and has never been terminated (Id. ¶ 52).

24 Article III of the Agreement sets forth “Duties of Res-Care” and Article IV outlines

25 “Duties of Company.” “Company” refers to Creative Networks under the Agreement (Id.

26 ¶ 38).

27

Article III, Section 1 of the Agreement states, “Res-Care shall process the payroll

28 for all of Company’s employees, including the issuance of checks and the withholding of

- 3 -

1 employment taxes.” (Id. ¶ 39) In accordance with this provision, payroll for all of Res-

2 Care’s subsidiaries is processed by one company, ADP, with whom Res-Care has a

3 national contract to perform payroll and paycheck issuing services (Id.). The subsidiaries

4 compile their payroll information locally and transmit this information to Res-Care (Id.).

5 Res-Care, in turn, transmits it to ADP for processing (Id.).

6

Article III, Section 1 also states, “Res-Care shall regularly publish positions open

7 with all companies with which it has service contracts in order to furnish Company and

8 other contracting parties access to individuals skilled in the field of developmental

9 disabilities and other relevant disciplines.” (Id. ¶ 40) This provision means that a list of

10 open positions is compiled by Res-Care and then sent to all of its subsidiaries for

11 publication to the employees (Id.).

12

Article III, Section 2 states, “At Company’s request, Res-Care shall furnish

13 assistance in the area of labor relations . . .” (Id. ¶ 41) Pursuant to this provision of the

14 Agreement, Res-Care helps Creative Networks with collective bargaining agreements,

15 unions, and labor contracts (Id.).

16

Article III, Section 3 of the Agreement states, Res-Care “shall enter into such

17 contracts, in the name of and at the expense of Company, as may be deemed necessary or

18 advisable for the furnishing of utilities, services, concessions, equipment and supplies for

19 the maintenance and operation of the Facilities . . .” (Id. ¶ 42) Res-Care’s 30(b)(6)

20 deponent Deena Ombres (“Ombres”) offered an example of how this provision operates

21 at her deposition. “Res-Care entered into a national contract with Verizon to provide cell

22 phone service, so employees have the option — those employees who need a cell phone

23 or a Blackberry to do their jobs have the option of entering into an agreement with

24 Verizon to get a better deal . . .The same thing holds true for, say, copier equipment,

25 office supplies, things like that.” (Id.)

26

Article III, Section 4 states, Res-Care “shall advise Company concerning all acts

27 and things to be done in and about the Facilities as shall be required by any statute,

28 ordinance, law, rule, regulation . . .” (Id. ¶ 43) Res-Care is responsible for offering its

- 4 -

1 subsidiaries legal advice about compliance with applicable laws and the estimated costs

2 of such compliance (Id.).

3

Article III, Section 6 states that Res-Care “will provide corporate and regional

4 resource personnel as requested, in the following areas to assist Company on an ongoing

5 basis.” (Id. ¶ 44) The areas include, among others, personnel management, personnel

6 policies, wage and benefit scales, and employee benefit plans (Id.).

7

Article III, Section 7 states that Res-Care “shall develop or update policies and

8 procedures for Company and recommend changes, where necessary.” (Id. ¶ 45) If a Res-

9 Care subsidiary needs a specific policy to be drafted, it can ask Res-Care to develop or

10 update the policy to comply with the applicable law (Id.).

11

Article III, Section 8 states that Res-Care “shall purchase supplies and equipment

12 on behalf of Company, as requested, and shall offer participation in Res-Care’s national

13 and regional supply agreements, if any, and provide to Company the benefits resulting

14 therefrom.” (Id. ¶ 46)

15

Article III, Section 9 states, Res-Care “shall, as required, maintain for itself and for

16 Company, at Company’s expense, certain annual insurance coverage.” (Id. ¶ 47) This

17 insurance coverage includes workers’ compensation and employer’s liability (Id.).

18

Article III, Section 10 states that Res-Care “shall establish and/or maintain zero

19 balance bank accounts, shall consolidate all receipts and monies arising from the

20 operation of Company’s business or otherwise received by Res-Care on behalf of

21 Company’s business, and shall provide funds for disbursements from the accounts of said

22 business in such amounts and at such times as the same are required.” (Id. ¶ 48)

23

Article III, Section 11 states that Res-Care “shall institute and/or defend, in its own

24 name or in Company’s name, but in any event at Company’s expense, any and all legal or

25 administrative actions . . .” (Id. ¶ 49) This provision requires Res-Care’s Legal

26 Department to respond to any EEOC charges filed against Creative Networks (Id.).

27 Indeed, the Legal Department drafted the position statements responding to the EEOC

28 charges of discrimination in the present case (Id.).

- 5 -

1

Article III, Section 12 states, “At Company’s request or as deemed necessary by

2 Res-Care, Res-Care shall advance to Company working capital sufficient to sustain and

3 continue Company’s operations . . .” (Id. ¶ 50) If Creative Networks’ expenses exceed

4 its revenues, Res-Care is obligated to provide financial assistance to Creative Networks at

5 its request (Id.).

6

Article IX, Section 1 of the Agreement states that Res-Care “shall supervise and

7 direct the keeping of full and accurate books of account and such other records reflecting

8 the results of operations of the Facilities.” (Id. ¶ 51) In accordance with this provision,

9 Res-Care’s Legal Department keeps the corporate records of Creative Networks,

10 including budget information, accounts receivable, and accounts payable (Id.).

11 Employee Information Guide

12

Creative Networks’ employees were given a copy of the manual “ResCare

13 Building Lives Reaching Potential: Employee Information Guide” (“the Guide”) that

14 included Res-Care’s policy on workplace discrimination and harassment (Id. ¶ 53). The

15 Guide was revised four times: November 2002, December 2002, October 2003, and

16 December 2006 (Id.). It was Res-Care’s expectation that Creative Networks used the

17 Guides that were created by Res-Care and distributed to its subsidiaries (Id. ¶ 56).

18

The Guide included a President’s Welcome signed by the

19 Chairman/President/CEO of Res-Care (Id. ¶ 54). Additionally, the Guide invited

20 employees of Creative Networks to voice complaints about their employment directly to

21 Res-Care management (Id. ¶ 57). Furthermore, the Guide stated that retaliation was

22 prohibited and if it was reported, an investigation would be conducted (Id. ¶ 58).

23 Discrimination complaints against the Executive Director of Creative Networks would be

24 investigated by Res-Care, rather than Creative Networks (Id.).

25

On the latest version of the Guide, dated December 2006, Creative Networks’

26 name appeared nowhere on the cover (Id. ¶ 59). Rather, the cover contained Res-Care’s

27 logo, name, corporate address, and website, along with a statement describing Res-Care’s

28 mission (Id.). At the bottom of each page, only Res-Care’s logo appeared (Id.). In the

- 6 -

1 section titled “Prohibition of Harassment,” the Guide stated that Creative Networks

2 employees may contact Res-Care’s “Region/Division Human Resources Director at the

3 regional office, and/or the Vice President of Labor and Employee Relations or the Chief

4 People Officer at the Resource Center.” (Id.) This Guide was distributed to all Creative

5 Networks employees (Id.).

6 Code of Conduct

7

Res-Care published a “Code of Conduct” and distributed it to all employees of its

8 subsidiaries, including Creative Networks (Id. ¶ 60). Res-Care expected that all

9 employees would be familiar with the Code of Conduct (Id.). Violations were required to

10 be reported to Res-Care through either its website or the “Compliance Action Line.” (Id.

11 ¶ 63) If an alleged violation involved human resource concerns, Res-Care’s regional HR

12 official might be tasked with responding to the allegations (Id. ¶ 60).

13

The Code of Conduct displayed only the Res-Care name and logo and did not

14 contain any reference to Creative Networks (Id. ¶ 61). Contained in the Code of Conduct

15 was a letter to “Fellow ResCare Employee” and signed by Res-Care’s

16 Chairman/President/CEO and a Board of Directors member (Id. ¶ 62).

17 Employee Processing Documents

18

Many of the forms that Creative Networks employees were required to sign

19 contained Res-Care’s name (Id. ¶ 64). The employee acknowledgment form signed by

20 Encinas-Castro explained that she should contact Res-Care if she was the subject of

21 discriminatory harassment (Id. ¶ 65). Res-Care’s affirmative action plan applies to all of

22 its subsidiaries, including Creative Networks (Id. ¶ 66).

23

The form titled “Authorization to Request Records Applicant Information”

24 completed by Encinas-Castro as a condition of her employment at Creative Networks lists

25 Res-Care as the entity granted authority to obtain her records (Id. ¶ 67). Creative

26 Networks is not mentioned anywhere on the form (Id.).

27

28

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1

The “Exit Interview Compliance Form” and “Employee Separation-Exit Interview

2 Checklist” form signed by Encinas-Castro upon her termination contains only Res-Care’s

3 name and logo (Id. ¶ 68).

4

PROCEDURAL BACKGROUND

5

On May 20, 2003, Encinas-Castro filed a charge of discrimination against Creative

6 Networks (Doc. 94, Ex. A, Encinas-Castro’s May 2003 Charge). Creative Networks’

7 parent company, Res-Care, was not mentioned in the charge (Id.). Next, on June 3, 2003,

8 Allen filed a charge of retaliation against Creative Networks that did not reference Res-

9 Care (Doc. 94, Ex. B, Allen’s June 2003 Charge). Also, on June 3, Encinas-Castro filed a

10 new charge of retaliation against Creative Networks (Doc. 94, Ex. C, Encinas-Castro’s

11 Amended Charge). There was no reference to Res-Care in her charge, either (Id.).

12 Finally, in March 2005, Encinas-Castro and Allen amended their charges to include Res-

13 Care as a party in addition to Creative Networks (Doc. 94, Ex. D, 2005 Amended

14 Charges).

15

On November 18, 2005, Res-Care filed a motion to dismiss for failure to state a

16 claim under Federal Rule of Civil Procedure 12(b)(6) (Doc. 8). In its Motion to Dismiss,

17 Res-Care claimed that a parent corporation was not liable for the Title VII violations of

18 its wholly-owned subsidiary absent special circumstances (Id.). The Court denied this

19 motion, finding that “It is not beyond doubt that the EEOC can prove no set of facts in

20 support of the claim against Res-Care.” (emphasis in original) (Doc. 19, 6:23-25) Now

21 that discovery has been completed, Res-Care brings the present summary judgment

22 motion arguing that the EEOC can prove no set of facts supporting a claim against Res-

23 Care.

24

STANDARD OF REVIEW

25

A court must grant summary judgment if the pleadings and supporting documents,

26 viewed in the light most favorable to the nonmoving party, “show that there is no genuine

27 issue as to any material fact and that the moving party is entitled to judgment as a matter

28 of law.” Fed. R. Civ. P. 56(c); see Celotex Corp v. Catrett, 477 U.S. 317, 322-23 (1986);

- 8 -

1 Jesinger v. Nev. Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). Substantive law

2 determines which facts are material. See Anderson v. Liberty Lobby, 477 U.S. 242, 248

3 (1986); see also Jesinger, 24 F.3d at 1130. “Only disputes over facts that might affect the

4 outcome of the suit under the governing law will properly preclude the entry of summary

5 judgment.” Anderson, 477 U.S. at 248. The dispute must also be genuine, that is, the

6 evidence must be “such that a reasonable jury could return a verdict for the nonmoving

7 party.” Id.; see Jesinger, 24 F.3d at 1130.

8

A principal purpose of summary judgment is “to isolate and dispose of factually

9 unsupported claims.” Celotex, 477 U.S. at 323-24. Summary judgment is appropriate

10 against a party who “fails to make a showing sufficient to establish the existence of an

11 element essential to that party’s case, and on which that party will bear the burden of

12 proof at trial.” Id. at 322; see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th

13 Cir. 1994). The moving party need not disprove matters on which the opponent has the

14 burden of proof at trial. See Celotex, 477 U.S. at 323-24. The party opposing summary

15 judgment need not produce evidence “in a form that would be admissible at trial in order

16 to avoid summary judgment.” Id. at 324. However, the nonmovant “may not rest upon

17 the mere allegations or denials of [the party's] pleadings, but . . . must set forth specific

18 facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); see Matsushita

19 Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-88 (1986); Brinson v.

20 Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995).

21

DISCUSSION

22

Res-Care seeks summary judgment, asserting that there are no genuine issues of

23 material fact from which a jury could conclude that Res-Care retaliated against Encinas-

24 Castro and Allen in violation of Title VII. Specifically, Res-Care asserts that it had

25 nothing to do with the personnel decisions of its subsidiary, Creative Networks, and thus,

26 there is no basis for the EEOC to keep Res-Care in the case (Doc. 93, 1:14-18; 6:3-4).

27

28

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1 I. Special Circumstances Test in Watson

2

Ninth Circuit jurisprudence holds that “[i]n the absence of special circumstances, a

3 parent corporation is not liable for the Title VII violations of its wholly owned

4 subsidiary.” Watson v. Gulf & W. Indus., 650 F.2d 990, 993 (9th Cir. 1981).2 In Watson,

5 the Ninth Circuit Court of Appeals affirmed the trial court’s grant of summary judgment

6 to a parent corporation because there was “no indication that the parent-subsidiary

7 relationship [was] a ‘sham’ or that circumstances exist that would render the parent liable

8 for debts of its subsidiary.” Id. The court noted a different result would occur, however,

9 if there had been evidence that the parent “participated in or influenced the employment

10 policies” of the subsidiary, or that the parent “had undercapitalized [the subsidiary] in a

11 way that defeated potential recovery by a Title VII plaintiff.” Id.

12

Cases following Watson have engaged in a factual analysis to determine whether a

13 parent “participated in or influenced” its subsidiary’s personnel policies. In Allen v.

14 Pacific Bell, cited by Res-Care, the district court held that SBC was entitled to summary

15 judgment because it was not a proper party. 212 F. Supp. 2d 1180, 1200 (C.D. Cal.

16 2002), aff’d in part, 348 F.3d 1113 (9th Cir. 2003). The court determined that SBC’s

17 only connection to the case was as the parent corporation of Pacific Bell, and that SBC

18 had exercised no greater control over its subsidiary than was typical in a parent/subsidiary

19 relationship. Id. The subsidiary Pacific Bell had separate offices, facilities, human

20 resource professionals, financial staff, accounting, and board of directors from SBC. Id.

21 at 1189. Additionally, Pacific Bell and SBC maintained separate payroll records, paid

22

23

2 Watson cites to two cases in support of this proposition. In the first, Hassell v.

Harmon Foods, Inc., the court looked to whether the relationship between the parent and 24 subsidiary was a “sham.” 336 F. Supp. 432, 433 (W.D. Tenn. 1971), aff’d, 454 F.2d 199 (6th

25 Cir. 1972). The second case, Lottice v. Ingersoll-Rand Co., focused on the parent and subsidiary’s separate corporate structures and lack of common employees. 14 Fair
26 Employment Practice 708 (N.D. Cal. 1977). The parent and subsidiary remained distinct

27 corporate entities incorporated in two different states. Id. Also, the parent did not control the subsidiary’s decisions as to hiring, salary, promotion, job classifications, termination, or

28 any other term of employment. Id.

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1 their state and federal employment taxes separately, processed their payroll taxes

2 separately, issued separate W-2's, and had separate tax identification numbers. Id.

3 Finally, Pacific Bell was responsible for making all hiring and work assignment

4 decisions, and SBC exercised no day-to-day control over Pacific Bell’s workforce. Id. In

5 another case cited by Res-Care, Krahel v. Owens-Brockway Glass Container, Inc., the

6 district court dismissed the parent company, Owens-Illinois, from the suit. 971 F. Supp.

7 440, 456 (D. Or. 1997). The court emphasized that the subsidiary had enough employees

8 to fall within Title VII and had enough financial assets to pay any potential judgment. Id.

9

Res-Care argues that there are no special circumstances as articulated in Watson

10 that would prevent summary judgment in its favor (Doc. 93, 7:9-10).3 Rather, the

11

12

3 Res-Care also bases its argument on Morgan v. Safeway Stores, Inc., another Ninth

13 Circuit case. 884 F.2d 1211 (9th Cir. 1989). In that case, the plaintiff was employed by
Safeway. Id. at 1212. Rather that suing Safeway for discrimination, the plaintiff sued a 14 federal credit union associated with Safeway. Id. Since the credit union had fewer than

15 fifteen employees, the Ninth Circuit applied what is known as the integrated enterprise test to determine whether Safeway and its credit union could be treated as a single employer for

16 purposes of Title VII. Id. at 1213-14. This analysis would allow the plaintiff to bring her

17

Title VII discrimination claim against the credit union despite its small number of employees. Despite Res-Care’s argument, the Court finds that the integrated enterprise test is

18 not applicable in the present case. Under the integrated enterprise test, “A plaintiff with

an otherwise cognizable Title VII claim against an employer with less than 15 employees 19 may assert that the employer is so interconnected with another employer that the two

20 form an integrated enterprise, and that collectively this enterprise meets the 15-employee minimum standard. [The court] uses the integrated enterprise test to judge the magnitude

21 of interconnectivity for determining statutory coverage.” Anderson v. Pac. Maritime Ass’n,

22

336 F.3d 924, 929 (9th Cir. 2003) (discussing the intergrated enterprise test). Thus, the analysis is focused on whether a defendant can meet the statutory criteria in terms of

23 number of employees to qualify as an “employer” under Title VII.

In the present case, Res-Care is using the integrated enterprise test to argue instead 24 that Res-Care is not jointly liable for the Title VII violations of its subsidiary. While

25 other circuits have used the integrated enterprise test to establish the liability of a parent for a subsidiary’s Title VII violations, the Ninth Circuit has never done so. Norwick v.
26 Gammell, 351 F. Supp. 2d 1025, 1034 n.28 (D. Haw. 2004). Indeed, the Ninth Circuit

27 has stated that “the [integrated enterprise] test does not determine joint liability . . . but instead determines whether a defendant can meet the statutory criteria of an ‘employer’

28 for Title VII applicability.” Anderson, 336 F.3d at 928 (emphasis in original). As such,

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1 relationship between Res-Care and Creative Networks is a typical parent-subsidiary

2 relationship where the parent supplies cost-saving, centralized services to the subsidiary

3 (Id. 7:10-11). The subsidiary is not undercapitalized and is able to defend any charges

4 against it (Id. 7:11-12). Moreover, there is no evidence that Res-Care has influenced the

5 employment policies of Creative Networks (Id. 7:12-14).

6

As evidence of Res-Care’s lack of influence over its subsidiaries’ employment

7 policies, Res-Care relies on Article IV of the Agreement between Res-Care and Creative

8 Networks (Id. 3:17-4:5, 7:14-16). This provision allegedly gives responsibility for

9 employment and personnel issues to the subsidiary, Creative Networks (Doc. 94, Def.’s

10 Statement of Facts (“DSOF”) ¶ 6-7).

11

ARTICLE IV

DUTIES OF THE COMPANY

12

1. Responsibility for Management. [Creative Networks] shall be

13

responsible for the management, supervision and operation of its

Facilities. Specifically, [Creative Networks] shall select and employ all

14

personnel at its Facilities, including the Administrator and all other

management personnel. [Creative Networks] shall be responsible for

15

the formulation and implementation of all rules, regulations, policies

and procedures of the Facilities.

16

(Id. ¶ 7). Additionally, Res-Care relies on the affidavit of Creative Networks Human

17

Resources director James Plutowski (“Plutowski”)4 and 30(b)(6) witness Ombres.

18

19 the test has no application if there is an otherwise qualified employer subject to suit in the
20 case. Here, there is no indication by any party that Creative Networks does not employ at least fifteen employees. Since Creative Networks is a defendant in the present case, the
21 Court finds that the integrated enterprise test is inapplicable.

22

4The EEOC objects to Plutowski’s affidavit on grounds that he was never identified

23 in Defendants’ disclosure statements (Doc. 105). The EEOC asks that the Court strike the

affidavit. The Court finds that this objection is unfounded, and therefore, it will not strike 24 Plutowski’s affidavit. The purpose of pretrial disclosures is to provide the names of those

25 individuals likely to have discoverable information so that the opposing party may depose them in advance of trial. It is unlikely that Plutowski would ever testify at trial, as he appears
26 to have no information regarding the alleged discrimination of Encinas-Castro and Allen.

27 His affidavit is solely for summary judgment purposes to show Res-Care’s lack of involvement in employment matters at Creative Networks (Doc. 94, Ex. F, Plutowski Aff.

28 ¶¶ 3-4). Federal Rule of Civil Procedure 56(e)(1) permits a party to submit affidavits with

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1 Plutowski stated that Res-Care had no responsibility for the day-to-day employment

2 matters at Creative Networks, including decisions regarding hiring, discipline, or

3 termination (Id. ¶ 8). Rather, Creative Networks was the one charged with enforcing its

4 applicable personnel policies and procedures (Id.). Indeed, in the present case, all of the

5 decisions related to the EEOC charges filed by Encinas-Castro and Allen were made by

6 Creative Networks with no oversight by Res-Care (Id). In her deposition, Ombres

7 testified regarding the respective responsibilities of the parent corporation Res-Care and

8 its subsidiaries, including Creative Networks.

9

• Creative Networks is a wholly-owned subsidiary of Res-Care, and is

registered in the State of Arizona as its own legal entity.

10

• The subsidiaries are responsible for training their own employees.

EEO training is provided by the subsidiaries’ HR Manager/Director.

11

• The subsidiaries conduct their own internal investigations of

discrimination or retaliation complaints made by employees.

12

• Subsidiaries compile their payroll locally and transmit the

information to the payroll service ADP. ADP then processes the

13

payroll and issues checks to the subsidiary’s employees.

• Res-Care enters into national contracts with carriers such as Verizon

14

to provide cost efficiencies to its subsidiaries. Examples include

phone service, copier equipment, office supplies, and travel services.

15

• Subsidiaries make their own budgets and revenue projections.

• Res-Care maintains a resource center with employees available to

16

help the subsidiaries on an as-needed basis. The resource center

staffs a regional human resources director and regional finance

17

director.

• Subsidiaries complete their own marketing and development plans.

18

• Res-Care’s Legal Department is responsible for drafting position

statements in response to EEOC complaints. The subsidiaries,

19

however, pay all legal costs.

• Subsidiaries maintain their own books of account.

20

• Res-Care creates the Guide which it then distributes to all of its

subsidiaries. The subsidiaries then make revisions to adapt the

21

Guide to its specific operations and business.

22

23 a summary judgment motion, provided the affidavit is based upon personal knowledge, sets
24 out facts that would be admissible in evidence, and shows the affiant is competent to testify
25 on the stated matters. Fed. R. Civ. P. 56(e)(1). Plutoswki’s affidavit is based upon his personal knowledge as the Humans Resources Director of Creative Networks for fifteen
26 years. If the EEOC had wanted to depose him, it could have made a request to the Court.
27 Rule 56(f) allows a court to order a continuance for depositions to be taken if the non-moving party shows by affidavit that it cannot present facts essential to its opposition. Fed. R. Civ.
28 P. 56(f). As no such request was made, the affidavit will not be stricken.

- 13 -

1

• Template employee forms are provided to the subsidiaries who then

adapt the forms to their needs.

2

• Subsidiaries’ personnel files are maintained at the subsidiary.

• Completed employee forms are kept at the subsidiaries themselves,

3

rather than at Res-Care.

4 (Id. ¶ 9)

5

The EEOC attempts to dispute each of these claims and contends that there are

6 disputed issues of material fact regarding Res-Care’s involvement in Creative Networks’

7 employment policies. First, the EEOC asserts that there is evidence Res-Care authored

8 and distributed the written employment policies used by Creative Networks, including its

9 Guide and Code of Conduct (Doc. 103, 4:7-9). The Guide was distributed to all Creative

10 Networks employees and contained the company’s policy on workplace harassment and

11 discrimination (PSOF ¶ 53). It also included a “President’s Welcome” signed by the

12 Chairman/President/CEO of Res-Care (Id. ¶ 54). Furthermore, the Guide displayed Res-

13 Care’s logo, name, corporate address, website and mission statement on its cover with no

14 mention of Creative Networks (Id. ¶ 59). At the bottom of each page, only Res-Care’s

15 logo appeared (Id.). The section of the Guide titled “Prohibition of Harassment” directed

16 employees to contact Res-Care management with any concerns (Id.).

17

As to the Code of Conduct, the EEOC argues that it was drafted by Res-Care and

18 distributed to all of its subsidiaries, including Creative Networks (Id. ¶ 60). The Code of

19 Conduct bears only the Res-Care name and logo, without any reference to Creative

20 Networks (Id. ¶ 61). Employees at Creative Networks were expected to be familiar with

21 the Code of Conduct, and violations were to be reported to Res-Care, either through its

22 website or the “Compliance Action Line.” (Id. ¶¶ 60, 63) Violations relating to Human

23 Resource matters were sometimes responded to by Res-Care’s regional HR official (Id. ¶

24 60). Finally, many of the employee processing documents filled out by Creative

25 Networks employees contained only the Res-Care name and logo (Id. ¶¶ 64-68).

26

Second, the EEOC argues that Res-Care influenced Creative Networks’ policies

27 and practices through its executive employees, such as Cornelison (Doc. 103, 7:6-8).

28 Res-Care retained the power to remove Creative Networks’ Executive Director and

- 14 -

1 replace him with Cornelison (PSOF ¶¶ 5-8). Smith had the power to call meetings with

2 Creative Networks employees, and in fact, she did so during the transition period prior to

3 Cornelison’s hiring (Id. ¶ 19). For example, Smith counseled Phillippi about her poor job

4 performance (Id. ¶ 23). Moreover, Smith was responsible for handling employee

5 complaints against Creative Networks and keeping abreast of any EEOC complaints filed

6 (Id. ¶¶ 26, 28). Smith had some responsibility to investigate discrimination charges filed

7 with the EEOC (Id. ¶ 28).

8

Third, the EEOC points out that the Agreement between Res-Care and Creative

9 Networks gave Res-Care some additional responsibilities, including the following:

10

• Participating in the processing of its subsidiaries’ payroll;

• Compiling information about job vacancies from its subsidiaries and

11

then distributing the list of openings to its subsidiaries’ employees;

• Assisting its subsidiaries with labor contracts and collective

12

bargaining agreements;

• Supplying its subsidiaries with legal advice regarding employment

13

disputes;

• Providing regional personnel to assist the subsidiaries with personnel

14

management, wage and benefit scales, and employee benefit plans;

• Developing and updating company procedures; and

15

• Maintaining workers’ compensation and employer’s liability

insurance for its subsidiaries.

16

(Id. ¶¶ 39-41, 43-45, 47, 49)

17

Having considered the briefing and evidence submitted by both parties, the Court

18

finds that the EEOC has not presented sufficient evidence to create a genuine issue of

19

material fact as to Res-Care’s inclusion in the case. First, Res-Care and Creative

20

Networks were distinct corporate entities (DSOF ¶ 9). Creative Networks did its own

21

human resources, financials, payroll, marketing, development, bookkeeping, and

22

accounting (Doc. 104, Ex. 2, Ombres Dep. 36:10-37:3). While Res-Care provided

23

regional personnel to assist Creative Networks with areas such as personnel policies, this

24

help was on an “as-requested” basis (PSOF ¶ 44; Doc. 104, Ex. 2, Ombres Dep. 31:24-

25

32:20). Furthermore, Creative Networks had its own tax identification number (Doc. 104,

26

Ex. 2, Ombres Dep. 31:5-19).

27

28

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1

Second, there is no evidence that Res-Care participated in any way in the decision

2 to terminate Encinas-Castro or to discipline Allen. Rather, Creative Networks was

3 responsible for making all hiring, work assignment, and termination decisions, and Res-

4 Care exercised no day-to-day control over Creative Networks’ workforce (DSOF ¶ 8;

5 Doc. 94, Ex. F, Plutowski Aff. ¶¶ 3-4). The subsidiaries conducted their own training

6 sessions, including EEO training (Doc. 94, Ex. G, Ombres Dep. 105:14-24). The

7 subsidiaries also performed their own internal investigations into allegations of

8 harassment and retaliation (Doc. 104, Ex. 2, Ombres Dep. 98:15-24).5 Furthermore,

9 employees’ personnel files were kept at the subsidiary along with all of the completed

10 employee forms (Id. 70:19-71:23; Doc. 94, Ex. G, Ombres Dep. 123:22-124:7). This

11 delegation of responsibility for employment matters to Creative Networks was reinforced

12 by Article IV of the Agreement. Article IV gives Creative Networks responsibility “for

13 the management, supervision and operations of its Facilities,” including selecting all

14 personnel and formulating and implementing all rules, regulations, policies and

15 procedures of the Facilities (DSOF ¶ 7).

16

Although Smith visited Creative Networks four or five times each year (PSOF ¶

17 9), had the power to call meetings with Creative Networks’ employees, and to counsel

18 them about their job performance (PSOF ¶¶ 19-26), these activities only occurred during

19 the transition period following Res-Care’s acquisition of Creative Networks (Doc. 129,

20 Ex. E, Smith Dep. 17:8-18:19, 34:20-35:8; Ex. B, Smith Aff. ¶¶ 4-5). After Cornelison

21 was hired as the Executive Director of Creative Networks, Smith did hold conference

22 calls with the directors of Res-Care’s subsidiaries, but did not discuss personnel issues

23 (PSOF ¶ 10; Doc. 104, Ex. 1, Smith Dep. 20:22-22:13).

24

25 5Ombres testified that when a charge of discrimination is filed against a subsidiary,
26 the charge is forwarded to Res-Care’s Legal Department (Doc. 104, Ex. 2, 46:14-21). The
27 Legal Department then drafts a position statement using information supplied by the subsidiary (Id.). However, Res-Care has no involvement in the day-to-day employment
28 decisions that give rise to such charges of discrimination.

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1

Third, as to the employment manuals that the EEOC argues were created by Res-

2 Care, these were merely templates that were modified by the subsidiaries to suit their

3 particular circumstances and needs (Doc. 104, Ex. 2, Ombres Dep. 58:19-59:3).6 Indeed,

4 the Guide given to Creative Networks’ employees exhibits multiple alterations to the

5 version supplied by Res-Care (See e.g., id. 59:21-60:19). Likewise, the employee forms

6 given by Res-Care to the subsidiaries were templates that could be adapted as needed

7 (Doc. 94, Ex. G, Ombres Dep. 115:13-116:22). Moreover, while individuals at Res-Care

8 are identified in the Guide and Code of Conduct as contacts for reporting discrimination

9 and Code of Conduct violations, Creative Networks employees also are listed (PSOF ¶¶

10 59-60; Doc. 104, Ex. 5, Employee Information Guide, Creative000442; Ex. 6, Code of

11 Conduct, Creative 000537).

12

Fourth, Res-Care also entered into nationwide contracts with companies such as

13 ADP and Verizon to provide cost efficiencies to its subsidiaries and their employees

14 (PSOF ¶¶ 39, 42; Doc. 104, Ex. 2, Ombres Dep. 17:8-14; 24:16-25:2). However, this is

15 not indicative of the type of influence and participation in employment policies spoken of

16 in Watson. The contract with ADP still required the subsidiaries to process their own

17 payroll locally, and checks had Creative Networks’ name on them (PSOF ¶ 39; Doc. 104,

18 Ex. 2, Ombres Dep. 17:6-24).

19

Finally, the EEOC has offered no evidence that the parent-subsidiary relationship

20 between Res-Care and Creative Networks is a “sham” or that Creative Networks is

21 undercapitalized in a way that would prevent Encinas-Castro and Allen from recovering

22 any judgment awarded. Indeed, the primary evidence regarding Creative Networks’

23 finances is the affidavit of Cornelison offered by Res-Care (DSOF ¶ 10; Doc. 94, Ex. H,

24 Cornelison Aff.). In it, Cornelison states that Creative Networks is able to defend the

25

26

6The EEOC claims that any changes made by the subsidiaries needed to be approved

27 by Res-Care’s regional staff, and thus, this fact further illustrates Res-Care’s control over Creative Networks (PSOF ¶ 11). However, the testimony of Ombres indicates that such

28 approval was not in fact required (Doc. 104, Ex. 2, Ombres Dep. 59:4-10).

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1 case brought against it, and capable of paying any resulting judgment or settlement (Doc.

2 94, Ex. H, Cornelison Aff. ¶ 3). Moreover, Res-Care provided Creative Networks

3 working capital as needed to sustain its operations (PSOF ¶ 50). In the absence of

4 controverting evidence, the Court concludes that Creative Networks is adequately funded.

5 II. Ron Cornelison as Agent of Res-Care

6

As an alternative argument, the EEOC argues that Ron Cornelison was a direct

7 employee of Res-Care, and thus, he acted as its agent in committing the allegedly

8 retaliatory acts against Encinas-Castro and Allen (Doc. 103, 2:8-9, 17-23). The EEOC

9 claims it is undisputed that Res-Care hired Cornelison to serve as the Executive Director

10 of Creative Networks and maintained the power to supervise, promote, or fire him (Id.

11 2:10-12). Moreover, it is undisputed that Cornelison had authority over Encinas-Castro

12 and Allen, including the authority to terminate them (Id. 2:13-16). Drawing on the

13 United States Supreme Court case of Faragher v. City of Boca Raton, 524 U.S. 775, 807

14 (1998), the EEOC argues that Res-Care is vicariously liable for the discriminatory acts of

15 its agent, Cornelison (Id. 2:24-26).

16

In response to this argument, Res-Care claims that Cornelison cannot be made the

17 target of the case (Doc. 129, 6:7). Cornelison was never mentioned in the initial

18 Complaint and the alleged victims, Encinas-Castro and Allen, based their retaliation

19 claims on meetings held with multiple Creative Networks managers, not only Cornelison

20 (Id. 6:8-11). Additionally, Res-Care contends that Faragher held that an employer can be

21 vicariously liable for the discriminatory conduct of its supervisors (Id. 6:14-15). Since

22 the employer, Creative Networks, is a defendant in the present case, it is the one who

23 would be vicariously responsible for any misconduct by its managers, not Res-Care (Id.

24 6:17-19). Indeed, Res-Care is one step removed from the situation in Faragher and thus,

25 the case is inapplicable (Id. 6:16-17).

26

The Court finds that the situation in Faragher is distinguishable from the present

27 case. In that case, a former city lifeguard, Beth Ann Faragher, brought a claim against her

28 immediate supervisors, alleging that the supervisors created a sexually hostile work

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1 environment in violation of Title VII. Faragher, 524 U.S. at 780. Faragher also claimed

2 that her supervisors were agents of the City of Boca Raton, and thus, she also sought a

3 judgment against the City. Id. at 781. The United States Supreme Court held that “An

4 employer is subject to vicarious liability to a victimized employee for an actionable

5 hostile environment created by a supervisor with immediate (or successively higher)

6 authority over the employee.” Id. at 807. As a result, the City of Boca Raton was

7 vicariously liable to Faragher for the actions of its supervisors. Id. at 808.

8

Here, Encinas-Castro and Allen’s EEOC charges listed multiple Creative

9 Networks employees responsible for the discrimination, not merely Cornelison (Doc. 94,

10 Exs. A-D). If Encinas-Castro and Allen are able to show wrongful retaliation by Creative

11 Networks’ supervisors, Creative Networks will be the one vicariously responsible for the

12 supervisors’ conduct, rather than Res-Care. Therefore, Faragher’s holding does not

13 support keeping Res-Care in the case.

14 III. Indirect Employer Theory

15

Alternatively, in opposing summary judgment, the EEOC argues that Res-Care is

16 liable for Creative Networks’ Title VII violations under the indirect employer theory

17 (Doc. 103, 8:24-27). This theory was articulated in Sibley Memorial Hospital v. Wilson,

18 488 F.2d 1338 (D.C. Cir. 1973) and later embraced by the Ninth Circuit in Gomez v.

19 Alexian Brothers Hospital of San Jose, 698 F.2d 1019 (9th Cir. 1983).

20

In its indirect employer cases, the Ninth Circuit has held that a defendant need not

21 be the plaintiff’s direct employer to be liable under Title VII. Rather, an indirect

22 employment relationship may be enough for Title VII liability. The statute covers those

23 situations where “a defendant subject to Title VII interferes with an individual’s

24 employment opportunities with another employer.” Gomez, 698 F.2d at 1021 (quoting

25 Lutcher v. Musicians Union Local 47, 633 F.2d 880, 883 n.3 (9th Cir. 1980)). See also

26 Ass’n of Mexican-Am. Educators v. State of Cal., 231 F.3d 572, 579-84 (9th Cir. 2000);

27 Anderson, 336 F.3d at 929-932.

28

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1

In Sibley, the defendant hospital operated a nursing office where hospital patients

2 could request the services of a private duty nurse. 488 F.2d at 1339. Upon a patient’s

3 request, the nursing office would contact outside referral services and ask that a private

4 nurse be sent to the hospital to aid the patient. Id. The private nurses were considered

5 employees of the patient, and were compensated by them. Id. A male private nurse sued

6 the hospital under Title VII, claiming that on two occasions a supervisory nurse turned

7 him away upon his arrival because the requesting patients were female. Id. at 1339-40.

8 The hospital moved to dismiss arguing that no employer-employee relationship existed as

9 required to come under Title VII’s coverage. Id. at 1340. The District of Columbia

10 Circuit held on appeal that Title VII did not require a direct employer-employee

11 relationship. Id. at 1340-41.

12

Then in Gomez, the Ninth Circuit adopted Sibley’s reasoning to find a hospital

13 was an indirect employer. A Hispanic physician working for the corporation AES

14 submitted a proposal to the defendant hospital to operate the hospital’s emergency room.

15 Gomez, 698 F.2d at 1020. The hospital allegedly rejected the proposal due to the high

16 number of Hispanics working for AES. Id. After the physician sued under Title VII, the

17 district court granted the hospital summary judgment on grounds of standing. Id. The

18 district court held that under the contract, the plaintiff would have been an employee of

19 AES, rather than the hospital, and AES would have been merely an independent

20 contractor. Id. The Ninth Circuit reversed, and held that AES’s status as an independent

21 contractor did not mean that the hospital had not somehow interfered with the

22 employment relationship between the physician and AES. Id. at 1021-22. The Ninth

23 Circuit noted the perverse result if the hospital were allowed “‘to exploit circumstances

24 peculiarly affording it the capability of discriminatorily interfering with an individual's

25 employment opportunities with another employer, while it could not do so’” with its own

26 employees. Id. at 1021 (quoting Sibley, 488 F.3d at 1341).

27

28

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1

Despite the EEOC’s arguments, the Court finds the indirect employer theory

2 inapplicable in the present case.7 Each of the Ninth Circuit cases drawing on Sibley’s

3 rationale has done so in cases where the indirect employer was the entity engaging in the

4 discriminatory conduct. In Sibley, the indirect employer was the hospital that refused to

5 allow the male nurse to treat the female patient, while in Gomez, it was the hospital that

6 refused to employ AES because of its Hispanic doctors. See Sibley,488 F.2d at 1338;

7 Gomez, 698 F.2d at 1019. In the present case, however, the alleged retaliation did not

8 occur at a facility controlled by Res-Care, but instead at its subsidiary, Creative

9 Networks, that actually employs and supervises Encinas-Castro and Allen and their

10 alleged harassers. Under these circumstances, the considerations justifying liability for

11 indirect employers under Title VII are not applicable. Moreover, Sibley and its progeny

12 extended Title VII coverage to indirect employers when they “‘interfere[d] with an

13 individual’s employment opportunities with another employer.’” Gomez, 698 F.2d at

14 1021 (quoting Lutcher, 633 F.2d at 883 n.3). Res-Care is not interfering with Encinas-

15 Castro and Allen’s relationship with their employer, Creative Networks, because it was

16 Creative Networks that allowed the retaliation to occur at its workplace.

17

CONCLUSION

18

In conclusion, the EEOC has not raised a genuine issue of material fact for its

19 claims against Res-Care, and therefore, the Court grants summary judgment in Res-Care’s

20 favor.

21

Accordingly,

22

IT IS HEREBY ORDERED GRANTING Defendant Res-Care, Inc.’s Motion

23 for Summary Judgment (Doc. 93).

24

25 7The EEOC gives a list of factors supposedly relevant to the indirect employer
26 analysis and cites to Anderson (Doc. 103, 9:7-16). While the Ninth Circuit in Anderson took
27 such considerations into account in its analysis, it is not clear that an analysis of these factors is always required under either Sibley or its progeny. Since the Court finds the indirect
28 employer theory inapplicable in the instant case, it does not consider these factors.

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1

IT IS FURTHER ORDERED that Defendant Res-Care is dismissed from the

2 present case.

3

DATED this 19th day of March, 2009.

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 Case 2:05-cv-03032-SMM Document 169 Filed 01/15/10 Page 1 of 20

1 WO

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE DISTRICT OF ARIZONA

7

8 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
9 Plaintiff,
10 v.
11 CREATIVE NETWORKS, LLC, an
12 Arizona corporation,

13

Defendant.

14

) No. CV 05-3032-PHX-SMM ) ) MEMORANDUM OF DECISION AND ) ORDER ) ) ) ) ) ) ) )

15

Before the Court is Defendant Creative Networks, LLC (“Creative Network”)’s

16 Motion for Summary Judgment as to Kathy Allen, filed April 10, 2009 (Doc. 132).1 Plaintiff

17 Equal Employment Opportunity Commission (“EEOC”) filed a response on June 12, 2009

18 (Doc. 143), followed by a supplemental response on July 24, 2009 (Doc. 148).2 Creative

19

20

1Creative Networks chose not to bring a summary judgment motion with regard to the

other Plaintiff in this case, Rhonda Encinas-Castro.

21

2Along with its summary judgment Response, the EEOC filed a motion to strike 22 portions of Creative Networks’ summary judgment motion (Doc. 142). The Court granted

23 the motion in part in a July 2, 2009 Order (Doc. 147). The Court ordered that Section III(B) of Creative Networks’ motion be stricken because it discusses whether Creative Networks
24 had notice of Rhonda Encinas-Castro’s charge of discrimination (Id.). This topic had been

25 decided by the Court in a previous summary judgment ruling (Doc. 130). In addition to striking Section III(B), the Court also ordered the EEOC to file a short response regarding

26 whether being named in an EEOC charge constitutes protected activity (Doc. 147).

27

A second motion to strike was later filed by the EEOC on September 2, 2009 (Doc. 152). The EEOC requested that the Court strike (1) Section D(1) of Creative Networks’

28 Reply in support of summary judgment and (2) Exhibit D of the Reply. After reviewing the

briefing as well as holding oral argument, the Court denied the motion to strike (Doc. 164).

Case 2:05-cv-03032-SMM Document 169 Filed 01/15/10 Page 2 of 20

1 Networks then replied on August 10, 2009 (Doc. 150). Creative Networks requested oral

2 argument in connection with its Motion for Summary Judgment (Doc. 132). The parties have

3 had the opportunity to submit evidence and briefing. Accordingly, the Court finds the

4 pending motion suitable for decision without oral argument and Creative Networks’ request

5 is denied. See LRCiv 7.2(f), 56.2. Having considered the parties’ briefing and other

6 submissions, the Court now issues this Memorandum of Decision and Order denying

7 Creative Networks’ motion.

8

FACTUAL BACKGROUND

9

The EEOC alleges that Creative Networks discriminated against two of its employees,

10 Rhonda Encinas-Castro (“Encinas-Castro”) and Kathryn Allen (“Allen”), in retaliation for

11 having opposed discrimination and/or having participated in a proceeding under Title VII,

12 including an investigation of alleged employment discrimination (Doc. 1, Compl). Encinas-

13 Castro claims that Creative Networks retaliated against her by terminating her for filing a

14 discrimination charge with the EEOC (Compl. ¶ 9). Allen claims that Creative Networks

15 retaliated against her by holding a corrective counseling session after she was identified as

16 a witness in fellow employee Encinas-Castro’s EEOC charge (Id. ¶ 10).

17

On May 16, 2003, Encinas-Castro filed a charge of discrimination with the EEOC

18 (Doc. 144, Pl’s Statement of Facts (“PSOF”) ¶ 1; Ex. 1; Ex. 2, Encinas-Castro Decl. ¶ 3).3

19 After an EEOC representative interviewed Encinas-Castro, she was told that the EEOC

20 would finish the charge and mail it to her for her signature (Id.). Subsequently, Encinas-

21 Castro received the EEOC charge in the mail, and she signed and dated it on Tuesday, May

22 20, before mailing it back to the EEOC (Id.). The EEOC received the signed charge on

23

24 A motion for reconsideration of that Order (Doc. 165) was filed on December 28, 2009 and 25 it was denied by the Court (Doc. 168).

26

27

3For ease of reference, Exhibit 1-10 are attached to Document 144, EEOC’s Statement

of Facts. Exhibit A-F are attached to Document 133, Creative Networks’ Statement of Facts.

28

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Case 2:05-cv-03032-SMM Document 169 Filed 01/15/10 Page 3 of 20

1 Friday, May 23 (PSOF ¶ 1; Ex. 1). Encinas-Castro’s charge specifically included Allen’s

2 name as a witness to the discriminatory comments (PSOF ¶ 2; Ex. 1; Ex. 2, Encinas-Castro

3 Decl. ¶ 4).

4

Upon filing her charge with the EEOC, Encinas-Castro told several coworkers that

5 she had gone to the EEOC to file a charge (PSOF ¶ 3; Ex. 2, Encinas-Castro Decl. ¶¶ 5-7).

6 On May 16, the day Encinas-Castro filed her discrimination charge, she advised Millie

7 Santiago that she had gone to the EEOC to file a charge and identified Allen as a witness

8 (PSOF ¶ 3; Ex. 2, Encinas-Castro Decl. ¶ 6). A few days later, on May 19, Encinas-Castro

9 advised Ginger Call (“Call”) that she had gone to the EEOC to file a charge and identified

10 Allen as a witness (PSOF ¶¶ 3, 9; Ex. 2, Encinas-Castro Decl. ¶ 5). Call was a Program

11 Manager with Creative Networks (PSOF ¶ 8). Call then informed her supervisor Jennifer

12 Clark (“Clark”) that there was a rumor that Encinas-Castro was going to file a charge of

13 discrimination with the EEOC (Id. ¶ 10; Ex. 3, Call Dep. at 118:6-16). Clark indicated that

14 she was going to pass the information onto Ron Cornelison (“Cornelison”), Executive

15 Director of Creative Networks (PSOF ¶¶ 11, 24; Ex. 3, Call Dep. at 119:8-18). Also, on May

16 19, Encinas-Castro told Bonnie Cooper (“Cooper”) that she had filed an EEOC charge and

17 named Allen as a witness (PSOF ¶¶ 3-4; Ex. 2, Encinas-Casto Decl. ¶ 7). Cooper then told

18 Call that Encinas-Castro had filed a charge, and Call told Cooper that she had already

19 elevated the information about the charge to Cornelison (PSOF ¶ 4; Ex. 4, Cooper Dep. at

20 22:15-23:20).

21

Sometime after filing her charge, Encinas-Castro informed Allen that she had named

22 her as a witness in the charge and that the EEOC may be contacting her (PSOF ¶ 5; Ex. 6,

23 Allen Decl. ¶ 3; Ex. 9, Encinas-Castro Dep. At 85:2-17). In turn, Allen confided in Edna

24 Faulkner (“Faulkner”), Coordinator for the Maricopa Integrated Health Services (“MIHS”)

25 and Division of Developmental Disability (“DDD”), about Encinas-Castro’s charge (PSOF

26 ¶¶ 5-6; Ex. 6, Allen Decl. ¶ 4). Allen also told Faulkner that she had been mentioned as a

27 witness in Encinas-Castro’s charge (PSOF ¶ 6; Ex. 6, Allen Decl.¶ 4). On May 29, 2003,

28 Faulkner told Allen that she had been called into a meeting, “they” are aware of Encinas-

- 3 -

Case 2:05-cv-03032-SMM Document 169 Filed 01/15/10 Page 4 of 20

1 Castro’s charge and “everything is going to really explode now.” (PSOF ¶ 7; Ex. 5, Allen

2 Dep. at 90:8-17, 90:21-91:14). Allen testified that Faulkner told her that Leary and Clark

3 were at the May 29 meeting (Ex. 5, Allen Dep. at 91:15-24).

4

Sometime before May 30, Call spoke again with Clark and Cornelison and advised

5 them of a rumor that Encinas-Castro had gone to the EEOC (PSOF ¶ 12). Cornelison and

6 Clark replied, “Let’s bring [Encinas-Castro] in and have a discussion with her.” (Id.; Ex. 3,

7 Call Dep. at 120:3-25) A meeting with Encinas-Castro was held on May 30 and that same

8 day, Cornelison fired Encinas-Castro (PSOF ¶¶ 13-14; Ex. 2, Encinas-Castro Decl. ¶ 12; Ex.

9 3, Call Dep. at 121:3-7). Cornelison testified that after he fired Encinas-Castro, Faulkner told

10 him that he should speak to Allen too (PSOF ¶ 27; Ex. 8, Cornelison Dep. at 175:1-11).

11

After she was fired, Encinas-Castro called Allen and told her about the termination

12 (Ex.5, Allen Dep. 95:13-14; Ex. 6, Allen Decl. ¶ 5). Minutes later, Faulkner came to Allen’s

13 office and indicated that Cornelison wanted to speak with Allen (PSOF ¶ 15; Ex.5, Allen

14 Dep. at 95:13-18; Ex. 6, Allen Decl. ¶ 6). In attendance at this meeting was Allen,

15 Cornelison, Clark, Faulkner, and Operations Manager, Linda Leary (“Leary”) (PSOF ¶ 15,

16 Ex. 5, Allen Dep. at 95:19-21; Ex. 6, Allen Decl. ¶ 7; Ex. 7, Faulkner Dep. at 96:9-16; Ex.

17 8, Cornelison Dep. at 180:20-23). The EEOC claims that Cornelison, Clark, and Faulkner

18 all knew about Encinas-Castro’s charge when they met with Allen (PSOF ¶¶ 5-6,9-10,12).

19

During the meeting, Cornelison told Allen, “I want to tell you something right now,

20 I could fire you right now, because this is a right-to-work state, and I don’t even have to have

21 a reason, but I want to give you a chance to be a successful employee here.” (Id. ¶ 16; Ex.

22 5, Allen Dep. at 95:22-25) Cornelison then asked Allen what she knew about Encinas-

23 Castro’s EEOC charge (PSOF ¶ 17; Ex. 5, Allen Dep. at 96:3-10). When Allen denied

24 knowing anything, Cornelison told Allen, “‘Well, there’s been talk that you have been calling

25 back and forth to the Surprise office and spreading rumors,’ and . . . ‘I want to really try and

26 make you successful here,’ and . . . ‘I, out of all the people in this company since I’ve started,

27 I’ve noticed you with a negative attitude.’” (PSOF ¶ 18; Ex. 5, Allen Dep. at 96:10-16) Prior

28

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1 to the May 30 meeting, Allen had never been disciplined or counseled for performance

2 problems before (PSOF ¶ 21; Ex. 6, Allen Decl. ¶ 1).

3

During the meeting, Cornelison allegedly spoke to Allen in a belligerent and hostile

4 manner (PSOF ¶ 22; Ex. 6, Allen Decl. ¶ 12). Since Encinas-Castro worked in the Surprise

5 office until her termination, Allen took the reference to her communications with the Surprise

6 office to mean her conversations with Encinas-Castro about the discrimination (PSOF ¶¶ 19-

7 20; Ex.6, Allen Decl.¶ 9). Faulkner also took the comments about the Surprise office to

8 mean Allen’s conversations with Encinas-Castro, since the two women were friends (PSOF

9 ¶ 30; Ex. 7, Faulkner Dep. at 101:2-16). At the end of the meeting, Cornelison indicated that

10 he was going to have Faulkner monitor Allen’s work in the future (PSOF ¶ 32; Ex, 5, Allen

11 Dep. at 96:23-97:2).

12

Allen believed her job was threatened based upon (1) Cornelison’s statement that

13 Allen could be fired “right now” because “Arizona is a right-to-work state”; (2) the reference

14 by Cornelison to the EEOC charge filed by Encinas-Castro shortly after her termination

15 earlier in the day; (3) Cornelison’s angry and hostile demeanor; and (4) Encinas-Castro’s

16 termination on the same day (PSOF ¶ 23; Ex. 6, Allen Decl. ¶ 13). During the meeting, Allen

17 never acknowledged that she had a poor attitude or that she would improve her job

18 performance (PSOF ¶ 31). Leary told Allen that the meeting was not related to Allen’s job

19 performance (Id.).

20

PROCEDURAL BACKGROUND

21

Allen filed a Charge of Discrimination with the EEOC on March 19, 2005(Doc. 133,

22 Ex. E).4 On September 30, 2005, the EEOC filed suit, on behalf of Allen, under Title VII of

23

24

4This complaint alleged that after Allen’s name was referenced in Encinas-Castro’s

25 EEOC charge, Allen was called into a meeting with Cornelison, Faulkner, Clark, and Leary (Doc. 132, Ex. E). During the meeting, “Cornelison made false accusations about me,
26 advised me my work performance would be monitored, and threatened to terminate my

27 employment.” (Id.) Additionally, “Cornelison harassed and intimidated me by advising me that Arizona is a right to work state and he could terminate my employment at any time.”

28 (Id.)

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Case 2:05-cv-03032-SMM Document 169 Filed 01/15/10 Page 6 of 20

1 the Civil Rights Act of 1964, as amended, and Title I of the Civil Rights Act of 1991 (Doc.

2 1). The initial complaint sued both Creative Networks, LLC and its parent company, Res-

3 Care, Inc. The EEOC alleged that Defendants subjected Allen to adverse employment

4 actions in retaliation for opposing what she reasonably believed was discrimination and/or

5 participating in a proceeding pursuant to Title VII, including being named as a witness in

6 Encinas-Castro’s charge of discrimination (Compl. ¶ 10). The alleged retaliatory acts

7 included discipline and threats of termination (Id.).

8

On April 11, 2008, Defendants brought two summary judgment motions (Doc. 93, 97)

9 and the EEOC filed one as well (Doc. 95). The EEOC’s motion requested the dismissal of

10 four of Defendants’ affirmative defenses: statute of limitations, laches, estoppel, and waiver

11 (Doc. 95). After the motion was filed, the parties reached a stipulation to exclude the four

12 affirmative defenses (Doc. 109). Pursuant to the stipulation, the Court ordered that the

13 specified affirmative defenses be stricken from Defendants’ Answers, and the EEOC’s

14 summary judgment motion was denied as moot (Doc. 119).

15

The second motion, filed by Defendant Res-Care, sought its dismissal from the case

16 because it was not involved in its subsidiary Creative Networks’ personnel decisions

17 (Doc.93). The Court granted this motion on March 19, 2009 and dismissed Res-Care from

18 the case (Doc. 131). Pursuant to Federal Rule of Civil Procedure 54(b), Res-Care moved for

19 entry of a final judgment on April 13, 2009 (Doc. 134). The Court granted Res-Care’s

20 motion (Doc. 137), and final judgment as to Res-Care only was entered on May 4, 2009

21 (Doc. 138).

22

Finally, both Defendants brought a Motion for Partial Summary Judgment as to Kathy

23 Allen (Doc. 97). In this motion and the EEOC’s response, the parties focused on the prima

24 facie case for retaliation. The Court denied Defendants’ motion and allowed the parties to

25 file another summary judgment motion addressing legitimate, non-discriminatory reason and

26 pretext (Doc. 130). This motion is the one pending before the Court.

27

28

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Case 2:05-cv-03032-SMM Document 169 Filed 01/15/10 Page 7 of 20

1

STANDARD OF REVIEW

2

A court must grant summary judgment if the pleadings and supporting documents,

3 viewed in the light most favorable to the nonmoving party, “show that there is no genuine

4 issue as to any material fact and that the movant is entitled to judgment as a matter of law.”

5 Fed. R. Civ. P. 56(c)(2); see Celotex Corp v. Catrett, 477 U.S. 317, 322-23 (1986); Jesinger

6 v. Nev. Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). Substantive law determines

7 which facts are material. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); see also

8 Jesinger, 24 F.3d at 1130. “Only disputes over facts that might affect the outcome of the suit

9 under the governing law will properly preclude the entry of summary judgment.” Anderson,

10 477 U.S. at 248. The dispute must also be genuine, that is, the evidence must be “such that

11 a reasonable jury could return a verdict for the nonmoving party.” Id.

12

A principal purpose of summary judgment is “to isolate and dispose of factually

13 unsupported claims.” Celotex, 477 U.S. at 323-24. Summary judgment is appropriate

14 against a party who “fails to make a showing sufficient to establish the existence of an

15 element essential to that party’s case, and on which that party will bear the burden of proof

16 at trial.” Id. at 322; see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir.

17 1994). The moving party need not disprove matters on which the opponent has the burden

18 of proof at trial. See Celotex, 477 U.S. at 323-24. The party opposing summary judgment

19 need not produce evidence “in a form that would be admissible at trial in order to avoid

20 summary judgment.” Id. at 324. However, the nonmovant “may not rely merely on

21 allegations or denials of its own pleading; rather, its response must . . . set out specific facts

22 showing a genuine issue for trial.” Fed. R. Civ. P. 56(e); see Matsushita Elec. Indus. Co.,

23 Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Brinson v. Linda Rose Joint Venture,

24 53 F.3d 1044, 1049 (9th Cir. 1995).

25

DISCUSSION

26

Creative Networks seeks summary judgment on the EEOC’s claim of retaliation

27 related to Allen, asserting there are no genuine issues of material fact from which a jury

28 could conclude that Creative Networks retaliated against Allen in violation of Title VII.

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Case 2:05-cv-03032-SMM Document 169 Filed 01/15/10 Page 8 of 20

1 Specifically, Creative Networks asserts that the EEOC cannot establish a retaliation claim

2 as to Allen for two separate reasons: (1) Allen is not entitled to the protection of Title VII’s

3 participation clause pursuant to 42 U.S.C. § 2000e-3 and (2) Creative Networks demonstrates

4 a legitimate, non-discriminatory reason for its May 30, 2003 counseling session with Allen

5 (Doc. 132, 1:18-24).

6 I. Retaliation

7

The EEOC alleges retaliation in violation of Title VII of the Civil Rights Act of 1964,

8 42 U.S.C. § 2000e et seq. Title VII makes it an unlawful employment practice for an

9 employer to discriminate against an individual because she has opposed any employment

10 practice made unlawful by Title VII, or because she has made a charge, testified, assisted,

11 or participated in any manner in an investigation, proceeding, or hearing under Title VII. 42

12 U.S.C. § 2000e-3(a).

13 To establish a prima facie retaliation claim under Title VII, an employee must show
14 that (1) she engaged in a protected activity; (2) her employer subjected her to an adverse
15 employment action; and (3) a causal link exists between the protected activity and the
16 adverse action. Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 506
17 (9th Cir. 2000) (citation omitted); Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000);
18 Little v. Windermere Relocation, Inc., 301 F.3d 958, 969 (9th Cir. 2002). To show the
19 requisite causal link, the plaintiff must present sufficient evidence to raise an inference that
20 the protected activity was the likely reason for the adverse action. Cohen v. Fred Meyer,
21 Inc., 686 F.2d 793, 796 (9th Cir. 1982).
22 If a plaintiff has shown a prima facie retaliation claim, then the burden shifts to the
23 defendant to furnish legitimate nondiscriminatory reasons for the adverse employment action.
24 Ray, 217 F.3d at 1240. If the defendant meets that burden, then the plaintiff bears the
25 ultimate burden of demonstrating that the reason was merely a pretext for a discriminatory
26 motive. Id. The plaintiff may show pretext “‘either directly by persuading the court that a
27 discriminatory reason more likely motivated the employer or indirectly by showing that the
28

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Case 2:05-cv-03032-SMM Document 169 Filed 01/15/10 Page 9 of 20

1 employer’s proffered explanation is unworthy of credence.’” Villiarimo v. Aloha Island Air,

2 Inc., 281 F.3d 1054, 1062 (9th Cir. 2002) (quoting Chaung v. Univ. of Cal. Davis, 225 F.3d

3 1115, 1123 (9th Cir. 2000)). Circumstantial evidence relied on to show pretext must be

4 “both specific and substantial.” Id.

5

A. Prima Facie Case

6 The Court previously found that the EEOC produced the minimal requisite degree of
7 proof necessary to establish a prima facie case of retaliation (Doc. 130). Then in response
8 to an EEOC motion, the Court allowed additional briefing solely on the issue of protected
9 activity (Doc. 147). Protected activity, one of the components of a prima facie case, had not
10 been raised until Creative Networks’ reply, and thus, the EEOC had not been afforded an
11 opportunity to address the issue (Id.). Moreover, the Court found that the issue of whether
12 being named as a witness in an EEOC charge constituted protected activity was a novel one
13 in the Ninth Circuit that should be addressed prior to any trial (Id.).
14
42 U.S.C. § 2000e-3(a) states that “it shall be an unlawful employment practice for 15
an employer to discriminate against any of his employees . . . because he has opposed any 16
practice made [unlawful by Title VII] . . . or because he has made a charge, testified, assisted, 17
or participated in any manner in an investigation, proceeding, or hearing.” This provision 18
has two components: an opposition clause and a participation clause. Allen cannot seek 19
protection under the opposition clause because she did not oppose the discrimination suffered 20
by Encinas-Castro.5 As a result, Allen must rely solely on the participation clause, 21

22

23

24

5Although the EEOC’s Complaint states that Allen was retaliated against “for

25 opposing what she reasonably believed was discrimination and/or participating in a proceeding pursuant to Title VII”, Allen is not protected under the opposition clause (Compl.
26 ¶ 10). To find protection under the opposition clause, an employee must have opposed an

27 employment practice made unlawful by the statute. 42 U.S.C. § 2000e-3(a). In other words, the opposition must be to an employment practice of the employer. Here, Allen took no

28 action to oppose any unlawful employment practices of Creative Networks.

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Case 2:05-cv-03032-SMM Document 169 Filed 01/15/10 Page 10 of 20

1 contending that she “testified, assisted, or participated in any manner in an investigation,

2 proceeding, or hearing.”

3

According to Creative Networks, protected activity under Title VII’s participation

4 clause requires an affirmative action, such as testifying, assisting, or participating in an

5 investigation, proceeding, or hearing (Doc. 132, 5:6-8). Creative Networks asserts that

6 Allen’s passive acts of being named as a witness in Encinas-Castro’s EEOC charge and

7 telling others that she had been named is not enough to gain protection under the

8 participation clause (Id. 5:17-19). Allen had not made a charge of discrimination, testified,

9 or participated in an investigation, proceeding, or hearing (Id. 5:21-23). Moreover, argues

10 Creative Networks, Allen did not even know that she had been named in the EEOC charge

11 until after the fact (Id. 5:16-17).

12 The EEOC, however, contends that simply being named in an EEOC charge is
13 sufficient for protection under the participation clause for two reasons. First, the plain
14 language of Title VII’s retaliation provision broadly protects assistance or participation in
15 an investigation “in any manner.” (Doc. 148, 2:23-27). According to the EEOC, this phrase
16 “in any manner” is broadly interpreted by courts such that its expansive meaning is given
17 literal effect (Id. 4:9-11). Second, the EEOC argues that the purpose of Title VII’s retaliation
18 provision is to protect employees like Allen (Id. 4:22-5:2). Without such protection, named
19 witnesses could be intimidated freely by an employer into not testifying on behalf of a co-
20 worker (Id. 5:3-10). Such threats would deter employees from serving as witnesses and harm
21 Title VII prosecutions (Id. 5:22-6:2).
22
The Court finds no Ninth Circuit authority directly on point on the issue of whether 23
being named as a witness in a EEOC charge constitutes protected activity. However, courts 24
have utilized the approach advocated by the EEOC and considered both the statutory 25
language and purpose of Title VII in determining whether an activity is protected under the 26
anti-retaliation clause. 27

28

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Case 2:05-cv-03032-SMM Document 169 Filed 01/15/10 Page 11 of 20

1

1. Plain Language of Retaliation Clause

2

In construing a statute, a court must start with the language of the statute itself. The

3 Supreme Court has advised, “We have stated time and again that courts must presume that

4 a legislature says in a statute what it means and means in a statute what it says there.” Conn.

5 Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992). When the words of a statute are

6 unambiguous, judicial inquiry ends upon a review of the statute’s language. Id. at 254.

7 42 U.S.C. § 2000e-3(a) states that “it shall be an unlawful employment practice for
8 an employer to discriminate against any of his employees . . . because he has opposed any
9 practice made [unlawful by Title VII] . . . or because he has made a charge, testified, assisted,
10 or participated in any manner in an investigation, proceeding, or hearing.” Courts have
11 consistently recognized that the explicit language of the participation clause offers broad
12 protection to Title VII claimants. In Deravin v. Kerik, the Second Circuit stated that the
13 “explicit language . . . is expansive and seemingly contains no limitations.” 335 F.3d 195,
14 203 (2d Cir. 2003). The court found that the words “participate[] in any manner” evinced
15 Congress’ intent to confer broad protection because the word “any” had an expansive
16 meaning. Id. at 204. “So long as ‘Congress did not add any language limiting the breadth
17 of that word,’ the term ‘any’ must be given literal effect.” Id. (quoting United States v.
18 Gonzales, 520 U.S.1 (1997)). Likewise, the Eleventh Circuit in Merritt v. Dillard Paper Co.
19 stated that the anti-retaliation provision is “straightforward and expansively written.” 120
20 F.3d 1181,1186 (11th Cir. 1997). The court continued, “as to ‘participated in any manner,’
21 the adjective ‘any’ is not ambiguous; it has a well-established meaning. . . ‘Congress did not
22 add any language limiting the breadth of that word,’ so ‘any’ means all.” Id. (quoting
23 Gonzales, 520 U.S. 1).
24
Other circuits, including the Ninth, have adopted a similarly broad reading of the 25
participation clause. See e.g., Pettway v. Am. Cast Iron Pipe Co., 411 F.2d 998, 1006 n.18 26
(5th Cir. 1969) (noting that the participation clause provides “exceptionally broad” protection 27
for employees covered by Title VII); Booker v. Brown & Williamson Tobacco Co., 879 F.2d 28

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Case 2:05-cv-03032-SMM Document 169 Filed 01/15/10 Page 12 of 20

1 1304, 1312 (6th Cir. 1989) (noting that “federal courts have generally granted less protection

2 for opposition than for participation” and that the participation clause offers “exceptionally

3 broad protection”); Learned v. City of Bellevue, 860 F.2d 928, 932 (9th Cir. 1988) (“The

4 participation clause is broadly construed to protect employees who utilize the tools provided

5 by Congress to protect their rights.”)(citation omitted); Kelly v. City of Albuquerque, 542

6 F.3d 802, 814 (10th Cir. 2008) (“The term ‘any’ carries an expansive meaning when . . . it

7 is used without limitation. . . When the term is given its natural effect in this statutory context

8 it relates to all types of participation.”) (citation omitted).

9

As stated above, when the words of a statute are unambiguous, judicial inquiry ends

10 upon a review of the statute’s language. Conn. Nat’l Bank, 503 U.S. at 254. As a result,

11 reliance on the statute alone likely is sufficient to find that Allen engaged in protected

12 activity when she was named as a witness in Encinas-Castro’s charge of discrimination. The

13 participation clause has been given an expansive meaning by the courts and interpreted very

14 broadly to encompass many forms of participation. See e.g., Hashimoto v. Dalton, 118 F.3d

15 671, 680 (9th Cir. 1997) (initiating complaint with EEOC counselor is protected activity);

16 Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 174-75 (2d Cir. 2005) (employee named

17 as witness in deposition but who never testifies engages in protected activity); Merritt, 120

18 F.3d at 1186 (employee who involuntarily testifies engages in protected activity).

19 Here, Allen was named specifically in Encinas-Castro’s charge of discrimination as
20 a witness to discriminatory conduct and then discussed that fact with both Encinas-Castro
21 (PSOF ¶ 5) and Faulkner (PSOF ¶¶ 5-6). These actions associated Allen with Encinas-
22 Castro’s Title VII claim and were sufficient to place her within the protection of the
23 participation clause.
24
2. Purpose of Retaliation Provision 25

26

In addition to the statutory language, some courts consider the broader context of the

27 statute as a whole to ensure that statutory provisions are interpreted consistent with a statute’s

28 overall purpose. See Robinson v. Shell Oil Co., 519 U.S. 337, 345-46 (1997). The anti-

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Case 2:05-cv-03032-SMM Document 169 Filed 01/15/10 Page 13 of 20

1 retaliation provision 42 U.S.C. § 2000e-3(a) is meant to prevent harm to employees who

2 report discriminatory employment practices or assist in the investigation of these practices.

3 Crawford v. Metro. Gov’t of Nashville and Davidson County, Tenn., 129 S. Ct. 846, 852

4 (2009). The Supreme Court in Crawford held that “prudent employees would have a good

5 reason to keep quiet about Title VII offenses against themselves or against others” if an

6 employer could punish employees who reported discrimination without remedy. Id. The

7 purpose of the anti-retaliation clause is to “[maintain] unfettered access to statutory remedial

8 mechanisms.” Robinson, 519 U.S. at 346; see also Glover v. S.C. Law Enforcement Div.,

9 170 F.3d 411, 414 (4th Cir. 1999) (“Section 704(a)’s protections ensure not only that

10 employers cannot intimidate their employees into foregoing the Title VII grievance process,

11 but also that investigators will have access to the unchilled testimony of witnesses.”);

12 Booker, 879 F.2d at 1313 (“The purpose of the statute is to protect access to the machinery

13 available to seek redress for civil rights violations and to protect the operation of that

14 machinery once it has been engaged.”).

15

In Jute, a case on which both parties rely, the Second Circuit considered the anti-

16 retaliation provision’s broader context to ensure that its language was interpreted consistent

17 with Title VII’s overall purpose. 420 F.3d at 174. The court determined that the anti-

18 retaliation clause was enacted to shield an employee who attempts to challenge

19 discriminatory conduct from retaliation by his employer. Id. at 175. To leave an employee

20 who is “poised to support a co-worker’s discrimination claim wholly unprotected” would be

21 destructive of that purpose and would mean that an employer could retaliate freely provided

22 that it did so before the employee testified or otherwise participated in a Title VII proceeding.

23 Id.

24 Beyond the broad statutory language, the Court finds that the purpose of Title VII’s
25 retaliation provision is to protect employees like Allen whether they are poised to support a
26 co-worker’s discrimination claim, dispute the claim, or merely present percipient
27 observations. Investigators must have access to witness testimony that has not been shaped
28

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Case 2:05-cv-03032-SMM Document 169 Filed 01/15/10 Page 14 of 20

1 by an employer in an attempt to avoid liability. Having been named in a EEOC charge, Allen

2 may have been contacted by the EEOC during their investigation and asked to provide a

3 statement. Without the protection of Title VII, witnesses named in EEOC charges could be

4 intimidated into not testifying or supporting a co-worker’s discrimination claims. Title VII

5 prosecutions would be chilled because witnesses would be afraid of retaliation by their

6 employers.

7

3. Jute v. Hamilton Sundstrand Corporation

8 Both parties rely on the Second Circuit’s decision in Jute for their arguments
9 regarding protected activity. 420 F.3d at 174. In that case, the plaintiff Donna S. Jute
10 alleged that she was retaliated against after she was named as a witness in co-worker
11 Maryanne Brunton’s Title VII suit. Id. at 169. After Brunton had claimed that sexually
12 disparaging flyers about her were posted in the workplace, Jute provided two statements to
13 investigators. Id. When Brunton later sued alleging a hostile work environment, Jute agreed
14 to testify on Brunton’s behalf and saved vacation days to insure that she was readily
15 available. Id. Additionally, Brunton at her deposition named Jute as a favorable witness and
16 the only person to observe the posting of the flyers. Id. The following day, Jute was
17 removed from a team responsible for a computer system upgrade. Id. at 170. After
18 contacting Brunton to inquire whether she would be deposed, Jute learned for the first time
19 that Brunton’s case had settled and that she had been named as a favorable witness by
20 Brunton during her deposition. Id. Jute claimed that the removal from the team, among
21 other adverse employment actions, was in retaliation for being named as a witness in
22 Brunton’s deposition. Id. at 170-71.
23
Although Jute never actually testified, the Second Circuit held that she was protected 24
under the anti-retaliation clause. After an examination of the statute’s language and overall 25
purpose, the court held that the participation clause extends to an employee who is named 26
as a voluntary witness in a Title VII suit, but who never is called to testify. Id. at 168, 175. 27
As such, Jute engaged in a protected activity for purposes of a retaliation claim. Id. at 175. 28

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Case 2:05-cv-03032-SMM Document 169 Filed 01/15/10 Page 15 of 20

1

The EEOC argues that similar to Jute who was named by Brunton in her deposition

2 as a favorable witness, Allen participated in the investigation of Encinas-Castro’s Title VII

3 claim by being named as witness in her EEOC charge (Doc. 148, 4:4-6). However, Creative

4 Networks argues that this case is distinguishable because Jute was a voluntary witness

5 entitled to protection because of her involvement in the Brunton litigation (Doc. 150, 5:15-

6 18). Jute voluntarily gave statements to the employer’s investigators and planned to testify

7 in support of Brunton’s discrimination claims (Id. 4:18-21). She even saved vacation days

8 in order to be immediately available (Id.). Allen, on the other hand, was a “passive

9 participant” who name happened to appear in the EEOC charge, without her knowledge (Id.

10 5:26-6:1). Creative Networks argues that there is no evidence that she volunteered to testify

11 or planned to testify on Encinas-Castro’s behalf (Id. 6:1-3).

12

A review of the Second Circuit’s decision reveals that there are several similarities

13 between the facts of the present case and the Jute case. First, similar to Jute who was named

14 in a deposition but never testified, Allen was named in an EEOC charge but was never called

15 to testify or otherwise support Encinas-Castro’s discrimination claim. Also, similar to Jute

16 who was unaware that Brunton had named her as a favorable witness, Allen did not know

17 that Encinas-Castro included her name in the EEOC charge until after the fact. However, as

18 Creative Networks points out, Jute had taken certain affirmative steps that evidence her

19 involvement. She had provided statements voluntarily to the employer’s investigators and

20 reserved vacation days to be available to testify. Allen, on the other hand, took no steps

21 besides telling Faulkner after the fact that she was named in Encinas-Castro’s EEOC charge.

22 In this sense, Allen was an involuntary participant who was forced into the midst of Encinas-

23 Castro’s discrimination claim.

24 While the facts in Jute are somewhat distinguishable, the Court adopts the approach
25 of the Second Circuit in examining the statutory language and purpose of Title VII, as
26 discussed above. See pp. 11-14. Under this analysis, the Court finds that Allen engaged in
27 a protected activity when she was named in Encinas-Castro’s EEOC charge, and thus, the
28

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Case 2:05-cv-03032-SMM Document 169 Filed 01/15/10 Page 16 of 20

1 first prong of Allen’s prima facie case is met. The Court previously found that the EEOC

2 produced the minimal requisite degree of proof necessary to establish the other two prongs

3 of a prima facie case of retaliation: adverse employment action and causation (Doc. 130).

4

B. Legitimate Non-Discriminatory Reason

5 Once the prima facie case of retaliation has been established, a defendant must
6 articulate a legitimate, non-discriminatory reason for its actions. See Davis v. Team Elec.
7 Co., 520 F.3d 1080, 1094 (9th Cir. 2008). Creative Networks argues that it had a legitimate,
8 non-discriminatory reason for the May 30, 2003 counseling session with Allen. According
9 to Creative Networks, Allen suffered from several performance problems: (1) Allen had
10 difficulty adjusting to the change in culture from a “mom and pop” company to the larger
11 Creative Networks (Doc. 133, Def’s Statement of Facts (“DSOF”)¶ 6); (2) Allen was found
12 “sitting in someone else’s room” rumoring and gossiping (DSOF ¶¶ 9-10); and (3) Allen was
13 calling Creative Networks’ Surprise office (DSOF ¶ 13). The EEOC also concedes that
14 Creative Networks has met its burden of offering a legitimate, non-discriminatory reason for
15 its action (Doc. 143, 7:12-13, 8:1-2).
16
C. Pretext 17

18

The EEOC is now required to produce evidence sufficient to create a genuine issue

19 of fact as to whether Creative Networks’ legitimate and non-discriminatory reason was a

20 mere pretext for discrimination. The EEOC “can show pretext directly, by showing that

21 discrimination more likely motivated the employer, or indirectly, by showing that the

22 employer’s explanation is unworthy of credence” because it is inconsistent or otherwise not

23 believable. Vasquez v. County of L.A., 349 F.3d 634, 641 (9th Cir. 2003) (citation omitted).

24 “To show pretext using circumstantial evidence, a plaintiff must put forward specific and

25 substantial evidence challenging the credibility of the employer’s motives.” Id. at 642

26 (citation omitted). The same evidence can be used to establish a prima facie case and to

27 create a genuine issue of material fact as to whether an employer’s explanations are

28

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Case 2:05-cv-03032-SMM Document 169 Filed 01/15/10 Page 17 of 20

1 pretextual. Strother v. S. Cal. Permanente Med. Group, 79 F.3d 859, 870 (9th Cir. 1996)

2 (citation omitted).

3

The EEOC has offered no direct evidence, but rather has relied upon only

4 circumstantial evidence. Several of the EEOC’s arguments regarding pretext are unavailing.

5 The EEOC contends that Creative Networks’ claim that Allen had difficulty adjusting to the

6 change in culture is unworthy of credence (Doc. 143, 9:21-10:3). The EEOC asserts that

7 Creative Networks was not a “mom and pop” company during Allen’s employment because

8 Res-Care had purchased Creative Networks three years prior to Allen’s hiring (Id. 10:3-8).

9 However, the deposition testimony submitted by the parties shows that Creative Networks’

10 culture changed when Cornelison assumed control of the company, rather than earlier.

11 (DSOF ¶ 6; Doc. 133, Ex. F, Faulkner Dep. at 26-27). Even after the merger of Creative

12 Networks and Res-Care, the “mom and pop” management remained in place until August

13 2002 when Cornelison was hired (PSOF ¶ 37). Allen worked at Creative Networks starting

14 in October 2001 and Cornelison did not start until August 2002 (PSOF ¶¶ 35, 37). Thus,

15 Allen worked in a “mom and pop” type atmosphere for nearly a year before Cornelison’s

16 hiring and she was reluctant to adapt to the new corporate culture.

17 Additionally, the EEOC argues that Creative Networks’ claim that Allen’s poor
18 performance motivated the counseling session is undermined because Allen had never been
19 disciplined or counseled prior to May 30, 2003 (Doc. 143, 10:9-13). However, Faulkner
20 testified at her deposition that she had previously counseled a group of employees, including
21 Allen, regarding the company’s expectations (Doc. 133, Ex. F, Faulkner Dep at 70-71).
22 Furthermore, the EEOC points to the fact that no other employees were summoned
23 into counseling sessions for trouble adjusting to the culture change (Doc. 143, 10:24-28).
24 In response, Creative Networks argues that several other employees were similarly counseled
25 during the relevant period, including some for negative attitudes (Doc. 150, 10:13-15).
26 Creative Networks references a chart submitted with its Initial Disclosure Statement that lists
27 the terminated employees for the relevant period, as well as to counseling notes taken by
28

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Case 2:05-cv-03032-SMM Document 169 Filed 01/15/10 Page 18 of 20

1 Cornelison and other managers (Id. 10:17-19; Doc. 133, Ex. D). However, the EEOC failed

2 to conduct discovery regarding these terminations. Even if Allen was treated differently than

3 other employees, as the EEOC claims, such an argument is more appropriate for a disparate

4 treatment claim, rather than one for retaliation. The EEOC must show not that Allen was

5 treated differently, but rather that she was counseled because of her protected activity, i.e.

6 being named as a witness in an EEOC charge.

7

Despite these unsuccessful arguments, the Court finds that the EEOC nevertheless has

8 met its burden of showing that Creative Networks’ legitimate, non-discriminatory reason for

9 counseling Allen was pretextual. First, the close proximity in time between the protected

10 conduct and the adverse employment action is evidence of pretext (Doc. 143, 9:12-20).

11 Pretext can be established where there is a short period of time between the protected conduct

12 and the adverse action. See Miller v. Fairchild Indus., Inc., 885 F.2d 498, 505 (9th Cir. 1989)

13 (stating that a jury could find pretext based on close proximity between the protected conduct

14 and the adverse action); Passantino, 212 F.3d at 507 (“[E]vidence based upon timing can be

15 sufficient to let the issue go to the jury, even in the face of alternative reasons proffered by

16 the defendant.”) (citation omitted). Encinas-Castro went to the EEOC on May 16, 2003 to

17 file a charge of discrimination that included Allen’s name as a witness (protected conduct)

18 (PSOF ¶¶ 1,2). Less than two weeks later, on May 30, 2003, Allen was called into a

19 counseling session where her job was threatened (adverse action) (Id. ¶ 15). This close

20 proximity in time between the filing of Encinas-Castro’s EEOC charge naming Allen and the

21 counseling session contributes to a finding that Creative Networks’ reasons for counseling

22 Allen were pretextual.

23 Second, the manner in which the May 30, 2003 counseling session was conducted
24 provides some evidence that the real reason for the meeting was to deter Allen from assisting
25 Encinas-Castro with her discrimination charge or from filing one of her own (Doc. 143, 11:3-
26 6). Cornelison summoned Allen to his office shortly after firing Encinas-Castro (PSOF ¶ 15;
27 Ex. 5, Allen Dep. at 95:13-18; Ex. 6, Allen Decl. ¶ 6). In addition to Cornelison, three other
28

- 18 -

Case 2:05-cv-03032-SMM Document 169 Filed 01/15/10 Page 19 of 20

1 managers were in attendance at the counseling session (PSOF ¶ 15; Ex. 5, Allen Dep. at

2 95:19-21; Ex. 6, Allen Decl. ¶ 7; Ex. 7, Faulkner Dep. at 96:9-16; Ex. 8, Cornelison Dep. at

3 180:20-23). During the session, Cornelison threatened Allen’s employment by stating, “I

4 want to tell you something right now, I could fire you right now, because this is a right-to-

5 work state, and I don’t even have to have a reason, but I want to give you a chance to be a

6 successful employee here.” (PSOF ¶ 16; Ex. 5, Allen Dep. at 95:22-25) Additionally,

7 Cornelison’s manner was belligerent and hostile towards Allen, even though her alleged

8 performance issues were non-terminable offenses (Doc. 132, 7:25-26; PSOF ¶¶ 21-22).

9

Third, the reference to Encinas-Castro and her protected conduct during the May 30,

10 2003 counseling session with Allen suggests that the counseling session was about

11 intimidating Allen (Doc. 143, 12:1-5). Cornelison asked whether Allen “knew anything

12 about this EEOC charge” during the counseling session and stated, “Well, there’s been talk

13 that you have been calling back and forth to Surprise office and spreading rumors.” (PSOF

14 ¶¶ 17-18; Ex. 5, Allen Dep. at 96:3-16) Since Encinas-Castro worked in the Surprise office

15 prior to her firing, Allen understood Cornelison’s reference to the Surprise office to be a

16 reference to Encinas-Castro (PSOF ¶¶ 19-20; Ex. 6, Allen Decl. ¶ 9). Faulkner also took the

17 comments about the Surprise office to mean Allen’s conversations with Encinas-Castro,

18 since the two women were friends (PSOF ¶ 30; Ex. 7, Faulkner Dep. at 101:2-16).

19 The Court finds genuine issues of material fact exist regarding whether Creative
20 Networks’ proffered reason for counseling Allen is unworthy of credence. Creative
21 Networks held the May 30, 2003 counseling session only two weeks after Encinas-Castro
22 had gone to the EEOC to file a discrimination charge and named Allen as a witness. The
23 counseling session also was held within minutes of Encinas-Castro’s termination.
24 Additionally, during the counseling, Creative Networks referenced both Encinas-Castro’s
25 discrimination charge and Allen’s discussions with the Surprise office, where Encinas-Castro
26 worked. Moreover, Creative Networks threatened Allen for what it admits were non-
27 terminable offenses. The Court finds that a reasonable jury could conclude that the purpose
28

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Case 2:05-cv-03032-SMM Document 169 Filed 01/15/10 Page 20 of 20

1 of the May 30, 2003 counseling was to threaten Allen’s termination to deter her from

2 assisting Encinas-Castro with her claim, or to discourage Allen from filing her own

3 discrimination claim. As the Court cannot find that Creative Networks is entitled to

4 summary judgment as a matter of law on Allen’s retaliation claim, the Court denies Creative

5 Networks’ motion.

6

CONCLUSION

7 Summary judgment is not proper because the EEOC has demonstrated a genuine issue
8 of material fact as to Kathryn Allen’s claim for retaliation under Title VII.
9
Accordingly, 10

11

IT IS HEREBY ORDERED DENYING Defendant Creative Networks, LLC’s

12 Motion for Partial Summary Judgment (Doc. 132).

13

IT IS FURTHER ORDERED setting a final pretrial conference for Wednesday,

14 March 3, 2010 at 2:00p.m. before the Honorable Stephen M. McNamee in Courtroom 605

15 at 401 W. Washington Street, Phoenix, Arizona 85003.

16 DATED this 15th day of January, 2010.
17

18

19

20

21

22

23

24

25

26

27

28

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 Case 2:05-cv-03032-SMM Document 211 Filed 05/24/10 Page 1 of 13

FILE:D RECEIVED

LODGED COPY

MAY 2 4 2010

2

3

4

5

6

7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA
8

9 Equal Employment Opportunity Commission,
10
Plaintiff,
11
vs.
12
13 Creative Networks, LLC, an Arizona corporation, and Res-Care, Inc., a
14 Kentucky corporation,

15

Defendants.

16

)

) )

Case No.: CV05-3032-PHX-SMM

)

)

CONSENT DECREE

)

)

)

)

)

)

)

)

17

18

The United States Equal Employment Opportunity Commission (the

19 "Commission" or "EEOC") filed this action against Creative Networks, Inc., an Arizona

20 corporation to enforce Title VII of the Civil Rights Act of 1964 and Title I of the Civil

21 Rights Act of 1991. In the Complaint, the Commission alleged that Defendant

22 discriminated against Ms. Rhonda Encinas-Castro and Ms. Kathryn Allen in retaliation

23 for having opposed discrimination and/or participating in a proceeding pursuant to Title

24 VII, including an investigation of alleged employment discrimination, in violation of

25 Title VII, 42 U.S.C. § 2000e-2(a). Creative Networks denies the allegations of

26 discrimination or retaliation against both claimants and this Decree shall not be

27 considered an admission of liability.

28

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Case 2:05-cv-03032-SMM Document 211 Filed 05/24/10 Page 2 of 13
.. , _- - · v v - vv-v-vvv~:-.-,.,.,,.,, - - - - - ·

In the interest of resolving this matter, and as a result of having engaged in

2 comprehensive settlement negotiations, the Parties have agreed that this action should be

3 fmally resolved by entry of this Decree. The Parties do not object to the jurisdiction of

4 the Court over this action and waive their rights to a jury trial and the entry of findings of

5 fact and conclusions of law.

6

It is hereby ORDERED, ADruDGED AND DECREED:

7

1. This Decree resolves all claims of the Commission against Defendant,

8 including back pay, compensatory and punitive damages, interest and injunctive relief

9 arising out of the issues in this lawsuit. The two claimants, Rhonda Encinas-Castro and

10 Kathryn Allen, have agreed to execute the EEOC standard release attached as Exhibit A.

11

INJUNCTION

12

2. Defendant and its officers, agents, employees, successors, assigns, and all

13 persons in active concert or participation with it, both at the time that this Decree

14 becomes effective and for the duration of this Decree, are permanently enjoined from: (a)

15 retaliating against any employee because he or she: (i) opposes or opposed discriminatory

16 practices made unlawful by Title VII; (ii) files or filed a charge of discrimination or

17 assists, assisted, participates, or participated in the filing of a charge of discrimination; or

18 (iii) assists, assisted, participates or participated in an investigation or proceeding brought

19 under the Federal laws prohibiting discrimination or retaliation.

20

MONETARY RELIEF

21

3. Defendant shall pay the gross sum of $110,000 (One hundred and ten

22 thousand dollars) to be distributed among Ms. Encinas-Castro and Ms. Allen, according

23 to the amounts provided to Defendant by the Commission. The gross sum shall be paid 24 no later than ten days from the Court's entry of the Consent Decree and will be mailed to 25 the women at the addresses supplied by the Commission. Within five business days of 26 the issuance of the checks, Defendant shall submit a copy of the checks and all related 27 correspondence to Mary Jo O'Neill, Regional Attorney, Equal Employment Opportunity 28 Commission, 3300 North Central Avenue, Suite 690, Phoenix, Arizona 85012.

-2-

Case 2:05-cv-03032-SMM Document 211 Filed 05/24/10 Page 3 of 13

Defendant will not condition the receipt of individual relief on Ms. Encinas-Castro and

2 Ms. Allen's agreement to (a) maintain as confidential the terms of this decree, (b) waive

3 their statutory right to file a new charge with any federal or state anti-discrimination

4 agency based on facts separate from those underlying this case, or (c) waive their right to

5 apply for a position with the Defendant.

6

4. Defendant will issue United States Internal Revenue Service Form 1099 to

1 Ms. Encinas-Castro and Ms. Allen for the tax year during which payment is made.

8

OTHER RELIEF

9

5. Defendant shall expunge from the personnel file of Ms. Encinas-Castro and

10 Ms. Allen: (a) any references to the charge of discrimination filed against Defendant that

11 formed the basis of this action; (b) any references to Ms. Encinas-Castro's and Ms.

12 Allen's participation in this action; (c) any other documents relating to the involuntary

13 nature of the termination of Ms. Encinas-Castro. Defendant shall also provide a neutral

14 letter of reference to all prospective employers for both Ms. Encinas-Castro and Ms.

15 Allen; the letter is attached as Exhibit B.

16

6. Defendant shall institute and carry out policies and practices that help

11 assure a work environment that allows employees to raise concerns or complaints without

18 retaliation about matters, whether alleged, perceived or actual, made unlawful by Title

19 VII. To assist Defendant in its efforts to assure such a work environment, Defendant

20 shall take the actions provided in paragraphs seven through twelve of this Decree.

21

NOTICE

22

7. Defendant shall post for the duration of this Decree, in a prominent place

23 frequented by its employees at its facilities, the Notice attached as Exhibit C. The Notice

24 shall be posted in English. The Notice shall be the same type, style, and size as set forth

25 in Exhibit C.

26

TRAINING

27

8. Defendant shall provide training on retaliation. The training shall consist o

28 the following terms:

-3-

Case 2:05-cv-03032-SMM Document 211 Filed 05/24/10 Page 4 of 13

A. Defendant shall retain a trainer/lecturer who shall provide one live

2 training to its employees located in Arizona or any other employee with Human

3 Resources responsibility for Defendant's Arizona locations, on the issue of retaliation.

4 In July 2010, the trainer/lecturer shall conduct one live training seminar. The live

5 seminar will be videotaped by a qualified videographer. All of Defendant's employees

6 and supervisors, both managerial and non-managerial, shall attend the live seminar or a

7 videotaped showing of the live seminar twice within the eighteen month duration the

8 decree is in effect. New employees shall view the videotape within thi.tty (30) days of

9 commencing employment. Defendant may have duplicative videotaped seminars to

10 accommodate staffing needs. Defendant shall be responsible for any additional costs to

11 provide such duplicative seminars.

12

B. Defendant shall obtain the EEOC's approval of the trainer/lecturer

13 selected by Defendant to provide the training described above, which shall not be

14 unreasonably withheld. At least thi.tty (30) days prior to the proposed live training

15 seminar, Defendant shall submit the name(s), address(es), telephone number(s) and

16 resume(s) of the proposed trainer/lecturer(s), together with the date of the proposed

17 training seminar and an outline of the contents of the training, to the Regional Attorney o

18 the Phoenix District Office of the EEOC, at the address provided in paragraph three

19 above. The Commission shall have fourteen (14) days from the date of receipt of the

20 information described above to accept or reject the proposed trainer/lecturer(s) and/or the

21 contents of the seminar. In the event the Commission does not approve the designated

22 trainer/lecturer(s) and/or the contents of the training, the Commission shall recommend at

23 least three trainer/lecturers at a cost not to exceed $5,000 per seminar, which shall be paid

24 by Defendant.

25

C. During the first year of the Consent Decree, the live training seminar

26 shall be conducted in July 2010. The second training, which may be viewed by video

27 tape, will be conducted within twelve months of the first.

28

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ILCase 2:05-cv-03032-SMM Document 211 Filed 05/24/10 Page 5 of 13

D. The training seminars shall be at least one and a half hours including

2 time for questions and answers. All of Defendant's employees shall register when they

3 attend a training seminar. The registry of attendance shall be retained by Defendant for

4 the duration of this Decree.

5

E. The seminars shall include: (1) the subject of what constitutes

6 retaliation for engaging in a protected activity under Title VII of the Civil Rights Act of

7 1964; and (2) to whom and by what means employees may complain if they feel they

8 have been discriminated against based on retaliation. The seminar shall also review and

9 explain Defendant's anti-discrimination policies including those set out in paragraph ten

1o of this Decree.

11

F. During the live training seminar, Defendant's Executive Director

12 shall speak to the supervisory employees about the legal consequences faced by

13 companies that discriminate in retaliation for engaging in a protected activity; the

14 importance of maintaining an environment free of discrimination, and Defendant's anti-

15 discrimination policies, as referred to in paragraphs six and ten of this Decree. The

16 Executive Director shall explain that managers and supervisors will be evaluated, in part,

17 on their enforcement of policies prohibiting retaliation and their response to complaints

18 of failure to follow this policy.

19

9. A videotape of the live training will be provided to the EEOC within 30

20 days of the training seminar.

21

POLICIES/PROCEDURES

22

10. Within sixty (60) days of the entry of this Decree, Defendant shall develop

23 written policies, or revise existing policies, concerning retaliation to conform with the 24 law, and shall submit the policies for review to the Regional Attorney of the Phoenix 25 District Office of the EEOC at the address provided in paragraph three above. The 26 written policies must include at a minimum:

27

A. A strong and clear commitment to a workplace free of retaliation.

28

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Case 2:05-cv-03032-SMM Document 211 Filed 05/24/10 Page 6 of 13
_ --- -.v-..J-vv- ""'""""---

B. A strong and clear statement encouraging persons who believe they

2 have been discriminated or retaliated against to come forward.

3

C. The identification of specific individuals, internal and external to

4 Defendant, with their telephone numbers, to whom employees can report the

5 discrimination.

6

D. An assurance that Defendant will investigate allegations of

7 retaliation promptly, fairly, reasonably and effectively, using appropriate investigators,

8 and that appropriate corrective action will be taken by Defendant to make victims whole

9 and to eradicate the unlawful conduct.

10

E. A description of the consequences, up to and including termination,

11 that will be imposed upon violators of the policy.

12

F. A promise of maximum feasible confidentiality for persons who

13 believe that they have been subjected to retaliation.

14

G. An assurance of non-retaliation for persons and witnesses who repo

15 to Defendant that they believe they have been subjected to unlawful discrimination.

16

These policies shall be distributed to all of Defendant's employees within ninety

17 (90) days of the entry of this Decree. These policies also shall be posted in English in a

18 prominent place at each job site frequented by the employees.

19

REPORTING BY DEFENDANT AND ACCESS BY EEOC

20

11. Defendant shall report in writing to the Regional Attorney of the

21 Commission's Phoenix District Office, at the address provided in paragraph three above,

22 beginning six months from the date of the entry of this Decree, and thereafter every year

23 for the duration of the Decree, the following information:

24

A. A copy of the revised policies required in paragraph ten of this

25 Decree.

26

B. Any changes, modifications, revocations, or revisions to its policies

27 and procedures which concern or affect the subjects of unlawful discrimination based on

28 retaliation.

-6-

Case 2:05-cv-03032-SMM Document 211 Filed 05/24/10 Page 7 of 13

C. The registries of persons attending the training seminars required in

2 paragraph eight of this Decree and a list of current personnel employed by Defendant on

3 the days of the seminar training sessions.

4

D. Confirmation that (1) the Notice required in paragraph seven of this

5 Decree was posted in English, and the locations where it was posted; (2) the policies

6 required in paragraph ten were distributed to each current and new employee of

7 Defendant, and posted; (3) the expungement from Ms. Encinas-Castro's and Ms. Allen's

8 personnel files required in paragraph five of this Decree took place, the date of the

9 expungement, and the specific documents expunged.

10

12. The Commission, upon reasonable notice and agreement, shall have the

11 right to enter and inspect Defendant's premises and work sites to ensure compliance with

12 this Decree.

13

COSTSANDDURATION

14

13. Each Party shall bear its costs and attorney's fees incurred as a result of this

15 action through the filing of this Decree

16

14. The duration of this Decree shall be eighteen months from its entry. This

17 Court shall retain jurisdiction over this action for the duration of the Decree, during

18 which the Commission may petition this Court for compliance with this Decree. Should

19 the Court determine that Defendant has not complied with this Decree, the Court may

20 order appropriate relief, including extension of this Decree for such period as may be

21 necessary to remedy its non-compliance, an award of attorney's fees and costs, and fines

22 for contempt of court.

23

15. Absent extension, this Decree shall expire by its own terms at the end of

24 eighteen months from the date of entry without further action by the Parties.

25

16. The Parties agree to entry of this Decree and judgment subject to fmal

26 approval by the Court.

27

28

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Case 2:05-cv-03032-SMM Document 211 Filed 05/24/10 Page 8 of 13

1
: DATED, thls3f-dayo~l0-

5

6

7

I

8

10
J S L.. R; ESQ. 11 SANDRA A. SHOUPE-GORGA, ESQ.

RMkA2:=lR:Y: JO~ '

12 Renaud Cook Dnuy Mesaros, P.A.
13 Phelps Dodge Tower One North Central Ave., Suite 900
14 Phoenix, AZ 85004-4417

~SAL"LYS'-EY~~\)

i
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Supervisory Trial Attorney

15 Attorneys for Defendants
16

CHRISTOPHER HOUK Trial Attorney

:: ME1/i:rJ!=

MEENOO CHAHBAZI Trial Attorney

19 Executive Director Creative Networks, LLC
20
21
22

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Phoenix District Office 3300 N. Central Ave., Suite 690 Ph~,Auizona 85012

23

24

25

27
28

-·-

Case 2:05-cv-03032-SMM
05/17/20HI 1~;_48 ~ _G_EI23726el35
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Document 211 Filed 05/24/10 Page 9 of 13
M.ll.RTrnPA GLD IN I V

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connection

Wilh

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3032~PHX-SMM c~ .. J waive my right to recover for any II of Clisorlmination i

and/or retaliation arising under Title VII of the Civil Ri9.na!N:l of 1964 that I had

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against creative NetworKS, LLC, and il.'S officers, agen I

""""""f •

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successors, aSSigns, and aR persona in acllve

Creative Netwon<s prior to the aate of this release and! I
Ll . claims alleged in EEOC's complaint in Uni~ed States I '!
that the mone~ary payment is for compensatory dam
II
an IRS Form 1099 and that 1atone am responsible fo~,
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Court I unellrstand
nd wilt be reported on

Dote: 6/11/um

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~E Ell

Ma~·17·10 1D:DZam Fram•iEDC

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T-483 P.OZ/Ot F·T&I

RELEASE
In consideratiOn for $ 45,000.00 paid to me Dy Creative Netr.to~s. LLC. in connection with the resoJution of EEOC v. Creative Networks LLC, CIV 053032-PHX.SMM • 1waive my rignt to recover for any claims of discriminatiOn and/or retaliation arising under Title VII of the Civil Rights Act of 1964 'tt\at I had
against Creative Networks. LLC. and its officers, agents, employees, successors, assigns, anq all persons in active concert or participation with
Creati"e Networks prior to the Qate of this release and that were included in the claims alleged in EEOC's compla.nt in United States District Court I understand
that the monetary payment is for compensatory damages anQ will be reported on
an IRS Form 1099 and that l alone am responsible tor any tax liability.
Name: Kathryn Allen
. Signa~re;

Case 2:05-cv-03032-SMM Document 211 Filed 05/24/10 Page 11 of 13

2

EXHIBIT B

3

4

5
[Creative Networks, LLC's Letterhead]
6
7 To Whom It May Concern:

8

This letter will serve to confirm [Charging Party or Class Member]'s employment

with Creative Networks, LLC's employment from [date] to [date]. During this time, 9 [Charging Party or Class Member] held the position of Oob title].

10
Sincerely,
11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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Case 2:05-cv-03032-SMM Document 211 Filed 05/24/10 Page 12 of 13

EXHIBITC

2

NOTICE TO ALL EMPLOYEES

3

It is unlawful under federal law, Title VII of the Civil Rights Act, and state law to

4 discriminate against an employee on the basis of race, color, national origin, sex, disability, age, religion, or genetic information in the recruiting, hiring, firing,

5 compensation, assignment, or other terms and conditions of privileges of employment.

Harassment on the basis of race, color, national origin, sex, disability, age, religion, or 6 genetic information also violates the law. Harassment includes unwelcome verbal

7 comments or physical conduct. It is also unlawful to retaliate against any person

because the person protested discriminatory practices or contacted the EEOC or the

8 Arizona Civil Rights Division (ACRD).

9

Creative Networks shall not discriminate or harass against any employee on the

10 basis of race, color, national origin, sex, disability, religion, or genetic information, and

shall not retaliate against any employee for complaining about discrimination or

11 harassment.

12

If you believe you have been discriminated against or harassed, you have the

right to seek assistance from:

13

(1) EEOC

14

3300 N. Central Avenue

15

Suite 690

Phoenix, Arizona 85012

16

Telephone: 602-640-5000

TTY: 602-640-5072

17

Website (national): www.eeoc.gov or

18

(2) Arizona Civil Rights Division ("ACRD")

of the Attorney General's Office

19

1275 West Washington

Phoenix, Arizona 85007

20

Telephone: 602-542-5263

21

TDD: 602-542-5002

Toll Free: (877) 491-5742

22

Toll Free TDD: 877-624-8090

23

24
No Retaliation Clause: It is against the law for any action to be taken against 25 you by any supervisory or management official of the employer for (1) opposing
26 discriminatory practices made unlawful by federal or state law; (2) filing a charge of
27 assisting or participating in the filing of a charge of discrimination; or (3) assisting or participating in an investigation or proceeding brought under Title VII. Should any
28

- 11 -

IICase 2:05-cv-03032-SMM Document 211 Filed 05/24/10 Page 13 of 13
such retaliatory actions be taken against you, you should immediately contact the EEOC or ACRD at the addresses or telephone numbers listed above.
2
3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19
20 21 22 23 24 25 26 27 28
- 12-

 
 Case: 2:05-cv-3032 As of: 11/20/2016 12:08 PM MST 1 of 17
U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:05−cv−03032−SMM

CLOSED,STD

Equal Employment Opportunity Commission v. Creative Networks, LLC et al Assigned to: Judge Stephen M McNamee Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 09/30/2005 Date Terminated: 05/24/2010 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Equal Employment Opportunity Commission

represented by Lucila G Rosas EEOC 3300 N Central Ave Ste 690 Phoenix, AZ 85012 602−640−5025 Fax: 602−640−5009 Email: lucila.rosas@eeoc.gov TERMINATED: 04/12/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary Joleen O'Neill Equal Employment Opportunity Commission − Phoenix, AZ 3300 N Central Ave., Ste. 690 Phoenix, AZ 85012−1848 602−640−5044 Fax: 602−640−5009 Email: mary.oneill@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sally Clifford Shanley Equal Employment Opportunity Commission − Phoenix, AZ 3300 N Central Ave., Ste. 690 Phoenix, AZ 85012−1848 602−640−5007 Fax: 602−640−5009 Email: sally.shanley@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

C Emanuel Smith EEOC 3300 N Central Ave Ste 690 Phoenix, AZ 85012−1848 602−640−5033 Fax: 602−640−5009 Email: emanuel.smith@eeoc.gov TERMINATED: 03/02/2006

Christopher Robert Houk Equal Employment Opportunity Commission − Phoenix, AZ 3300 N Central Ave., Ste. 690 Phoenix, AZ 85012−1848 602−640−5049 Email: christopher.houk@eeoc.gov

Case: 2:05-cv-3032 As of: 11/20/2016 12:08 PM MST 2 of 17
ATTORNEY TO BE NOTICED
Meenoo Chahbazi Equal Employment Opportunity Commission − Phoenix, AZ 3300 N Central Ave., Ste. 690 Phoenix, AZ 85012−1848 602−640−5061 Fax: 602−640−5009 Email: Meenoo.Chahbazi@eeoc.gov ATTORNEY TO BE NOTICED
P David Lopez EEOC 3300 N Central Ave Ste 690 Phoenix, AZ 85012−1848 602−640−5016 Fax: 602−640−5009 Email: patrick.lopez@eeoc.gov ATTORNEY TO BE NOTICED

V.
Defendant
Creative Networks LLC an Arizona corporation

represented by Sandra A Shoupe−Gorga Renaud Cook Drury Mesaros PA 1 N Central Ave., Ste. 900 Phoenix, AZ 85004−4417 602−307−9900 Fax: 602−307−5853 Email: sshoupe−gorga@rcdmlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Lawrence Blair Renaud Cook Drury Mesaros PA 1 N Central Ave., Ste. 900 Phoenix, AZ 85004−4417 602−307−9900 Fax: 602−307−5853 Email: jblair@rcdmlaw.com ATTORNEY TO BE NOTICED
Neil Todd McKay Renaud Cook Drury Mesaros PA 1 N Central Ave., Ste. 900 Phoenix, AZ 85004−4417 602−307−9900 Fax: 602−307−5853 Email: tmckay@rcdmlaw.com TERMINATED: 03/25/2010 ATTORNEY TO BE NOTICED
Roger William Hall Buchalter Nemer PLC 16435 N Scottsdale Rd., Ste. 440 Scottsdale, AZ 85254−1754 480−383−1800 Fax: 480−824−9400 Email: rhall@buchalter.com TERMINATED: 01/16/2007
Utiki Y Spurling

Case: 2:05-cv-3032 As of: 11/20/2016 12:08 PM MST 3 of 17

Renaud Cook Drury Mesaros PA 1 N Central Ave Ste 900 Phoenix, AZ 85004 602−256−3056 Fax: 602−262−3256 Email: uspurling@rcdmlaw.com TERMINATED: 10/29/2007 ATTORNEY TO BE NOTICED

William W Drury , Jr. Renaud Cook Drury Mesaros PA 1 N Central Ave., Ste. 900 Phoenix, AZ 85004−4417 602−307−9900 Fax: 602−307−5853 Email: wdrury@rcdmlaw.com ATTORNEY TO BE NOTICED

John Anthony Klecan Renaud Cook Drury Mesaros PA 1 N Central Ave., Ste. 900 Phoenix, AZ 85004−4417 602−307−9900 Fax: 602−307−5853 Email: jklecan@rcdmlaw.com ATTORNEY TO BE NOTICED

Defendant
Res−Care Incorporated a Kentucky corporation TERMINATED: 03/19/2009

represented by Sandra A Shoupe−Gorga (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Lawrence Blair (See above for address) ATTORNEY TO BE NOTICED

Neil Todd McKay (See above for address) ATTORNEY TO BE NOTICED

Roger William Hall (See above for address) TERMINATED: 01/16/2007

Tophas Anderson , IV Renaud Cook Drury Mesaros PA 1 N Central Ave., Ste. 900 Phoenix, AZ 85004−4417 602−307−9900 Fax: 602−307−5853 Email: tanderson@rcdmlaw.com ATTORNEY TO BE NOTICED

Utiki Y Spurling (See above for address) TERMINATED: 10/29/2007 ATTORNEY TO BE NOTICED

Date Filed # Docket Text

Case: 2:05-cv-3032 As of: 11/20/2016 12:08 PM MST 4 of 17

09/30/2005 10/04/2005 11/01/2005
11/04/2005 11/04/2005 11/08/2005
11/18/2005 11/18/2005
12/05/2005 12/22/2005
12/23/2005 12/29/2005 12/29/2005
12/29/2005 01/10/2006 01/11/2006 01/17/2006

1 COMPLAINT, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet)(Rosas, Lucila) (Entered: 09/30/2005)
2 Summons Issued as to Creative Networks, LLC, Res−Care, Inc.. (Attachments: # 1 Res−Care, Inc.)(ESH, ) (Entered: 10/04/2005)
3 SUMMONS Returned Executed by Equal Employment Opportunity Commission. Creative Networks, LLC served on 10/19/2005, answer due 11/8/2005; Res−Care, Inc. served on 10/19/2005, answer due 11/8/2005. (Attachments: # 1 Affidavit Service to Res−Care Inc.)(Rosas, Lucila) (Entered: 11/01/2005)
4 NOTICE of Appearance by James Lawrence Blair on behalf of Creative Networks, LLC, Res−Care, Inc. (Blair, James) (Entered: 11/04/2005)
5 STIPULATION for Extension of Time for Defendants to File Responsive Pleading by Creative Networks, LLC, Res−Care, Inc.. (Blair, James) (Entered: 11/04/2005)
6 ORDER granting 5 STIPULATION for Extension of Time for Defendants to File Responsive Pleading by Creative Networks, LLC, Res−Care, Inc. (Blair, James) filed by Creative Networks, LLC, Res−Care, Inc.; Creative Networks, LLC answer due 11/18/2005; Res−Care, Inc. answer due 11/18/2005. Signed by Judge Stephen M McNamee on 11/7/05. (LSP) (Entered: 11/08/2005)
7 Answer of Creative Networks, LLC ANSWER to Complaint by Creative Networks, LLC.(Blair, James) (Entered: 11/18/2005)
8 Motion to Dismiss by Res−Care, Inc.. (Attachments: # 1 Exhibit 1# 2 Exhibit 1 Continued# 3 Exhibit 2)(Blair, James) Modified on 12/29/2005 (KCS). DOCKET MODIFIED TO CORRECT DOCUMENT TYPE TO MOTION TO DISMISS. (Entered: 11/18/2005)
9 Standard Civil Track Initial ORDER . Signed by Judge Stephen M McNamee on 12/5/2005. (TCA, ) (Entered: 12/07/2005)
10 MEMORANDUM re: Opposition to Defendant Res−Care Inc's Motion to Dismiss Complaint re 8 Answer to Complaint by Plaintiff Equal Employment Opportunity Commission. (Rosas, Lucila) Modified on 12/29/2005 (KCS). DOCKET MODIFIED TO CORRECT DOCUMENT TYPE TO RESPONSE TO MOTION TO DISMISS. (Entered: 12/22/2005)
11 STIPULATION Stipulation to Extend Time for Defendant Res−Care, Inc.'s Reply to Plaintiff's Opposition to Motion to Dismiss (First Request) by Res−Care, Inc.. (Blair, James) (Entered: 12/23/2005)
12 NOTICE TO FILER OF DEFICIENCY re 8 Answer to Complaint filed by Res−Care, Inc.,. Description of deficiency: Incorrect document type selected. The docket has been modified to reflect PDF Motion to Dismiss. (KCS) (Entered: 12/29/2005)
13 NOTICE TO FILER OF DEFICIENCY re 10 Memorandum, filed by Equal Employment Opportunity Commission,. Description of deficiency: Incorrect document type selected. Docket modified to reflect PDF as Response to Motion to Dismiss. (KCS) (Entered: 12/29/2005)
14 ORDER granting stipulation for extension of time 11 ; ORDERED that dft's reply (to response to motion 8 ) shall be filed no later than 1/10/06. Signed by Judge Stephen M McNamee on 12/27/2005. (LAD) (Entered: 12/29/2005)
15 Reply re 10 Memorandum, Res−Care, Inc.'s Reply in Support of its Motion to Dismiss by Defendant Res−Care, Inc.. (Attachments: # 1 Exhibit 1)(Blair, James) (Entered: 01/10/2006)
16 MOTION for Extension of Time Leave to Accept Responsive Pleading Filed Outside of Responsive Time Period by Equal Employment Opportunity Commission. (Rosas, Lucila) (Entered: 01/11/2006)
17 ORDER granting 16 Motion for Extension of Time for Defendants to File Responsive Pleading to Plaintiff's Complaint. Dft shall have until 11/18/05 to file their response. Signed by Judge Roslyn O Silver on 01/17/06. (DNH, ) (Entered: 01/17/2006)

Case: 2:05-cv-3032 As of: 11/20/2016 12:08 PM MST 5 of 17

03/02/2006 12/29/2006
01/03/2007 01/16/2007 01/16/2007 02/22/2007 02/23/2007 02/26/2007 03/01/2007
03/02/2007 03/02/2007 03/05/2007
03/29/2007 04/10/2007 04/20/2007 05/08/2007 05/08/2007 05/22/2007 05/29/2007

18 NOTICE of Attorney Substitution by Sally Clifford Shanley (Shanley, Sally) (Entered: 03/02/2006)
19 MEMORANDUM OF DECISION AND ORDER denying re 8 Res−Care's Motion to Dismiss. ORDERED that the Court Deputy shall schedule and issue an order setting a Rule 16 Preliminary Pretrial Conference pursuant to Fed.R.Civ.P. 16(b). Signed by Judge Stephen M McNamee on 12/29/06. (TLJ) (Entered: 12/29/2006)
20 ORDER Scheduling Conference set for 3/1/2007 04:00 PM in Courtroom 605, 401 West Washington Street, Phoenix, AZ 85003 before Judge Stephen M McNamee.. Signed by Judge Stephen M McNamee on 12/29/2006. (TCA, ) (Entered: 01/03/2007)
21 NOTICE of Attorney Substitution by Neil Todd McKay (McKay, Neil) (Entered: 01/16/2007)
22 ANSWER to Complaint with Jury Demand of Res−Care, Inc. by Creative Networks, LLC, Res−Care, Inc..(Blair, James) (Entered: 01/16/2007)
23 REPORT re: Rule 26(f) Planning Meeting by Equal Employment Opportunity Commission, Creative Networks, LLC, Res−Care, Inc.. (Rosas, Lucila) (Entered: 02/22/2007)
24 First MOTION for Telephonic Appearance of Out−of−State Representative at Rule 16 Preliminary Pretrial Conference by Res−Care, Inc.. (Attachments: # 1 Text of Proposed Order)(Blair, James) (Entered: 02/23/2007)
25 ORDER granting 24 Defendant Res−Care, Inc.'s Motion for Telephonic Appearance of Out−of−state Representative. Signed by Judge Stephen M McNamee on 2/23/07.(TLJ) (Entered: 02/26/2007)
26 Minute Entry. Proceedings held before Judge Stephen M McNamee : Apr. Lucila Rosas for pla, clients Rhonda Encinas−Castro and Kathryn Allen present;James Blair for dfts, Client Ron Cornelison present, Deana Ombre telephonic for dftsScheduling Conference held on 3/1/2007.Final Pretrial Conference set for 4/2/2008 04:00 PM in Courtroom 605, 401 West Washington Street, Phoenix, AZ 85003 before Judge Stephen M McNamee. Order to Follow. (Court Reporter Gary Moll.) This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA, ) (Entered: 03/02/2007)
27 Notice re Service of Initial Rule 26(a)(1) Disclosures by Equal Employment Opportunity Commission (Rosas, Lucila) (Entered: 03/02/2007)
28 Notice re Service of Defendants' Initial Disclosure Statement by Creative Networks, LLC, Res−Care, Inc. (Blair, James) (Entered: 03/02/2007)
29 SCHEDULING ORDER: Discovery due by 2/1/2008.,Dispositive motions due by 3/7/2008., Final Pretrial Conference set for 4/2/2008 04:00 PM before Judge Stephen M McNamee.. Signed by Judge Stephen M McNamee on 3/1/07. (TLJ) (Entered: 03/05/2007)
30 Notice re Service of Defendants' First Supplemental Disclosure Statement by Creative Networks, LLC, Res−Care, Inc. (Blair, James) (Entered: 03/29/2007)
31 NOTICE of Appearance by Utiki Y Spurling on behalf of all defendants (Spurling, Utiki) (Entered: 04/10/2007)
32 Notice re Notice of Service of Discovery by Creative Networks, LLC, Res−Care, Inc. (Spurling, Utiki) (Entered: 04/20/2007)
33 NOTICE of Deposition of Rhonda L. Encinas−Castro, filed by Creative Networks, LLC, Res−Care, Inc.. (Spurling, Utiki) (Entered: 05/08/2007)
34 NOTICE of Deposition of Kathryn A. Allen, filed by Creative Networks, LLC, Res−Care, Inc.. (Spurling, Utiki) (Entered: 05/08/2007)
35 NOTICE of Deposition of Ron Cornelison, filed by Equal Employment Opportunity Commission. (Rosas, Lucila) (Entered: 05/22/2007)
36 Notice re Service of Discovery by Creative Networks, LLC, Res−Care, Inc. (Spurling, Utiki) (Entered: 05/29/2007)

Case: 2:05-cv-3032 As of: 11/20/2016 12:08 PM MST 6 of 17

06/20/2007 06/21/2007 07/11/2007
07/12/2007 07/12/2007 07/12/2007 07/12/2007 07/13/2007 08/07/2007 08/21/2007 10/10/2007 10/29/2007
01/10/2008 01/17/2008 01/17/2008 01/18/2008 01/22/2008 01/22/2008 01/23/2008 01/25/2008 01/28/2008
01/28/2008 01/28/2008

37 Notice re Service of Discovery Responses to Defendant by Equal Employment Opportunity Commission (Rosas, Lucila) (Entered: 06/20/2007)
38 Notice re Service of Defendants' Second Supplemental Disclosure Statement by Creative Networks, LLC, Res−Care, Inc. (Blair, James) (Entered: 06/21/2007)
39 STIPULATION re Confidentiality of Kathryn Allen's Medical Records by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Rosas, Lucila) (Entered: 07/11/2007)
40 ORDER regarding confidentiality of medical records pursuant to 39 Stipulation. Signed by Judge Stephen M McNamee on 7/12/07. (TLJ) (Entered: 07/12/2007)
41 Notice re Service of Discovery by Creative Networks, LLC, Res−Care, Inc. (Spurling, Utiki) (Entered: 07/12/2007)
42 Notice re Service of First Discovery Requests by Equal Employment Opportunity Commission (Rosas, Lucila) (Entered: 07/12/2007)
43 Notice re Service of Second Discovery Responses by Equal Employment Opportunity Commission (Rosas, Lucila) (Entered: 07/12/2007)
44 Notice re Service of Supplemental Response to Discovery by Equal Employment Opportunity Commission (Rosas, Lucila) (Entered: 07/13/2007)
45 Notice re Notice of Service of Discovery Responses by Creative Networks, LLC, Res−Care, Inc. (Spurling, Utiki) (Entered: 08/07/2007)
46 NOTICE of Deposition of Custodian of Records for Robert Bevan, MD, filed by Creative Networks, LLC, Res−Care, Inc.. (Spurling, Utiki) (Entered: 08/21/2007)
47 Notice re Notice of Service of Defendants' Third Supplemental Disclosure Statement by Creative Networks, LLC, Res−Care, Inc. (Spurling, Utiki) (Entered: 10/10/2007)
48 NOTICE of Attorney Substitution by James Lawrence Blair, Sandra A Shoupe−Gorga adding Sandra A Shoupe−Gorga and James Lawrence Blair for Creative Networks, LLC and Res−Care, Inc. (Blair, James) (Entered: 10/29/2007)
49 Notice re of Service by Equal Employment Opportunity Commission of 4th Supplemental Disclosure Statement (Rosas, Lucila) (Entered: 01/10/2008)
50 NOTICE of Deposition of Melanie Butler, filed by Creative Networks, LLC, Res−Care, Inc.. (Shoupe−Gorga, Sandra) (Entered: 01/17/2008)
51 NOTICE of Deposition of Bonnie Cooper, filed by Creative Networks, LLC, Res−Care, Inc.. (Shoupe−Gorga, Sandra) (Entered: 01/17/2008)
52 NOTICE of Deposition of Ginger Call, filed by Equal Employment Opportunity Commission. (Rosas, Lucila) (Entered: 01/18/2008)
53 NOTICE of Deposition of Linda Leary, filed by Equal Employment Opportunity Commission. (Rosas, Lucila) (Entered: 01/22/2008)
54 NOTICE of Deposition of Melanie Butler, filed by Creative Networks, LLC, Res−Care, Inc.. (Shoupe−Gorga, Sandra) (Entered: 01/22/2008)
55 NOTICE of Deposition of Robert P. Bevan, MD, filed by Creative Networks, LLC, Res−Care, Inc.. (Shoupe−Gorga, Sandra) (Entered: 01/23/2008)
56 NOTICE of Deposition of Megan Neal, filed by Equal Employment Opportunity Commission. (Rosas, Lucila) (Entered: 01/25/2008)
57 STIPULATION For One Week Extension of Discovery Cut−Off Deadline (Joint) (First Request) by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Rosas, Lucila) (Entered: 01/28/2008)
58 NOTICE of Deposition of Freda Smith, filed by Equal Employment Opportunity Commission. (Rosas, Lucila) (Entered: 01/28/2008)
59 Minute Entry. Proceedings held before Judge Stephen M McNamee: Apr. Lucila Rosas for pla, Sandra Shoupe−Gorga for dftsTelephone Discovery Dispute Conference held

Case: 2:05-cv-3032 As of: 11/20/2016 12:08 PM MST 7 of 17

01/28/2008 01/29/2008 01/29/2008 01/30/2008
01/31/2008 01/31/2008
01/31/2008 02/01/2008 02/13/2008 02/19/2008 02/20/2008 02/21/2008 02/21/2008 02/21/2008 02/21/2008 02/21/2008 02/21/2008

on 1/28/2008.Plaintiff request to quash subpoena of Dr. Bevan is denied;Defendants subpoena for post and prior employers is granted. Plaintiff to sign the appropriate releases. Defendant is entitled to 5 prior employers 5 years back and all post employers. Due by 2/29/2008. (Court Reporter Gary Moll.) This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA, ) (Entered: 01/28/2008)
60 Notice re Notice of Service of Defendants' Fourth Supplemental Disclosure Statement by Creative Networks, LLC, Res−Care, Inc. (Shoupe−Gorga, Sandra) (Entered: 01/28/2008)
61 ORDER granting the parties' stipulation 57 for a one week extension of the discovery cut−off deadline. Discovery due by 2/9/2008. Signed by Judge Stephen M McNamee on 1/29/08. (TLJ) (Entered: 01/29/2008)
62 NOTICE of Deposition of Bonnie Cooper (First Amended), filed by Creative Networks, LLC, Res−Care, Inc.. (Shoupe−Gorga, Sandra) (Entered: 01/29/2008)
63 Minute Order: ORDEREDTelephone Discovery Dispute Conference set for 1/31/2008 01:30 PM in Courtroom 605, 401 West Washington Street, Phoenix, AZ 85003 before Judge Stephen M McNamee. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA, ) (Entered: 01/30/2008)
64 NOTICE of Deposition of Res−Care, Inc., filed by Equal Employment Opportunity Commission. (Rosas, Lucila) (Entered: 01/31/2008)
65 Minute Entry. Proceedings held before Judge Stephen M McNamee: Telephonic Apr. Lucila Rosas for pla, James Blair for dft CreativeTelephone Discovery Dispute Conference held on 1/31/2008. Deposition of Edna Faulkner to be taken no later than 2/22/2008. (Court Reporter Merilyn Sanchez.) This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA, ) (Entered: 01/31/2008)
66 Notice re of Service of Plaintiff EEOC's Fifth Supplemental Disclosure Statement by Equal Employment Opportunity Commission (Rosas, Lucila) (Entered: 01/31/2008)
67 Notice re Service of Defendants' Fifth Supplemental Disclosure Statement by Creative Networks, LLC, Res−Care, Inc. (Blair, James) (Entered: 02/01/2008)
68 NOTICE of Deposition of Edna Faulkner, filed by Equal Employment Opportunity Commission. (Rosas, Lucila) (Entered: 02/13/2008)
69 STIPULATION TO EXTEND DEPOSITION AND DISPOSITIVE MOTION DEADLINES by Res−Care, Inc.. (Shoupe−Gorga, Sandra) (Entered: 02/19/2008)
70 ORDER that the time in which to depose out of state witness shall be extended to 3/28/08. Dispositive motion deadline extended to 4/11/08 re: stipulation 69 . Signed by Judge Stephen M McNamee on 2/20/08. (TLJ) (Entered: 02/20/2008)
71 NOTICE of Deposition of Custodian of Records, Fowler School District, filed by Creative Networks, LLC, Res−Care, Inc.. (Shoupe−Gorga, Sandra) (Entered: 02/21/2008)
72 NOTICE of Deposition of Custodian of Records, Valle del Sol, filed by Creative Networks, LLC, Res−Care, Inc.. (Shoupe−Gorga, Sandra) (Entered: 02/21/2008)
73 NOTICE of Deposition of Custodian of Records, Value Options, Inc., filed by Creative Networks, LLC, Res−Care, Inc.. (Shoupe−Gorga, Sandra) (Entered: 02/21/2008)
74 NOTICE of Deposition of Custodian of Records, Goodwill, filed by Creative Networks, LLC, Res−Care, Inc.. (Shoupe−Gorga, Sandra) (Entered: 02/21/2008)
75 NOTICE of Deposition of Custodian of Records, ASU West, filed by Creative Networks, LLC, Res−Care, Inc.. (Shoupe−Gorga, Sandra) (Entered: 02/21/2008)
76 NOTICE of Deposition of Custodian of Records, Glendale Community College, filed by Creative Networks, LLC, Res−Care, Inc.. (Shoupe−Gorga, Sandra) (Entered: 02/21/2008)

Case: 2:05-cv-3032 As of: 11/20/2016 12:08 PM MST 8 of 17

02/26/2008 02/26/2008 02/26/2008 02/26/2008 02/26/2008 02/27/2008 02/28/2008
02/29/2008 03/03/2008 03/13/2008 03/14/2008 03/14/2008 03/17/2008
03/21/2008 03/21/2008 03/27/2008 04/11/2008 04/11/2008

77 NOTICE of Deposition of Custodian of Records, Arizona Dept. of Economic Security, filed by Creative Networks, LLC, Res−Care, Inc.. (Shoupe−Gorga, Sandra) (Entered: 02/26/2008)
78 NOTICE of Deposition of Custodian of Records, Touchstone Behavioral Health, filed by Creative Networks, LLC, Res−Care, Inc.. (Shoupe−Gorga, Sandra) (Entered: 02/26/2008)
79 NOTICE of Deposition of Custodian of Records, Tungland Corporation, filed by Creative Networks, LLC, Res−Care, Inc.. (Shoupe−Gorga, Sandra) (Entered: 02/26/2008)
80 NOTICE of Deposition of Custodian of Records, Devereux Arizona, filed by Creative Networks, LLC, Res−Care, Inc.. (Shoupe−Gorga, Sandra) (Entered: 02/26/2008)
81 NOTICE of Deposition of Custodian of Records, West Valley Child Crisis Center, filed by Creative Networks, LLC, Res−Care, Inc.. (Shoupe−Gorga, Sandra) (Entered: 02/26/2008)
82 STIPULATION Stipulation to Extend Deadline to Obtain Employment Records by Res−Care, Inc.. (Shoupe−Gorga, Sandra) (Entered: 02/27/2008)
83 Minute Order: ORDERED Final Pretrial Conference re−set for 5/21/2008 04:00 PM in Courtroom 605, 401 West Washington Street, Phoenix, AZ 85003 before Judge Stephen M McNamee. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA, ) (Entered: 02/28/2008)
84 ORDER that the deadline to obtain employment records shall be extended to 3/27/08 re 82 STIPULATION. Signed by Judge Stephen M McNamee on 2/29/08. (TLJ) (Entered: 02/29/2008)
85 NOTICE of Deposition of Edna Faulkner, filed by Equal Employment Opportunity Commission. (Rosas, Lucila) (Entered: 03/03/2008)
86 ORDER that no later than 3/21/08 counsel shall file simultaneous written briefs. Signed by Judge Stephen M McNamee on 3/12/08. (TLJ) (Entered: 03/13/2008)
87 ORDER re: Proposed Pretrial Order due by 4/11/2008. Signed by Judge Stephen M McNamee on 3/14/08. (TLJ) (Entered: 03/14/2008)
88 ORDERED Proposed Pretrial Order due by 4/11/2008. Signed by Judge Stephen M McNamee on 3/14/08. (TLJ) (Entered: 03/14/2008)
89 TEXT−ONLY Minute Order: The Court hereby modifies its Order filed 3/14/08 as follows: The proposed pretrial order shall be filed by 4/18/08; Motions in Limine shall be filed by 4/18/08; Responses to Motions in Limine shall be filed by 4/25/08. The remainder of the Order of 3/14/08 is AFFIRMED and remains in effect. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (SJF) (Entered: 03/17/2008)
90 BRIEF RE: EX PARTE CONTACT WITH FORMER SUPERVISORS by Defendants Creative Networks, LLC, Res−Care, Inc.. (Attachments: # 1 Exhibit A)(Blair, James) (Entered: 03/21/2008)
91 BRIEF Re: Discovery Dispute Re: Ex Parte Communications by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Rosas, Lucila) (Entered: 03/21/2008)
92 Notice re Notice of Service of Defendants' Sixth Supplemental Disclosure Statement by Creative Networks, LLC, Res−Care, Inc. (Shoupe−Gorga, Sandra) (Entered: 03/27/2008)
93 MOTION for Summary Judgment by Res−Care, Inc.. (Blair, James) (Entered: 04/11/2008)
94 STATEMENT of Undisputed Facts in Support of its Motion for Summary Judgment re 93 MOTION for Summary Judgment by Defendant Res−Care, Inc.. (Attachments: # 1 Exhibit A − F, # 2 Exhibit G, # 3 Exhibit H − I)(Blair, James) (Entered: 04/11/2008)

Case: 2:05-cv-3032 As of: 11/20/2016 12:08 PM MST 9 of 17

04/11/2008 04/11/2008
04/11/2008 04/11/2008 04/18/2008
04/25/2008 04/29/2008 05/14/2008
05/14/2008 05/14/2008 05/14/2008 05/14/2008 05/14/2008
05/16/2008
05/28/2008 05/28/2008 05/30/2008

95 MOTION for Partial Summary Judgment Regarding Defendants Affirmative Defenses by Equal Employment Opportunity Commission. (Rosas, Lucila) (Entered: 04/11/2008)
96 STATEMENT of Facts in Support of Plaintiff's Motion for Summary Judgment re 95 MOTION for Partial Summary Judgment Regarding Defendants Affirmative Defenses by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit # 1− 6 and Attachments A − E)(Rosas, Lucila) (Entered: 04/11/2008)
97 MOTION for Partial Summary Judgment by Creative Networks, LLC. (Shoupe−Gorga, Sandra) (Entered: 04/11/2008)
98 STATEMENT Separate Statement of Undisputed Facts in Support of Its Motion for Summary Judgment by Defendant Creative Networks, LLC. (Shoupe−Gorga, Sandra) (Entered: 04/11/2008)
99 Minute Order: ORDERED vacating the final pretrial conference set for May 21, 2008, to be reset if necessary, upon the resolution of the dispositive motions. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA, ) (Entered: 04/18/2008)
100 MOTION for Extension of Time To Extend Time to Respond (Unopposed) by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order to Extend Time)(Rosas, Lucila) (Entered: 04/25/2008)
101 ORDER denying 100 Plaintiff's Unopposed Motion for Extension of Time. Signed by Judge Stephen M McNamee on 4/28/08.(TLJ) (Entered: 04/29/2008)
102 RESPONSE to Motion re 95 MOTION for Partial Summary Judgment Regarding Defendants Affirmative Defenses filed by Creative Networks, LLC. (Shoupe−Gorga, Sandra) Modified on 5/19/2008 (TLJ). DOCUMENT NOT IN COMPLIANCE WITH LRCIV 7.1(c). (Entered: 05/14/2008)
103 RESPONSE in Opposition re 93 MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. (Rosas, Lucila) (Entered: 05/14/2008)
104 STATEMENT of of Facts re 103 Response in Opposition to Motion for Summary Judgment by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1−4, # 2 Exhibit 5, # 3 Exhibit 6−9)(Rosas, Lucila) (Entered: 05/14/2008)
105 STATEMENT of of Controverting Facts re 103 Response in Opposition to Motion for Summary Judgment by Plaintiff Equal Employment Opportunity Commission. (Rosas, Lucila) (Entered: 05/14/2008)
106 RESPONSE in Opposition re 97 MOTION for Partial Summary Judgment filed by Equal Employment Opportunity Commission. (Attachments: # 1 Statement of Facts, # 2 Exhibit 1−9)(Rosas, Lucila) (Entered: 05/14/2008)
107 RESPONSE to re 98 Statement of Facts; Response pursuant to LR 56.1 to Defendant's Statement of Facts filed by Equal Employment Opportunity Commission. (Rosas, Lucila) Modified on 5/19/2008 (TLJ). INCORRECT EVENT SELECTED. THIS ENTRY HAS BEEN MODIFIED FROM RESPONSE TO MOTION TO RESPONSE. DOCKET TEXT MODIFIED TO CORRECT DOCUMENT LINKAGE. (Entered: 05/14/2008)
108 Notice re Filing of Plaintiff's Exhibit 6: Signed Declaration of Kathryn Allen by Equal Employment Opportunity Commission re 106 Response in Opposition to Motion for Partial Summary Judgment (Attachments: # 1 Exhibit Signed Declaration)(Rosas, Lucila) (Entered: 05/16/2008)
109 STIPULATION to Eliminate Four Affirmative Defenses by Creative Networks, LLC. (Shoupe−Gorga, Sandra) (Entered: 05/28/2008)
110 Additional Attachments to Main Document re 109 Stipulation by Defendant Creative Networks, LLC. (Shoupe−Gorga, Sandra) (Entered: 05/28/2008)
111 REPLY to Response to Motion re 95 MOTION for Partial Summary Judgment Regarding Defendants Affirmative Defenses filed by Equal Employment Opportunity Commission. (Rosas, Lucila) (Entered: 05/30/2008)

Case: 2:05-cv-3032 As of: 11/20/2016 12:08 PM MST 10 of 17

06/02/2008 06/02/2008 06/02/2008 06/02/2008 06/02/2008
06/02/2008 06/02/2008
06/03/2008
08/12/2008 08/12/2008 08/29/2008 08/29/2008 09/11/2008 09/11/2008

112 REPLY in Support re 93 MOTION for Summary Judgment filed by Res−Care, Inc.. (Attachments: # 1 Index Cover, # 2 Exhibit A − Cornelison Affidavit, # 3 Exhibit B − Smith Affidavit, # 4 Cornelison Deposition, # 5 Ombres Deposition, # 6 Smith Deposition)(Blair, James) (Entered: 06/02/2008)
113 DOCUMENT #113 STRICKEN PURSUANT TO ORDER #126 FILED ON 12/15/08. RESPONSE re 104 Statement (Plaintiff's Separate Statement of Facts) by Defendant Res−Care, Inc.. (Blair, James) Modified on 12/15/2008 (LSP). (Entered: 06/02/2008)
114 DOCUMENT #114 STRICKEN PURSUANT TO ORDER #126 FILED ON 12/15/08. Reply re 105 Statement (EEOC's Local Rule of Practice 56.1(b) Response to Defendant's Statement of Facts) by Defendant Res−Care, Inc.. (Blair, James) Modified on 12/15/2008 (LSP). (Entered: 06/02/2008)
115 REPLY to Response to Motion re 97 MOTION for Partial Summary Judgment Defendants' Reply in Support of Its Motion for Partial Summary Judgment Re: Kathryn Allen filed by Creative Networks, LLC, Res−Care, Inc.. (Attachments: # 1 Exhibit Exhibits A−F)(Shoupe−Gorga, Sandra) (Entered: 06/02/2008)
116 DOCUMENT #116 STRICKEN PURSUANT TO ORDER #127 FILED ON 12/15/08. REPLY to Response to Motion re 97 MOTION for Partial Summary Judgment Defendants' Reply to EEOC's Local Rules of Practice 56.1(b) Response to Defendants' Separate Statement of Facts filed by Creative Networks, LLC, Res−Care, Inc.. (Attachments: # 1 Exhibit)(Shoupe−Gorga, Sandra) Modified on 12/15/2008 (LSP). (Entered: 06/02/2008)
117 RESPONSE to Motion re 97 MOTION for Partial Summary Judgment Defendants' Reply in Support of its Motion for Partial Summary Judgment Re: Kathryn Allen filed by Creative Networks, LLC, Res−Care, Inc.. (Shoupe−Gorga, Sandra) (Entered: 06/02/2008)
118 DOCUMENT #118 STRICKEN PURSUANT TO ORDER #127 FILED ON 12/15/08. RESPONSE re 106 Response in Opposition to Motion Plaintiff's Statement of Facts re: Kathryn Allen by Defendants Creative Networks, LLC, Res−Care, Inc.. (Attachments: # 1 Exhibit 1 − 3)(Shoupe−Gorga, Sandra) Modified on 12/15/2008 (LSP). (Entered: 06/02/2008)
119 ORDER granting the Stipulation 109 . The following affirmative defenses shall be stricken from Documents 7 and 22 of the docket: Statute of Limitations, laches, estoppel, and waiver. ORDER denying as moot 95 Plaintiff's Motion for Partial Summary Judgment. Signed by Judge Stephen M McNamee on 6/2/08.(TLJ) (Entered: 06/03/2008)
120 MOTION to Strike re Docs. 112−2 thru 112−7, 113 and 114 or in the alternative Motion for Leave to File Surreply by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Rosas, Lucila) (Entered: 08/12/2008)
121 MOTION to Strike re Docs. 115−2, 116, 116−2, 118 and 118−2 or in the alternative Motion for Leave to File Surreply by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Rosas, Lucila) (Entered: 08/12/2008)
122 RESPONSE to Motion re 120 MOTION to Strike re Docs. 112−2 thru 112−7, 113 and 114 or in the alternative Motion for Leave to File Surreply filed by Res−Care, Inc.. (Blair, James) (Entered: 08/29/2008)
123 RESPONSE in Opposition re 121 MOTION to Strike re Docs. 115−2, 116, 116−2, 118 and 118−2 or in the alternative Motion for Leave to File Surreply Re: Creative Networks, LLC's Additional Pleadings filed by Creative Networks, LLC, Res−Care, Inc.. (Shoupe−Gorga, Sandra) (Entered: 08/29/2008)
124 REPLY to Response to Motion re 120 MOTION to Strike re Docs. 112−2 thru 112−7, 113 and 114 or in the alternative Motion for Leave to File Surreply filed by Equal Employment Opportunity Commission. (Rosas, Lucila) (Entered: 09/11/2008)
125 REPLY to Response to Motion re 121 MOTION to Strike re Docs. 115−2, 116, 116−2, 118 and 118−2 or in the alternative Motion for Leave to File Surreply filed by Equal Employment Opportunity Commission. (Rosas, Lucila) (Entered: 09/11/2008)

Case: 2:05-cv-3032 As of: 11/20/2016 12:08 PM MST 11 of 17

12/15/2008
12/15/2008
01/09/2009 01/09/2009 03/09/2009
03/19/2009 04/10/2009 04/10/2009 04/13/2009 04/23/2009 04/27/2009 05/04/2009

126 ORDER granting in part and denying in part 120 Plaintiff's Motion to Strike. IT IS FURTHER ORDERED striking Response to Plaintiff's EEOC's Statement of Facts 113 and Reply to EEOC's Local Rule 56.1(b) Response to Defendant's Statement of Facts 114 without prejudice with leave to refile in accordance with the Federal and Local Rules of Civil Procedure. The amended Reply shall be filed no later than 1/9/09. IT IS FURTHER ORDERED that Defendant Res−Care's Exhibits to its Reply in Support of its Motion for Partial Summary Judgment are not stricken. IT IS FURTHER ORDERED denying 120 Plaintiff's Motion for Leave to File a Surreply. Signed by Judge Stephen M McNamee on 12/12/08.(LSP) (Entered: 12/15/2008)
127 ORDER granting in part and denying in part 121 Plaintiff's Motion to Strike. IT IS FURTHER ORDEREED striking Response to Plaintiff's EEOC's Statement of Facts 118 , as well as Reply to EEOC's Local Rule 56.1(b) Response to Defendant's Statement of Facts and exhibits 116 without prejudice with leave to refile in accordance with the Federal and Local Rules of Civil Procedure. The amended Reply shall be filed no later than 1/9/09. IT IS FURTHER ORDERED that Defendant Creative Networks, LLC's Exhibits to its Reply in Support of its Motion for Partial Summary Judgment (Docs. 115−2, Exhibits A−F) are not stricken. IT IS FURTHER ORDERED denying 121 Plaintiff's Motion for Leave to File a Surreply. Signed by Judge Stephen M McNamee on 12/12/08.(LSP) (Entered: 12/15/2008)
128 AMENDED DOCUMENT by Creative Networks, LLC. Amendment to 115 Reply to Response to Motion, Amended Reply in Support of its Motion for Partial Summary Judgment re Kathryn Allen. (Attachments: # 1 Exhibit A − F)(Shoupe−Gorga, Sandra) (Entered: 01/09/2009)
129 AMENDED DOCUMENT by Res−Care, Inc.. Amendment to 112 Reply in Support of Motion, Amended Reply Brief in Support of its Motion for Summary Judgment. (Attachments: # 1 Exhibit A − B, # 2 Deposition of Ron Cornelison, # 3 Deposition of Deena Ombres, # 4 Deposition of Freda Smith)(Blair, James) (Entered: 01/09/2009)
130 MEMORANDUM OF DECISION AND ORDER − IT IS HEREBY ORDERED DENYING Defendants Creative Networks, LLC and Res−Care, Inc.'s 97 Motion for Partial Summary Judgment. FURTHER ORDERED that the parties may file a motion for summary jgm regarding the issues of legitimate nondiscriminatory reasons and pretext for Allen's retaliation claim by 4/10/09, if they so desire. Signed by Judge Stephen M McNamee on 3/9/09.(SAT) (Entered: 03/09/2009)
131 MEMORANDUM OF DECISION AND ORDER granting 93 Defendant Res−Care, Inc.'s Motion for Summary Judgment; Res−Care is dismissed from the present case. Signed by Judge Stephen M McNamee on 3/19/09.(LSP) (Entered: 03/19/2009)
132 MOTION for Summary Judgment by Creative Networks, LLC. (Shoupe−Gorga, Sandra) (Entered: 04/10/2009)
133 STATEMENT of Statement of Facts in Support of Partial MSJ re 132 MOTION for Summary Judgment by Defendant Creative Networks, LLC. (Attachments: # 1 Exhibit A − F)(Shoupe−Gorga, Sandra) (Entered: 04/10/2009)
134 MOTION for Entry of Rule 54(b) Final Judgment by Party Res−Care, Inc. (Anderson, Tophas) Modified on 4/14/2009 (DMT, ). INCORRECT EVENTY TYPE SELECTED. THIS ENTRY HAS BEEN MODIFIED FROM MOTION TO DISMISS TO MOTION FOR JUDGMENT. (Entered: 04/13/2009)
135 MOTION for Extension of Time Extension of Time by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Lopez, P) (Entered: 04/23/2009)
136 ORDER: IT IS HEREBY ORDERED GRANTING Plaintiffs Unopposed Motion forExtension of Discovery and Dispositive Motion Deadlines (Doc. 135).IT IS FURTHER ORDERED that the deadline for Plaintiff to respond toDefendants Motion for Summary Judgment is extended to June 12, 2009.Signed by Judge Stephen M McNamee on 4/24/2009.(TCA, ) (Entered: 04/27/2009)
137 ORDER − IT IS HEREBY ORDERED GRANTING Dft Res−Care, Inc.'s 134 Motion for Entry of Rule 54(b) Final Judgment. FURTHER ORDERED that the Clerk of the Court is directed to enter final judgment as to Defendant Res−Care, Inc. Signed by Judge Stephen M McNamee on 5/1/09. (SAT) (Entered: 05/04/2009)

Case: 2:05-cv-3032 As of: 11/20/2016 12:08 PM MST 12 of 17

05/04/2009
05/08/2009 06/01/2009 06/12/2009 06/12/2009 06/12/2009 06/12/2009 06/19/2009 06/19/2009 07/02/2009
07/24/2009 08/10/2009
08/10/2009 08/11/2009 09/02/2009

138 CLERK'S JUDGMENT − IT IS ORDERED AND ADJUDGED that the Court having granted Defendant Res−Care, Inc.'s, Motion for Summary Judgment (doc #131), and upon the Court having determined, by way of their 137 Order granting Defendant Res−Care, Inc.'s Motion for Entry of Rule 54(b) Final Judgment, that there is no just reason to delay entry of final judgment, judgment is hereby entered against Plaintiff as to defendant Res−Care, Inc. only. (SAT) (Entered: 05/04/2009)
139 BILL OF COSTS by Res−Care, Inc.. (Attachments: # 1 Supplement Defendant's Memorandum of Itemized Costs)(Shoupe−Gorga, Sandra) (Entered: 05/08/2009)
140 Taxation of Costs in amount of $ 839.55 against Plaintiff. Signed by Chief Deputy Clerk Michael O'Brien on 06/01/09. (BJW, ) (Entered: 06/01/2009)
141 NOTICE of Appearance by Christopher Robert Houk on behalf of Equal Employment Opportunity Commission (Houk, Christopher) (Entered: 06/12/2009)
142 MOTION to Strike re Portions of Defendant's Motion for Summary Judgment by Equal Employment Opportunity Commission. (Houk, Christopher) (Entered: 06/12/2009)
143 RESPONSE in Opposition re 132 MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. (Houk, Christopher) (Entered: 06/12/2009)
144 STATEMENT of Statement of Facts and Response to Defendant's Statement of Facts re 133 Statement by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1−10)(Houk, Christopher) (Entered: 06/12/2009)
145 STIPULATION To Extend Time for Defendant Creative Networks, LLC to file its Reply In Support of its Motion for Summary Judgment by Creative Networks, LLC. (Attachments: # 1 Text of Proposed Order)(Anderson, Tophas) (Entered: 06/19/2009)
146 ORDER granting 145 Stipulation to Extend Time; deadline for Defendant to file a Reply in support of its Motion for Summary Judgment is extended to July 20, 2009. Signed by Judge Stephen M McNamee on 6/19/09. (LSP) (Entered: 06/19/2009)
147 ORDER :IT IS HEREBY ORDERED that Plaintiff Motion to Strike, or in the Alternative,Motion for Leave to File Additional Pleadings is granted in part and denied in part (Doc.142).IT IS FURTHER ORDERED that Section III(B) of Defendants Motion forSummary Judgment is stricken, and will not be considered by the Court in its summaryjudgment ruling.IT IS FURTHER ORDERED that Plaintiff may file a response addressingDefendants protected activity argument, outlined in Sections III(A) and III(C) ofDefendants Motion for Summary Judgment, by July 24, 2009. The response shall notexceed five (5) pages.IT IS FURTHER ORDERED that Defendants Reply deadline is extended toAugust 10, 2009.. Signed by Judge Stephen M McNamee on 7/2/2009.(TCA, ) (Entered: 07/02/2009)
148 RESPONSE in Opposition re 132 MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. (Houk, Christopher) (Entered: 07/24/2009)
149 MOTION for Leave to File Excess Pages: EXTEND PAGE LIMIT BY ONE PAGE by Defendant Creative Networks, LLC. (Attachments: # 1 Text of Proposed Order Proposed Order)(Blair, James) INCORRECT EVENT. THIS ENTRY HAS BEEN MODIFIED FROM (request) TO (motion for leave to file excess pages) Modified on 8/11/2009 (ESL). (Entered: 08/10/2009)
150 REPLY in Support re 132 MOTION for Summary Judgment filed by Creative Networks, LLC. (Attachments: # 1 Exhibit A − C, # 2 Exhibit D − E)(Blair, James) (Entered: 08/10/2009)
151 ORDER granting 149 Motion for Leave to File Excess Pages. Defendant's Reply in Support of its Motion for Summary Judgment may exceed the 11 page limit by one page.. Signed by Judge Stephen M McNamee on 8/11/2009.(TCA, ) (Entered: 08/11/2009)
152 MOTION to Strike re or in the Alternative Leave to File Surreply re Creative Networks, LLC's Reply in Support of its Motion for Summary Judgment by Equal Employment Opportunity Commission. (Houk, Christopher) (Entered: 09/02/2009)

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09/04/2009 09/08/2009 09/25/2009 10/05/2009 11/17/2009
11/30/2009 11/30/2009 12/02/2009
12/04/2009 12/07/2009 12/07/2009 12/09/2009 12/28/2009 01/07/2010

153 MOTION for Extension of Time to Respond to EEOC's Motion to Strike by Creative Networks, LLC. (Shoupe−Gorga, Sandra) Modified on 9/8/2009 (LAD). DOCUMENT NOT IN COMPLIANCE WITH LRCiv 7.1(c). ATTORNEY NOTICED. (Entered: 09/04/2009)
154 ORDER granting Creative Networks UnopposedMotion to Extend Time to Respond to EEOCs Motion to Strike (Doc. 153).IT IS FURTHER ORDERED that the deadline for Creative Networks to respondto EEOCs Motion to Strike is extended to September 25, 2009.. Signed by Judge Stephen M McNamee on 9/8/2009.(TCA, ) (Entered: 09/08/2009)
155 RESPONSE in Opposition re 152 MOTION to Strike re or in the Alternative Leave to File Surreply re Creative Networks, LLC's Reply in Support of its Motion for Summary Judgment filed by Creative Networks, LLC. (Attachments: # 1 Exhibit 1 − 3)(Blair, James) (Entered: 09/25/2009)
156 REPLY in Support re 152 MOTION to Strike re or in the Alternative Leave to File Surreply re Creative Networks, LLC's Reply in Support of its Motion for Summary Judgment filed by Equal Employment Opportunity Commission. (Houk, Christopher) (Entered: 10/05/2009)
157 ORDER Discovery Hearing set for 12/2/2009 01:30 PM in Courtroom 605, 401 West Washington Street, Phoenix, AZ 85003 before Judge Stephen M McNamee. Signed by Judge Stephen M McNamee on 11/17/2009. FURTHER ORDERED that no later than Monday, November 30, 2009, Plaintiff shall submit to the Court any proof showing that the documents in Exhibit D were requested by Plaintiff pursuant to the Federal Rules of Civil Procedure and what response, if any, was given by Defendant to such a document request. Defendants shall also submit a short brief of no more than 3 pages addressing Plaintiffs claims of non−disclosure by Monday, November 30, 2009.(TCA, ) (Entered: 11/17/2009)
158 SUPPLEMENT of Brief re Claim of Non−Disclosure by Defendant Creative Networks, LLC. (Blair, James) (Entered: 11/30/2009)
159 Notice re Filing Proof of Request for Exhibit D Documents by Equal Employment Opportunity Commission re 157 Order,,, Set Hearings,, (Attachments: # 1 Exhibits 1−2, # 2 Exhibits 3−4)(Houk, Christopher) (Entered: 11/30/2009)
160 Minute Entry. Proceedings held before Judge Stephen M McNamee: Apr. Christopher Houk/Lucila Rosas for pla; Sandra Shoupe−Gorga for dft Discovery Hearing held on 12/2/2009.ORDERED taking under advisement 152 Motion to Strike defendant's exhibit D bates #1930 to reply to motion for summary judgment. Parties have 5 days to notice the Court whether exhibit D bates #1930 to defendant's reply to motion for summary judgment was disclosed or not disclosed. (Court Reporter Vicki Reger.) This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA, ) (Entered: 12/02/2009)
161 Notice re Prior Disclosure of Exhibit D Bates #1930 by Creative Networks, LLC re 160 Order on Motion to Strike,,, Discovery Hearing,, (Attachments: # 1 Exhibit 1 − 2)(Blair, James) (Entered: 12/04/2009)
162 Notice re Filing Whether Bates No. 001930 Was Produced During Discovery by Equal Employment Opportunity Commission re 160 Order on Motion to Strike,,, Discovery Hearing,, (Houk, Christopher) (Entered: 12/07/2009)
163 TRANSCRIPT DESIGNATION AND ORDER FORM by Creative Networks, LLC, Res−Care, Inc. for proceedings held on 12−02−09 before Judge McNamee. (Shoupe−Gorga, Sandra) (Entered: 12/07/2009)
164 ORDER denying 152 Motion to Strike and denying motion for leave to file surreply. Signed by Judge Stephen M McNamee on 12/8/2009.(LAD) (Entered: 12/09/2009)
165 MOTION for Reconsideration re Docket # 164: Order Denying 152 Motion to Strike and Denying Motion for Leave to File Surreply by Equal Employment Opportunity Commission. (Houk, Christopher) (Entered: 12/28/2009)
166 TRANSCRIPT of Proceedings re: Discovery Hearing held on 12/02/09 before Judge Stephen M. McNamee. Court Reporter: Vicki Reger. Transcript may be viewed at the

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01/07/2010 01/12/2010 01/15/2010 01/15/2010 01/26/2010 01/27/2010
02/01/2010 02/18/2010 03/03/2010
03/05/2010 03/08/2010

court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/28/2010. Redacted Transcript Deadline set for 2/8/2010. Release of Transcript Restriction set for 4/7/2010. (ECA) (Entered: 01/07/2010)
167 NOTICE OF FILING OF OFFICIAL TRANSCRIPT 166 . (ECA) (Entered: 01/07/2010)
168 ORDER denying 165 Motion for Reconsideration. Signed by Judge Stephen M McNamee on 1/12/2010.(TCA, ) (Entered: 01/12/2010)
169 ORDER denying Defendant Creative Networks, LLC's 132 Motion for Summary Judgment. A final pretrial conference is set for March 3, 2010 at 2:00 p.m. (See order details). Signed by Judge Stephen M McNamee on 1/15/2010.(TCA, ) (Entered: 01/15/2010)
170 ORDER RE: FINAL PRETRIAL CONFERENCE Proposed Pretrial Order due by 2/5/2010. Final Pretrial Conference set for 3/3/2010 02:00 PM in Courtroom 605, 401 West Washington Street, Phoenix, AZ 85003 before Judge Stephen M McNamee.( See order details). Signed by Judge Stephen M McNamee on 1/15/2010. (TCA, ) (Entered: 01/15/2010)
171 STIPULATION Requesting Settlement Conference and Extension of Pretrial Order Deadlines by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Rosas, Lucila) (Entered: 01/26/2010)
172 ORDER that as determined by automated random selection, thismatter shall be referred to Magistrate Judge Lawrence O. Anderson for the purposes ofconducting a settlement conference.IT IS FURTHER ORDERED that the Joint Proposed Pretrial Order deadline andFinal Pretrial Conference currently set for February 5, 2010, and March 3, 2010, respectively(Doc. 170), are VACATED.IT IS FURTHER ORDERED that the Final Pretrial Conference and all pretrial datesassociated with that conference shall be reset if the case is not resolved by negotiatedsettlement, after the Court has ruled on any motion to sever filed by Defendant CreativeNetworks.. Signed by Judge Stephen M McNamee on 1/27/2010. (TCA) (Entered: 01/27/2010)
173 SETTLEMENT CONFERENCE ORDER: Settlement Conference set for 3/3/2010 02:00 PM before Magistrate Judge Lawrence O Anderson. (See document for full details). Signed by Magistrate Judge Lawrence O Anderson on 1/29/10. (LAD) (Entered: 02/01/2010)
174 Notice re of Service of Sixth Supplemental Disclosure Statement by Equal Employment Opportunity Commission (Rosas, Lucila) (Entered: 02/18/2010)
175 Minute Order. Settlement Conference held 3/3/10 before Magistrate Judge Lawrence O. Anderson. Present were Plaintiffs Rhonda Encinas and Kathryn Allen; Plaintiffs' counsel, Christopher Houk, Lucila G. Rosas and David Lopez. Also present on Plaintiffs' team were Michael Zoldan, extern with EEOC and Andy Garcia, significant other to Rhonda Encinas. On behalf of Defendants were Ron Cornelison, Reginal Director for Res−Care, Inc., parent company to Creative Networks, LLC with counsel James Blair and Sandra Shoupe−Gorga. A court reporter was not present nor were the proceedings tape recorded. A settlement was not reached. (LOA;vlg) This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (Entered: 03/03/2010)
176 Notice re Notice of Service of Offer of Judgment by Creative Networks, LLC, Res−Care, Inc. (Shoupe−Gorga, Sandra) (Entered: 03/05/2010)
177 ORDER RE: FINAL PRETRIAL CONFERENCE Proposed Pretrial Order due by 3/26/2010. 8 Day Jury Trial set for 6/1/2010 09:00 AM in Courtroom 605, 401 West Washington Street, Phoenix, AZ 85003 before Judge Stephen M McNamee. Final Pretrial Conference set for 4/12/2010 01:30 PM in Courtroom 605, 401 West Washington Street, Phoenix, AZ 85003 before Judge Stephen M McNamee.(see order details). Signed by Judge Stephen M McNamee on 3/8/2010. (TCA) (Entered: 03/08/2010)

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03/11/2010 03/11/2010 03/12/2010 03/15/2010 03/25/2010 03/26/2010 03/26/2010 03/26/2010 03/26/2010 03/26/2010 03/26/2010 03/26/2010 03/26/2010 03/26/2010 03/26/2010 03/29/2010 03/29/2010 04/02/2010
04/02/2010 04/02/2010

178 STIPULATION TO EXTEND FINAL PRETRIAL CONFERENCE AND RELEVANT DATES by Creative Networks, LLC, Res−Care, Inc.. (Shoupe−Gorga, Sandra) (Entered: 03/11/2010)
179 ORDER denying 178 Stipulation to Extend Final Pretrial Conference and Relevant Dates. Signed by Judge Stephen M McNamee on 3/11/2010. (TCA) (Entered: 03/11/2010)
180 MOTION to Bifurcate Plaintiff's Claims by Creative Networks, LLC. (Blair, James) Modified on 3/15/2010 (SAT). DOCUMENT NOT IN COMPLIANCE WITH LRCiv 7.1(c). ATTORNEY NOTICED. (Entered: 03/12/2010)
181 Notice re Notice of Errata Re: Creative Networks' Motion to Bifurcate by Creative Networks, LLC, Res−Care, Inc. (Shoupe−Gorga, Sandra) (Entered: 03/15/2010)
182 NOTICE of Attorney Substitution by John Anthony Klecan adding John Anthony Klecan,John Anthony Klecan for Creative Networks, LLC (Klecan, John) (Entered: 03/25/2010)
183 Proposed Voir Dire by Equal Employment Opportunity Commission. (Shanley, Sally) (Entered: 03/26/2010)
184 STATEMENT of the Case by Defendant Creative Networks, LLC, Plaintiff Equal Employment Opportunity Commission. (Shanley, Sally) (Entered: 03/26/2010)
185 Proposed Voir Dire by Creative Networks, LLC, Equal Employment Opportunity Commission. (Shanley, Sally) (Entered: 03/26/2010)
186 Proposed Verdict Form by Equal Employment Opportunity Commission. (Shanley, Sally) (Entered: 03/26/2010)
187 Proposed Jury Instructions by Creative Networks, LLC, Equal Employment Opportunity Commission. (Houk, Christopher) (Entered: 03/26/2010)
188 Proposed Verdict Form by Creative Networks, LLC. (Blair, James) (Entered: 03/26/2010)
189 Notice of Filing Proposed Pretrial Order filed by Creative Networks, LLC, Equal Employment Opportunity Commission (Rosas, Lucila) (Entered: 03/26/2010)
190 MOTION in Limine re: (No. 1) To Preclude Testimony Regarding Rumored Personal Relationship Between Creative Networks Employees by Creative Networks, LLC. (Attachments: # 1 Exhibit 1 − 3)(Blair, James) (Entered: 03/26/2010)
191 MOTION in Limine re: (No. 2) To Preclude Witnesses Without Personal Knowledge by Creative Networks, LLC. (Attachments: # 1 Exhibit A − C)(Blair, James) (Entered: 03/26/2010)
192 MOTION in Limine re: (No. 3) to Preclude Punitive Damages Re: Allen by Creative Networks, LLC. (Blair, James) (Entered: 03/26/2010)
193 NOTICE of Appearance by Meenoo Chahbazi on behalf of Equal Employment Opportunity Commission (Chahbazi, Meenoo) (Entered: 03/29/2010)
194 RESPONSE in Opposition re 180 MOTION to Bifurcate Plaintiff's Claims filed by Equal Employment Opportunity Commission. (Chahbazi, Meenoo) (Entered: 03/29/2010)
195 RESPONSE to Motion re 190 MOTION in Limine re: (No. 1) To Preclude Testimony Regarding Rumored Personal Relationship Between Creative Networks Employees filed by Equal Employment Opportunity Commission. (Houk, Christopher) (Entered: 04/02/2010)
196 RESPONSE in Opposition re 191 MOTION in Limine re: (No. 2) To Preclude Witnesses Without Personal Knowledge filed by Equal Employment Opportunity Commission. (Rosas, Lucila) (Entered: 04/02/2010)
197 RESPONSE to Motion re 192 MOTION in Limine re: (No. 3) to Preclude Punitive Damages Re: Allen filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1)(Houk, Christopher) (Entered: 04/02/2010)

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04/08/2010 04/12/2010 04/12/2010
04/12/2010 04/12/2010
04/12/2010 04/14/2010 04/16/2010 04/28/2010
05/13/2010 05/18/2010
05/24/2010 05/24/2010

198 REPLY in Support re 180 MOTION to Bifurcate Plaintiff's Claims filed by Creative Networks, LLC. (Attachments: # 1 Exhibit 1 − 4)(Blair, James) (Entered: 04/08/2010)
199 MOTION to Withdraw as Attorney by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Rosas, Lucila) (Entered: 04/12/2010)
200 Minute Entry. Proceedings held before Judge Stephen M McNamee: Appearances: Sally Shanley/Meenoo Chahbazi/Christopher Houk for pla; James Blair/Sandra Shoupe−Gorga for dft Final Pretrial Conference held on 4/12/2010.ORDERED taking under advisement 180 Motion to Bifurcate. Court will issue a written order. FURTHER ORDERED deferring ruling on [docs. #190,191, 192] Motions in Limine. Court will wait to hear testimony and evidence at trial.Parties agree to prescreen jury panel for length. Court gives parties a draft of preliminary jury instructions for review. Court rules on the outstanding discovery issue re: Telphonic conversation with Ms. Faulkner. Court finds that counsel for plaintiff did not violate any rules. (Court Reporter Vicki Reger.) This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA) (Entered: 04/12/2010)
201 ORDER granting 199 Motion to Withdraw as Attorney. Attorney Lucila G Rosas withdrawn as counsel for the EEOC in the present case.. Signed by Judge Stephen M McNamee on 4/12/2010.(TCA) (Entered: 04/12/2010)
202 AMENDED Minute Entry. Proceedings held before Judge Stephen M McNamee: Amending the Final Pretrial Conference held on 4/12/2010. Reason for Amendment: to grant motion in limine doc. #190. (Court Reporter Vicki Reger.) This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (TCA) (Entered: 04/12/2010)
203 TRANSCRIPT DESIGNATION AND ORDER FORM by Creative Networks, LLC for proceedings held on 04/12/2010 before Judge Stephen M. McNamee. (Shoupe−Gorga, Sandra) (Entered: 04/12/2010)
204 ORDER denying 180 Motion to Bifurcate (see order details). Signed by Judge Stephen M McNamee on 4/14/2010.(TCA) (Entered: 04/14/2010)
205 PRETRIAL ORDER approved and adopted as the official Pretrial Order of this Court (see order for complete details). Signed by Judge Stephen M McNamee on 4/12/10. (REW) (Entered: 04/16/2010)
206 TRANSCRIPT of Proceedings re: Final Pretrial Conference held on 04/12/2010 before Judge Stephen M McNamee. Court Reporter: Vicki Reger. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/19/2010. Redacted Transcript Deadline set for 6/1/2010. Release of Transcript Restriction set for 7/27/2010. (BAS) (Entered: 04/28/2010)
207 NOTICE of Settlement by Creative Networks, LLC (Shoupe−Gorga, Sandra) (Entered: 05/13/2010)
208 ORDER re 207 NOTICE of Settlement by Creative Networks, LLC (Shoupe−Gorga, Sandra) filed by Creative Networks, LLC Status Conference set for 5/28/2010 09:30 AM in Courtroom 605, 401 West Washington Street, Phoenix, AZ 85003 before Judge Stephen M McNamee.(see order details). Signed by Judge Stephen M McNamee on 5/18/2010. (TCA) (Entered: 05/18/2010)
209 Joint MOTION to Approve Consent Judgment by Creative Networks, LLC, Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Consent Decree)(Shanley, Sally) (Entered: 05/24/2010)
210 ORDER finding as moot 191 Motion in Limine; finding as moot 192 Motion in Limine; granting 209 Motion to Approve Consent Judgment. FURTHER ORDERED that the Consent Decree is APPROVED, and shallbecome effective upon entry of this Order. The Clerk of Court is directed to file the ConsentDecree.FURTHER ORDERED VACATING the status conference set for May 28,2010 at 9:30 a.m., and the jury trial set for June 1, 2010.. Signed by Judge Stephen M McNamee on 5/24/2010.(TCA) (Entered: 05/24/2010)

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05/24/2010 211 CONSENT DECREE. Signed by Judge Stephen M McNamee on 5/24/10. (SAT) (Entered: 05/25/2010)