F1LED

AUG 2.'" 2001
us DISTRICT cOllIN THE UNITED STATES DISTRICT COURT
~)i:r~RN' P1ST{d\ 01' i FOR THE WESTERN DISTRICT OF TEXAS

BY

DEPUTY CL.ERK

SAN ANTONIO DIVISION

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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
REGIS CORPORATION, Defendant

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§ Civil Action No.

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§

§

§ COMPLAINT AND

§ JURY TRIAL DEMAND

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NATURE OF ACTION This is an action under Title VII ofthe Civil Rights Act of 1964, as amended, and Title I of the Civil Rights Act of 1991, to correct unlawful employment practices on the bases of sex, male, and retaliation. This action is also brought to provide appropriate relief to Jack R. Kelly, Michael S. Hayes and other similarly situated individuals, who were adversely affected by such practices. Plaintiff alleges that Jack R. Kelly, Michael S. Hayes and other similarly situated individuals were subj ected to a sexually hostile work environment. Plaintiff also alleges that Jack R. Kelly, Michael S. Hayes and other similarly situated individuals were subjected to disparate treatment and then discharged in violation of Section 704(a) ofTitle VII in retaliation for complaining about the sexual harassment.
JURISDICTION AND VENUE 1. Jurisdiction ofthis Court is invoked pursuant to 28 U.S.C. §§451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Sections 706(f)(1) and (3) ofTitle VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e-5(t)(1) and (3) ("Title VII") and Section 102 of Title I ofthe Civil Rights Act of 1991,42 U.S.C. § 1981a.

2. The employment practices alleged to be unlawful were and are now being committed within the jurisdiction of the United States District Court for the Western District of Texas.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VIT, and is expressly authorized to bring this action by Sections 706(f)(1) and (3) of Title VIT, 42 U.S.C. §2000e-5(f)(1) and (3). 4. At all relevant times, Defendant, Regis Corporation ("Regis"), has continuously been a Texas corporation doing business in the State of Texas and the cities ofAustin and San Antonio, and has continuously had at least fifteen employees. 5. At all relevant times, Defendant Regis has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. §§2000e(b), (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Jack R. Kelly and Michael S. Hayes filed charges with the Commission alleging violations ofTitle VIT by Defendant Regis. All conditions precedent to the institution ofthis lawsuit have been fulfilled. 7. Since at least April 1997, Defendant Regis has engaged in unlawful employment practices at its Austin, Texas, facility, in violation ofSection 703(a) of Title VII, 42 U.S.C. §2000e2(a) by SUbjecting Jack R. Kelly, Michael S. Hayes and other similarly situated individuals to a sexually hostile work environment on the basis oftheir sex, male. The sexual harassment includes sexually derogatory comments relating to male body parts, sexual advances and unwanted touching.
2

8. Since at least 1997, Defendant Regis engaged in unlawful employment practices at its Austin, Texas facility, in violation of Section 704(a) of Title VII, 42 U.S.c. § 2000e-3(a) by denying commission increases to Jack R. Kelly, Michael S. Hayes, and others similarly situated, and then discharging them for engaging in statutorily protected activity when these individuals opposed conduct they believed to be an unlawful employment practice.
9. The effect of the practices complained of in paragraphs 7 and 8 above has been to deprive Jack R. Kelly, Michael S. Hayes and other similarly situated individuals of equal employment opportunities and otherwise adversely affect their status as employees because oftheir sex, male, and because ofretaliation.
10. The unlawful employment practices complained ofin paragraphs 7 and 8 above were and are intentional.
11. The unlawful employment practices comp lained 0 fin paragraphs 7 and 8 above were and are done with malice or with reckless indifference to the federally protected rights of Jack R. Kelly, Michael S. Hayes and other similarly situated individuals.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant Regis, its officers, successors, assigns, and all persons in active concert or participation with it, from subjecting Jack R. Kelly, Michael S. Hayes and other similarly situated individuals to a sexually hostile work environment and from engaging in any employment practice which discriminates on the basis of sex or retaliation. B. Order Defendant Regis to institute and carry out policies, practices, and programs which provide equal employment opportunities and a non-hostile work environment for males and
3

which eradicate the effects of its past and present unlawful employment practices. C. Order Defendant Regis to make whole Jack R. Kelly, Michael S. Hayes and other
similarly situated individuals who were adversely affected by the unlawful employment practices described above, by providing appropriate back pay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effect of its unlawful employment practices, including, but not limited to reinstatement ofJackR. Kelly, Michael S. Hayes and other similarly situated individuals or front pay in lieu thereof.
D. Order Defendant Regis to make whole Jack R. Kelly, Michael S. Hayes and other similarly situated individuals who were adversely affected by the unlawful employment practices described above, by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraphs 7 and 8 above, including, but not limited to, medical and/or insurance expenses and job search expenses, in amounts to be determined at trial.
E. Order Defendant Regis to make whole Jack R. Kelly, Michael S. Hayes and other similarly situated individuals by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained ofin paragraphs 7 and 8 above, including, but not limited to, emotional pain, suffering, loss of enjoyment of life, embarrassment and humiliation in amounts to be determined at trial.
F. Order Defendant Regis to pay Jack R. Kelley, Michael S. Hayes and other similarly situated individuals punitive damages for its malicious and reckless conduct as described in paragraphs 7,8,9,10 and 11 above, in amounts to be determined at trial.
G. Grant such further relief as the Court deems necessary and proper in the public interest.
4

H. Award the Commission its costs of this action.
JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its complaint.
Respectfully submitted,
GWENDOLYN YOUNG REAMS Associate General Counsel
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ROBERT B. HARWIN Regional Attorney State Bar No. 076083 (District of Columbia)
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Supervisory Trial Attorney Texas State Bar No. 08642750
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CONNIELI Trial Attorney Texas State Bar No. 00791113
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION San Antonio District Office 5410 Fredericksburg Rd., Ste. 200 San Antonio, TX 78229-3555 (210) 281-7629 (210) 281-7669 FAX
ATTORNEYS FOR PLAINTIFF
5

 
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F1LEO

FILED

AUG 2 2 2.001 UNITED STATES DISTRICT COURT
CLERK, U'~I~~~rC6'c~,~1 FOR THE WESTERN DISTRICT OF TEXAS,

.:\LJG 1 "l 2001

WESTERN <t:\

_

SAN ANTONIO DIVISION

BY

DEPUTY CLERK

B~--~~DME~PumTVY~C~LEmR~

EQUAL EMPLOYMENT OPPORTUNITY §

COMMISSION,

§

Plaintiff,

§

§

v.

§

CAUSE NO. SA-OI-CA-0394-0G

REGIS CORPORATION, Defendant.

§ §

'A

01

§

ORDER DENYING DEFENDANT'S MOTION TO DISMISS AND GRANTING DEFENDANT'S ALTERNATIVE MOTION TO TRANSFER VENUE

Defendant Regis Corporation seeks dismissal for improper venue or in the alternative for

a transfer of venue to the Austin Division based on "convenience" pursuant to 28 U.S.C. §

1404(a). (Docket no. 3.) Regis does not argue its motion to dismiss, and it is clear that venue is

proper in this District. 42 U.S.C. § 2000e-5(f)(3). Therefore, the Court will address the motion

to transfer.

The EEOC filed this potential class action against Regis alleging that plaintiffs, former

hair stylists employed by Regis, and other similarly situated individuals were subjected to a

sexually hostile work environment in violation of Title VII at Regis's salon located in Barton

Creek Mall in Austin. "For the convenience of parties and witnesses, in the interest ofjustice, a district court

may transfer any civil action to any other district or division where it might have been brought."

28 U.S.c. § 1404(a). Whether to transfer a case under this statute is a decision that rests within

the sound discretion of the trial court. See Jarvis Christian College v. Exxon Corp., 845 F.2d

523,528 (5th Cir. 1988). In reaching its decision, a court must consider several factors: the

availability and convenience of witnesses and parties, the location of counsel, the location of books and records, the cost of obtaining attendance of witnesses and other trial expenses, the place of the alleged wrong, the possibility of delay and prejudice iftransfer is granted, and the plaintiffs choice of forum. See, e.g., Hogan v. Malone Lumber. Inc., 800 F.Supp. 1441, 1443 (E.D. Tex. 1992); United Sonics v. Shock, 661 F.Supp. 681, 682-83 (W.D. Tex. 1986); Greiner v. American Motor Sales Corn., 645 F.Supp. 277,278 (B.D. Tex. 1986); Coons v. American Horse Show Ass'n, Inc., 533 F.Supp. 398, 400 (S.D. Tex. 1982). Defendant bears the burden of demonstrating to the Court that it should transfer the case. Peteet v. Dow Chemical Co., 868 F.2d 1428, 1436 (5th Cir. 1989).
The availability and convenience of witnesses is arguably the most important of the factors listed. Fletcher v. Southern Pac. Transp. Co., 648 F.Supp. 1400, 1401-02 (E.D. Tex. 1986); 15 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3851 at 415 (1986). In considering the availability and convenience of witnesses, a court must concentrate primarily upon the availability and convenience of key witnesses. Continental Airlines Inc. v. American Airlines, Inc., 805 F.Supp. 1392, 1396 (S.D. Tex. 1992). Regis has presented the affidavits of 24 witnesses, all of whom live and work in or around Austin. According to Regis, all are "key witnesses" because they either worked directly with the individuals who allegedly suffered a hostile work environment at the Barton Creek Mall salon or are the alleged harassers. Most of the potential witnesses are hair stylists who assert in affidavits that it will severely inconvenience them to travel to San Antonio to testify because it will cause them loss of income, loss of customer goodwill, and will inconvenience their employers and co-workers by leaving them short-handed. Further, most of the witnesses no longer work for Regis, so they cannot be
2

said to be under Regis' control. Although the distance from San Antonio to Austin is not great, the Court notes from
experience that the drive can take between one to two hours, depending on where in Austin one is traveling from, and traffic and road conditions during the trip. The Court finds that an approximate three hour round trip, combined with waiting time in the courthouse rotunda prior to testifying can cause a financial hardship to a hair stylist whose pay depends on the number of customers served. In addition, several of the witnesses work at a salon on South Lamar in Austin, multiplying the hardship to their customers and their employers.
Also militating strongly in favor of transfer is the fact that the alleged harassment occurred in Austin. Because this case is in its early stages, no lengthy delay or prejudice will result from a transfer. The location of records is a non-factor since they can easily be transported to any court. Although both attorneys are located in San Antonio, the Court gives this factor the least weight in its considerations. Dupre v. Spanier Marine Corp., 810 F.Supp. 823, 826 (S.D. Tex. 1993). The only factors against transfer are the facts that the EEOC chose this forum and according to the EEOC, the plaintiffs are located in San Antonio. "As a general rule, plaintiffs choice of forum is entitled to great deference." Henderson v. AT&T, 918 F.Supp. 1059, 1066 (S.D. Tex. 1996). When the other factors weigh strongly in favor oftransferring the case, the plaintiff's choice of forum cannot be considered as controlling. Id., at 1065. Although both plaintiffs apparently reside in San Antonio, the EEOC has made no showing that, unlike the 24 witnesses tendered by Regis, it would create a severe hardship for the plaintiffs to travel to Austin. Finally, as this suit was filed as a class action suit concerning unlawful employment practices occurring at Regis's Austin facility, it is likely that more potential plaintiffs will be
3

located in Austin. Having considered all of the factors presented by the parties, the Court is of the opinion

that the balance of factors mandates transfer. Defendant's motion to dismiss is DENIED, and its

motion to transfer is GRANTED. It is ORDERED that this case is transferred to the United

States District Court for the Western District of Texas, Austin Division.

-If- ~!t,/~:· SIGNED and ENTERED this

day of

ORLANDO 1. GARCIA UNITED STATES DISTRICT JUDGE

4

 
 IN THE UNITED STATES DISTRICT COURT

FILED
l://STIN nl"I.I'IS/I"lN

FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY §

COMMISSION

§

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BY:

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A-OI-CA-551 IN

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REGIS CORPORATION

§

ORDER

Before the Court are Defendant's Motion to Compel Discovery filed on June 6, 2002 (Clerk's

Doc. No. 21); Plaintiffs Motion for Protective Order to Reschedule the Deposition of Jack R. Kelly

filed on June 26,2002 (Clerk's Doc. No. 28); and Defendant's Motion to Compel the Deposition of

Jack R. Kelly and Sanctions, filed on June 26, 2002 (Clerk's Doc. No. 30). The District Court

referred the above motions to the undersigned Magistrate Judge for a determination pursuant to 28

u.S.C. §636(b) and Rule I(c) ofAppendix C ofthe Local Rules ofthe United States District Court

for the Western District of Texas, Local Rules for the Assignment of Duties to United States

Magistrate Judges. On June 26, 2002, the Magistrate Court heard oral arguments on all of these

motions. The Court made oral rulings on the motions at the conclusion of that hearing, and those

rulings, and the rationales expressed therefore, are hereby incorporated into this Order. The purpose

of this Order is to memorialize in writing the rulings on the motions made on the record.

I. Defendant's Motion to Compel Discovery

In this motion, Defendant sought blanket authorizations from the EEOC's plaintiff class

members for the release ofany and all employmentrecords from employers or prospective employers

since the time ofthe plaintiffs departing from Regis. The EEOC resisted this request as improperly

broad, and argued that the amount of information that could be obtained from such unlimited

-

-

discovery would unnecessarily infringe upon the privacy ofthe plaintiffclass members. The Court agrees that such blanket authorizations are unnecessary and improper.
As stated in the hearing on this motion, the Court will not order the EEOC to deliver such blanket authorizations to Defendant. Rather, the Court will ORDER the EEOC to deliver to Defendant signed authorizations directed to employers to whom the charging parties have applied for employment or obtained employment after they ceased working for Regis, authorizing the release of any applications for employment, payroll records, and employment records specifically related to alleged inappropriate sexual behavior in the workplace. Each authorization will be specifically tailored to individual employers. If, at a later date, other past or current employers of the charging parties are discovered that are currently unknown, a similarly specific authorization for release of employment records must be delivered to Defendant within 10 days of notification.
Defendant has moved for sanctions regarding this discovery dispute. The Court finds that the positions taken by both sides in this dispute were taken in good faith and in the best interest of their respective clients, and that a legitimate dispute which warranted court resolution was raised by the motion. Accordingly, no sanctions are warranted.
In summary, Defendant's Motion to Compel Discovery (Clerk's Doc. No. 21) is GRANTED IN PART and DENIED IN PART as set forth above.
II. Motions Regarding the Deposition of Jack R. Kelly The Court also heard arguments regarding Plaintiffs motion to have the deposition of plaintiff class member Jack R. Kelly postponed for one week, and Defendant's related motion to compel the deposition on the originally scheduled date. Apparently, Hidalgo County, Texas, has issued a warrant for Mr. Kelly's arrest, and he would like to reschedule his deposition in order to deal with that situation first. The Court does not find that Mr. Kelly's unrelated legal situation

should impede Regis Corporation's ability to defend the suit that is being pursued on his behalf (at least in part), and with his consent. Further, postponing the deposition until a time after which Mr. Kelly surrenders himself on the pending warrant could prevent the Defendant from being able to obtain his testimony prior to the discovery cut-off. On balance, the Court finds that it is more appropriate to allow the deposition to move forward as scheduled, and then for Mr. Kelly to travel to Hidalgo County to respond to the pending warrant. Therefore, Plaintiffs Motion for Protective Order to Reschedule the Deposition of Jack R. Kelly (Clerk's Doc. No. 28) is DENIED; and Defendant's Motion to Compel the Deposition ofJack R. Kelly (Clerk's Doc. No. 30) is GRANTED. Defendant has also requested sanctions against the EEOC for seeking a protective order, but the Court finds that sanctions are unwarranted given that the EEOC was simply - and properly responding to notification from Mr. Kelly that he now objected to being deposed on the originally scheduled date. Accordingly, the Motion for Sanctions (contained within Clerk's Doc. No. 30) is DENIED.
SIGNED this 27th day of June, 2002.
ANDREW W. AUSTIN UNITED STATES MAGISTRATE JUDGE

 
 -

-

IN THE UNITED STATES DISTRICT COURT !. IIC, If~~Ln~g,sln'"

FOR THE WESTERN DISTRICT OF TEXAS 2DD2 A

AUSTIN DIVISION

U-2 Ali 11: 49

EQUAL EMPLOYMENT OPPORTUNITY §

COMMISSION

§

§

v.

§

§

REGIS CORPORATION

§

By:
----.J......!
A-OI-CA-551 IN

ORDER

Before the Court are Defendant's Motion for Court-Ordered Mental Examination filed on

July 15, 2002 (Clerk's Docket No. 34), Defendant's Motion for Leave to Re-Depose Michael Sean

Hayes and Jack Robert Kelly filed on July 18, 2002 (Clerk's Docket No. 37), and the Office of

Attorney General's Motion for Protective Order and to Quash Subpoena Duces Tecum filed on July

23,2002 (Clerk's Docket No. 42). The District Court referred the above motions to the undersigned

Magistrate Judge for a determination pursuant to 28 U.S.C. §636(b) and Rule l(c) of Appendix C

ofthe Local Rules ofthe United States District Court for the Western District ofTexas, Local Rules

for the Assignment of Duties to United States Magistrate Judges. On August 1,2002, the Magistrate

Court heard oral arguments on all of these motions. The Court made certain oral rulings on the

motions at the conclusion ofthat hearing, and those rulings, and the rationales expressed therefore,

are hereby incorporated into this Order. This Order also includes several rulings on matters taken

under advisement at the hearing.

I. Defendant's Motion for Leave to Re-Depose Michael Hayes and Jack Kelly

Defendant seeks leave of Court to re-depose class members Michael Hayes and Jack Kelly

with regard to a number of issues regarding the participants' veracity. After having considered the

briefs, the relevant rules, and oral argument, Defendant's Motion to Re-Depose Michael Sean Hayes

-

-.

and Jack Robert Kelly is HEREBY GRANTED IN PART and DENIED IN PART (Clerk's Docket No.37).
As the Court stated on the record during the hearing, Defendant has failed to present good cause to re-depose Mr. Kelly. Defendant has already obtained ample discovery concerning Mr. Kelly, and had a full opportunity to thoroughly depose Mr. Kelly on the relevant issues in this lawsuit. Accordingly, the Court HEREBY DENIES Defendant's request to re-depose Jack Kelly.
However, the Court finds that the Defendant should be permitted to re-depose Michael Hayes with regard to his knowledge ofMr. Kelly, one ofthe other class participants in this lawsuit. In his original deposition, Mr. Hayes testified that he did not know Mr. Kelly before the filing of this lawsuit. However, Mr. Kelly testified in his deposition that he was in fact acquainted with Mr. Hayes, and that Mr. Hayes encouraged Mr. Kelly to make a charge of harassment with the EEOC. Because Defendant was not aware of this inconsistency until after Mr. Hayes' deposition, the Court will allow Defendant to re-depose Mr. Hayes with regard to this issue. Accordingly, the Court GRANTS Defendant's Motion to Re-Depose Michael Hayes as to the limited issues of: (1) whether Mr. Hayes had knowledge ofMr. Kelly before the filing ofthis lawsuit, and (2) what conversations took place between Mr. Hayes and Mr. Kelly regarding the filing of Mr. Kelly's charge of discrimination, and the claims which led his participation in this lawsuit. The Court ORDERS the deposition of Mr. Hayes to be scheduled before August 31,2002. Defendant shall have one hour to examine Mr. Hayes at the deposition. All other relief not expressly granted above is DENIED.

2

-.
II. Defendant's Motion for Court-Ordered Mental Examination Defendant requests that the Court order mental examinations ofthe class participants Michael Hayes, Jack Kelly, and Helio Arizola, pursuant to Federal Rule of Civil Procedure 35(a). Defendant argues that because each class participant is seeking damages for mental or emotional injuries allegedly caused from the hostile work environment at Regis Corporation, the mental state of each class participant is now at issue. Additionally, Defendant contends that the class participants in this case have multiple and significant personal and legal issues unrelated to the alleged discrimination which may have caused or contributed to any emotional or mental distress that they may have experienced. The Court does not write on a clean slate on this issue, in that it has previously decided similar motions. I Federal Rule of Civil Procedure 35(a) provides: When the mental ... condition ... ofaparty ... is in controversy, the court in which the action is pending may order the party to submit to a ... mental examination by asuitably licensed or certified examiner .... The order may be made only on motion for good cause shown .... FED. R. CIY. P. 35(a). Three requirements are necessary to enable a court to order a Rule 35 exam: (l) the party's physical or mental condition must be in controversy; (2) the expert must be either a physician or a psychologist; and, (3) good cause must be shown. Acosta v. Tenneco Oil Co., 913 F.2d 205,208 (5th Cir. 1990). In analyzing Rule 35, the Supreme Court has held: Sweeping examinations of a party who has not affirmatively put into issue his own mental or physical condition are not to be automatically ordered merely because the person has been involved in an accident ... and a general charge of negligence is lodged. Mental and physical examinations are only to be ordered upon a discriminating application by the district judge of the limitations prescribed by the
ISee, e.g., Order on Motion for Order Compelling Psychiatric Examinations, Pearson v. City ofAustin, No. A-99-CA-434 IN (W.O. Tex. May 12, 2000).
3

-
Rule. To hold otherwise would mean that such examinations could be ordered routinely in automobile accident cases. The plain language ofRule 35 precludes such an untoward result. Schlagenhaufv. Holder, 379U.S. 104,121-122,85 S. Ct. 234, 244(1964). The SchlagenhaufCourt noted that a plaintiff in a negligence action who asserts mental or physical injury clearly places her mental condition in controversy. However, in applying Schlagenhauf, Texas federal courts have held that the routine request for damages for mental anguish or emotional distress, as opposed to causes of action based upon emotional distress, does not place a party's mental condition in controversy. See, e.g. Burrell v. Crown Central Petroleum, Inc., 177 F.R.D. 376, 380 (E.D. Tex. 1997). The Burrell Court reasoned that routine claims of mental anguish do not place the mental condition in controversy, so long as they are ordinary, garden variety claims that an objective fact-finder can evaluate. Id. (citing Lahr v. Fulbright & Jaworski, L.L.P., 164 F.R.D. 204 (N.D. Tex. 1996)). In the instant case, the EEOC has not pled emotional distress or mental anguish as a separate cause of action in this lawsuit; rather, it has merely requested damages for alleged mental anguish and emotional distress. Defendant nevertheless argues that it should be entitled to examine the class participants because it will be difficult to determine whether the alleged mental anguish was caused by the alleged harassment, as opposed to unrelated personal and legal issues which occurred during the same time-frame. Further, Defendant contends that the manner in which the Plaintiffs have described their emotional distress in their depositions, and the manner in which the EEOC described the damages sought in the Rule 26 initial disclosures, makes these claims more than what is normal contained in a "garden variety" Title VII case. As this Court determined in the Pearson case, merely moving for mental anguish damages does not place the plaintiffs mental condition in controversy. The Court does not find that the
4

-.
damages sought in this case are unusual in a Title vn case alleging sexual harassment. Importantly,
the EEOC has not designated any expert witnesses to testify as to the mental anguish of the class participants in this case. Based upon the extensive discovery that has already taken place on these issues, the Court finds that the Defendant is more than adequately prepared to cross-examine the class participants on their claims of emotional distress. The Court also finds that a jury is capable of evaluating the Plaintiffs' claims for mental anguish damages without the assistance of an expert. Taking to heart the Supreme Court's admonition to compel psychiatric examinations judiciously, the Defendant's Motion for Court-Ordered Mental Examination of Class Participants (Clerk's Docket No. 34) is DENIED.
III. The AG's Motion for Protective Order On July 23,2002, the Office of the Attorney General's filed a Motion for Protective Order and to Quash Subpoena Duces Tecum (Clerk's Docket No.42). However, the Parties have notified the Court that Defendant is recalling the subpoenas at issue in the motion. Accordingly, the Court HEREBY DENIES the Motion for Protective Order and to Quash Subpoena Duces Tecum (Clerk's Docket No.42) as MOOT. SIGNED this 2nd day of August, 2002.
AND~~
UNITED STATES MAGISTRATE JUDGE
5

 
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TExA~2 AU 22 Alill: 2 ,

AUSTIN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY §

COMMISSION

§

§

V.

§

§

REGIS CORPORATION

§

A-OI-CA-551 IN

ORDER

Before the Court are Defendant's Motion to Compel Discovery (to order Plaintiff to

Supplement its discovery responses) filed on July 24, 2002 (Clerk's Doc. No. 45); Defendant's

Motion to Compel Discovery (to re-depose Helio Arizola) filed on July 24, 2002 (Clerk's Doc. No.

46); Plaintiffs Motion to Compel Discovery filed on July 24, 2002 (Clerk's Doc. No. 47), and

Plaintiffs Motion for Protective Order filed on July 26,2002 (Clerk's Doc. No. 57). The District

Court referred the above motions to the undersigned Magistrate Judge for a determination pursuant

to 28 U.S.C. §636(b) and Rule l(c) of Appendix C of the Local Rules of the United States District

Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States

Magistrate Judges.

On August 21, 2002, the Magistrate Court heard oral arguments on all ofthese motions. The

Court made oral rulings on the motions at the conclusion of that hearing, and those rulings, and the

rationales expressed therefore, are hereby incorporated into this Order. The purpose of this Order

is to memorialize in writing the rulings on the motions made on the record.

-
Defendant's Motion to Compel Supplemental Discovery Responses (Clerk's Doc. No. 45) At the hearing, Defendant informed the Court that it was withdrawing its Motion to Compel
Plaintiff to supplement its discovery responses. Therefore, Defendant's Motion to Compel Discovery (Clerk's Docket No. 45) is HEREBY DENIED as moot.
Defendant's Motion to Compel the testimony of Delio Arizola (Clerk's Docket No. 46) During the discovery in this case, Defendant discovered that Plaintiff Helio Arizola was
indicted in July 2001, and subsequently arrested in April 2002 for felony theft for allegedly misappropriating funds from a subsequent employer, Fantastic Sams.' During the deposition of Mr. Arizola, Mr. Arizola asserted his Fifth Amendment privilege against self-incrimination with regard to all questions regarding his arrest. Defendant requests that the Court order Mr. Arizola to answer such questions.
For the reasons stated on the record at the hearing, Defendant's Motion to Compel the testimony of Helio Arizola is DENIED without prejudice to Defendant re-urging the motion upon the final disposition of the charges contained in the indictment referenced above.
Plaintifrs Motion to Compel Discovery (Clerk's Docket No. 47) In this motion, Plaintiff sought the Court to compel Defendant to respond to Interrogatories Nos. 9, 11, 13,20,21,22, and 23, and Requests for Production Nos. 31,35,37,44,46,47,48,49 and 50. At the hearing, the Plaintiff informed the Court that it had resolved the motion to compel with regard to all of its discovery requests, except with regard to Interrogatories Nos. 9, 20, 21, and 22. For the reasons stated on the record at the hearing, the Court will make the following rulings.
'Plaintiff was indicted (Indictment No. 3012344) on these charges on July 11, 2001, in the 299th Judicial District of Travis County, Texas. See Exhibit A to Defendant's Motion to Compel.

,-.
Plaintiffs Motion to Compel is GRANTED IN PART with regard to Interrogatory No. 9. Defendant is ordered to supplement its response by organizing any factual information supporting each of its defenses into coherent groups according to each separate defense.
PlaintiffsMotion to Compel is GRANTED IN PART with regard to Interrogatories Nos. 2022. Defendant is ordered to respond to the interrogatories with relevant information from all Austin store locations limited to the time period of 1997 to the present.
All other relief not expressly granted herein is HEREBY DENIED. Plaintifrs Motion for Protective Order (Clerk's Docket No. 57)
In May 2002, Defendant notified the EEOC of its intent to take the deposition of Diane Webb, an investigator at the EEOC's San Antonio District Office who was assigned to investigate the complaints that form the basis for this lawsuit. The EEOC now seeks to quash the deposition of Ms. Webb.
For the reasons stated on the record, Plaintiffs Motion for Protective Order is GRANTED without prejudice to the Defendant seeking to take the deposition of Ms. Webb in the event that the case is disposed of ~is an ensuing dispute regarding attorney's fees.
SIGNED thi~ day of August, 2002.
ANDREW W. AUSTIN UNITED STATES MAGISTRATE JUDGE

 
 -

FILED

IN THE UNITED STATES DISTRICT COURT Fml''fFlR'IS!ON

WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

ZOn2 l

NO

-1

PM 4' ~2
•

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
VS.
REGIS CORPORATION, Defendant.

§ § § § § § CIVIL ACTION NO,: A:01-CV-551-JRN § § § §

CONSENT DECREE

The parties to this Consent Decree are the Plaintiff, United States Equal Employment Opportunity Commission ("EEOC"), and Defendant, Regis Corporation ("Regis"). This Consent Decree resolves the above-referenced Civil Action No. A-01CA-551 JRN. The EEOC initiated this lawsuit under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e, et. seq. ("Title VII"), and Title I of the Civil Rights Act of 1991, 42 U.S.C. §1981a. The Complaint was filed to correct alleged unlawful employment practices on the basis of sex (male), and retaliation, and to provide appropriate relief to individuals who were adversely affected by such practices at the Regis salon located in Austin, Texas. The EEOC alleges that these individuals were subjected to a sexually hostile work environment on the basis of their sex (male) in violation of Section 703(a) of Title VII. The EEOC further alleges that these individJlals were subjected to disparate treatment and then discharged in violation of Section 704(a) of Title VII in retaliation for complaining

-.
about the sexual harassment. Defendant denies any violations under Title VII as alleged by the EEOC. IT IS ORDERED, ADJUDGED AND DECREED as follows:
1. This Court has jurisdiction of the subject matter of the action and the parties, venue is proper, and all administrative prerequisites to the filing of this action have been met. The Complaint states claims, which if proved, would authorize this Court to grant relief against Regis pursuant to Title VII.
2. This Decree resolves all issues raised in the EEOC's complaint in this case. The EEOC waives further litigation of all issues raised in the abovereferenced complaint. The EEOC expressly reserves its right, however, to process and litigate any other charges which may now be pending or may in the future be filed against Regis.
SCOPE OF THE DECREE 3. The duration of this Decree shall be two (2) years from the date of its filing with the Court. This Court shall retain jurisdiction of this action for the duration of this Decree and may enter such other and further relief as it deems appropriate to ensure implementation and enforcement of its provisions. Any violation of the Decree by Regis, its agents or assigns, in Austin, Texas shall toll the running of this two-year period from the date of the violation. If the Court subsequently determines that this Decree was violated, the two-year period shall recommence and continue from the date of entry of an Order setting out such violation or until such time as ordered by the Court. Should the Court find this
2

, ,
Decree was not violated, the two-year period shall recommence, retroactive to the date of the filing of the pleading alleging that a violation had occurred.
INJUNCTIVE PROVISIONS 4. Regis, its employees, officers, agents, managers, supervisors, successors, and assigns, involved with the operations in Austin, Texas are hereby enjoined from: (a) Discriminating against any past, present or future employee on the basis of sex in violation of Title VII; (b) Engaging in or being a party to any action, policy or practice that has the effect of harassing or intimidating any employee on the basis of sex; and (c) Creating, facilitating or permitting the existence of a work environment that is hostile to any employee on the basis of sex through acts such as unwanted touching and sexually offensive comments of which Regis is or should be aware. (d) Retaliation against any past, present or future employee in violation of Title VII.
ANTI-DISCRIMINATION POLICY 5. Regis shall continue to implement its written anti-discrimination policy which explicitly prohibits discrimination or harassment in violation of Title VII. The Regis policy contains specific provisions for reporting conduct which is inconsistent with its policy and forbids retaliation against any person for reporting
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harassment, assisting in making a harassment complaint, or cooperating in a harassment investigation.
TRAINING 6. Regis shall continue to provide training on the anti-discrimination laws under Title VII. This training will consist of the following: (a) Two hours of annual training on the anti-discrimination laws under Title VII for area supervisors, regional managers and salon managers in Austin, Texas. Such training will be conducted by Holland & Knight LLP. (b) Training for all managers and employees on the Regis NonDiscrimination and Workplace Harassment Policy. This training requires that all Austin, Texas employees receive a copy of the policy at the time of hire, that all employees sign an acknowledgment of receipt and understanding of the policy, and that all employees view the video which further explains the Regis Policy.
POSTING NOTICE 7. Regis, its agents, officers, employees, servants, successors, and assigns, shall post a notice within ten (10) days of the entry of this Decree regarding its practices, policies, and intent not to discriminate against any employee in violation of Title VII. Such notice shall be as set forth in Exhibit A, which is attached to this Decree. A copy of Exhibit A shall be posted at Regis' Austin, Texas, salons and on all employee bulletin boards or other areas where employees are likely to congregate. This notice shall remain posted for the duration of this Decree. Regis

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shall certify to the EEOC in writing within ten (10) business days after the posting of the Notice that the Notice has been properly posted.
COMPLIANCE 8. During the duration of this Decree, the EEOC shall have the right to ensure compliance with the terms of this Decree.
MISCELLANEOUS PROVISIONS 9. The terms of this Decree shall be binding upon Regis, and its present and future representatives, agents, officers, employees, servants, successors, and assigns, as to the issues resolved herein. 10. The parties of this Decree shall bear their own costs and attorney's fees incurred in this action. The parties further agree that pursuant to Section 706(k) of Title VII, 42 U.S,C. § 2000e-5(k), there is no "prevailing party" in this action or proceeding. The Clerk shall furnish a copy hereof to each attorney of record. SO ORDERED.

1 .... Signed this ~ day of J.;.J!L~ffJ.W~F=-';\
Ch' f, United States District Court Judge
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Respectfully submitted,
GWENDOLYN YOUNG REAMS Associate General Counsel
ROBERT B. HARWIN Regional Attorney D.C. State Bar No. 076083
REZ Supervisory rial Attorney State Bar No. 08642750
~
CONNIELIEM Trial Attorney State Bar No. 00791113 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION San Antonio District Office 5410 Fredericksburg Rd., Suite 200 San Antonio, Texas 78229·3555 (210) 281·7629 (210) 281-7669 (fax) ATTORNEYS FOR PLAINTIFF
6

HOLLAND & KNIGHT LLP
urke Huber, Jr. State Bar No. 10144696 F. Denise Rios State Bar No. 24027660 And
DIETZ & ASSOCIATES, P.C. 106 Fannin Avenue Round Rock, Texas 78664 (512) 244-9314 (512) 244-3766 (FAX)
J. Lee Jarrard, Jr. State Bar No. 10578200 Douglas G. Cornwell State Bar No. 24009024 ATTORNEYS FOR DEFENDANT
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NOTICE TO ALL EMPLOYEES
REGIS CORPORATION IS FIRMLY COMMITTED TO TREATING EMPLOYEES AND APPLICANTS FOR EMPLOYMENT ACCORDING TO MERIT WITHOUT REGARD TO THEIR RACE, RELIGION, COLOR, NATIONAL ORIGIN, AGE, SEX, OR HAVING ENGAGED IN ACTIVITY PROTECTED BY TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED. THIS POLICY APPLIES TO ALL EMPLOYMENT DECISIONS, INCLUDING RECRUITMENT, RETENTION, PROMOTION, TRANSFER, LAYOFF AND/OR TERMINATION, DEROGATORY COMMENTS AND ALL OTHER TERMS AND CONDITIONS OF EMPLOYMENT. SPECIFICALLY, REGIS WILL NOT TOLERATE SEXUAL HARASSMENT, UNWANTED TOUCHING, SEXUALLY OFFENSIVE COMMENTS AND RETALIATION FOR HAVING COMPLAINED OF THE HARASSMENT.
IF YOU BELIEVE YOU ARE BEING DISCRIMINATED AGAINST IN ANY TERM OR CONDITION OF YOUR EMPLOYMENT BECAUSE OF YOUR RACE, RELIGION, COLOR, NATIONAL ORIGIN, SEX, AGE, OR DISABILITY, SUBJECTED TO HARASSMENT BECAUSE OF YOUR SEX, OR FOR HAVING OPPOSED OR COMPLAINED OF THE DISCRIMINATION, YOU ARE ENCOURAGED TO SEEK ASSISTANCE FROM SUPERVISORY PERSONNEL, OR FROM THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 5410 FREDERICKSBURG ROAD, SUITE 200, SAN ANTONIO, TEXAS 78229-3550, (210) 281-7600 or 1-800-669-4000.
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NO RETALIATORY ACTION MAY BE TAKEN AGAINST YOU FOR SEEKING ASSISTANCE, FILING A COMPLAINT/CHARGE, OR COMMUNICATING WITH THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.
EEOC ENFORCES TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, WHICH PROHIBITS EMPLOYMENT DISCRIMINATION BASED ON RACE, COLOR, RELIGION, SEX OR NATIONAL ORIGIN; THE AGE DISCRIMINATION IN EMPLOYMENT ACT; THE EQUAL PAY ACT; PROHIBITIONS AGAINST DISCRIMINATION AFFECTING INDIVIDUALS WITH DISABILITIES; SECTIONS OF THE CIVIL RIGHTS ACT OF 1991, AND TITLE I OF THE AMERICANS WITH DISABILITIES ACT, WHICH PROHIBITS DISCRIMINATION AGAINST PEOPLE WITH DISABILITIES IN THE PRIVATE SECTOR, AND STATE AND LOCAL GOVERNMENTS.
SATI #55147 v3
9

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

2DD3 JA 24 AN 8: 49

JACK R KELLY
v.
REGIS CORPORATION

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§

§

§

A-OI-CA-551 AWA

§

§

ORDER

Before the Court is Defendant's Motion for Summary Judgment filed on January 6, 2003

(Clerk's Docket No. 98). Plaintiff failed to file a response to the motion. Under Rule CV-7(d) of the

Local Court Rules for the Western District of Texas, the Court may grant the Motion for Summary

Judgment as unopposed. Because this motion is dispositive, however, the Court will nevertheless

address the merits of the motion below.

I. GENERAL BACKGROUND

On May 11, 2001, the Equal Employment Opportunity Commission ("EEOC") brought this
employment discrimination lawsuit under Title vn ofthe Civil Rights Act of 1964 as amended, and

Title I of the Civil Rights Act of 1991, against Regis Corporation ("Regis"). The EEOC filed this

suit on behalf of Jack Kelly, Michael Hayes, and other similarly situated individuals, alleging that

these individuals were subject to a sexually hostile work environment while employed by Regis. The

EEOC also alleged that the employees were subjected to disparate treatment and ultimately

discharged in retaliation for complaining about sexual harassment.

After the EEOC and Regis participated in extensive discovery and numerous discovery

disputes in this case, the parties notified the Court on September 5, 2002, that they had settled the

case. See Joint Advisory to the Court (Clerk's Docket No. 74). However, the parties did not file a

/01

consent decree at that time because the EEOC requested that the Charging Parties, Michael Sean Hayes and Jack Kelly, and Interested Party Helio Arizola, be given intervention notice.
On September 19,2002, Charging Party Jack Kelly ("Kelly") filed a motion to intervene as a Party-Plaintiffin this lawsuit pursuant to Federal Rule ofCivil Procedure 24(a)(2). After the Court determined that Kelly had an unconditional right to intervene in the lawsuit and that the motion was timely, the Court recommended that the District Court grant Kelly's Motion to Intervene. The Court further recommended that the District Court enter the Consent Decree between the EEOC and Regis, thereby dismissing the EEOC from the case. On November 7,2002, the District Court adopted this Court's Report & Recommendation in full.
After the Parties consented to trial by the instant Magistrate Court, the case was reassigned to the instant court for all purposes on December 6, 2002. After being granted permission to file a dispositive motion beyond the deadline contained in the scheduling order, Regis filed the instant motion for summary judgment. As noted above, Plaintiff has failed to file a response to the motion.
II. STANDARD OF REVIEW Summary judgment is appropriate under Rule 56(c) ofthe Federal Rules ofCivil Procedure only "ifthe pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, ifany, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIv. P. 56(c). The party seeking summary judgment bears the burden of showing that there is an absence of evidence to support the nonmovant's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553-54 (1986); Coleman v. Houston Independent School District, 113 FJd 528, 533 (5th Cir. 1997). After a proper motion for summary judgment is made, the non-movant must set forth specific facts showing that
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there is agenuine issue ofmaterial fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511 (1986).
The Court views facts in the light most favorable to the non-movant and draws all reasonable inferences in the non-movanfs favor. Coleman, 113 FJd at 533. If the non-movant sets forth specific facts in support of allegations essential to his claim, a genuine issue of material fact is presented, and summary judgment is inappropriate. Unsupported allegations or affidavit or deposition testimony setting forth ultimate or conclusory facts and conclusions oflaw are insufficient to defeat a proper motion for summary judgment. Duffy v. Leading Edge Products, Inc., 44 FJd 308, 312 (5th Cir. 1995). Rather, the nonmoving party must set forth specific facts showing the existence ofa "genuine" issue concerning every essential component ofits case. Lusk v. Foxmeyer Health Corp., 129 FJd 773, 777 (5th Cir. 1997). The standard of review "is not merely whether there is a sufficient factual dispute to permit the case to go forward, but whether a rational trier of fact could find for the non-moving party based upon the record before the court." James v. Sadler, 909 F.2d 834,837 (5th Cir. 1990) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587,106 S.Ct. 1348, 1356 (1986)). Applying these standards, the Court turns to the merits of the motion for summary judgment.
III. ANALYSIS Kelly was employed as a hairstylist at the Regis salon ("Salon") located in the Barton Creek Mall in Austin, Texas. Kelly claims that during his employment at the Salon, he was subjected to a sexually hostile work environment on the basis ofhis sex, male, in the form ofsexually derogatory
comments, sexual advances and unwanted touching in violation ofTitle vn ofthe Civil Rights Act
of 1964. Kelly also alleges that he was retaliated against for complaining about the harassment by
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being denied commission increases and for being terminated. Kelly was employed at Regis from February 1998 until his termination on October 23, 1998.
Regis argues that Kelly's factual allegations fail to support either a prima facie case of hostile work sexual harassment or retaliation. Thus, Regis contends that it is entitled to summary judgment.
A. Hostile Work Environment Claim Title VII makes it "an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex." 42 U.S.C. § 2000e-2(a)(l). "[A] plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive working environment." Shepherd v. Comptroller ofPublic Accounts ofthe State ofTexas, 168 FJd 871,873 (5th Cir.) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986», cert. denied, 528 U.S. 963 (1999). In order to establish a prima facie case of hostile work environment based on sexual harassment, Kelly must show that: (1) he belongs to a protected class; (2) he was subjected to unwelcome sexual harassment; (3) the harassment was based on his sex; (4) the harassment affected "a term, condition, or privilege" of his employment; and (5) Regis knew or should have known ofthe harassment and failed to take remedial action. Cain v. Blackwell, 246 FJd 758, 760 (5th Cir. 2001). The Court finds that Kelly has failed to establish aprima facie case ofhostile work environment based upon sexual harassment because he has failed to show that the harassment affected a term, condition, or privilege ofhis employment. In order for sexual harassment to be actionable, "it must be sufficiently severe or pervasive 'to alter the conditions of [the victim'S] employment and create an abusive working environment.'" Shepherd, 168 FJd at 874 (quoting Meritor, 477 U.S. at 67). Thus, not all harassment will affect a term, condition, or privilege of employment. [d. For example, the "mere utterance of an . . . epithet" which engenders offensive feelings in an employee does not
4

sufficiently affect the conditions ofemployment. Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). In order to be actionable under Title VII, "a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would fmd hostile or abusive, and one that the victim in fact did perceive to be so." Faragher v. City o/Boca Raton, 524 U.S. 775, 787 (1998). When determining whether a workplace constitutes a hostile work environment, courts should consider the totality of the circumstances, including: the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Id. at 787-88. The Supreme Court has clarified that simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the "terms and conditions of employment." Id. at 788. In addition, Title VII was not intended to become a ''general civility code" for the workplace. Id.
The Court finds that the harassment of which Kelly complains of does not rise to the level of sexual harassment under Title VII. Kelly alleges that he was subject to numerous inappropriate comments from the Salon Manager, Scott Baker, and from his co-worker, Jimmy Burt. Specifically, Kelly alleges that Mr. Baker commented to him that he liked "young men," stated that ''you are full of testosterone and you need to let it all out," stated that he "needed to get laid" due to his bad mood, wrote 'jailbird" and female names on the back ofhis pay stub, invited him to dinner once, and on one occasion inappropriately touched his knee. Kelly also alleges that Mr. Burt repeatedly told Kelly that he had "a nice ass,"and inquired into his sex life with women. In addition, Kelly alleges that both Mr. Baker and Mr. Burt frequently stared at his "mid-section." While the Court finds that these comments and actions were clearly inappropriate and offensive, they are not the type of severe and pervasive conduct that courts have found to create a hostile work environment. Compare Waltman v. Int '[ Paper
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Co., 875 F.2d 468, 478 (5th Cir. 1989) (concluding hostile environment existed where female employee sexually groped repeatedly); Hall v. Gus Const. Co., 842 F.2d 1010, 1012 (8th Cir. 1988) (finding hostile work environment where male coworkers cornered women and rubbed their thighs, grabbed their breasts, and held a woman so that a man could touch her) with Mendoza v. Borden, Inc., 195 FJd 1238, 1247 (11 th Cir. 1999) (holding that conduct alleged by female employee including one instance where supervisor said to employee "I'm getting fired up," one occasion where supervisor rubbed his hip against the employee's hip while touching her shoulder and smiling, two instances in which supervisor made sniffmg sound while looking at employee's groin area, and supervisor's constant following of and staring at employee in a "very obvious fashion" did not rise to the level of hostile work environment), cert. denied, 529 U.S. 1068 (2000); Shepherd, 168 FJd at 874-875 (finding that co-worker's sexual harassment of employee over a two year period, which included incidents of unwanted touching of the employee's arm, attempts to look down the employee's clothing and make offensive remarks such as "your elbows are the same color as your nipples,"did not render employee's work environment objectively hostile); Adusumilli v. City ofChicago, 164 FJd 353, 361-62 (7th Cir. 1998) (finding that plaintiff failed to allege sufficient hostile work environment claim where coemployees teased plaintiff, made sexual jokes aimed at her, commented about her low-neck tops, repeated staring at her breasts with attempts to make eye contact, and four incidents of touching her arm, fingers and buttocks), cert. denied, 528 U.S. 988 (1999); Pfullman v. Texas Dep't of
Transportation, 24 F. Supp.2d 707 (w.n. Tex. 1998) (finding that male plaintiff was not subject to
hostile work environment even where male supervisor sat on employee's lap and commented "that sure feels good right here," male supervisor made fellatio insinuations when plaintiff was eating a sausage, and where plaintiffwitnessed asupervisortelling another coworker to "bend over and he would fit test" the coworker). The Court finds that the conduct complained ofin this case is not so severe and extreme
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as to alter the tenns and conditions of Kelly's employment. Rather, it appears that the conduct complained of is better classified as "simple teasing," offhand comments and isolated incidents which do not amount to discriminatory changes in the "tenns and conditions ofemployment." See Faragher, 524 U.S. at 788. Kelly has failed to demonstrate that the conduct was so severe and pervasive that it destroyed his "opportunity to succeed in the workplace." Shepherd, 168 FJd at 874. Because the conduct that Kelly was subjected to during his employment at Regis was not so severe or pervasive as to alter the conditions of Kelly's employment, Kelly has failed to demonstrate that he was subjected to an objectively hostile work environment.
B. Retaliation Claim Kelly alleges that after he complained ofthe sexual harassment to Regis' area supervisor,
Boyce McConnell, he was retaliated against by failing to receive a pay raise and by being tenninated from his employment. Title VII makes it unlawful for an employer to discriminate against an employee "because [that employee] has opposed any practice made an unlawful employment practice by this subchapter, or because the [employee] has made a charge ... under this subchapter." Rios v. Rossotti, 252 FJd 375,380 (5th Cir. 2001) (quoting 42 U.S.C. § 2000e-3(a»).
In order to establish a prima facie case of retaliation under Title VII, a plaintiff must prove by a preponderance of the evidence that: (1) he engaged in activity protected by Title VII, (2) an adverse employment action occurred, and (3) a causal link existed between the protected activity and the adverse employment action. Evansv. Cityo!Houston, 246 FJd344, 352 (5th Cir. 2001) (quoting Longv. Eastjield College, 88 FJd 300,304 (5th Cir. 1996). The Court will assume for the purposes of this summary judgment motion only that Plaintiff has established a prima facie case of unlawful retaliation.
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Once the plaintiffhas established aprima facie case ofunlawful retaliation, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Rios, 252 FJd at 380. Regis contends that Kelly failed to meet the requirements necessary to receive a pay increase because he had not been at the Salon for a sufficient period of time. The summary judgment evidence shows that stylists had to be at the Salon for at least one year before .they could receive a pay raise. Kelly was only employed at the Salon for nine months. In addition, Regis has adduced summary judgment evidence that Kelly was terminated because of excessive absences from work and poor work performance. Specifically, Regis contends that Kelly's secondary job at an area restaurant interfered with his attendance at the Salon. In addition, Regis points out that Kelly had far more customers request that their hairstyles be re-styled compared to other stylists at the Salon.
Because Regis has articulated a legitimate, nondiscriminatory reason for not granting Kelly a pay raise and for terminating him, the final burden shifts to Plaintiffto "adduce sufficient evidence that would permit a reasonable trier of fact to find that the proffered reason is a pretext for retaliation." Rios, 252 FJd at 380 (quoting Sherrodv. American Airlines, Inc., 132 FJd 1112, 1122 (5th Cir. 1998)). This final burden requires the plaintiffto demonstrate that the adverse employment action would not have occurred "but for" the protected activity. Rios, 252 FJd at 380. Other than his subjective beliefas exhibited in the deposition excerpts that Regis retaliated against him, Plaintiff has failed to adduce any evidence of discriminatory or retaliatory animus behind Regis' actions. A general subjective belief on the part ofthe employee that he was retaliated against is insufficient to establish pretext. Elliot v. Group Medical & Surgical Service, 714 F.2d 556, 564 (5th Cir. 1983),
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cert. denied, 467 U.S. 1215 (1984). Because Plaintiff has failed to assert more than his subjective belief that his failure to receive a pay increase and his termination was retaliatory, he has failed to present evidence from which a reasonable jury could infer that the Defendants' articulated reasons for failing to promote Plaintiffwere merely apretext for discrimination or retaliation. See Rios, 252 FJd at 382 (holding that plaintifffailed to demonstrate that her employer's proffered reason for her nonselection was a pretext where plaintiff presented no evidence of retaliatory of discriminatory animus in the selection process); Grimes v. Texas Dep 't a/Mental Health and Mental Retardation, 102 FJd 137, 143 (5th Cir. 1996) (holding that plaintiff failed to prove that employer's reasons for not promoting plaintiff were a pretext where plaintiff failed to present any evidence of racial or retaliatory animus on the part of the employer). In summary, Kelly has failed to establish with competent summary judgment evidence that "but for" his protected activity he would have received a pay increase and that he would not have been terminated. Accordingly, Plaintiff has failed to establish a Title VII retaliation claim.
C. Conclusion In summary, the Court finds that Kelly has failed to establish a prima facie case of hostile work environment based upon sexual harassment because he has failed to show that the harassment affected a term, condition, or privilege of his employment. With regard to Kelly's retaliation claim, Regis has demonstrated a legitimate, non-discriminatory reason for its decisions to deny Kelly a pay increase and to terminate him. Kelly has failed to present any summary judgment evidence that the proffered reason
9

was a pretext for discrimination. Accordingly, the Court HEREBY GRANTS Defendant's Motion for

Summary Judgment (Docket No. 98) in its entirety.

the~y SIGNED this

of January, 2003.

ANDREW W. AUSTIN UNITED STATES MAGISTRATE JUDGE

10

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

FIl.ED
r: " ! I <:: ~ I ~l r\ I ',I I <:. I ,~
2003 JA 24 AM 8: 49

JACK R KELLY
V.
REGIS CORPORATION

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§

§

A-OI-CA-551 AWA

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§

FINAL JUDGMENT

Before the Court is the above entitled cause ofaction. For the reasons set forth in the Court's

Order of this date, the Court enters the following Final Judgment in this cause pursuant to Federal

Rule of Civil Procedure 58.

IT IS ORDERED, ADJUDGED AND DECREED that Judgement is HEREBY ENTERED

for Regis Corporation and that Plaintiff-Intervenor Jack Kelly take nothing in this lawsuit. IT IS

FURTHER ORDERED that each party shall bear its own costs.

FINALLY, IT IS ORDERED that this cause of action is CLOSED and that all pending

motions are hereby DENIED AS MOOT.

SIGNED this the1lf;;, of January 2003, at Austin, Texas.

AND W W. AUSTIN UNITED STATES MAGISTRATE JUDGE

/o~

 
 CM/ECF LIVE - U.S. District Court:txwd - Docket Report

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U.S. District Court [LIVE] Western District of Texas (Austin) CIVIL DOCKET FOR CASE #: 1:01-cv-00551-AWA

CLOSED

Kelly v. Regis Corporation Assigned to: Judge Andrew W. Austin Demand: $0 Cause: 42:2000 Job Discrimination (Sex) Plaintiff Equal Employment Opportunity Commission TERMINATED: 11/07/2002
V.

Date Filed: 05/11/2001 Date Terminated: 01/24/2003 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff
represented by Connie Liem U.S. Equal Employment Opportunity Commission 401 "B" St. Suite 510 San Diego, CA 92101-3555 (619) 557-7284 Fax: 619/557-7274 TERMINATED: 11/07/2002 LEAD ATTORNEY
Linda Gutierrez E.E.O.C. 5410 Fredericksburg Rd. 200 Mockingbird Plaza II San Antonio, TX 78229 (210) 281-7637 Fax: 210/281-7669 TERMINATED: 11/07/2002 LEAD ATTORNEY
Robert B. Harwin Equal Employment Opportunity Commission San Antonio District Office 5410 Fredericksburg Road Suite 200 San Antonio, TX 78229-3555 (210) 281-7643 Fax: (210) 281-7669 Email: robert.harwin@eeoc.gov TERMINATED: 11/07/2002 LEAD ATTORNEY

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Defendant Regis Corporation
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represented by Douglas Grant Cornwell Dietz & Jarrard, P.C. 106 Fannin Avenue East Round Rock, TX 78664 (512) 244-9314 Fax: 512/244-3766 Email: dgcorn@swbell.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edmund Burke Huber, Jr. Ogletree Deakins Nash Smoak & Stewart, PC 112 E. Pecan Street Suite 2600 San Antonio, TX 78205 (210)277-3610 Fax: 210/277-2702 Email: burke.huber@ogletreedeakins.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
F. Denise Russell Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 112 E. Pecan St. Suite 2600 San Antonio, TX 78205 (210)277-3610 Fax: 210/277-2702 Email: denise.russell@ogletreedeakins.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. Lee Jarrard, Jr. Dietz & Jarrard, P.C. 106 Fannin Ave. East Round Rock, TX 78664 (512) 244-9314 Fax: 512/244-3766 Email: jjarrard@swbell.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Larry Edward Gee Ball & Weed, PC 745 East Mulberry Suite 500
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Intervenor Plaintiff Jack Kelly
Movant Texas Attorney General Child Support Division TERMINATED: 07/29/2002

San Antonio, TX 78212 (210)731-6322 Fax: 210/785-2969 Email: leg@ballandweed.com TERMINATED: 10/17/2001 LEAD ATTORNEY
R. Mark Dietz Dietz & Jarrard, P.C. 106 Fannin Avenue East Round Rock, TX 78664 (512) 244-9314 Fax: 512/244-3766 Email: rmdietz@swbell.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Pascual Madrigal Law Office of Pascual Madrigal 322 El Paso San Antonio, TX 78207 (210) 225-1076 Fax: (210)225-4034 Email: pm2919@hotmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Barbara A. Vander Voord TX Attorney General Child Support Division 3201 N. McColl Rd., Ste. 100A McAllen, TX 78501 (956) 630-2891 Fax: (956) 630-0486 TERMINATED: 07/29/2002 LEAD ATTORNEY

Date Filed
05/11/2001 05/11/2001 05/11/2001 06/19/2001

#

Docket Text

Case assigned to Honorable Orlando L. Garcia (wg) (Entered: 05/11/2001) 1 Complaint filed. (Pages: 5) (wg) (Entered: 05/11/2001) 1 Demand for jury trial by EEOC (wg) (Entered: 05/11/2001) 2 Waiver of Service by Regis Corporation; Notice and Request Mailed on 5/23/01;
Answer due on 7/23/01 for Regis Corporation (rg) (Entered: 06/20/2001)

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07/23/2001 08/02/2001 08/09/2001 08/17/2001
08/20/2001 08/22/2001 08/22/2001 08/24/2001 08/27/2001 10/12/2001 10/12/2001 10/17/2001 10/19/2001 10/19/2001 10/25/2001
11/15/2001

3 Motion by Regis Corporation to dismiss plaintiff's claims without prejudice , or, in the alternative to transfer venue (rg) (Entered: 07/24/2001)
4 Response by EEOC in opposition to defendant's motion to dismiss plaintiff's claims without prejudice [3-1], motion to transfer venue [3-2] (fe) (Entered: 08/03/2001)
5 Reply by Regis Corporation to Plaintiff's opposition and response to motion to dismiss plaintiff's claims without prejudice [3-1], or, in the alternative, motion to transfer venue [3-2] (rg1) (Entered: 08/10/2001)
6 Order denying motion to dismiss plaintiff's claims without prejudice [3-1], granting motion to transfer venue [3-2] ORDERED that this case is transferred to the United States District Court for the Western District of Texas, Austin Division (rg) (Entered: 08/20/2001)
Intradistrict transfer to Austin Division (rg) (Entered: 08/20/2001)
Original file, certified copy of transfer order and docket sheet received from San Antonio Division (mc2) (Entered: 08/24/2001)
Case reassigned from Honorable Orlando L. Garcia to Honorable James R. Nowlin (mc2) (Entered: 08/24/2001)
Court file prepared and forwarded to Judge Nowlin. Sent letter to all counsel of record advising of transferred case number and judge assignment. (mc2) (Entered: 08/24/2001)
7 Answer by Regis Corporation (mc2) (Entered: 08/27/2001)
8 Motion by Regis Corporation for Larry E. Gee to withdraw as attorney (rm) Modified on 10/15/2001 (Entered: 10/15/2001)
8 Motion by Regis Corporation to substitute Edmund Burke Huber as attorney (rm) (Entered: 10/15/2001)
9 Order granting motion to substitute Edmund Burke Huber as attorney [8-1], granting motion for Larry E. Gee to withdraw as attorney [8-1]. (Noticed 10/17/01.) (mc2) (Entered: 10/17/2001)
10 Joint discovery/case management plan under Rule 26(f) F.R.C.P. (by plaintiff and defendant). (mc2) (Entered: 10/19/2001)
11 Recommendations for scheduling order by EEOC, Regis Corporation (mc2) (Entered: 10/19/2001)
12 Scheduling order setting Joining of parties, amending of pleadings on 1/30/02 Deadline for filing of all motions 9/30/02 - dispositive motions and responses limited to 20 pgs. in length pursuant to FRCP 56, all other dispositive motions to 10 pgs.; Discovery cutoff 7/31/02 ; Alternate Dispute Resolution Report due by 12/1/01. (Noticed 10/26/01.) (mc2) (Entered: 10/26/2001)
13 Advisory to the court filed by Regis Corporation - Notice of change of affiliation and change of address of counsel of record for defendant. (mc2) (Entered: 11/16/2001)

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11/29/2001 11/29/2001 01/30/2002 02/27/2002 03/25/2002 04/03/2002
05/06/2002
06/06/2002 06/11/2002 06/17/2002 06/17/2002 06/17/2002
06/20/2002 06/26/2002 06/26/2002 06/26/2002 06/26/2002 06/26/2002

14 Notification of defendant's compliance with Rule 26(a)(1) initial disclosures. (mc2) (Entered: 11/29/2001)
15 Alternate Dispute Resolution Report filed by EEOC, Regis Corporation, Party(s) do not agree to Alternate Dispute Resolution (mc2) (Entered: 11/29/2001)
16 First Amended answer by Regis Corporation: answer [7-1] (mc2) (Entered: 01/31/2002)
17 Designation of expert witness filed by Regis Corporation (mc2) (Entered: 02/27/2002)
18 Notice of additional attorney appearance for Regis Corporation by F. Denise Rios (mc2) (Entered: 03/25/2002)
19 Motion by Regis Corporation for leave pursuant to FRCP 30 to extend number of depositions upon oral examination taken in this matter) (mc2) (Entered: 04/03/2002)
20 Order granting motion for leave pursuant to FRCP 30 to extend number of depositions upon oral examination taken in this matter) [19-1], extended up to 50. (td) (Entered: 05/07/2002)
21 Motion by Regis Corporation to compel discovery (mc2) (Entered: 06/06/2002)
22 Order referred motion to compel discovery [21-1] to Judge Andrew W. Austin. (Noticed 6/11/02.) (mc2) Modified on 06/11/2002 (Entered: 06/11/2002)
23 Supplemental motion by Regis Corporation : to compel discovery - supplemental supplementing motion to compel discovery [21-1] (fe) (Entered: 06/17/2002)
24 Response by EEOC in opposition to motion to compel discovery [21-1] (mc2) (Entered: 06/17/2002)
25 Order setting hearing on supplemental motion to compel discovery [23-1], motion to compel discovery [21-1] for 2:00 6/26/02 before Magistrate Austin. (Noticed 6/18/02.) (mc2) (Entered: 06/18/2002)
26 Reply by Regis Corporation to response to motion to compel discovery [21-1] (mc2) (Entered: 06/20/2002)
27 Opposed Motion by EEOC for protective order to reschedule deposition of Jack R. Kelly (mc2) Modified on 06/26/2002 (Entered: 06/26/2002)
28 Response by Regis Corporation motion for protective order to reschedule deposition of Jack R. Kelly [27-1] (mc2) (Entered: 06/26/2002)
29 Minutes of proceedings for motion hearing conducted on 6/26/02 by Judge Austin. Court Reporter: ERO. (mc2) (Entered: 06/26/2002)
28 Motion by Regis Corporation to compel deposition of Jack R. Kelly , and for sanctions (mc2) (Entered: 06/26/2002)
30 Order referring motion for protective order to reschedule deposition of Jack R. Kelly [27-1] to Judge Andrew W. Austin. (Noticed 6/28/02.) (mc2) (Entered: 06/28/2002)

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06/28/2002
07/12/2002 07/15/2002 07/15/2002 07/15/2002 07/18/2002 07/18/2002 07/18/2002 07/19/2002 07/22/2002 07/22/2002 07/23/2002 07/23/2002 07/24/2002 07/24/2002

31 Order granting in part, denying in part supplemental motion to compel discovery [23-1], granting in part, denying in part motion to compel discovery [21-1] granting motion to compel deposition of Jack R. Kelly [28-1], motion for sanctions [28-2] denying motion for protective order to reschedule deposition of Jack R. Kelly [27-1]. (Noticed 6/28/02.) (mc2) (Entered: 06/28/2002)
32 Order setting docket call for 1:30 7/24/02 . (Noticed 7/12/02.) (mc2) (Entered: 07/12/2002)
33 Motion by Regis Corporation to strike deposition testimony (settlement discussions during Jack Kelly's deposition) (mc2) (Entered: 07/15/2002)
34 Motion by Regis Corporation for court-ordered mental examination of class participants (Michael Hayes, Jack Kelly and Helio Arizola) (mc2) (Entered: 07/15/2002)
35 Order referring motion to strike deposition testimony (settlement discussions during Jack Kelly's deposition) [33-1] to Judge Andrew W. Austin. (Noticed 7/16/02.) (mc2) (Entered: 07/16/2002)
36 Advisory to the court filed by Regis Corporation requesting Court to remove defendant's motion to strike deposition testimony from docket. (mc2) (Entered: 07/19/2002)
37 Motion by Regis Corporation for leave to redepose Michael Sean Hayes and Jack Robert Kelly (mc2) (Entered: 07/19/2002)
38 Advisory to the court filed by EEOC on counsel's availability (Connie Liem between 8/4/02 & 8/9/02. (mc2) (Entered: 07/19/2002)
39 Order denying as moot motion to strike deposition testimony (settlement discussions during Jack Kelly's deposition) [33-1]. (Noticed 7/22/02.) (mc2) (Entered: 07/22/2002)
40 Notice of attorney appearance for Regis Corporation by R. Mark Dietz, J. Lee Jarrard Jr., Douglas Grant Cornwell (mc2) (Entered: 07/22/2002)
41 Order referred motion for leave to redepose Michael Sean Hayes and Jack Robert Kelly [37-1] Judge Andrew W. Austin. (Noticed 7/23/02.) (mc2) Modified on 07/23/2002 (Entered: 07/23/2002)
42 Motion by TX Attorney General for protective order , to quash , and for special hearing on motion for protective order and to quash (mc2) (Entered: 07/24/2002)
43 Response by EEOC in opposition to motion for court-ordered mental examination of class participants (Michael Hayes, Jack Kelly and Helio Arizola) [34-1] (mc2) (Entered: 07/24/2002)
Letter to Barbara Vander Voord, attorney for TX Attorney General, regarding: bar status. (mc2) (Entered: 07/24/2002)
44 Order referred motion for court-ordered mental examination of class participants (Michael Hayes, Jack Kelly and Helio Arizola) [34-1] to Judge Andrew W. Austin. (Noticed 7/24/02.) (mc2) (Entered: 07/24/2002)

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07/24/2002 07/24/2002 07/24/2002 07/24/2002 07/24/2002 07/24/2002
07/24/2002 07/24/2002 07/24/2002
07/24/2002 07/24/2002 07/25/2002
07/25/2002
07/26/2002

45 Motion by Regis Corporation to compel (plaintiff to supplement discovery responses) (mc2) (Entered: 07/24/2002)
46 Motion by Regis Corporation to compel (to redepose Helio Arizola) (mc2) (Entered: 07/24/2002)
47 Motion by EEOC to compel discovery (from defendant) (mc2) (Entered: 07/24/2002)
48 Supplemental memorandum by Regis Corporation to motion for court-ordered mental examination of class participants (Michael Hayes, Jack Kelly and Helio Arizola) [34-1] (mc2) (Entered: 07/24/2002)
49 Minutes of proceedings for docket call conducted on 7/24/02 by Judge Nowlin. Court Reporter: Logan Miller. (mc2) (Entered: 07/24/2002)
50 Order setting hearing motion for leave to redepose Michael Sean Hayes and Jack Robert Kelly [37-1], motion for court-ordered mental examination of class participants (Michael Hayes, Jack Kelly and Helio Arizola) [34-1] for 10:30 8/1/02 before Magistrate Austin. (Noticed 7/24/02.) (mc2) (Entered: 07/24/2002)
51 Order setting bench trial for 9:00 12/9/02 . (Noticed 7/24/02.) (mc2) Modified on 07/24/2002 (Entered: 07/24/2002)
52 Order on courtroom decorum and trial procedures. (Noticed 7/24/02.) (mc2) Modified on 07/24/2002 (Entered: 07/24/2002)
53 Order referring motion to compel discovery (from defendant) [47-1], motion to compel (to redepose Helio Arizola) [46-1], motion to compel (plaintiff to supplement discovery responses) [45-1], motion for protective order [42-1], motion to quash [42-2], motion for special hearing on motion for protective order and to quash [42-3] to Andrew W. Austin further ordering that all non-dispositive motions referred for resolution and all dispositive motions referred for report and recommendation. (Noticed 7/24/02.) (mc2) Modified on 07/31/2002 (Entered: 07/24/2002)
54 Amended Order setting Jury selection for 9:00 12/9/02 , and Jury trial 9:00 12/9/02 . (Noticed 7/25/02.) (mc2) (Entered: 07/25/2002)
Case referred to Judge Andrew W. Austin (mc2) (Entered: 07/31/2002)
55 Order setting hearing motion to compel discovery (from defendant) [47-1], motion to compel (to redepose Helio Arizola) [46-1], motion to compel (plaintiff to supplement discovery responses) [45-1] for 10:00 8/21/02 , and any other motions filed after this date, before Magistrate Austin. (Noticed 7/26/02.) (mc2) Modified on 07/26/2002 (Entered: 07/26/2002)
56 Order granting motion for special hearing on motion for protective order and to quash [42-3] Motion hearing motion for protective order [42-1], motion to quash [42-2] for 10:30 8/1/02 before Magistrate Austin. (Noticed 7/26/02.) (mc2) (Entered: 07/26/2002)
57 Opposed Motion by EEOC for protective order to quash deposition of EEOC investigator, Diane Webb (mc2) (Entered: 07/26/2002)

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07/29/2002 07/29/2002 07/29/2002 07/29/2002 07/29/2002 07/29/2002 08/01/2002 08/01/2002 08/02/2002
08/02/2002 08/14/2002 08/16/2002 08/19/2002 08/20/2002 08/20/2002

58 Response by EEOC in opposition to motion to compel (plaintiff to supplement discovery responses) [45-1] (mc2) (Entered: 07/29/2002)
59 Response by EEOC in opposition to motion for leave to redepose Michael Sean Hayes and Jack Robert Kelly [37-1] (mc2) (Entered: 07/29/2002)
60 Advisory to the court filed by Regis Corporation re withdrawal of motion for protective order by TX AG's Office and recall of subpoena. (mc2) (Entered: 07/29/2002)
Mooted motions for protective order [42-1], motion to quash [42-2] (mc2) (Entered: 07/29/2002)
61 Motion by Regis Corporation for special hearing - for expedited hearing on plaintiff's motion for protective order to preclude deposition of Diane Webb (mc2) (Entered: 07/31/2002)
62 Response by Regis Corporation motion for protective order to quash deposition of EEOC investigator, Diane Webb [57-1] (mc2) (Entered: 07/31/2002)
63 Minutes of proceedings for motions hearing conducted on 8/1/02 by Judge Austin. Court Reporter: ERO. (mc2) (Entered: 08/01/2002)
Motion hearing held for the following motions: [37-1], [34-1]. Written order by end of week. (mc2) (Entered: 08/01/2002)
64 Order granting in part, denying in part motion for leave to redepose Michael Sean Hayes and Jack Robert Kelly [37-1] denying motion for court-ordered mental examination of class participants (Michael Hayes, Jack Kelly and Helio Arizola) [34-1] mooting motion for protective order [42-1], mooting motion to quash [42-2], mooting motion for special hearing on motion for protective order and to quash [42-3]. (Noticed 8/2/02.) (mc2) (Entered: 08/02/2002)
65 Response by Regis Corporation motion for protective order to quash deposition of EEOC investigator, Diane Webb [57-1] (mc2) (Entered: 08/05/2002)
66 Motion by Regis Corporation for reconsideration regardint the motion for Court-Ordered Mental Examination (td) Modified on 08/14/2002 (Entered: 08/14/2002)
67 Supplemental certificate of conference filed by Regis Corporation Re: motion to compel discovery (from defendant) [47-1] (mc2) (Entered: 08/19/2002)
68 Order denying motion for reconsideration regarding the motion for Court-Ordered Mental Examination [66-1]. (Noticed 8/19/02.) (mc2) Modified on 08/19/2002 (Entered: 08/19/2002)
69 Response by EEOC in opposition to motion for reconsideration regarding the motion for Court-Ordered Mental Examination [66-1] (fe) (Entered: 08/20/2002)
70 Order denying motion for special hearing - for expedited hearing on plaintiff's motion for protective order to preclude deposition of Diane Webb [61-1]; the Court will hear oral argument on the Plaintiff's Motion for Protective Order on 8/21/02 (fe) (Entered: 08/20/2002)

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08/21/2002 08/21/2002 08/21/2002 08/22/2002
09/05/2002 09/19/2002 09/23/2002 10/02/2002 10/02/2002 10/18/2002
10/18/2002 10/23/2002 10/23/2002 10/24/2002 10/28/2002 11/07/2002

71 Advisory to the court filed by Regis Corporation re motion to compel deposition testimony of Helio Arizola. (mc2) (Entered: 08/21/2002)
72 Minutes of proceedings for pending motions hearing conducted on 8/21/02 by Judge Austin. Court Reporter: ERO. (mc2) (Entered: 08/21/2002)
Motion hearing held for the following motions: [57-1], [47-1], [46-1], [45-1]. Written order to follow. (mc2) (Entered: 08/21/2002)
73 Order granting motion for protective order to quash deposition of EEOC investigator, Diane Webb [57-1], granting in part, denying in part motion to compel discovery (from defendant) [47-1], denying motion to compel (to redepose Helio Arizola) [46-1], denying as moot motion to compel (plaintiff to supplement discovery responses) [45-1] as defendant withdrew this motion at hearing. (Noticed 8/22/02.) (mc2) (Entered: 08/22/2002)
74 Joint Advisory to the court filed by EEOC, Regis Corporation re settlement of case. Consent decree to be submitted by 9/20/02. (mc2) (Entered: 09/06/2002)
75 Motion by Jack Kelly with memorandum in support to intervene (as party plaintiff) (mc2) (Entered: 09/19/2002)
Received, Consent Decree and final judgment order entering consent decree. Originals to Magistrate Austin. (mc2) (Entered: 09/23/2002)
76 Response by TX Regis Corp. to motion to intervene (as party plaintiff) [75-1] (mc2) Modified on 10/04/2002 (Entered: 10/03/2002)
76 Motion by Regis Corporation for sanctions (against Jack R. Kelly re intervention) (mc2) (Entered: 10/03/2002)
77 Report and recommendation of Judge Austin that the District Court deny the motion for sanctions (against Jack R. Kelly re intervention) [76-1], and grant the motion to intervene (as party plaintiff) [75-1], and that the District Court sign the proposed consent decree between EEOC and Regis Corp. (Noticed CMRRR 10/21/02.) (mc2) (Entered: 10/21/2002)
CASE NO LONGER REFERRED TO Judge Andrew W. Austin (mc2) (Entered: 10/21/2002)
Acknowledgment receipt of Regis Corporation magistrate report and recommendations by Dietz & Assoc. on 10/22/02. (mc2) (Entered: 10/23/2002)
Acknowledgment receipt of EEOC magistrate report and recommendations by EEOC attorneys on 10/22/02. (mc2) (Entered: 10/23/2002)
Acknowledgment receipt of Jack Kelly magistrate report and recommendations on 10/23/02. (mc2) (Entered: 10/25/2002)
Acknowledgment receipt of Regis Corporation magistrate report and recommendations by Holland & Knight on 10/23/02. (mc2) (Entered: 10/28/2002)
78 Order accepting Magistrate's Report and Recommendation, denying motion for sanctions (against Jack R. Kelly re intervention) [76-1], granting motion to intervene (as party plaintiff) [75-1]. (Noticed 11/8/02.) (mc2) (Entered:

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11/07/2002
11/19/2002 11/19/2002 11/19/2002 11/20/2002
11/20/2002 11/20/2002
11/21/2002
11/26/2002 11/29/2002 12/03/2002 12/03/2002 12/03/2002 12/03/2002 12/03/2002 12/04/2002
12/06/2002

11/08/2002)
79 Consent judgment for EEOC against Regis Corporation (Pages: 9), with injunctive provisions, each party to bear own costs and attorneys' fees. (Noticed 11/8/02.) (mc2) (Entered: 11/08/2002)
80 Motion by Regis Corporation to abate pretrial deadlines , and to expedite ruling (mc2) (Entered: 11/19/2002)
81 Motion by Regis Corp. for leave to file a motion for summary judgment (mc2) Modified on 11/27/2002 (Entered: 11/19/2002)
Received, defendant's motion for summary judgment. (mc2) (Entered: 11/19/2002)
82 Order referring case to Magistrate Austin for resolution of any future discovery or non-dispositive motions, and report and recommendation on motion for summary judgment (if Magistrate grants motion for leave to file summary judgment motion). (Noticed 11/21/02.) (mc2) (Entered: 11/21/2002)
Case referred to Judge Andrew W. Austin (mc2) (Entered: 11/21/2002)
83 Notice of filing - certificate of conference - by Regis Corporation re no opposition to defendant's motion to abate pretrial deadlines and request for expedited ruling. (mc2) (Entered: 11/21/2002)
84 Order granting motion to abate pretrial deadlines [80-1], granting motion to expedite ruling [80-2], and that the parties file pretrial documents... by 12/6/02. (Noticed 11/21/02.) (mc2) (Entered: 11/21/2002)
85 Order setting status conference in chambers for 2:00 12/3/02 (tdk) (Entered: 11/26/2002)
86 Response by Regis Corporation to Jack Kelly's motion for continuance (tdk) (Entered: 11/29/2002)
87 Response by Jack Kelly to defendant's motion for summary judgment (motion not as yet filed). (mc2) (Entered: 12/04/2002)
88 Order withdrawing referral to Magistrate Austin. (Noticed 12/4/02.) (mc2) (Entered: 12/04/2002)
CASE NO LONGER REFERRED TO Judge Andrew W. Austin (mc2) (Entered: 12/04/2002)
89 Order denying motion for leave to file a motion for summary judgment [81-1]. (Noticed 12/4/02.) (mc2) (Entered: 12/04/2002)
Status conference held in chambers. (mc2) (Entered: 12/09/2002)
90 Motion by Jack Kelly for leave to file motion for continuance of trial, response to summary judgment and request to enlarge time for discovery (mc2) (Entered: 12/05/2002)
91 Minutes of proceedings for status conference held in chamers conducted on 12/3/02 by Judge Nowlin. Court Reporter: Logan Miller (mc2) (Entered: 12/09/2002)

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12/06/2002 12/06/2002 12/06/2002 12/09/2002 12/10/2002 12/17/2002 12/17/2002 12/17/2002
12/17/2002 01/06/2003 01/21/2003 01/22/2003 01/24/2003
01/24/2003
01/24/2003

92 Consent to trial by Magistrate by Regis Corporation, Jack Kelly (mc2) (Entered: 12/09/2002)
93 Order reassigning case to Magistrate Austin for all purposes. (Noticed 12/9/02.) (mc2) (Entered: 12/09/2002)
Case reassigned from Honorable James R. Nowlin to Judge Andrew W. Austin (mc2) (Entered: 12/09/2002)
Letter submitted by counsel for Jack Kelly regarding: vacation schedule. Copy to Court 12/11/02. (mc2) (Entered: 12/11/2002)
94 Order set status conference for 10:00 12/17/02 before Judge Austin. (AA) (td) (Entered: 12/10/2002)
95 Minutes of proceedings for status conference conducted on 12/17/02 by Judge Austin. Court Reporter: ERO. (mc2) (Entered: 12/18/2002)
Status conference held. Written order to follow. (mc2) (Entered: 12/18/2002)
96 Order granting in part, denying in part motion for leave to file motion for continuance of trial, response to summary judgment and request to enlarge time for discovery [90-1] continuing Jury selection to 9:00 2/10/03 , Jury trial 9:00 2/10/03 , and motion filing deadline 1/6/03 . (Noticed 12/18/02.) (mc2) (Entered: 12/18/2002)
97 Order setting pretrial conference for 10:30 2/6/03 . (Noticed 12/18/02.) (mc2) (Entered: 12/18/2002)
98 Motion by Regis Corporation for summary judgment , or for partial summary judgment (mc2) (Entered: 01/06/2003)
99 Advisory to the court filed by Regis Corporation (that plaintiff has not responded to defendant's summary judgment motion). (mc2) (Entered: 01/21/2003)
100 Pretrial disclosures filed by Regis Corporation (mc2) (Entered: 01/23/2003)
101 Order granting motion for summary judgment [98-1], granting motion for partial summary judgment [98-2] signed by Judge Andrew W. Austin. (Noticed 1/24/03.) (mc2) (Entered: 01/24/2003)
102 Judgment for Regis Corporation against Jack Kelly signed by Judge Andrew W. Austin (Pages: 1), that plaintiff take nothing, each party to bear own costs. (Noticed 1/24/03.) (mc2) (Entered: 01/24/2003)
Case closed (mc2) (Entered: 01/24/2003)

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