IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

FORD MOTOR CREDIT COMPANY,

)

)

)

Defendant.

)

)

CIVIL ACTION NO.
COMPLAINT JURY DEMAND

NATURE OF THE ACTION

This is an action under Title I of the Americans with Disabilities Act of 1990 ("the

ADA") and Title I of the Civil Rights Act of 1991 to correct employment practices made

unlawful by the ADA and to provide appropriate relief to (pseudonym) John Doe

(hereinafter "John Doe" or "Doe"), who was adversely affected by those unlawful

practices. Plaintiff Equal Employment Opportunity Commission ("the Commission")

alleges that Defendant Ford Motor Credit Company has violated the ADA by failing to

keep confidential medical information provided to Defendant by Doe in response to

Defendant's inquiries about his ability to perform job-related functions, and that Doe

suffered serious mental and emotional injuries as a result of Defendant's failure to keep this information confidential.

JURISDICTION AND VENUE

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

1337, 1343 and 1345. This action is authorized and instituted pursuant to Section

107(a) of the ADA, 42 U.S.C. § 12117(A),which incorporates by reference Sections 1

Case 3:06-cv-00900 Document 1 Filed 09/20/2006 Page 1 of 8

706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e-5(f)(1) and (3), and Section 1977A of the Civil Rights Act of 1991,42 U.S.C. § 1981a.
2. The unlawful employment practices alleged below were committed within the jurisdiction of the United States District Court for the Middle District of Tennessee, Nashville Division.
PARTIES 3. Plaintiff Equal Employment Opportunity Commission ("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 107(a) of the ADA, 42 U.S.C. § 12117(a), which incorporates by reference Section 706(f)(1) of Title VII, 42 U.S.C. §2000e-5(f)(1). 4. At all relevant times, Defendant Ford Motor Credit Company ("Employer"), a foreign Corporation, has been continuously doing business in the State of Tennessee and the City of Franklin and has continuously had at least 15 employees. 5. At all relevant times, Defendant Employer has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 101(5) of the ADA, 42 U.S.C. § 12115(5), and Section 107(7) of the ADA, 42 U.S.C. § 12117. which incorporates by reference Sections 701(g) and (h) of Title VII, 42 U.S.C. §§ 2000e(g) and (h). 6. Defendant Employer has been a covered entity under Section 102(2) of the ADA, 42 U.S.C. § 12111(2).
2
Case 3:06-cv-00900 Document 1 Filed 09/20/2006 Page 2 of 8

STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, John Doe filed a charge with the Commission alleging violations of the ADA by Defendant Employer. All conditions precedent to the institution of this lawsuit have been fulfilled.
7. From February, 2002, through April, 2005, Defendant Employer engaged in unlawful employment practices at its Franklin, Tennessee facility, in violation of Section 102(d)(3)(B), (d)(3)(C), and (d)(4)(C) of the ADA, 42 U.S.C. § 12112(d)(3)(B), (d)(3)(C), and (d)(4)(C).
8. In March, 2001, Doe became employed with Defendant as a regular fulltime employee.
9. In February, 2002, Doe was diagnosed with a serious health condition, the treatment of which would require him to miss several hours of work each week. He approached his manager and, without disclosing the specific diagnosis, advised the manager that he would need time off from work for medical treatment and asked how he could get the time off without jeopardizing his employment.
10. Doe's manager inquired as to the specific reason why Doe would need the time off, and, in response thereto, Doe advised his manager of his medical diagnosis.
11. After being so advised, Doe's manager referred him to Defendant's medical department.
12. Defendant's medical department required Doe to provide information about his diagnosis and anticipated medical treatments, then approved Doe for intermittent leave under the Family and Medical Leave Act ("the FMLA") in accordance
3
Case 3:06-cv-00900 Document 1 Filed 09/20/2006 Page 3 of 8

Defendant's FMLA policy. Defendant's medical department advised Doe that he should provide notes to the medical department after each time he took FMLA leave substantiating that he had used the leave for the purpose of receiving medical care, but that he did not have to tell anybody else why he had taken leave.
13. About three weeks later, Doe's manager called Doe into the office and advised Doe that Doe's immediate supervisor was inquiring why Doe was taking FMLA leave and was upsetthat she was not being told the reason. The manager asked Doe if it was okay to advise the manager of Doe's reason for taking leave. Doe told his manager that he did not want his supervisor to know the reason because Doe did not trust her to keep the information confidential.
14. About three weeks after the meeting described in paragraph 10 above, Doe's manager again called Doe into his office and told Doe that Doe's supervisor was still inquiring why Doe was taking time off work and was still upset that she was not being informed of the reason. Doe's manager told Doe that he thought Doe's supervisor should be told of Doe's reason for using the leave. Doe told his manager that he did not want his supervisor to know why Doe was taking FMLA leave, and that Defendant's medical department had told him that he did not have to tell anybody else his reason for using FMLA leave.
15. Despite Doe's objection, his manager informed Doe's supervisor of Doe's reason for taking FMLA leave.
16. Over the course of the next two years, Doe's co-workers' treatment of Doe changed. Whereas they formerly had been friendly to Doe and included him in daily group lunches, Doe was no longer welcome to go to lunch with them. None of his co-
4
Case 3:06-cv-00900 Document 1 Filed 09/20/2006 Page 4 of 8

workers sat in the chairs close to him, and co-workers who previously had been friendly to him would not speak to him.
17. In April, 2005, Doe learned that his supervisor had told his co-workers of Doe's medical diagnosis during the course of office gossip. Doe eventually learned that the gossip about his medical condition had spread to employees throughout Defendant's facility.
18. In April, 2005, Doe complained to Defendant that his supervisor had divulged his medical information to his co-workers. Defendant conducted an investigation into Doe's complaint, which investigation confirmed that Doe's supervisor had informed other employees of Doe's medical condition.
19. The realization that his supervisor's gossiping about Doe's medical condition was why his co-workers had changed from being friendly to him to shunning him caused Doe severe mental and emotional injuries and financial losses, including lost income.
20. Defendant's disclosure of Doe's medical information violated Sections 102(d)(3)(B), (d)(3)(C), and (d)(4)(C) of the ADA, 42 U.S.C. § 12112(d)(3)(B), (d)(3)(C), and (d)(4)(C), because Defendant required Doe to disclose the information as a condition of obtaining FMLA leave and the information was provided to Defendant by Doe-and to Doe's supervisor by Doe's manager-in response to their inquiries about Doe's ability to perform job-related functions.
21. The unlawful employment practices complained of in paragraphs 17 through 20 above were and are intentional.
5
Case 3:06-cv-00900 Document 1 Filed 09/20/2006 Page 5 of 8

22. The unlawful employment practices complained of in paragraphs 17 through 20 above were and are done with malice or with reckless indifference to the federally protected rights of John Doe.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant Employer, its officers, successors, assigns, and all persons in active concert or participation with it, from disclosing medical information about Defendant's employees. B. Order Defendant Employer to institute and carry out policies, practices, and programs which provide protection against disclosure of medical information about Defendant's employees, and which eradicate the effects of Defendant's past and present unlawful employment practices. C. Order Defendant Employer to make whole John Doe by providing appropriate backpay and compensatory damages for his other pecuniary losses with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices. D. Order Defendant Employer to make whole John Doe by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in paragraphs 14 -17 above, iRcludingemotional pain, suffering, inconvenience, humiliation, and loss of enjoyment of life, in amounts to be determined at trial.
6
Case 3:06-cv-00900 Document 1 Filed 09/20/2006 Page 6 of 8

E. Order Defendant Employer to pay John Doe punitive damages for its
malicious and reckless conduct described in paragraphs 14 - 17 above, in amounts to
be determined at trial. F. Grant such further relief as the Court deems necessary and proper in the
public interest. G. Award the Commission its costs of this action.
7 Case 3:06-cv-00900 Document 1 Filed 09/20/2006 Page 7 of 8

JURY TRIAL DEMAND The Commission demands a jury trial on all questions of fact raised by the Complaint.
Respectfully submitted, JAMES lEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel
~
FAmY -A~. WIiflL.IAIMJSrL k;
Acting Regional Attorney TN Bar No. 11730
/~ ~ ill
STEVEN W. DillS Trial Attorney TN Bar No. 11970
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 50 Vantage Way, Suite 202 Nashville, TN 37228 (615) 736-5784
8
Case 3:06-cv-00900 Document 1 Filed 09/20/2006 Page 8 of 8

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

and

)

)

JOHN DOE,

)

)

Plaintiff-Intervenor,

)

v.

)

)

FORD MOTOR CREDIT COMPANY,

)

)

Defendant.

)

Case No. 3:06-0900 Judge Trauger Magistrate Judge Griffin

COMPLAINT IN INTERVENTION

Comes now John Doe (“Plaintiff-Intervenor”) in this cause and, as his Complaint In

Intervention against Ford Motor Credit Company (“Ford” or “Defendant”), alleges as follows:

1. This Complaint in Intervention is an action for damages based upon the laws of

the United States, namely Title I of the Civil Rights Act of 1991, asserting unlawful disability

discrimination, as well as the laws of the State of Tennessee.

2. Plaintiff-Intervenor intervenes in this action pursuant to Fed. R. Civ. P. §24(a)(1)

and §2000 e-5(f)(1), Title VII.

3. At all relevant times, Defendant has been a covered entity under Section 102(2) of

the ADA, 42 U.S.C. §12111(2).

4. This Court has pendant and/or ancillary jurisdiction over Plaintiff-Intervenor’s

state law claims and also pursuant to 28 U.S.C. § 1332 based on the diversity of citizenship of

the parties. The amount in controversy exceeds the jurisdictional minimum of $75,000. Venue in

Case 3:06-cv-00900 Document 24 Filed 02/20/2007 Page 1 of 10

this Court is appropriate pursuant to 28 U.S.C. §1391, because the injuries took place within this district.
5. The Court has jurisdiction over this case pursuant to 28 U.S.C. §§451, 1331, 1337, 1343 and 1345.
6. This action is authorized and instituted pursuant to Section 107(a) of the ADA, 42 U.S.C. §12117(a), which incorporates by reference Sections 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§2000 e-5(f)(1) and (3), and §1977(A) of the Civil Rights Act of 1991, 42 U.S.C.§1981(a).
7. The unlawful employment practices alleged below were committed in Franklin, Tennessee, within the jurisdiction of the United States District Court for the Middle District of Tennessee, Nashville Division.
8. Plaintiff-Intervenor has met all conditions precedent to filing this action under Title VII.
9. Plaintiff-Intervenor timely filed his charges of disability discrimination with the EEOC within 300 days of the discriminatory treatment.
10. Plaintiff-Intervenor is a citizen and resident of the State of Tennessee. 11. Defendant is incorporated and has its principal place of business outside the State of Tennessee, but has been continuously doing business in the State of Tennessee and the City of Franklin. 12. At all relevant times, Defendant has been an employer within the meaning of Title VII.
2 Case 3:06-cv-00900 Document 24 Filed 02/20/2007 Page 2 of 10

General Allegations 13. In March 2001, John Doe became employed with Defendant as a regular full-time employee at its Franklin, Tennessee location. 14. In February 2002, John Doe was diagnosed with HIV, the treatment of which would require him to miss several hours of work each week. 15. To seek approval for this time off, John Doe approached his manager and, without disclosing the specific diagnosis, advised the manager that he would need time off from work for medical treatment. 16. The manager inquired as to the specific medical reason why John Doe would need this time off. Mr. Doe then provided the information at the insistence of the manager. The manager did not advise John Doe that he was entitled to keep this information to himself nor did he advise Mr. Doe that it was inappropriate for a manager to make this demand for information. 17. The manager then referred John Doe to Defendant’s medical department. The medical department required John Doe to provide information about his diagnosis and anticipated medical treatments, then approved him for intermittent leave under the Family and Medical Leave Act (“FMLA”). 18. The medical department advised John Doe to provide notes to the medical department after each time he took FMLA leave. 19. John Doe’s manager called John Doe into his office and advised Mr. Doe that his immediate supervisor was inquiring as to why he was taking FMLA leave. The manager told Mr. Doe that the immediate supervisor was upset about not knowing. 20. John Doe told his manager that he did not want his direct supervisor informed because he did not trust her to keep the information confidential.
3 Case 3:06-cv-00900 Document 24 Filed 02/20/2007 Page 3 of 10

21. Later, the manager again called John Doe into his office and communicated to him that the company considered it important for his immediate supervisor to know the precise medical reason for his FMLA leave. The manager reiterated to John Doe that the supervisor remained upset about not being fully informed.
22. The manager, acting in his official capacity as such, told John Doe that John Doe’s supervisor should be told abut his HIV status.
23. Again, John Doe told his manager that he did not want his supervisor to know about his HIV status.
24. Despite John Doe’s objections, the manager informed John Doe’s supervisor of John Doe’s HIV-positive status.
25. Over the course of the next two years, John Doe’s co-workers’ treatment of him changed. Whereas they had formerly been friendly and included him in daily group lunches, he was no longer welcome to go to lunch with them. None of his co-workers sat in chairs close to him, and co-workers who had previously been friendly to him would no longer speak to him.
26. In April 2005, John Doe was advised that his supervisor had told his co-workers that he had AIDS. This information was spread to employees throughout Defendant’s Franklin, Tennessee facility.
27. Also in April 2005, John Doe complained to Defendant that his supervisor had divulged his medical information to his co-workers. Defendant conducted an investigation into the complaint, which confirmed that Mr. Doe’s supervisor had indeed disseminated confidential information about his medical condition to other employees.
28. The realization that his supervisor had divulged his HIV status and that this information was why his co-workers shunned him, caused severe mental and emotional injuries,
4 Case 3:06-cv-00900 Document 24 Filed 02/20/2007 Page 4 of 10

compromised his physical well being, and visited financial losses upon him, including lost past and future earnings.
29. Defendant’s inquiry into and disclosure of John Doe’s medical information violated Sections 102(d)(3)(B), (d)(3)(C), and (d)(4)(C) of the ADA, 42 U.S.C. §12112(d)(3)(B), (d)(3)(C), and (d)(4)(C).
30. The unlawful employment practices complained of above were intentional. 31. The unlawful employment practices complained of above were done with malice and/or with reckless indifference to the federally protected rights of John Doe.
COUNT ONE Violation of the ADA 32. Plaintiff-Intervenor realleges, adopts and incorporates herein Paragraphs 1 through 31 above, as if fully set forth herein. 33. Defendants required John Doe to disclose his HIV status as a condition to obtaining FMLA leave. This information was provided to Defendant at the insistence of John Doe’s manager when he demanded this information as a precondition to referral of John Doe to a company nurse which Defendant required when an employee applied for FMLA leave. This information was to have been confidential, but was instead disseminated around the workplace. 34. These initial improprieties were compounded by multiple additional violations of confidentiality including, but not necessarily limited to: Defendant’s disclosure of John Doe’s HIV status to other supervisory personnel; general dissemination of private, confidential medical information against John Doe’s wishes and contrary to his express requests; and the keeping of documentation regarding John Doe’s medical condition, and treatments thereof, with employment records at his supervisor’s desk.
5 Case 3:06-cv-00900 Document 24 Filed 02/20/2007 Page 5 of 10

35. Defendant’s misconduct in this regard violated Sections 102(d)(3)(B), (d)(3)(C), and (d)(4)(C) of the ADA, 42 U.S.C. §§12112(d)(3)(B), (d)(3)(C), and (d)(4)(C).
COUNT TWO Violation of the Tennessee Human Rights Act
T.C.A. § 4-21-101, et seq. 36. Plaintiff-Intervenor realleges, adopts and incorporates herein Paragraphs 1 through 35 above, as if fully set forth herein. 37. Defendant, as an entity employing eight or more persons within the State, qualifies as an employer under the Tennessee Human Rights Act (“THRA”). 38. Defendant committed multiple discriminatory practices in violation of the THRA by coercing and/or permitting the disclosure of John Doe’s HIV status to his manager, his supervisor and his co-workers. 39. Defendant violated the Tennessee Human Rights Act, when John Doe’s manager required disclosure by John Doe of confidential medical information and informed Mr. Doe’s supervisor of Mr. Doe’s medical condition without Mr. Doe’s consent. 40. Defendant is liable for the manager’s actions based on agency liability and the doctrine of respondeat superior because the manager was acting in the course of his employment with Defendant and Defendant had a right to control his actions. 41. Defendant failed to protect John Doe’s interest, personal dignity and his right to freedom from humiliation, as required by the THRA, when Mr. Doe’s supervisor divulged Mr. Doe’s medical condition to Mr. Doe’s co-workers, causing them to shun Mr. Doe. 42. Defendant is liable for the supervisor’s actions based on agency liability and the doctrine of respondeat superior because the supervisor was acting in the course of her employment with Defendant and Defendant had a right to control her actions.
6 Case 3:06-cv-00900 Document 24 Filed 02/20/2007 Page 6 of 10

43. When Defendant offered John Doe an incomparable job position upon his return to work, Defendant was in direct violation of the THRA.
44. These and other acts of the Defendant in violation of the THRA have caused John Doe severe mental and emotional damages and financial losses.
45. John Doe is entitled to an award of attorneys’ fees and costs as a result of these violations.
COUNT THREE Invasion of Privacy 46. Plaintiff-Intervenor realleges, adopts and incorporates herein Paragraphs 1 through 45 above, as if fully set forth herein. 47. Defendant invaded John Doe’s privacy when Defendant insisted upon disclosure of John Doe’s medical condition and then caused John Doe’s HIV-positive status, an intensely private fact, to be published throughout Defendant’s factory and beyond. 48. John Doe had a right to have his private medical information kept confidential. 49. John Doe’s statutorily protected private medical information was statutorily protected under the Health Insurance Portability and Accountability Act (HIPAA). 50. The publication of private medical information in the face of a direct request for confidentiality, and particularly one’s HIV status, would be highly objectionable to an average person and amounted in this case to an egregious invasion of privacy which has visited great mental and emotional injury upon John Doe.
7 Case 3:06-cv-00900 Document 24 Filed 02/20/2007 Page 7 of 10

COUNT FOUR Intentional Infliction of Emotional Distress 51. Plaintiff-Intervenor realleges, adopts and incorporates herein Paragraphs 1 through 50 above, as if fully set forth herein. 52. Defendant committed the tort of intentional infliction of emotional distress when it required John Doe to divulge his HIV status and then caused this information to be widely disseminated among his co-workers and throughout Defendant’s factory. 53. Defendant, acting by and through its managerial and supervisory staff, intentionally caused John Doe’s HIV status to be disclosed to his co-workers. 54. Defendant’s employee knew that John Doe would be harmed by the intentional and reckless disclosure of this information. 55. The action of widely disseminating information regarding John Doe’s HIV status is so outrageous that it is not tolerated by civilized society. 56. These outrageous actions have resulted in serious mental injury and emotional distress to John Doe. 57. Defendant is liable for the manager’s actions and the supervisor’s actions based on agency liability and the doctrine of respondeat superior because the manager and supervisor were acting in the scope of their employment with Defendant and Defendant had a right to control their actions.
8 Case 3:06-cv-00900 Document 24 Filed 02/20/2007 Page 8 of 10

PRAYER FOR RELIEF WHEREFORE, Plaintiff-Intervenor John Doe prays for judgment against Defendant and respectfully seeks the following: (a) Judgment in his favor; (b) Compensatory damages in an amount sufficient to fairly and fully compensate him for his damages in accordance with the law; (c) Punitive damages in an amount to be determined at trial; (d) All reasonable costs, attorneys’ fees, and expenses of litigation; and (e) Such other and further relief as this Court deems just and proper.
Respectfully submitted, NEAL & HARWELL, PLC By: __s/ Philip N. Elbert
Philip N. Elbert, No. 9430 Lyndsay C. Smith, No. 24715 150 Fourth Avenue North Suite 2000 Nashville, TN 37219 (615) 244-1714 RUTHERFORD, DeMARCO & SIMONS By: /s Robert W. Rutherford Robert W. Rutherford, No. 002908 214 Second Avenue North Suite 400 Nashville, TN 37201-1647 (615) 256-6681 Attorneys for Plaintiff-Intervenor
9 Case 3:06-cv-00900 Document 24 Filed 02/20/2007 Page 9 of 10

CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been served by the Court’s electronic service system on the following counsel this the 10th day of January, 2007:
Keith D. Frazier, Esq., No. 12413 Ogletree, Deakins, Nash, Smoak & Stewart SunTrust Center 424 Church Street, Suite 800 Nashville, TN 37219 (615) 254-1900 James Lee, Deputy General Counsel Gwendolyn Young Reams, Associate General Counsel Faye A. Williams, Acting Regional Attorney Steven W. Dills, Trial Attorney Sally Ramsey, Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 50 Vantage Way, Suite 202 Nashville, TN 37228
/s Lyndsay C. Smith
10 Case 3:06-cv-00900 Document 24 Filed 02/20/2007 Page 10 of 10

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

and

)

)

JOHN DOE,

)

)

Plaintiff-Intervenor,

)

v.

)

)

FORD MOTOR CREDIT COMPANY,

)

)

Defendant.

)

Case No. 3:06-0900 Judge Trauger Magistrate Judge Griffin

AGREED ORDER OF DISMISSAL OF PLAINTIFF-INTERVENOR’S STATE CLAIMS

At the Plaintiff-Intervenor’s request and by agreement of all parties to this action, the

state claims asserted by John Doe in his Complaint in Intervention are to be dismissed.

IT IS SO ORDERED that the Plaintiff-Intervenor’s claims of Violation of the Tennessee

Human Rights Act, Invasion of Privacy and Intentional Infliction of Emotional Distress, as stated

in his Complaint in Intervention are dismissed.

_____________________________________ Aleta A. Trauger, District Judge

 
 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

and

)

)

JOHN DOE,

)

)

Plaintiff-Intervenor,

)

)

v.

)

)

FORD MOTOR CREDIT COMPANY,

)

)

Defendant/Counter-Plaintiff and

)

Counter-Plaintiff

)

Case No. 3:06-0900 Judge Trauger

MEMORANDUM

The defendant has filed a Motion for Summary Judgment (Docket No. 48), to which the

plaintiff and plaintiff-intervenor have responded (Docket Nos. 58, 62), and the defendant has

replied (Docket No. 68). For the reasons discussed herein, the defendant’s motion will be

denied.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff-intervenor John Doe began work for defendant Ford Motor Credit Company

(“FMCC”) in approximately June 2000, and became a full-time employee in March 2001.1 In

1Unless otherwise noted, the facts have been drawn from the plaintiff’s Complaint (Docket No. 1), the plaintiff-intervenor’s Complaint in Intervention (Docket No. 24), the plaintiff’s Memorandum in support of its Response to the defendant’s Motion for Summary Judgment (Docket No. 59), the plaintiff’s Response to the defendant’s Statement of Material Facts (Docket No. 60), the plaintiff’s Additional Statement of Material Facts (Docket No. 61),
1

early 2002, Mr. Doe was diagnosed with HIV. Following this diagnosis, Mr. Doe’s primary care
physician enrolled him in a double-blind study at the Vanderbilt Comprehensive Care Center,
requiring that Mr. Doe report to the Care Center for blood draws. The study required that Mr.
Doe have his blood drawn once a week for a number of months, once every two weeks for an
additional period of time, and then once every three weeks. Mr. Doe’s participation in this study
paid for his HIV medications.
In the early stages of the study, Mr. Doe was required to give blood at the Care Center
once a week, between Tuesday and Thursday2. Mr. Doe was wary of giving his direct
supervisor, Chandra Chisom, the reason for his absence on those days, because he believed Ms.
Chisom to be a gossip and feared that she would tell his coworkers that he was inflicted with
HIV. Accordingly, in early 2002, Mr. Doe approached manager Danny Dunson to ask for a
schedule accommodation, so that he could participate in the clinical study without negative
repercussions at work. Mr. Doe had been “written up” on February 14, 2002, for missing work
and the plaintiff-intervenor’s Response to the defendant’s Statement of Material Facts (Docket No. 63).
2In its Statement of Material Facts, the plaintiff alleges that “Participating in the study required Doe to go to the Center for blood draws every Tuesday and Thursday, which conflicted with his normal hours of work.” (Docket No. 61 at ¶ 3) The defendant disputes this allegation as inconsistent with the plaintiff’s admission that Mr. Doe was required to have blood drawn only once a week (Id. at ¶ 1), and with Mr. Doe’s deposition transcript. The defendant is correct. The plaintiff has provided no factual support for its allegation that Mr. Doe was required to give blood twice a week. In fact, when questioned on this subject at his deposition, Mr. Doe stated that “you went in for blood draws once a week for so many months,” before the blood draws actually decreased in frequency. (Doe Dep., Docket No. 64, Ex. 1 at p. 38) Because the blood draws could not be performed on Mondays or Fridays, Mr. Doe testified, “I would have to go down between Tuesday and Thursday for blood draws.” (Id. at p. 39) Mr. Doe did not testify that he had to have his blood drawn on both Tuesday and Thursday; rather, his testimony seems to foreclose that contention.
2

in order to attend medical appointments and so was concerned that he might be fired for taking
additional time off without explanation. Mr. Doe requested that he be able to work four
extended-hour days rather than the regular five-day schedule followed by the other employees.
Mr. Doe alleges that he first told Mr. Dunson that he would need the accommodation
because of a “medical condition,” without going further into specifics. (Docket No. 61 at ¶ 4)
Mr. Dunson demanded to know what the specific diagnosis was, stating, “I have to know why,
actually, to accommodate you when other people are coming and asking for accommodations
and I turn them down, why am I going to give you an accommodation?” (Id. at ¶ 6) Mr. Doe
replied that it was confidential and that there was a stigma attached. Mr. Dunson said, “In order
for me to accommodate your schedule, I need to know what’s going on.” (Id.) Mr. Doe told Mr.
Dunson that he had been diagnosed with HIV.3
Only after Mr. Doe had disclosed this information did Mr. Dunson refer him to Sue
3The defendant has alleged that these statements contradict an e-mail Mr. Doe sent to Connie Bond, an employee of FMCC, pursuant to FMCC’s own investigation. There is no contradiction. In the e-mail, the plaintiff-intervenor states, “I didn’t trust my direct supervisor Chandra Chisom with this information so I went to my COM Danny Dunson. I explained to him that this was highly confidential information; I told him about my diagnosis that I would need to go to the doctor a few times a week at first and it would gradually be less as the study program continued.” Although Mr. Doe does not, in this e-mail, recite the conversation between himself and Mr. Dunson, neither does he say that he volunteered his diagnosis without any questioning. This omission is quite understandable in light of the fact that the e-mail was sent pursuant to an investigation of Chandra Chisom, and not Danny Dunson. The exact contents of the earlier conversation between Mr. Doe and Mr. Dunson was simply not very relevant to the inquiry. Certainly, Mr. Doe was not required to list all facts relevant to this lawsuit in that e-mail. There is no contradiction here. Neither do the intake notes recorded by an employee of the EEOC contradict the plaintiff’s statements. The intake notes, which consist of fragments of sentences presumably recorded during or after a meeting between an EEOC employee of the plaintiff, simply do not detail the contents of Mr. Doe’s conversation with Mr. Dunson. Moreover, the notes cannot be taken for Mr. Doe’s own statements. Mr. Doe’s case cannot be limited to the contents of unsigned written statements recorded by someone else.
3

Geisen, an occupational health nurse, to discuss his rights under the Family Medical Leave Act
(“FMLA”). Ms. Geisen is not an employee of FMCC, but is instead an independent contractor.
Mr. Doe alleges that he did not even know that the FMLA existed, much less the parameters of
his rights under that statute, until Mr. Duson provided him with this information.4
Mr. Doe met with Ms. Geisen later that day. Ms. Geisen told him that he was not
required to answer any questions about his medical condition or divulge his medical information
to anyone but her. However, Mr. Doe alleges that Ms. Geisen did not, specifically, tell him what
to do if a manager or supervisor asked him about his FMLA leave. Ms. Geisen did tell Mr. Doe
that he was to give his medical records and FMLA requests directly to her and that she would
keep the records confidential. Ms. Geisen did keep those forms confidential.
Several weeks later, in March or April 2002, Mr. Dunson summoned Mr. Doe into his
office. Mr. Dunson told Mr. Doe that Chandra Chisom was giving him “a hard time” because he
would not tell her the specific reason for Mr. Doe’s absence from work. Mr. Doe said that he did
not want Ms. Chisom to know his diagnosis. Mr. Dunson told Mr. Doe that he had told Ms.
4The plaintiff alleges that FMCC had not previously provided Mr. Doe with any information about the FMLA or his rights under that statute and that it had not posted the notices in his work area. The defendant, however, alleges that it “takes extensive steps to ensure that all of its employees are aware of FMCC’s FMLA policy and the procedures involved in taking FMLA leave.” (Docket No. 69 at ¶ 7) FMCC alleges that it “conducted FMLA training during new hire orientation” and that its policies and procedures were posted online, as well as on the floor on which Mr. Doe worked. (Id. at ¶ 8). Ms. Chisom testified at her deposition that she did not remember whether the required notices were posted. (Id.) The parties agree, however, that FMCC’s FMLA policy requires employees to review the policy with their supervisors or managers as part of the process of the employees’ application for FMLA leave and that, subsequently, the employee must answer questions on the FMLA application regarding this conversation. (Id.) Further, the policy did not specifically mention Ms. Geisen’s role. (Id.) Therefore, even if an employee were to scrutinize the defendant’s FMLA policy, he or she would be led by that policy to consult with a manager or supervisor about obtaining leave and would not know to go to Ms. Geisen before having done so.
4

Chisom to “let it be.” (Docket No. 59 at p. 4) Nevertheless, after several more weeks passed, Mr. Dunson called Mr. Doe into his office again and told Mr. Doe that they needed to tell Ms. Chisom the reason why Mr. Doe was missing work. Mr. Doe said, once again, that he did not want her to know. Mr. Dunson said that he did not trust Ms. Chisom with the information because she “told other people everything she knows.” (Id.) Mr. Doe said that, according to Ms. Geisen, he did not have to tell anyone his medical information.
Nevertheless, Mr. Dunson picked up the phone and called Ms. Chisom, requesting that she come to his office. After she arrived, Mr. Dunson told Ms. Chisom that the information she was about to receive was confidential and that she could lose her job if she disclosed it to anyone else. Ms. Chisom said that she understood. Then Mr. Dunson told Ms. Chisom that Mr. Doe had HIV. Mr. Doe remained present in the room throughout this conversation.
At a later time, Ms. Chisom told Mr. Doe that, going forward, she would maintain a file containing his medical excuses at her desk. Mr. Doe complied, giving Ms. Chisom the excuses, although Ms. Geisen had told him that he was not required to give her the excuses. According to the plaintiff, as a practical matter, it is very difficult for an hourly employee to resist a demand for medical excuses from his immediate supervisor on the directive of an independent contractor industrial nurse. (Docket No. 60 at ¶ 28) Ms. Chisom kept this file until she was informed by superiors at FMCC that she was not permitted to maintain it, at which time she returned it to Mr. Doe.
Chandra Chisom told Monica Chisom and Tracie Johnson about Mr. Doe’s medical condition at some time between February 2002 and April 2005. (See M. Chisom Dep., Docket No. 73, Ex. Ex. 7 at p. 2; T. Johnson Dep., Docket No. 73, Ex. 6 at p. 2) Tracie Johnson herself
5

told one other person.5 The fact that Chandra Chisom informed Mr. Doe’s coworkers about his
medical condition was subsequently confirmed by the defendant’s own internal investigation.
Mr. Doe suffered shame, embarrassment, and depression as a result of this disclosure. He took a
leave of absence shortly after finding out about it, during which he sought medical treatment.
When he returned from the leave of absence, the defendant laid him off, but he was subsequently
rehired.
Mr. Doe contacted the defendant’s human resources department shortly after he
discovered that Ms. Chisom had divulged his medical information to his coworkers, informing
them of the disclosures. FMCC conducted an investigation and initially determined that Ms.
Chisom had not violated the non-disclosure rule. However, after Mr. Doe protested, FMCC
reinvestigated the matter, confirmed that Chandra Chisom had, in fact, violated company policy,
5The defendant seeks to bar these allegations, arguing that they amount to hearsay. See Sperle v. Mich, Dept. of Corr., 297 F.3d 483, 495 (6th Cir. 2002) (“A party opposing a motion for summary judgment cannot use hearsay or other inadmissable evidence to create a genuine issue of material fact.”) The statements are not hearsay. Hearsay is an out of court statement offered for the truth of the matter asserted. Fed. R. Evid. 801(c). An out of court statement offered to serve some other purpose is not hearsay and may be considered by the trier of fact. See Browne v. Signal Mountain Nursery, L.P., 286 F. Supp. 2d 904, 924 (E.D. Tenn. 2003). The statements at issue have not been offered to demonstrate the truth of the matter asserted. In fact, the matter asserted—that Mr. Doe has AIDS—is, according to both parties, not true. Mr. Doe has HIV and the disease has not yet progressed to AIDS. The statements have been offered not to demonstrate the truth of the underlying assertions but to demonstrate that Ms. Chisom divulged Mr. Doe’s medical information to those individuals. Martin v. City of Indianapolis, 192 F.3d 608, 613 (7th Cir. 1999) (holding that statements offered to show that the declarants said them were not hearsay); U.S. v. Khalil, 279 F.3d 358, 364 (6th Cir. 2002) (FBI agent’s testimony that he had “an awareness as to whether [the defendant] was engaging in drug trafficking,” based on statements of others, was not hearsay when used to explain the basis for the FBI’s investigation). Accordingly, the court may consider this evidence. However, the plaintiff has also proffered evidence that Chandra Chisom told other members of Mr. Doe’s team that he had AIDS, the basis of which is Mr. Doe’s own deposition testimony that he was told so. This testimony is hearsay, and cannot be considered by the court.
6

and terminated her. More than thirty days prior to the institution of this action, Mr. Doe filed a charge with
the Equal Employment Opportunity Commission (“EEOC”) alleging violations of the Americans with Disabilities Act (“ADA”) against FMCC. On September 20, 2006, the EEOC filed this action on behalf of Mr. Doe, alleging that FMCC had engaged in unlawful employment actions in violation of §§ 102(d)(3)(B), (d)(3)(C), and (d)(4)(C) of the ADA. 42 U.S.C. § 12112(d)(3)(B), (d)(3)(C), and (d)(4)(C). (Docket No. 1) On December 20, 2006, Mr. Doe filed a Motion to Intervene (Docket No. 15), which the court granted on January 16, 2007. (Docket No. 19). Mr. Doe, in his Complaint in Intervention, alleged violation of the same provisions of the ADA as were alleged in the Complaint filed by the EEOC, as well as several state law claims that were subsequently dismissed by agreed order on October 29, 2007. (Docket No. 56) On October 26, 2007, the defendant moved for summary judgment on the remaining claim under the ADA. (Docket No. 48)
ANALYSIS I. Summary Judgment Standard
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). To prevail, the moving party must demonstrate the absence of a genuine issue of material fact as to an essential element of the opposing party’s claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Logan v. Denny’s, Inc., 259 F.3d 558, 566 (6th Cir. 2001).
7

In determining whether the moving party has met its burden, the court must view the factual evidence and draw all reasonable inferences in the light most favorable to the nonmoving party. See Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Our function “is not to weigh the evidence and determine the truth of the matters asserted, ‘but to determine whether there is a genuine issue for trial.’” Little Caesar Enters., Inc. v. OPPCO, LLC, 219 F.3d 547, 551 (6th Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
If the nonmoving party fails to make a sufficient showing on an essential element of the case—provided that the nonmoving party bears the burden for that element—the moving party is entitled to summary judgment as a matter of law. See Williams v. Ford Motor Co., 187 F.3d 533, 537-38 (6th Cir. 1999). To avoid summary judgment, the nonmoving party “must go beyond the pleadings and come forward with specific facts to demonstrate that there is a genuine issue for trial.” Chao v. Hall Holding Co., 285 F.3d 415, 424 (6th Cir. 2002). And we must keep in mind that “[t]he mere existence of a scintilla of evidence in support of the [nonmoving party’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party].” Shah v. Racetrac Petroleum Co., 338 F.3d 557, 566 (6th Cir. 2003) (quoting Anderson, 477 U.S. at 252). If the evidence offered by the nonmoving party is “merely colorable,” or “not significantly probative,” or not enough to lead a fair-minded jury to find for the nonmoving party, the motion for summary judgment should be granted. Anderson, 477 U.S. at 249-52. Finally, “A genuine dispute between the parties on an issue of material fact must exist to render summary judgment inappropriate.” Hill v. White, 190 F.3d 427, 430 (6th Cir. 1999) (citing Anderson, 477 U.S. at 247-49). With this standard in mind, the court turns to
8

an analysis of the plaintiff’s claims. II. Unlawful Disclosure Under The ADA
The ADA strictly limits the type of inquiries an employer may make regarding its employees’ medical conditions as well as the uses to which this information may be put once it is gathered. Under the ADA, employers “shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). An employer “may conduct voluntary medical examinations” as well as “make inquiries into the ability of an employee to perform job related functions.” 42 U.S.C. § 12112(d)(4)(B). However, all information obtained under that provision is subject to the following restrictions:
[I]nformation obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that—(i) supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations; (ii) first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and (iii) government officials investigating compliance with this chapter shall be provided relevant information on request . . . . 42 U.S.C. § 12112(d)(3)(B); see also 29 C.F.R. §§ 160.13, 160.14. The plaintiff alleges that the defendant violated the above provision when his direct supervisors disseminated the plaintiff’s medical information to his coworkers. The information was not obtained pursuant to a medical examination. Therefore, in order to demonstrate an unlawful disclosure under the ADA, the plaintiff must show that the defendant obtained knowledge of Mr. Doe’s medical condition pursuant to an inquiry and that the information was
9

not protected by the defendant as required by § 12112(d)(3)(B).6
A. Whether The Disclosure Was In Response To An Inquiry
The defendant alleges that no inquiry occurred when Mr. Doe and Mr. Dunson discussed
his HIV status for the first time and, therefore, that the information was disclosed voluntarily.
Voluntarily disclosed information is not protected by the ADA. See Yoder v. Ingersoll-Rand
Co., 172 F.3d 51 (Table) (6th Cir. 1998); Cash v. Smith, 231 F.3d 1301, 1307 (11th Cir. 2001).
However, viewing the evidence in the light most favorable to the plaintiff, there remains an issue
for trial as to whether Mr. Dunson’s questioning of Mr. Doe amounted to an inquiry, and as to
6The defendant argues that the ADA does not protect medical information, but only medical records. Under this novel interpretation of the statutory language, an employer would be permitted to disseminate otherwise confidential medical information about its employees by word of mouth so long as it treated the forms on which the information was written as a “confidential medical record.” This reading of the statute is unsupported by express statutory language, case law, and common sense. Section 12112(d)(4)(C) states: “Information obtained under subparagraph (B) regarding the medical condition or history of any employee are subject to the requirements of subparagraphs (B) and (C) of paragraph (3).” 42 U.S.C. § 12112(d)(4)(C) (emphasis added). Under this express language, the provisions of § 12112(d)(3)(B), set forth above, restrict access to information. The statute requires that medical information be treated as a confidential record; this requirement is not satisfied be creating a confidential record and spreading the information through another means. See 29 C.F.R. Pt. 1530, App. § 1630.14(c) (“The information obtained in the course of such examination or inquiries is to be treated as a confidential medical record and may only be used in a manner not inconsistent with this part.”) Not surprisingly, the federal courts have treated § 12112(d) as protecting information, and not just the pieces of paper on which the information is written. For instance, in Doe v. United States Postal Service, 317 F.3d 339, 440 (D.C. Cir. 2003), the court found that evidence indicating that the plaintiff’s supervisor “told co-workers about his HIV status” was sufficient to survive summary judgment on the plaintiff’s ADA (and other) claims. The court held that “[s]ection 12112(d)’s confidentiality requirement . . . ensur[es] that the information disclosed pursuant to an employer’s medical inquiry spreads no farther than necessary to satisfy the legitimate needs of both employer and employee.” Id. at 442. It did not matter in Doe that the information had been spread verbally. Id., see also Fleming v. State University of New York, 502 F. Supp. 2d 324, 328 (E.D. N.Y. 2007) (“Such information may be divulged only to work supervisors where relevant to necessary restrictions or accommodations, to government officials investigating ADA compliance, or to first aid and safety personnel.”) (emphasis added). The ADA protects information, and not just records.
10

whether the resulting disclosure was voluntary. Doe v. United Postal Service, 317 F.3d 339, 341 (D.C. Cir. 2003), is closely analogous to
the case at hand. In Doe, an HIV-positive employee of the Postal Service disclosed his HIV status to superiors by completing and submitting an FMLA form, without which he could not obtain FMLA leave to cover his absences. Id. When the plaintiff returned to work, he discovered that his HIV status had “become common knowledge to his co-workers, many of whom commented to him about it.” Id. The plaintiff’s claim arose under the Rehabilitation Act, but the relevant provisions were identical to those that apply in the present case, under the ADA. Id. Contrasting Cash v. Smith, 231 F.3d at 1303-04, where the plaintiff had disclosed her medical condition to her boss “in confidence” but not pursuant to an FMLA request (which she made after her disclosure) nor in response to any specific questioning, and had, in addition, “freely discussed her illness with other . . . employees,” the court in Doe found that “[i]t was . . . the Postal Service, acting pursuant to [the FMLA’s] statutory authorization, not Doe, that initiated the inquiry into his medical condition by asking for this medical certification.” Doe, 317 F.3d at 442.
The court in Doe found that the plaintiff “revealed his medical diagnosis . . . only after the Service, through his direct supervisor, told him in writing that he would face disciplinary proceedings unless he completed either the FMLA form or a medical certificate explaining the nature of his illness.” Id. (internal quotations omitted). Accordingly, the court reasoned that, even if the plaintiff “can be said to have submitted the FMLA request voluntarily, . . . that hardly means he volunteered his medical diagnosis.” Id. Instead, the court found that conditioning the plaintiff’s eligibility for FMLA leave on submission of medical documentation constituted an
11

“inquiry” into that information. Id. Otherwise, employees could be forced “to choose between waiving their right to avoid being publicly identified as having a disability and exercising their statutory rights,” including their rights under the FMLA. Id. This result would be contrary to Congress’s stated purpose in enacting the ADA, which was “at least in part, to permit employers to inquire into employees’ medical conditions . . . while avoiding subjecting employees to the ‘blatant and subtle stigma’ that attaches to ‘being identified as disabled.’” Id. (quoting H.R.REP. No. 101-485, pt. 2, at 75 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 357-58); see also 29 C.F.R. pt. 1630, App. (“The ADA is . . . designed to remove barriers which prevent qualified individuals with disabilities from enjoying the same employment opportunities that are available to persons without disabilities.”).
The reasoning in Doe applies with equal force to the case at hand. Although Mr. Doe, in the present case, did not himself mention the FMLA during his conversation with Mr. Dunson, he was seeking permission for medical leave. Whether or not Mr. Doe uttered “FMLA,” his request fell under the purview of that statute: he was requesting medical leave. In Doe, it was not the mere invocation of the letters FMLA that created an “inquiry,” but rather, the conditioning of the plaintiff’s rights under that statute on his providing the medical information. In the present case, the plaintiff’s right to medical leave under the FMLA was no less conditioned on his response to Mr. Dunson’s questioning. Moreover, unlike the plaintiff in Doe—who merely filled out a form—the plaintiff-intervenor in this case was actually told by a supervisor that he must disclose the information at issue before he would be given an accommodation. Even after Mr. Doe stated that he did not want to give the specific reason, his supervisor pressed him. In no sense can Mr. Doe’s disclosure be said to be voluntary. When a
12

supervisor asks an employee for information, and will not take no for an answer, that is an inquiry.
Nor does it provide a basis for granting summary judgment that the defendant had enacted an official policy regarding FMLA confidentiality. Putting aside Mr. Doe’s allegations that he was unaware of any FMLA policy and that the policy was not posted in Mr. Doe’s workspace, the salient point here is that neither Mr. Dunson nor Ms. Chisom followed any policy of confidentiality. The defendant has cited no case law indicating that, under the ADA, a disclosure is voluntary provided that a policy says the employee may keep his medical information to himself, in the face of an actual practice to the contrary. In fact, this position would run counter to the purpose of the ADA “to permit employers to inquire into employees’ medical conditions . . . while avoiding subjecting employees to the ‘blatant and subtle stigma’ that attaches to ‘being identified as disabled.” Doe, 317 F.3d at 341. It gives no purchase that, on paper, Mr. Doe was not required to give Mr. Dunson this information if, in fact, Mr. Dunson told him that he could not obtain leave without divulging it.
Moreover, it appears that under this policy Mr. Doe would have been required to interact with a supervisor before obtaining FMLA leave.7 That is the course of action that Mr. Doe actually followed. Since, Mr. Doe’s supervisors demanded that he disclose what his particular medical diagnosis was, even if Mr. Doe had known about the policy, he still may have been put in the position of having to disclose his medical condition to his supervisors before obtaining FMLA leave. Under Doe, such a disclosure could not be termed “voluntary.” Doe, 317 F.3d at
7The Policy provides that, after the employee reviews his or her rights on “HR Online,” he or she must review the policy with a “supervisor/manager.” (Docket No. 64, Ex. 9 at p. 2) Next, the employee must fill out an online form, which includes a question related to the supervisor discussions, before FMLA leave can be obtained. (Id.)
13

341. Finally, it bears noting that Mr. Doe had already been “written up” for missing work for
medical purposes and could credibly fear disciplinary action for taking leave without pursuing his rights under the FMLA. As in Doe, but unlike Cash, the plaintiff-intervenor’s FMLA leave was de facto conditioned on disclosing his HIV status.8 According to the facts taken in a light most favorable to the plaintiff, Mr. Doe did not disclose his HIV status voluntarily, but rather in response to an inquiry by his employer.
B. Whether The Inquiry Was Job-Related The defendant alleges that the inquiry was not job-related and, therefore, no confidentiality requirement applies to it. On this issue, Doe is, once again, instructive. After finding that the plaintiff’s disclosure was in response to an inquiry and was not voluntary, the court also found that the FMLA form was related to “the ability of an employee to perform job related functions” under § 12112(d)(4)(B). Doe, 317 F.3d at 345. Whether or not an employee can show up for work is quite clearly a job-related question. Perhaps for that reason, the ADA lists, under its definition for a “reasonable accommodation,” “job restructuring, part-time or modified work schedules.” § 12111 “Definitions”; see also 29 C.F.R. § 1630.2; Ward v. Massachusetts Health Research Institute, Inc., 209 F.3d 29, 34 (1st Cir. 2000) (“The ADA explicitly states that ‘job restructuring’ and ‘part-time or modified work schedules’ are potential
8The defendant cites a multitude of cases in support of its argument that Mr. Doe’s disclosure was voluntary, and not in response to an inquiry. Those cases do involve voluntary disclosures and, for that reason, are not analogous to the case at hand. In none of the cases cited by the defendant was an employee actually told by a supervisor that he or she must divulge medical information in order to obtain a schedule accommodation. See, e.g., Anderson v. Arizona, 2007 WL 14623 at *8 (D. Ariz. 2007) (plaintiff’s disclosure was undisputedly voluntary).
14

reasonable accommodations.”). Since a “reasonable accommodation” analysis only comes into play if, due to disability, the employee cannot otherwise perform an essential job function, see Hendrick v. Western Reserve Care System, 355 F.3d 444, 457 (6th Cir. 2004), it stands to reason that those accommodations are themselves job-related. Perhaps for this reason, many federal courts have explicitly held that attendance at work is an essential job function. See, e.g., Brenneman v. MedCentral Health System, 366 F.3d 412, 420 (6th Cir. 2004) (“[R]egular attendance is an essential function of the Pharmacy Technician position.”); Pickens v. Soo Line Railroad Co., 264 F.3d 773, 777 (8th Cir. 2001) (“This court has consistently held that regular and reliable attendance is a necessary element of most jobs.”); Salmon v. Dade County School Board, 4 F. Supp. 2d. 1157, 1161 (S.D. Fla. 1998) (holding that “punctual attendance is an essential requirement” for a school guidance counselor); Rodriguez v. Loctite Puerto Rico, Inc., 967 F. Supp. 653, 661 (D. Puerto Rico, 1997) (“[A] basic function of any full time job is showing up for work.”).
It is quite clear that the plaintiff-intervenor’s request for a schedule accommodation was related to his job. Because Mr. Dunson conditioned that leave on Mr. Doe’s response to his inquiry, that inquiry was also job-related. In Sullivan v. River Valley School Dist., 197 F.3d 804, 813 (6th Cir. 1999), the Sixth Circuit held that an examination satisfies the “job-related” requirement of § 12112(2)(4)(A) when there is “evidence sufficient for a reasonable person to doubt whether an employee is capable of performing the job.” When Mr. Doe stated that he needed a schedule change, a reasonable person could have doubted whether he was capable of adhering to the work schedule. Accordingly, the inquiry was job-related and consistent with business necessity, and it falls under the rubric of § 12112(2)(4)(A). See EEOC v. Prevo’s
15

Family Market, Inc., 135 F.3d 1089, 1103 (noting that inquiries are job-related and serve a legitimate business purpose “if an employee requests an accommodation”).
It bears noting, in addition, that, were Dunson’s inquiry to be found unrelated to Mr. Doe’s job functions, it would have violated § 12112(2)(4)(A) of the ADA. See EEOC v. Prevo, 135 F.3d at 1094; Farmiloe v. Ford Motor Co., 277 F. Supp. 2d 778, 782 (N.D. Ohio 2002) (“[T]he ADA limits an employer’s ability to request unfounded examination to prevent ‘the unwanted exposure of the employee’s disability and the stigma it may carry.’”) (quoting Sullivan v. River Valley School Dist., 197 F.3d 804, 812 (6th Cir. 1999)). The ADA does not explicitly state that information obtained as a result of an illegal inquiry must be kept confidential. Instead, the statutory language first defines two narrow situations where medical information may be obtained from an employee—pursuant to “voluntary medical examinations” and “inquiries into the ability of an employee to perform job related functions,” 42 U.S.C. § 12112(d)(4)(B)—and then applies the confidentiality provision of § 12112(d)(3)(B) to all information so obtained. However, it would hardly fit within the stated purpose of the ADA—to “remove barriers which prevent qualified individuals with disabilities from enjoying the same employment opportunities that are available to persons without disabilities,” 29 C.F.R. pt. 1630, App.—if the statute gave cover to employers who did not keep employee medical information confidential on the grounds that the employers had no right to demand the information in the first place. Because the defendant’s inquiry in the case at hand was an inquiry “into the ability of an employee to perform a job related function,” however, the confidentiality provision directly applies, and this issue need not be resolved.
In its reply memorandum, the defendant argues that the inquiry was not “job-related”
16

because Mr. Doe, without obtaining leave, could still have made it to his medical appointments.
This argument is not convincing. The underlying merit of Mr. Doe’s request for medical leave is not at issue in this case.9 The issue is only whether Mr. Doe requested medical leave, and if Mr.
Dunson’s inquiry into his medical condition was in response to that request. It is undisputed that
the plaintiff-intervenor went to his supervisor because he was concerned about missing work and
that he requested an accommodation due to his illness, an accommodation that was ultimately
granted by the defendant. At the time, with the benefit of full scrutiny, the defendant found that
Mr. Doe’s medical condition did require his taking the leave; now the defendant disputes the
wisdom of that decision. However, whether or not it was a wise decision, it was still a decision
that was related to Mr. Doe’s medical condition. The rationale for the schedule accommodation
was that Mr. Doe had HIV and needed to participate in a study. It is the nature of the
defendant’s inquiry, and not the ultimate merits of Mr. Doe’s request for accommodation, that
controls this issue. Because Mr. Doe said that he needed the leave due to his medical condition
and, on that basis, Mr. Dunson asked Mr. Doe what his medical condition was, the inquiry falls
under § 12112(d)(4)(B), and the confidentiality requirement applies.
C. Whether There Was A “Tangible Injury”
Finally, the defendant points to language from the Eighth Circuit indicating that
9It is far from clear from the record that Mr. Doe could have made it to the Vanderbilt Clinic as required for participation in the study without obtaining leave. It is true that Mr. Doe only had to go to the clinic once per week, on Tuesday, Wednesday, or Thursday. According to the defendant, in any given week, one of those days would be a “late shift” day, on which the plaintiff-intervenor needed only to attend work from 12:00 noon until 9:00 p.m. Neither the plaintiff nor the plaintiff-intervenor have contradicted the defendant’s evidence in support of that contention. However, it is not clear whether Mr. Doe, himself, could choose which day to go to the clinic, and it is not clear at what time of day Mr. Doe needed to be there or for how long. It could be that, even on the late-shift day, Mr. Doe would not be able to make his appointment at the clinic without missing work.
17

violations of the ADA’s confidentiality requirements are not actionable unless they result in a
“tangible injury.” See Cossette v. Minnesota Power & Light, 188 F.3d 964, 970 (8th Cir. 1999)
(“[Plaintiff] must also establish that MP & L and Burton’s violation of the ADA caused some
sort of tangible injury.”); McPherson v. O’Reilley Automotive, Inc., 491 F.3d 726, 732 (8th Cir.
2007) (“[Plaintiff] must show . . . that the disclosed information was confidential and that he
suffered some kind of tangible injury as a result of the disclosure.”) Assuming that the Sixth
Circuit would adopt this requirement, the court finds that the plaintiff has met it. The plaintiff
has alleged—and the defendant has admitted—that Mr. Doe suffered shame, embarrassment, and
depression as a result of the disclosure of his HIV status to his coworkers.10 These are tangible
injuries.
In Cossette, the plaintiff alleged that, as a result of her manager’s disclosing to her
coworkers that she suffered from back problems and “perceived intellectual deficiencies,” her
coworkers had “treated her in a condescending and patronizing fashion.” Cossette, 188 F.3d at
10In addition, the defendant argues that Ms. Chisom was “acting outside of the scope of her employment” when she disclosed Mr. Doe’s medical information to his coworkers, citing no case law in support of this argument. The ADA does not state that a disclosure must be made pursuant to an employee’s official job duties in order for it to be actionable. Indeed, the court can imagine few occupations in which divulging the confidential medical information of one’s subordinate to other coworkers would be listed in the job description. The defendant is a private entity and is subject to traditional respondeat superior liability. See Roberts v. U.S., 191 Fed. Appx. 338, 343 (6th Cir. 2006) (“It is clear that under federal case law, an employee may engage in conduct that is not condoned by the employer—even in violation of the employer’s policies—and still be within the scope of his or her employment . . . [and] [u]nder Tennessee law, an employee can act within the scope of his employment even when committing wanton or willful torts against another.”) (internal quotations and citations omitted); see also Arbour v. Jenkins, 903 F.2d 416, 422 (6th Cir. 1990); Johnson v. Chapman, 327 F. Supp. 2d 895, 899 (E.D. Tenn. 2004) (“Plaintiff’s allegations that [the individual defendant] acted with vindictiveness and malice are not enough to overcome substitution where, even if true, [the employee’s] actions appear to have been taken within her authority as a federal employee during the course of her employment.”). The court cannot grant summary judgment on this basis.
18

971. The court held that this allegation “fell short of an adverse employment action” that would
establish a claim of discrimination under § 12112(a); however, the court did not hold that the
allegations necessarily fell short of the “tangible injury” requirement for a wrongful disclosure
claim under § 12112(d). Id. at 971-72. In fact, the court noted that “[t]he parties have not
briefed whether such treatment suffices to create a claim of illegal disclosure of medical
information” and ultimately reversed the district court’s grant of summary judgment on that
claim “so that this issue may first be considered by the district court.” Id.
Other courts have held that the “tangible injury” requirement applies to wrongful
disclosure claims; see Garrison v. Baker Hughes Oilfield Operations, Inc., 287 F.3d 955, 963
(10th Cir. 2002) (“[A] claimaint may recover compensatory damages for tangible injury legally
and proximately caused by violation of § 12112(d)(3).”) (internal quotations omitted); however,
they have not held that non-economic harms necessarily fail to meet that standard. Instead,
courts have held that this requirement is met whenever an articulable injury can be identified.
For instance, in O’Neal v. City of New Albany, 293 F.3d 998, 1007 (7th Cir. 2002), the Court of
Appeals for the Seventh Circuit held that a § 12112(d) claim had passed the “tangible injury”
requirement where the proposed injury was the plaintiff’s failure to be hired and yet, regardless of the medical examination, the plaintiff could not legally have been hired because of his age.11
In contrast, the court in Johnson v. Moundsvista, Inc., No. Civ. 01-915 DWF/AJB, 2002 WL
11In addition, the court in O’Neal noted only that the “tangible injury” requirement had been applied in prior cases involving plaintiffs without a disability. Id. at 1007 (“[C]ourts have required that a nondisabled plaintiff at least show some tangible injury-in-fact caused by the § 12112(d) violation”) (emphasis in original). In the case at hand, the plaintiff-intervenor is, in fact, disabled. See Bragdon v. Abbott, 524 U.S. 624, 637 (1998) (“HIV infection satisfies the statutory and regulatory definition of a physical impairment during every stage of the disease.”). Accordingly, this language could be taken as support for a finding that the “tangible injury” rule does not even apply to the case at hand.
19

2007833 at *5 (D. Minn. 2002), found that the “tangible injury” requirement had not been met because the plaintiff did not “allege that she was treated at all differently by her coworkers after the alleged disclosure.”
Neither the defendant nor the court has identified any case in which the “tangible injury” rule was applied to bar emotional or non-economic damages for claims arising from violations of § 12112(d)(3). In fact, the Sixth Circuit has long recognized non-economic harms as legitimate bases for recovery of compensatory damages. See, e.g., Thompson v. Office and Professional Employees International Union, AFL-CIO, 74 F.3d 1492, 1508 (6th Cir. 1996) (“Generally, this circuit allows damages for emotional distress to be awarded ‘upon a showing of intimidation, maritial problems, weight loss, loss of sleep, shock, or humiliation.’”) (quoting Holmes v. Donovan, 984 F.2d 732, 739 (6th Cir. 1993)); Memphis Cmy. Sch. Dist. v. Stachura, 477 U.S. 299, 307 (1986) (“[C]ompensatory damages may include not only out-of-pocket loss and other monetary harms, but also such injuries as impairment of reputation, personal humiliation, and mental anguish and suffering.”) (internal quotations and alterations omitted).
Perhaps for this reason, the Sixth Circuit and other circuits have upheld compensatory damages for emotional harm under different subsections of the ADA. See Knight v. The Metropolitan Government of Nashville and Davidson County, Tennessee, 136 Fed. Appx. 755, 762 (6th Cir. 2005) (upholding the district court’s failure to grant remittitur for an award of damages for emotional pain and mental anguish in an ADA case); Tramill v. United Parcel Service, 10 Fed. Appx. 250, 255 (6th Cir. 2001) (upholding the district court’s award of damages for emotional distress and humiliation in an ADA case against arguments that the damages should have been higher); EEOC v. Convergys Customer Management Group, Inc., 491 F.3d
20

790, 797 (8th Cir. 2007) (“A plaintiff may seek compensatory damages under the ADA for emotional distress.”).
In the case at hand, the defendant has admitted that the plaintiff suffered shame, embarrassment, and depression as a result of the disclosure of his medical condition to his coworkers. The plaintiff-intervenor has offered testimony to this fact, which is itself competent evidence of emotional distress. See id. (“While compensatory damages for emotional distress must be supported by competent evidence of genuine injury, a jury may award such damages based solely upon a plaintiff’s testimony.”). The fact that the plaintiff had to take a medical leave of absence shortly following the disclosure also supports his allegation of emotional distress. This evidence more than satisfies the plaintiff’s burden on summary judgment to demonstrate a “tangible injury.” Summary judgment cannot be granted on this ground.
CONCLUSION For the reasons stated herein, the defendant’s Motion for Summary Judgment will be denied. An appropriate order will enter.
_______________________________ ALETA A. TRAUGER United States District Judge
21

 
 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

and

)

)

JOHN DOE,

)

)

Plaintiff-Intervenor,

)

)

v.

)

)

FORD MOTOR CREDIT COMPANY,

)

)

Defendant/Counter-Plaintiff and

)

Counter-Plaintiff

)

Case No. 3:06-0900 Judge Trauger

ORDER

For the reasons expressed in the accompanying Memorandum, the defendant’s Motion

for Summary Judgment (Docket No. 48) is DENIED.

It is so ordered.

Enter this 14th day of January 2008.

ALETA A. TRAUGER United States District Judge

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

)

JOHN DOE,

)

)

Plaintiff-Intervenor

)

)

)

)

v.

)

)

FORD MOTOR CREDIT COMPANY,

)

)

Defendant.

)

CIVIL ACTION NO. 3:06-0900
JURY DEMAND
Judge Trauger Magistrate Judge Griffin

CONSENT DECREE
INTRODUCTION This action was instituted by Plaintiff Equal Employment Opportunity Commission ("the Commission") and Plaintiff-Intervenor John Doe against Defendant Ford Motor Credit Co. pursuant to Section 107(a) of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §12117(a), which incorporates by reference Sections 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§2000e-5(f)(1) and (3), and Section 102 of the Civil Rights Act of 1991,42 U .S.C. §1981(a). The Plaintiffs' Complaints alleged that Defendant Ford Motor Credit Company violated the ADA by failing to keep confidential medical information provided to Defendant by Doe in response to Defendant's inquiries about his ability to perform job-related functions, and

Case 3:06-cv-00900 Document 148 Filed 09/17/08 Page 1 of 8 PageID #: 1077

that Doe suffered mental and emotional injuries as a result of Defendant's failure to keep this information confidential.
Defendant maintains that the actions of its officials were proper and lawful in all regards. However, all parties to this action desire to avoid the additional expense and delay in the litigation of this case.
This Consent Decree, being entered with the consent of the parties for purposes of settlement, shall not constitute an adjudication on the merits of this lawsuit and shall not be construed as an admission by Defendant of any violation of Title VII or any executive order, law, rule or regulation dealing with or in connection with discrimination in employment.
This Consent Decree constitutes the complete and exclusive agreement between the Commission and Ford Motor Credit Company. No waiver, modification, or amendment of any provision of this Decree shall be effective unless made in writing. No representations or inducements to compromise this action have been made other than those recited or referenced in this Decree. In the event this proposed Consent Decree is not approved or does not become final, it shall not be admissible in evidence in any subsequent proceeding in this action.
The Court has reviewed the terms of the proposed Consent Decree in light of the applicable laws and regulations, the statements and representations of counsel for all parties, and hereby approves the Consent Decree.
It is hereby ORDERED, ADJUDGED AND DECREED: I. JURISDICTION
The United States District Court for the Middle District of Tennessee, Nashville Division, has jurisdiction over the parties and subject matter of this litigation.
2 Case 3:06-cv-00900 Document 148 Filed 09/17/08 Page 2 of 8 PageID #: 1078

II. SCOPE AND DURATION OF DECREE A. This Consent Decree resolves all issues and claims that were alleged or could have been alleged in the Commission's and Doe's Complaints in this cause or Charge of Discrimination No. 253-2005-02201 filed by John Doe with the Commission. This Consent Decree shall not be considered to be dispositive of any charge or issue now pending before any office of the Commission other than Charge of Discrimination No. 253-2005-02201. B. The provisions of this Consent Decree shall continue to be effective and binding upon the parties to this action for two years.
Ill. INJUNCTION PROVISIONS A. Defendant, its managers, officers, agents, employees, successors, and assigns are hereby enjoined from discriminating by failing to maintain the confidentiality of medical information provided to Defendant by its employees as required by the ADA. B. Defendant, its managers, officers, agents, employees, successors, and assigns are enjoined from retaliating against any individual because that individual is a beneficiary of this Decree, has filed a complaint, or has provided information, assistance, or participated in any other manner in this investigation or litigation.
IV. TRAINING Defendant shall retain an outside consultant to provide mandatory training in the workplace regarding the Americans with Disabilities Act of 1990 for its staff at its Franklin, Tennessee, facility, including all managers, supervisors, and any individuals
3
Case 3:06-cv-00900 Document 148 Filed 09/17/08 Page 3 of 8 PageID #: 1079

who may obtain, have access to, or be informed of medical information about employees at the facility.
(a) The training session will include at least two (2) hours of instruction. (b) The training will include the following topics: what constitutes employment discrimination in violation of Americans with Disabilities Act of 1990; how to prevent, identify and remedy disability discrimination; what medical information must be kept confidential under the Americans with Disabilities Act of 1990, what constitutes retaliation in violation of ADA; and, Defendant's policies against disclosing confidential medical information, disability discrimination, and retaliation, including procedures and responsibilities for reporting, investigating and remedying complaints about conduct an employee believes may constitute employment discrimination under the Americans with Disabilities Act of 1990. (c) The training will be conducted by the Center for Independent Living of Middle Tennessee within 180 days after entry of this Decree by the Clerk of the Court. (d) Within ten days of each training session, Defendant shall provide Steven W. Dills, Senior Trial Attorney, with the attendance sheet that includes the date, the printed names and the signatures of those in attendance at each session. Such training will be conducted annually for the duration of the Decree within 30 days of the anniversary of the entry of the Decree. Written confirmation of the annual training must be provided to EEOC within 50 days of the anniversary of the Decree.
4 Case 3:06-cv-00900 Document 148 Filed 09/17/08 Page 4 of 8 PageID #: 1080

V. NOTICE POSTING Defendant shall conspicuously post at its Franklin, Tennessee, facility the notice (posters) required to be posted pursuant to the Americans with Disabilities Act of 1990. Furthermore, Defendant shall conspicuously post the notice attached to this Decree as Appendix A at its Franklin, Tennessee facility for one year commencing within ten (1 0) days after entry of this Decree by the Court. Defendant shall confirm in writing to EEOC within 30 days of the entry of the Decree that the Notice has been posted by the deadline and specifically where it has been posted.
VI. INDIVIDUAL RELIEF Defendant shall pay John Doe $75.000.00 as compensatory damages for his mental and emotional injuries and attorney's fees. Within twenty days after entry of the Decree, Defendant shall deliver a check for this amount, less appropriate withholding for Federal taxes, payable to Neal and Harwell trust account, on behalf of John Doe, to the offices of Neal and Harwell, PLC, One Nashville Place, Ste. 2000, 150 Fourth Avenue North, Nashville, TN 37219.
VII. REPORTING A. Defendant will submit two reports to the Commission. The first report be submitted twelve months after the entry of the Decree and will describe any complaints of failure to maintain the confidentiality of medical information made to Defendant by employees or applicants for employment at its Franklin, Tennessee, call center during the time following the entry of the Decree. The report shall include the name of the complainant, the name of the alleged discriminator, a summary of the
5 Case 3:06-cv-00900 Document 148 Filed 09/17/08 Page 5 of 8 PageID #: 1081

17th

September

Case 3:06-cv-00900 Document 148 Filed 09/17/08 Page 6 of 8 PageID #: 1082

NOTICE

1. This Notice to all employees of Ford Motor Credit Co. is being posted as part of the remedy agreed to between Ford Motor Credit Co. and the Equal Employment Opportunity Commission in settlement of a complaint of employment discrimination filed by an employee.
2. Federal law (the Americans with Disabilities Act) prohibits discrimination against any employee because of the employee's physical or mental disability.
3. Ford Motor Credit Co. supports and will comply with such Federal law in all respects and also will refrain from taking any action against employees because they have exercised their rights under Federal law by filing charges with the Equal Employment Opportunity Commission and/or testifying, assisting or participating in any manner in any investigation, proceeding or hearing under the Americans with Disabilities Act.
4. The posting of this Notice by Ford Motor Credit Co. does not constitute an admission by Ford Motor Credit Co. of any violation of Federal law.
5. This Notice shall be posted by Ford Motor Credit Co. for one year.

~· SIGNED this L_day of

2008.

Ford Motor Credit Co.

6587094.1 (OGLETREE)

8 Case 3:06-cv-00900 Document 148 Filed 09/17/08 Page 7 of 8 PageID #: 1083

FOR DEFENDANT:
~A ~ 5&-~wr kliof_;:t. Ford Motor Credit Company 1/J ! "' 01 ]_J.•/1
AZIER, TN# 12413 Ogletre , Deakins, Nash, Smoak & Stewart, P.C. 424 Church Street, Ste. 800 Nashville, Tennessee 37219 (615) 254-1900
FOR PLAINTIFF-INTERVENOR

FOR THE COMMISSION:
RONALD S. COOPER General Counsel
JAMES L. LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel
~~~-s----
Regional Attorney TN Bar No. 11730 1407 Union Ave., Suite 901 Memphis, TN 38104 (901) 544-0088

LYNDSAY C. SMITH, 24715 KRISTEN V. DYER, TN# 23610 Neal & Harwell, PLC One Nashville Place, Ste. 2000 (615) 244-1714

~, L_
_:==:) DEIDRE SMITH
Supervisory Trial Attorney TN Bar No. 018499 1407 Union Ave., Ste. 901 Memphis, TN 38104 (901) 544-0140

;</;•ov'"'"

r?~ dJ;;M ~tJJA"

=R-:::O'::BC::E:=R-:::T-:-:W!:-."::R:-:-U-;::T::cH:=E:=R=F=o=R=D-=T, :;:-;i-#-;:-:::-2;:/;:-;:,/ STEVEN W. DILLS

Rutherford, Demarco & Simons 214 Second Avenue North, Ste. 400 Nashville, TN 37201-1647 (615) 256-6681

Trial Attorney TN Bar No. 11970 1407 Union Ave., Ste. 901 Memphis, TN 38104 (901) 544-0136

7 Case 3:06-cv-00900 Document 148 Filed 09/17/08 Page 8 of 8 PageID #: 1084

 
 CASE−CLOSED,GRIFFIN
U.S. District Court Middle District of Tennessee (Nashville) CIVIL DOCKET FOR CASE #: 3:06−cv−00900

Equal Employment Opportunity Commission v. Ford Motor Credit Company Assigned to: District Judge Aleta A. Trauger Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 09/20/2006 Date Terminated: 09/17/2008 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Equal Employment Opportunity Commission

represented by Deidre Smith Equal Employment Opportunity Commission 1407 Union Avenue Suite 621 Memphis, TN 38104 (901) 544−0116 Email: deidre.smith@eeoc.gov ATTORNEY TO BE NOTICED

Faye A. Williams Equal Employment Opportunity Commission (Memphis Office) 1407 Union Avenue Suite 900 Memphis, TN 38104 (901) 544−0088 Email: faye.williams@eeoc.gov ATTORNEY TO BE NOTICED

Lyndsay Smith Hyde McKellar Hyde, PLC 411 Broadway Suite 302 Nashville, TN 37203 (615) 866−9828 Fax: (615) 866−9863 Email: lhyde@mckellarhyde.com ATTORNEY TO BE NOTICED

Sally Ramsey Constangy, Brooks, Smith, & Prophete, LLP (Nashville Office) 401 Commerce Street Suite 1010 Nashville, TN 37219 (615) 320−5200 Fax: (615) 321−5891 Email: sramsey@constangy.com ATTORNEY TO BE NOTICED

Steven W. Dills Equal Employment Opportunity Commission 1407 Union Ave. Suite 901 Memphis, TN 38104 901−544−0136 Fax: 901−544−0111 ATTORNEY TO BE NOTICED

Case: 3:06-cv-900 As of: 06/07/2017 12:02 PM CDT 1 of 12

V. Defendant Ford Motor Credit Company

represented by Jennifer S. Rusie Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (Nashville) SunTrust Plaza 401 Commerce Street Suite 1200 Nashville, TN 37219 (615) 254−1900 Fax: (615) 254−1908 Email: jennifer.rusie@odnss.com ATTORNEY TO BE NOTICED
Keith D. Frazier Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (Nashville) SunTrust Plaza 401 Commerce Street Suite 1200 Nashville, TN 37219 (615) 254−1900 Email: keith.frazier@odnss.com ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff John Doe

represented by Kristen Vanderkooi Law Office of Kristen Vanderkooi P O Box 159273 Nashville, TN 37215 (615) 299−7857 Email: kristen.vanderkooi.law@comcast.net ATTORNEY TO BE NOTICED

Lyndsay Smith Hyde (See above for address) ATTORNEY TO BE NOTICED

Philip N. Elbert Neal & Harwell, PLC 1201 Demonbreun Street Suite 1000 Nashville, TN 37203 (615) 244−1713 Email: pelbert@nealharwell.com ATTORNEY TO BE NOTICED

Robert Wheeler Rutherford Rutherford & DeMarco 1312 Sixth Avenue North Nashville, TN 37208 (615) 256−6681 Email: robert@rwrutherford.com ATTORNEY TO BE NOTICED

Case: 3:06-cv-900

William David Bridgers Waller, Lansden, Dortch & Davis, LLP (Nashville) Nashville City Center 511 Union Street
As of: 06/07/2017 12:02 PM CDT 2 of 12

Suite 2700 Nashville, TN 37219 (615) 850−8529 Fax: (615) 244−6804 Email: david.bridgers@wallerlaw.com ATTORNEY TO BE NOTICED

V. Intervenor Defendant Ford Motor Credit Company

represented by Jennifer S. Rusie (See above for address)
Keith D. Frazier (See above for address) ATTORNEY TO BE NOTICED

Date Filed 09/20/2006 09/20/2006 09/20/2006 11/01/2006
11/09/2006
11/13/2006
11/20/2006 11/22/2006 11/28/2006 11/29/2006 11/29/2006 12/04/2006
12/04/2006
12/04/2006

# Docket Text
1 COMPLAINT against Ford Motor Credit Company , filed by Equal Employment Opportunity Commission. No summons issued.(eh) (Entered: 09/21/2006)
2 NOTICE from USDC Clerk regarding Corporate Disclosure Statement requirement (eh) (Entered: 09/21/2006)
3 NOTICE of Initial Case Management Conference set for Monday 11/20/2006 at 10:00 AM in Room 825 before District Judge Aleta A. Trauger. (eh) (Entered: 09/21/2006)
4 WAIVER OF SERVICE Returned Executed by Equal Employment Opportunity Commission. Ford Motor Credit Company waiver sent on 9/21/2006. (Dills, Steven) (Entered: 11/01/2006)
5 Joint MOTION to Continue Initial Case Management Conference by Equal Employment Opportunity Commission. (Attachments: # 1 Proposed Order Granting Motion to Continue)(Dills, Steven) (Entered: 11/09/2006)
6 ORDER granting 5 Joint MOTION to Continue Initial Case Management Conference filed by Equal Employment Opportunity Commission. Case Management Conference reset for 12/4/2006 at 10:15 AM in chambers of District Judge Aleta A. Trauger. Signed by Judge Aleta A. Trauger on 11/13/06. (hv) (Entered: 11/13/2006)
7 MOTION for Extension of Time to File Response to Complaint (Unopposed Motion) by Ford Motor Credit Company. (Frazier, Keith) (Entered: 11/20/2006)
8 ORDER granting 7 Motion for Extension of Time until 11/28/06 to File Answer to Complaint. Signed by Judge Aleta A. Trauger on 11/22/06. (hv) (Entered: 11/22/2006)
9 ANSWER to Complaint by Ford Motor Credit Company.(Frazier, Keith) (Entered: 11/28/2006)
10 CORPORATE DISCLOSURE STATEMENT filed by Equal Employment Opportunity Commission. (Frazier, Keith) (Entered: 11/29/2006)
11 PROPOSED CASE MANAGEMENT ORDER filed by all parties. (Frazier, Keith) (Entered: 11/29/2006)
12 Minute Entry for proceedings held before Judge Aleta A. Trauger : Case Management Conference held on 12/4/2006. Order to enter. (Court Reporter none.) (hv) (Entered: 12/04/2006)
13 INITIAL CASE MGT ORDER: Motions to Amend Pleadings due by 1/31/2007. Discovery due by 7/1/2007. Motions due by 9/2/2007, response ddl 30 days, reply ddl 14 days. Signed by Judge Aleta A. Trauger on 12/4/06. (hv) (Entered: 12/04/2006)
14 ORDER SETTING CASE FOR TRIAL: Jury Trial set for 2/12/2008 09:00 AM in Courtroom 873 before District Judge Aleta A. Trauger. Final Pretrial Conference set

Case: 3:06-cv-900 As of: 06/07/2017 12:02 PM CDT 3 of 12

12/20/2006 12/22/2006 01/05/2007
01/10/2007 01/16/2007 01/22/2007 02/13/2007
02/19/2007 02/20/2007 02/20/2007 02/28/2007 03/05/2007
03/14/2007 07/02/2007 07/05/2007 07/09/2007 07/10/2007

for 2/4/2008 01:30 PM in Judge Aleta A. Trauger's chambers. Proposed Pretrial Order due by 1/30/2008. Exhibit List due by 1/30/2008. Witness List due by 1/30/2008. Motions in limine due 1/22/08, response ddl 1/30/08. Signed by Judge Aleta A. Trauger on 12/4/06. (hv) (Entered: 12/04/2006)
15 MOTION to Intervene by Doe. (Attachments: # 1 Exhibit Proposed Complaint in Intervention)(Elbert, Philip) (Entered: 12/20/2006)
16 NOTICE by John Doe re 15 MOTION to Intervene of Service on Defendant Ford Motor Credit Corporation (Elbert, Philip) (Entered: 12/22/2006)
17 RESPONSE in Opposition re 15 MOTION to Intervene filed by Ford Motor Credit Company. (Attachments: # 1 Exhibit A − Separation Notice# 2 Appendix − EEOC v. West Company# 3 Appendix − EEOC v. Yellow Book# 4 Appendix − Holmes v. Boal# 5 Appendix − EEOC v. Victoria's Secret# 6 Appendix − Ceribelli v. Elghanayan# 7 Appendix − State Farm v. Holley# 8 Appendix − Trinity Universal Insurance v. Turner Funeral Home# 9 Appendix − Brooks v. Collinwood Church of God)(Frazier, Keith) (Entered: 01/05/2007)
18 MOTION for Leave to File a Reply Brief re 17 Response in Opposition to Motion, by John Doe. (Elbert, Philip) (Entered: 01/10/2007)
19 ORDER granting 18 Motion for Leave to file a reply . Pltf−Intervenor shall file his reply by 1/22/07. Signed by Judge Aleta A. Trauger on 1/16/07. (km, ) (Entered: 01/17/2007)
20 REPLY to Response to Motion re 15 MOTION to Intervene filed by John Doe. (Attachments: # 1 Appendix Unpublished Decisions)(Elbert, Philip) (Entered: 01/22/2007)
21 MEMORANDUM and ORDER granting 15 Motion to Intervene. If no revised complaint in intervention is filed by 2/16/07, the Clerk shall file the Complaint in Intervention attached to the Motion to Intervene 15 . Signed by Judge Aleta A. Trauger on 2/13/07. (km, ) (Entered: 02/13/2007)
22 MOTION for Extension of Time to Amend by John Doe. (Attachments: # 1 Exhibit Amended Complaint)(Smith, Lyndsay) (Entered: 02/19/2007)
23 ORDER granting 22 Motion for Extension of filing deadline . Clerk shall file the attached complaint. Signed by Judge Aleta A. Trauger on 2/20/07. (km, ) (Entered: 02/20/2007)
24 COMPLAINT IN INTERVENTION filed by John Doe against Ford Motor Credit.(km, ) (Entered: 02/20/2007)
25 MOTION for Extension of Time to File Expert Disclosures by John Doe. (Smith, Lyndsay) (Entered: 02/28/2007)
26 ORDER granting 25 Pltf−intervenor's Motion for Extension. The pltf−intervenor shall file his initial disclosures by 3/7/07. The pltf−intervenor shall file expert disclosures, if any, by 4/5/07. Signed by Judge Aleta A. Trauger on 3/5/07. (jb) (Entered: 03/05/2007)
27 ANSWER to Intervenor Complaint by Ford Motor Credit Company.(Frazier, Keith) (Entered: 03/14/2007)
28 Report of Parties Regarding Mediation Efforts by Equal Employment Opportunity Commission, John Doe, Ford Motor Credit Company, Ford Motor Credit Company(Smith, Lyndsay) (Entered: 07/02/2007)
Address added for Attys James Lee and Gwendolyn Young Reams per DE #28. (gi, ) (Entered: 07/05/2007)
29 Letter from deputy clerk to Attys James Lee and Gwendolyn Young Reams re Local Rule 83.01 requirements. (hv) (Entered: 07/09/2007)
CORRECTION re 29 Letter: Because Attys James Lee and Gwendolyn Young Reams are members of a US agency, no motion for pro hac vice is required. (hv) (Entered: 07/10/2007)

Case: 3:06-cv-900 As of: 06/07/2017 12:02 PM CDT 4 of 12

07/10/2007 07/10/2007 07/12/2007
09/12/2007
09/24/2007 09/24/2007 09/24/2007 09/24/2007 09/25/2007 09/25/2007
09/26/2007 09/27/2007 09/27/2007 09/27/2007 10/02/2007 10/02/2007 10/23/2007
10/25/2007

30 MOTION for Extension of Time to Complete Discovery by John Doe. (Dyer, Kristen) (Entered: 07/10/2007)
31 NOTICE of Appearance by Kristen V. Dyer on behalf of John Doe (Dyer, Kristen) (Entered: 07/10/2007)
32 ORDER granting 30 MOTION for Extension of Time to Complete Discovery filed by John Doe. Discovery ddl extended to 10/2/2007. Motions ddl extended to 10/26/2007, response ddl 11/16/07, reply ddl 11/27/07. Signed by Judge Aleta A. Trauger on 7/12/07. (hv) (Entered: 07/12/2007)
33 MOTION to Amend/Correct 24 Intervenor Complaint by John Doe. (Attachments: # 1 Exhibit 1 − Doe Depo Excerpts# 2 Exhibit 2 − Palmer Depo Excerpts# 3 Exhibit 3 − EEOC Charge Forms# 4 Proposed First Amended Complaint in Intervention)(Smith, Lyndsay) (Entered: 09/12/2007)
34 SUBPOENA issued to Scott Adams and returned executed on September 24, 2007 as to Scott Adams by John Doe (Dyer, Kristen) (Entered: 09/24/2007)
35 SUBPOENA issued to Dr. Bradley Bullock and returned executed on September 24, 2007 as to Dr. Bradley Bullock by John Doe (Dyer, Kristen) (Entered: 09/24/2007)
36 SUBPOENA issued to Dr. Reena Camoens and returned executed on September 24, 2007 as to Dr. Reena Camoens by John Doe (Dyer, Kristen) (Entered: 09/24/2007)
37 SUBPOENA issued to Dr. Wendy Mangialardi and returned executed on September 24, 2007 as to Dr. Wendy Mangialardi by John Doe (Dyer, Kristen) (Entered: 09/24/2007)
NOTE: Subpoenas (#34−37), whether issued or returned, should not be filed unless they are an exhibit to another document. (hv) (Entered: 09/25/2007)
38 RESPONSE in Opposition re 33 MOTION to Amend/Correct 24 Intervenor Complaint filed by Ford Motor Credit Company, Ford Motor Credit Company. (Attachments: # 1 Exhibit 1 − Relevant Excerpts from the Deposition of John Doe# 2 Unreported Case − Ward v. Wal−Mart Stores# 3 Unreported Case − Tremper v. Air Shields)(Frazier, Keith) (Entered: 09/25/2007)
39 MOTION for Leave to re 38 Response in Opposition to Motion, to File a Reply by John Doe. (Attachments: # 1 Reply to Memo in Opp to Motion for Leave# 2 Attachment 1# 3 Attachment 2)(Dyer, Kristen) (Entered: 09/26/2007)
NOTE TO FILER re Motion & Reply (#39): These documents are scanned documents; scanning should only be used for documents not created on your computer. These documents do not need to be re−filed. (hv) (Entered: 09/27/2007)
40 ORDER granting 39 Motion for Leave to File a Reply. Signed by Judge Aleta A. Trauger on 9/27/07. (jb) (Entered: 09/27/2007)
41 REPLY to 38 Defendant's Memorandum in Opposition to 33 Plaintiff−Intervenor's Motion for Leave to File First Amended Complaint filed by John Doe. (Attachments: (1) Exhibit − Case Opinion# 2 Exhibit − Case Opinion)(jb) (Entered: 09/27/2007)
42 Report of Parties Regarding Mediation Efforts by Equal Employment Opportunity Commission, John Doe, Ford Motor Credit Company(Dyer, Kristen) (Entered: 10/02/2007)
43 NOTICE of Appearance by William David Bridgers on behalf of John Doe (Bridgers, William) (Entered: 10/02/2007)
44 MEMORANDUM and ORDER: granting in part and denying in part 33 Motion for Leave to File Amended Complaint in Intervention 33 is Granted In Part and Denied In Part. Plaintiff−intervenor may file an amended complaint in intervention that withdraws his state tort claims, but that amended complaint may not include a failure to accommodate claim under ADA. Signed by Judge Aleta A. Trauger on 10/23/07. (dt) (Entered: 10/23/2007)
45 NOTICE of Appearance by Jennifer S. Rusie on behalf of Ford Motor Credit Company (Rusie, Jennifer) (Entered: 10/25/2007)

Case: 3:06-cv-900 As of: 06/07/2017 12:02 PM CDT 5 of 12

10/26/2007 46 MOTION to Amend/Correct 44 Order on Motion to Amend/Correct, by John Doe. (Dyer, Kristen) (Entered: 10/26/2007)

10/26/2007 47 NOTICE of Filing by John Doe (Attachments: # 1 Proposed Order Agreed Order of Dismissal)(Dyer, Kristen) (Entered: 10/26/2007)

10/26/2007 48 MOTION for Summary Judgment by Ford Motor Credit Company. (Frazier, Keith) (Entered: 10/26/2007)

10/26/2007

49 MEMORANDUM in Support of 48 MOTION for Summary Judgment filed by Ford Motor Credit Company. (Attachments: # 1 Unpublished Opinion − Harris v. Vescom# 2 Unpublished Opinion − Anderson v. Arizona# 3 Unpublished Opinion − EEOC v. Overnite)(Frazier, Keith) (Entered: 10/26/2007)

10/26/2007 50 STATEMENT of facts filed by Ford Motor Credit Company in support of 48 Motion for Summary Judgment. (Frazier, Keith) (Entered: 10/26/2007)

10/26/2007 51 AFFIDAVIT in Support re 48 MOTION for Summary Judgment Affidavit of Sue Geisen filed by Ford Motor Credit Company. (Frazier, Keith) (Entered: 10/26/2007)

10/26/2007

52 Consent MOTION to Seal (Unopposed Motion to File Exhibits Under Seal in Support of Motion for Summary Judgment) by Ford Motor Credit Company. (Frazier, Keith) (Entered: 10/26/2007)

10/26/2007 53 Sealed Document Tab Nos. 2, 7, & 8 of Record Appendix filed by Ford Motor Credit Company. (Frazier, Keith) (Entered: 10/26/2007)

10/26/2007

54 APPENDIX filed by Ford Motor Credit Company re 48 Motion for Summary Judgment. (Attachments: # 1 1 − Doe Deposition Excerpts# 2 3 − Chandra Chisom Deposition Excerpts# 3 4 − Monica Chisom Deposition Excerpts# 4 5 − Tracie Johnson Deposition Excerpts# 5 6 − Jeff Palmer Deposition Excerpts)(Frazier, Keith) (Entered: 10/26/2007)

10/29/2007 55 ORDER granting 52 Motion to Seal Exhibits in support of Motion for Summary Judgment. Signed by Judge Aleta A. Trauger on 10/29/07. (hv) (Entered: 10/30/2007)

10/29/2007 56 AGREED ORDER of Dismissal of pltf−intervenor John Doe's state claims. Signed by Judge Aleta A. Trauger on 10/29/07. (hv) (Entered: 10/30/2007)

10/29/2007

57 ORDER denying 46 Motion to Amend 10/23/07 Order. The Court declines to revisit this issue or to grant this motion, which simply reargues the same point already ruled upon. Signed by Judge Aleta A. Trauger on 10/29/07. (hv) (Entered: 10/30/2007)

11/15/2007 58 RESPONSE in Opposition re 48 MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. (Ramsey, Sally) (Entered: 11/15/2007)

11/15/2007

59 MEMORANDUM in Support of 58 Response in Opposition to Motion filed by Equal Employment Opportunity Commission. (Attachments: # 1 unpublished opinion Fisher v. Harvey pgs 1−3# 2 unpublished opinion Fisher v. Harvey pgs 4−6)(Ramsey, Sally) (Entered: 11/15/2007)

11/15/2007 60 RESPONSE filed by Equal Employment Opportunity Commission re 50 Statement of facts filed by Ford Motor Credit Company. (Ramsey, Sally) (Entered: 11/15/2007)

11/15/2007

61 STATEMENT of facts filed by Equal Employment Opportunity Commission in support of 58 Response in Opposition to Motion. (Ramsey, Sally) (Entered: 11/15/2007)

11/15/2007 62 RESPONSE in Opposition re 48 MOTION for Summary Judgment filed by John Doe. (Dyer, Kristen) (Entered: 11/15/2007)

11/15/2007

63 RESPONSE filed by John Doe re 50 Statement of facts filed by Ford Motor Credit Company. (Attachments: # 1 Exhibit Dr. Reena Camoens Dep pp 40−41)(Dyer, Kristen) (Entered: 11/15/2007)

11/15/2007

64 APPENDIX filed by Equal Employment Opportunity Commission re 58 Response in Opposition to Motion. (Attachments: # 1 Tab 1 − John Doe deposition# 2 Tab 1 − John Doe deposition pt 2# 3 Tab 1 − John Doe deposition pt 3# 4 Tab 1 − John Doe deposition pt 4# 5 Tab 1 − John Doe deposition pt 5# 6 Tab 2 − Jeff Palmer deposition# 7 Tab 3 − Chandra Chisom deposition# 8 Tab 4 − Defendant's response

Case: 3:06-cv-900 As of: 06/07/2017 12:02 PM CDT 6 of 12

dated September 28, 2005# 9 Tab 5 − Defendant's FMLA policy# 10 Tab 8 − unpublished opinion Butler v. Wal−Mart)(Ramsey, Sally) (Entered: 11/15/2007)

11/15/2007

65 Consent MOTION for Leave to File Document Under Seal Unopposed motion to file exhibits under seal in support of response in opposition to Defendant's motion for summary judgment by Equal Employment Opportunity Commission. (Ramsey, Sally) (Entered: 11/15/2007)

11/16/2007

66 Sealed Document Tabs 6 and 7 to Appendix to EEOC's Response and Memorandum in Opposition to Defendant's Motion for Summary Judgment filed by Equal Employment Opportunity Commission. (Ramsey, Sally) (Entered: 11/16/2007)

11/16/2007 67 ORDER granting 65 Motion for Leave to File Exhibits Under Seal. Signed by Judge Aleta A. Trauger on 11/16/07. (gi) (Entered: 11/16/2007)

11/27/2007

68 REPLY to Response to Motion re 48 MOTION for Summary Judgment filed by Ford Motor Credit Company. (Attachments: # 1 Slip Copy − Anderson v. Arizona# 2 Slip Copy − Cline v. BWXT−Y12# 3 Unpublished Opinion − Dube v. J.P. Morgan# 4 Slip Copy − Fisher v. Harvey# 5 Unpublished Opinion − Johnson v. Moundsvista# 6 Unpublished Opinion − Lemire v. Reitter)(Frazier, Keith) (Entered: 11/27/2007)

11/27/2007 69 RESPONSE filed by Ford Motor Credit Company re 61 Statement of facts filed by Equal Employment Opportunity Commission. (Frazier, Keith) (Entered: 11/27/2007)

11/27/2007

70 DECLARATION of Cindy Hardin filed by Ford Motor Credit Company re: 68 Reply to Response to Motion, 69 Response (Non−Motion). (Frazier, Keith) (Entered: 11/27/2007)

11/27/2007

71 MOTION to Seal (Motion to File Exhibits to Reply Memorandum in Support of Motion for Summary Judgment Under Seal) by Ford Motor Credit Company. (Frazier, Keith) (Entered: 11/27/2007)

11/27/2007 72 Sealed Document (Tab Nos. 4−6 to Record Appendix) filed by Ford Motor Credit Company. (Frazier, Keith) (Entered: 11/27/2007)

11/27/2007

73 APPENDIX filed by Ford Motor Credit Company re 68 Reply to Response to Motion, 69 Response (Non−Motion). (Attachments: # 1 Appendix 1 − Directive B−104# 2 Appendix 2 − Relevant Excerpts from Palmer Deposition# 3 Appendix 3 − Standards of Corporate Conduct# 4 Appendix 7 − Relevant Excerpts from Chandra Chisom Depo# 5 Appendix 8 − Relevant Excerpts from Doe Deposition# 6 Appendix 9 − Relevant Excerpts from Johnson Deposition# 7 Appendix 10 − Relevant Excerpts from Monica Chisom Depo# 8 Appendix 11 − Relevant Excerpts from Hardin Deposition)(Frazier, Keith) (Entered: 11/27/2007)

12/18/2007

74 ORDER The trial scheduled for 2/12/08 and the pretrial conference scheduled for 2/04/08 are continued. Signed by Judge Aleta A. Trauger on 12/18/07. (ab) (Entered: 12/18/2007)

01/14/2008 75 MEMORANDUM AND OPINION. Signed by Judge Aleta A. Trauger on 1/14/08. (gi) (Entered: 01/14/2008)

01/14/2008

76 ORDER denying 48 Motion for Summary Judgment for reasons expressed in the accompanying memorandum. Signed by Judge Aleta A. Trauger on 1/14/08. (gi) (Entered: 01/14/2008)

01/16/2008 77 NOTICE of Appearance by Deidre Smith on behalf of Equal Employment Opportunity Commission (Smith, Deidre) (Entered: 01/16/2008)

01/18/2008

78 ORDER RESETTING JURY TRIAL Proposed Pretrial Order due by 5/13/2008; Final Pretrial Conference set for 5/16/2008 01:30 PM in Room 825 before District Judge Aleta A. Trauger;Jury Trial set for 5/20/2008 09:00 AM in Courtroom 873 before District Judge Aleta A. Trauger. Signed by Judge Aleta A. Trauger on 01/18/08. (ab) (Entered: 01/18/2008)

01/31/2008 79 Joint MOTION for Settlement Conference by Ford Motor Credit Company. (Frazier, Keith) (Entered: 01/31/2008)

02/05/2008 80 ORDER Granting 79 Joint MOTION for Settlement Conference. It is hereby ordered that this case is referred to Magistrate Judge Joe Brown for a judicial settlement

Case: 3:06-cv-900 As of: 06/07/2017 12:02 PM CDT 7 of 12

02/11/2008 02/14/2008
03/31/2008
05/02/2008
05/02/2008 05/02/2008 05/02/2008 05/02/2008 05/02/2008 05/02/2008 05/02/2008 05/02/2008 05/02/2008 05/02/2008

conference, to be scheduled at his convenience and the convenience of the parties. Signed by Judge Aleta A. Trauger on 02/05/08. (ab) (Entered: 02/05/2008)
81 ORDER A telephone Conference to discuss choosing a settlement conference date has been set for 2/13/2008 02:00 PM with Magistrate Judge Joe Brown. The call will be initiated by Magistrate Judge Brown's office. Signed by Judge Joe Brown on 02/11/08. (ab) (Entered: 02/11/2008)
82 ORDER A Settlement Conference is set for 3/24/2008 09:30 AM in Courtroom 783 before Magistrate Judge Joe Brown. The Magistrate Judge is in the process of changing office locations and the parties should check with Magistrate Judge's office prior to the hearing to determine the exact room that will be used. See Order for complete instructions for the conference. Signed by Judge Joe Brown on 02/14/08. (ab) (Entered: 02/14/2008)
83 ORDER At the settlement conference, the parties bargained but a resolution could not be reached. The parties are advised that the Magistrate Judge stands ready to assist should the parties wish to continue negotiations. There does not appear anything further for the Magistrate Judge to do, the Clerk is directed to return the file to the District Judge as the case is now set for trial in May. Signed by Magistrate Judge Joe Brown on 03/31/08. (ab) Modified text on 3/31/2008 (ab). (Entered: 03/31/2008)
84 First MOTION in Limine by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Attachment 1 −(SEALED) Bates # EEOC 00065−66, # 2 Exhibit Attachment 2 −(SEALED) Bates # EEOC 00059−64, # 3 Exhibit Attachment 3 −(SEALED) Bates # EEOC 00023, # 4 Exhibit Attachment 4 −(SEALED) Bates # EEOC 00019−20, # 5 Exhibit Attachment 6 − Unreported Case − Cruz v. Aramark, # 6 Exhibit Attachment 7 − Unreported Case − Pena v. Stewart Title Co., # 7 Exhibit Attachment 8 − Unreported Case − Wells v. XPEDX)(Dills, Steven) Exhibits placed under Seal by Clerk's Office pending Ruling on Motion to File Documents under Seal. Modified text on 5/2/2008 (ab). (Entered: 05/02/2008)
85 MOTION in Limine to Preclude the Introduction of the EEOC's Determination Letter by Ford Motor Credit Company. (Frazier, Keith) (Entered: 05/02/2008)
86 MEMORANDUM in Support of 84 First MOTION in Limine filed by Equal Employment Opportunity Commission. (Dills, Steven) (Entered: 05/02/2008)
87 MEMORANDUM in Support of 85 MOTION in Limine to Preclude the Introduction of the EEOC's Determination Letter filed by Ford Motor Credit Company. (Attachments: # 1 Unpublished Case − Ricker v. Food Lion)(Frazier, Keith) (Entered: 05/02/2008)
88 Second MOTION in Limine by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Attachment 5 −(SEALED) Bates # DEF 00032)(Dills, Steven)Exhbit placed under seal by Clerk's office pending ruling on Motion to file documents under Seal. Modified text on 5/2/2008 (ab). (Entered: 05/02/2008)
89 MOTION in Limine to Preclude Doe's Hearsay Testimony About His Coworkers' Knowledge by Ford Motor Credit Company. (Frazier, Keith) (Entered: 05/02/2008)
90 MEMORANDUM in Support of 88 Second MOTION in Limine filed by Equal Employment Opportunity Commission. (Dills, Steven) (Entered: 05/02/2008)
91 MEMORANDUM in Support of 89 MOTION in Limine to Preclude Doe's Hearsay Testimony About His Coworkers' Knowledge filed by Ford Motor Credit Company. (Attachments: # 1 Relevant Excerpts from John Doe Deposition)(Frazier, Keith) (Entered: 05/02/2008)
92 MOTION in Limine to Preclude Evidence Regarding a Failure to Promote Doe by Ford Motor Credit Company. (Frazier, Keith) (Entered: 05/02/2008)
93 MEMORANDUM in Support of 92 MOTION in Limine to Preclude Evidence Regarding a Failure to Promote Doe filed by Ford Motor Credit Company. (Frazier, Keith) (Entered: 05/02/2008)
94 First MOTION in Limine by John Doe. (Attachments: # 1 Exhibit Dep. Excerpt, # 2 Exhibit Dep. Excerpt)(Dyer, Kristen) (Entered: 05/02/2008)

Case: 3:06-cv-900 As of: 06/07/2017 12:02 PM CDT 8 of 12

05/02/2008 05/02/2008 05/05/2008
05/05/2008 05/05/2008 05/05/2008
05/06/2008 05/08/2008 05/08/2008 05/19/2008
07/23/2008 07/31/2008 07/31/2008 08/01/2008 08/01/2008 08/01/2008 08/01/2008 08/01/2008

95 Second MOTION in Limine by John Doe. (Attachments: # 1 Exhibit, # 2 Exhibit)(Dyer, Kristen) (Entered: 05/02/2008)
96 Third MOTION in Limine by John Doe. (Attachments: # 1 Exhibit)(Dyer, Kristen) (Entered: 05/02/2008)
Note to Filer re DE# 86, 88, 90 : Pursuant to court policy & procedure, Certificates of Service must include the names and full addresses for all persons served (whether served electronically or by other means), what was served, method of service and date of service (see Local Rule 5.01). Please FILE a conformed Certificate of Service for these documents. (ab) (Entered: 05/05/2008)
97 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission to correct deficient Certificates filed in Documents 84, 86, 88, and 90 (Dills, Steven) (Entered: 05/05/2008)
98 MOTION to file Motions in Limine Exhibits under Seal re 84 First MOTION in Limine, 88 Second MOTION in Limine by Equal Employment Opportunity Commission. (Dills, Steven) (Entered: 05/05/2008)
99 ORDER The Court finds it necessary to continue the trial scheduled to begin on 05/20/08. It is therefore ORDERED that the pretrial conference scheduled for 05/16/08 and the trial scheduled for 05/20/08 are CONTINUED, to reset in a telephone conference to be held within the next 10 days. Signed by District Judge Aleta A. Trauger on 05/05/08. (ab) (Entered: 05/05/2008)
100 ORDER granting 98 Motion to File Exhibits Under Seal. Signed by District Judge Aleta A. Trauger on 05/06/08. (ab) (Entered: 05/06/2008)
101 ORDER A Telephone Conference is set for 5/16/2008 04:00 PM before District Judge Aleta A. Trauger. Chambers will place the conference call. Signed by District Judge Aleta A. Trauger on 05/08/08. (ab) (Entered: 05/08/2008)
102 Joint MOTION for Order Holding Deadlines in Abeyance by Ford Motor Credit Company. (Frazier, Keith) (Entered: 05/08/2008)
103 ORDER RESETTING JURY TRIAL Jury Trial set for 8/19/2008 09:00 AM in Courtroom 873 before District Judge Aleta A. Trauger; Final Pretrial Conference set for 8/15/2008 01:30 PM in Chambers 825 before District Judge Aleta A. Trauger. Proposed Pretrial Order due by 8/12/2008; Motions in limine due by 08/01/08. Signed by District Judge Aleta A. Trauger on 05/19/08. (ab) (Entered: 05/19/2008)
104 ORDER granting 71 Motion to Seal Exhibits. Signed by District Judge Aleta A. Trauger on 7/23/08. (gi) (Entered: 07/23/2008)
105 MOTION for Leave to File Document Under Seal Motion for Individualized Voir Dire by Court by Equal Employment Opportunity Commission, John Doe. (Smith, Lyndsay) (Entered: 07/31/2008)
106 Sealed Document Motion for Individualized Voir Dire by Court filed by Equal Employment Opportunity Commission, John Doe. (Attachments: # 1 Exhibit A)(Smith, Lyndsay) (Entered: 07/31/2008)
107 ORDER: Granting 105 Motion for Leave to File Document Under Seal. Signed by District Judge Aleta A. Trauger on 08/01/08. (ab) (Entered: 08/01/2008)
108 Fourth MOTION in Limine by John Doe. (Smith, Lyndsay) (Entered: 08/01/2008)
109 MOTION in Limine to Preclude the Introduction of Photographs of Doe's Children by Ford Motor Credit Company. (Frazier, Keith) (Entered: 08/01/2008)
110 MEMORANDUM in Support of 109 MOTION in Limine to Preclude the Introduction of Photographs of Doe's Children filed by Ford Motor Credit Company. (Frazier, Keith) (Entered: 08/01/2008)
111 MOTION in Limine to Preclude the Introduction of Information Related to Chandra Chisom's EEOC Charge by Ford Motor Credit Company. (Frazier, Keith) (Entered: 08/01/2008)

Case: 3:06-cv-900 As of: 06/07/2017 12:02 PM CDT 9 of 12

08/01/2008 08/01/2008 08/01/2008 08/01/2008 08/01/2008 08/01/2008 08/01/2008 08/01/2008 08/01/2008
08/01/2008 08/01/2008
08/04/2008
08/12/2008 08/12/2008 08/12/2008 08/12/2008 08/12/2008

112 MEMORANDUM in Support of 111 MOTION in Limine to Preclude the Introduction of Information Related to Chandra Chisom's EEOC Charge filed by Ford Motor Credit Company. (Frazier, Keith) (Entered: 08/01/2008)
113 MOTION in Limine to Preclude the Introduction of Medical Records Not Previously Provided by Ford Motor Credit Company. (Frazier, Keith) (Entered: 08/01/2008)
114 MEMORANDUM in Support of 113 MOTION in Limine to Preclude the Introduction of Medical Records Not Previously Provided filed by Ford Motor Credit Company. (Frazier, Keith) (Entered: 08/01/2008)
115 Amended MOTION in Limine to Preclude the Introduction of the EEOC's Determination Letter by Ford Motor Credit Company. (Frazier, Keith) (Entered: 08/01/2008)
116 MEMORANDUM in Support of 115 Amended MOTION in Limine to Preclude the Introduction of the EEOC's Determination Letter filed by Ford Motor Credit Company. (Frazier, Keith) (Entered: 08/01/2008)
117 Amended MOTION in Limine to Preclude Evidence Regarding a Failure to Promote Doe by Ford Motor Credit Company. (Frazier, Keith) (Entered: 08/01/2008)
118 MEMORANDUM in Support of 117 Amended MOTION in Limine to Preclude Evidence Regarding a Failure to Promote Doe filed by Ford Motor Credit Company. (Frazier, Keith) (Entered: 08/01/2008)
119 MOTION in Limine to Preclude Doe's Testimony About His Coworkers' Alleged Knowledge of His Condition by Ford Motor Credit Company. (Frazier, Keith) (Entered: 08/01/2008)
120 MEMORANDUM in Support of 119 MOTION in Limine to Preclude Doe's Testimony About His Coworkers' Alleged Knowledge of His Condition filed by Ford Motor Credit Company. (Attachments: # 1 Relevant Excerpts from Doe Deposition)(Frazier, Keith) (Entered: 08/01/2008)
121 Amended MOTION in Limine to Preclude Doe's Hearsay Testimony About His Coworkers' Knowledge by Ford Motor Credit Company. (Frazier, Keith) (Entered: 08/01/2008)
122 MEMORANDUM in Support of 121 Amended MOTION in Limine to Preclude Doe's Hearsay Testimony About His Coworkers' Knowledge filed by Ford Motor Credit Company. (Attachments: # 1 Relevant Excerpts from Doe Deposition)(Frazier, Keith)(Exhibit not redacted, placed under seal at atty request) Modified text on 8/4/2008 (ab). (Entered: 08/01/2008)
123 RESPONSE in Opposition re 111 MOTION in Limine to Preclude the Introduction of Information Related to Chandra Chisom's EEOC Charge filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit No 1 − Bond letter dated 9−28−05)(Dills, Steven) (Entered: 08/04/2008)
124 ORDER denying 102 Joint Motion for Holding Deadlines in Abeyance. Signed by District Judge Aleta A. Trauger on 08/12/08. (ab) (Entered: 08/12/2008)
125 RESPONSE in Opposition re 119 MOTION in Limine to Preclude Doe's Testimony About His Coworkers' Alleged Knowledge of His Condition filed by John Doe. (Vanderkooi, Kristen) (Entered: 08/12/2008)
126 RESPONSE in Opposition re 117 Amended MOTION in Limine to Preclude Evidence Regarding a Failure to Promote Doe filed by John Doe. (Vanderkooi, Kristen) (Entered: 08/12/2008)
127 RESPONSE in Opposition re 109 MOTION in Limine to Preclude the Introduction of Photographs of Doe's Children filed by John Doe. (Vanderkooi, Kristen) (Entered: 08/12/2008)
128 RESPONSE to Motion re 113 MOTION in Limine to Preclude the Introduction of Medical Records Not Previously Provided filed by John Doe. (Vanderkooi, Kristen) (Entered: 08/12/2008)

Case: 3:06-cv-900 As of: 06/07/2017 12:02 PM CDT 10 of 12

08/12/2008 08/12/2008 08/12/2008 08/12/2008
08/12/2008 08/12/2008 08/12/2008 08/12/2008
08/12/2008 08/12/2008 08/12/2008 08/12/2008 08/13/2008
08/13/2008 08/15/2008
09/05/2008 09/08/2008 09/16/2008

129 Witness List & Exhibit Lists by John Doe. (Vanderkooi, Kristen) (Entered: 08/12/2008)
130 OBJECTIONS to Plaintiff's and Plaintiff−Intervenor's Motion for Individualized Voir Dire by the Court filed by Ford Motor Credit Company re 106 Sealed Document. (Frazier, Keith) (Entered: 08/12/2008)
131 RESPONSE in Opposition re 84 First MOTION in Limine (Objection to EEOC's First Motion in Limine Regarding the EEOC's Investigative File) filed by Ford Motor Credit Company. (Frazier, Keith) (Entered: 08/12/2008)
132 RESPONSE in Opposition re 94 First MOTION in Limine (Objection to Doe's MIL One to Preclude Evidence Regarding Doe's Medical Records) filed by Ford Motor Credit Company. (Attachments: # 1 Relevant Excerpts from Adams Deposition)(Frazier, Keith) (Entered: 08/12/2008)
133 AMENDED DOCUMENT by John Doe. Amendment to 128 Response to Motion re: MIL to Preclude Intro of Med Recs not previously provided by John Doe. (Vanderkooi, Kristen) (Entered: 08/12/2008)
134 RESPONSE in Opposition re 95 Second MOTION in Limine (Objection to Doe's MIL Two to Preclude Evidence Regarding Doe's MySpace Page) filed by Ford Motor Credit Company. (Frazier, Keith) (Entered: 08/12/2008)
135 RESPONSE in Opposition re 96 Third MOTION in Limine (Objection to Doe's MIL Three to Preclude Evidence Regarding Doe's Employee History Report) filed by Ford Motor Credit Company. (Frazier, Keith) (Entered: 08/12/2008)
136 RESPONSE in Opposition re 108 Fourth MOTION in Limine (Objection to Doe's MIL Four to Preclude Evidence Regarding Doe's Attendance Records) filed by Ford Motor Credit Company. (Attachments: # 1 Relevant Excerpts from Doe Deposition)(Frazier, Keith) (Entered: 08/12/2008)
137 Witness List by Ford Motor Credit Company. (Frazier, Keith) (Entered: 08/12/2008)
138 Exhibit List by Ford Motor Credit Company.. (Frazier, Keith) (Entered: 08/12/2008)
139 Proposed Pretrial Order by all parties. (Vanderkooi, Kristen) (Entered: 08/12/2008)
140 STIPULATION by Equal Employment Opportunity Commission, John Doe, Ford Motor Credit Company. (Vanderkooi, Kristen) (Entered: 08/12/2008)
141 ORDER: In connection with the Defendants 113 Motion In Limine to Preclude the Introduction of Medical Records Not Previously Provided to FMCC, it is ORDERED that the defendant shall immediately file under seal the two Bates−numbered pages in question. In addition, the parties should bring to the pretrial conference, if feasible, the original document production, supplementation, and any other relevant evidence needed by the court to make adetermination as to whether, indeed, these two pages were not timely provided to the defendant. Signed by District Judge Aleta A. Trauger on 08/13/08. (ab) (Entered: 08/13/2008)
142 Sealed Document Bates−numbered pages referenced in Document No. 113 filed by Ford Motor Credit Company. (Frazier, Keith) (Entered: 08/13/2008)
143 ORDER: The parties have notified court personnel that this case has settled. It is hereby ORDERED that a stipulation of dismissal or other settlement document shall be filed within 20 days of the entry of this Order. Signed by District Judge Aleta A. Trauger on 08/15/08. (ab) (Entered: 08/15/2008)
144 MOTION to extend time for filing settlement documents by Equal Employment Opportunity Commission. (Dills, Steven) (Entered: 09/05/2008)
145 ORDER granting 144 Motion to Extend Deadline for Filing Settlement Document; Extension of 20 days. Signed by District Judge Aleta A. Trauger on 09/08/08. (ab) (Entered: 09/08/2008)
146 NOTICE of Filing by Equal Employment Opportunity Commission of a Signed Consent Decree (Dills, Steven) (Entered: 09/16/2008)

Case: 3:06-cv-900 As of: 06/07/2017 12:02 PM CDT 11 of 12

09/16/2008 09/17/2008
09/17/2008

147 STIPULATION of Dismissal by Equal Employment Opportunity Commission, John Doe, Ford Motor Credit Company. (Frazier, Keith) (Entered: 09/16/2008)
148 CONSENT DECREE: The Court has reviewed the terms of the proposed Consent Decree in light of the applicable laws and regulations, the statements and representations of counsel for all parties, and hereby approves the Consent Decree. Signed by District Judge Aleta A. Trauger on 09/17/08. (ab) (Entered: 09/17/2008)
149 Docket Entry No. 148 is hereby entered on the docket in compliance with Rule 58 and/or Rule 79 (a) of the Federal Rules of Civil Procedure on 09/17/08. (ab) (Entered: 09/23/2008)

Case: 3:06-cv-900 As of: 06/07/2017 12:02 PM CDT 12 of 12