• Case 5:05-cv-00965-WRF

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9 r-· .•
IN THE UNITED STATES DISTRICT COURT i l L [

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

lOD5 SEP 2g P 12: q2

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
BUILDERS GYPSUM SUPPLY, L.L.P., F/D/B/A BUILDERS GYPSUM SUPPLY CO, INC.,
Defendant.

§

§

'.

,, ,~
.. ..)

§

§

§ Civil Action No.

§

§

§ COMPLAINT

§ JURY TRIAL DEMAND

§

~A05CA0965

RF

NATURE OF ACTION This is an action under Title VII of the Civil Rights Act of 1964, as amended, and Title I of the Civil Rights Act of 1991, to correct unlawful employment practices on the basis of sex, female, and retaliation. This action is also being brought to provide appropriate relief to Alicia Mansel and a class of similarly situated females who were adversely affected by such practices. The Equal Employment Opportunity Commission (the "Commission") alleges that Builders Gypsum Supply, L.L.P., f/d/b/a Builders Gypsum Supply Co., Inc. subjected Alicia Mansel and a class of similarly situated females to sexual harassment on the basis of their sex, female, in violation of Section 703(a) of Title VII, and retaliated against Alicia Mansel by, among other things, discharging her for complaining of this sexual harassment in violation of Section 704(a) of Title VII. In addition, the Commission alleges that a class of similarly situated females were similarly retaliated against andlor forced to quit their employment because their conditions of employment became intolerable due to the sexual harassment.

Plaintiff's Original Complaint
(

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JURISDICTION AND VENUE

1. Jurisdiction of this Court is invoked pursuant to 28 U.S.c. §§451, 1331, 1337,

1343 and 1345. This action is authorized and instituted pursuant to Section 706(f)(1) and (3) of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e-5(f)(1) and (3) ("Title

VII") and Section 102 of the Civil Rights Act of 1991,42 U.S,C, § 1981a,

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

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

Texas, San Antonio Division.

PARTIES

3. Plaintiff, the Commission, is the agency of the United States of America charged

with the administration, interpretation and enforcement of Title VII, and is expressly authorized

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

4. At all relevant times, Defendant, Builders Gypsum Supply, L.L.P., f/d/b/a

Builders Gypsum Supply Co., Inc. ("Builders Gypsum"), has continuously been a Texas

corporation doing business in the State of Texas and the City of San Antonio, and has

continuously had at least fifteen employees.

5. At all relevant times, Defendant Builders Gypsum has continuously been an

employer engaged in an industry affecting commerce within the meaning of Sections 701(b), (g)

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

STATEMENT OF CLAIMS

6. More than thirty days prior to the institution of this lawsuit, Alicia Mansel filed a

charge with the Commission alleging violations of Title VII by Defendant Builders Gypsum. All

conditions precedent to the institution of this lawsuit have been fulfilled.
Plaintiff's Original Complaint

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7. Since at least August 2002, Defendant Builders Gypsum engaged in unlawful
employment practices at its San Antonio, Texas, facility, in violation of Section 703(a) of Title
VII, 42 U.S.c. §2000e-2(a) and Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a) including the
following:
a. Subjecting Alicia Mansel and a class of similarly situated females to a hostile work environment based on their sex, female, through inappropriate sexual touching; loud, sexually crude and physically intimidating tirades directed at their gender, including sexually imbued gestures, sounds and innuendos; and then failing to take any prompt and effective remedial action after becoming aware of this conduct;
b. Retaliating against Alicia Mansel by, among other things, discharging her for complaining about the sexual harassment; and
c. Similarly retaliating against a class of similarly situated females and/or constructively discharging them by making their conditions of employment so intolerable due to the sexual harassment and/or retaliation that they felt forced to resign.
8. The effect of the practices complained of in paragraph seven above has been to
deprive Alicia Mansel and a class of similarly situated females of equal employment
opportunities and to otherwise adversely affect their status as employees because of their sex,
female, and in retaliation for opposing such unlawful practices.
9. The unlawful employment practices complained of in paragraph seven above
were and are intentional.
10. The unlawful employment practices complained of in paragraph seven above
were and are done with malice or with reckless indifference to the federally protected rights of
Alicia Mansel and a class of similarly situated females.
PRAYER FOR RELIEF
Wherefore, the Commission respectfully requests that this Court:

Plaintiff's Origznal Complaint

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A. Grant a permanent injunction enjoining Defendant Builders Gypsum, its officers,

successors, assigns, and all persons in active concert or participation with it, from sUbjecting its

female employees to a sexually hostile work environment because of their sex and creating

intolerable conditions that force employees to quit, or any other employment practice which

discriminates on the basis of sex, female;

B. Grant a permanent injunction enjoining Builders Gypsum, its officers, successors,

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

retaliation;

C. Order Defendant, Builders Gypsum to institute and carry out policies, practices,

and programs which provide equal employment opportunities and a non-hostile work

environment for females, and which eradicate the effects of its past and present unlawful

employment practices;

D. Order Defendant, Builders Gypsum to make whole Alicia Mansel and a class of

similarly situated females by providing appropriate back pay with prejudgment interest, in

amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of

its unlawful employment practices, including but not limited to reinstatement of Alicia Mansel

and a class of similarly situated females or front pay in lieu thereof;

E. Order Defendant, Builders Gypsum to make whole Alicia Mansel and a class of

similarly situated females by providing compensation for past and future pecuniary losses

resulting from the unlawful employment practices described in paragraph seven above, including

but not limited to medical expenses and job search expenses, in amounts to be determined at

trial;

F. Order Defendant, Builders Gypsum to make whole Alicia Mansel and a class of

Plazntiff's Original Complaint

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similarly situated females by providing compensation for past and future non-pecuniary losses resulting from the unlawful employment practices described in paragraph seven above, including but not limited to emotional pain, suffering, inconvenience, mental anguish, depression, humiliation, 10.ss of confidence, loss of enjoyment of life and self-esteem and other nonpecuniary losses, in amounts to be determined at trial;
G. Order Defendant, Builders Gypsum to pay Alicia Mansel and a class of similarly situated females punitive damages for its malicious and/or reckless conduct, in an amount to be determined at trial;
H. Grant such further relief as the Court deems necessary and proper in the public interest; and
1. Award the Commission its costs in this action. JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its complaint. Respectfully submitted, JAMES L. LEE Deputy General Counsel GWENDOL YN YOUNG REAMS Associate General Counsel

ROBERT B. HARWIN Regional Attorney District of Columbia Bar No. 076083

Plaintiff's Original Complaint

upervisory Trial Attorney exas State Bar No. 19708300

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Trial Attorney Texas State Bar No. 24014498
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION San Antonio District Office 5410 Fredericksburg Rd., Ste 200 San Antonio, TX 78229-3555 Telephone: (210) 281-7613 Facsimile: (210) 281-7669
ATTORNEYS FOR PLAINTIFF

Plaintiff's Original Complaint

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Case 5:05-cv-00965-WRF Document 12 Filed 01/13/2006 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

FILED

Plaintiff, and
ALICIA MANSEL, Intervenor-Plaintiff,
vs.
BUILDERS GYPSUM SUPPLY, L.L.P. P/D/B/ABUILDERS GYPSUM SUPPLY CO., INC.
Defendant

§ § § § § § § Civil Action No. / § § SA05CA0965 RF § § Complaint § Jury Trial Demand § § § § §

ALICIA MANSEL'S COMPLAINT IN INTERVENTION AND JURY DEMAND
Intervenor, Alicia Mansel files this complaint in intervention as a party-plaintiff, as
authorized by Federal Rule of Civil Procedure 24.

A. PARTIES

1.

Intervenor, Alicia Mansel ("Intervenor"), is a citizen of the United States and the

State of Texas, and resides in Houston, Harris County, Texas.

2.

Plaintiff, the Equal Employment Opportunity Commission (the "Commission" or

EEOC herein), is the agency of the United States of America charged with the

Mansel's Complaint in Intervention and Jury Demand

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administration, interpretation and enforcement of Title VII and is expressly authorized to bring this action by 42 U.S.c. § 2000 e-5 (f)(I) and (3). Alicia Mansel is authorized to bring this intervention pursuant to 42 U.S.C. § 2000 e-5 (f) (1).

3.

At all relevant times, Defendant, Builders Gypsum Supply, L.L.P, f/d/b/al

Builders Gypsum Supply Co., Inc. (Builders Gypsum) has continuously been a

Texas Corporation doing business in the State of Texas and has continuously had

at least fifteen (15) employees.

4.

At all relevant times, Defendant Builders Gypsum has continuously been an

employer engaged in an industry affecting commerce within the meaning of

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

B. THE ORIGINAL LAWSUIT

5.

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

Title I of the Civil Rights Act of 1991, to correct unlawful employment practices

on the basis of sex, female, and retaliation. This action is also being brought to

provide appropriate relief of Alicia Mansel and a class of similarly situated

females who were adversely affected by such practices. The EEOC alleges that

Mansel's Complaint in Intervention and Jury Demand

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Case 5:05-cv-00965-WRF Document 12 Filed 01/13/2006 Page 3 of 11

Builders Gypsum Supply, L.L.P., f/d/b/a Builders Gypsum Supply Co., Inc., subjected Alicia Mansel and a class of similarly situated females to sexual harassment in violation of Section 703(a) of Title VII, and retaliated against Alicia Mansel by, among other things, discharging her for complaining of this sexual harassment in violation of Section 704(a) of Title VII. In addition, Alicia Mansel joins the Commission in alleging that a class of similarly situated females were similarly retaliated against and/or forced to quit their employment because their conditions of employment became intolerable due to the sexual harassment.

C. ASSAULT OR BATTERY OF ALICIA MANSEL

6.

In the course of Defendant Builders Gypsum Supply engaging in sexual

harassment as described above, Alicia Mansel alleges that agents and supervisors

of Alicia Mansel engaged in unwelcome touching of her body, including her

breasts, entering the women's restroom at the facility, locking the door and

turning off the lights, while Ms. Mansel was in the restroom.

7.

The assault or battery alleged herein arose out of the same facts and

circumstances that give rise to the claims of sexual harassment made by both the

EEOC and Alicia Mansel.

D. JURISDICTION AND VENUE

8.

Jurisdiction of this Court is invoked pursuant to 28 U.S.c. § 451, 1331, 1337,

Mansel's Complaint in Intervention and Jury Demand

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1343 and 1345. This action is authorized and instituted pursuant to Section 706(f) (1) and (3) of Title VII ofthe Civil Rights Act of 1964, as amended, 42 U.S.C. §2000 e-5(f)(1) and (3) ("Title VII") and Section 102 of the Civil Rights Act of 1991,52 U.S.C. § 1981a.

9.

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

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

Western District of Texas, San Antonio, Division.

10.

The assault or battery alleged by Alicia Mansel in this complaint arises out of the

same facts and circumstances that give rise to the Original suit. Under 42 USC §

2000 e-5 (f)(1). Ms. Mansel has the absolute right to intervene in the civil action

brought by the EEOC. Her claims for assault or battery and attorneys fees are

particular to her and may not be pressed in the original suit by the EEOC. The

Court, therefore, has jurisdiction to resolve state common law claim of assault or

battery and claims for attorneys fees for service performed by her attorney at all

stages of this matter because these claims are inextricably intertwined with claims

of sexual harassment set out in the original suit. The Court may exercise its

pendant jurisdiction to hear the assault or battery claims and Mansel's claims for

attorney fees which, are claims and causes of action not made by the EEOC in the

original suit.

Mansel's Complaint in Intervention and Jury Demand

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E. STATEMENT OF CLAIMS

11.

More than thirty days prior to the institution of the lawsuit, Alicia Mansel filed a

charge with the Commission alleging violations of Title VII by Defendant

Builders Gypsum. All conditions precedent to the institution of this lawsuit have

been fulfilled.

12.

Since at least August, 2002, Defendant Builders Gypsum engaged in unlawful

employment practices at its San Antonio, Texas, facility, in violation of Section

703(a) of Title VII, 42 U.S.C. § 2000 e-2 (a) and Section 704(a) of Title VII, 42

U.S.C. § 2000 e-3(a) including the following

a. Subjecting Alicia Mansel and a class of similarly situated females to a hostile work environment based on their sex, female, through inappropriate sexual touching; loud, sexually crude and physically intimidating tirades directed at their gender, including sexually imbued gestures, sounds and innuendos; and then failing to take any prompt and effective remedial action after becoming aware of this conduct;

b. Retaliating against Alicia Mansel by, among other things, discharging her for complaining about the sexual harassment; and,

c. Similarly retaliating against a class of similarly situated females and/or

constructively discharging them by making their conditions of

Mansel's Complaint in Intervention and Jury Demand

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employment so intolerable due to the sexual harassment and/or retaliation that they felt forced to resign.

13.

The effect of the practices complained of in paragraph twelve above has been to

deprive Alicia Mansel and a class of similarly situated females of equal

employment opportunities and to otherwise adversely affect their status as

employees because of their sex, female, and in retaliation for opposing such

unlawful practices.

14.

The unlawful employment practices complained of in paragraph twelve above

were and are intentional.

15.

The unlawful employment practices complained of in paragraph twelve above

were and are done with malice or with reckless indifference to the federally

protected rights of Alicia Mansel and a class of similarly situated females.

16.

The unwelcome touching of Ms. Mansel's body, by agents and supervisors of

Defendant Builders Gypsum Supply, including touching her breasts, and locking

her in the women's restroom while a male supervisor was in the restroom,

constitute assault or battery.

Mansel's Complaint in Intervention and Jury Demand

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F. PRAYER

WHEREFORE, Plaintiff-Intervenor, Alicia Mansel joins with the Commission and

respectfully requests that this Court:

A.

Grant a permanent injunction enjoining Defendant Builders Gypsum, its officers,

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

SUbjecting its female employees to a sexually hostile work environment because

of their sex and creating intolerable conditions that force employees to quit, or

any other employment practice which discriminates on the basis of sex, female;

B.

Grant a permanent injunction enjoining Builders Gypsum, its officers, successors,

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

any form of retaliation;

C.

Order Defendant, Builders Gypsum to institute and carry out policies, practices,

and programs which provide equal employment opportunities and a non-hostile

work environment for females, and which eradicate the effects of its past and

present unlawful employment practices;

D.

Order Defendant, Builders Gypsum to make whole Alicia Mansel and a class of

similarly situated females by providing appropriate back pay with prejudgment

interest, in amounts to be determined at trial, and other affirmative relief

necessary to eradicate the efforts of its unlawful employment practices, including

but not limited to reinstatement of Alicia Mansel and a class of similarly situated

Mansel's Complaint in Intervention and Jury Demand

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Case 5:05-cv-00965-WRF Document 12 Filed 01/13/2006 Page 8 of 11

females or front pay in lieu thereof;

E.

Order Defendant, Builders Gypsum to make whole Alicia Mansel and a class of

similarly situated females by providing compensation for past and future

pecuniary losses resulting from the unlawful employment practices described in

paragraph eleven above, including but not limited to medical expenses and job

search expenses, in amounts to be determined at trial;

F.

Order Defendant, Builders Gypsum to make whole Alicia Mansel and a class of

similarly situated females by providing compensation for past and future non-

pecuniary losses resulting from the unlawful employment practices described un

paragraph eleven above, including nut not limited to emotional pain, suffering,

inconvenience, mental, anguish, depression, humiliation, loss of confidence, loss

of enjoyment oflife and self esteem and other non-pecuniary losses, in amounts

to be determined at trial;

G.

Order Defendant, Builder Gypsum to make whole Alicia Mansel paying damages

to Alicia Mansel for the violation of her person while employed by Defendant

Builders Gypsum as described in paragraph six above including, but limited to,

emotional pain, suffering, inconvenience, mental anguish, depression,

humiliation, loss of confidence, loss of enjoyment of life and self esteem and

other non-pecuniary losses, in amount to be determined at trial;

Mansel's Complaint in Intervention and Jury Demand

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Case 5:05-cv-00965-WRF Document 12 Filed 01/13/2006 Page 9 of 11

H.

Order Defendant, Builder Gypsum to pay Alicia Mansel and a class of similarly

situated females punitive damages for its malicious and/or reckless conduct, in an

amount to be determined at trial;

I.

Order Defendant, Builders Gypsum to pay Alicia Mansel punitive damages for its

malicious and/or reckless conduct as described in paragraph six above in an

amount to be determined at trial;

J.

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

interest;

K.

Award the Commission its costs in this action;

1.

Award Alicia Mansel reasonable attorneys fees and her costs in this action; and,

M.

Pre and post judgment interest at the maximum amount allowed by law.

Alicia Mansel joins with the Commission in requesting a jury trial on all questions of fact raised by this complaint.

Mansel's Complaint in Intervention and Jury Demand

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Case 5:05-cv-00965-WRF Document 12 Filed 01/13/2006 Page 10 of 11

Respectfully submitted,

HOPE H. CAMP,]R., P.e.

Pacific Plaza, Suite 611

14100 San Pedro Avenue

San Antonio, Texas 78232-4363

(210) 495-0900

(210) 495-0997 (fax)

/

By: ~O. tx ~'--

H e H. amp,];.

Texas Bar Number 03691600

ATTORNEY FOR INTERVENOR, ALICIA MANSEL

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument has been on this

the 21 st day of December 2005, forwarded by way of facsimile and/or regular mail to counsel of

record to-wit:

E. Burke Hubner Holland & Knight, LLP 112 East Pecan Street, Suite 2700 San Antonio, Texas 78205

R. Mark Dietz, Esq. Dietz & Jarrard, P.C. 106 Fannin Ave. East Round Rock, Texas 78664
Eduardo Juarez, Esq. EEOC 5410 Fredericksburg Road, Ste. 200 San Antonio, Texas 78229

Mansel's Complaint in Intervention and Jury Demand

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Case 5:05-cv-00965-WRF Document 12 Filed 01/13/2006 Page 11 of 11
CERTIFICATE OF CONFERENCE Intervenor's counsel conferred with the parties' counsel. Counsel for the EEOC does not oppose this intervention. Counsel for the Defendant opposes this intervention on the grounds that he believes" it is not properly fonnatted" and that as he reads Local Rule CV-7(c)(8) "in that there no legal authorities supporting the motion", as originally presented to him.

Mansel's Complaint in Intervention and Jury Demand

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N THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

Page 1 of 6
FILED
FEB - 7 2006

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, AND
ALICIA MANSEL,
Plaintiff-Intervenor,
v.
BUILDERS GYPSUM SUPPLY, L.L.P., F/D/BIA BUILDERS GYPSUM SUPPLY CO., INC., Defendant.

§ § § § § § § § § § § Civil Action No. SA05CA0965RF § § § FIRST AMENDED § COMPLAINT § §

NATURE OF ACTION

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

of the Civil Rights Act of 1991, to correct unlawful employment practices on the basis of sex,

female, and retaliation. This action is also being brought to provide appropriate relief to Alicia

Mansel who was adversely affected by such practices. The Equal Employment Opportunity

Commission (the "Commission") alleges that Builders Gypsum Supply, L.L.P., f/d/b/a Builders

Gypsum Supply Co., Inc. SUbjected Alicia Mansel to sexual harassment on the basis of her sex,

female, in violation of Section 703(a) of Title VII, and retaliated against Alicia Mansel by,

among other things, discharging her for complaining of this sexual harassment in violation of

Section 704(a) of Title VII.

JURISDICTION AND VENUE

1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§451, 1331, 1337,

• Case 5:05-cv-00965-WRF

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1343 and 1345. This action is authorized and instituted pursuant to Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.c. §2000e-5(f)(l) and (3) ("Title VII") and Section 102 of the Civil Rights Act of 1991,42 U.S.C. § 1981a.
2. The employment practices alleged to be unlawful were and are now being committed within the jurisdiction of the United States District Court for the Western District of Texas, San Antonio Division.
PARTIES 3. Plaintiff, the Commission, is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Section 706(f)(1) and (3) of Title VII, 42 U.S.C. §2000e-5(f)(l) and (3). 4. At all relevant times, Defendant, Builders Gypsum Supply, L.L.P., f/d/b/a Builders Gypsum Supply Co., Inc. ("Builders Gypsum"), has continuously been a Texas corporation doing business in the State of Texas and the City of San Antonio, and has continuously had at least fifteen employees. 5. At all relevant times, Defendant Builders Gypsum has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701 (b), (g) and (h) of Title VII, 42 U.S.C. §§2000e(b), (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Alicia Mansel filed a charge with the Commission alleging violations of Title VII by Defendant Builders Gypsum. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. Since at least August 2002, Defendant Builders Gypsum engaged in unlawful employment practices at its San Antonio, Texas, facility, in violation of Section 703(a) of Title

Plaintiff's First Amended Complaint

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VII, 42 U.S.C. §2000e-2(a) and Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a) including the following:
a. Subjecting Alicia Mansel to a hostile work environment based on her sex, female, through inappropriate sexual touching; loud, sexually crude and physically intimidating tirades directed at her gender, including sexually imbued gestures, sounds and innuendos; and then failing to take any prompt and effective remedial action after becoming aware of this conduct; and
b. Retaliating against Alicia Mansel by, among other things, discharging her for complaining about the sexual harassment.
8. The effect of the practices complained of in paragraph seven above has been to deprive Alicia Mansel of equal employment opportunities and to otherwise adversely affect her
status as an employee because of her sex, female, and in retaliation for opposing such unlawful
practices.
9. The unlawful employment practices complained of in paragraph seven above were and are intentional.
10. The unlawful employment practices complained of in paragraph seven above
were and are done with malice or with reckless indifference to the federally protected rights of Alicia Mansel.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court:
A. Grant a permanent injunction enjoining Defendant Builders Gypsum, its officers,
successors, assigns, and all persons in active concert or participation with it, from subjecting its female employees to a sexually hostile work environment because of their sex and creating intolerable conditions that force employees to quit, or any other employment practice which discriminates on the basis of sex, female;
B. Grant a permanent injunction enjoining Defendant Builders Gypsum, its officers,

Plaintiff's First Amended Complaint

Page 3

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•Filed 02/07/2006

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successors, assigns, and all persons in active concert or participation with it, from engaging in any form of retaliation;
C. Order Defendant Builders Gypsum to institute and carry out policies, practices, and programs which provide equal employment opportunities and a non-hostile work environment for females, and which eradicate the effects of its past and present unlawful employment practices;
D. Order Defendant Builders Gypsum to make whole Alicia Mansel by providing appropriate back pay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to reinstatement of Alicia Mansel or front pay in lieu thereof;
E. Order Defendant Builders Gypsum to make whole Alicia Mansel by providing compensation for past and future pecuniary losses reSUlting from the unlawful employment practices described in paragraph seven above, including but not limited to medical expenses and job search expenses, in amounts to be determined at trial;
F. Order Defendant Builders Gypsum to make whole Alicia Mansel by providing compensation for past and future non-pecuniary losses resulting from the unlawful employment practices described in paragraph seven above, including but not limited to emotional pain, suffering, inconvenience, mental anguish, depression, humiliation, loss of confidence, loss of enjoyment of life and self-esteem and other non-pecuniary losses, in amounts to be determined at trial;
G. Order Defendant Builders Gypsum to pay Alicia Mansel punitive damages for its malicious and/or reckless conduct, in an amount to be determined at trial;
H. Grant such further relief as the Court deems necessary and proper in the public

Plaintiff's First Amended Complaint

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interest; and
1. Award the Commission its costs in this action. JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its complaint.
Respectfully submitted,
JAMES L. LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel

f1hl~~~r--
ROBERT A. CANINO Regional Attorney Oklahoma State Bar No. 011782
~~
ROBERT B. HARWIN Associate Regional Attorney District of Columbia Bar No. 076083

Plaintiff's First Amended Complaint

~C\u~r'

~ EDWARD JUAREZ

()

Trial Attorney

Texas Bar No. 24014498

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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION San Antonio Field Office 5410 Fredericksburg Rd., Suite 200 San Antonio, Texas 78229-3555 Telephone: (210) 281-7613 Facsimile: (210) 281-7669

ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has been delivered, as designated below, on this the 2nd day of February 2006.

E. Burke Huber, Jr. HOLLAND & KNIGHT LLP 112 East Pecan Street, Suite 2700 San Antonio, Texas 78205

D Hand Delivery D Facsimile Transmission at (210)229-1194 wYCertified Mail, Return Receipt Requested D U.S. First Class Mail, Postage Prepaid

R. Mark Dietz DIETZ & ASSOCIATES 106 Fannin Ave. Round Rock, Texas 78664

D Hand Delivery D Facsimile Transmission at (512)244-3766 UJ-Certified Mail, Return Receipt Requested D U.S. First Class Mail, Postage Prepaid

Hope H. Camp, Jr. Attorney at Law 14100 San Pedro Ave., Ste. 611 San Antonio, Texas 78232-4363

D Hand Delivery D ~csimile Transmission at (210)495-0997 r:r'Certified Mail, Return Receipt Requested D U.S. First Class Mail, Postage Prepaid

Plaintiff's First Amended Complaint

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 , . . ", ' • • \\!\:n r~~r Case 5:05-cv-00965-WRF Document 25 Filed 05/12/2006 Page 1 of 9 l=,
'!"~

IN THE UNITED STATES DISTRICTCOURT FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

FILED

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, AND
ALICIA MANSEL,
Plaintiff-Intervenor,
v.
BUILDERS GYPSUM SUPPLY, L.L.P., FIDIB/A BUILDERS GYPSUM SUPPLY CO., INC., Defendant.

§ § § § § § § § § § § Civil Action No. SA05CA0965RF
§ § § § § §

CONSENT DECREE

The parties to this Consent Decree are the Plaintiff, United States Equal Employment

Opportunity Commission ("EEOC") and Defendant, Builders Gypsum Supply, L.L.P., fld/b/a

Builders Gypsum Supply Co., Inc. ("Builders Gypsum"). This Consent Decree resolves the

allegations raised by the EEOC's Complaint in the above-referenced Civil Action No.

SA05CA0965RF. However, the terms of the settlement as agreed upon by the EEOC and

Builders Gypsum do not include the claims made by Plain!iff-Intervenor, Alicia Mansel. The

EEOC initiated this lawsuit under Title VII of the Civil Rights Act of 1964, as amended and Title

I of the Civil Rights Act of 1991. The EEOC and Builders Gypsum wish to settle the claims and causes of action asserted

by the EEOC against Builders Gypsum without the risks, uncertainties and expenses of

continued litigation, under the terms in the Decree.

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IT IS ORDERED, ADJUDGED AND DECREED as follows: 1. This Court has jurisdiction of the subject matter of the claims and causes of action
asserted by the EEOC against Builders Gypsum, venue is proper, and all administrative
prerequisites to the EEOC's filing its Complaint have been met. 2. This Consent Decree resolves all issues raised in the EEOC's Complaint. The
EEOC waives further litigation of all issues raised in the EEOC's Complaint. The EEOC
expressly reserves its right, however, to process and litigate any other charges which may now be
pending or may in the future be filed against Defendant Builders Gypsum. 3. The duration of this Decree shall be four (4) years from the date of its filing with
the Court. This Court shall retain jurisdiction to enforce any term or condition as. set forth in this
Consent Decree during the period of this Decree and may enter further orders or modifications as
may be appropriate. Should any disputes under this Decree remain unresolved after this four-
year period, the term of the Decree shall be automatically extended, and the Court will retain
jurisdiction of this matter to enforce the Consent Decree, until such time as all disputes have
been resolved. 4. Builders Gypsum is hereby enjoined from: (a) Discriminating against any employee on the basis of sex, female;
(b) Creating, facilitating or permitting the existence of a work environment that is hostile to female employees through acts such as physical/verbal abuse and derogatory comments, on the basis of sex; and
(c) From retaliating against any employee for opposing any employment practice made unlawful by Title VII, or for complaining of harassment or other unlawful discrimination, filing a discrimination charge, giving testimony or assistance, or participating in any lawful manner in any investigation, proceeding, hearing or action under Title VII.

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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. EEOC ENFORCES TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, WHICH
PROHIBITS EMPLOYMENT DISCRIMINATION BASED ON RACE, COLOR, RELIGION, SEX OR NATIONAL ORIGIN; THE AGE DISCRIMINATION IN EMPLOYMENT ACT; THE EQUAL PAY ACT; PROHIBITIONS AGAINST DISCRIMINATION AFFECTING INDIVIDUALS WITH DISABILITIES; SECTIONS OF THE CIVIL RIGHTS ACT OF 1991, AND TITLE I OF THE AMERICANS WITH DISABILITIES ACT, WHICH PROHIBITS DISCRIMINATION AGAINST PEOPLE WITH DISABILITIES IN THE PRIVATE SECTOR AND STATE AND LOCAL GOVERNMENTS.

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5. Within ninety (90) days from the entry of this Decree, Builders Gypsum will
adopt a sexual harassment policy that meets the following criteria:
(a) . States that Builders Gypsum: (i) prohibits discrimination against any employee on the basis of sex, female, in violation of Title VII; (ii) prohibits any act, policy or practice that has the effect of harassing or intimidating. any employee on the basis of sex, female, in violation of Title Vll; and, (iii) prohibits any act, policy or practice that has the effect of creating, facilitating or permitting the existence of a work environment that is hostile to any employee through acts such as physical/verbal abuse and derogatory comments based on sex, female, in violation of Title Vll;
(b) Defines and provides examples of sexual harassment;
(c) Provides for prompt investigation of sexual harassment complaints and for prompt action, which is appropriate and effective, to remedy the discrimination;
(d) Provides that upon the conclusion of Builders Gypsum's investigation, the results of the investigation and the remedial actions taken or proposed will be promptly communicated in writing to the complaining party;
(e)· Provides for substantial and progressive discipline for violating Builders Gypsum's sexual harassment policy up to and including discharge; and
(f) Requires that all employees report incidents of sexual harassment to the person(s) identified by Builders Gypsum as the person(s) charged with the responsibility for investigating discrimination complaints.
6. Within fourteen (14) days of the entry of this Consent Decree, Builders Gypsum,
in settlement of this dispute, shall pay to Alicia Mansel the sum of $200,000.00 (TWO-
HUNDRED THOUSAND DOLLARS), minus any lawful withholding. Payment shall be mailed
directly to Ms. Mansel's attorney, Hope H. Camp, Jr., 14100 San Pedro Ave., Ste. 611, San
Antonio, Texas 78232-43631.
7. A copy of the settlement check, and any accompanying transmittal documents
shall be forwarded to Robert Harwin, Associate Regional Attorney, San Antonio Field Office,
United States Equal Employment Opportunity Commission, 5410 Fredericksburg Road, Suite
200, San Antonio, Texas 78229.
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8. Within 180 days of the date of entry of this Decree, Builders Gypsum shall provide not less than eight (8) hours of EEO training to Builders Gypsum's employees, officials, managers and supervisors. Any training shall:
(a) Explain that gender and sexual harassment and other Title vn protected-status
discrimination is unlawful; (b) Instruct what conduct may constitute discriminatory conduct; and (c) Explain the damaging effects of discrimination caused to victims, their families,
their co-workers, and the workplace environment. Any training will be conducted by the Law Offices of OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., or any other licensed attorney board certified in employment law who will send a copy of the training presentation outline to the EEOC at least 10 days before any training session occurs. The Commission shall have the right to approve any training. 9. Within ten (10) business days after entry of this Decree, Defendant shall post copies of the Notice attached as Exhibit "A" to this Decree at its San Antonio facility in a conspicuous location easily accessible to and commonly frequented by employees. The Notice shall remain posted for the duration of this Decree. Builders Gypsum shall ensure that the posting is not altered, defaced or covered by any other material. Builders Gypsum shall certify to the EEOC in writing within ten (10) business days after entry of the Decree that the Notice has been properly posted. Builders Gypsum shall permit a representative of EEOC to enter Builders Gypsum's premises for purposes of verifying compliance with this Paragraph at any time. 10. During the duration of this Decree, the EEOC shall have the right to ensure compliance with the terms of this Decree. In furtherance, the parties agree to the following: (a) Builders Gypsum shall maintain and make available for inspection and copying
all documents relevant to its compliance with this Decree; and

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(b) Builders Gypsum shall pennit representatives of the EEOC to review relevant documents, and meet and interview all persons within its employ for purposes of verifying compliance with this Decree.

11. Builders Gypsum shall bear the costs associated with administering and

implementing the provisions of this Decree. 12. Except as provided herein, the EEOC and Builders Gypsum shall bear their own

costs and attorney's fees. Furthennore, the EEOC and Builders Gypsum agree that pursuant to

Section 706(k) of Title VII, 42 U.S.C. § 2000e-5(k), there is no "prevailing party" with regard to

any claim or cause of action asserted by the EEOC and Builders Gypsum. 13. The tenns of this Decree shall be binding upon the Plaintiff EEOC and Defendant

Builders Gypsum its agents, officers, employees, servants, successors, and assigns, as to the

issues resolved herein. 14. When this Consent Decree requires the submission by Builders Gypsum of

documents or other materials to EEOC, such documents or other materials shall be mailed to

Robert B. Harwin, Associate Regional Attorney, 5410 Fredericksburg Road, Suite 200, San ,

;;It Hay , Antonio, Texas 78229. The Clerk shall furnish a copy hereofto each attorney ofrecord.

SO ORDERED AND ENTERED this

day of

2006,

Respectfully submitted, JAMES 1. LEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel
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~.~

t~~~
~R~O~BE::"::R::::T~A~.-=C~ANIN::...!...::::::.!.O~'~~:=:::-~~~

Regional Attorney Oklahoma Bar No. 011782

ROBERT B. HARWIN Associate Regional Attorney District of Columbia Bar No. 076083

ervisory Trial rney xas State Bar No. 19708300

OGLETREE; DEAKINS, NASH, SMOAK & STEWART, P.C. 2600 Weston Centre 112 East Pecan Street San Antonio, Texas 78205 Telephone: (210) 354-1300 Facsimile: (210) 277-2702

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
San Antonio Field Office 5410 Fredericksburg Road, Suite 200 San Antonio, Texas 78229-3555 Telephone: (210) 281-7613 Facsimile: (210) 281-7669
ATTORNEYS FORPLAINTffF

Attorney at Law State Bar No. 05857200
DIETZ & JARRARD, P.C. 106 Fannin Avenue East

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Round Rock, Texas 78664 Telephone: (512) 244-9314 Facsimile: (512) 244-3766
ATTORNEYS FOR DEFENDANT

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has been delivered, as
designated below, on this the /11!!::.. day ofMay 2006.

Hope H. Camp, Jr. Attorney at Law 14100 San Pedro Ave., Ste. 611 San Antonio, Texas 78232-4363

t:I Hand Delivery t:I Facsimile Transmission at (210)495-0997 ~ertified Mail, Return Receipt Requested t:I U.S. First Class Mail, Postage Prepaid

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EXHIBIT A NOTICE TO ALL EMPLOYEES BUILDERS GYPSUM SUPPLY, L.L.P. SUPPORTS FEDERAL LAW REQUIRlNG THERE BE NO DISCRIMINATION AGAINST ANY APPLICANT OR EMPLOYEE BECAUSE OF HIS OR HER RACE, COLOR, SEX, NATIONAL ORIGIN, RELIGION, AGE OR DISABILITY AND AFFIRMS ITS COMMITMENT NOT TO DISCRIMINATE AGAINST ANY APPLICANT OR EMPLOYEE ON ANY TERM OR CONDITION OF EMPLOYMENT, NOR TO ALLOW HARASSMENT OF ANY EMPLOYEE BECAUSE OF HIS ORHER SEX. BUILDERS GYPSUM SUPPLY, L.L.P. WILL NOT DISCRIMINATE AGAINST ANY EMPLOYEE FOR OPPOSING EMPLOYMENT DISCRIMINATION OR FOR FILING OR PARTICIPATING IN A CHARGE OF EMPLOYMENT DISCRIMINATION. IF YOU BELIEVE YOU ARE BEING DISCRIMINATED AGAINST IN ANY TERM OR CONDITION OF YOUR EMPLOYMENT BECAUSE OF YOUR RACE, RELIGION, COLOR, NATIONAL ORIGIN, SEX, AGE, OR DISABILITY, OR THAT YOU ARE BEING SUBJECTED TO HARASSMENT BECAUSE OF YOUR SEX OR HAVING ENGAGED IN TITLE VII-PROTECTED ACTNITY, YOU ARE ENCOURAGED TO SEEK ASSISTANCE FROM SUPERVISORY PERSONNEL, THE PERSONNEL DEPARTMENT, OR FROM THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 5410 FREDERICKSBURG ROAD, SUITE 200, SAN ANTONIO, TEXAS 78229-3550, (210) 2817600 OR 1-800-669-4000. NO RETALIATORY ACTION MAY BE TAKEN AGAINST YOU FOR SEEKING ASSISTANCE, FILING A CHARGE, OR COMMUNICATING WITH THE UNITED STATES

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Case 5:05-cv-00965-WRF Document 29 Filed 06/06/2006Page 1 of 9

COMMISSION, Plaintiff,

FILED
JUN - 6 2006
CLERK~~k~Iu, COURT
~ D~PUTY CLERK

ALICIA MANSEL, Plaintiff-Intervenor,
VS.
BUILDERS GYPSUM SUPPLY, L.L.P. F/D/B/A BUILDERS GYPSUM SUPPLY CO., INC.
Defendant

Civil Action No.
SA05CA0965 RF
Amended Complaint Jury Trial Demand

ALICIA MANSEL~ PLAINTIFF-INTERVENOR’S~ FIRST AMENDED COMPLAINT AND JURY DEMAND

This is an action under Title VII of the Civil Rights Act of 1964, as amended, and Title I of the Civil Rights Act of 1991, to correct unlawful employment practices on the basis of sex, female and retaliation and for assault or battery committed by agents and supervisors of Defendant Builders Gypsum Supply, L.L.P., f/d/b/a Builders Gypsum Supply Co., Inc. This action is being brought to provide appropriate relief to Alicia Mansel who was adversely affected by such practices and actions of Defendant Builders Gypsum by and through its agents and supervisors who committed assaults and/or batteries against Alicia Mansel. Alicia Mansel alleges that Builders Gypsum Supply, L.L.P., f/d/b/a Builders Gypsum Supply Co., Inc. subjected

Plaintiff-lntervenor’s First Amended Complaint and Jury Demand

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Case 5:05-cv-00965-WRF Document 29 Filed 06/06/2006 Page 2 of 9
her to sexual harassment on the basis of her sex, female, in violation of Section 703(a) of Title VII, and retaliated against Alicia Mansel by, amount other things, discharging her for complaining of this sexual harassment in violation of Section 704(a) of Title VII and by and through and by and through its agents and supervisors engaged in assault and/or battery of Plaintiff-Intervenor, Alicia Mansel.

JURISDICTION AND VENUE Jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 451,1331,1337,1343 and 1345. This action is authorized and instituted pursuant to Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) and (3) ("Title VII") and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a.
The employment practices and the assaults or batteries alleged to be unlawful were committed within the jurisdiction of the United States District and Court for the Western District of Texas, San Antonio, Division.

PARTIES

3. Plaintiff-Intervenor, Alicia Mansel, is a citizen of the United States and the State

’

Plaintiff-lntervenor’s First Amended Complaint and Jury Demand

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of Texas, and resides in Houston, Harris County, Texas.

At all relevant times, Defendant, Builders Gypsum Supply, L.L.P, rid/b/a/ Builders Gypsum Supply Co., Inc. (Builders Gypsum) has continuously been a Texas Corporation doing business in the State of Texas and has continuously had at least fifteen (15) employees.

At all relevant times, Defendant Builders Gypsum has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701 (b), (g) and (h) of Title VII, 42 U.S.C. § 2000e (b), (g) and (h).

STATEMENT OF CLAIMS
More than thirty day (30) prior to the institution of this lawsuit, Alicia Mansel filed a charge with the Commission alleging violation of Title VII by Defendant Builders Gypsum. All conditions precedent to the institution of this lawsuit have been fulfilled.

Since at least August 2002, Defendant Builders Gypsum engaged in unlawful employment practices at its San Antonio, Texas facility, in violation of Section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a) and Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a) including the following:

Plaintiff-lntervenor’s First Amended Complaint and Jury Demand

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ao Subjecting Alicia Mansel to a hostile work environment based on her sex, female, through inappropriate sexual touching; loud, sexually crude and physically intimidating tirades directed at her gender, including sexually imbued gestures, sounds and innuendos; and then failing to take any prompt and effective remedial action after becoming aware of this conduct; and,
bo Retaliating against Alicia Mansel by, among other things, discharging her for complaining about the sexual harassment.

o The effect of the practices complained of in paragraph seven above has been to deprive Alicia Mansel of equal employment opportunities and to otherwise adversely affect her status as an employee because of her sex, female, and in retaliation for opposing such unlawful practices.

o The unlawful employment practices complained of in paragraph seven above were and are intentional.

10. The unlawful employment practices complained of in paragraph seven above were and are done with malice or with reckless indifference to the federally protected rights ofAlicia Mansel.

11. Agents and supervisors’ of Defendant assaulted and/or committed battery against

Plaintiff-lntervenor’s First Amended Complaint and Jury Demand

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Alicia Mansel by engaging in unwelcome touching of her body, including her breasts, repeated hugging and groping of Ms. Mansel, entering the women’s restroom at Defendant’s warehouse facility and locking the door and turning off the lights while Ms. Mansel was in the restroom and elbowing her into a doorframe at Defendant’s warehouse facility.

12. The assault or battery alleged herein are part and parcel of the facts and circumstances that give rise to the claims of sexual harassment made by Alicia Mansel.

13. The unlawful assaults and/or batteries complained of in paragraphs eleven and twelve above were and are intentional.

14. The unlawful assaults and/or batteries complained of in paragraphs eleven and twelve above were done with malice or reckless indifference to the rights of Alicia Mansel.

PRAYER FOR RELIEF Wherefore, the Plaintiff respectfully requests that this Court:

mo Order Defendant, Builders Gypsum to make whole Alicia Mansel by providing appropriate back pay with prejudgment interest, in amounts to be determined at

Plaintiff-lntervenor’s First Amended Complaint and Jury Demand

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trial, and other affirmative relief necessary to eradicate the efforts of its unlawful employment practices, including but not limited to front pay in lieu of reinstatement;
Bo Order Defendant, Builders Gypsum to make whole Alicia Mansel by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraphs seven, eleven and twelve above, including but not limited to medical expenses and job search expenses~ in amounts to be determined at trial;
Co Order Defendant, Builders Gypsum to make whole Alicia Mansel by providing compensation for past and future non-pecuniary losses resulting from the unlawful employment practices described un paragraphs seven, eleven and twelve above, including but not limited to emotional pain, suffering, inconvenience, mental, anguish, depression, humiliation, loss of confidence, loss of enjoyment of life and self esteem and other non-pecuniary losses, in amounts to be determined at trial;

Do Order Defendant, Builder Gypsum to make whole Alicia Mansel paying damages to Alicia Mansel for the violation of her person while employed by Defendant Builders Gypsum as described in paragraphs seven, eleven and twelve above including, but limited to, emotional pain, suffering, inconvenience, mental

Plaintiff-Intervenor’s First Amended Complaint and Jury Demand

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anguish, depression, humiliation, loss of confidence, loss of enjoyment of life and self esteem and other non-pecuniary losses, in amount to be determined at trial;

Eo Order Defendant, Builders Gypsum to pay Alicia Mansel punitive damages for its malicious and/or reckless conduct as described in paragraphs seven, eleven and twelve above in an amount to be determined at trial;

Grant such further relief as the Court deems necessary and proper in the public interest;

G. Award the Alicia Mansel its costs in this action;

H. Award Alicia Mansel reasonable attorneys fees and her costs in this action; and,

I. Pre and post judgment interest at the maximum amount allowed by law.

Alicia Mansel reserves and reasserts her request for a jury trial, first made in her Complaint in Intervention, on all questions of fact raised by this complaint.

Respectfully submitted,
HOPE H. CAMP, JR., P.C. Pacific Plaza, Suite 611
Plaintiff-lnter~enor’s First Amended Complaint and Jury Demand

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14100 San Pedro Avenue San Antonio, Texas 78232-4363 (210) 495-0900 (210) 495-0997 ~

By: ~am’p, Jr.

0 ~

Texas Bar Number 03691600

ATTORNEY FOR PLAINTIFFINTERVENOR, ALICIA MANSEL

CERTIFICATE OF SERVICE

_ I,h~l[~ certify that a true and correct copy of the foregoing instrument has been on this the 5L~V~[ay of May 2006, forwarded by way of facsimile and/or regular mail to counsel of record to-wit:

E. Burke Hubner EEOC Holland & Knight, LLP 112 East Pecan Street, Suite 2700 San Antonio, Texas 78205
t

Eduardo Juarez, Esq. 5410 Fredericksburg Road, Ste. 200 San Antonio, Texas 78229

R. Mark Dietz, Esq. Dietz & Jarrard, P.C. 106 Fannin Ave. East Round Rock, Texas 78664

Plaintiff-lntervenor’s First Amended Complaint and Jury Demand

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Case 5:05-cv-00965-WRF Document 74 Filed 11/08/2006 Page 1 of 9

FILED

IN THE UNITED STATES DISTRICT COU~ NOV - PM 2:t 9

FOR THE WESTERN DISTRICT OF TEXAS~i.~ SAN ANTONIO DIVISION

~tlcr cOuR-; i 0FTEXAS

ALICIA MANSEL, Plaintiff- Intervenor
V.
BUILDER’S GYPSUM SUPPLY, LLP Defendant

CASE NO. SA05CA0965RF

PLAINTIFF-INTERVENOR, ALICIA MANSEL’S, SECOND-AMENDED COMPLAINT AND JURY DEMAND
1. Pursuant to the Court’s order dated July 11, 2006 and the motion for leave to add additional parties filed with this pleading, Plaintiff-Intervenor, Alicia Mansel ("Ms. Mansel"), files this Second Amended Complaint. The purpose of the amendment is to clarify the causes of action previously pleaded. Additionally, to promote judicial economy, additional causes of action are added that have occurred subsequent to the filing of the intervention. Finally, the amendment adds new parties who are general partners and thus subject to joint and several liability for the claims presented herein.
2. This is an action under Title VII of the Civil Rights Act of 1964, as amended, and Title I of the Civil Rights Act of 1991, to correct unlawful employment practices on the basis of sex, female and retaliation and for assault or battery committed by agents and supervisors of Builders Gypsum Supply, L.LP., f/d/b/aBuilders Gypsum Supply Co., Inc. ("Builders Gypsum"). This action is being brought to provide appropriate relief to Ms. Mansel who was adversely affected by such

Case 5:05-cv-00965-WRF Document 74 Filed 11/08/2006 Page 2 of 9

practices and actions of Builders Gypsum by and through its agents and supervisors who committed assaults and/or batteries against Ms. Mansel. Ms. Mansel alleges that Builders Gypsum Supply, L.L.P., f/d/b/a Builders Gypsum Supply Co., Inc. subjected her to sexual harassment on the basis of her sex, in violation of Section 703(a) of Title VII, and retaliated against Ms. Mansel by, among other things, discharging her for complaining of this sexual harassment in violation of Section 704(a) of Title VII, and by and through agents and supervisors, engaging in assault and/or battery of Plaintiff-Intervenor, Ms. Mansel.
Jurisdiction and Venue 3. Jurisdiction is proper pursuant to 28 U.S.C. § 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) and (3)("Title VII") and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a.

Parties 4. Plaintiff-Intervenor, Alicia Mansel, is a citizen of the United States and the State of Texas, and resides in Houston, Harris County, Texas. 5. At all relevant times, Defendant, Builders Gypsum Supply, L.L.P., f/d/b/a/Builders Gypsum Supply Co., Inc. (Builders Gypsum) has continuously been a Texas partnership doing business in the State of Texas and has, in the aggregate of its various business entities, continuously had at least fifteen (500) employees. It has already been served and answered in this cause.

PLAINTIFF-INTERVENOR, ALICIA MANSEL’S, SECOND-AMENDED COMPLAINT AND JURY DEMAND

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6. At all relevant times, Builders Gypsum has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. § 2000e (b), (g) and (h).
7. Defendant, Rigoberto Flores, aJk/a Rigo Flores, is an individual and a partner of Defendant Builder’s Gypsum. He can be served at his business address, 2015 Pasket, Houston, TX 77092 or his home address, 8614 Cedarspur, Houston, TX 77055 any other place he can be found.
8. Defendant, Israel Flores, is an individual and a partner of Defendant Builder’s Gypsum. He can be served at his business address, 2015 Pasket, Houston, TX 77092 or his home address, 9214 Outpost, Houston, TX 77041 or any other place he can be found.
9. Defendant, Narciso Flores, is an individual and a partner of Defendant Builder’s Gypsum, He can be served at his business address, c/o Olympia Drwall Company, 2525 McAllister Road, Houston, TX 777092 or his home address, 12564 Memorial, Houston, TX 77024 or any other place he can be found.
10. All defendants are referred to collectively as Defendant or Builder’s Gypsum.
Statement of Claims 11. More than thirty day (30) prior to the institution of this lawsuit, Ms. Mansel filed a charge with the Commission alleging violation of Title VII by Builders Gypsum. All conditions precedent to the institution of this lawsuit have been fulfilled.

PLAINTIFF-1NTERVENOR, ALICIA MANSEL’S, SECOND-AMENDED COMPLAINT AND JURY DEMAND

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12. Since at least August 2002, Builders Gypsum engaged in unlawful employment practices and promoted a hostile work environment at its San Antonio, Texas facility, in violation of Section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a) and Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a) including the following:

a. Subjecting Ms. Mansel to a hostile work environment based on her sex, through inappropriate sexual touching; sexual pghotographs and images displayed on various company computers, loud, sexually crude and physically intimidating tirades directed at her gender, including sexual gestures, sounds and innuendos; and then failing to take any prompt and effective remedial action after becoming aware of this conduct;
b. Failing to investigate claims of inappropriate conduct and failing to supervise individuals engaging in such conduct; and
c. Retaliating against Ms. Mansel by, among other things, discharging her for complaining about the sexual harassment.
13. The effect of the practices complained of above has been to deprive Ms. Mansel of
equal employment opportunities and to otherwise adversely affect her status as an employee because
of her sex, female, and in retaliation for opposing such unlawful practices.
14. The unlawful employment practices complained of above were intentional and were
done with malice or with reckless indifference to the federally protected rights of Ms. Mansel.
15. Agents and supervisors’ of Defendant assaulted and/or committed battery against Ms.
Mansel by engaging in repeated unwelcome touching of her body, including her breasts, repeated
hugging and groping of Ms. Mansel, pulling Ms. Mansel upon the supervisor’s lap and holding her
against her will, forcibly pinning Ms. Mansel against a wall, trapping Ms. Mansel in the women’s
restroom (a small open room about the size of a walk-in closet without individual stalls) at

PLAINTIFF-INTERVENOR, ALICIA MANSEL’S, SECOND-AMENDED COMPLAINT AND JURY DEMAND

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Defendant’s warehouse facility and locking the door and turning offthe lights and elbowing her into a doorframe at Defendant’s warehouse facility. All such conduct alleged herein was done in the course and scope of business of Defendant and its employees and were within the knowledge of Ms. Mansel’s supervisors and owners and were ratified by the same. Such acts continued until Ms. Mansel’s termination without any corrective action by Defendant’s owners or supervisors.
16. The assault or battery alleged herein are part and parcel of the facts and circumstances that give rise to the claims of sexual harassment made by Ms. Mansel.
17. The unlawful assaults and/or batteries complained of above were intentional and were done with malice or reckless indifference to the rights of Ms. Mansel.
18. Thus, Ms. Mansel bring claims against Builders Gypsum for assault and battery, intentional infliction of emotional distress, hostile work environment, negligent hiring of supervisory personnel and negligent supervision of such personnel.

Breach of Contract

19. All previous paragraphs are incorporated herein by reference.

20. In the first part of 2006, Builder’s Gypsum and the Equal Employment Opportunity

Commission ("EEOC") entered into a settlement agreement (the "Settlement"). The Settlement was

limited to only claims pursued by the EEOC; it excluded claims brought by Ms. Mansel as Intervenor

and called for, among other things payment of $200,000.00 to Ms. Mansel (less withholding)(the

"Settlement Funds"). The Settlement was unconditional; it did not require any release language or

require a release from Ms. Mansel as a condition to receiving the funds. Despite the fact that it had

not negotiated for or obtained an agreement regarding a release, on May 18, 2006, Builder’s Gypsum

PLA1NTIFF-INTERVENOR, ALICIA MANSEL’S, SECOND-AMENDED COMPLAINT AND JURY DEMAND

PAGE 5

Case 5:05-cv-00965-WRF Document 74 Filed 11/08/2006 Page 6 of 9

Defendant tendered a check to Ms. Mansel that it was required to tender by this Court’s order, but also included release language.
21. Subsequently, Builder’s Gypsum moved the Court to dismiss Ms. Mansel’s claims based upon the affirmative defenses of accord and satisfaction, release, res judicata, waiver and payment. These claims were based solely upon the notation Builder’s Gypsum added to the check.
22. Builder’s Gypsum is a party to a distinct contract with the EEOC that required unconditional payment to Ms. Mansel. The actions of Builder’s Gypsum in failing to pay according to the terms of the contract constitute a breach. Ms. Mansel has and continues to incur damages as a result of defending against affirmative defenses brought in contravention to the Settlement. Further, Defendant wrongfully withheld amounts from the Settlement Funds causing Ms. Mansel to incur damages as result of having to recover funds from federal and/or state agencies.
23. Therefore, based on Builder’s Gypsum breach of contract, Ms. Mansel requests that this Court enter judgment against Defendant.

Request for Declaratory Relief 24. All previous paragraphs are incorporated by reference. 25. In October of 2006, Builder’s Gypsum engaged in a sale related to its business. An investigation of the corporate filings of Builder’s Gypsum with the Texas Secretary of State reveals that Builder’s Gypsum was registered at one time as a limited liability partnership. It appears that Builder’s Gypsum allowed such registration to lapse effectively causing Builder’s Gypsum to be a general partnership and subjecting its owners to personal liability for all conduct complained of herein.

PLAINTIFF-1NTERVENOR, ALICIA MANSEL’S, SECOND-AMENDED COMPLAINT AND JURY DEMAND

PAGE 6

Case 5:05-cv-00965-WRF Document 74 Filed 11/08/2006 Page 7 of 9

26. Therefore, pursuant to Rule 57 of the Federal Rules of Civil Procedure and the Declaratory Judgment Act (28 U.S.C. section 2201-2202), Ms. Mansel asks the Court to declare without limitation as follows:
A. That at all relevant times, Builder’s Gypsum was a general partnership and its owners are personally liable for the actions complained of herein;
B. Defendant wrongfully withheld amounts from the Settlement Funds; C. That Olympia Drywall and perhaps other companies are a common enterprise and
constitute one company for purposes of the claims presented herein; and D. The affirmative defenses of accord and satisfaction, release, resjudicata, waiver and
payment are not supported by law or fact and cannot be asserted by Defendant. Fraud/Constructive Trust
27. All previous paragraphs are incorporated by reference. 28. As part of her compensation while working for Defendant, Ms. Mansel was entitled to commissions based upon sales. Defendant manipulated sales attributable to Ms. Mansel to avoid paying her commissions. Specifically, Defendant did not credit some sales to Ms. Mansel, but rather took clients away that Ms. Mansel developed and paid the commissions to male members of Defendant. Further, as part of a larger scheme to divert business assets for individual gain, Defendant fabricated invoices and return slips and back-charged Ms. Mansel’s commissions. 29. As a result, Ms. Mansel is owed commissions based upon the customers she developed and the sales she actually made. All actions were within the knowledge of Ms. Mansel’s supervisors and Defendant’s owners and/or were ratified by the same. 30. Ms. Mansel asserts fraud and constructive trust to recover those funds and requests that this Court enter judgment against Defendant.

PLAINTIFF-INTERVENOR, ALICIA MANSEL’S, SECOND-AMENDED COMPLAINT AND JURY DEMAND

PAGE 7

Case 5:05-cv-00965-WRF Document 74 Filed 11/08/2006 Page 8 of 9

Attorney’s Fees 31. The conduct complained of herein and the resulting losses to Ms. Mansel has required Ms. Mansel to retain the undersigned attorney. Pursuant to the Texas Civil Practice and Remedies Code, Ms. Mansel is entitled to recover from Builder’s Gypsum an additional sum to compensate her for the reasonable and necessary fees and expenses incurred in the preparation and prosecution of this lawsuit.
Jury Demand 32. Ms. Mansel hereby reasserts her previous request that this cause be tried to a jury.
Conditions Precedent 33. All conditions precedent to recovery have been performed or have occurred.
Prayer THEREFORE, premises considered, Ms. Mansel requests that Builder’s Gypsum be cited to appear and answer herein, and that upon final trial, Ms. Mansel have and recover a judgment against Builder’s Gypsum and its general partners which grants: A. all damages caused by Builder’s Gypsum’s conduct, including but not limited to,
compensatory damages, incidental and consequential damages, and special and/or punitive damages. B. reasonable attorneys’ fees; C. cost of suit; D. pre-judgment interest as allowed by law; E. post-judgment interest as allowed by law; and F. for all other relief at law or in equity as it is justly entitled.

PLAINTIFF-INTERVENOR, ALICIA MANSEL’S, SECOND-AMENDED COMPLAINT AND JURY DEMAND

PAGE 8

Case 5:05-cv-00965-WRF Document 74 Filed 11/08/2006 Page 9 of 9

Respectfully submitted,

OF COUNSEL:

By: Warren J. Fields, TBA #06981300

SLOAN FIELDS & MOYER LLP 11767 Katy Freeway, Ste. 1130 Houston, TX 77079 (832) 327-1180 (832) 327-1187 (fax) wfields@sloanfieldsmoyer.com

Certificate of Service

I certify that a true and correct copy of the foregoing has been forwarded to the counsel of record by first class mail, postage prepaid on November 3, 2006:

E. Burke Huber, Jr. Ogletree, Deakins, Nash, Smoak & Stewart, PC 112 E. Pecan Street, Ste. 2600 San Antonio, TX 78205 (210) 354-1300 (210) 277-2702 (fax)

R. Mark Dietz Dietz & Associates 106 Fannin Ave. Round Rock, Texas 78664

Eduardo Juarez Equal Employment Opportunity Commission San Antonio Fields Office 5410 Fredericksburg Road, Ste. 200 San Antonio, TX 78229-3555 (210)281-7613 (210) 281-7669 (fax)

Warren J. Fields

PLAINTIFF-INTERVENOR, ALICIA MANSEL’S, SECOND-AMENDED COMPLAINT AND JURY DEMAND

PAGE 9

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

FILED

ALICIA MANSEL, Plaintiff-Intervenor,
v.

§ § § § § No. SA:05~CV~0965~RF

BUILDERS GYPSUM SUPPLY,

§

ET AL.

§

Defendants.

§

§

ORDER DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

BEFORE THE COURT is Plaintiff-Intervenor's ("Plaintiff') Motion for Partial

Summary Judgment (Docket No. 93), filed March 12, 2007, and Defendants' Response

(Docket No. 114), filed July 6,2007. After due consideration, the Court finds that Plaintiffs

Motion for Partial Summary Judgment should be DENIED.

FACTUAL AND PROCEDURAL BACKGROUND

On September 29,2005, the Equal Employment Opportunity Commission ("EEOC")

filed suit against Defendant Builders Gypsum Supply for violations of Title VII of the Civil

Rights Act of 1964.1 Plaintiff intervened in the lawsuit on January 13,2006, alleging both

violation of Title VII of the Civil Rights Act of 1964 and state law claims of assault and

battery. 2

I EEOC CompI. (Docket No.1). 2 PI. 's First Am. CompI. (Docket No. 29).
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• Page 1

On May 11, 2006, Defendant and the EEOC entered into a Consent Decree resolving all issues raised in the EEOC's complaint.3 The Consent Decree enjoined Defendant from discriminating on the basis ofgender and required Defendant to maintain a work environment intolerant of harassment.4 Although Plaintiff was not a party to the Consent Decree, the Decree instructed Defendant to pay Plaintiff $200,000, minus lawful withholding, and also stated that "the terms ofthe settlement as agreed upon by the EEOC and Builders Gypsum do not include the claims made by ... Alicia Mansel.,,5
In compliance with the Consent Decree, Defendant issued a check to Plaintiff in late May 2006, but also included a form requesting that Plaintiff release her Title VII claims in exchange for the settlement funds.6 In addition to the release form, the settlement check included the language "Paid in full and final settlement ofall Title VII Discrimination claims of Alicia Mansel in Civil Action No. SA05CA9065RF."7 While the Consent Decree did not require a release as a prerequisite for receiving the settlement funds, Defendant asserts that it added the release form and the check language in order to protect itself in the event Plaintiff refused the terms of the Consent Decree. Apparently unhappy with the release and the conditional check, Plaintiff neither signed the release nor cashed the check at that time. In

3 Consent Decree (Docket No. 25). 4Id. 5 !d. 6 Defs.' Resp. (Docket No. 114 Ex. 18-21). 7Id. at Ex. 21.
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addition, Plaintiff's counsel, Mr. Hope Camp, requested issuance ofa new check without the language. 8
During the discord over the check, on June 6, 2006, Plaintiff filed her First Amended Complaint reasserting her Title VII and assault and battery claims.9 Against the advice ofher attorney, Plaintiff endorsed the settlement check on June 14, 2006.10 Plaintiff claims that while she understood the actual words on the check, she did not understand their legal effect. ll At this date, Plaintiff has testified that she cannot return the money.12
Approximately five months after filing suit, Plaintiff requested permission to amend her complaint, which the Court granted. \3 In this amended complaint, Plaintiffnot only added the Defendants Israel, Narciso, and Rigoberto Flores, but asserted claims for breach of contract, intentional infliction ofemotional distress, hostile work environment, and negligent hiring and supervision. 14 In response, Defendants asserted arange ofdefenses and affirmative defenses. Included among these affirmative defenses were the doctrines oflaches, estoppel,

8Id. at Ex. 20.

9 Pl.'s First Am. CompI. (Docket No. 29).

JO Defs.' Resp. (Docket No. 114 Ex. 1, Mansel Depo. at 90).

11 Id. at Ex. 1, Mansel Depo. at 73-77.

12 Id. at Ex. 1, Mansel Depo. at 97.

13 PI.'s Mot. to Am. CompI. (Docket No. 72).

14 PI.'s Second Am. CompI. (Docket No. 74), Plaintiff also requested declaratory judgment against Defendants concerning the business organization structure of Builders Gypsum, and then asserted fraud and constructive trust for withheld earnings. Id.

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unclean hands, waiver, release, ratification, and accord and satisfaction. IS Plaintiffthen filed her Motion for Partial Summary Judgment, asking the Court to grant
summary judgment in favor or her breach of contract claim and against Defendants' release and waiver, accord and satisfaction, and ratification affirmative defenses. Plaintiffasserts that as to her breach of contract claim, she can prove every element with factual certainty. Defendants, on the other hand, fail to establish at least one element of each of the listed affirmative defenses. As such, Plaintiff seeks summary judgment on those defenses.
After Plaintiff filed her partial summary judgment motion, Defendants requested a status conference with the Court to require Plaintiff to bifurcate discovery. Defendants reasoned that limited discovery focused on the release ofthe Title VII claims would result in a more expeditious discovery process. 16 The Court agreed, and stayed Defendant's response to the summary judgment motion until after limited discovery. Defendants completed this discovery and filed their response on July 6, 2007. In their response, Defendants not only explain the impropriety of granting Plaintiff's summary judgment request, but also seek summary judgment on the same affirmative defenses, effectively ending Plaintiff's Title VII claim.

15 Defs.' Answer (Docket No. 81) 16 Defs.' 26(f) Report (Docket No. 95).
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Page 4

STANDARD OF REVIEW Plaintiffhas moved for partial summaryjudgment on her breach ofcontract claim and on Defendants' affirmative defenses, asserting that Defendants fail to meet at least one element of each affirmative defense, and that, therefore, there exist no issues of law or fact. Rule 56(c) provides that a court should grant summary judgment if the summary judgment evidence shows that there is no genuine issue of material fact. 17 A material fact is one that might affect the outcome of the suit under governing law.18 A genuine issue ofmaterial fact exists "ifthe evidence is such that a reasonable jury could return a verdict for the nonmoving party."19 In making summary judgment decisions, "the court must review the record 'taken as a whole"'20 and construe the evidence "in the light most favorable to the non-moving party.,,21

17 FED. R. Cry. P. 56(c).

18 See Burgos v. Sw. Bell Tel. Co., 20 FJd 633,635 (5th Cir. 1994).

19 Anderson v. Liberty Lobby, Inc., 477 US. 242, 248 (1986).

20 Reeves v. Sanderson Plumbing Prods.,Inc., 530 U.S. 133, 150 (2000)(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 US. 574, 587 (1986)).

21 Williams v. Time Warner Operation, Inc., 98 FJd 179, 181 (5th Cir.1996) (citing Lindsey v. Prive Corp., 987 F.2d 324,327 n.l4 (5th Cir. 1993)); Messerv. Meno, 130 FJd 130, 134 (5th Cir. 1997), cert. denied, 525 US. 1067 (1999).

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• Page 5

ANALYSIS A. Breach of Contract
As a third party beneficiary to the Consent Decree, Plaintiffseeks a breach ofcontract determination because Defendant acted contrary to the terms of the Decree in contesting Plaintiffs ability to bring her Title VII claims. The Court, however, cannot grant summary judgment for breach ofan ambiguous contract. If, therefore, the Court finds ambiguity in the Consent Decree, summary judgment is inappropriate.
Whether a contract is ambiguous is a question oflaw for the court.22 When interpreting a contract, a court's primary concern is to give effect to the intentions of the parties as expressed in the contract.23 To determine the parties' intentions, a court examines the entire contract in a manner that gives full validity to each provision, "so that none of the provisions will be rendered meaningless."24 If, after application of the rules of interpretation, the court is still uncertain as to the proper meaning of a contract term, the contract is deemed ambiguous.25 Although an ambiguous contract permits a court to utilize extraneous evidence to determine the true meaning ofthe contract, summary judgment is generally improper when

22 R &P Enter. v. LaGuarta, Gavrel &Kirk, Inc., 596 S.W.2d 517,518 (Tex. 1980) (citing Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515 (Tex. 1968)).

23Id. (citing Citizens Nat'l Bank in Abilene v. Texas & P. Ry. Co., 150 S.W.2d 1003 (Tex. 1941 )).

24 !d. at 519 (citing Southland Royalty Co. v. Pan Am. Petroleum Corp., 378 S.W.2d 50 (Tex. 1964)).

25Id. (citing Universal CIT. Credit Corp. v. Daniel, 243 S.W.2d 154 (Tex. 1951)); Lewis v. E. Tex. Fin. Co., 146 S.W.2d 977 (Tex. 1941)).

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• Page 6

such evidence is necessary to interpret the contract.26 The contract in this case, the Consent Decree, strikes the Court as ambiguous regarding
the term "the claims." The Consent Decree first states that it resolves the allegations raised by the EEOC in the civil action. The next sentence states, however, that "the terms of the settlement as agreed upon by the EEOC and Builders Gypsum does not include the claims made by ... Alicia Mansel."27 The Consent Decree does not further explain which claims Plaintiff maintained. It does, however, require Defendants to pay Plaintiff $200,000, minus any lawful withholding, "in settlement of this dispute.,,28
Plaintiff maintains that the contract language's failure to expressly limit the excluded claims leads to the conclusion that Plaintiff's Title VII claim still exists. In light of this reasoning, Plaintiff asserts that Defendants continuously breached the contract by trying to prevent Plaintiff from bringing her Title VII claims. To support this conclusion, Plaintiff utilizes various legal cases and references documents outside ofthe contract itself. In rebuttal, Defendants argue that the funds Plaintiff received evidences closure of the Title VII claims. Defendants provide the Court with multiple supporting cases, drafts of the Consent Decree, and letters exchanged between the parties.

26Id. (citing Thompson v. Hambrick, 508 S.W.2d 949 (Tex.Civ.App.-Dallas 1974, writref'd n. r. e.); Robert v. E. C. Milstead Ranching, Inc., 469 S.W.2d 429 (Tex.Civ.App.-Beaumont 1971, writ ref'd n. r. e.».

27 Consent Decree (Docket No. 25 at 1) (emphasis added).

28Id. at 3.

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While the Court appreciates such precise briefing, summary judgment is simply not proper on this breach of contract claim because"the claims" is an ambiguous phrase in the written instrument. Although the Consent Decree does provide for some payment to Plaintiff, the diverging interests between the EEOC and a claimant reminds the Court that simply providing some monetary relief for Plaintiff does not automatically result in a limited construction of "the claims.,,29 The remaining ambiguity disables the Court's power to determine the breach of contract claim. As such, the Court denies Plaintiffs request for summary judgment on her breach of contract claim. B. Release
The Court also denies summary judgment on the affirmative defense of release. Defendants assert that acceptance of the conditional check resulted in release of Plaintiff s Title VII claims. Plaintiff contends that Defendants' release defense fails because the release lacked both specificity and proper consideration. To resolve this dispute, the Court must interpret the release and assess its validity.
Federallaw governs the interpretation and validity of a release of claims under Title VII.30 Under federal law, a valid release of a Title VII claim must be "knowing and voluntary. ,,3 1 The Fifth Circuit has adopted a "totality of the circumstances" approach in

29 See EEOC v. Jefferson Dental Clinics, 478 FJd 690, 698-99 (5th Cir. 2007) (citing EEOC v. Waffle House, 534 U.S. 279, 306 (2002) (Thomas, 1. dissenting)).

30 Smith v. Amedisys Inc., 298 FJd 434, 441 (5th Cir. 2002) (citing Williams v. Phillips Petroleum Co., 23 FJd 930, 935 (5th Cir. 1994)).
31Id.

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Page 8

determining whether a release was knowingly and voluntarily executed.32 While the validity of a release is generally a question of law for the Court to
determine,33 the circumstances in this case present factual questions concerning the "knowing" execution ofthe release. As evidence of"knowing" execution, Defendants point to Plaintiffs deposition, wherein she stated that she understood the words in the release.34 The Court finds this evidence marginal. After being asked several times about her understanding of the language on the check, Plaintiff eventually admitted only to understanding the words forming the release. It remains unclear whether she understood the legal effect of those words. Indeed, Plaintiff asserts in the same deposition that she did not understand the legal effect, despite the fact that she was represented by counsel at the time she signed the conditional check. Questions remain concerning Plaintiff s understanding of the release language; questions confounded by the other release document which Plaintiff patently refused to sign.
Without additional factual inquiry, the Court cannot determine with any certainty the "knowingly" element of a valid Title VII release. As such, the Court is unwilling to defeat Defendants' release defense on summary judgment, and therefore denies Plaintiff s request for summary judgment on this matter.

32 Amedisys, 298 FJd at 441 (citing O'Hare v. Global Natural Res., 898 F.2d 1015, 1017 (5th Cir. 1990)).

33 See Rogers v. Gen. Elec. Co., 781 F.2d 452 (5th Cir. 1986).

34 Defs.' Resp. (Docket No. 114 Ex. 1, Mansel Depo. at 73-77).

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c. Ratification
Without a clear understanding ofthe release, the Court also denies summary judgment on Defendants' ratification defense. Defendants essentially argue that even ifthe release was invalid in some way, Plaintiffs retention of the settlement funds led to ratification of the release. "Ratification operates to allow a party having the power to avoid his contractual duty to make, or be deemed to have made, a new promise to perform his previously voidable duty and thus, extinguish his power of avoidance."35 A releasor ratifies a release by retaining the consideration after learning that the release is voidable.36 Notably, only a voidable-not a void-release can be ratified.37
The Court already discussed the factual issues surrounding the determination of the validity of the release. The factual outcome at trial may suggest that the release is void, and therefore could not be ratified. Ifthis is the case, ratification is not a valid defense. If, on the other hand, the facts show that the release is voidable rather than void, retaining the money may have ratified the release. The factual questions concerning the release make it impossible for the Court to grant summary judgment as to Defendants' ratification defense.

35 Wamsley v. Champlin Ref & Chern., Inc., 11 FJd 534,538-39 (5th Cir. 1993), overruled on other grounds by Oubre v. Entergy Operations, Inc., 522 U.S. 422 (1998).

36 Phillips Petroleum, 23 FJd at 935

37Id.

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D. Accord and Satisfaction Finally, the Court will not grant summary judgment on Defendants' accord and
satisfaction defense because there exist factual questions concerning mutual assent. Defendants argue that because Plaintiff cashed the conditional check, a contract was formed resulting in accord and satisfaction. Plaintiff contends that Defendants cannot prove accord and satisfaction because there is no legitimate dispute between the parties and no consideration to form a new contract.
In general, the cashing of a conditional check results in the formation of a contract when the receiving party cashes or deposits the check.38 This contract may constitute an "accord and satisfaction." In order to have a valid accord and satisfaction, the evidence must establish the existence of both a new contract, either express or implied, and mutual assent between the parties.39 Mutual assent is a question of fact and requires an "unmistakable communication" concerning the expressed conditions.40
In the present case, there exist fact issues concerning mutual assent. Defendants have produced the deposition testimony of Plaintiff stating that she understood the words written

38 City ofHouston v. First City, 827 S.W.2d 462,472-73 (Tex. App.-Houston [1st Dist.] 1992, writ denied), superceded by statute on other grounds, TEX. TAX CODE ANN. § 31.073 (Vernon 1993) (citing City ofMesquite v. Rawlins,399 S.W.2d 162,167 (Tex.Civ.App.-Tyler 1966, writref'd n.r.e.».

39 Id. (citing Indus. Life Ins. v. Finley, 382 S.W.2d 100, 104 (Tex. 1964); Jenkins v. Henry
C. Beck Co., 449 S.W.2d 454,455 (Tex. 1969». These elements are essentially codified in TEX.
Bus. & COM. CODE ANN. § 3.311 (Vernon 1994).

40 See Jenkins, 449 S.W.2d at 455.

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- Page II

on the check. In the same testimony, however, she states that she did not understand their

legal effect. Moreover, the letter from Plaintiffs counsel requesting a check without the

language suggests that perhaps Plaintiffdid not think that cashing the check meant acceptance

ofits conditions. In any case, the Court is not equipped to make summaryjudgment decisions

on fact issues. As such, Plaintiff s request for summary judgment on Defendants' accord and

satisfaction claim fails.

As a final note, the Court raises a practical matter for Plaintiff s consideration.

Despite the hard work by Plaintiff s counsel, the Court has some difficulty imagining a jury

that would grant Plaintiff additional relief for her Title VII claims after learning that Plaintiff

already cashed (and apparently spent) almost $200,000 ofsettlement funds. Nonetheless, this

is a matter for a jury, not a judge, to decide.

CONCLUSION

The Court finds fact issues on Plaintiffs breach of contract claim and on each of

Defendants' contested affirmative defenses. Fact issues are properly left in the province of

the jury. Accordingly, the Court DENIES Plaintiffs Motion for Partial Summary Judgment

(Docket No. 93).

It is so ORDERED

dI~ay Signed this

of July, 2007.

R~
UNITED STATES DISTRICT JUDGE

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-Page 12

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

F\lEO

ALICIA MANSEL, Plaintiff-Intervenor,
v.
BUILDERS GYPSUM SUPPLY, ET AL.
Defendants.

§ § § § § No. SA:05-CV-0965-RF § § § §

ORDER DENYING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT
BEFORE THE COURT is Defendants' Motion for Partial Summary Judgment (Docket
No. 114), filed July 6,2007, and Plaintiff's Response (Docket No. 117), filed July 18,2007.1

Defendants' Motion for Partial Summary Judgment was filed in conjunction with their

Response to Plaintiff's Motion for Partial Summary Judgment. As such, the arguments

supporting Defendants' request for summary judgment also serve to rebut Plaintiff's request

for summary judgment. The Court already analyzed both Plaintiff's and Defendants' arguments concerning

summary judgment in its Order Denying Plaintiff's Motion for Partial Summary Judgment.

The Court need not rehash its logic in this order. As explained in the Order, the Court finds

I Plaintiff timely filed her response on July 17, 2007, but neglected to include a signature, thereby creating a deficient document in the Court's filing system. Plaintiff quickly amended this problem, and refiled on July 18 with the proper signature. The Court deems the Response timely filed.

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fact issues related to Defendants' affirmative defenses, and cannot grant Defendants summary

judgment on its claims, which would effectively end Plaintiffs Title VII cause of action.

Factual issues are within the province of the jury. Accordingly, for the same reasons

explained in its Order Denying Plaintiffs Motion for Partial Summary Judgment, the Court

DENIES Defendants' Motion for Partial Summary Judgment.

It is so ORDERED

~ Signed this

day of July, 2007.

R~
UNITED STATES DISTRICT JUDGE

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• Page 2

 
 Case 5:05-cv-00965-WRF Document 216 Filed 07/21/08 Page 1 of 1

F\LED

IN THE UNITED STATES DISTRICT COURT

JUL 2 1 2008

>/u FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DMSION

~~:,.~R~·~,gT1sRTIRCTICOTFCTOEUXRATS

.av

oePOtv cLeRK

ALICIA MANSEL,

§

§

Plaintiff-Intervenor,

§

§

v.

§ Civil Action No. SAOSCA0965RF

§

BUILDERS GYPSUM SUPPLY, L.L.P. §

f/d/b/a BUlLDERS GYPSUM SUPPLY §

CO., INC.,

§

§

Defendant.

§

AGREED ORDER OF DISMISSAL

The Court has considered the parties' Joint Motion to Dismiss with Prejudice and is of the

opinion that it should be granted. It is therefore: ORDERED that Plaintiff Alicia Mansel's causes of action against Defendants Builders
Gypsum Supply, L.L.P. f/dlb/a Builders Gypsum Supply Co., Inc., Israel Flores, Narciso Flores,

and Rigoberto Flores are hereby dismissed with prejudice; and further ORDERED that Counter-Plaintiffs Builders Gypsum Supply, L.L.P. f/dlb/a Builders
Gypsum Supply Co., Inc., Israel Flores, Narciso Flores, and Rigoberto Flores causes of action against Counter-Defendant Alicia Mansel are hereby dismissed with prejudice; and further
ORDERED that each party is responsible for the respective court costs and attorneys'

 
 Mansel v. Builders Gypsum Supply, Not Reported in F.Supp.2d (2006)

2006 WL 3062898 Only the Westlaw citation is currently available.
United States District Court, W.D. Texas,
San Antonio Division.
Alicia MANSEL, Plaintiff-Intervenor, v.
BUILDERS GYPSUM SUPPLY, Defendant.
No. 05-CV-0965-RF. | Oct. 16, 2006.
Opinion
ORDER DENYING DEFENDANT’S AMENDED MOTION TO DISMISS
ROYAL FURGESON, J.
*1 BEFORE THE COURT is Defendant’s Amended Motion to Dismiss (Docket No.54), filed August 7, 2006; Plaintiff-Intervenor’s Response (Docket No. 60), filed September 11, 2006; and Defendant’s Reply (Docket No. 61), filed September 20, 2006. After due consideration, the Court is of the opinion that Defendant’s Amended Motion to Dismiss should be DENIED.

FACTUAL AND PROCEDURAL BACKGROUND
On September 29, 2005, the Equal Employment Opportunity Commission (“E.E.O.C.”) filed suit against Defendant for violations of Title VII of the Civil Rights Act of 1964.1 Based on various allegations of unlawful employment practices on the basis of sex and retaliation, the suit was brought on behalf of Plaintiff-Intervenor and a class of similarly situated females.2 Plaintiff-Intervenor intervened in the lawsuit on January 13, 2006, alleging violation of Title VII of the Civil Rights Act of 1964 and state law claims of assault and battery.3

1

E.E.O.C.’s Complaint (Docket No. 1).

2

Id.

3

Pl.-Intervenor’s First Am. Compl. (Docket No. 29).

On May 11, 2006, Defendant and the E.E.O.C. entered into a consent decree resolving all issues raised in the E.E.O.C.’s complaint.4 The consent decree enjoined Defendant’s from discrimination on the basis of gender, maintaining a work environment conducive to such discrimination, and retaliating against employees filing E.E.O.C. complaints.5 The decree also required Defendant to create a sexual harassment policy, provide equal employment opportunity training, and pay Plaintiff-Intervenor $200,000.6 In compliance with the consent decree, Defendant issued a check to Plaintiff-Intervenor, but also requested that Plaintiff-Intervenor sign a release of her Title VII claims in exchange for the settlement funds.7

4

Consent Decree (Docket No. 25).

5

Id.

6

Id.

7

Def.’s Am. Mot. to Dismiss (Docket No. 54).

Several weeks later, on June 6, 2006, Plaintiff-Intervenor filed her First Amended Complaint and Jury Demand reasserting her Title VII and assault and battery claims.8 At that time, she had not cashed the settlement check, but on June 14, 2006, Plaintiff-Intervenor endorsed the check. Defendant now files this Motion to Dismiss, asserting preclusion of Plaintiff-Intervenor’s claims based on a theory of res judicata.9 Defendant maintains that the consent decree resolved the Title VII claims. Further, although she was not a signatory to the consent decree, Defendant argues that Plaintiff-Intervenor was in privity with the E.E.O.C. and her subsequent endorsement of the settlement check prevents her from now bringing her own claims.10 Plaintiff-Intervenor responds that the consent decree is not a final judgment on the merits because by its very terms it excludes any of Plaintiff-Intervenor’s claims.11 Plaintiff-Intervenor also contends that no privity exists between herself and the E.E.O.C. because she neither participated in nor controlled any part of the E .E.O.C.’s case.12

8

Pl.-Intervenor’s First Am. Compl. (Docket No. 29).

1

Mansel v. Builders Gypsum Supply, Not Reported in F.Supp.2d (2006)

9

The affirmative defense of res judicata contains two

principal categories: (1) claim preclusion (also known

as res judicata); and (2) issue preclusion (also known as

collateral estoppel). See Barr v. Resolution Trust Corp.,

837 S.W.2d 627, 628 (Tex.1992). The case at bar

concerns claim preclusion.

17

Am. Waste & Pollution Control Co. v.

Browning-Ferris, Inc., 949 F.2d 1384, 1386 (5th

Cir.1991).

10

Def.’s Am. Mot. to Dismiss (Docket No. 54).

11

Pl.-Intervenor’s Resp. to Def.’s Am. Mot. to Dismiss

(Docket No.60).

12

Id.

STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(6) challenges a complaint on the basis that it fails to state a claim upon which relief can be granted.13 A 12(b)(6) dismissal “is viewed with disfavor and is rarely granted.”14 The defendant has the burden of showing that plaintiff can prove no set of facts consistent with the allegations in the complaint which would entitle it to relief.15 The purpose of a Rule 12(b)(6) motion is to test the sufficiency of the complaint, not to decide the merits of the case, even if it “appear[s] on the face of the pleadings that a recovery is very remote and unlikely.”16 As such, the Court must accept all well-pleaded factual allegations in the complaint as true and view the allegations in the light most favorable to the non-moving party.17

13

FED. R. CIV. P. 12(b)(6).

14

Shipp v. McMahon, 234 F.3d 907, 911 (5th Cir.2000)

(quoting Kaiser Aluminum & Chem. Sales v. Avondale

Shipyards, 677 F.2d 1045, 1050 (5th Cir.1982)).

15

Baton Rouge Bldg. & Constr. Trades Council AFL-CIO

v. Jacobs Constructors, Inc., 804 F.2d 879, 881 (5th

Cir.1986) (citing Hishon v. King & Spalding, 467 U.S.

69 (1984)).

16

Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683,

1686 40 L.Ed.2d 90 (1974)

*2 Generally, the doctrine of res judicata must be pled as an affirmative defense. A dismissal under Rule 12(b)(6) on grounds of res judicata may be appropriate, however, where the elements of res judicata are apparent on the face of the pleadings.18 If the elements of res judicata are not apparent on the face of the pleadings, the Court must treat the motion to dismiss as one for summary judgment.19 In the present case, the res judicata elements are apparent from the face of the pleadings, and therefore permits the Court to determine this action as a motion to dismiss rather than a summary judgment.20

18

See Kan. Reinsurance Co. v. Cong. Mktg. Corp. of Tex.,

20 F.3d 1362, 1366 (5th Cir.1994).

19

See Moch v. E. Baton Rouge Parish Sch. Bd., 548 F.2d

594, 596 n. 1 (5th Cir.1997).

20

While the Court references the Consent Decree it

issued, the pertinent aspects of the decree are also

stated in the pleadings, motions, and responses of the

parties.

ANALYSIS
Defendant’s Motion to Dismiss poses to the Court the question of whether the consent decree between the E.E.O.C. and Defendant precludes Plaintiff-Intervenor’s suit on grounds of res judicata. Upon consideration of both parties’ arguments, the Court finds that res judicata does not apply.
In a federal-question case, federal courts apply the federal rules of res judicata.21 Under federal law, the test for res judicata has four elements: (1) the prior action was concluded by a final judgment on the merits; (2) the parties are identical or in privity; (3) the judgment in the prior action was rendered by a court of competent jurisdiction; and (4) the same claim or cause of action was involved in both cases.22 In the case at bar, the parties agree that the earlier judgment was rendered by a court of competent jurisdiction. All other elements, however, are disputed.
2

Mansel v. Builders Gypsum Supply, Not Reported in F.Supp.2d (2006)

21

Heiser v. Woodruff, 327 U.S. 726, 733 (1946).

22

Test Masters Educ. Serv., Inc. v. Singh, 428 F.3d 559,

571 (5th Cir.2005) (citing Petro-Hunt, L.L.C. v. United

States, 365 F.3d 385, 395 (5th Cir.2004)); see also

Blonder-Tounge Lab. v. Univ. of Ill. Found., 402 U.S.

313, 323-24 (1972).

As a threshold determination, the Court finds that no final judgment on the merits has been reached between the parties. “[I]f reasonable doubt exists as to what was decided in the first action, the doctrine of res judicata should not be applied,”23 but res judicata’s finality requirement is broadly defined.24 The consent decree to which Defendant’s res judicata argument clings, however, does not fully satisfy the final judgment requirement. While the Fifth Circuit has referred to a consent decree as a final judgment, the Circuit has been clear that consent decrees are contracts that are not subject to the same jurisdiction and collateral attack rules as common final judgments.25 Parties in a consent decree may, therefore, contractually agree to preclusion.26 Accordingly, the preclusive effect of a consent decree should be measured by the intent of the parties.

23

Memphis-Shelby County Airport Auth. v. Braniff

Airways, Inc., 783 F.2d 1283, 1288 (5th Cir.1986)

(citing Kauffman v. Moss, 420 F.2d 1270, 1274 (3d

Cir.), cert. denied, 400 U.S. 846 (1970); McNellis v.

First Fed. Sav. & Loan Ass’n of Rochester, N.Y., 364

F.2d 251, 257 (2d Cir.1966), cert. denied, 385 U.S. 970

(1966)).

24

See CHARLES ALLEN WRIGHT ET AL., FEDERAL

PRACTICE AND PROCEDURE § 4432 (comparing

res judicata final judgments and appellate review final

judgments).

26

U.S. v. ITT Cont’l Banking Co., 420 U.S. 223, 236-37

(1975) (finding that consent decrees should be

construed as contracts).

In the present case, the consent decree makes clear the intent of the parties by stating that “the terms of the settlement as agreed upon by the E.E.O.C. and Builders Gypsum do not include the claims made by Plaintiff-Intervenor, Alicia Mansel.”27 This statement in the consent decree makes clear to the Court that not only was there no determination on the merits, but also that preclusion of Plaintiff-Intervenor’s claims was not intended by the parties. Had Defendant wished to preclude further claims by Plaintiff-Intervenor, it should have made this intention clear in the consent decree.28 To the contrary, Defendant knowingly signed the very document which it now wishes to circumvent. Accordingly, the Court finds that because no final judgment exists as to Plaintiff-Intervenor’s claims, her claims are not precluded in the current suit. Further, the Court’s determination on this threshold issue obviates discussion of the remaining res judicata factors.29

27

Consent Decree (Docket No. 25 at 1).

28

See Ho, 845 F.2d at 548 (commenting that the parties

were free to negotiate the terms of the settlement and

the defendant should have insisted on the

relinquishment of claims).

29

See, e.g., Clark v. Amoco Prod. Co., 794 F.2d 967,

9774 (5th Cir.1986) (finding that Rule 12(b)(6)

dismissal on res judicata grounds was not appropriate

where defendants failed to establish one of the four

elements of res judicata).

25

Ho v. Martin Marietta Corp., 845 F.2d 545, 547 (5th

Cir.1988) (“[W]hen we test the validity of consent

decrees that affect only the rights of the parties before

the court, we are mindful of the principles not only

regarding the validity of judgments but also regarding

the validity of contracts.”); See WRIGHT ET AL.,

supra note 24, at § 4443 (“The judgment [in a consent

decree] result not from adjudication but from a

basically contractual agreement of the parties.”);

Dennis v. County of Fairfax, 55 F.3d 151, 154 (4th

Cir.1995) (finding that an employer’s signing of a

consent decree in a Title VII case was not a confession

of liability and did not bind the parties in future

litigation as an admission of wrongdoing).

CONCLUSION
*3 Defendant has failed to prove that the consent decree signed by the E.E.O.C. and Defendant consisted of a final judgment on the merits as to Plaintiff-Intervenor’s individual claims. Without satisfying their burden as to this threshold determination, the Court will not grant preclusive effect to the consent decree. Accordingly, it is hereby ORDERED that Defendant’s Amended Motion to Dismiss (Docket No.54) be DENIED.
3

Mansel v. Builders Gypsum Supply, Not Reported in F.Supp.2d (2006)
	  
4

 
 Case: 5:05-cv-965 As of: 07/19/2013 06:28 PM CDT 1 of 18
U.S. District Court [LIVE] Western District of Texas (San Antonio) CIVIL DOCKET FOR CASE #: 5:05−cv−00965−WRF

CLOSED,JWP

Alicia Mansel v. Builders Gypsum Supp, et al Assigned to: Judge W. Royal Furgeson, Jr Demand: $0 Cause: 42:2000e Job Discrimination (Employment)
Defendant

Date Filed: 09/29/2005 Date Terminated: 07/21/2008 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Builders Gypsum Supply LLP formerly doing business as Builders Gypsum Supply Co., Inc.

represented by Adam D. Boland Ogletree, Deakins, Nash, Smoak &Stewart, PLLC 112 E. Pecan Street Suite 2700 San Antonio, TX 78205 (210) 354−1300 Fax: (210) 277−2702 Email: adam.boland@odnss.com TERMINATED: 09/28/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carolyn Ann Russell Ogletree, Deakins, Nash, Smoak &Stewart, P.C. 500 Dallas Street − Suite 3000 Houston, Tx 77002 713−655−5771 Fax: 713−655−0020 Email: carolyn.russell@odnss.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edmund Burke Huber , Jr. Ogletree Deakins Nash Smoak &Stewart, PC 112 E. Pecan Street, Suite 2700 San Antonio, TX 78205 (210)277−3610 Fax: 210/277−2702 Email: burke.huber@ogletreedeakins.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

F. Denise Russell Ogletree, Deakins, Nash, Smoak &Stewart, P.C. 112 E. Pecan St. Suite 2600 San Antonio, TX 78205 (210)277−3610 Fax: 210/277−2702 Email: denise.russell@ogletreedeakins.com TERMINATED: 09/25/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

R. Mark Dietz Dietz &Jarrard, P.C. 106 Fannin Avenue East

Case: 5:05-cv-965 As of: 07/19/2013 06:28 PM CDT 2 of 18

Round Rock, TX 78664 (512) 244−9314 Fax: 512/244−3766 Email: rmdietz@lawdietz.com TERMINATED: 11/08/2007 LEAD ATTORNEY

Virginia C. Honeyman Valero Retail Holdings, Inc. One Valero Way San Antonio, TX 78249 (210) 345−5267 Fax: 210/370−6376 Email: Virginia.Honeyman@valero.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Isreal Flores

represented by Andrew J. Yoder Baker Botts LLP Trial Group 910 Louisiana One Shell Plaza Houston, TX 77002 (713)229−1827 Fax: (713)229−2827 Email: drew.yoder@bakerbotts.com TERMINATED: 09/28/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carolyn Ann Russell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis P. Duffy Baker &Hostetler LLP 1000 Louisiana Street Suite 2000 Houston, TX 77002 713.646.1364 Fax: 713.751.1717 Email: dpduffy@bakerlaw.com TERMINATED: 09/28/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edmund Burke Huber , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Narciso Flores

represented by Andrew J. Yoder (See above for address) TERMINATED: 09/28/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carolyn Ann Russell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 5:05-cv-965 As of: 07/19/2013 06:28 PM CDT 3 of 18

Defendant Rigoberto Flores also known as Rigo Flores
Intervenor Plaintiff Alicia Mansel

Dennis P. Duffy (See above for address) TERMINATED: 09/28/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edmund Burke Huber , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew J. Yoder (See above for address) TERMINATED: 09/28/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carolyn Ann Russell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dennis P. Duffy (See above for address) TERMINATED: 09/28/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edmund Burke Huber , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David M. Sloan Sloan Fields &Moyer LLP 11767 Katy Freeway Suite 1130 Houston, TX 77079 (832)327−1180 Fax: (832)327−1187 TERMINATED: 10/11/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Warren J. Fields Warrn J.Fields PLLC 5140 Franz Road, Ste. 100 Katy, TX 77493 281−496−3030 Fax: 281−496−3033 Email: wfields@wfields−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hope H. Camp , Jr. Attorney at Law Suite LL−102 1602 N. Loop 1604 W. San Antonio, TX 78248 (210) 492−2887 Fax: (210) 635−0241

Case: 5:05-cv-965 As of: 07/19/2013 06:28 PM CDT 4 of 18

Email: hopecamplaw@yahoo.com TERMINATED: 08/08/2006

Movant
Equal Employment Opportunity Commission

represented by Edward Juarez U.S. Equal Employment Opportunity Commission San Antonio Field Office 5410 Fredericksburg Road, Suite 200 San Antonio, TX 78229−3555 (210) 281−7613 Fax: (210) 281−7669 Email: eduardo.juarez@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Defendant
Builders Gypsum Supply LLP formerly doing business as Builders Gypsum Supply Co., Inc.

represented by Adam D. Boland (See above for address) TERMINATED: 09/28/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carolyn Ann Russell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Edmund Burke Huber , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

F. Denise Russell (See above for address) TERMINATED: 09/25/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

R. Mark Dietz (See above for address) TERMINATED: 11/08/2007 LEAD ATTORNEY

Virginia C. Honeyman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Counter Plaintiff Builders Gypsum Supply LLP

represented by Adam D. Boland (See above for address) TERMINATED: 09/28/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carolyn Ann Russell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Virginia C. Honeyman (See above for address)

Case: 5:05-cv-965 As of: 07/19/2013 06:28 PM CDT 5 of 18
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edmund Burke Huber , Jr. (See above for address) ATTORNEY TO BE NOTICED

V. Counter Defendant Alicia Mansel

represented by David M. Sloan (See above for address) TERMINATED: 10/11/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Warren J. Fields (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/29/2005 09/29/2005 09/29/2005 09/29/2005 10/27/2005
12/05/2005 12/14/2005 12/14/2005
12/21/2005 01/06/2006 01/06/2006 01/11/2006 01/13/2006 01/13/2006 01/23/2006

# Docket Text
Case assigned to Hon. W. R. Furgeson Jr. (ga) (Entered: 09/29/2005)
If ordered by the court, all referrals will be assigned to Magistrate Judge Primomo (ga) (Entered: 09/29/2005)
1 Complaint filed. (Pages: 6) (ga) (Entered: 09/29/2005)
2 Demand for jury trial by Equal Employment Opportunity Commission (same as document #1) (ga) Modified on 09/29/2005 (Entered: 09/29/2005)
3 Waiver of Service by Builders Gypsum Supp ; Notice and Request Mailed on 10/5/05 ; Answer due on 12/5/05 for Builders Gypsum Supp (tm) (Entered: 10/28/2005)
4 Answer by Builders Gypsum Supp (rg) (Entered: 12/06/2005)
5 ORDER and ADVISORY scheduling recommendations due on 2/15/06 signed by Hon. W. R. Furgeson Jr. (rg) (Entered: 12/15/2005)
6 "ORDER" Notice of right to consent to disposition of a civil case by a U.S. Magistrate Judge within thirty (30) days of the date of the filing of this Order. signed by the Honorable Royal Furgeson. (rg) (Entered: 12/15/2005)
7 Motion by Alicia Mansel to intervene (Complaint in intervention received) (tm) (Entered: 12/22/2005)
8 Order setting hearing on motion to intervene [7−1] for 1:30 1/17/06 signed by Hon. W. R. Furgeson Jr. (tm) (Entered: 01/09/2006)
9 Non−consent to proceed before a U.S. Magistrate by Equal Employment (tm) (Entered: 01/09/2006)
10 Non−consent to proceed before a U.S. Magistrate by Builders Gypsum Supp (tm) (Entered: 01/12/2006)
11 Order GRANTING motion to intervene [7−1] signed by Hon. W. R. Furgeson Jr. (tm) (Entered: 01/13/2006)
12 Intervenor's complaint by Alicia Mansel against Builders Gypsum Supply (tm) (Entered: 01/13/2006)
13 Report of parties' Rule 26(f) discovery/ case management plan by Equal Employment, Builders Gypsum Supp, Alicia Mansel (tm) (Entered: 01/24/2006)

Case: 5:05-cv-965 As of: 07/19/2013 06:28 PM CDT 6 of 18

02/03/2006
02/07/2006 02/07/2006 02/13/2006 02/14/2006 02/16/2006
03/01/2006 03/03/2006
05/11/2006 05/11/2006 05/12/2006 05/12/2006 05/26/2006
05/31/2006
06/06/2006 06/06/2006 06/13/2006
06/14/2006 06/14/2006 06/16/2006

14 Unopposed motion by Equal Employment for leave to file its first amended complaint [1−1] (First amended complaint RECEIVED) (tm) (Entered: 02/06/2006)
15 Order granting motion for leave to file its first amended complaint [1−1] [14−1] signed by Hon. W. R. Furgeson Jr. (rg) (Entered: 02/08/2006)
16 Amended complaint by Equal Employment, amending complaint [1−1] (rg) (Entered: 02/09/2006)
17 Answer by Builders Gypsum Supp to first amended complaint (tm) (Entered: 02/14/2006)
18 Recommendations for scheduling order by Equal Employment, Builders Gypsum Supp (tm) (Entered: 02/15/2006)
19 Scheduling order setting: Alternate Dispute Resolution Report due by 3/6/06; Joining of parties, amending of pleadings on 4/4/06; Discovery cutoff 8/18/06; Deadline for filing of all dispositive motions 9/18/06; Jury Selection set for 9:00 1/8/07; Jury trial set for 9:00 1/8/07 signed by Hon. W. R. Furgeson Jr. (tm) (Entered: 02/17/2006)
20 Answer by Builders Gypsum Supp to intervenor complaint [12−1] (tm) (Entered: 03/02/2006)
21 Alternate Dispute Resolution Report filed by Equal Employment, Builders Gypsum Supp, Alicia Mansel, Builders Gypsum Supp, Party(s) do not agree to Alternate Dispute Resolution (tm) (Entered: 03/06/2006)
22 Joint NOTICE of Pending Settlement by Equal Employment Opportunity Commission, Builders Gypsum Supply LLP (tm, ) (Entered: 05/12/2006)
23 MOTION to enter consent decree by Equal Employment Opportunity Commission, Builders Gypsum Supply LLP. (tm, ) (Entered: 05/12/2006)
24 Final JUDGMENT order entering consent decree. Signed by Judge W. Royal Furgeson Jr. (tm, ) (Entered: 05/15/2006)
25 Consent Decree. Signed by Judge W. Royal Furgeson Jr.. (tm, ) (Entered: 05/16/2006)
26 MOTION to Amend Complaint by Equal Employment Opportunity Commission, Alicia Mansel. (Attachments: # 1 Amended Complaint)(tm, ) (Entered: 05/31/2006)
27 RESPONSE to Motion re 26 MOTION to Amend Complaint , filed by Builders Gypsum Supply LLP, Builders Gypsum Supply LLP. (Attachments: # 1 Exhibits)(tm, ) (Entered: 06/01/2006)
28 ORDER granting 26 Motion to Amend Complaint Signed by Judge W. Royal Furgeson Jr.. (tm, ) (Entered: 06/06/2006)
29 FIRST AMENDED COMPLAINT against Builders Gypsum Supply LLP amending , filed by Alicia Mansel.(tm, ) (Entered: 06/07/2006)
30 Advisory to the Court and MOTION for Order of Disposition of Settlement Funds by Builders Gypsum Supply LLP. (Attachments: # 1 Exhibits)(tm) (Entered: 06/14/2006)
31 ANSWER to First Amended Complaint by Builders Gypsum Supply LLP.(tm) (Entered: 06/15/2006)
32 NOTICE OF VACATION by Builders Gypsum Supply LLP (tm) (Entered: 06/15/2006)
33 ADVISORY TO THE COURT Regarding Settlement and in RESPONSE to Defendant's Request that Ms. Mansel be Ordered to Execute a Release filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit)(tm) (Entered: 06/19/2006)

Case: 5:05-cv-965 As of: 07/19/2013 06:28 PM CDT 7 of 18

06/16/2006
06/16/2006
06/19/2006
06/21/2006 06/21/2006 06/22/2006
06/22/2006 06/26/2006
07/05/2006 07/05/2006 07/06/2006
07/10/2006
07/10/2006 07/10/2006 07/11/2006 07/11/2006 07/14/2006 07/18/2006 07/28/2006
07/31/2006 07/31/2006

34 ORDER Status Conference set for 6/19/2006 05:15 PM before Honorable W. Royal Furgeson Jr... Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 06/19/2006)
35 MOTION to Dismiss Intervenor's First Amended Complaint, and MOTION for the Court to Enter Final Judgment by Builders Gypsum Supply LLP. (tm) (Entered: 06/19/2006)
36 Minute Entry for proceedings held before Judge W. Royal Furgeson Jr.: Status Conference held on 6/19/2006 (Minute entry documents are not available electronically.). (Court Reporter Myers.) (tm) (Entered: 06/21/2006)
37 RESPONSE to 30 Advisory to the Court by Alicia Mansel. (tm) (Entered: 06/22/2006)
38 RESPONSE to Motion re 35 MOTION to Dismiss Intervenor's First Amended Complaint , filed by Alicia Mansel. (tm) (Entered: 06/22/2006)
39 AMENDED ADVISORY TO THE COURT Regarding Settlement and in Response to Defendant's Request that Ms. Mansel be ORDERED to Execute a Release by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit)(tm) (Entered: 06/22/2006)
40 MOTION to Dismiss by Builders Gypsum Supply LLP. (tm) (Entered: 06/23/2006)
41 TRANSCRIPT of Proceedings held on 6/19/06. Proceedings Transcribed:Status Conference. Court Reporter: Myers. NOTE: Transcript document is not available online. (tm) (Entered: 06/27/2006)
42 NOTICE of Attorney Appearance by Warren J. Fields on behalf of Alicia Mansel (tm) (Entered: 07/05/2006)
43 First Amended RESPONSE to Motion re 40 MOTION to Dismiss , filed by Alicia Mansel. (tm) (Entered: 07/05/2006)
44 ORDER Status Conference set for 7/10/2006 05:15 PM before Honorable W. Royal Furgeson Jr. Signed by Judge W. Royal Furgeson Jr.(tm) (Entered: 07/07/2006)
47 Minute Entry for proceedings held before Judge W. Royal Furgeson Jr.: Status Conference held on 7/10/2006 (Minute entry documents are not available electronically.). (Court Reporter Myers.) (tm) (Entered: 07/12/2006)
ORAL MOTION to File Second Amended Complaint by Alicia Mansel. (tm) (Entered: 07/12/2006)
ORAL ORDER granting Motion to File Second Amended Complaint Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 07/12/2006)
45 ORDER Vacating re 19 Scheduling Order, . Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 07/11/2006)
46 ORDER Granting Mansle's Oral Motion to File Second Amended Complaint. Signed by Judge W. Royal Furgeson Jr.(tm) (Entered: 07/11/2006)
48 MOTION for Protective Order, MOTION Abatement of Discovery by Builders Gypsum Supply LLP. (tm) (Entered: 07/17/2006)
49 MOTION for Reconsideration re Order on Motion to Amend Complaint by Builders Gypsum Supply LLP. (tm) (Entered: 07/19/2006)
50 TRANSCRIPT of Proceedings held on 7/10/06. Proceedings Transcribed:Status Conference. Court Reporter: Roden. NOTE: Transcript document is not available online. (tm) (Entered: 07/31/2006)
51 RESPONSE to Motion re 49 MOTION for Reconsideration re Order on Motion to Amend Complaint , filed by Alicia Mansel. (tm) (Entered: 07/31/2006)
52 RESPONSE to Motion re 48 MOTION for Protective Order and MOTION Abatement of Discovery , filed by Alicia Mansel. (tm) (Entered: 07/31/2006)

Case: 5:05-cv-965 As of: 07/19/2013 06:28 PM CDT 8 of 18

08/03/2006 08/04/2006 08/04/2006
08/08/2006 08/23/2006 08/23/2006 09/06/2006
09/11/2006 09/20/2006 09/22/2006 09/25/2006 10/04/2006 10/04/2006 10/04/2006
10/04/2006 10/04/2006 10/04/2006
10/05/2006 10/16/2006 11/03/2006 11/03/2006 11/08/2006

53 Unopposed MOTION to Substitute Attorney by Alicia Mansel. (tm) (Entered: 08/04/2006)
54 Amended MOTION to Dismiss by Builders Gypsum Supply LLP. (tm) (Entered: 08/07/2006)
55 REPLY to Response to 49 MOTION for Reconsideration re Order on Motion to Amend Complaint , filed by Builders Gypsum Supply LLP. (tm) (Entered: 08/07/2006)
56 ORDER granting 53 Motion to Substitute Attorney. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 08/08/2006)
57 ADVISORY TO THE COURT by Builders Gypsum Supply LLP. (tm) (Entered: 08/24/2006)
58 NOTICE of Vacation for E. Burke Huber, Jr. by Builders Gypsum Supply LLP (tm) (Entered: 08/24/2006)
59 ORDER Telephone Conference set for 9/12/2006 05:00 PM before Honorable W. Royal Furgeson Jr. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 09/06/2006)
60 Response in Opposition to Motion re 54 MOTION to Dismiss, filed by Alicia Mansel. (Fields, Warren) (Entered: 09/11/2006)
61 REPLY to Response to 54 MOTION to Dismiss , filed by Builders Gypsum Supply LLP. (tm) (Entered: 09/20/2006)
62 MOTION to Withdraw as Attorney Frances Denise Russell by Builders Gypsum Supply LLP. (Huber, Edmund) (Entered: 09/22/2006)
63 ORDER granting 62 Motion to Withdraw as Attorney. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 09/26/2006)
64 ORDER denying 30 Motion for Order of Disposition of Settlement Funds. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 10/04/2006)
65 ORDER denying 48 Motion for Abatement of Discovery. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 10/04/2006)
66 ORDER denying 49 Motion for Reconsideration of Order Granting Leave to Amend Complaint as moot. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 10/04/2006)
67 ORDER denying 48 Motion for Protective Order as moot. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 10/04/2006)
68 ORDER denying 35 Motion for the Court to Enter Final Judgment as moot. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 10/04/2006)
69 ORDER denying 35 Motion to Dismiss with Prejudice Plaintiff−Intervenor's First Amended Complaint as moot. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 10/04/2006)
70 NOTICE to the Court by Builders Gypsum Supply LLP (Huber, Edmund) (Entered: 10/05/2006)
71 ORDER denying 54 Amended Motion to Dismiss. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 10/17/2006)
72 MOTION to Amend Complaint to add parties by Alicia Mansel. (Attachments: # 1 Proposed Order)(Fields, Warren) (Entered: 11/03/2006)
73 ATTACHMENT to 72 MOTION to Amend Complaint to add parties by Alicia Mansel. (Fields, Warren) (Entered: 11/03/2006)
74 Second AMENDED COMPLAINT against Isreal Flores, Narciso Flores, Rigoberto Flores , filed by Alicia Mansel.(tm) (Entered: 11/09/2006)

Case: 5:05-cv-965 As of: 07/19/2013 06:28 PM CDT 9 of 18

11/13/2006 11/17/2006
11/21/2006 12/06/2006 12/07/2006 12/07/2006 12/21/2006 12/21/2006 01/11/2007
01/12/2007 01/18/2007 01/23/2007
01/31/2007
02/02/2007
02/08/2007 02/09/2007 02/12/2007

75 Summons Issued as to Isreal Flores, Narciso Flores, Rigoberto Flores. (ga) (Entered: 11/13/2006)
76 MOTION to Strike 75 Summons Issued, 74 Amended Complaint, 73 Attachment, 72 MOTION to Amend Complaint to add parties by Builders Gypsum Supply LLP. (Attachments: # 1 Proposed Order Motion to Strike Second Amended Complaint and Quash Summons Issued)(Huber, Edmund) (Entered: 11/17/2006)
77 ORDER denying 40 Motion to Dismiss as moot. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 11/21/2006)
78 ADVISORY TO THE COURT by Alicia Mansel. (Fields, Warren) (Entered: 12/06/2006)
79 ORDER granting 72 Motion to Amend Complaint and add parties. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 12/07/2006)
80 ORDER denying 76 Motion to Strike Second Amended Complaint and Quash Summons Issued as moot. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 12/07/2006)
81 ANSWER to Amended Complaint by Isreal Flores, Narciso Flores, Rigoberto Flores.(rg, ) (Entered: 12/26/2006)
82 ANSWER to Amended Complaint. COUNTERCLAIM against Alicia Mansel by Builders Gypsum Supply LLP.(rg, ) (Entered: 12/26/2006)
83 **DOCUMENT DEFICIENT−WRONG PDF ATTACHED. SEE DKT NO. 83** RESPONSE to Motion re 76 MOTION to Strike 75 Summons Issued, 74 Amended Complaint, 73 Attachment, 72 MOTION to Amend Complaint to add parties Answer to Counterclaim, filed by Alicia Mansel. (Fields, Warren) Modified on 1/12/2007 TO reflect deficiency and restrict access (tm). (Entered: 01/11/2007)
84 **DEFICIENCY NOTICE: to attorney Warren Fields re 83 Response to Motion. Wrong PDF was attached to docket entry. Access will be restricted. Please refile the pleading in its entirety with correct pdf.** (tm) (Entered: 01/12/2007)
85 ANSWER to Counterclaim by Alicia Mansel.(tm) (Entered: 01/18/2007)
86 Order for Scheduling Recommendations/Proposed Scheduling Order. Notice of right to consent to disposition of a civil case by a U.S. Magistrate Judge. Scheduling Recommendations/Proposed Scheduling Order due by 3/23/2007. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 01/23/2007)
87 CONSENT/NON−CONSENT to Trial by US Magistrate Judge by Isreal Flores, Narciso Flores, Rigoberto Flores Received. (Document is sealed pursuant to the Electronic Filing Procedures for the Western District of Texas). (tm) (Entered: 02/01/2007)
88 ORDER − the EEOC is no longer a party to Plaintiff Mansel's current litigation, and therefore need not be noticed or included in further proceedings for this case. In light of this clarification, the Court will no longer include the EEOC in the style of the case. Equal Employment Opportunity Commission terminated. Attorney Edward Juarez terminated. Signed by Judge W. Royal Furgeson Jr. (rg, ) (Entered: 02/02/2007)
89 Unopposed MOTION To deem Answer timely filed re 85 Answer to Counterclaim, 84 Deficiency Notice, 83 Response to Motion, by Alicia Mansel. (Attachments: # 1 Proposed Order)(Fields, Warren) (Entered: 02/08/2007)
90 CONSENT/NON−CONSENT to Trial by US Magistrate Judge by Builders Gypsum Supply LLP Received. (Document is sealed pursuant to the Electronic Filing Procedures for the Western District of Texas). (tm) (Entered: 02/12/2007)
91 CONSENT/NON−CONSENT to Trial by US Magistrate Judge by Alicia Mansel Received. (Document is sealed pursuant to the Electronic Filing Procedures for the Western District of Texas). (rg, ) (Entered: 02/13/2007)

Case: 5:05-cv-965 As of: 07/19/2013 06:28 PM CDT 10 of 18

02/13/2007 03/12/2007
03/14/2007 03/15/2007
03/15/2007
03/16/2007
03/16/2007 03/19/2007 03/20/2007 04/04/2007
04/04/2007
04/05/2007 04/18/2007 04/25/2007 05/03/2007 05/08/2007 05/08/2007 05/17/2007 05/24/2007
06/26/2007 06/28/2007

92 ORDER granting 89 Motion To deem Answer timely filed re 85 Answer to Counterclaim. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 02/13/2007)
93 MOTION for Summary Judgment (Partial) by Alicia Mansel, Alicia Mansel. (Attachments: # 1 Appendix # 2 Proposed Order)(Fields, Warren) (Entered: 03/12/2007)
94 NOTICE OF VACATION by Builders Gypsum Supply LLP (Huber, Edmund) (Entered: 03/14/2007)
95 ADVISORY TO THE COURT by Builders Gypsum Supply LLP, Isreal Flores, Narciso Flores, Rigoberto Flores Defendants' Rule 26(f) Report and Advisory Requesting Conference Pursuant to Rule 16. (Attachments: # 1 Exhibit A − Proposed Stipulations)(Honeyman, Virginia) (Entered: 03/15/2007)
96 ORDER setting Scheduling Conference for 3/29/2007 04:00 AM before Honorable W. Royal Furgeson Jr. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 03/15/2007)
97 ORDER resetting Scheduling Conference for 4/4/2007 04:30 PM before Honorable W. Royal Furgeson Jr. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 03/16/2007)
98 ORDER Staying Defendant's Response Deadline. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 03/16/2007)
99 MOTION to Appear Pro Hac Vice by Warren J. Fields by on behalf of Alicia Mansel. (Attachments: # 1 Proposed Order)(Fields, Warren) (Entered: 03/19/2007)
100 ORDER granting 99 Motion for Warren J. Fields to Appear Pro Hac Vice. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 03/21/2007)
101 MOTION to Appear Pro Hac Vice by Warren J. Fields by on behalf of Alicia Mansel. (Attachments: # 1 Proposed Order Order Granting Application for Admission Pro Hac Vice)(Fields, Warren) (Entered: 04/04/2007)
103 Minute Entry for proceedings held before Judge W. Royal Furgeson Jr.: Scheduling Conference held on 4/4/2007 (Minute entry documents are not available electronically.). (Court Reporter Myers.) (tm) (Entered: 04/09/2007)
102 Advisory recaping oral decisions made during status conference. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 04/05/2007)
104 ORDER granting 101 Motion for David M. Sloan to Appear Pro Hac Vice. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 04/18/2007)
105 NOTICE for Warren J. Fields by Alicia Mansel (Fields, Warren) (Entered: 04/25/2007)
106 ADVISORY TO THE COURT by Alicia Mansel (Joint). (Fields, Warren) (Entered: 05/03/2007)
107 ADVISORY TO THE COURT by Alicia Mansel. (Attachments: # 1 Exhibit (A, B &C)(Fields, Warren) (Entered: 05/08/2007)
108 ADVISORY TO THE COURT by Isreal Flores, Narciso Flores, Rigoberto Flores. (Yoder, Andrew) (Entered: 05/08/2007)
109 NOTICE of Vacation by Alicia Mansel (Fields, Warren) (Entered: 05/17/2007)
110 NOTICE of Vacation for E. Burke Huber, Jr. by Builders Gypsum Supply LLP, Builders Gypsum Supply LLP, Builders Gypsum Supply LLP (Huber, Edmund) (Entered: 05/24/2007)
111 ADVISORY TO THE COURT by Alicia Mansel. (Fields, Warren) (Entered: 06/26/2007)
112 Unopposed MOTION for Leave to File Defendants' Response to Plaintiff's Motion for Summary Judgment and Defendants' Motion for Summary Judgment by Builders Gypsum Supply LLP, Isreal Flores, Narciso Flores, Rigoberto Flores.

Case: 5:05-cv-965 As of: 07/19/2013 06:28 PM CDT 11 of 18

07/02/2007 07/06/2007 07/06/2007 07/17/2007
07/18/2007 07/18/2007
07/31/2007 07/31/2007
07/31/2007 07/31/2007 08/02/2007 08/02/2007 08/13/2007
08/23/2007

(Huber, Edmund) (Entered: 06/28/2007)
113 ORDER granting 112 Motion for Leave to File Response to Motion for Summary Judgment. Deadline to file extended to 7/6/07. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 07/03/2007)
114 RESPONSE to Motion, filed by Builders Gypsum Supply LLP, Isreal Flores, Narciso Flores, Rigoberto Flores, re 93 MOTION for Summary Judgment (Partial) filed by Alicia Mansel (Attachments: # 1 Exhibit 1 − Part 1# 2 Exhibit 1 − Part 2# 3 Exhibit 2# 4 Exhibit 3# 5 Exhibit 4)(Honeyman, Virginia) (Entered: 07/06/2007)
114 MOTION for Partial Summary Judgment by Builders Gypsum Supply LLP, Isreal Flores, Narciso Flores, Rigoberto Flores. (Motion contained within the Reponse to Plaintiff's Motion for Partial Summary Judgment) (tm) Additional attachment(s) added on 7/9/2007 (tm). (Entered: 07/09/2007)
115 **DOCUMENT DEFICIENT−NO SIGNATURE. SEE DKT NO. 116** Response in Opposition to Motion, filed by Alicia Mansel, re 114 MOTION for Partial Summary Judgment filed by Defendant Isreal Flores, Defendant Rigoberto Flores, Defendant Builders Gypsum Supply LLP, Defendant Narciso Flores and reply in support of plaintiff's motion for summary judgment (Attachments: # 1 Exhibit Exhibit A)(Fields, Warren) Modified on 7/18/2007 to reflect deficiency (tm). (Entered: 07/17/2007)
116 **DEFICIENCY NOTICE: to attorney Warren Fields re 115 Response in Opposition to Motion. Pleading is not signed with /s/name or with a digital signature. Pleading cannot be accepted. Please refile document in its entirety.** (tm) (Entered: 07/18/2007)
117 Response in Opposition to Motion, filed by Alicia Mansel, re 114 MOTION for Partial Summary Judgment filed by Defendant Isreal Flores, Defendant Rigoberto Flores, Defendant Builders Gypsum Supply LLP, Defendant Narciso Flores and Reply in Support of Plaintiff's Motion for Summary Judgment (Attachments: # 1 Exhibit A)(Fields, Warren) (Entered: 07/18/2007)
118 Unopposed MOTION for Leave to Exceed Page Limitation by Builders Gypsum Supply LLP. (Huber, Edmund) (Entered: 07/31/2007)
119 REPLY to Response to Motion, filed by Builders Gypsum Supply LLP, Isreal Flores, Narciso Flores, Rigoberto Flores, re 114 MOTION for Partial Summary Judgment filed by Defendant Isreal Flores, Defendant Rigoberto Flores, Defendant Builders Gypsum Supply LLP, Defendant Narciso Flores Defendants' Reply to Plaintiff's Response to Defendants' Motion for Partial Summary Judgment (Huber, Edmund) (Entered: 07/31/2007)
120 ORDER denying 93 Motion for Partial Summary Judgment. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 08/01/2007)
121 ORDER denying 114 Defendants' Motion for Partial Summary Judgment. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 08/01/2007)
122 ORDER directing parties to submit an agreed amended scheduling order by 9/4/07. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 08/02/2007)
123 ORDER granting 118 Motion for Leave to File Reply to Plaintiff's Response to Motion for Summary Judgment in Excess Pages. Signed by Judge W. Royal Furgeson Jr.. (tm) (Entered: 08/02/2007)
124 MOTION for Reconsideration re 121 Order on Motion for Partial Summary Judgment, 119 Reply to Response to Motion, 120 Order on Motion for Summary Judgment by Builders Gypsum Supply LLP, Isreal Flores, Narciso Flores, Rigoberto Flores. (Attachments: # 1 Proposed Order Proposed Order on Defendants' Motion for Reconsideration)(Huber, Edmund) (Entered: 08/13/2007)
125 NOTICE of Change of Address by Edmund Burke Huber, Jr (Huber, Edmund) (Entered: 08/23/2007)

Case: 5:05-cv-965 As of: 07/19/2013 06:28 PM CDT 12 of 18

08/24/2007
08/29/2007 08/29/2007
08/31/2007 09/04/2007 09/04/2007 09/04/2007 09/04/2007 09/04/2007 09/05/2007 09/05/2007 09/06/2007 09/06/2007 09/07/2007 09/28/2007 09/28/2007 10/01/2007

126 Response in Opposition to Motion, filed by Alicia Mansel, re 124 MOTION for Reconsideration re 121 Order on Motion for Partial Summary Judgment, 119 Reply to Response to Motion, 120 Order on Motion for Summary Judgment MOTION for Reconsideration re 121 Order on Motion for Partial Summary Judgment, 119 Reply to Response to Motion, 120 Order on Motion for Summary Judgment filed by Defendant Isreal Flores, Defendant Rigoberto Flores, Defendant Builders Gypsum Supply LLP, Defendant Narciso Flores (Fields, Warren) (Entered: 08/24/2007)
127 MOTION for Leave to Exceed Page Limitation by Builders Gypsum Supply LLP. (Attachments: # 1 Proposed Order)(Huber, Edmund) (Entered: 08/29/2007)
128 REPLY to Response to Motion, filed by Builders Gypsum Supply LLP, re 124 MOTION for Reconsideration re 121 Order on Motion for Partial Summary Judgment, 119 Reply to Response to Motion, 120 Order on Motion for Summary Judgment MOTION for Reconsideration re 121 Order on Motion for Partial Summary Judgment, 119 Reply to Response to Motion, 120 Order on Motion for Summary Judgment filed by Defendant Isreal Flores, Defendant Rigoberto Flores, Defendant Builders Gypsum Supply LLP, Defendant Narciso Flores (Huber, Edmund) (Entered: 08/29/2007)
129 ORDER granting 127 Motion for Leave to File Reply to Response to Motion for Reconsideration in Excess Pages. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 08/31/2007)
130 ADVISORY TO THE COURT by Builders Gypsum Supply LLP, Israel Flores, Narciso Flores, and Rigoberto Flores. (Huber, Edmund) Modified on 9/4/2007 to add filers (tm). (Entered: 09/04/2007)
**Notice of Correction: re 130 Advisory to the Court. Docket text was edited by the Clerk to add additional filers.** (tm) (Entered: 09/04/2007)
131 MOTION To Enter Scheduling Order re 122 Order by Alicia Mansel. (Attachments: # 1 Proposed Order)(Fields, Warren) (Entered: 09/04/2007)
132 ATTACHMENT A to 131 MOTION To Enter Scheduling Order re 122 Order by Alicia Mansel. (Fields, Warren) (Entered: 09/04/2007)
133 ADVISORY TO THE COURT by Alicia Mansel regarding Rule 7.1 disclosures. (Fields, Warren) (Entered: 09/04/2007)
134 RULE 7 DISCLOSURE STATEMENT filed by Builders Gypsum Supply LLP. (Huber, Edmund) (Entered: 09/05/2007)
135 Agreed MOTION to Substitute Counsel by Isreal Flores, Narciso Flores, Rigoberto Flores. (Yoder, Andrew) (Entered: 09/05/2007)
136 MOTION to Withdraw as Attorney by Builders Gypsum Supply LLP. (Honeyman, Virginia) (Entered: 09/06/2007)
137 MOTION to Withdraw as Attorney by Builders Gypsum Supply LLP. (Boland, Adam) (Entered: 09/06/2007)
138 NOTICE of Attorney Appearance by Edmund Burke Huber, Jr on behalf of Builders Gypsum Supply LLP for Attorney Carolyn Russell (Huber, Edmund) (Entered: 09/07/2007)
139 ORDER granting 135 Motion to Substitute for Defendants Israel Flores, Narciso Flores, and Rigberto Flores. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 09/28/2007)
140 ORDER granting 137 Motion for Adam D. Boland to Withdraw as Attorney. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 09/28/2007)
141 SCHEDULING ORDER: Jury Selection set for 8/11/2008 09:00AM before Honorable W. Royal Furgeson Jr. Jury Trial set for 8/11/2008 09:00 AM before Honorable W. Royal Furgeson Jr. ADR Report Deadline due by 10/31/2007. Amended Pleadings due by 12/7/2007. Discovery due by 5/1/2008. Dispositive Motions due by 5/30/2008. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 10/01/2007)

Case: 5:05-cv-965 As of: 07/19/2013 06:28 PM CDT 13 of 18

10/01/2007 10/01/2007 10/10/2007 10/11/2007 10/11/2007 10/25/2007 10/25/2007
10/26/2007 10/31/2007 10/31/2007 10/31/2007 11/02/2007
11/05/2007 11/06/2007 11/08/2007 11/12/2007

142 ORDER denying 131 Motion for entry of scheduling order as moot. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 10/01/2007)
143 ORDER granting 136 Motion for Virginia Honeyman to Withdraw as Attorney. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 10/01/2007)
144 Unopposed MOTION to Withdraw David Sloan by Alicia Mansel. (Attachments: # 1 Proposed Order)(Fields, Warren) (Entered: 10/10/2007)
145 ORDER granting 144 Motion to Withdraw Appearance. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 10/11/2007)
146 ORDER denying 124 Motion for Reconsideration. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 10/11/2007)
147 MOTION for Leave to Exceed Page Limitation by Builders Gypsum Supply LLP, Isreal Flores, Narciso Flores, Rigoberto Flores. (Attachments: # 1 Proposed Order)(Huber, Edmund) (Entered: 10/25/2007)
148 Opposed MOTION to Amend/Correct 121 Order on Motion for Partial Summary Judgment, 120 Order on Motion for Summary Judgment to Allow Interlocutory Appeal and to Stay Proceedings and Brief in Support by Builders Gypsum Supply LLP, Isreal Flores, Narciso Flores, Rigoberto Flores. (Huber, Edmund) (Entered: 10/25/2007)
149 ORDER granting 147 Motion for Leave to File Excess Pages. Signed by Judge W. Royal Furgeson Jr.. (tm) (Entered: 10/26/2007)
150 ADR Report Filed − NON−CONSENT to Alternate Dispute Resolution (ADR) by Builders Gypsum Supply LLP, Isreal Flores, Narciso Flores, Rigoberto Flores(Huber, Edmund) (Entered: 10/31/2007)
151 ADR Report Filed − CONSENT to Alternate Dispute Resolution (ADR) by Alicia Mansel and ADR Report (Fields, Warren) (Entered: 10/31/2007)
152 NOTICE of Change of Address by Warren J. Fields (Fields, Warren) (Entered: 10/31/2007)
153 Unopposed MOTION for Extension of Time to File Response/Reply as to 148 Opposed MOTION to Amend/Correct 121 Order on Motion for Partial Summary Judgment, 120 Order on Motion for Summary Judgment to Allow Interlocutory Appeal and to Stay Proceedings and Brief in SupportOpposed MOTION to Amend/Correct 121 Order on Motion for Partial Summary Judgment, 120 Order on Motion for Summary Judgment to Allow Interlocutory Appeal and to Stay Proceedings and Brief in Support by Alicia Mansel. (Attachments: # 1 Proposed Order)(Fields, Warren) (Entered: 11/02/2007)
154 ORDER granting 153 Motion for Extension of Time to File Response to Defendants' Motion to Allow Interlocutory Appeal. Deadline extended to 11/12/07. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 11/05/2007)
155 MOTION to Withdraw as Attorney by Builders Gypsum Supply LLP. (Attachments: # 1 Proposed Order Order Withdrawing Appearance)(Dietz, R.) (Entered: 11/06/2007)
156 ORDER granting 155 Motion for R. Mark Dietz to Withdraw as Attorney. Signed by Judge W. Royal Furgeson Jr. (rg) (Entered: 11/08/2007)
157 Response in Opposition to Motion, filed by Alicia Mansel, re 148 Opposed MOTION to Amend/Correct 121 Order on Motion for Partial Summary Judgment, 120 Order on Motion for Summary Judgment to Allow Interlocutory Appeal and to Stay Proceedings and Brief in SupportOpposed MOTION to Amend/Correct 121 Order on Motion for Partial Summary Judgment, 120 Order on Motion for Summary Judgment to Allow Interlocutory Appeal and to Stay Proceedings and Brief in Support filed by Defendant Isreal Flores, Defendant Rigoberto Flores, Defendant Builders Gypsum Supply LLP, Defendant Narciso Flores (Fields, Warren) (Entered: 11/12/2007)

Case: 5:05-cv-965 As of: 07/19/2013 06:28 PM CDT 14 of 18

11/20/2007 12/07/2007
12/07/2007
12/07/2007 02/01/2008 02/01/2008 02/11/2008 02/14/2008 02/15/2008 02/15/2008 02/15/2008 02/15/2008 02/19/2008 02/19/2008
02/26/2008 02/26/2008

158 ORDER denying 148 Motion to Amend/Correct 121 Order on Motion for Partial Summary Judgment, 120 Order on Motion for Summary Judgment to Allow Interlocutory Appeal and to Stay Proceedings and Brief in Support. Signed by Judge W. Royal Furgeson Jr. (tm) (Entered: 11/20/2007)
159 Unopposed MOTION for Leave to File Unopposed Motion for Leave to File First Amended Answers and Affirmative Defenses to Plaintiff−Intervenor's Second Amended Complaint and Defendant's Amended Counterclaim by Builders Gypsum Supply LLP. (Attachments: # 1 Proposed Order)(Huber, Edmund) (Entered: 12/07/2007)
160 MOTION for Leave to File Defendant's Unopposed Motion for Leave to File First Amended Answers and Affirmative Defenses to Plaintiff−Intervenor's Second Amended Complaint and Defendant's Amended Counterclaim by Builders Gypsum Supply LLP. (Attachments: # 1 Proposed Order # 2 Exhibit Defendant's Unopposed Motion for Leave to File First Amended Answers and Affirmative Defenses to Plaintiff−Intervenor's Second Amended Complaint and Defendant's Amended Counterclaim)(Huber, Edmund) (Entered: 12/07/2007)
161 Unopposed MOTION to supplement re 74 Amended Complaint, 85 Answer to Counterclaim by Alicia Mansel. (Attachments: # 1 Proposed Order # 2 Supplement Prposed Supplement to Pleadings)(Fields, Warren) (Entered: 12/07/2007)
162 ORDER granting Motion for Leave to File Defendant's First Amended Answers to Plaintiff−Intervenor's Second Amended Complaint and Defendant's Amended Counterclaim 159 , 160 . Signed by Judge W. Royal Furgeson, Jr. (tm) (Entered: 02/04/2008)
163 ORDER granting 161 Motion to supplement pleadings. Signed by Judge W. Royal Furgeson, Jr. (tm) (Entered: 02/04/2008)
164 Unopposed MOTION for Leave to File Unopposed Motion for Leave to Designate Experts by Alicia Mansel. (Attachments: # 1 Proposed Order)(Fields, Warren) (Entered: 02/11/2008)
165 ORDER granting 164 Motion for Leave to File Designation of Experts. Signed by Judge W. Royal Furgeson, Jr. (tm) (Entered: 02/15/2008)
166 Joint MOTION to Extend Scheduling Order Deadlines by Builders Gypsum Supply LLP and Alicia Mansel. (Attachments: # 1 Exhibit A, # 2 Exhibit B − Agreed Scheduling Order, # 3 Proposed Order)(Huber, Edmund) Modified on 2/15/2008 to add filer (tm). (Entered: 02/15/2008)
**Notice of Correction: re 166 Joint MOTION to Extend Scheduling Order Deadlines. Docket entry edited by the clerk to select plaintiff as an additional filer.** (tm) (Entered: 02/15/2008)
167 MOTION to Dismiss plaintiff's supplement to pleadings by Builders Gypsum Supply LLP. (rg) (Entered: 02/15/2008)
168 MOTION to Dismiss Defendant's Counterclaim by Alicia Mansel. (Attachments: # 1 Proposed Order Granting Plaintiff's Motion to Dismiss)(Fields, Warren) (Entered: 02/15/2008)
169 ORDER granting 166 Motion to Extend Scheduling Order Deadlines. Signed by Judge W. Royal Furgeson, Jr. (tm) (Entered: 02/20/2008)
170 AGREED SCHEDULING ORDER: Discovery due by 6/16/2008. Dispositive Motions due by 6/30/2008. Jury Selection set for 8/11/2008 09:00AM before Judge W. Royal Furgeson Jr. Jury Trial set for 8/11/2008 09:00 AM before Judge W. Royal Furgeson Jr. Signed by Judge W. Royal Furgeson, Jr. (tm) (Entered: 02/20/2008)
171 EXPERT WITNESS LIST by Builders Gypsum Supply LLP Defendant's Designation of Testifying Experts. (Huber, Edmund) Modified on 2/26/2008 to edit text (tm). (Entered: 02/26/2008)
**Notice of Correction: re 171 Expert Witness List. The docket entry was edited by the clerk to reflect pleading as just an expert witness list and not a

Case: 5:05-cv-965 As of: 07/19/2013 06:28 PM CDT 15 of 18

02/26/2008 03/03/2008
03/04/2008
03/04/2008 03/04/2008 03/04/2008 03/05/2008 03/11/2008 03/11/2008
03/20/2008 03/20/2008 04/03/2008 04/09/2008 04/10/2008 04/10/2008
04/18/2008

witness/exhibit/expert list.** (tm) (Entered: 02/26/2008)
172 RESPONSE to Motion, filed by Alicia Mansel, re 167 MOTION to Dismiss filed by Defendant Builders Gypsum Supply LLP (Attachments: # 1 Exhibit Exhibit "A")(Fields, Warren) (Entered: 02/26/2008)
173 MOTION for Leave to File Motion for Leave to File Def's 2nd Amd Answer &Affirm Def &Def's 2nd Amd Counterclaim by Builders Gypsum Supply LLP. (Attachments: # 1 Exhibit A − 2nd Amd Answer &2nd Amd Counterclaim, # 2 Proposed Order)(Huber, Edmund) (Entered: 03/03/2008)
174 ORDER setting hearing on 173 MOTION for Leave to File Motion for Leave to File Def's 2nd Amd Answer &Affirm Def &Def's 2nd Amd Counterclaim for 3/12/2008 03:30 PM before Judge W. Royal Furgeson Jr. Signed by Judge W. Royal Furgeson, Jr. (tm) (Entered: 03/04/2008)
175 ADVISORY TO THE COURT by Alicia Mansel regarding Defendant's Motion for Leave to Amend Counterclaims. (Attachments: # 1 Exhibit A)(Fields, Warren) (Entered: 03/04/2008)
176 Response in Opposition to Motion, filed by Builders Gypsum Supply LLP, re 168 MOTION to Dismiss Defendant's Counterclaim filed by Intervenor Plaintiff Alicia Mansel (Attachments: # 1 Proposed Order)(Huber, Edmund) (Entered: 03/04/2008)
177 ADVISORY TO THE COURT by Builders Gypsum Supply LLP Regarding Its Motion for Leave to Amend Counterclaim. (Huber, Edmund) (Entered: 03/04/2008)
178 ORDER Cancelling Hearing on Motion for Leave. Signed by Judge W. Royal Furgeson, Jr. (tm) (Entered: 03/05/2008)
179 REPLY to Response to Motion, filed by Builders Gypsum Supply LLP, re 167 MOTION to Dismiss filed by Defendant Builders Gypsum Supply LLP (Huber, Edmund) (Entered: 03/11/2008)
180 ADVISORY TO THE COURT by Builders Gypsum Supply LLP REGARDING DEFENDANTS' REPLY TO PLAINTIFF−INTERVENOR'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S SUPPLEMENT TO PLEADINGS. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Huber, Edmund) (Entered: 03/11/2008)
181 NOTICE to Dismiss Specific Contract Claim without Prejudice by Alicia Mansel re 179 Reply to Response to Motion, 172 Response to Motion, 167 MOTION to Dismiss (Fields, Warren) (Entered: 03/20/2008)
182 ADVISORY TO THE COURT by Alicia Mansel regarding Defendant's Motion to Dismiss. (Fields, Warren) (Entered: 03/20/2008)
183 NOTICE of Vacation for E. Burke Huber, Jr. by Builders Gypsum Supply LLP (Huber, Edmund) (Entered: 04/03/2008)
184 Joint MOTION to Extend Scheduling Order Deadlines by Builders Gypsum Supply LLP, Alicia Mansel. (Attachments: # 1 Agreed Scheduling Order)(Huber, Edmund) (Entered: 04/09/2008)
185 ORDER GRANTING 184 Motion to Extend Scheduling Order Deadlines. Signed by Judge W. Royal Furgeson, Jr. (tm) (Entered: 04/10/2008)
186 SCHEDULING ORDER: Discovery due by 9/15/2008. Dispositive Motions due by 9/29/2008. Jury Selection reset for 2/23/2009 09:00AM before Judge W. Royal Furgeson Jr. Jury Trial reset for 2/23/2009 09:00 AM before Judge W. Royal Furgeson Jr. Signed by Judge W. Royal Furgeson, Jr. (tm) (Entered: 04/10/2008)
187 ORDER Settin Motion Hearing for 168 MOTION to Dismiss Defendant's Counterclaim, 167 MOTION to Dismiss, 173 MOTION for Leave to File Motion for Leave to File Def's 2nd Amd Answer &Affirm Def &Def's 2nd Amd Counterclaim ( Motion Hearing set for 5/22/2008 01:30 PM before Judge W. Royal Furgeson Jr.). Signed by Judge W. Royal Furgeson, Jr. (tm) (Entered: 04/21/2008)

Case: 5:05-cv-965 As of: 07/19/2013 06:28 PM CDT 16 of 18

04/28/2008 04/29/2008 04/29/2008 05/08/2008 05/09/2008 05/12/2008 05/15/2008 05/16/2008
05/19/2008 05/20/2008 05/20/2008 05/21/2008 05/21/2008 05/21/2008
05/22/2008 05/22/2008

188 MOTION to Bifurcate by Builders Gypsum Supply LLP. (Attachments: # 1 Proposed Order to Bifurcate)(Huber, Edmund) (Entered: 04/28/2008)
189 DESIGNATION OF EXPERT WITNESSES by Builders Gypsum Supply LLP Supplemental. (Attachments: # 1 Preliminary Report of Eric Dreiband)(Huber, Edmund) (Entered: 04/29/2008)
190 MOTION to Compel the Mental Examination of Plaintiff Alicia Mansel by Builders Gypsum Supply LLP. (Attachments: # 1 Proposed Order)(Huber, Edmund) (Entered: 04/29/2008)
191 MOTION to Compel Discovery Reponses by Builders Gypsum Supply LLP. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Proposed Order Motion to Compel Order)(Huber, Edmund) (Entered: 05/08/2008)
192 Response in Opposition to Motion, filed by Alicia Mansel, re 188 MOTION to Bifurcate filed by Defendant Builders Gypsum Supply LLP (Fields, Warren) (Entered: 05/09/2008)
193 Response in Opposition to Motion, filed by Alicia Mansel, re 190 MOTION to Compel the Mental Examination of Plaintiff Alicia Mansel filed by Defendant Builders Gypsum Supply LLP (Fields, Warren) (Entered: 05/12/2008)
194 APPENDIX to 190 MOTION to Compel the Mental Examination of Plaintiff Alicia Mansel by Builders Gypsum Supply LLP. (Huber, Edmund) (Entered: 05/15/2008)
195 REPLY to Response to Motion, filed by Builders Gypsum Supply LLP, re 190 MOTION to Compel the Mental Examination of Plaintiff Alicia Mansel filed by Defendant Builders Gypsum Supply LLP (Attachments: # 1 Exhibit A, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Proposed Order)(Huber, Edmund) (Entered: 05/16/2008)
196 Response in Opposition to Motion, filed by Alicia Mansel, re 191 MOTION to Compel Discovery Reponses filed by Defendant Builders Gypsum Supply LLP (Fields, Warren) (Entered: 05/19/2008)
197 MOTION for Leave to Exceed Page Limitation by Builders Gypsum Supply LLP. (Attachments: # 1 Proposed Order)(Huber, Edmund) (Entered: 05/20/2008)
198 REPLY to Response to Motion, filed by Builders Gypsum Supply LLP, re 188 MOTION to Bifurcate filed by Defendant Builders Gypsum Supply LLP (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Huber, Edmund) (Entered: 05/20/2008)
199 ADVISORY TO THE COURT by Alicia Mansel regarding hearing set for May 22, 2008. (Attachments: # 1 Exhibit Exhibit A)(Fields, Warren) (Entered: 05/21/2008)
200 ADVISORY TO THE COURT by Builders Gypsum Supply LLP Regarding May 22, 2008 hearing. (Huber, Edmund) (Entered: 05/21/2008)
201 ORDER RESETTING PENDING MOTIONS, (Resetting Motion Hearing for 6/4/2008 05:00 PM before Judge W. Royal Furgeson Jr.) 191 MOTION to Compel Discovery Reponses, 188 MOTION to Bifurcate, 168 MOTION to Dismiss Defendant's Counterclaim, 167 MOTION to Dismiss, 173 MOTION for Leave to File Motion for Leave to File Def's 2nd Amd Answer &Affirm Def &Def's 2nd Amd Counterclaim, 197 MOTION for Leave to Exceed Page Limitation, 190 MOTION to Compel the Mental Examination of Plaintiff Alicia Mansel. Signed by Judge W. Royal Furgeson, Jr. (rg) (Entered: 05/21/2008)
202 Agreed MOTION to Extend Scheduling Order Deadlines by Builders Gypsum Supply LLP, Alicia Mansel, Israel Flores, Narciso Flores, Rigoberto Flores. (Attachments: # 1 Proposed Order Revised Agreed Order)(Huber, Edmund) Modified on 5/22/2008, to add filers (rf). (Entered: 05/22/2008)
203 Scheduling Recommendations/Proposed Scheduling Order Revised Agreed Scheduling Order by Builders Gypsum Supply LLP. (Huber, Edmund) (Entered: 05/22/2008)

Case: 5:05-cv-965 As of: 07/19/2013 06:28 PM CDT 17 of 18

05/22/2008 05/22/2008 05/23/2008 05/23/2008 05/30/2008 05/30/2008 05/30/2008
06/02/2008
06/04/2008 06/13/2008 06/17/2008 06/17/2008

Notice of Correction: re 202 Agreed MOTION to Extend Scheduling Order Deadlines. (rf) (Entered: 05/22/2008)
Notice of Correction: ***NOTIFIED COUNSEL THAT FILERS HAVE BEEN ADDED TO THIS ENTRY TO CORRECTLY REFLECT ALL FILERS*** re 202 Agreed MOTION to Extend Scheduling Order Deadlines. (rf) (Entered: 05/22/2008)
204 ORDER GRANTING 202 Motion to Extend Scheduling Order Deadlines. Signed by Judge W. Royal Furgeson, Jr. (rf) (Entered: 05/23/2008)
205 REPLY to Response to Motion, filed by Builders Gypsum Supply LLP, re 191 MOTION to Compel Discovery Reponses filed by Defendant Builders Gypsum Supply LLP (Attachments: # 1 Proposed Order)(Huber, Edmund) (Entered: 05/23/2008)
206 Unopposed MOTION for Leave to Exceed Page Limitation by Equal Employment Opportunity Commission. (Attachments: # 1 Proposed Order)(Juarez, Edward) (Entered: 05/30/2008)
207 Opposed MOTION to Quash Subpoenas Ad Testificandum, Opposed MOTION for Protective Order by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Proposed Order)(Juarez, Edward) (Entered: 05/30/2008)
208 ORDER RESETTING PENDING MOTIONS, Set Motion Hearing for 188 MOTION to Bifurcate, 197 MOTION for Leave to Exceed Page Limitation, 190 MOTION to Compel the Mental Examination of Plaintiff Alicia Mansel, 191 MOTION to Compel Discovery Reponses, 207 Opposed MOTION to Quash Subpoenas Ad TestificandumOpposed MOTION for Protective Order, 167 MOTION to Dismiss, 168 MOTION to Dismiss Defendant's Counterclaim, 206 Unopposed MOTION for Leave to Exceed Page Limitation, 173 MOTION for Leave to File Motion for Leave to File Def's 2nd Amd Answer &Affirm Def &Def's 2nd Amd Counterclaim ( Motion Hearing set for 6/4/2008 04:00 PM before Judge W. Royal Furgeson Jr..). Signed by Judge W. Royal Furgeson, Jr. (ep, ) (Entered: 05/30/2008)
209 ORDER, Set Motion Hearing for 188 MOTION to Bifurcate, 197 MOTION for Leave to Exceed Page Limitation, 190 MOTION to Compel the Mental Examination of Plaintiff Alicia Mansel, 191 MOTION to Compel Discovery Reponses, 207 Opposed MOTION to Quash Subpoenas Ad TestificandumOpposed MOTION for Protective Order, 167 MOTION to Dismiss, 168 MOTION to Dismiss Defendant's Counterclaim, 206 Unopposed MOTION for Leave to Exceed Page Limitation, 173 MOTION for Leave to File Motion for Leave to File Def's 2nd Amd Answer &Affirm Def &Def's 2nd Amd Counterclaim ( Motion Hearing set for 6/18/2008 04:00 PM before Judge W. Royal Furgeson Jr..). Signed by Judge W. Royal Furgeson, Jr. (ep, ) (Entered: 06/02/2008)
210 ADVISORY TO THE COURT by Builders Gypsum Supply LLP Defendant's Advisory Regarding EEOC's Expedited Motion to Quash and for Protective Order Regarding Defendant's Subpoenas. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Huber, Edmund) (Entered: 06/04/2008)
211 ADVISORY TO THE COURT by Builders Gypsum Supply LLP Regarding Settlement and June 18, 2008 Hearing. (Huber, Edmund) (Entered: 06/13/2008)
212 ADVISORY TO THE COURT by Alicia Mansel regarding hearing set for June 18, 2008. (Fields, Warren) (Entered: 06/17/2008)
213 ORDER RESETTING PENDING MOTIONS Hearing on 188 MOTION to Bifurcate, 197 MOTION for Leave to Exceed Page Limitation, 190 MOTION to Compel Examination of Plaintiff Alicia Mansel, 191 MOTION to Compel Discovery Reponses, 207 Opposed MOTION to Quash Subpoenas Ad Testificandum Opposed MOTION for Protective Order, 167 MOTION to Dismiss, 168 MOTION to Dismiss Defendant's Counterclaim, 206 Unopposed MOTION for Leave to Exceed Page Limitation, 173 MOTION for Leave to File Motion for Leave to File Def's 2nd Amd Answer &Affirm Def &Def's 2nd Amd Counterclaim : Motion Hearing set for 7/2/2008 04:30 PM before Judge W. Royal Furgeson Jr...

Case: 5:05-cv-965 As of: 07/19/2013 06:28 PM CDT 18 of 18

07/01/2008
07/18/2008 07/21/2008

Signed by Judge W. Royal Furgeson, Jr. (ep, ) (Entered: 06/17/2008)
214 ORDER RESETTING PENDING MOTIONS, Set Motion Hearing for 188 MOTION to Bifurcate, 197 MOTION for Leave to Exceed Page Limitation, 190 MOTION to Compel the Mental Examination of Plaintiff Alicia Mansel, 191 MOTION to Compel Discovery Reponses, 207 Opposed MOTION to Quash Subpoenas Ad Testificandum Opposed MOTION for Protective Order, 167 MOTION to Dismiss, 168 MOTION to Dismiss Defendant's Counterclaim, 206 Unopposed MOTION for Leave to Exceed Page Limitation, 173 MOTION for Leave to File Motion for Leave to File Def's 2nd Amd Answer &Affirm Def &Def's 2nd Amd Counterclaim ( Motion Hearing set for 7/30/2008 10:30 AM before Judge W. Royal Furgeson Jr..). Signed by Judge W. Royal Furgeson, Jr. (ep, ) (Entered: 07/01/2008)
215 Joint MOTION to Dismiss With Prejudice by Builders Gypsum Supply LLP. (Attachments: # 1 Proposed Order)(Huber, Edmund) (Entered: 07/18/2008)
216 ORDER GRANTING 215 Agreed Motion to Dismiss Signed by Judge W. Royal Furgeson, Jr. (ep, ) (Entered: 07/22/2008)