Case 5:05-cv-00749-W Document 1 Filed 06/30/2005 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(1) EQUAL EMPLOYMENT OPPORTUNITY }

COMMISSION

}

}

Plaintiff,

}

}

v.

}

}

(1) ACTION, INC., an

}

Arkansas Corporation,

}

Defendant.

}

}

CIVIL ACTION NO. JURY TRIAL DEMAND

COMPLAINT

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

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

provide appropriate relief to Charging Parties, Lance Whisennand and James Owings. The Equal

Employment Opportunity Commission alleges that the Defendant, Action, Inc. (hereinafter

“Defendant” or “Action”) violated Title VII when it subjected Lance Whisennand and James Owings

to discrimination because of their sex, male, by subjecting them to a sexually hostile work

environment, subjecting Owings to retaliation by terminating his employment and the constructive

discharge of Whisennand.

JURISDICTION AND VENUE

1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343

and 1345. This action is authorized and instituted pursuant to Section 706(f) (3) of Title VII of the

Civil Rights Act of 1964, as amended, (“Title VII”), 42 U.S.C. § 2000e-5 (f)(3), and Section 102 of

the Civil Rights Act of 1991, 42 U.S.C. § 1981A.

1

Case 5:05-cv-00749-W Document 1 Filed 06/30/2005 Page 2 of 5
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 Oklahoma.
PARTIES 3. Plaintiff, Equal Employment Opportunity Commission (“the Commission”), is an 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 Sections 706(f)(1) and (3) of Title VII, 42 U.S.C. 2000e-5(f)(1) and (3). 4. At all relevant times, Defendant Action, Inc. (hereinafter “Defendant” or “Action”) has continuously been and is now doing business in the State of Oklahoma and has continuously employed at least fifteen employees. Defendant operates Action, Inc.,. in locations within the State of Oklahoma and other states and specifically one construction site located in the Enid, Oklahoma where the Charging Parties were employed. 5. At all relevant times, Defendant 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, the Charging Parties, Lance Whisennand and James Owings, filed charges of discrimination with the Commission alleging violations of Title VII by the Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. Since at least early 2003, the Defendant has engaged in conduct in violation of Sections 703(a)(1) and 704(a) of Title VII, 42 U.S.C. § 2000e-2(a)(1) at its Oklahoma City facility.
2

Case 5:05-cv-00749-W Document 1 Filed 06/30/2005 Page 3 of 5
Specifically, the Defendant discriminated against Lance Whisennand and James Owings based upon sex (male) by subjecting them to a sexually hostile work environment. The Charging Parties were employed by Defendant at a construction site in Enid, Oklahoma. Throughout their employment with the Defendant, a male supervisor subjected Whisennand and Owings to sexual harassment, including but not limited to suggestive, lewd and offensive comments as well as unwelcome touching. The Defendant failed to have in place, and/or communicate to employees, a policy prohibiting such discriminatory treatment. Further, Defendant failed to take prompt, effective, remedial action to correct the conduct complained about by Whisennand and Owings. As a result of the sexually hostile environment, Whisennand was constructively discharged. The Defendant terminated Owings in retaliation for his opposition to unlawful employment practices under Title VII.
8. The effect of the practices complained of in paragraph 7 above has been to deprive Lance Whisennand and James Owings of equal employment opportunities because of their sex.
9. The unlawful employment practices complained of in paragraph 7 were intentional. 10. The unlawful employment practices complained of in paragraph 7 above were committed with malice or with reckless indifference to the federally protected rights of Lance Whisennand and James Owings.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant Action, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in any employment practice which discriminates on the basis of sex.
3

Case 5:05-cv-00749-W Document 1 Filed 06/30/2005 Page 4 of 5
B. Order the Defendant to institute and carry out policies, practices and programs that provide equal employment opportunities for Lance Whisennand and James Owings and other employees and which eradicate the effects of the Defendant's past unlawful employment practices.
C. Order the Defendant to make whole Lance Whisennand and James Owings, by providing appropriate back pay with prejudgment interest, in amounts to be proved at trial, pecuniary damages, out-of-pocket losses and other affirmative relief necessary to eradicate the effects of the Defendant's unlawful employment practices, including but not limited to rightful place reinstatement of Lance Whisennand and James Owings or front pay in lieu of reinstatement.
D. Order the Defendant to make whole Lance Whisennand and James Owings by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in paragraphs 7 and 10, above, including but not limited to, emotional pain, suffering, inconvenience, loss of enjoyment of life and humiliation, in amounts to be determined at trial.
E. Order the Defendant to make whole Lance Whisennand and James Owings by providing compensation for past and future pecuniary losses resulting from the unlawful practices complained of in paragraphs 7 and 10, above, in amounts to be determined at trial.
F. Order the Defendant to pay Lance Whisennand and James Owings punitive damages for its malicious conduct or reckless indifference described in paragraphs 7 and 10 above, in an amount to be determined at trial.
G. Grant such further relief as the Court deems necessary and proper in the public interest.
H. Award the Commission its costs in this action.
4

Case 5:05-cv-00749-W Document 1 Filed 06/30/2005 Page 5 of 5
JURY TRIAL DEMAND The Commission requests a jury trial on all questions of fact raised by its Complaint.
Respectfully submitted, ERIC S. DREIBAND General Counsel ROBERT CANINO, OBA No. 11782 Regional Attorney SUZANNE ANDERSON Texas Bar No. 14009470 Supervisory Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Dallas District Office 207 S. Houston Street, 3rd Floor Dallas Texas 75202 s/Michelle M. Robertson MICHELLE M. ROBERTSON, OBA 14084 Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Oklahoma City Area Office 210 Park Avenue, Suite 1350 Oklahoma City, Oklahoma 73102 Tel No. (405) 231-4363 Fax No. (405) 231-4140
JURY TRIAL DEMANDED
5

 
 Case 5:05-cv-00749-W Document 11-2 Filed 09/13/2005 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(1) EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

(2) JAMES OWINGS, an Individual, and

)

LANCE WHISSENAND, an Individual,

)

)

Plaintiff Intervenor, )

)

(1) ACTION, INC., an

)

Arkansas Corporation,

)

)

Defendant.

)

Case No. CIV-05-749-W

PLAINTIFFS’ INTERVENOR COMPLAINT

1. This is an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C.§

2000e et. seq., as amended, including 42 U.S.C. Section 1981 a, and Oklahoma law, to correct

unlawful employment practices on the basis of sex, religion, retaliation, and to remedy

intentional tortious conduct and negligent conduct, and to provide appropriate relief to Plaintiff

Intervenors, James Owings and Lance Whisennand (hereinafter referred to as “Owings” and

“Whisennand”).

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

1337 and 1343. This action is authorized and instituted pursuant to Section 706 of Title VII of

the Civil Rights Act of 1964, as amended (“Title VII”), 42 U.S.C. Section 2000e-5.

3. The employment practices alleged to be unlawful, as well as the alleged acts of

tortious and negligent conduct, were and are now being committed within the jurisdiction of the

United States District Court for the Western District of Oklahoma.

1

Case 5:05-cv-00749-W Document 11-2 Filed 09/13/2005 Page 2 of 5
4. Plaintiff, Equal Employment Opportunity Commission (the ”Commission”) filed a complaint in the United States District Court for the Western District of Oklahoma on June 30, 2005, against Defendant.
5. Owings and Whisennand, as the persons on whose behalf the Commission filed suit against Defendant, have an unconditional right to intervene in the case filed by the Commission. 42 U.S.C. Section 706(f)(1).
6. At all relevant times, Defendant has continuously been and is now doing business in the State of Oklahoma and has continuously employed at least fifteen employees. Defendant operates Action, Inc., in locations within the State of Oklahoma and other states and specifically on construction site located in Enid, Oklahoma where the Owings and Whisennand were employed.
7. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce within the meaning of Section 701 of Title VII, 42 U.S.C.§ 2000e(b), (g) and (h).
8. All conditions precedent to the institution of this action have been met. First Cause of Action
Sexually Hostile Working Environment 9. Since at least early 2003, Defendant has engaged in unlawful employment practices in violation of Title VII by creating, permitting and condoning a sexually hostile work environment. Specifically, the Defendant discriminated against Owings and Whisennand based upon sex (male) by subjecting them to a sexually hostile work environment. Owings and Whisennand were employed at a construction site in Enid, Oklahoma. Throughout their
2

Case 5:05-cv-00749-W Document 11-2 Filed 09/13/2005 Page 3 of 5
employment with the Defendants, a male supervisor subjected Owings and Whisennand to sexual harassment, including but not limited to suggestive, lewd and offensive comments as well as unwelcome touching. The Defendant failed to have in place, and/or communicate to employees, a policy prohibiting such discriminatory treatment. Further, Defendant failed to take prompt, effective, remedial action to correct the conduct complained about by Owings and Whisennand. As a result of the sexually hostile environment, Whisennand was constructively discharged. The Defendant terminated Owings in retaliation for his opposition to unlawful employment practices under Title VII.
10. As a result Owings and Whisennand are entitled to relief as set forth below in their prayer for relief.
Seventh Cause of Action Violation of Oklahoma Law 11. By subjecting, Owings and Whisennand to sexual harassment and wrongful termination, Defendant engaged in extreme and outrageous conduct and intentionally inflicted emotional distress upon Owings and Whisennand. 12. As a result, Owings and Whisennand are entitled to the relief set forth below in their prayer for relief. WHEREFORE, James Owings and Lance Whisennand respectfully request the following relief: A. back pay; B. interest; C. pecuniary compensatory damages;
3

Case 5:05-cv-00749-W Document 11-2 Filed 09/13/2005 Page 4 of 5
D. non-pecuniary compensatory damages, including but not limited to damages for pain and suffering, humiliation, stress, and anxiety;
E. punitive damages; F. reinstatement, or in the alternative, front pay in lieu of reinstatement; G. costs; H. reasonable attorneys fees: I. such other legal or equitable relief as the Court deems appropriate.
Respectfully submitted. s/Michael R. Coulson Michael R. Coulson, OBA 17599 Attorney For Intervenor Plaintiffs Post Office Box 1028 Stillwater, Oklahoma 74076 Tel No. (405) 385-0048 Fax No. (405) 533-3328
JURY TRIAL DEMANDED
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Case 5:05-cv-00749-W Document 11-2 Filed 09/13/2005 Page 5 of 5
CERTIFICATE OF SERVICE I hereby certify that on September 13, 2005, I electronically transmitted the attached document to the Clerk of Court using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: Michelle M. Robertson, OBA #14084 Trial Attorney Equal Employment Opportunity Commission Oklahoma City Area Office 210 Park Avenue, Suite 1350 Oklahoma City, Oklahoma 73102 Evan B. Gatewood, OBA #13412 Hayes Magrini & Gatewood 1220 North Walker Post Office Box 60140 Oklahoma City, Oklahoma 73146-0140
s/Michael R. Coulson____________ Michael R. Coulson
5

 
 Case 5:05-cv-00749-W Document 29 Filed 05/15/2006 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF OKLAHOMA

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

and

)

)

JAMES OWINGS and LANCE

)

WHISENNAND,

)

)

Plaintiffs-Intervenors,

)

)

vs.

)

)

ACTION, INC.,

)

)

Defendant.

)

No. CIV-05-749-W

ORDER

This matter comes before the Court on the Motion for Partial Summary Judgment

filed pursuant to Rule 56, F.R.Civ.P., by plaintiff Equal Employment Opportunity

Commission ("EEOC") and plaintiffs-intervenors Lance Whisennand and James Owings.

Defendant Action, Inc., has responded to the motion, and based upon the record, including

the following undisputed facts, the Court makes its determination as to those affirmative

defenses asserted by Action and challenged by the movants.

1. On July 23,2003, both Whisennand and Owings submitted information to the

EEOC about alleged discrimination at their former place of employment, Action, Inc.

("Action").

2. On November 5, 2003, their complaints were each formalized in a Charge of Discrimination.

Case 5:05-cv-00749-W Document 29 Filed 05/15/2006 Page 2 of 7
3. In his Charge of Discrimination, Whisennand contended
(a) that from January 2,2003, to January 24,2003, he was subjected to inappropriate comments and conduct by supervisor Danny Cook;
(b) that "[o]n January 24, 2003, Cook fell on [him] ... while [he] ... was in a ditch installing plumbing and began to hump [him] ... from behind while making sexual comments;"
(c) that he had "witnessed [Cook] ... attack a co-worker in the same manner earlier;"
(d) that he did not return to work after that day; and (e) that he had been discriminated against because of his gender. 4. In Owings' Charge of Discrimination, he contended
(a) that beginning on January 6, 2003, he "was subjected to demeaning and harassing comments" from Cook;
(b) that on January 24, 2003, while he "was in a ditch installing plumbing, Cook tackled ... [him] from behind and began humping ... [him];"
(c) that several days later, Cook "walked up behind ... [him], grabbed [him] ... and began humping [him] ... again;"
(d) that his employment was thereafter terminated by Jamison Soyster, an apprentice and Cook's "second in command;" and
(e) that he had been discriminated against because of his gender and retaliated against for opposing an unlawful employment practice. 5. Cook had supervisory authority over both Whisennand and Owings.
6. Action had no written policies, rules or procedures designed to prohibit sexual
harassment at the time this alleged harassment occurred. On June 30,2005, the EEOC brought suit against Action under Title VII of the Civil
Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq., to correct al/eged
unlawful employment practices and to provide relief to Whisennand and Owings. On
2

Case 5:05-cv-00749-W Document 29 Filed 05/15/2006 Page 3 of 7
October 4, 2005, the Court permitted Whisennand and Owings to intervene, and on October 6, 2005, they filed their complaint in intervention. Both Whisennand and Owings contended that they had been subjected to a hostile work environment in violation of Title VII and that they had suffered intentionally inflicted emotional distress in violation of state common law. Owings also sought relief under Title VII for Action's alleged retaliatory conduct.
In the Motion for Partial Summary Judgment now pending before the Court, the movants have challenged the first, second, third, sixth and seventh affirmative defenses asserted by Action in its answers filed on August 3, 2005, and October 7, 2005 (collectively "answer").1 Action has advised the Court that it now wishes to withdraw
(1) the first affirmative defense that seeks relief for failure to state a claim upon which relief may be granted;
(2) that portion of the second affirmative defense that seeks relief based upon the doctrines of waiver, laches and/or estoppel;
(3) that portion of the second affirmative defense that seeks relief based upon the statute of limitations applicable to any claim asserted in this case under Title VII;
(4) the third affirmative defense that seeks relief based upon the failure to satisfy all statutory conditions, including exhaustion of administrative remedies; and
(5) the seventh affirmative defense that challenges the constitutionality of any award of punitive damages rendered by the jury.
1The movants did not challenge that portion of Action's second affirmative defense that is based upon the statute of limitations applicable to the state law claim of intentional infliction of emotional distress asserted by Owings and Whisennand or Action's fourth and fifth affirmative defenses.
3

Case 5:05-cv-00749-W Document 29 Filed 05/15/2006 Page 4 of 7
In light of Action's response, only one challenge remains, and that challenge is directed at Action's sixth affirmative defense, which is based upon the decisions of the United States Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). Upon review of the record, the Court finds first as a matter of law that Action cannot rely upon this defense as to Owings. While the parties have disagreed over the reasons for Owings' discharge from employment, there is no dispute that his employment was terminated. Thus, there can be no dispute that Owings suffered a tangible employment action, and the Supreme Court has held that n[n]o affirmative defense is available ... when ... [a] supervisor's harassment culminates in a tangible employment action, such as discharge ....n ~, Ellerth, 524 U.S. at 765.
In connection with Action's ability to rely on this affirmative defense to shield itself from liability on Whisennand's Title VII claim, the Court has considered the standards that govern motions seeking summary judgment. In this connection, summary judgment is appropriate only if "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Rule 56(c), F.R.Civ.P. At this stage of the litigation, the Court does not evaluate the credibility of the witnesses, ~, Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 255 (1986), or "weigh the evidence and determine the truth of the matter ...." Id. at 249. Rather, the Court must decide "whether there is a genuine issue for trial ... [and] there is no [triable] issue ... unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted). The Court's inquiry must be whether the
4

Case 5:05-cv-00749-W Document 29 Filed 05/15/2006 Page 5 of 7
evidence, when viewed "through the prism of the substantive evidentiary burden," id. at 254, "presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.
In Faragher and Ellerth, the Supreme Court addressed "the circumstances under which an employer may be held liable under Title VII ... for the acts of a supervisory employee whose sexual harassment of subordinates has created a hostile work environment amounting to employment discrimination." Faragher, 524 U.S. at 780. In those instances where the employee suffers the unwelcome sexual advances of a supervisor but yet suffers no adverse tangible employment action, a defending employer to escape liability or the imposition of damages must establish by a preponderance of the evidence
"(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Ellerth, 524 U.S. at 765; ~, Faragher, 524 U.S. at 807. It is undisputed that Action had not promulgated a written "antiharassment policy with complaint procedure," iQ., atthe time the events in this lawsuit occurred. The absence of a written grievance procedure designed specifically to address sexual harassment however is not fatal to Action's ability to rely upon this defense. While U[t]he lack of such a written policy procedure ... certainly weighs in the ... [movants'] favor [in this case] in determining whether there is a genuine issue of material fact with regard to whether... [Action] exercised reasonable care to prevent any ... harassing behavior," Walker v. Thompson, 214 F.3d 614, 627 (5th Cir. 2000), it is but one factor to consider.
5

Case 5:05-cv-00749-W Document 29 Filed 05/15/2006 Page 6 of 7
Action has contended that it had "an informal open door policy for any employee who had a complaint," Response at 3, and that "employee complaints were routed through management at the home office." Id. In support of these statements, Action has submitted the affidavit of Alan Wright, Action's president. In his affidavit, Wright has stated that "information identifying the home office address and telephone number ... was posted at the job site [where Whisennand was working] and available to employees at the onsite job
trailer." Affidavit at 113 (May 1,2006).
In reviewing the record, the Court finds no significantly probative evidence that creates a genuine factual dispute over whether Whisennand knew or should have known about this "informal open door policy" or over whether this informal grievance procedure was designed to specifically address complaints about harassment or other discriminatory conduct. Likewise, the Court finds no evidence that creates a sufficient disagreement over whether Whisennand had access to the onsite job trailer or over whether he was ever advised that contact information was posted at this location. Finally, the Court finds no evidence in the record regarding the steps Action took to make its employees aware of this complaint procedure, and as stated, no evidence that Action had any antiharassment policy, written or unwritten, formal or informal, "to prevent and correct prom ptly any sexually harassing behavior." Ellerth, 524 U.S. at 765. In the absence ofthe same, the Court finds no genuine dispute exists with regard to the first prong of this affirmative defense sufficient to overcome the movants' request for summary judgment.2
2Having determined that no conflict exists with regard to the first prong sufficient to defeat the movants' Motion for Partial Summary Judgment, the Court has not considered the arguments and authorities advanced by the parties in connection with the second prong of this affirmative defense.
6

Case 5:05-cv-00749-W Document 29 Filed 05/15/2006 Page 7 of 7 Based upon the foregoing, the Court finds that the movants are entitled to summary judgment as to Action's first, second (as it pertains to the doctrines of waiver, laches and/or estoppel as to all claims and to the statute of limitations applicable to the Title VII claims), third and seventh affirmative defenses because Action has advised that it does not now intend to pursue these defenses and as a matter of law as to Action's sixth affirmative defense and GRANTS the movants' Motion for Partial Summary Judgment filed on April 3,2006, accordingly.
J ENTERED this /5 day of May, 2006.
~ LE9"R. WEST Ur<1ITED STATES DISTRICT JUDGE
7

 
 Case 5:05-cv-00749-W Document 33 Filed 06/20/2006 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(1) EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

(2) JAMES OWINGS AND LANCE

)

WHISENNAND,

)

Plaintiff Intervenors,

)

)

v.

)

)

(1) ACTION, INC., an

)

Arkansas Corporation,

)

)

Defendant.

)

F/ ED
JUN2
02006
U.S8 . Dlsr Y cOUR!~ , C.'EUSl/T' vw,'i<0, C.cE,8K
ERN DISr OF OK.
Dt~pUry LA.
CASE NO. CIV-05-749-W

CONSENT DECREE THIS CONSENT DECREE is made and entered into by and between the Equal Employment Opportunity Commission ("EEOC"), James Owings, Lance Whisennand and Action, Inc. ("Action") in the United States District Court for the Western District of Oklahoma, with regard to the EEOC's Complaint filed on June 30, 2005 (Complaint), in Civil Action No. CIV-005-749-W. TheComplaint is based upon Charges ofDiscrimination filed by James Owings and Lance Whisennand, against the Defendant employer. The above-referenced Complaint alleges that the Defendant Action, Inc. violated Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991, by subjecting the Charging Parties to sexual harassment, retaliation and constructive discharge. The Defendant employer denies all of the allegations made in the Complaint filed by EEOC and all the allegations contained in the complaint filed by Plaintiff Intervenors. The Charging Parties intervened in this action, as permitted by law.
Consent Decree

Case 5:05-cv-00749-W Document 33 Filed 06/20/2006 Page 2 of 11

The EEOC, Plaintiff Intervenors and Defendant Action agree to compromise and settle the differences embodied in the Complaint and intend that the terms and conditions ofthe compromise and settlement be set forth in this Consent Decree ("Consent Decree").
NOW, THEREFORE, in consideration of the mutual promises and agreements set forth herein, the sufficiency ofwhich is hereby acknowledged, the parties agree as follows, the Court finds appropriate and therefore, it is ORDERED, ADJUDGED AND DECREED that:
1. This Consent Decree resolves all issues raised in EEOC Charge Nos. 311 2003 02911 and 311 2003 02909. This Decree further resolves all issues raised in the Complaint filed by the EEOC in this civil action and the Complaints filed by the Charging Parties. The EEOC, Charging Parties waive further claims and/or litigation on all issues raised in the above-referenced Charges and Complaint. The EEOC does not waive processing or litigating charges other than the above-referenced Charge.
2. The parties agree that this Consent Decree does not constitute an admission by Action ofany violation ofTitle VII or any state law claims alleged by PlaintiffIntervenors. The Defendant Action denies any violation of local, state or federal law, common or statutory, including but not limited to, Title VII of the Civil Rights Act of 1964, as amended or Title I of the Civil Rights Act of 1991.
3. Defendant agrees that it shall conduct all employment practices in a manner which does not subject any employee to discrimination as prohibited by Title VII of the Civil Rights Act of 1964. Defendant further agrees that there shall be no retaliation against any employee because that person has opposed any practice made unlawful under Title VII, or has filed a charge of discrimination, or has given testimony, assistance, or has participated in any manner in any

CONSENT DECREE

2

Case 5:05-cv-00749-W Document 33 Filed 06/20/2006 Page 3 of 11

investigation, proceeding or hearing under Title VII. 4. Defendant agrees to post the Notice appended hereto as Attachment "A" on the
employee bulletin board at all of Defendant's work sites within ten (10) days after the entry of the Consent Decree. Defendant will report to the EEOC that it has complied with this requirement within 14 days after posting the notice. The notice shall remain posted during the term of the Consent Decree.
5. The Defendant agrees to immediately implement policies regarding sexual harassment and retaliation as prohibited by Title VII including the implementation and notice of a complaint procedure for employees to notify Defendant ofany alleged complaints ofdiscrimination.
6. For each year that the Consent Decree is in effect, Defendant agrees to conduct training for all employees, including management employees, advising them ofthe requirements and prohibitions of the federal anti discrimination laws with a special emphasis on sexual harassment and retaliation. The training will inform the employees of the complaint procedure for individuals who believe they have experienced discrimination. The training will also advise the employees of the consequences ofviolating the federal anti-discrimination laws. The training shall be at least two (2) hours in duration. No less than 10 days before the training is conducted, Defendant agrees to give written notice to the EEOC as to the date and location of the training, the name and qualifications of the person providing the training and the substance of the training. All materials used in conjunction with the training shall be forwarded to the EEOC. Within 20 days following the training, Defendant shall submit to the EEOC confirmation that the training was conducted, and a list of attendees, and a copy of all materials used in conjunction with the training.
7. No less than 30 days after the training is conducted, Defendant agrees to give written

CONSENT DECREE

3

Case 5:05-cv-00749-W Document 33 Filed 06/20/2006 Page 4 of 11

notice to the EEOC as to the date and location ofthe training, the name of the person providing the training and the substance of the training.
8. During the effective period of this Decree, Defendant shall, every six (6) months, provide written notification to the EEOC's Regional Attorney in its St. Louis District Office of any internal complaint of sexual harassment, made by any employee, including the name(s) of the employee(s), a description of the investigation of the complaint(s), the finding of the investigation and a description of action taken, or resolution of the complaint(s). In the event there are no complaints ofsexual harassment, made by any employees during any six (6) month reporting period, Defendant shall provide written notification to the EEOC's Regional Attorney in its St. Louis District Office that no such complaints have been made.
9. Defendant agrees to remove from all personnel files of the Charging Parties, all documents, entries and references relating to: the facts and circumstances which led to the filing of the charges of discrimination; the charge itself; and the complaint filed by the EEOC in federal court based upon the charges.
10. Defendant agrees to pay monetary relief to the Charging Parties, for all claims, the total sum of forty thousand and noll 00 dollars ($40,000.00), inclusive of attorneys fees and costs.
11. The payment referenced in paragraph 10, above, shall be made 10 days after the date of entry of the Consent Decree, by cashier's check made payable to the Charging Parties and their counsel. The check shall be sent by certified mail, return receipt requested or by hand delivery to Charging Parties attorney.
12. Defendant agrees to report to the EEOC within 14 days of entry of this Consent Decree, regarding its compliance with the agreements set forth in paragraphs 2 through 10 above.

CONSENT DECREE

4

Case 5:05-cv-00749-W Document 33 Filed 06/20/2006 Page 5 of 11

13. All reports to the EEOC required by the Consent Decree shall be sent to Michelle M. Robertson, Sr. Trial Attorney, EEOC, 215 Dean A. McGee Avenue, Suite 524, Oklahoma City, Oklahoma 73102.
14. If Defendant, Action, fails to tender payment or otherwise fails to timely comply with the terms of paragraphs 10-11 above, Defendant Action, shall:
a. Pay interest at the rate calculated pursuant to 26 U.S.C. Section 6621(b) on any untimely or unpaid amounts; and
b. Bear any additional costs incurred by the EEOC caused by the noncompliance or delay of the Defendant.
15. Neither the EEOC, Charging Parties, Aggrieved Parties, nor Defendant Action, shall contest the validity ofthis Consent Decree nor the jurisdiction ofthe federal district court to enforce this Consent Decree and its terms or the right of either party to the Consent Decree to bring an enforcement action upon breach of any term of this Consent Decree by either such party. Nothing in this Decree shall be construed to preclude the EEOC from enforcing this Decree in the event that Defendant Action, fails to perform the promises and representations contained herein. The EEOC shall be authorized to seek compliance with the Consent Decree through civil action in the United States District Court.
16. The parties to this Consent Decree agree to bear their own costs and attorney's fees associated with the above-referenced Complaint.
17. The term of this Decree shall be for two (2) years from the effective date. The Court shall retain jurisdiction to enforce the terms of this Decree until the expiration of the term of the Consent Decree.

CONSENT DECREE

5

Case 5:05-cv-00749-W Document 33 Filed 06/20/2006 Page 6 of 11

SO ORDERED, ADJUDGED AND DECREED this

day of

-""7~""f-!'"~...g......r<:...----" 2006.

qlu"E> L~~ E"/ E/R.C 'WEASd T L".// / ~
u.s. DISTRICT COURT JUDGE

APPROVED FOR ENTRY:
FOR PLAINTIFF U.S. E.E.O.C.:
ROBERT JOHNSON Regional Attorney St. Louis District Office
BARBARA A. SEELY Supervisory Trial Attorney St. Louis District Office
slMichelle M. Robertson MICHELLE M. ROBERTSON, OBA #14084 Sr. Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Area Office for the State of Oklahoma 215 Dean A. McGee Avenue, Suite 524 Oklahoma City, Oklahoma 73102 Tel No. 405-231-4363 Fax No. 405-231-5816

FOR PLAINTIFF INTERVENORS:

sl Michael R. Coulson *1 certify that I have the signed original of this document,
which is available for inspection at any time by the Court or a party to this action.
Michael R. Coulson Attorney for Charging Parties P.O. Box 1028 Stillwater, Oklahoma 74076-1028 (405) 385-0048

CONSENT DECREE

6

Case 5:05-cv-00749-W Document 33 Filed 06/20/2006 Page 7 of 11
FOR DEFENDANT Action:
sf Evan Gatewood *I certify that I have the signed original of this document,
which is available for inspection at any time by the Court or a party to this action.
Robert L. Magrini Evan B. Gatewood Hayes, Magrini & Gatewood 1220 North Walker P.O. Box 60140 Oklahoma City, OK 73146-0140 Tel No. (405) 235-9922 Fax No. (405) 235-6611 nnagrini@hmglawyers.com egatewood@hmglawyers.com

CONSENT DECREE

7

Case 5:05-cv-00749-W Document 33 Filed 06/20/2006 Page 8 of 11 Attachment A

CONSENT DECREE

8

Case 5:05-cv-00749-W Document 33 Filed 06/20/2006 Page 9 of 11

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Dallas District Office207 s. Houston Street, 3rd Floor
NOTICE TO ALL EMPLOYEES

Dallas, TX 75202-4726 (214) 655-3355
TTY (214) 655-3363 FAX (214) 655-3443

This NOTICE is being posted pursuant to a Consent Decree entered in Federal Court between ACTION, INC. and the U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC). This NOTICE will be conspicuously posted for a period of two (2) years at this facility and in all places where employment notices are posted. It must not be altered, defaced, or covered by any other material.

POLICY: Discrimination of any kind can and often will detract from employees' job performance, discourage employees from remaining on the job, keep employees from advancing in their careers and lowers overall employee morale and productivity. It is the policy of ACTION that sexual harassment and retaliation of any kind as prohibited by federal anti discrimination law is unacceptable conduct and will not be condoned.

PURPOSE: It is the purpose of this policy to reaffirm and amplify the position of Title VII of the Civil Rights Act of 1964, as amended, and the Equal Employment Opportunity Commission's guidelines on retaliation and to reiterate ACTION's policy on discrimination.

SCOPE: This policy extends to all employees of ACTION both management, non-management, and temporary/probationary.

DEFINITIONS: Sexual harassment has been defined as follows: Unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment. Sexual harassment is a form of misconduct that undermines the integrity of the employment relationship. No employee, either male or female, should be subjected to unsolicited and unwelcome sexual conduct, either verbal or physical.

Examples of behavior that may constitute sexual harassment include but are not limited to the following:

*

Hugging, grabbing or any type of unnecessary touching of another person.

* Making unwelcome sexual advances.

*

Foul or obscene language ofa sexual nature, including jokes.

*

Requests for sexual favors whether in exchange for benefits or otherwise.

Title VII prohibits retaliation because allowing such conduct would have a chilling effect upon the willingness of individuals to speak out against employment discrimination, to participate in an internal investigation or to participate in the EEOC process. Retaliation has been defined as taking adverse action against a person who has:

•

Opposed any practice made unlawful under Title VII

•

Has filed a charge of discrimination

•

Has given testimony, assistance, or has participated in any manner in any investigation,

proceeding or hearing under Title VII.

Examples of adverse action include but are not limited to the following: Firing a person, denial

Case 5:05-cv-00749-W Document 33 Filed 06/20/2006 Page 10 of 11

of a promotion, refusal to hire, denial of job benefits, demotion, suspension, discharge, reprimands, negative evaluations, harassment, negative job references and limiting access to other privileges allowed all employees.

RESPONSIBILITY: Each manager and supervisor has a responsibility to maintain a workplace free of retaliation. Each level of management is responsible for ensuring that all personnel policies, procedure, and activities are in full compliance with applicable federal, state, and local equal employment laws, statutes, rules, and regulations regarding discrimination and retaliaion. Employees are expected to read, understand, and follow ACTION's policies against discrimination.

REPORTING PROCEDURES: Any employee who believes that he or she has been subjected to

retaliation is expected to report the alleged act as soon as possible to either that person's immediate

supervisor, any supervisor or manager with ACTION or to the Human Resources Department. The

Human Resources Department may be contacted at (address)

or by

telephone at

. Supervisors and mangers who are informed

of an alleged incident of discrimination must immediately notify the Human Resources Department.

A person either alternatively, or in addition to reporting such an allegation to company officials, may contact the U.S. Equal Employment Opportunity Commission for the purposes of filing a charge of employment discrimination. The address and telephone number of the U.S. EEOC office is 210 Park Avenue, Suite 1350, Oklahoma City, OK 73102; (405) 231-4911. Information about your rights and how to file a charge is available on the Internet at www.eeoc.gov.

INVESTIGATION OF COMPLAINTS: A complete investigation of each complaint will be undertaken immediately by the Human Resources Department. The investigation may include interview of all employees and supervisors at the facility, the inspection of documents, including personnel records, and full inspection of the premises.

PUNISHMENT FOR VIOLATION: Employees engaged in retaliation as prohibited by Title VII can expect serious disciplinary action. After appropriate investigation, any employee, whether management or non- management, who has been found to have discriminated against another employee will be subject to appropriate sanctions, depending on the circumstances, from a written warning in his or her personnel file up to and inc1uding termination of employment.

RETALIATION: There shaH be no retaliation against any employee because that person has opposed what they believe to be unlawful employment practices; or has filed a charge of discrimination, or has given testimony, assistance, or has participated in any manner in any investigation, proceeding or hearing under Title VII of the Civil Rights Act of 1964. ACTION wil1 not punish you for reporting discrimination simply because you have made a complaint under the above guidelines.

PROTECTION OF PRIVACY: The question of whether a particular action or incident constitutes gender discrimination requires a determination based on all available facts. ACTION will therefore make a concerted effort to protect the privacy of all personnel. Confidential information will be shared on a need-to-know basis to complete the investigation and to deal appropriately with the situation.

EXCEPTIONS: There are no exceptions to this policy.

Case 5:05-cv-00749-W Document 33 Filed 06/20/2006 Page 11 of 11

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE REMOVED OR DEFACED BY ANYONE. THIS NOTICE WILL BE POSTED FOR A PERIOD OF TWO YEARS.
Signed this _ _ _ _ _ day of _ _ _ _ _ _ _ __

Date

ACTION Representative

Date

Don Stevens, Acting Area Director

Equal Employment Opportunity Commission

 
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Page 1 of 5

87BF, CLOSED
U.S. District Court Western District of Oklahoma[LIVE] (Oklahoma City)
CIVIL DOCKET FOR CASE #: 5:05-cv-00749-W

Equal Employment Opportunity Commission v. Action Inc Assigned to: Honorable Lee R. West Cause: 42:2000 Job Discrimination (Sex)

Date Filed: 06/30/2005 Date Terminated: 06/20/2006 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Plaintiff
Equal Employment Opportunity Commission

represented by Barbara A Seely EEOC-ST LOUIS 1222 Spruce St Room 8.100 St Louis, MO 63103-2818 314-539-7914 Fax: 314-539-7895 Email: barbara.seely@eeoc.gov ATTORNEY TO BE NOTICED

Michelle M Robertson EEOC-OKC Equal Employment Opportunity Commission 215 Dean A McGee Suite 524 Oklahoma City, OK 73102 405-231-4363 Fax: 405-231-45816 Email: michelle.robertson@eeoc.gov ATTORNEY TO BE NOTICED

Intervenor Plaintiff
James Owings an Individual

Robert G Johnson EEOC-ST LOUIS 1222 Spruce St Room 8.100 St Louis, MO 63103-2818 314-539-7910 Fax: 314-539-7895 Email: robert.johnson@eeoc.gov ATTORNEY TO BE NOTICED
represented by Michael R Coulson Michael Coulson Attorney at Law

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Intervenor Plaintiff Lance Whissenand an Individual
V. Defendant Action Inc an Arkansas Corporation
Third Party Plaintiff James Edward Owings TERMINATED: 09/13/2005 Third Party Plaintiff Lance Adrian Whisennand TERMINATED: 09/13/2005
V. Third Party Defendant Action Inc an Arkansas Corporation TERMINATED: 09/13/2005

P O Box 1028 Stillwater, OK 74076 405-385-0048 Fax: 405-533-3328 Email: mrcattorney@yahoo.com ATTORNEY TO BE NOTICED
represented by Michael R Coulson (See above for address) ATTORNEY TO BE NOTICED
represented by Evan B Gatewood Hayes & Magrini 1220 N Walker Ave Oklahoma City, OK 73146-0140 405-235-9922 Fax: 405-235-6611 Email: egatewood@hmglawyers.com ATTORNEY TO BE NOTICED
Robert L Magrini Hayes & Magrini 1220 N Walker Ave Oklahoma City, OK 73146-0140 405-235-9922 Fax: 405-235-6611 Email: rmagrini@hmglawyers.com ATTORNEY TO BE NOTICED
represented by Michael R Coulson (See above for address) ATTORNEY TO BE NOTICED
represented by Michael R Coulson (See above for address) ATTORNEY TO BE NOTICED

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Date Filed 06/30/2005
06/30/2005 06/30/2005 07/06/2005 07/07/2005 07/20/2005
08/03/2005 08/03/2005 08/03/2005 08/11/2005 09/13/2005
09/13/2005
09/13/2005
09/13/2005
09/14/2005
09/28/2005

#

Docket Text

1 COMPLAINT against Action Inc, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet)(brs, ) (Entered: 06/30/2005)

2 ENTRY of Appearance by Michelle M Robertson on behalf of Equal Employment Opportunity Commission (brs, ) (Entered: 06/30/2005)

3 GENERAL ORDER 04-02 (April 15, 2004) Mandatory Electronic Case Filing (brs, ) (Entered: 06/30/2005)

4 PRAECIPE for 1 summons by Equal Employment Opportunity Commission. (brs, ) (Entered: 07/07/2005)

Summons Issued as to Action Inc. (brs, ) (Entered: 07/07/2005)

5 SUMMONS Returned Executed by Equal Employment Opportunity Commission. Action Inc served on 7/14/2005, answer due 8/3/2005. (Robertson, Michelle) (Entered: 07/20/2005)

6 ENTRY of Appearance by Robert L Magrini on behalf of Action Inc (Magrini, Robert) (Entered: 08/03/2005)

7 ENTRY of Appearance by Evan B Gatewood on behalf of Action Inc (Gatewood, Evan) (Entered: 08/03/2005)

8 ANSWER to Complaint by Action Inc.(Gatewood, Evan) (Entered: 08/03/2005)

9 DOCKET: Scheduling Conference set for 10/5/2005 at 09:20 AM in Chambers before Honorable Lee R. West. (brs, ) (Entered: 08/11/2005)

10 FIRST THIRD PARTY COMPLAINT against all defendants, filed by James Edward Owings, Lance Adrian Whisennand.(Coulson, Michael) (Entered: 09/13/2005)

11 FIRST INTERVENOR COMPLAINT, filed by Action Inc. (Attachments: # 1 Attachment 1 - Intervenor Complaint# 2 Attachment 2 - Proposed Order)(Coulson, Michael) (Entered: 09/13/2005)

Docket Annotation: Document number 11 should be filed as a Motion to Intervene, NOT as a First Intervenor Complaint. (brs, ) (Entered: 09/13/2005)

12 ORDER that the Court SRIKES Document 10 Third Party Complaint filed by James Edward Owings, Lance Adrian Whisennand . Signed by Judge Lee R. West on 9/13/05. (brs, ) (Entered: 09/13/2005)

Docket Annotation: Pursuant to document number 12 the Third Party Plaintiffs and Third Party Defendant have been terminated. (brs, ) (Entered: 09/14/2005)

13 JOINT STATUS REPORT AND DISCOVERY PLAN by Plaintiff Equal

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10/04/2005
10/05/2005
10/06/2005 10/07/2005 11/03/2005 12/01/2005 12/06/2005 12/06/2005 12/13/2005 02/17/2006 02/24/2006 04/03/2006

Employment Opportunity Commission. (Costas, Toby) (Entered: 09/28/2005)
14 ORDER that the Court grants the Motion to Intervene re 11 and directs the movants to file their complaint in intervention within 5 days of this order . Signed by Judge Lee R. West on 10/4/05. (brs, ) (Entered: 10/04/2005)
15 SCHEDULING ORDER: Motions to join due 10/5/05; Motions to amend due 10/5/05; Pla witness list due 12/1/05; Pla exhibit list due 12/1/05; Dft witness list due 10 days t/a; Dft exhibit list due 10 days t/a; Motions in limine due 8/1/06; Jury instructions due 8/1/06; Trial briefs due 8/1/06; Discovery due by 7/1/2006. Jury Trial set for 8/14/2006 at 09:00 AM in Courtroom #303 before Honorable Lee R. West. Motions due by 4/1/2006. Pretrial Report due by 8/1/2006.. Signed by Judge Lee R. West on 10/5/05. (brs, ) (Entered: 10/05/2005)
16 FIRST INTERVENOR COMPLAINT, filed by James Edward Owings, Lance Adrian Whisennand.(Coulson, Michael) (Entered: 10/06/2005)
17 ANSWER to Intervenor Complaint by Action Inc.(Gatewood, Evan) (Entered: 10/07/2005)
18 DISCLOSURE STATEMENT - CORPORATE by Action Inc, Action Inc. (Gatewood, Evan) (Entered: 11/03/2005)
19 Exhibit List / Witness List for Plaintiffs EEOC & Intervenors by Plaintiff Equal Employment Opportunity Commission. (Robertson, Michelle) (Entered: 12/01/2005)
20 OBJECTIONS re 19 Exhibit List / Witness List filed by Action Inc, Action Inc. (Gatewood, Evan) (Entered: 12/06/2005)
21 Exhibit List / Witness List by ThirdParty Defendant Action Inc, Defendant Action Inc. (Gatewood, Evan) (Entered: 12/06/2005)
22 OBJECTIONS re 21 Exhibit List / Witness List of Defendant filed by Equal Employment Opportunity Commission. (Robertson, Michelle) (Entered: 12/13/2005)
23 ENTRY of Appearance by Barbara A Seely on behalf of Equal Employment Opportunity Commission (Seely, Barbara) (Entered: 02/17/2006)
24 ENTRY of Appearance by Robert G Johnson on behalf of Equal Employment Opportunity Commission (Johnson, Robert) (Entered: 02/24/2006)
25 MOTION for Summary Judgment by Equal Employment Opportunity Commission. (Attachments: # 1 Cover Page, Table of Contents and Table of Authorities# 2 Exhibit 1 - Complaints# 3 Exhibit 2-Whisennand Intake Q, part 1# 4 Exhibit 2-Whisennand intake Q, part b# 5 Exhibit 3Whisennand Charge# 6 Exhibit 4- Whisennand S.Harassment Q.# 7 Exhibit 5-Owings Intake Q, part a# 8 Exhibit 5-Owings Intake Q, part b#

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04/21/2006 04/26/2006 05/01/2006
05/15/2006 05/16/2006 05/31/2006 06/19/2006 06/20/2006

9 Exhibit 6-Owings Charge# 10 Exhibit 7-Admissions of Defendant# 11 Exhibit 8-Letter by Defendant# 12 Exhibit 9- Notice of Charges# 13 Exhibit 10-Request for Information by EEOC# 14 Exhibit 10a-Letter by Defendant# 15 Exhibit 11-Letters of Determination# 16 Exhibit 12Conciliation letter by EEOC# 17 Exhibit 13-Conciliation Failure ltr) (Robertson, Michelle) (Entered: 04/03/2006)
26 MOTION for Extension of Time to File Response/Reply as to 25 MOTION for Summary Judgment by Action Inc, Action Inc. (Gatewood, Evan) (Entered: 04/21/2006)
27 ORDER granting 26 Motion for Extension of Time to File Response re 25 MOTION for Summary Judgment, Response due by 5/3/2006. Signed by Judge Lee R. West on 4/26/06. (brs, ) (Entered: 04/26/2006)
28 RESPONSE to Motion re 25 MOTION for Summary Judgment filed by Action Inc, Action Inc. (Attachments: # 1 Affidavit Affidavit of Donny Cook# 2 Receipt Affidavit of Alan Wright# 3 Attachment Action's Answers to EEOC's Interrogatories)(Gatewood, Evan) (Entered: 05/01/2006)
29 ORDER granting 25 Plaintiff's Motion for Partial Summary Judgment . Signed by Judge Lee R. West on 5/15/06. (brs, ) (Entered: 05/15/2006)
30 NOTICE of Change of Address by Michelle M Robertson (Robertson, Michelle) (Entered: 05/16/2006)
31 ADR REPORT BY MEDIATOR / EVALUATOR (Barghols, Steven) (Entered: 05/31/2006)
32 MOTION for Order to Enter Consent Decree by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1-Consent Decree with attached Notice)(Robertson, Michelle) (Entered: 06/19/2006)
33 CONSENT DECREE ORDER re 32. Signed by Judge Lee R. West on 6/20/06. (brs, ) (Entered: 06/20/2006)

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06/25/2007 14:06:52

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5:05-cv-00749-W Start date:

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