1 MARY JO O'NEILL # 005294

C. EMANUEL SMITH MS BAR NO. 7473

2 KATHERINE J. KRUSE # 019127

EQUAL EMPLOYMENT OPPORTUNITY

3 COMMISSION
Phoenix District Office

4 3300 North Central Avenue, Suite 690
Phoenix, Arizona 85012

5 Telephone: (602) 640-5029
e-mail: mary.oneill@eeoc.gov

6

emanuel.smith@eeoc.gov katherine.kruse@eeoc.gov

7 Attorneys for Plaintiff

8

9

IN THE UNITED STATES DISTRICT COURT

10

FOR THE DISTRICT OF ARIZONA

11 Equal Employment Opportunity

)

Commission,

)

12

)

Plaintiff,

)

13

vs.

) )

14 The Boeing Company, a Delaware

) )

15 corporation,

) )

16

Defendant.

)

)

COMPLAINT AND JURY TRIAL DEMAND

17

NATURE OF THE ACTION

18

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

19 Title I of the Civil Rights Act of 1991, against the Defendant, the Boeing Company, to

20 correct unlawful employment practices on the basis of sex and/or opposition to unlawful sex

21 discrimination, and to provide appropriate relief to Antonia Castron and Renee Wrede,

22 female former employees of Boeing who worked as engineers. Boeing discriminated against

23 Ms. Castron by transferring her due to her opposition to unlawful sex discrimination and then

24 terminating her based on her sex, female, and/or her opposition to unlawful sex

25 discrimination. Boeing also discriminated against Ms. Wrede by terminating her based on

26 her sex, female, and/or her opposition to unlawful sex discrimination.

27

JURISDICTION AND VENUE

28

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

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

2 (3) of Title VII of the Civil Rights Act of 1964, as amended, (“Title VII”), 42 U.S.C. §§

3 2000e-5(f)(1) and (3), and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a.

4

2. The employment practices alleged to be unlawful were committed within the

5 jurisdiction of the United States District Court for the District of Arizona.

6

PARTIES

7

3. Plaintiff, the United States Equal Employment Opportunity Commission,

8 (“EEOC” or “Commission”), is an agency of the United States of America charged with the

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

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

4. More than thirty days prior to the institution of this lawsuit, both Ms. Castron 11
and Ms. Wrede filed charges with the Commission alleging violations of Title VII by the 12
Defendants. All conditions precedent to the institution of this lawsuit have been fulfilled. 13
5. At all relevant times, Defendant, the Boeing Company, has continuously been 14
a Delaware corporation doing business in the State of Arizona.
15 6. At all relevant times, Defendant, the Boeing Company, has continuously had

16 more than 500 employees.

17

7. At all relevant times, Defendant has continuously been an employer engaged

18 in an industry affecting commerce under Sections 701(b), (g), and (h) of Title VII, 42 U.S.C.

19 §§ 2000e(b), (g) and (h).

20

CONCILIATION

21

8. Prior to institution of this lawsuit, the Commission's representatives attempted

22 to eliminate the unlawful employment practices alleged below and to effect voluntary

23 compliance with Title VII through informal methods of conciliation, conference and

24 persuasion within the meaning of Section 706(b) of Title VII, 42 U.S.C. § 2000e-5(b).

25

STATEMENT OF CLAIMS

26

First Claim: Discriminatory and/or Retaliatory Termination of Antonia

27

Castron

28

9. After she was transferred to the PSA group at Boeing’s facility in Mesa,

2

1 Arizona, Antonia Castron began to make complaints to Boeing management about conduct

2 she reasonably, and in good faith, believed to be unlawful sex discrimination.

3

10. Beginning on or near August, 2002, Defendant engaged in unlawful

4 employment practices in Arizona, in violation of Section 703(a) and/or 704(a) of Title VII,

5 42 U.S.C. §§ 2000e-2(a), 2000e-3(a), by transferring Antonia Castron due to her opposition

6 to unlawful sex discrimination, and then terminating Ms. Castron based on her sex, female,

7 and/or her opposition to unlawful sex discrimination.

8 Second Claim: Discriminatory and/or Retaliatory Termination of Renee Wrede

9

11. In 1998 and in 2000, Antonia Castron complained to Boeing management

10 about conduct she reasonably, and in good faith, believed to be unlawful sex discrimination.

12. On or near January, 2003, Defendant engaged in unlawful employment 11
practices in Arizona, in violation of Section 703(a) and/or 704(a) of Title VII, 42 U.S.C. §§ 12
2000e-2(a), 2000e-3(a), by terminating Renee Wrede based on her sex, female, and/or her 13
opposition to unlawful sex discrimination. 14
Allegations Pertaining to Both Claims: 15
13. The effect of the practices complained of in paragraphs 9 through 12 above has
16 been to deprive Ms. Castron and Ms. Wrede of equal employment opportunities and

17 otherwise adversely affect their status as employees because of their sex and/or their

18 opposition to unlawful sex discrimination.

19

14. The unlawful employment practices complained of in paragraphs 9 through

20 12 above were intentional.

21

15. The unlawful employment practices complained of in paragraphs 9 through

22 12 above were done with malice or with reckless indifference to the federally protected rights

23 of Ms. Castron and Ms. Wrede.

24

PRAYER FOR RELIEF

25

Wherefore, the Commission respectfully requests that this Court:

26

A. Grant a permanent injunction enjoining the Defendant, its officers, successors,

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

28 employment practice which discriminates on the basis of sex or because a person has

3

1 opposed unlawful discrimination.

2

B. Order the Defendant to institute and carry out policies, practices, and programs

3 which provide equal employment opportunities for female employees and for persons who

4 oppose unlawful discrimination, and which eradicate the effects of its past unlawful

5 employment practices.

6

C. Order the Defendant to make whole Ms. Castron and Ms. Wrede by providing

7 compensation for past and future pecuniary losses resulting from the unlawful employment

8 practices described in paragraphs 9 through 12 above, in amounts to be determined at trial.

9

D. Order the Defendant to make whole Ms. Castron and Ms. Wrede by providing

10 compensation for past and future nonpecuniary losses resulting from the unlawful

employment practices described in paragraphs 9 through 12 above, including, but not limited 11

to, emotional pain, suffering, mental anguish, humiliation, inconvenience, and loss of 12

enjoyment of life, in amounts to be determined at trial. 13

F. Order the Defendant to pay Ms. Castron and Ms. Wrede punitive damages for

14 their malicious conduct or reckless indifference described and referenced in paragraphs 9

15 through 12 above, in amounts to be determined at trial.

16

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

17 interest.

18

H. Award the Commission its costs in this action.

19

JURY TRIAL DEMAND

20

The Commission requests a jury trial on all questions of fact raised by its Complaint.

21

RESPECTFULLY SUBMITTED this 30th day of September, 2005.

22

JAMES L. LEE

23

Deputy General Counsel

24

GWENDOLYN YOUNG REAMS

Associate General Counsel

25

EQUAL EMPLOYMENT

26

OPPORTUNITY COMMISSION

1801 L Street, N.W.

27

Washington, D.C. 20507

28

4

1

s/ Mary Jo O’Neill

MARY JO O’NEILL

2

Regional Attorney

3

s/ C. Emanuel Smith

C. EMANUEL SMITH

4

Supervisory Trial Attorney

5

s/ Katherine J. Kruse KATHERINE J. KRUSE

6

Trial Attorney

7

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

8

Phoenix District Office 3300 North Central Ave., Suite 690

9

Phoenix, Arizona 85012-2504 (602) 640-5029

10

Attorneys for Plaintiff

11

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5

 
 1 I
IN THE UNITED STATES DISTRICT COURT

2/

FOR THE DISTRICT OF ARIZONA

3 ii

4 II Equal Employment Opportunity
5 I' Commission,

).~) Case No. CV05-3034-PHX-FJM

.

Plaintiff,

)

VS,

7

The Boeing Company, a Delaware

8 . corporalion,

9 I

Defendant.

10

------------

PROTECTIVE ORDER REGARDINGI RENEE WREDE AND ANTONIA CASTRON'S CONFIDENTIAL MEDICAL AND/OR MENTAL HEALTH fNFORI\HTION

",1 . IT IS HEREBY ORDERED THAT:

INFORMATION SUBJECT TO THIS PROTECTIVE ORDER

L All infomlation disclosed by the Pa11ies, their employees, professional

i
14 ,I advisors, and experts through discovery in this action, which has been designated as
II15 "Confidential Information," as defined below, shall be subject to tris Protective Order

16 1 entered pursuantto the provisions of Rule 26(c) of the Federal Rules of Civil Procedure.

17 j
2. "Confidentiallnfonnation" as used herein means any type or c:assificalion of

18 i
records regarding Renee Wrede and Antonia Castron's medical and/or :11ental health,

~9

i

I whether it be a document, information contained in a document, infor:nation revealed in an !

20 I. interrogatory answer or otherwise.

I .

I 1
. 2'2.

3. The Parties shall designate any infonnation regarding Plaintiffs medical

2

al1d/or mental health as Confidential Information, Confidential Information shall be
23

24 designated by marking the initial page "CONFIDENTIAL" and/or designating in writing, (

25 ' by reference to Bates numbers, "CONF ####," The parties shall not be deemed to have
I 26 waived any right to designate documents as confidential by allowing inspection of such
27 Idocw:nents prior to a designation of such documents as confidential under this Order. In lieu I
!
28 if
i i

I
!1 of marking the original documents, the parties may mark in this manner the copies that are

2 produced or exchanged.

3

4. "Qualified person" as used herein means:

4

a. Renee Wrede, Antonia Castron. and the parties to this action, trJough

5 •their corporate officers, directors, employees and insurance representatives;

6

b. Counsel of record in this action and employees of such counsel to

7 whom it is necessary that tl1e material be 8ho"'11 for purposes of these actions;

8 !

c. Experts and consulting experts consulted solely for purposes ofthis

9
action by counsel for a pa11y to this action;

1C

;

d. Mediators. faciiitators, or other persons retained by the Parties to assistl

11 I

'

in settlement negotiations.

!

12 l

13 I

e.

IIl as defined herein;
1t1

151

f.

'1

I 16

g.

Any other person(s) who ail Parties' stipulate to be a qualified person
Stenographers retained to record testimony in this action; and A.ny other person who is designated as a qualif:.ec perso:1. by order of

17 the Court, after notiee to the other parties.

18

5. Any infonnation or document designated as confidential, Of information as to I

I 19 the source of such Confidential Infonnation or document, shall not he made available to

20 persons oLlJer than qualified persons or the party \",ho produced the Confidential

21 Inionnation.

22

6. Each qualified person to whom Confidential Infom1ation lS disclosed or

23 communicated shall use such infon11ation or document solely for the purpose of preparing

24 for and conducting the above-captioned litigation, and such infonnation or documents shall J' 25 I;, not be used for any other purpose. Each qualified person to whom Confidential Infonnatiorr:

i I 26 1 or document, are disclosed shall be advised that the information or documents are being

27 .'

:

ii disclosed pursuant and subject to the ten11S of this Order and may not be disclosed other

I 28 i than pursuant to the tenns hereof.

I
II

II

2

7, The inadvertent or unintentional disclosure by any party of Confidential
I.2 Information, shaH not be deemed a waiver in whole or in pan of Plaintiffs claim of,

3 !. confidentIahty, clthcr as to the specific mfonnatlOn dIsclosed or as to other mfonnatlon

4 \ relating thereto or to the same or related subject matter.

5

8, In the event that any party to this action disagrees at any stage of this

6 I proceeding with the designation by a party of any information as confidential, the party shall

7 ! L)' first to resolve such dispute in good faith on an informal basis, If the dispute carumt be
8
resolved, the objecting party may seck appropriate relief from the Court
9
B. RETENTION OF CONFIDENTIAL INFORMATION
10
I, The attorneys for the parties are directed to retain infomlation designated
11
"Confidential Info:-mation" in their custody and control and to take the necessary

12 'I· precau:ions to prevent persons not c;ualificd persons as defined herein [rom obtairli:!g

~3 I access to such ir.:ormatJon,

14 j
C.
,5

THIRD PARTY REQUESTS In the event that, in some other action or proceeding, a pmiy to lhis ease is

16
requested or required (by oral questions, intelTogatories, requests for infonnation or

documents in legal proceedings, subpoena, civil investigative demand or other sirr.ilar

18 I' j1;'ocess or by applicable laws, rules, or regulations) to disclose any infonnatlOn

19
designated "Confidential Infonnation" pursuant to this Stipulated Protective Order by

20
some otc1er party, that party to this case shall take all reasonable steps to prevent

21
disclosure thereof or, if disclosure is required, to see that it occurs only pursuar:t to a

22
reasonable protective order.

23
D. TRlAL

i 24 The treatment of Confidential Information at trial shall be addressed by the Court and the

25

i

,parties in connection wiL'l the joint pretrial order.

26 I

•

I E.
27

LIMITATIONS

I 28 ,ThiS Protective Order shall not affect:

3

1 Ill.

Renee Wrede and Antonia Castron's right to freely use medical and/or mental

2 ~'health infonnation about herself for reasons outside of this litigation;

312, Any party's right to seek (i) an order compelling discovery with respect to any

4 I discovery demar.d or (ii) an order protecting the party from having to disclose
I[5 infonna:ion in response to a discovery demand; or
6 !13. Any party's right to object to the admissib~1ity of any information on any ground.

7 'i
Ii8 F.
I,I 9 II

FILING UNDER SEAL Confidential Infonnation may be used or submitted to the Court in connection

10 !II With any filing or proceeding in this litigation, bL:t the party using it shall cause it to be

" 1
separately filed under seal with the Clerk ofthe Court. All items which contain
12

13 Confidential Information as defined herein to be filed with the Court shall be submitted or

14 \11 med in accordance with the Case Management/Electronic Case Filing Adminisrrative
15 ,
IPolicies and Procedures Manual, Section [(I). While the Coniidentiallnfo:-!natiol1 must

I :: ioe filed under seal. motions. responsive memoranda. and reply memoranda, which c:le to

18 l:i()~ reference ',he Confidential Jnfo~ma(ion need not be filed under seal. (Doc. 80).

1

,9 "
r20 I
i 21

DATED this 28 th day of February, 2007.

22

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24
25
I26
27

Frederick J. Martone United States District Judge

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II

 
 1

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5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

E Q U A L E M P L O Y M E N T)

9 OPPORTUNITY COMMISSION,

)

)

10

Plaintiff,

)

vs.

)

11

)

THE BOEING COMPANY, a Delaware )

12 corporation,

)

)

13

Defendant.

)

)

14

No. CV-05-3034-PHX-FJM ORDER

15

The court has before it the EEOC's motion to compel (doc. 64), EEOC's second

16 motion to compel (doc. 65), Boeing's combined response (doc. 78), and EEOC's reply (doc.

17 83). Also before the court is EEOC' s motion to extend discovery a nd dispositive motion

18 deadlines (doc. 66), Boeing's response (doc. 76), and EEOC's reply (doc. 82).

19

I.

20

The EEOC wants e-mails in 2002 and 2003 regarding claimant Wrede and her

21 RIF and claimant Castron and her RIF. Boeing states that it provided the EEOC with all the

22 e-mails responsive to EEOC's request and has repeatedly asked personnel to provide any e-

23 mails not already disclosed. Some further e-mails have been produced. Boeing claims there

24 are no further documents responsive to the EEOC's request. Boeing further states that only

25 e-mails that still existed as of Decem ber 2004 could potentially be recovered because the

26 backup tapes for periods before 2004 were erased before the issuance of a litigation freeze.

27 Boeing further contends that it would cost $55,000.00 to restore the subject backup tapes and

28 that the EEOC has pointed to nothing specifically that would justify such an expense.

1

The EEOC contends that Boeing should have placed a freeze on its e-mails back

2 in 2002 when the claimants filed internal complaints within Boeing. Boeing asserts that the

3 evolving law in this area did not even exist in 2002. The EEOC also contends that Boeings'

4 assertion that it would cost $55,000.00 to retrieve the inactive data is "self-serving."

5

II.

6

The Federal Rules of Civil Procedure were amended effective December 1, 2006

7 to address this problem. Under Rule 26(b)(2)(B), "[a] party need not provide discovery of

8 electronically stored information from sources that the party identifies as not reasona bly

9 accessible because of undue burden or costs." Once a m otion to compel is filed the party

10 from whom discovery is sought must show that the information is not reasonably accessible

11 because of undue burden or cost. Even if that showing is m ade, the court may order

12 discovery if the requesting party shows good c ause considering the lim itations of Rule

13 26(b)(2)(C).

14

The Rule 26(b)(2)(C) proportionality analysis is influenced by the kind of data

15 that is being sought. The production of active data (available in the ordina ry course of

16 business), is likely to satisfy the proportionalitytest. On the other hand, backup tapes (what

17 we have here) and off-line archival records may involve substantial costs and time. We have

18 no reason to doubt Boeing' s cost estimate of $55,000.00. Thus, we find that Boeing has

19 made the showing that the information sought is not reasonably accessible because of undue

20 burden or costs.

21

Under Rule 26(b)(2)(B), even if it is determined that a source of electronically

22 stored information is not reasonably accessible, the requesting party may obtain discovery

23 by showing good cause subject to the limitations of Rule 26(b)(2)(C). Of particular interest

24 here is whether the burden or expense of the proposed discovery outweighs its likely benefit

25 "taking into account the needs of the case, the amount in controversy, the parties'resources,

26 the importance of the issues at stake in th e litigation, and the im portance of the proposed

27 discovery in resolving the issues." Rule 26(b)(2)(C). The requests here are very broad.

28 They seek all e-mails in a two year period containing any reference to the claimants and ten

- 2 -

1 other people. The requests are not very specific. They are in the nature of a broad

2 investigation rather than a narrowly tailored discovery request. The Comittee Note to Rule

3 26(b)(2)(C) suggests we consider these factors aswell as the importance of the issues at stake

4 in the litigation.

5

This is an employment case brought by two cla imants. It seems to us that the

6 expenditure of $55,000.00 based solely on the possibility that there m ight be something

7 relevant does not survive a proportionality analysis under Rule 26(b)(2)(C). Nor has the

8 EEOC shown "good cause" within the meaning of Rule 26(b)(2)(B) to justify this expense.

9 If the EEOC really thought the exercise would be worth the expenditure, we would have

10 expected it to, in the alternative, offer to pay for it. It has not done so.

11

Accordingly, IT IS ORDERED DENYING the EEOC's motion to compel (doc.

12 64) and its second motion to compel (doc. 65). IT IS FURTHER ORDERED DENYING the

13 EEOC's motion to extend discovery and dispositive m otion deadlines on grounds of

14 mootness (doc. 66).

15

DATED this 2nd day of March, 2007.

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 1 WO

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NOT FOR PUBLICATION

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Equal Employment Opportunity Commission,
10 Plaintiff,
11 vs.
12

13 The Boeing Company,

14

Defendant.

15

) No. CV 05-03034-PHX-FJM ) ) ORDER ) ) ) ) ) ) ) ) ) )

16

17 The court has before it plaintiffs' "Notice of Discovery Dispute and Motion to Compel
18 30(b)(6) Deposition Testimony; Motion for Sanctions" ("Motion to Com pel") (doc. 85),
19 defendant's response (doc. 92) and plaintiff's reply (doc. 96). Plaintiff moves for an order
20 compelling defendant to produce "one or more corporate representatives" to answer questions
21 related to topics 1, 2, 9, 10, 14, 15, 16, 24, 25 and 26 of its Notice of Rule 30(b)(6)
22 Deposition (doc. 69). Motion to Com pel at 1. For the reasons stated below, we deny
23 plaintiff's motion.1
24

25

26 1 On February 28, 2007, we ordered reopened defendant's Rule 30(b)(6) deposition
27 for questioning on topics 3, 4, 5, 6, 7, 8, 11, 12, 13, 18, 19, 20, 21, 22 and 23. SeeFebruary 28 28, 2007 Order (doc. 88). Therefore, we do not address plaintifsf'motion to compel answers
to topics 18 and 19, see Motion to Compel at 2, on grounds of mootness.

1

I.

2

Instead of providing a live witness torespond to topics 1, 2, 9, 10, 12, 13, 14, 15, and

3 16, defendant designated prior deposition testim ony as responsive to those topics. See

4 Response at 1-2. Plaintiff concedes that defendant is entitled to respond to a Rule 30(b)(6)

5 notice in this manner. Id. at 2. However, it argues that in addition to designating testimony

6 as responsive, defendant must also provide a live witness who has reviewed the designated

7 deposition testimony and "is prepared to answer questions." Id.at 2. Plaintiff contends that

8 defendant failed in its obligation to provide a witness "prepared to testify a bout the listed

9 topics." Id. With regard to the topics for wh ich depositions were designated, defendant

10 produced a witness who, according to plaintif, could do no m ore than reference the

11 designated depositions. Id.2

12

When a party notices and subpoenas a corporation, the named corporation has a duty

13 to designate "one or m ore officers, directors, or m anaging agents, or other persons who

14 consent to testify on its behalf." Rule 30(b)(6 ), Fed. R. Civ. P. The corporation "m ay set

15 forth, for each person designated, the m atters on which the person will testify," and the

16 designated persons "shall te stify as to m atters known or reasonably available" to the

17 corporation. Id.

18

There is scant case law on the issue ra ised by plaintiff's motion. However, we are

19 persuaded that a party m eets its Rule 30(b)(6) burden by (1) producing a deponent

20 "knowledgeable on the subject matter identified asthe area of inquiry;" (2) designating "more

21

22

2 Plaintiff's motion does not characterize the designated testimony as non-responsive,

23 but moves to compel as a result of the live witness' s inability to answer certain questions

regarding the designated testimony. Although itsreply argues that the designated depositions 24 were "lengthy, partially non-responsive, and inconsistent," Reply at 3, it does not move to

25 compel further testimony from the representatives whose depositions were designated as responsive. Instead, plaintiff contends that the witness produced by defendant at the 30(b)(6)
26 deposition had a duty to "identify the portions of designated depositions that are responsive,

27

or to resolve inconsistencies and incom plete answers in these responses." Id. at 3. Therefore, we limit our discussion to the obligations Rule 30(b)(6) imposes on live witnesses

28 designated as persons most knowledgeable as to particular topics.

- 2 -

1 than one deponent if it would be necessary to do so in order to respond to the relevant areas

2 of inquiry that are specified with reasonable particularity;" (3) preparing a designated witness

3 to testify "on matters not only known by the deponent, but those that should be reasonably

4 known by the designating party;" and (4) substituting "an appropriate deponent when it

5 becomes apparent that the previous deponent is unable to respond to certain relevant areas

6 of inquiry." Alexander v. FBI, 186 F.R.D. 137, 141 (D.D.C. 1998). The duty to testify "as

7 to matters known or reasonably available" implicitly requires designated persons to review

8 all matters known or reasonably available to them in pre paration for a Rule 30(b)(6)

9 deposition. United States v. Taylor, 166 F.R.D. 356, 362 (D.N.C. 1996). Therefore, when

10 a live witness is produced for a Rule 30(b)(6) deposition, that witness satisfies the producing

11 party's Rule 30(b)(6) duty so long as the witness can answer questions for which he or she

12 was designated as the person most knowledgeable. See Alexander, 186 F.R.D. at 140.

13

A corporation may also satisfy its Rule 30(b)(6) obligation by offering to be bound

14 by prior deposition testimony regarding a noticed Rule 30(b)(6) topic. SeeNovartis Pharms.

15 Corp. v. Abbott Labs., 203 F.R.D. 159, 163 (D. Del. 2001). This procedure acknowledges

16 that Rule 30(b)(6) testimony may be derived from several sources. A party m ay need to

17 designate one representative for certain topics, and a different representative for others. Each

18 designated representative must represent "the most knowledgeable witness" in the subject

19 area for which he or she is designated. Id.

20

In light of the cited authority, we conclude that when deposition testim ony is

21 designated as responsive to a noticed 30(b)(6) ot pic, the duty to testify to matters "known or

22 reasonably available" regarding that topic correspondingly shifts to the representative whose

23 deposition was designated. A representative produced as a live witness deponent for a

24 discrete set of topics need not revie w or prepare to answer questions regarding m atters

25 outside of his area of expertise.

26

In its response to plaintiff's 30(b)(6) deposition notice, defendant informed plaintiff

27 that it would produce Miguel Gonzalez to respond to certain noticed topics. SeDeefendant's

28 Response to Plaintiff's Rule 30(b)(6) Deposition, Motion to Compel Exhibit B. Defendant

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1 also offered to be bound by prior deposition testimony for topics 1, 2, 9, 10, 14, 15 and 16.

2 See id. Gonzalez had no duty to te stify regarding the topics for which prior deposition

3 testimony was designated as responsive. Therefore, we deny plaintiff' s motion on this

4 ground.

5

II.

6

Plaintiff moves to compel responses to topics 24, 25 and 26, arguing that they are

7 relevant for purposes of Rule 26(b)(1). Motion to Compel at 2-3.

8

A.

9

Topic 24 pertains to "[t] he efforts Boeing undertook to locate" certain docum ents

10 identified in plaintiff's requests for production of documents, and "the reasons why Boeing

11 was unable to locate the docum ents." Plai ntiff's Notice of Rule 30(b)(6) Deposition of

12 Defendant at 6. Plaintiff contends that this topic is relevant and therefore discoverable

13 because it "asks for information about the efforts Boeing took to locate documents." Motion

14 to Compel at 3.

15

Parties may obtain discovery regarding the "existence, description, nature, custody,

16 condition, and location of any books, documents, or other tangible things and the identity and

17 location of persons having knowledge of any discoverable matter." Fed. R. Civ. P. 26(b)(1).

18 However, any matter a party seeks to discover must be relevant to a claim or defense. Id.

19

In arguing that Topic 24 seeks discovery that is within the scope of Rule 26(b)(1),

20 plaintiff does not explain why defendants' efforts to locate documents are relevant to a claim

21 or defense in this case. Further, this topic requests inform ation defendant has already

22 provided. See Motion to Com pel Exhibits C, D . Finally, we deny plaintiff' s motion to

23 compel pursuant to Rule 26(b)(3), Fed. R. Ci v. P., to the extent that Topic 24 se eks to

24 discover defense counsel's legal theories regarding the manner in which defendant responded

25 to plaintiff's requests.

26

27

B.

28

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1

Through Topic 25, plaintiff seeks to discover "[a]ll bases for Boeing's position that

2 retrieval of e-mails" responsive to several requests in plaintiff's first and second request for

3 production of documents would cost at least $55,000. SeePlaintiff's Notice of Rule 30(b)(6)

4 Deposition of Defendant at 6.3 Plaintiff argues that Topic 25 is re levant to its claims, and

5 therefore discoverable pursuant to Rule 26(b)(1), Fed. R. Civ. P., because "it will allow the

6 EEOC to determine whether Boeing has any bases for its cost assertions and whether any

7 asserted bases are legitimate." Motion to Compel at 2.

8

The requests at issue in Topic 25 were the subject of our March 2, 2007 Order, in

9 which we denied plaintiff's motion to compel responses to Nos. 25 and 26 of its First Request

10 for Production of Docum ents (doc. 64), and to Nos. 19 and 20 of its Second Request for

11 Production of Documents (doc. 65). March 2, 2007 Order (doc. 90). We concluded that

12 defendant made the showing, pursuant to Rule 26(b)(2)(C), Fed. R. Civ. P., that "the

13 information sought is not reasonably accessible because of undue burden or costs," and that

14 plaintiff did not show good cause to justify the expense of the proposed discovery, for

15 purposes of Rule 26(b)(2)(B) . Seeid. at 2-3. In so holding, we noted that we had "no reason

16 to doubt" defendant's $55,000 estimate. Id. at 2.

17

Here, plaintiff does not assert that defendants' estimated cost of retrieving the e-mails

18 covered by Topic 25 is relevant to any claimor defense in this case. Instead, it seeks further

19 explanation for defendant's estimate. Plaintiff may not raise an issue here that it should have

20 raised in its earlier m otions to compel. Therefore, we deny plaintiff' s motion to compel

21 answers regarding Topic 25.

22

23

C.

24

25

3 Plaintiff's Rule 30(b)(6) Notice erroneously refers to the subject matter covered in

Topic No. 25 as unanswered interrogatories. Se e Plaintiff's Notice of Rule 30(b)(6)

26 Deposition of Defendant at 6. Plaintiff's Motion to Com pel perpetuates this error. See

27

Motion to Compel at 2. However, exhibits attached to plaintiff's motion clarify that Topic No. 25 in fact pertains to the request for production of documents that were the subject of our

28 March 2, 2007 Order. See Motion to Compel Exhibits C, D.

- 5 -

1

Plaintiff moves to compel answers to Topic 26, arguing that it "pertain[s]to relevant

2 topics in this case . . . including whether anyone was hired into the jobs after the two woemn

3 were fired, and if so, who and when, and the topic of what documents the managers used to

4 assess the performance of the employees to determine who should be laid off." Motion to

5 Compel at 3. These topics may be relevant to a claimor defense in this case, but they are not

6 the topics covered by Topic 26. Topic 26 re quests "[a]ll bases" for the explanations

7 proffered by defense counsel in two letters describing efforts to respond to plaintisfrfe' quests

8 for production of documents. See Plaintiff's Notice of Rule 30(b)(6) Deposition.

9

Plaintiff has provided us with no reason to conclude that the subject matter actually

10 covered by Topic 26 is within the scope of materials Rule 26(b)(1) considers discoverable.

11 Further, this topic is duplicative in that it requests inform ation defendant has already

12 provided. See Motion to Compel Exhibits C, D. Finally, to the extent that Topic 26 requests

13 defense counsel's legal theories regarding defendant' s response to plaintiff' s requests, we

14 deny plaintiff's motion to compel pursuant to Rule 26(b)(3), Fed. R. Civ. P.

15

III.

16

Plaintiff moves for sanctions based upon defendant' s failure to provide a

17 representative "prepared to answer" each topic in its Rule 30(b)(6) notice. Motion to Copmel

18 at 1. Producing an unprepared witness at a 30(b)(6) deposition, or otherwise inadequately

19 responding to a 30(b)(6) subpoena, may constitute a failure to appear, and give rise to Rule

20 37(d), Fed. R. Civ. P. sanctions. However, for tehreasons stated above, we conclude that the

21 live witness defendant produced did not fail to satisfy any Rule 30(b)(6) obligations. This

22 witness's actions, which are the subject of plaintiff's motion, do not give rise to sanctions.

23

THEREFORE, IT IS ORDERED DENYING plaintiff's "Notice of Discovery

24 Dispute and Motion to Compel 30(b)(6) Deposition Testimony; Motion for Sanctions" (doc.

25 85).

26

DATED this 17th day of April, 2007.

27

28

- 6 -

 
 1 WO

2

3

4

5

NOT FOR PUBLICATION

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Equal Employment Opportunity Commission,
10 Plaintiff,
11 vs.
12

13 The Boeing Company,

14

Defendant.

15

) No. CV 05-03034-PHX-FJM ) ) ORDER ) ) ) ) ) ) ) ) ) )

16 This case arises out of defendant Boeing’s decision to transfer and terminate Antonia
17 Castron, and its decision to terminate Renee Wrede. Plaintiff alleges that those actions were
18 “discriminatory and/or retaliatory.” Complaint (doc. 1) at 2-3.
19 The court has before it defendant’s motion for summary judgment (doc. 103) and
20 statement of facts (“DSOF”) (docs. 104 and 105); plaintiff’s response (doc. 111), notice of
21 errata regarding the response (doc. 112), statement of facts (“PSOF”) (docs. 108 and 109),
22 “Notice of Errata Re: Docket No. [108]” (doc. 125), and response to defendant’s statement
23 of facts (doc. 110); defendant’s reply in support of its motion (doc. 116); defendant’s
24 “Response to Plaintiff’s Statement of Facts” (doc. 117) and defendant’s “Reply to Plaintiff’s
25 Local Rule of Practice 56.1(b) Response to Defendant’s Separate Statement of Facts” (doc.
26 118); plaintiff’s “Motion to Strike ‘Defendant’s “Response to Plaintiff’s Statement of Facts’
27 and ‘Defendant’s Reply to Plaintiff’s Local Rule of Practice 56.1(b) Response to Defendant’s
28

1 Separate Statement of Facts’ or, in the Alternative Motion for Leave to Respond to Both of 2 these Pleadings” (doc. 124), defendant’s response to plaintiff’s motion to strike (doc. 127),

3 and plaintiff’s reply in support of its motion to strike (doc. 129).

4

I.

5

We first turn to plaintiff’s claims arising out of Wrede’s termination. Wrede was

6 hired by defendant in 1989, and in 1991 began working as a Manufacturing Engineer

7 (“ME”). DSOF 24, 26, 27. Defendant’s employees are assigned a “skill management code”

8 based on the nature of their work. DSOF 13. In October 2002, defendant determined that

9 it had an excess of employees in D32, Wrede’s skill management code. DSOF 60, 67.

10

A.

11

Defendant moves to dismiss the disparate treatment claims that pertain to Wrede,

12 arguing that there is no evidence that she was selected for layoff, and eventually laid off, 13 because of her sex. Motion for Summary Judgment at 5-8. A prima facie case of disparate 14 treatment is established if the plaintiff shows that “(1) she belongs to a protected class; (2) 15 she was qualified for the position; (3) she was subjected to an adverse employment action;

16 and (4) similarly situated men were treated more favorably, or her position was filled by a

17 man.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002). Defendant

18 does not challenge plaintiff’s prima facie case, see Motion for Summary Judgment at 4;

19 therefore, we assume that plaintiff has met its prima facie burden.

20

To rebut the presumption of discrimination, defendant must articulate a “legitimate,

21 nondiscriminatory reason for the challenged action.” Villiarimo, 281 F.3d at 1062. If

22 defendant succeeds, then “plaintiff must show that the articulated reason is pretextual ‘either

23 directly by persuading the court that a discriminatory reason more likely motivated the

24 employer or indirectly by showing that the employer's proffered explanation is unworthy of

25 credence.’ ” Id. (citation omitted).

26

Defendant argues that Wrede was laid off “due to departmental reductions in force,

27 which were necessitated by a downturn in expected work and budgetary constraints.”

28 Motion for Summary Judgment at 4. If any of defendant’s plants have a surplus of workers,

- 2 -

1 it conducts reductions in force (RIFs). DSOF 11. As part of the RIF, defendant creates a

2 roster identifying “the affected skill management code.” DSOF 15. Those listed on the

3 roster are subject to layoff. DSOF 16. Defendant assesses each surplus employee’s

4 attendance, formal education, service time, ability to perform remaining work and

5 performance. DSOF 18. The last two categories are assessed by management, whereas the

6 first three are calculated by Human Resources. Id. The employees with the lowest

7 assessment scores are identified for layoff. DSOF 22, 23. As a result of their assessment

8 scores, seven MEs in skill code D32, including Wrede, were identified for layoff from

9 Boeing’s Mesa plant during an October 2002 RIF. DSOF 87. We conclude that defendant

10 has articulated sufficient nondiscriminatory reasons for Wrede’s identification for layoff.

11

Plaintiff’s response does not distinguish between its disparate treatment and retaliation

12 claims.1 This is problematic at the pretext stage. An employer may harbor both sex-based

13 animus and retaliation-based animus. However, in the context of disparate treatment,

14 plaintiff must establish that defendant’s proffered reasons hide sex-based animus. See, e.g.,

15 Bergene v. Salt River Project Agric. Improvement & Power Dist., 272 F.3d 1136, 1143 (9th

16 Cir. 2001) (when a woman passed over for a promotion is referred to as “Mommy” in the

17 workplace, there is evidence that she was “singled out on the basis of her sex”).2

18

19

1 Plaintiff’s complaint suggests that Wrede’s termination gives rise to one Title VII

20 claim. Complaint at 3. However, plaintiff presents evidence of pretext regarding defendant’s

decision to identify Wrede for layoff and defendant’s purported failure to assist Wrede in 21 securing new employment within Boeing. We construe plaintiff’s complaint as alleging

22 discrimination in relation to these two decisions. Plaintiff argues that the decision to identify Wrede for layoff “was motivated by discriminatory/retaliatory animus.” Response at 5.

23 Therefore, we conclude that the decision to identify Wrede for layoff itself gives rise to two

24 claims. Plaintiff also alleges that “the difference between the assistance Boeing provided the males identified [for layoff] with finding other jobs, as compared to the assistance it provided

25 to Wrede” is additional evidence of “pretext and bias.” Response at 9. For purposes of this

order, we conclude that plaintiff alleges additional claims of disparate treatment and 26 retaliation stemming from defendant’s failure to place Wrede in a new position.

27

2 In the case of retaliation, a proffered reason is pretextual if it disguises animus that

28 targets employees who have, for example, “opposed any practice made an unlawful

- 3 -

1

A plaintiff may “demonstrate that the proffered reason was not the true reason for the

2 employment decision . . . either directly by persuading the court that a discriminatory reason

3 more likely motivated the employer or indirectly by showing that the employer's proffered

4 explanation is unworthy of credence.” Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,

5 256, 101 S. Ct. 1089, 1095 (1981). Direct evidence is, on its own, highly probative of

6 pretext. It “ ‘proves the fact [of discriminatory animus] without inference or presumption.’

7 ” Dominguez-Curry v. Nev. Transp. Dep't, 424 F.3d 1027, 1038 (9th Cir. 2005) (citation

8 omitted). Therefore, we first address whether plaintiff has introduced direct evidence.

9

Direct evidence consists of “clearly sexist, racist, or similarly discriminatory

10 statements or actions by the employer." Id. However, “[s]tray remarks in the workplace,

11 statements by non-decisionmakers, or statements by decisionmakers unrelated to the

12 decisional process” are not proof of direct evidence. Adams v. Corp. Realty Servs., 190 F.

13 Supp. 2d 272, 276-77 (D.P.R. 2002). Rather, the remarks or comments at issue “must be

14 linked to the adverse employment decision.” Id. (citing Ayala-Gerena v. Bristol Myers

15 Squibb Co., 95 F.3d 86, 96 (1st Cir. 1996)). “The critical inquiry . . . is whether gender was

16 a factor in the employment decision at the moment it was made.” Price Waterhouse v.

17 Hopkins, 490 U.S. 228, 241 (1989) (emphasis in original), overruled on other grounds as

18 stated in O'Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 760 (9th Cir. 1996).3

19

20

21 employment practice” by Title VII. 42 U.S.C. § 2000e-3(a).

22

3 A decisionmaker’s discriminatory remarks unrelated to the adverse decision

23 constitute “ ‘specific instances of discriminatory statements’ from which the reasons for the

adverse employment decision would have to be inferred.’ ” Shorter v. ICG Holdings, Inc., 24 188 F.3d 1204, 1208 (10th Cir. 1999). In the context of pretext, we are persuaded that

25 “[a]lthough such comments may serve as circumstantial evidence of discrimination . . . the plaintiff must still show some nexus between the statements and the defendant's decision to
26 terminate the employee.” Id. at 1209-10. The Ninth Circuit has addressed a similar issue,

27 holding that a decisionmaker’s ambiguous comment, which is not directly tied to an adverse decision, is not evidence sufficient to rebut an articulated nondiscriminatory reason. Nidds

28 v. Schindler Elevator Corp., 113 F.3d 912, 919 (9th Cir. 1996).

- 4 -

1

None of plaintiff’s evidence is direct evidence of sex-based termination. The record

2 includes evidence that Wrede accused several of defendant’s employees of sexual

3 harassment. See Response at 3, 5. However, the sex-based comments giving rise to those

4 allegations occurred outside of the decision to terminate Wrede. On their own, they are not

5 direct evidence highly probative of pretext in the context of Wrede’s termination.

6

"Where direct evidence is unavailable . . . the plaintiff may come forward with

7 circumstantial evidence . . . to show that the employer's proffered motives were not the actual

8 motives because they are inconsistent or otherwise not believable.” Bodett v. Coxcom, Inc.,

9 366 F.3d 736, 743 (9th Cir. 2004). Plaintiff’s circumstantial evidence does not show that

10 defendant’s proffered reasons for Wrede’s layoff are to be disbelieved.

11

Plaintiff first argues that Brett Adams’ participation in Wrede’s layoff renders the

12 decision to terminate Wrede tainted by animus. Response at 2-3. Adams evaluated Wrede, 13 but was not the ultimate decision-maker with authority to terminate her. Nevertheless, “Title 14 VII may still be violated where the ultimate decision-maker, lacking individual 15 discriminatory intent, takes an adverse employment action in reliance on factors affected by

16 another decision-maker's discriminatory animus.” Galdamez v. Potter, 415 F.3d 1015, 1026

17 n.9 (9th Cir. 2005).

18

Wrede accused Adams of sexual harassment in October 2001. Response at 3. As a

19 result, Boeing reprimanded Adams. Id. Adams evaluated Wrede in 2001, after he learned

20 of her complaint against him. Id. Bruce Wright completed Wrede’s “Ability to Perform”

21 and “Past Performance” evaluations as part of the October 2002 RIF. Id. According to

22 plaintiff, Wright “referred” to Adams’ 2001 performance evaluation in completing his

23 October 2002 assessment of Wrede. Response at 4. Therefore, plaintiff argues, even if

24 Wright lacks discriminatory intent, his reliance on Adams’ input taints Wrede’s October

25 2002 assessments.

26

However, Adams’ 2001 evaluation of Wrede does not taint her October 2002

27 assessments. First, although plaintiff contends that Adams criticized Wrede in the 2001

28 performance evaluation, Response at 4, a review of his comments in their entirety suggests

- 5 -

1 otherwise. Adams stated that “Areas of improvement include: A better understanding of 2 Quality Systems and requirements, communication, and organization.” Id. (citing PSOF 57).

3 Defendant provides a more thorough account of Adams’ comments. Before suggesting areas

4 for improvement, Adams stated that:

5

Renee [Wrede] does in fact have an above average of [sic] concern with respect to

reducing the cycle time of producing composite assemblies in support of “Line

6

moves” of the Longbow Apache assembly line. In addition, her thorough knowledge

of Composites manufacturing has been of great assistance to all employees associated

7

with the Team that she supports.

8 DSOF 101. Plaintiff does not dispute this version of Adams’ comments.

9

Even if Adams’ comments are in any way affected by his own animus, there is no

10 evidence in the record that defendant laid off Wrede “in reliance” on Adams’ comments. At

11 most, Wright “referred” to performance evaluations completed by Adams in 2001 to

12 complete Wright’s October 2002 assessments. Response at 4. Plaintiff concedes that 13 Wright’s October 2002 assessments do not expressly reference Adams’ evaluation; 14 nevertheless, plaintiff notes that Wright was “certainly familiar” with Adams’ comments. 15 Id. An ultimate decision-maker’s familiarity with another employee’s generally positive

16 evaluations does not create an inference that the decision-maker relied on animus.

17

Finally, although plaintiff challenges defendant’s overall assessment of Wrede’s

18 qualifications, plaintiff does not present any evidence that Adams’ evaluations are inaccurate. 19 Rather, plaintiff rests on the fact that Adams’ evaluations were negative. Not only is this 20 characterization debatable, it is meaningless. “Pretext is a ‘lie, specifically a phony reason 21 for some action.’ ” Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 737 (7th Cir. 2006) 22 (citation omitted). Nothing in the record suggests that Adams’ evaluation was phony.

23

Plaintiff also contends that John Fisher’s participation in Wrede’s assessments is

24 problematic. See Response at 5. Wrede accused Fisher of sexual harassment in 1999. Id.

25 As a result, Fisher received a “Corrective Action Notice.” Id. Plaintiff alleges that “Wright 26 or department manager Rob Feuerstein” completed Wrede’s April 2002 “Past Performance” 27 evaluation. Id. at 3 (emphasis added). Plaintiff contends that Feuerstein “permitted Fisher 28 to be involved in the RIF assessments of April, 2002 and July, 2002.” Id. at 5.

- 6 -

1

Plaintiff’s arguments regarding Fisher are unpersuasive. First, the significance of

2 Feuerstein’s involvement is unclear. According to plaintiff, Feuerstein or Wright was

3 involved in Wrede’s April 2002 RIF assessment. However, Wright, but not Feuerstein,

4 completed Wrede’s “Past Performance” and “Ability to Perform Remaining Work”

5 evaluations for the October 2002 RIF assessments. Response at 3. The October 2002 RIF

6 evaluations, but not the April 2002 evaluations, caused Wrede’s layoff. Plaintiff does not

7 argue that Wright relied on Fisher’s evaluations in assessing Wrede for the October 2002

8 RIF.

9

A review of facts plaintiff does not cite reveals that Feuerstein “met with his managers

10 . . . to review the scores” for their “Past Performance” and “Ability to Perform Remaining

11 Work” evaluations as part of the October 2002 RIF. PSOF 122.4 This does not establish that

12 Feuerstein took an adverse employment action in reliance on factors affected by Fisher’s

13 alleged animus. Fisher’s evaluations were not reviewed as part of the October 2002 RIF.

14 Therefore, we are left with the irrelevant fact that Feuerstein allowed Fisher to participate in

15 RIFs that did not result in Wrede’s termination.

16

Plaintiff next argues that defendant’s reasons for laying off Wrede were pretextual

17 because another reasonable employer would have assessed Wrede significantly better than

18 defendant did. Response at 5. Plaintiff cites Abuan v. Level 3 Commun., Inc., 353 F.3d

19 1158, 1170 (10th Cir. 2003) for the proposition that “[t]he jury should be permitted to

20 consider the evaluation of an employee’s performance by her co-workers.” Response at 6.

21 Abuan holds that a jury instruction may not instruct jurors to overlook evidence of co-

22

23 4 Contrary to the parties’ assertions, we are not required to pour through the hundreds
24 of pages of facts submitted in support of their briefs. See, e.g., Motion for Summary
25 Judgment at 2 (urging the court to review defendant’s 283 statements of facts and 44 exhibits “in their entirety”). This is an adversary system. The parties must themselves argue a fact’s
26 legal significance within the ample space allotted to their memoranda of points and
27 authorities. Remarkably, of the hundreds of facts set out in the parties’ statements, a significant portion are never cited in the briefs. To persuade us that a particular fact is legally
28 relevant, a party must at least cite to it.

- 7 -

1 workers’ performance assessments. 353 F.3d at 1174. It does not establish that the kind of

2 evidence introduced by plaintiff is probative of pretext.

3

Nevertheless, we address the merits of plaintiff’s evidence. Plaintiff argues that

4 “Dave Eroh, a long-time ME who often worked as a lead, provides a significantly better

5 assessment of Wrede than did her managers.” Response at 6. Eroh’s evaluation is

6 meaningless in isolation. Wrede was not singled out for termination, but was evaluated

7 against others Eroh did not assess. Eroh might be an unusually soft grader who inflates

8 everyone’s scores.

9

Plaintiff next contends that “[m]any of the manufacturing managers whom Wrede

10 supported . . . believed she should not have been selected for RIF.” Response at 7. “Some

11 managers identified male MEs who, in their opinion, should have been selected for RIF over

12 Wrede.” Id. “Frank Morris . . . told Wrede that he found her selection for lay-off to be

13 questionable because she did good work.” PSOF 226. Although these managers purportedly

14 supervised Wrede, they are nevertheless unqualified to question Wrede’s layoff. Plaintiff

15 does not allege that any of these managers supervised the other MEs subject to the RIF.

16 Although they may have disagreed with the result of the RIF, a difference of opinion is not

17 evidence that the evaluations are unworthy of credence.

18

Plaintiff also asserts that Feuerstein “did not address these managers’ position that,

19 if a RIF was necessary, male MEs who had not complained about discrimination, should

20 have been selected for RIF.” Response at 7. This argument suggests that Wrede should have

21 been exempt from RIF because she had previously complained of discrimination. Title VII

22 does not require an employer to give preference to a minority or female applicant “whenever

23 that person's objective qualifications were equal to those of a white male applicant,” see

24 Burdine, 450 U.S. at 259, 101 S. Ct. 1089, 1096. Similarly, it does not require employers to

25 shield an employee from a legitimate layoff just because she has engaged in conduct Title

26 VII protects.

27

Next, plaintiff argues that “contemporaneous evidence does not support the RIF scores

28 given to Wrede” because she “was not on a formal performance improvement plan in 2002.

- 8 -

1 Response at 7. Plaintiff does not explain the significance of this fact. Therefore, we 2 conclude that there is insufficient evidence to suggest that Wrede’s identification for layoff

3 was discriminatory.

4

B.

5

Plaintiff also notes that although seven MEs in D32 were identified for layoff in

6 October 2002, only Wrede, the sole woman, was actually terminated. Response at 8. In the

7 context of a RIF, the fact that a terminated employee within a protected group is treated less

8 favorably than people outside of the group is relevant to establishing a prima facie case. See

9 Oxman v. WLS-TV, 846 F.2d 448, 455 (7th Cir. 1988). Plaintiff argues that Robert

10 Feuerstein, the ME department manager, “personally helped” two of the male employees

11 identified for layoff find new positions within Boeing. Response to DSOF at 32, 33.

12 Therefore, four of the male employees were not helped. Sex did not determine whether an

13 employee was assisted.

14

Even if we assume that plaintiff can meet its prima facie burden, defendant has

15 articulated a nondiscriminatory reason for the fact that Wrede was not placed in a different

16 position within Boeing. Defendant argues that “the male coworkers who found other jobs

17 within Boeing did so through their own personal initiative and efforts, with no substantive

18 assistance from Bruce Wright or Rob Feurstein.” Reply at 6 (citing DSOF 132-133, 138).

19

Plaintiff contends that this explanation is pretextual because “the use of subjective

20 criteria in these particularly [sic] circumstances is itself evidence . . . to support the

21 conclusion that Boeing’s asserted rationale is pretextual.” Response at 8. No matter what

22 the circumstance, an employer’s use of subjective criteria is not itself probative of pretext.

23 The Ninth Circuit has “explicitly rejected the idea that an employer's use of subjective

24 employment criteria has a talismanic significance.” Casillas v. United States Navy, 735 F.2d

25 338, 345 (9th Cir. 1984).

26

Finally, plaintiff contends that defendant’s assertion that it laid off Wrede in a RIF is

27 pretextual “because there was no reduction in force in the number of people performing D32

28 ME work.” Response at 9 (citing, among other cases, Pippin v. Burlington Res. Oil & Gas

- 9 -

1 Co., 440 F.3d 1186, 1193 (10th Cir. 2006)). Plaintiff asserts that “a male employee, Darryl

2 Faust” was brought in to assume her duties. Id. at 9. The fact that Wrede’s duties were

3 assumed by another employee does not establish pretext. Pippin, 440 F.3d at 1194.5

4

C.

5

Defendant also moves to dismiss plaintiff’s retaliation claims. Defendant

6 acknowledges that Wrede’s allegations regarding Fisher and Adams establish that Wrede

7 engaged in protected conduct. Motion for Summary Judgment at 11. Further, defendant

8 does not dispute that Wrede’s layoff is an adverse employment action. Id. However,

9 defendant argues that “there is no evidence of any causal connection between Wrede’s

10 complaints and her layoff.” Motion for Summary Judgment at 11. “To establish a prima

11 facie case of retaliation, an aggrieved employee must show that ‘(1) he has engaged in

12 statutorily protected expression; (2) he has suffered an adverse employment action; and (3)

13 there is a causal link between the protected expression and the adverse action.’ ” EEOC v.

14 Dinuba Med. Clinic, 222 F.3d 580, 586 (9th Cir. 2000) (citation omitted).

15

“To show the requisite causal link, the plaintiff must present evidence sufficient to

16 raise the inference that her protected activity was the likely reason for the adverse action.”

17 Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982). Causation may be inferred

18 “from the proximity in time between the protected action and the allegedly retaliatory

19 discharge.” Miller v. Fairchild Indus., Inc., 797 F.2d 727, 731 (9th Cir. 1986).

20

Defendant first argues there is no causal link because Fisher “had no role whatsoever

21 in Wrede’s October 2002 RIF assessment or her selection for layoff.” Id. As explained

22 above, Wright completed Wrede’s “Past Performance” and “Ability to Perform Remaining

23

24

5 Plaintiff does not explain whether defendant’s failure to place Wrede in another

25 position is evidence of retaliatory animus, or sex-based animus. Rather, it argues that it is evidence of pretext in general. Response at 8-9. We reject plaintiff’s attempt to raise
26 suspicion were none is warranted in the context of its disparate treatment claim. Our

27 conclusion also applies to any retaliation claim stemming from defendant’s failure to assist Wrede after she was identified for layoff. The fact an employer used subjective criteria is

28 not probative of pretext in either context.

- 10 -

1 Work” evaluations for the October 2002 RIF assessments, and did not rely on Fisher’s

2 evaluations. Although Wright arguably reviewed Adams’ evaluations of Wrede, completed

3 after Adams learned of Wrede’s complaint, this fact is also insufficient to establish causation.

4 There is no evidence in the record that Wright’s evaluations were completed in reliance on

5 Adams’ comments. The mere existence of those comments does not suggest that Wrede’s

6 complaint against Adams was the likely reason for the adverse action.

7

Next, defendant argues that Feuerstein’s involvement in Wrede’s termination cannot

8 establish causation. Feuerstein learned of Wrede’s complaint against Fisher in 1999. At the

9 time that Feuerstein reviewed, but made no changes to, Wright’s October 2002 evaluations

10 of Wrede, he was aware of Wrede’s complaint. Motion for Summary Judgment at 12. This

11 “lengthy time lapse between the employer becoming aware of the protected activity and the

12 alleged adverse employment action . . . negates any inference that a causal connection exists

13 between the two.” Dowe v. Total Action Against Poverty, 145 F.3d 653, 657 (4th Cir. 1998).

14 Also, we do not infer causation solely because Feuerstein knew of Wrede’s complaint.6

15 One year lapsed between the time Wright learned of Wrede’s complaint against
16 Adams, and the time Wright evaluated Wrede. DSOF 42. This is not the sort of temporal
17 proximity that establishes causation. See Villiarimo, 281 F.3d at 1065 (citing with approval
18 a case which held that “a one-year interval between the protected expression and the
19 employee's termination, standing alone, is too long to raise an inference of discrimination”).
20

21

22

23

24

6 The fact that an employer makes an adverse employment decision against an

25 employee he knows has engaged in conduct protected by Title VII should never on its own establish causation. Managers have a right to know that their subordinates are accused of
26 conduct Title VII prohibits. To effectively remedy prohibited conduct, they must also know

27 who brings the accusations. To suggest that knowledge alone establishes causation is to infer that a manager’s awareness of a complaint’s details taints that manager’s ability to evaluate

28 the complaint-maker, no matter how much time has passed.

- 11 -

1 Absent any inference permitted by temporal proximity, Wright’s knowledge that Wrede

2 complained about Adams cannot on its own establish causation.7

3

Plaintiff contends that both Fisher and Adams participated in the assessments that

4 caused Wrede’s layoff. Response at 1-2. We have already rejected these assertions.

5 Therefore, we conclude that plaintiff has not established a prima facie case of retaliation.

6 Additionally, defendant has articulated nondiscriminatory reasons for the layoff. We have

7 already assessed, and rejected, plaintiff’s claim of pretext. Therefore, we grant defendant’s

8 motion for summary judgment as to each claim relating to defendant’s termination of Renee

9 Wrede.8

10 II.
11 We next turn to the claims relating to Castron’s termination.9 Castron became a
12 liaison engineer (LE) in defendant’s electrical engineering department in 1997, DSOF 147,
13 with a skill code of 62E, DSOF 216. From 1998 through January 2003, that department was
14 lead by Bill Charlton. DSOF 148. In late 2000, Castron was transferred into pre-shop
15 analysis (PSA). DSOF 153. Castron requested a transfer out of PSA on January 12, 2002,
16 and again in July 2002. DSOF 179, 180. Castron was transferred to Structures-Mod around
17 August 12, 2002. PSOF 453. She was laid off as a result of her October 2002 RIF
18 evaluations.
19

20

21

7 Wright knew that there had been a workplace-related incident between Wrede and

Fisher, but did not know that it involved conduct protected by Title VII. DSOF 38.

22 Feuerstein never knew of Wrede’s complaint against Adams. DSOF 49.

23

8 The fact that we do not reevaluate plaintiff’s pretext evidence in the context of the

24 retaliation claim does not mean that retaliation-based animus is the same as sex-based animus. Plaintiff unsuccessfully attempted to establish that defendant’s proffered reasons

25 were suspect and inaccurate through circumstantial evidence. Our rejection of plaintiff’s

generalized arguments applies equally to both claims. 26

27

9 Again, we are forced to sift through retaliation and disparate treatment arguments

without the aid of any kind of organization or acknowledgment that the claims differ. See

28 Response at 10-18.

- 12 -

1

A.

2

We first turn to plaintiff’s disparate treatment claims. Defendant contends that

3 plaintiff’s claim of transfer-based discrimination fails because Castron’s transfer was not an

4 adverse employment decision. Motion for Summary Judgment at 14. Plaintiff argues that

5 Castron’s transfer rendered her more vulnerable to layoff because she was evaluated

6 alongside “experienced engineers” even though she was still a trainee. Response at 17. We

7 accept that “a reasonable employee would have found the challenged action materially

8 adverse.” Burlington N. & Santa Fe Ry. v. White, __ U.S. __ , 126 S. Ct. 2405, 2415 (2006).

9 Nevertheless, plaintiff’s claim fails because similarly situated men were not treated
10 more favorably than Castron. A male employee in Castron’s skill code, Donald Duff, was
11 also transferred into Structures-Mod around the same time as Castron. Reply at 11 (citing
12 DSOF 156, which cites DSOF Exhibit 32). Like Castron, Duff lacked mechanical
13 engineering experience, but was evaluated against employees who did have the requisite
14 experience. Id.; see also DSOF Exibit 40 at 56-59. Duff was also identified for layoff in
15 October 2002. Reply at 11 (citing DSOF 249, which cites DSOF Exhibit 40).
16 Plaintiff alleges that Castron, a trainee, could have been excused from the RIF because
17 of her recent transfer. Response at 16. One of defendant’s female employees in skill code
18 D32, “Lorraine,” was excluded from the October 2002 RIF. PSOF Exhibit 55. Before the
19 RIF, Lorraine agreed to transfer into a department in which she would have to undergo
20 training on the condition that her skill code would not change. Id. Two weeks before the
21 October RIF, which targeted D32s, Lorraine’s skill code was changed to D32. Id. She was
22 exempted from the RIF because of the specific terms of her transfer. After Lorraine was
23 excluded from RIF, defendant decided to also exclude two additional employees who
24 transferred into D32 two weeks before the RIF. Id.
25

26

Plaintiff’s evidence defeats its prima facie case. For its comparator evidence to be

27 relevant, it must be evidence of a similarly situated male employee treated more favorably

28 than Castron. First, Castron compares herself to another woman. Second, she was not

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1 similarly situated in several ways. First, Lorraine was in a different skill code than Castron. 2 Second, unlike Castron, Lorraine transferred into a new skill code two weeks before the RIF.

3 Castron remained within the same skill code before and after her transfer. Even if Lorraine

4 was similarly situated, this fact would not help plaintiff’s case. Instead, it would be evidence

5 that Castron’s transfer had nothing to do with her sex. Therefore, we grant defendant’s

6 motion for summary judgment as to plaintiff’s claim that Castron’s transfer was an act of sex

7 discrimination.

8

B.

9 Next, we address whether Castron was terminated as a result of her sex. Defendant
10 does not dispute plaintiff’s prima facie case in this context. See Motion for Summary
11 Judgment at 4. Rather, defendant contends that Castron was terminated because she
12 “belonged to the group of individuals who, when assessed in accordance with Boeing’s RIF
13 procedure, obtained the lowest total evaluation scores.” Id. at 5. This is a sufficient
14 nondiscriminatory reason for Castron’s layoff. Therefore, plaintiff must show that the
15 articulated reason is pretextual either directly or indirectly.
16 Plaintiff points to several allegedly sex-based remarks uttered by Castron’s
17 supervisors, including some who were involved in her RIF evaluations, and co-workers. See
18 Response at 10-13. The comments plaintiff presents do not belong in the workplace. When
19 directed at women who work in a predominantly male field like engineering, the remarks
20 might make women feel unwelcome. They certainly reflect poorly on those who made them.
21 However, to constitute direct evidence of sex-based termination, they must be linked to the
22 adverse employment decision. Each comment and remark introduced by plaintiff is unrelated
23 to Castron’s termination. At the pretext stage, plaintiff must show that this kind of evidence
24 is somehow related to defendant's decision to terminate Castron. Plaintiff cannot simply
25 introduce this kind of evidence and rest its case.
26

27

Therefore, because the remarks and comments plaintiff introduces are not on their

28 own probative of pretext, we turn to whether plaintiff has any other evidence that defendant’s

- 14 -

1 reasons are pretextual. Plaintiff argues that the scores given by Hobby “lacked foundation

2 and were grossly unfair.” Response at 14.10 Plaintiff contends that Hobby’s scores were

3 flawed because at the time of his evaluations, he had only supervised Castron for 2.5 months,

4 yet failed to review or consult any of Castron’s prior evaluations. Response at 14. Plaintiff

5 cites the opinion of “a manager with past experience conducting RIF assessments” for the

6 proposition that scoring an employee for a RIF is “tough” when a manager has only

7 supervised that employee for a short period of time. Id. at 15. According to plaintiff, the

8 person most qualified to evaluate Castron’s performance during the time at issue would have

9 reported to Hobby that Castron was “doing ok.” PSOF 510, 519. Plaintiff fails to

10 demonstrate that Hobby’s evaluations were actually inaccurate. To suggest that they might

11 have been inaccurate is not evidence of pretext.

12

Next, plaintiff argues that Castron was “set up to fail” because she was compared to

13 seasoned employees in a field in which she was still a trainee. Response at 15. We have

14 already acknowledged that a pre-RIF transfer might, under these circumstances, be adverse.

15 Still, we decline to conclude that such a transfer is evidence of pretext. Other employees

16 were also transferred into departments pre-RIF, and were assessed against more experienced

17 employees for purposes of the RIF.

18 Plaintiff also contends that the fact that another male filled Castron’s position after
19 her termination is evidence of pretext because it suggests that defendant had no genuine need
20 to reduce the number of workers in Castron’s skill code. Response at 15. Castron was
21 identified for RIF in October 2002. It is undisputed that she transferred into the position that
22 made her more vulnerable to layoff in August 2002. Plaintiff’s own exhibit indicates that the
23 male who allegedly filled her position was hired before Castron transferred into her final
24

25 10 Plaintiff cites to facts 454, 485-529, and exhibits 59 and 62 in support of this
26 assertion. We reviewed each cited fact and exhibit. The only relevant facts are included in
27 our analysis. Again, we note that citing to a span of facts does not aid plaintiff’s argument. The parties must themselves separate the wheat from the chaff in a legally significant
28 fashion.

- 15 -

1 position. See PSOF Exhibit 54 (identifying July 18, 2002 as the employee’s start date). We 2 are left with Castron’s assertion that shortly after her last day of work, she remembers being

3 told that “it was true that a contractor had been hired to replace me.” PSOF Exhibit 48 at 3.

4 This is not enough to establish that Castron’s position was not eliminated. Plaintiff’s own

5 evidence suggests that an employee within Castron’s department assumed her duties.

6

C.

7 Defendant moves for summary judgment as to Castron’s transfer-based retaliation
8 claim, arguing that plaintiff cannot establish causation between “any protected activity by
9 Castron and her transfer.” Motion for Summary Judgment at 15. Defendant contends that
10 Bill Charlton, the person who decided to transfer Castron, had no knowledge that Castron
11 engaged in protected conduct.
12 In early August 2002, Castron asked Charlton for a transfer because of difficulties she
13 was having with her male coworkers in PSA. DSOF 181. Castron told Charlton that “she
14 was having a hard time with the guys,” that “the guys were keeping her from performing her
15 job, and that she really needed to move.” DSOF 182. Additionally, Castron stated that “the
16 guys would not answer a direct question, did not want her there, and did not give her a
17 chance.” DSOF 183. Castron told Charlton that she was working in a hostile work
18 environment. DSOF 182. Charlton characterized Castron’s problems in PSA as “personal
19 problems,” frustrations that “she was given less technically demanding tasks to work,” and
20 “compatibility issues.” PSOF Exhibit 53.
21

22

By complaining of personality conflicts, Castron did not oppose practices Title VII

23 renders unlawful. However, plaintiff contends that “[t]he use of the terminology, ‘hostile

24 work environment’ is equivalent to saying ‘because of sex.’ ” Response to DSOF at 41.

25 Therefore, plaintiff argues, Charlton had knowledge of the fact that Castron engaged in

26 protected conduct because of “Castron’s precise language and the fact that she was the only

27 woman in the PSA group.” Response at 16. Although close, we assume, without deciding,

28 that this is sufficient evidence of opposition to unlawful activities.

- 16 -

1

Alternatively, defendant argues that Charlton’s awareness of plaintiff’s complaints is

2 immaterial because his decision to transfer Castron was not an adverse employment action.

3 Reply at 9. Because the transfer made Castron more vulnerable to RIF, we assume that the

4 transfer was an adverse action, and that plaintiff has satisfied its prima facie burden.

5 Defendant has stated sufficient nondiscriminatory reasons for Castron’s transfer: Castron

6 repeatedly requested a transfer, and was moved in order to accommodate her request.

7 Therefore, to rebut these reasons, plaintiff must present evidence of pretext.

8

We have already concluded that plaintiff has not presented direct evidence of

9 discrimination. Additionally, evidence of discriminatory statements not related to Castron’s

10 transfer, uttered by Charlton or others, does not support an inference that defendant’s reasons

11 for Castron’s transfer are pretextual.

12 Here, plaintiff’s offer of evidence of pretext consists of the allegation that Charlton

13 “reneged” on his promise to give Castron time to train before she was evaluated against more

14 experienced engineers in Structures-Mod. Response at 17. Castron alleges that:

15

I relied on Mr. Charlton’s assurance that I would not be adversely affected in the RIF

16

when I decided to accept the transfer to Structures Mod in August 2002 . . . I assumed

that Boeing would give me the time and training I needed to succeed.

17

18 PSOF Exhibit 50 ¶4; see also PSOF Exhibit 42 188-89 (when Castron moved to Structures-

19 Mod, she thought “it wouldn’t affect [her] in the RIF because [she] would be a trainee”).

20

Even if Charlton did promise Castron that she would not be affected by her transfer,

21 this is not evidence of pretext. Defendant was entitled to evaluate Castron’s ability to

22 perform within her new department. See DSOF Exhibit 32 (“The purpose of the RIF

23 assessment was to determine who was able to perform remaining work.”). To evaluate

24 Castron’s potential, defendant was entitled to rely on Castron’s 2.5 months of experience in

25 Structures-Mod. To that end, Richard Hobby, Castron’s supervisor during the relevant time

26 period, concluded that Castron “was unable to work independently” and “did not have the

27 skills to create an engineering sketch.” DSOF Exhibit 32 at 82, 85.

28

- 17 -

1

Defendant was not required to treat Castron more favorably than other employees and

2 exempt her from a RIF. Defendant’s failure to treat Castron better than other employees is

3 not evidence of pretext. Because plaintiff has not rebutted defendant’s legitimate reasons for

4 Castron’s transfer, we conclude that Castron’s transfer was not retaliatory.

5

D.

6 Defendant also moves for summary judgment as to Castron’s retaliatory layoff claim.

7 Defendant contends that Richard Hobby, who evaluated Castron as part of the October 2002

8 RIF, lacked any knowledge that Castron opposed conduct made unlawful by Title VII.

9 Motion for Summary Judgment at 16. Plaintiff argues that Hobby had knowledge of the

10 conditions that spurred Castron’s transfer request. Response at 16. Plaintiff contends that

11 a written statement prepared by Charlton “details a meeting with Hobby and Castron in

12 which Castron articulates some of her challenges with the men in PSA.” Response at 16.

13 There, Charlton recounts his meeting with Hobby and Castron as follows:

14

I met with A. Castron and her Technical Lead, R. Hobby, to discuss her request for

15

immediate transfer and PSA Team compatibility issues. She expressed her feelings

that ‘She was constantly given simple technical tasks to work, include the Archie Box

16

and was not given more challenging assignments.’ She also expressed her concerns

of ‘having to sit next to J.Cotone and that he would not communicate with her.’ She

17

felt ‘the Team of PSA engineers and the Team Leader, D. Stallings, did not help her

work these issues. I discussed moving her off the PSA Team and to the Structures

18

Modification Team. At first she was reluctant and thought that J. Cotone should

move and not her. After further discussion, we all agreed that she should move from

19

the PSA Team to the Structures Modification Team as soon as possible.

20 PSOF Exhibit 53. This does not suggest that Castron made any mention of a “hostile work
21 environment,” or otherwise gave Hobby notice that she was opposing conduct Title VII
22 makes unlawful.
23

24

However, we conclude that the fact that Castron confronted Hobby about his “little

25 girl” comment establishes that she engaged in protected conduct. See Response at 16

26 (“Castron had confronted Hobby about calling her a ‘little girl,’ which led to his refusal to

27

28

- 18 -

1 speak with her for 20 months, until he later became her boss.”).11 Therefore, we assume for

2 purposes of this order that plaintiff has met its prima facie burden for a termination-based

3 retaliation claim. Defendant has already proffered non-discriminatory reasons for Castron’s

4 termination. Plaintiff must rebut those reasons to survive summary judgment.

5

We conclude that plaintiff has failed to present any evidence that supports an

6 inference that defendant’s reasons are pretextual. To be sure, the “little girl” comment

7 reflects quite poorly on Hobby. But, on its own, it is insufficient to establish an inference

8 that whatever animus spurred Hobby to make that comment also tainted his otherwise

9 accurate evaluations. Moreover, the time lapse between the comment and Castron’s

10 termination is significant. A lengthy time lapse “between the employer becoming aware of

11 the protected activity and the alleged adverse employment action . . . negates any inference”

12 of a causal connection. Dowe, 145 F.3d at 657. Similarly, it negates the inference that

13 Hobby’s 22-month old animus influenced his evaluations. Therefore, we grant defendant’s

14 motion as to any claim alleging retaliatory termination.

15 III.
16 Finally, we address plaintiff’s motion to strike. Defendant responded to plaintiff’s
17 statement of facts and replied to plaintiff’s response to defendant’s statement of facts. These
18 supplemental filings are not contemplated by the local rules.12 Plaintiff argues that
19 defendant’s supplemental documents contain so much legal argument that they are additional
20 replies. We resolved this case without resort to any of the items plaintiff moves to strike.
21

22 11 Hobby states that he “was doing an Arty Johnson impression at the time, so the
23 voice that [he] used was an impression of an actor, and it was meant in good humor.” DSOF
24 Exhibit 32 at 197. Hobby explains that “[i]t only took a fraction of a moment to see that it was not taken well, and [he] immediately apologized.” Id.
25 12 Indeed, even if we construed LRCiv 56.1(b) to permit such documents, we would
26 still disregard them by suspending the local rule. See LRCiv 83.6. Rules of procedure in this
27 court must be construed and administered “to secure the just, speedy, and inexpensive determination of every action.” Fed. R. Civ. P. 1. Defendant’s excessive litigation of
28 plaintiff’s version of the facts has unnecessarily delayed adjudication of this case.

- 19 -

1 Therefore, plaintiff’s motion is denied on grounds of mootness.13 Also, we note that

2 plaintiff’s motion itself is not allowed by the rules. Motions to strike under Rule 12(f), Fed.

3 R. Civ. P. are limited to pleadings under Rule 7(a), Fed. R. Civ. P., in contrast to motions and

4 papers under Rule 7(b), Fed. R. Civ. P. Because responses and replies to statements of fact

5 are not pleadings, plaintiff may not challenge them by way of a motion to strike. The remedy

6 for defendant’s abuse of the rules is that we simply ignore defendant’s abusive filings.

7

THEREFORE, IT IS ORDERED GRANTING defendant’s motion for summary

8 judgment (doc. 103). IT IS FURTHER ORDERED DENYING plaintiff’s “Motion to

9 Strike ‘Defendant’s “Response to Plaintiff’s Statement of Facts’ and ‘Defendant’s Reply to

10 Plaintiff’s Local Rule of Practice 56.1(b) Response to Defendant’s Separate Statement of

11 Facts’ or, in the Alternative Motion for Leave to Respond to Both of these Pleadings” on

12 grounds of mootness (doc. 124).

13 DATED this 15th day of August, 2007.
14

15

16

17

18

19

20

21

22

23

24

25

26

27

13 Because we do not rely on the items plaintiff moves to strike, we need not afford

28 plaintiff an opportunity to respond.

- 20 -

 
 E.E.O.C. v. Boeing Co., 577 F.3d 1044 (2009) 106 Fair Empl.Prac.Cas. (BNA) 1839, 92 Empl. Prac. Dec. P 43,652...

577 F.3d 1044 United States Court of Appeals,
Ninth Circuit.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff–Appellant, v.
The BOEING COMPANY, a Delaware corporation, Defendant–Appellee.
No. 07–16903. |
Argued and Submitted March 6, 2009. |
Filed Aug. 18, 2009.
Synopsis Background: Equal Employment Opportunity Commission (EEOC) brought action against employer, on behalf of terminated employees, claiming that employer’s decisions to transfer and terminate one of the employees, and to terminate the other, were discriminatory and/or retaliatory, in violation of Title VII. The United States District Court for the District of Arizona, 2007 WL 2343860, Frederick J. Martone, P.J., granted summary judgment for the employer. The EEOC appealed.
Holdings: The Court of Appeals, Hawkins, Circuit Judge, held that:
EEOC established prima facie case of disparate treatment on behalf of first employee;
fact issues existed as to whether employer’s articulated reasons for transferring and terminating first employee were pretextual; and
fact issue existed as to whether employer’s articulated reason for terminating second employee was pretextual.
Reversed and remanded.
Procedural Posture(s): On Appeal; Motion for Summary Judgment.
Attorneys and Law Firms 1

*1045 Anne Noel Occhialino (authored briefs and argued), Equal Employment Opportunity Commission, Washington, D.C., for the plaintiff-appellant.
Tibor Nagy, Jr. (argued) and Erica K. Rocush (authored brief), Ogletree, Deakins, Nash, Smoak & Stewart, Tucson, AZ, for the defendant-appellee.
Appeal from the United States District Court for the District of Arizona, Frederick J. Martone, District Judge, Presiding. D.C. No. CV–05–03034–FJM.
*1046 Before MICHAEL DALY HAWKINS, MARSHA S. BERZON, and RICHARD R. CLIFTON, Circuit Judges.
Opinion
HAWKINS, Circuit Judge:
The Equal Employment Opportunity Commission (“EEOC”) appeals, on behalf of charging parties Antonia Castron (“Castron”) and Renee Wrede (“Wrede”), the grant of summary judgment to Boeing in this action under Title VII of the Civil Rights Act of 1964. Boeing terminated Castron and Wrede after they received low scores on reduction-in-force (“RIF”) assessments, which Boeing uses to evaluate employees when determining whom to lay off. We hold that the EEOC introduced adequate evidence from which a reasonable jury could conclude that the reasons Boeing advanced to justify its employment actions were pretextual. Accordingly, we reverse and remand for a trial on both charging parties’ discrimination claims and Castron’s retaliation claim.
BACKGROUND
The following recitation of the facts reflects the nonmoving party’s factual submissions, which we credit for purposes of summary judgment. See Vasquez v. County of Los Angeles, 349 F.3d 634, 639–40 (9th Cir.2003).

E.E.O.C. v. Boeing Co., 577 F.3d 1044 (2009) 106 Fair Empl.Prac.Cas. (BNA) 1839, 92 Empl. Prac. Dec. P 43,652...

Antonia Castron Castron, after working for Boeing sporadically for several years, joined its Electrical Engineering Department as a liaison engineer in 1997. From 1998 until her termination in 2003, Castron worked under department manager Bill Charlton (“Charlton”), who reviewed the performance evaluations given by supervisors to liaison engineers.
According to the deposition testimony of Boeing employee Glen Foster (“Foster”), Charlton had frequently made negative comments about women, including comments to the effect that Charlton “didn’t want any more women and that women were not worth a shit,” that “he didn’t have good luck with females and they hadn’t been around long enough for his satisfaction,” that he “just didn’t have time” to train women, and that Charlton’s ex-wife, who was a Boeing employee, “should be at home, not working.” According to Foster, Charlton, in the context of discussing a female candidate for a production engineer position, said he “basically felt [women] should come to him all trained,” an expectation Foster had never heard him express with regard to men.
According to her sworn affidavit, in 2001, Castron began to feel mistreated and unwelcome by her exclusively-male coworkers in Boeing’s Pre–Shop Analysis (“PSA”) department because she was a woman. Castron reported her perception to several supervisors and repeatedly requested a transfer. In November 2001, Castron asked Charlton to transfer her to the Final Assembly workgroup. At the suggestion of another supervisor, Sam Turk (“Turk”), Castron told Charlton that she wished to transfer for career advancement, rather than because of harassment. Turk also asked Charlton several times to transfer Castron to Final Assembly.
Despite these repeated requests, Charlton refused to transfer Castron to the Final Assembly workgroup, but instead transferred a male coworker. When Castron sought an explanation, Charlton responded angrily that he would transfer her in three months. On August 6, 2002, after Castron told Charlton that the “hostile work environment” in the PSA department was “keeping [her] from performing[her] job,” Charlton proposed transferring Castron not to the Final Assembly department she requested, but instead to the Structures–Mod department. No transfer of that type had occurred in the previous four years because the Structures–Mod department *1047 required substantially different skills from those required in the PSA department.
As Charlton admitted in his EEOC statement, Castron
2

was “reluctant” to be transferred from PSA to Structures–Mod and thought Joe Cottone, a male-employee with whom Castron had been in conflict, “should move and not her.” Charlton’s EEOC statement noted, however, that “[a]fter further discussion, we all agreed that [Castron] should move.”
Although Castron did ultimately agree to leave PSA, she had two major concerns. First, she was concerned about working for Rick Hobby (“Hobby”), who would be her supervisor in the Structures–Mod department, because of previous incidents in which he had referred to Castron as a “little girl,” joked about Castron breaking a nail, and perfunctorily apologized and stormed off when confronted. Second, Castron feared the transfer to Structures–Mod would make her vulnerable to firing in an upcoming RIF assessment. Castron stated that Structures–Mod work is more difficult and complex than the work in PSA and was outside of Castron’s core area of expertise. Castron agreed to the transfer only after Charlton assured her that the upcoming RIF would not affect her in Structures–Mod. Castron’s coworkers suggested such exemptions did occur and that this promise was plausible.
Just two months after Castron’s transfer, Boeing conducted a RIF, in which employees were evaluated in several categories and those with the lowest scores were eligible for termination. Hobby prepared the final scores for all employees subject to the RIF. Despite Charlton’s past assurances, Castron was subject to the RIF, received low scores, and was ultimately terminated as a result.
Hobby’s evaluation of Castron included low scores for “ability to perform remaining work” and “past performance.” Hobby contended that the scores were based on personal interactions and comments from senior engineers, although Hobby had little personal interaction or knowledge of Castron’s performance. According to Turk, “past performance” scores for a recently-transferred employee typically include an employee’s entire body of work. Nevertheless, Hobby stated that he based Castron’s “past performance” scores solely on her two months as a trainee in Structures–Mod.
Leendert Hartoog (“Hartoog”), who trained and supervised Castron in Structures–Mod, stated that Castron had made good progress in her new position, but noted that typical training time for someone with Castron’s background was five or six years. Hartoog stated that he expected Castron to receive higher scores or to receive exemptions from certain requirements unfair to impose on

E.E.O.C. v. Boeing Co., 577 F.3d 1044 (2009) 106 Fair Empl.Prac.Cas. (BNA) 1839, 92 Empl. Prac. Dec. P 43,652...

a trainee, and that he believed Castron was “set up to fail.”
Renee Wrede Wrede began working for Boeing in 1989. In 1999, after Boeing substantiated Wrede’s complaint of sexual harassment by her direct supervisor, Wrede was transferred to the Apache helicopter manufacturing assembly installation support group. There, Wrede reported to Bruce Wright (“Wright”), who reported in turn to Rob Feuerstein (“Feuerstein”), the department manager for the division.
In 2001, Wright gave Wrede a positive evaluation, rating her as “meets expectations” or higher in ten categories and between “below expectations” and “meets expectations” in two other categories. The evaluation noted only one “positive flaw,” which was that Wrede saw herself as “Miss Fix–It” and should have “passed off responsibilities when appropriate more often rather than trying to do it all” herself. Wright placed Wrede on a “performance *1048 improvement plan,” which Wright testified was intended to improve the two areas in which she received the lowest evaluation scores.
In April 2002, Boeing conducted a RIF for manufacturing engineers (“MEs”), which required Wright and Feuerstein to evaluate Wrede again. Wrede scored thirtieth out of thirty-seven MEs. Although Boeing never completed the RIF because several MEs transferred or left the company, Wrede’s evaluation did not place her in the band eligible for termination.
In July 2002, Boeing conducted another RIF for employees in Wrede’s skill code, but based the RIF primarily on previous RIF scores. Although the four lowest-ranking MEs, all of whom were men with scores lower than Wrede’s scores, were initially slated for termination, again, none was actually laid off. One had his RIF cancelled and remained, two transferred to another division, and the fourth had his RIF cancelled because he took another ME job with Boeing in Texas.
In October 2002, Boeing conducted a third RIF for Wrede’s skill code. Wright performed Wrede’s RIF assessment. He scored Wrede significantly lower in her “ability to perform remaining work” in this evaluation than in the earlier evaluations, particularly in the
3

“communication/leadership” category, which measured “team skills,” “communication skills,” and “leadership skills.”
Wright testified the lower scores were justified by a decline in team-building, communication, and leadership skills, although Wright was unable to point to any specific complaints or any written record of problems. Wright and Feuerstein noted that Wrede missed deadlines and overloaded herself with work, although Wrede testified that other MEs also failed to meet deadlines and that Wright never raised the issue with Wrede. In addition to Wrede’s ability to perform remaining work, Wrede received the second lowest score for “past performance,” but Wright was unable to explain why Wrede’s scores were so low.
Wrede also received lower technical scores in her third RIF evaluation. Wrede received a “0,” reflecting “no knowledge” or “no experience” in multiple categories, such as “Unigraphics” and “wiring systems,” even though her own statements and prior RIF evaluations had indicated she possessed at least some knowledge or experience in these areas.
After Feuerstein met with Wright and the other managers to ensure uniform scoring, six men and Wrede, the only female ME in her skill code, were given RIF notices. Unlike Wrede, however, all six low-scoring male engineers ultimately avoided termination. One of them, James Early, had his notice cancelled after expressing concerns regarding his assessment process. Five others avoided layoffs by transferring within Boeing, in two cases, because Feuerstein told them about new job openings, assistance Wrede stated Feuerstein never offered her.
In a sworn affidavit, David Eroh (“Eroh”), a lead ME in Wrede’s skill code who obtained high RIF scores, stated that Wrede was better than “many of the other MEs,” equaled his own capabilities, and should have received higher scores in many categories. Eroh noted that Wrede “excelled where other colleagues” failed, handled numerous jobs without assistance, became a trusted assistant to management, and produced “stellar” work. Eroh gave detailed explanations why, in his opinion, each of Wrede’s low scores should have been higher.
Likewise, several managers with whom Wrede was working held her in high regard. Multiple managers stated that certain male employees should have been laid off instead or asked Feuerstein if Wrede could be transferred

E.E.O.C. v. Boeing Co., 577 F.3d 1044 (2009) 106 Fair Empl.Prac.Cas. (BNA) 1839, 92 Empl. Prac. Dec. P 43,652...

to their working *1049 groups. Notwithstanding these statements and requests, Feuerstein approved Wrede’s termination. The district court granted summary judgment to Boeing on all claims, finding that the EEOC had failed to establish a prima facie case for Castron’s discriminatory transfer claim by identifying a similarly-situated male who was treated more favorably and that the EEOC had failed to present sufficient evidence to establish pretext with respect to any of the claims. The EEOC timely appealed with respect to all discrimination claims and Castron’s retaliation claim, but does not pursue Wrede’s retaliation claim on appeal.
STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291 and review de novo the district court’s grant of summary judgment. See Vasquez, 349 F.3d at 639. Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id. at 639–40.
DISCUSSION
A plaintiff alleging disparate treatment under Title VII must first establish a prima facie case of discrimination by offering evidence that “give[s] rise to an inference of unlawful discrimination.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). A plaintiff may establish a prima facie case either by meeting the four-part test laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), or by providing direct evidence suggesting that the employment decision was based on an impermissible criterion, Cordova v. State Farm Ins. Cos., 124 F.3d 1145, 1148 (9th Cir.1997). Once a prima facie case has been made, “[t]he burden of production, but not persuasion, then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged action.” Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1123–24 (9th Cir.2000). If the employer
4

does so, the plaintiff must then show that the articulated reason is pretextual “either directly by persuading the [fact-finder] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Burdine, 450 U.S. at 256, 101 S.Ct. 1089. When the evidence is direct, “ ‘[w]e require very little evidence to survive summary judgment’ in a discrimination case.” Lam v. Univ. of Hawaii, 40 F.3d 1551, 1564 (9th Cir.1994) (quoting Sischo–Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1111 (9th Cir.1991)) (alteration in original). “But when the plaintiff relies on circumstantial evidence, that evidence must be specific and substantial to defeat the employer’s motion for summary judgment.” Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090, 1095 (9th Cir.2005) (internal quotation marks omitted).
I. Antonia Castron After complaining of a hostile work environment, Castron was transferred to a new work group and was terminated in a RIF two months later. The critical inquiry is whether Castron’s employment experience, including her transfer and its connection to a subsequent RIF that led to her termination, would allow a jury to find in favor of the EEOC.
We conclude the EEOC has established a prima facie case on Castron’s behalf because of direct evidence of discriminatory animus. Cordova, 124 F.3d at 1148. In RIF cases, a plaintiff can “show through circumstantial, statistical or direct evidence that the discharge occurred under *1050 circumstances giving rise to an inference of ... discrimination.” Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir.1993) (per curiam).
Foster testified that Charlton, Castron’s supervisor, frequently made demeaning and derogatory comments about women. These comments, considered along with Charlton’s interactions with Castron over the course of her employment at Boeing, are sufficient to create an inference of discriminatory motive even though the comments were not directed specifically at Castron or made in regard to decisions about her employment. See Cordova, 124 F.3d at 1149; Dominguez–Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1038 (9th Cir.2005); Chuang, 225 F.3d at 1128. These comments are more severe than “ambivalent” “stray remark[s]” that we have

E.E.O.C. v. Boeing Co., 577 F.3d 1044 (2009) 106 Fair Empl.Prac.Cas. (BNA) 1839, 92 Empl. Prac. Dec. P 43,652...

previously held insufficient to establish such an inference. See, e.g., Nesbit, 994 F.2d at 705; Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918–19 (9th Cir.1997). Consequently, the EEOC made out a prima facie case in relation to Castron’s transfer.
Because Boeing has articulated legitimate, nondiscriminatory reasons for its decision to transfer and subsequently terminate Castron—her request for a transfer and her subsequent low RIF scores—the EEOC was required to respond with evidence from which a jury could infer that Boeing’s proffered reasons are pretextual. Burdine, 450 U.S. at 256, 101 S.Ct. 1089. The discriminatory animus exhibited by Castron’s supervisor constitutes direct evidence of pretext, even though the comments did not refer specifically to Castron. Based on Charlton’s sexist comments, a jury might reasonably infer that Charlton’s decision to transfer Castron, rather than a male coworker about whom she complained, to a new position where her job was less secure, may have resulted from improper motivations, including discriminatory intent, retaliatory intent, or both. There is also “specific and substantial” circumstantial evidence, in addition to Charlton’s comments, on which a jury could rely to support the conclusion that the transfer might have been discriminatory. A jury might credit Castron’s allegations that Charlton (1) initially refused to transfer Castron at all, (2) made promises to transfer her to the department she requested, (3) agreed to transfer her, but only to a different department to which no other engineers from her department had been transferred in recent years, and (4) assured Castron that she would be exempt from the RIF process during her training in order to induce Castron to accept the transfer despite her explicit (and not unwarranted) concern that the transfer might significantly increase her risk of termination. Taking note of all of the direct and circumstantial evidence, a jury might conclude that Charlton deliberately set Castron up to fail because of her sex or because of her invocation of Title VII rights.
There is also sufficient evidence from which a jury could find that Castron’s later poor RIF evaluation scores, which led to her termination, were pretextual. Castron’s supervisor in her new department, Hobby, had previously referred to Castron as a “little girl” and made a “joking” inquiry as to whether she “broke a nail.” Although these comments occurred two years prior to Castron’s firing and Boeing argues these comments are mere “stray remark [s],” Hobby’s comments constitute at least some evidence of discriminatory animus.
Moreover, Hobby evaluated Castron without asking
5

Castron’s trainer about her progress. Several employees testified that Hobby unfairly ignored Castron’s past performance evaluations and instead focused only on her two months as a trainee in her *1051 new department, that Castron’s skills merited higher scores, and that Hobby gave Castron lower scores than those received by other male employees from Castron’s previous department who allegedly possessed skills inferior to Castron’s.
Boeing urges us to consider this testimony by other employees irrelevant because Castron’s coworkers’ views do not prove that Hobby’s differing subjective evaluations were either incorrect or pretextual. Although subjective evaluations of an employee’s skills of course may differ for a variety of reasons, specific positive evaluations of Castron’s performance, both by her coworkers and by other managers, critically undermine the credibility of her official evaluation in a manner relevant to determining the existence of pretext. We therefore adopt the Tenth Circuit’s view that “co-workers’ assessment[s]” of a plaintiff’s work should be considered because they can be “clearly probative of pretext.” Abuan v. Level 3 Commc’ns, Inc., 353 F.3d 1158, 1174 (10th Cir.2003).
In light of all of the evidence of pretext introduced by the EEOC, a reasonable jury could infer that Hobby’s evaluation of Castron was not worthy of credence and therefore pretextual. Because the EEOC has presented adequate direct evidence and “specific and substantial” circumstantial evidence that Castron’s termination was pretextual, entry of summary judgment was erroneous. A jury could find in favor of the EEOC on all of Castron’s discrimination and retaliation claims regarding both her transfer and termination.
II. Renee Wrede In October 2002, one year after Boeing substantiated a sexual harassment claim Wrede had filed, she received lower RIF scores than most engineers in her skill code and was subsequently terminated.1 These scores were lower than the scores she had received in two previous RIF evaluations in April and July of 2002. Wrede scored high enough on the earlier RIFs to avoid vulnerability to discharge, but her scores in the October RIF dropped substantially, placing her at risk. Although several male engineers were also initially selected for termination, none was ultimately terminated in any of the three RIFs,

E.E.O.C. v. Boeing Co., 577 F.3d 1044 (2009) 106 Fair Empl.Prac.Cas. (BNA) 1839, 92 Empl. Prac. Dec. P 43,652...

because they either successfully contested their scores or found other employment within Boeing, sometimes with the assistance of their supervisors.
Both parties agree that the EEOC established a prima facie case of gender discrimination regarding Wrede under McDonnell Douglas, 411 U.S. 792, 93 S.Ct. 1817, that Boeing has articulated a legitimate, non-discriminatory reason for terminating Wrede (her low RIF scores), and that the EEOC has introduced circumstantial, but not direct, evidence that this reason for Wrede’s termination was pretextual. The parties dispute only whether the EEOC presented sufficiently “specific and substantial” circumstantial evidence that Wrede’s RIF scores were not credible to allow a jury to find pretext.
As it concedes, the EEOC must also overcome an inference arising from the fact that the same actors who made an adverse employment decision against Wrede in the October RIF had twice given her scores that were high enough to avoid vulnerability to discharge. While recent positive employment decisions made by the same actors who later make an adverse employment decision against an employee may give rise to “an inference that no *1052 discrimination took place,” Coleman v. Quaker Oats Co., 232 F.3d 1271, 1288 (9th Cir.2000), the inference in this case is weaker than the “strong inference” against bias that arises when an employer who hires or promotes a plaintiff later takes an adverse employment action against her, see Coghlan, 413 F.3d at 1096.
Although a termination is rarely motivated by bias when it is initiated by the same actors who recently selected the same employee for the job or promotion in the first place, the logic differs when applied to less overtly “positive” employment decisions, such as refraining from firing an employee at the earliest opportunity or giving an employee a lukewarm evaluation, rather than a poor one. A supervisor who hires or promotes an employee affirmatively forwards the employee’s career; this affirmative enhancement of the employee’s career prospects is strong circumstantial evidence of a lack of bias on the supervisor’s part. In contrast, where a supervisor discharges an employee he did not affirmatively hire or promote by lowering her scores over time, rather than by firing her precipitously, there is no such strong circumstantial evidence of lack of bias.
A strong inference is also inappropriate here because none of the employees who the supervisors ranked lower than Wrede in the April and July RIFs ultimately suffered as a result: all six men had their RIFs cancelled or obtained
6

transfers within Boeing, and none was laid off. Given that a jury could find the evidence suggested Wrede’s RIF scores were not credible, as discussed further below, a jury could infer that Wrede suffered discrimination notwithstanding any inference arising from her supervisors’ prior employment decisions.
The EEOC has also produced evidence from which a jury could conclude that Wrede’s RIF assessment was pretextual. First, Wright assigned Wrede RIF scores in October indicating “no background or experience” in areas in which she had received higher scores in earlier RIFs, indicating at least some background or experience. Wrede also received significantly lower evaluations in several soft-skill categories, such as “communication/leadership,” in the October RIF than in the July RIF, even though Wright was unable to offer a nonconclusory explanation of any of the significant changes or to point to any concrete conduct, specific complaints, or written records indicating a change. Wright also contended Wrede had trouble communicating with her “dotted-line manager,” but was unable to recall who Wrede’s dotted-line manager was.
Other specific and substantial circumstantial evidence also suggests Wright lacked legitimate justification for his scoring. Several of Wrede’s coworkers and managers offered detailed testimony regarding why the RIF assessments of Wrede’s skills were not credible. Coworkers’ and managers’ assessments of an employee’s skills and performance can be probative of pretext. See Abuan, 353 F.3d at 1174. Coworker testimony is particularly relevant here because it would allow a jury to infer that Boeing’s proffered reason for termination—a poor RIF evaluation—was not only inaccurate, but is simply unworthy of credence.
Specifically, coworkers and managers familiar with Wrede’s work gave detailed testimony that Wrede was a good employee, that her skills warranted higher scores than she received, and that she performed better than several male survivors of the October RIF. Several managers even requested that Feuerstein transfer Wrede to their departments, but Feuerstein denied these requests. Furthermore, Wrede’s own detailed testimony about why her low scores were not merely “wrong or mistaken,” but were “unworthy of credence,” is *1053 also evidence for the jury to consider. Tomasso v. Boeing Co., 445 F.3d 702, 708 (3d Cir.2006) (internal quotation marks omitted).
Finally, Wrede, the only woman in her skill code, was

E.E.O.C. v. Boeing Co., 577 F.3d 1044 (2009) 106 Fair Empl.Prac.Cas. (BNA) 1839, 92 Empl. Prac. Dec. P 43,652...

laid off while every male employee identified for termination in all three RIFs ultimately remained at Boeing, sometimes due to the assistance of supervisors, assistance that was not made similarly available to Wrede. Feuerstein’s failure to treat Wrede the same as male employees and “the inexorable zero” female employees who remained in the department after the RIF are also probative of pretext. Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 342 n. 23, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); see also Coghlan, 413 F.3d at 1095 (“[S]tatistical evidence is circumstantial evidence that could, if sufficiently probative, point to bias.”). All of this could lead a jury to conclude that Boeing’s asserted rationales were pretextual.
Because the EEOC has presented specific and substantial evidence in support of Wrede’s claim that Boeing’s asserted justification for her termination was pretextual,
Footnotes

summary judgment on Wrede’s discrimination claim was erroneous. A jury could reasonably conclude that Wrede’s discharge resulted from discrimination on account of sex.
For all of these reasons, the district court’s grant of summary judgment is reversed and the case is remanded for proceedings consistent with this Opinion.
REVERSED AND REMANDED.
All Citations
577 F.3d 1044, 106 Fair Empl.Prac.Cas. (BNA) 1839, 92 Empl. Prac. Dec. P 43,652, 09 Cal. Daily Op. Serv. 10,526, 2009 Daily Journal D.A.R. 12,233

1

The district court granted summary judgment on Wrede’s Title VII retaliation claim because of the year that elapsed between her

protected conduct and the adverse employment action. The EEOC has not appealed this decision. We therefore consider only

Wrede’s discrimination claim.

7

 
 Case 2:05-cv-03034-FJM Document 158 Filed 01/27/10 Page 1 of 13

1

2

3

4

5

6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE DISTRICT OF ARIZONA
8

9 Equal Employment Opportunity Commission,
10

11

Plaintiff,

vs.

12

The Boeing Company, a Delaware 13 corporation,

14

Defendant.

15

) ) Case No. 05-3034-PHX-FJM ) ) ) ) ) ) ) ) ) )

16

17

This court granted judgment in favor of the defendant Boeing and against the

18 plaintiff EEOC on August 16, 2007 (docs. 130 and 131). The United States Court of

19 Appeals for the Ninth Circuit reversed and remanded for trial on June 18, 2009 (doc.

20 145). We set the case for trial, but the parties announced settlement and ask us to enter a

21 consent decree which Boeing has volunteered to impose on itself (doc. 157). This is their

22 requested decree.

23

The United States Equal Employment Opportunity Commission (the

24 “Commission” or “EEOC”) filed this action against The Boeing Company, a Delaware 25 corporation (“Defendant”), on September 30, 2005, to enforce Title VII of the Civil

26 Rights Act of 1964 and Title I of the Civil Rights Act of 1991. In the Complaint, the

27 Commission alleged that Boeing discriminated against Renee Wrede and Antonia

28

1

Case 2:05-cv-03034-FJM Document 158 Filed 01/27/10 Page 2 of 13

1 Castron on the basis of their sex, female, and retaliated against Castron after she

2 complained about the discrimination, in violation of Title VII.

3

In the interest of resolving this matter, and as a result of having engaged in

4 comprehensive settlement negotiations, the Parties have agreed that this action should be

5 finally resolved by entry of this Decree. The scope of this Decree, including any duties

6 or obligations set forth in Paragraphs 2, and 7 through 31 herein, is Defendant’s

7 employees and premises in the Rotocraft Systems Division at its Mesa, Arizona location.

8 The Parties do not object to the jurisdiction of the Court over this action and waive their

9 rights to a jury trial and the entry of findings of fact and conclusions of law. The parties

10 agree that this Consent Decree is fair, equitable, and reasonable, and does not violate the

11 law or public policy.

12

Defendant specifically denies and does not admit that it has violated any federal,

13 state, or local law, or that it has any liability in this civil action. Defendant maintains that

14 it complies with all applicable employment laws, including those pertaining to sexual

15 discrimination, harassment, and retaliation. This Decree does not constitute a finding of

16 liability or wrongdoing on the part of Defendant. Defendant states that it is entering into

17 this Decree solely for the purposes of avoiding the expense and inconvenience of further

18 investigation and litigation.

19

It is hereby ORDERED, ADJUDGED AND DECREED:

20 1. This Decree resolves all claims of the Commission in this case against

21 Defendant, including, but not limited to, back pay, compensatory and punitive damages,

22 attorneys’ fees, costs, interest, and injunctive relief arising out of the issues in this

23 lawsuit.

24

INJUNCTION

25 2. Defendant and its officers, agents, employees, successors, assigns, and all

26 persons in active concert or participation with them, both at the time that this Decree

27 becomes effective and for the duration of this Decree, are permanently enjoined from: (a)

28 sexually harassing any employee; or (b) retaliating against any employee, including but

2

Case 2:05-cv-03034-FJM Document 158 Filed 01/27/10 Page 3 of 13

1 not limited to, Renee Wrede and Antonia Castron, because he or she: (i) opposes or 2 opposed discriminatory practices made unlawful by Title VII; (ii) files or filed a charge

3 of discrimination or assists, assisted, participates, or participated in the filing of a charge

4 of discrimination; or (iii) assists, assisted, participates or participated in an investigation 5 or proceeding brought under the federal laws prohibiting discrimination or retaliation.

6

MONETARY RELIEF

7 3. Judgment is entered in favor of the Commission and against Defendant in the

8 amount of $ 280,000.00. 9 4. No later than ten business days from the date of the Court’s entry of the

10 Consent Decree, Defendant shall pay the sum of $140,000.00 to Ms. Wrede and $ 11 140,000.00 to Ms. Castron by check or money order. The respective checks or money

12 orders shall be made payable to Ms. Wrede and Ms. Castron and mailed to addresses

13 provided by the Commission. The respective payments to Ms. Wrede and Ms. Castron

14 represent settlement of compensatory damages. No later than January 31, 2011,

15 Defendant will issue United States Internal Revenue Service (“IRS”) Forms 1099 to Ms. 16 Wrede and Ms. Castron for tax year 2010 for the respective payments.

17 5. Within three business days of the issuance of the checks or money orders, 18 Defendant shall submit copies of the checks or money orders and all related

19 correspondence to Mary Jo O’Neill, Regional Attorney, Equal Employment Opportunity 20 Commission, 3300 North Central Avenue, Suite 690, Phoenix, Arizona 85012.

21 6. Defendant will not condition the receipt of monetary relief on Ms. Wrede’s or

22 Ms. Castron’s agreement to: (a) maintain as confidential the facts and/or allegations 23 underlying their charges and complaints and the terms of this Decree, (b) waive their

24 respective statutory rights to file a charge with any governmental agency; (c) refrain from 25 reapplying for a job with Defendant; or (d) agree to a non-disparagement and/or

26 confidentiality agreement.
27

OTHER RELIEF

28

3

Case 2:05-cv-03034-FJM Document 158 Filed 01/27/10 Page 4 of 13

1 7. Defendant shall institute and carry out policies and practices that help assure a 2 work environment free from sex discrimination, including sexual harassment, for its

3 employees and that allow employees to raise concerns or complaints without retaliation

4 about matters, whether alleged, perceived or actual, made unlawful by Title VII. To 5 assist Defendant in its efforts to assure such a work environment, Defendant shall take

6 the actions provided below in this Decree.

7

TRAINING

8 8. Defendant shall provide training on sex discrimination, including sexual 9 harassment, and retaliation, to its managers for the duration of this Decree, beginning

10 within six months of the effective date of this decree and taking place at least once each 11 year of the decree. This training will include: (1) what constitutes sex discrimination,

12 including sexual and gender harassment, and retaliation; (2) that Title VII prohibits sex

13 discrimination, including sexual and gender harassment, and retaliation; (3) how to

14 prevent sex discrimination, including sexual and gender harassment, and retaliation; (4)

15 to whom employees may complain if they feel they have been subjected to sex 16 discrimination, including sexual and gender harassment, and/or retaliation; (5) an

17 explanation of Defendant’s policies and procedures proscribing sex discrimination, 18 including sexual and gender harassment, and retaliation; (6) Defendant’s corrective

19 action policies and guidelines for effective, remedial disciplinary action when allegations 20 of sex discrimination, including sexual and gender harassment, and/or retaliation are

21 substantiated; and (7) the necessary protocols that must be followed when discriminatory

22 behavior is observed or complained about. These corrective action policies and 23 guidelines impose disciplinary action up to and including termination of employment.

24 During the duration of this Decree, all newly-hired or newly-assigned managerial 25 personnel shall receive this training within six months of the date of entry into a

26 management position.

27

28

4

Case 2:05-cv-03034-FJM Document 158 Filed 01/27/10 Page 5 of 13
1 9. The training for managers shall be no less than two hours and shall include a 2 procedure for questions and answers. For the duration of this Decree, Defendant shall 3 create and maintain a roster identifying all managers who attended or took the training. 4 10. Prior to the first training for managers, Defendant’s Site Executive for the 5 Rotocraft Systems Division shall speak to the managers about the importance of 6 maintaining an environment free of sex discrimination, including sexual and gender 7 harassment, and retaliation. This message will be communicated by the Mesa Site 8 Executive to all managers. Defendant shall make the training available for review by the 9 Commission. 10 11. In addition to the management training set forth in paragraphs 8-10, Defendant 11 will provide training on Title VII’s prohibition of sex discrimination, including sexual 12 and gender harassment, and retaliation to all non-management employees for the duration 13 of this Decree. The employee training shall beginning within six months of the effective 14 date of this decree and taking place at least once each year of the decree, shall be no less 15 than one hour and shall contain a procedure for questions and answers. 16 12. Defendant shall retain and pay an outside consultant/lecturer to provide the 17 training to its employees and management personnel. Defendant shall obtain the EEOC’s 18 approval of the consultant/lecturer’s training materials prior to each training session 19 unless the EEOC has already approved the materials. The training may be provided 20 online. If the training is provided live, Defendant may videotape the training. 21 13. At least sixty (60) days prior to each proposed live training seminar, Defendant 22 shall submit the name(s), address(es), telephone number(s) and resume(s) of the proposed 23 consultant/lecturer(s), if not previously approved by the EEOC, to the Regional Attorney 24 of the Phoenix District Office of the EEOC, at the address provided in paragraph 5 above. 25 14. The Commission, at its discretion, may designate Commission representatives 26 to attend and participate in the training sessions, and the representative shall have the 27 right to participate fully in the sessions. Defendant shall give written notice of the time
28
5

Case 2:05-cv-03034-FJM Document 158 Filed 01/27/10 Page 6 of 13

1 and location of each live training to the EEOC’s Regional Attorney at the address

2 provided in Paragraph 5 at least two (2) weeks prior to each live training.

3

WRITTEN POLICIES AND PROCEDURES

4 15. Within sixty (60) days of the entry of this Decree, Defendant shall develop

5 written policies and procedures or revise existing policies and procedures, to the extent

6 necessary to comply with this Decree, concerning sex discrimination, including sexual

7 and gender harassment, and retaliation to conform with the law. The written policies and

8 procedures must include at a minimum:

9

A. Clear and complete definitions of sex discrimination, including

10 sexual and gender harassment, and retaliation.

11

B. A clear statement that physical contact between employees that may

12 be construed as sexual is prohibited on all premises of Defendant.

13

C. A statement that sex discrimination, including sexual and gender

14 harassment, and retaliation are illegal, prohibited, and will not be tolerated.

15

D. A clear and strong encouragement of persons who believe they have

16 been subjected to sex discrimination, including sexual and gender harassment, and/or

17 retaliation to report the alleged behavior.

18

E. The identification of internal procedures of Defendant through

19 which employees can report sex discrimination, including sexual and gender harassment,

20 and retaliation.

21

F. An assurance that Defendant will investigate allegations of sex

22 discrimination, including sexual and gender harassment, and retaliation promptly, fairly,

23 reasonably and effectively, using trained investigators, and that corrective action will be

24 taken by Defendant when and as appropriate.

25

G. Corrective action policies and guidelines for the imposition of

26 appropriate disciplinary action, up to and including termination of employment, of any

27 manager at Defendant’s Mesa site against whom a claim of sex discrimination, including

28 sexual and gender harassment, or retaliation is substantiated by an internal investigation.

6

Case 2:05-cv-03034-FJM Document 158 Filed 01/27/10 Page 7 of 13

1

H. Corrective action policies and guidelines that provide for discipline,

2 up to and including discharge, of management-level employees who witness or receive an

3 allegation of sex discrimination, including sexual and gender harassment, or retaliation

4 but fail to take steps to initiate appropriate investigative or remedial action.

5

I. A procedure requiring a representative of Defendant’s Human

6 Resources organization to review and pre-approve an employee’s annual performance 7 evaluation or assessments for Reduction in Force when that employee has brought forth

8 an allegation for sex discrimination, including sexual and gender harassment, or 9 retaliation that has been substantiated against his/her manager. The purpose of the review

10 and pre-approval is to ensure that the manager against whom the complaint has been 11 substantiated provides an objectively fair and unbiased assessment of the employee’s

12 performance and skills.

13

J. An assurance of maximum feasible confidentiality for persons who

14 believe that they have been subjected to sex discrimination, including sexual and gender

15 harassment, or retaliation.

16

K. An assurance of non-retaliation for persons and witnesses who report

17 to Defendant that they believe they have been subjected to sex discrimination, including 18 sexual and gender harassment, or retaliation.

19 16. Defendant shall post in a prominent place frequented by its employees at 20 Defendant’s Mesa site notices that inform employees of these policies and procedures

21 and how they may be accessed electronically. This notice shall be the same type, style

22 and size as Exhibit A. Defendant will inform new hires about these policies and 23 procedures during new-hire orientation.

24

DISCIPLINE FOR FUTURE VIOLATIONS

25 17. Defendant shall take immediate, appropriate corrective action to discipline

26 employees, including managers, who engage in sex discrimination, including sexual and 27 gender harassment, or retaliation, through consequences that include termination under

28

7

Case 2:05-cv-03034-FJM Document 158 Filed 01/27/10 Page 8 of 13

1 appropriate circumstances and in accordance with Defendant’s policies and guidelines for 2 corrective action.

3

EVALUATION OF MANAGERS

4 18. Defendant’s existing performance management process evaluates its managers 5 on their leadership attributes, including upholding Defendant’s commitment to equal

6 employment opportunity principles and laws, creating an environment of respect and 7 inclusion, and demonstrating equal and fair treatment of everyone. Defendant shall

8 continue to evaluate its managers in this manner during the term of this Decree which 9 shall include consideration of the managers’ enforcement of Defendant’s anti-

10 discrimination policies and their handling of discrimination complaints.

11

INVESTIGATION POLICIES AND PROCEDURES

12 19. Pursuant to its policies and procedures, Defendant shall promptly and

13 appropriately investigate all complaints of sex discrimination, including sexual and

14 gender harassment, and retaliation.

15 20. The investigation must include a finding whether sex discrimination, including 16 sexual and gender harassment, and/or retaliation, occurred; a credibility assessment, if

17 necessary; to the extent possible, interviews of all potential victims and witnesses 18 identified; and concurrent notes of the investigation.

19 21. Where a complaint is substantiated, Defendant shall take immediate, 20 appropriate corrective action to make sex discrimination, including sexual and gender

21 harassment, and/or retaliation victims whole, to discipline those who engaged in the

22 discrimination, including sexual and gender harassment, and/or retaliation, and to remedy 23 the misconduct. If Defendant determines that a victim of sex discrimination, including

24 sexual and gender harassment, and/or retaliation has been denied a tangible employment 25 benefit as a result of the discrimination, harassment, or retaliation, Defendant shall take

26 such actions as are reasonably necessary to place the employee in the position the 27 employee would have been in absent the discrimination, harassment and/or retaliation.

28

8

Case 2:05-cv-03034-FJM Document 158 Filed 01/27/10 Page 9 of 13

1 22. Defendant shall not retain documents related to the investigation in any of the

2 complainants’ personnel files. All disciplinary actions taken against employees for

3 violation of Defendant’s sex discrimination, sexual and gender harassment, and anti-

4 retaliation policies will be retained in the investigator’s file and in the harasser’s

5 personnel file in accordance with Defendant’s corrective action policies and guidelines.

6 Where no disciplinary action is taken, the documents related to the investigation shall

7 remain in the investigator’s files in accordance with Defendant’s document retention

8 policies and procedures.

9 23. Within sixty (60) days of entry of this Decree, Defendant shall revise its

10 written policies and procedures regarding investigations, to the extent necessary to

11 comply with this Decree, to include the information in Paragraphs 19 to 22 above and

12 distribute the revised policies and procedures to all individuals in Defendant’s Global

13 Diversity and Employee Rights Department responsible for conducting EEO

14 investigations at its Mesa site.

15 24. Defendant shall follow up with complainants at appropriate intervals to ensure

16 that sex discrimination, including sexual and gender harassment, and retaliation, do not

17 recur.

18

NOTICE

19 25. Beginning no later than thirty (30) days of entry of this Decree, Defendant

20 shall post for the duration of this Decree, in a prominent place frequented by its

21 employees at Defendant’s Mesa site, the notice attached as Exhibit B. The notice shall be

22 the same type, style, and size as Exhibit B.

23

REDUCTION IN FORCE

24 26. Since the filing of this action, Defendant has revamped its reduction in force

25 process, including the manner in which employee assessments are conducted.

26 Assessments are based on a combination of the employee’s most recent year-end

27 performance evaluation and his/her assessing manager’s rating of the employee on

28 general and technical skill competencies that are directly associated with the employee’s

9

Case 2:05-cv-03034-FJM Document 158 Filed 01/27/10 Page 10 of 13

1 job classification. Skill competencies are selected by a skill team captain who leads a

2 meeting of all the assessing managers in a particular job classification and level to reach a

3 consensus on the ratings and assessment order of employees in the particular job

4 classification under consideration for reduction. Assessing managers may receive input

5 from various sources who are familiar with the employee’s work performance,

6 knowledge, skills, and abilities to support completion of the assessment, including

7 functional managers, assigned managers, prior managers if the employee has worked for

8 the current manager for less than 6 months, and customer/business partners. The

9 Reduction in Force process includes an opportunity for employees to appeal their

10 selection for layoff. If the employee’s layoff effective date occurs prior to the completion

11 of the RIF appeal process, and the appeal thereafter concludes that the employee should

12 not have been identified for layoff, the employee shall be reinstated with backpay.

13 27. For all Reduction in Force (RIF) assessments that are scheduled to occur

14 during the duration of this Consent Decree at Boeing’s Mesa site, each employee who is

15 subject to a RIF assessment shall be evaluated/assessed by individuals who have actual

16 knowledge of the employee’s past and current work performance and qualifications. This

17 may require that multiple individuals, such as past and present managers, provide input to

18 or assess the employee’s skill competencies.

19

RECORD EXPUNGEMENT

20 28. Defendant shall expunge from the respective personnel files of Ms. Wrede and

21 Ms. Castron: (a) all references to the charges of discrimination filed against Defendant

22 that formed the basis of this action; and (b) all references to Ms. Wrede’s and Ms.

23 Castron’s participation in this action, if any exist.

24

ETHICS/GLOBAL DIVERSITY

25

& EMPLOYEE RIGHTS OFFICERS

26 29. Defendant’s Mesa site will maintain an Ethics Advisor and a representative in

27 the Global Diversity & Employee Rights (GDER) office. Each of these individuals or

28 functions receives complaints of discrimination, harassment, and/or retaliation. In

10

Case 2:05-cv-03034-FJM Document 158 Filed 01/27/10 Page 11 of 13

1 addition, Defendant will post throughout the Mesa site “800” numbers that employees

2 may use to report discrimination, harassment, and/or retaliation to either or both the

3 Ethics and GDER organizations. The GDER organization will be responsible for

4 investigating such complaints, making determinations regarding corrective action when

5 appropriate, keeping records of its investigations and findings, and following-up with

6 reporting parties.

7

REPORTING BY DEFENDANT AND ACCESS BY EEOC

8 30. In addition to any other reporting requirements set forth herein, Defendant

9 shall provide the following information in writing, confirmed by affidavit, to the

10 Regional Attorney of the Commission’s Phoenix District Office at the address set forth in

11 Paragraph 5 above within six (6) months from the date of the entry of this Decree and

12 again upon the yearly anniversary of this Decree for the duration that it is in force:

13

A. Upon their completion, a copy of the revised policies and procedures

14 created in accordance with the requirements of this Decree;

15

B. The registry of persons attending the training sessions required by this

16 Decree and documents signed by new managers reflecting that they have viewed the

17 video tape of the training; and

18

C. A confirmation that (i) the policies and procedures required by this Decree

19 were distributed to managers as required and posted on the Boeing-Mesa site intranet; (ii)

20 the evaluation process for managers includes criteria for evaluating managers on their

21 leadership attributes, including upholding Defendant’s commitment to equal employment

22 opportunity principles and laws, creating an environment of respect and inclusion, and

23 demonstrating equal and fair treatment of everyone; (iii) the Notice required by this

24 Decree was posted, the date of posting, and the locations in which it was posted; (iv) the

25 expungement from Ms. Wrede’s and Ms. Castron’s respective personnel files required by

26 this Decree took place, the date of the expungements, and the documents expunged.

27 31. The Commission, upon ten business days’ notice, shall have the right to enter

28 and inspect Defendant’s premises at its Mesa site to ensure compliance with this Decree.

11

Case 2:05-cv-03034-FJM Document 158 Filed 01/27/10 Page 12 of 13

1

PROCEDURES AND REMEDIES FOR NON-COMPLIANCE

2 32. In the event the Commission believes that Defendant has failed to comply with

3 any provision(s) of this Consent Decree, it shall notify Defendant in writing of the non-

4 compliance by fax and by overnight mail to Defendant’s legal counsel and to the Head of 5 Human Resources at Defendant’s facility in Mesa, Arizona, or to his or her successor,

6 and afford Defendant twenty (20) business days after service of the notice to remedy the 7 non-compliance.

8 33. If Defendant has not remedied the alleged non-compliance in twenty (20) 9 business days after service of notice, the EEOC may petition this Court to enforce the

10 terms of the Decree at any time during its duration. 11 34. In the event the Court finds that Defendant has violated this Decree, as

12 evidenced by a final judgment against Defendant, the Court may order reasonable relief

13 to remedy the non-compliance, including taxable costs, daily fines, appropriate injunctive

14 relief, and extension of this Consent Decree for such period as may be necessary to

15 remedy its non-compliance. In the event the Court determines that no violation of this 16 Decree has occurred, it may order EEOC to pay to Defendant it attorneys’ fees and

17 taxable costs reasonably incurred in defense of the enforcement action.

18

DURATION

19 35. This Decree shall expire by its own terms at the end of two (2) years after entry 20 of the Decree, without further action by the parties or the Court.

21

Dated this 27th day of January, 2010.

22

23

24

25

26

27

28

12

Case 2:05-cv-03034-FJM Document 158 Filed 01/27/10 Page 13 of 13

1
APPROVED AND CONSENTED TO BY:
2

3

4 _______________________ 5 MARY JO O’NEILL
Regional Attorney
6
7

_______________________
PETER ROSENBLOOM Corporate Counsel The Boeing Company

8

9 _______________________ 10 SALLY C. SHANLEY
Supervisory Trial Attorney
11

12
Approved as to form only:
13

14 _______________________
15 T. Diana Chen Nancy Griffiths
16 Trial Attorneys
17
Equal Employment Opportunity 18 Commission 19 Phoenix District Office
3300 N. Central Ave., Suite 690 20 Phoenix, Arizona 85012
21
Attorneys for Plaintiff
22

_______________________ Tibor Nagy, Jr., Esq. Erica Rocush, Esq. Ogletree Deakins Nash Smoak & Stewart P.C. 6760 N. Oracle Road, Suite 200 Tucson, AZ 85704-5608
Attorneys for Defendant

23

24

25

26

27

28

13

Case 2:05-cv-03034-FJM Document 158-1 Filed 01/27/10 Page 1 of 2

Case 2:05-cv-03034-FJM Document 158-1 Filed 01/27/10 Page 2 of 2

 
 Case: 2:05-cv-3034 As of: 11/16/2019 04:12 PM MST 1 of 11
U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:05−cv−03034−FJM

CLOSED,STD

Equal Employment Opportunity Commission v. Boeing Company Assigned to: Judge Frederick J Martone Case in other court: Ninth Circuit, 07−16903 Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 09/30/2005 Date Terminated: 01/27/2010 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Equal Employment Opportunity Commission

represented by Katherine J Kruse EEOC 3300 N Central Ave Ste 690 Phoenix, AZ 85012−1848 602−640−5029 Fax: 602−640−5009 Email: katherine.kruse@eeoc.gov TERMINATED: 03/20/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary Joleen O'Neill Equal Employment Opportunity Commission − Phoenix, AZ 3300 N Central Ave., Ste. 690 Phoenix, AZ 85012−1848 602−640−5044 Fax: 602−640−5009 Email: mary.oneill@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sally Clifford Shanley Equal Employment Opportunity Commission − Phoenix, AZ 3300 N Central Ave., Ste. 690 Phoenix, AZ 85012−1848 602−640−5007 Fax: 602−640−5009 Email: sally.shanley@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

C Emanuel Smith EEOC 3300 N Central Ave Ste 690 Phoenix, AZ 85012−1848 602−640−5033 Fax: 602−640−5009 Email: emanuel.smith@eeoc.gov TERMINATED: 03/01/2006

Loretta Frances Medina EEOC 505 Marquette Ave NW Ste 900 Albuquerque, NM 87102 505−248−5230 Fax: 505−248−5217

Case: 2:05-cv-3034 As of: 11/16/2019 04:12 PM MST 2 of 11
Email: loretta.medina@eeoc.gov TERMINATED: 12/28/2006
Nancy Eileen Griffiths EEOC 3300 N Central Ave Ste 690 Phoenix, AZ 85012 602−640−4632 Fax: 602−640−5009 Email: nancy.griffiths@eeoc.gov ATTORNEY TO BE NOTICED
Tin−Tin Diana Chen EEOC 3300 N Central Ave Ste 690 Phoenix, AZ 85012−2504 602−640−5033 Fax: 602−640−5009 Email: Diana.chen@eeoc.gov ATTORNEY TO BE NOTICED

V.
Defendant
Boeing Company a Delaware corporation

represented by Tibor Nagy , Jr. Ogletree Deakins Nash Smoak & Stewart PC − Tucson, AZ 3430 E Sunrise Dr., Ste. 220 Tucson, AZ 85718 520−544−0300 Fax: 520−544−9675 Email: tibor.nagy@ogletreedeakins.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erica K Rocush Ogletree Deakins Nash Smoak & Stewart PC 6760 N Oracle Rd Ste 200 Tucson, AZ 85704−5608 520−544−0300 Fax: 520−575−9625 Email: erica.rocush@ogletreedeakins.com ATTORNEY TO BE NOTICED

Date Filed 09/30/2005 10/04/2005 11/01/2005
11/07/2005 12/07/2005

# Docket Text
1 COMPLAINT, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet)(Kruse, Katherine) (Entered: 09/30/2005)
2 Summons Issued as to The Boeing Company. (ESH, ) (Entered: 10/04/2005)
3 SUMMONS Returned Executed by Equal Employment Opportunity Commission. The Boeing Company served on 10/19/2005, answer due 11/8/2005. (Kruse, Katherine) (Entered: 11/01/2005)
4 ANSWER to Complaint by The Boeing Company.(Nagy, Tibor) (Entered: 11/07/2005)
5 ORDER SETTING RULE 16 SCHEDULING CONFERENCE: Scheduling Conference set for 2/24/2006 at 3:00 PM before Judge Frederick J Martone.. Signed by

Case: 2:05-cv-3034 As of: 11/16/2019 04:12 PM MST 3 of 11

02/17/2006 02/21/2006 02/23/2006 02/24/2006 02/27/2006
03/01/2006 04/10/2006 04/14/2006 04/20/2006 05/19/2006 05/19/2006 05/26/2006 06/05/2006 08/01/2006 10/31/2006 11/01/2006 11/01/2006 11/01/2006 11/01/2006

Judge Frederick J Martone on 12/7/05. (TLJ, ) (Entered: 12/07/2005)
6 REPORT re: Rule 26(f) Planning Meeting by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 02/17/2006)
7 Notice re Notice of Service of Defendant's Initial Rule 26 Disclosure Statement by The Boeing Company (Nagy, Tibor) (Entered: 02/21/2006)
8 Notice re Service of Plaintiff's Initial Disclosure and First Request for Production of Documents by Equal Employment Opportunity Commission (Kruse, Katherine) (Entered: 02/23/2006)
9 Minute Entry for proceedings held before Judge Frederick J Martone: Scheduling Conference held on 2/24/2006. Rule 16 Scheduling Order to follow. (Court Reporter Linda Schroeder−Willis.) (KAR) (Entered: 02/26/2006)
10 RULE 16 SCHEDULING ORDER: Discovery due by 2/16/2007. Dispositive motions due by 3/23/2007. Proposed Pretrial Order due by 8/24/2007. Final Pretrial Conference set for 8/31/2007 03:00 PM before Judge Frederick J Martone. Jury Trial set for 9/11/2007 09:00 AM before Judge Frederick J Martone.. Signed by Judge Frederick J Martone on 2/24/06. (MAP, ) (Entered: 02/27/2006)
11 NOTICE of Attorney Substitution by Loretta Frances Medina, Sally Clifford Shanley, Loretta Frances Medina adding Sally Clifford Shanley and Loretta Frances Medina for Equal Employment Opportunity Commission (Medina, Loretta) (Entered: 03/01/2006)
12 Notice re Service of Plaintiff EEOC's Second Request for Production of Documents by Equal Employment Opportunity Commission (Kruse, Katherine) (Entered: 04/10/2006)
13 Notice re NOTICE OF SERVICE OF THE BOEING COMPANY?S RESPONSE TO PLAINTIFF?S FIRST REQUEST FOR PRODUCTION by The Boeing Company (Nagy, Tibor) (Entered: 04/14/2006)
14 Notice re Notice of Service of Supplemental Response to Plaintiff's First Request for Production by The Boeing Company (Nagy, Tibor) (Entered: 04/20/2006)
15 Notice re Notice of Service by The Boeing Company Second Supplemental Response to Plaintiff's First Request for Production (Rocush, Erica) (Entered: 05/19/2006)
16 Notice re Notice of Service by The Boeing Company Defendant's Response to Plaintiff's Second Request for Production of Documents (Nagy, Tibor) (Entered: 05/19/2006)
17 First MOTION for Extension of Time Stipulation for Extension of Time for Disclosure of Expert Witnesses by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Kruse, Katherine) (Entered: 05/26/2006)
18 ORDER granting 17 stipulation to extend expert deadlines; pla's expert disclosures will be due on 9/1/06; dfts on 10/6/06 and rebuttal on 11/3/06. Signed by Judge Frederick J Martone on 6/2/06. (SBU, ) (Entered: 06/05/2006)
19 NOTICE of Change of Address by Erica Rocush (Rocush, Erica) (Entered: 08/01/2006)
20 NOTICE of Deposition of Robert Bruce Wright, filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 10/31/2006)
21 NOTICE of Deposition of Robert Feuerstein, filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 11/01/2006)
22 NOTICE of Deposition of Glen Foster, filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 11/01/2006)
23 NOTICE of Deposition of Thomas Reilley, filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 11/01/2006)
24 NOTICE of Deposition of Richard Hobby, filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 11/01/2006)

Case: 2:05-cv-3034 As of: 11/16/2019 04:12 PM MST 4 of 11

11/01/2006 11/02/2006 11/02/2006 11/03/2006 11/03/2006 11/07/2006 11/08/2006 11/15/2006 11/15/2006 11/15/2006 11/15/2006 11/15/2006 12/06/2006 12/06/2006 12/06/2006 12/08/2006 12/14/2006 12/14/2006 12/21/2006 12/21/2006

25 NOTICE of Deposition of William Charlton, filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 11/01/2006)
26 NOTICE of Deposition of Richard Hobby (Amended), filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 11/02/2006)
27 NOTICE of Deposition of William Charlton (Amended), filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 11/02/2006)
28 NOTICE of Deposition of Mervin Foster, filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 11/03/2006)
29 NOTICE of Deposition of Michael T. Riley, filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 11/03/2006)
30 Notice re Notice of Service of Defendant's First Supplemental Response to Plaintiff's Second Request for Production of Documents by The Boeing Company (Nagy, Tibor) (Entered: 11/07/2006)
31 First MOTION for Extension of Time of Discovery and Dispositive Motion Deadlines by Equal Employment Opportunity Commission, The Boeing Company. (Attachments: # 1)(Kruse, Katherine) (Entered: 11/08/2006)
32 NOTICE of Deposition of Robert Bruce Wright (Amended), filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 11/15/2006)
33 NOTICE of Deposition of Robert Feuerstein (Amended), filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 11/15/2006)
34 NOTICE of Deposition of William Charlton (Second Amended), filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 11/15/2006)
35 NOTICE of Deposition of Richard Hobby (Second Amended), filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 11/15/2006)
36 ORDER denying the joint 31 Motion for Extension of Time as to Discovery and Dispositive Motions deadline. Signed by Judge Frederick J Martone on 11/15/06. (KMG) (Entered: 11/15/2006)
37 Notice re Notice of Service of Defendant's Third Supplemental Response to Plaintiff's First Request for Production by The Boeing Company (Rocush, Erica) (Entered: 12/06/2006)
38 AMENDED DOCUMENT by Equal Employment Opportunity Commission. Amendment to 24 Notice of Deposition of Richard Hobby. (Kruse, Katherine) (Entered: 12/06/2006)
39 AMENDED DOCUMENT by Equal Employment Opportunity Commission. Amendment to 25 Notice of Deposition of William Charlton. (Kruse, Katherine) (Entered: 12/06/2006)
40 Notice re Notice of Service of Defendant's Request for Production (First Set) and Non−Uniform Interrogatories (First Set) by The Boeing Company (Nagy, Tibor) (Entered: 12/08/2006)
41 AMENDED DOCUMENT by Equal Employment Opportunity Commission. Amendment to 25 Notice of Deposition of William Charlton. (Kruse, Katherine) (Entered: 12/14/2006)
42 AMENDED DOCUMENT by Equal Employment Opportunity Commission. Amendment to 24 Notice of Deposition of Richard Hobby. (Kruse, Katherine) (Entered: 12/14/2006)
43 NOTICE of Deposition of Tom Gill, filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 12/21/2006)
44 NOTICE of Deposition of Leendert Hartoog, filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 12/21/2006)

Case: 2:05-cv-3034 As of: 11/16/2019 04:12 PM MST 5 of 11

12/27/2006
12/28/2006 01/05/2007
01/05/2007
01/08/2007 01/10/2007 01/10/2007 01/10/2007 01/10/2007 01/10/2007 01/10/2007 01/11/2007 01/11/2007 01/11/2007
01/12/2007
01/12/2007
01/18/2007 01/19/2007 01/22/2007 01/23/2007
01/23/2007

45 AMENDED DOCUMENT by Equal Employment Opportunity Commission. Amendment to 25 Notice of Deposition of William Charlton. (Kruse, Katherine) (Entered: 12/27/2006)
46 NOTICE of Attorney Substitution by Tin−Tin Diana Chen (Chen, Tin−Tin) (Entered: 12/28/2006)
47 AMENDED DOCUMENT by Equal Employment Opportunity Commission. Amendment to 43 Notice of Deposition of Tom Gill. (Chen, Tin−Tin) (Entered: 01/05/2007)
48 AMENDED DOCUMENT by Equal Employment Opportunity Commission. Amendment to 44 Notice of Deposition of Leendert Hartoog. (Chen, Tin−Tin) (Entered: 01/05/2007)
49 Notice re Notice of Service of The Boeing Company's First Supplemental Disclosure Statement by The Boeing Company (Rocush, Erica) (Entered: 01/08/2007)
50 Notice re Service of Third Request for Documents by Equal Employment Opportunity Commission (Kruse, Katherine) (Entered: 01/10/2007)
51 NOTICE of Deposition of Richard Miller, filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 01/10/2007)
52 NOTICE of Deposition of Robert Miller, filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 01/10/2007)
53 NOTICE of Deposition of Shawn Warner, filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 01/10/2007)
54 NOTICE of Deposition of John Fisher, filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 01/10/2007)
55 NOTICE of Deposition of Sam Turk, filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 01/10/2007)
56 NOTICE of Deposition of Antonia Castron, filed by The Boeing Company. (Nagy, Tibor) (Entered: 01/11/2007)
57 NOTICE of Deposition of Renee Wrede, filed by The Boeing Company. (Nagy, Tibor) (Entered: 01/11/2007)
58 NOTICE of Deposition of James Early, David Foltz, Darrell Johnson, John Peeler, Erick Schulke, and Donald York, filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 01/11/2007)
59 MOTION for Leave to Take Depositions in Excess of Ten by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Kruse, Katherine) (Entered: 01/12/2007)
60 MOTION to Expedite Briefing and Ruling on Motion (Doc. 59) by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Kruse, Katherine) (Entered: 01/12/2007)
61 MOTION for Motion to Sever by The Boeing Company. (Attachments: # 1 Exhibit Exhibits to Motion to Sever)(Rocush, Erica) (Entered: 01/18/2007)
62 RESPONSE to Motion re 59 MOTION for Leave to Take Depositions in Excess of Ten filed by The Boeing Company. (Rocush, Erica) (Entered: 01/19/2007)
63 Notice re Service of Discovery by Equal Employment Opportunity Commission (Kruse, Katherine) (Entered: 01/22/2007)
64 MOTION to Compel Responses to EEOC's First Request for Production of Documents by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Exhibit 1# 2 Text of Proposed Order Proposed Order)(Kruse, Katherine) (Entered: 01/23/2007)
65 MOTION to Compel Responses to EEOC's Second Request for Production of Documents by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit # 2 Text of Proposed Order)(Kruse, Katherine) (Entered: 01/23/2007)

Case: 2:05-cv-3034 As of: 11/16/2019 04:12 PM MST 6 of 11

01/23/2007 01/26/2007 01/29/2007 01/31/2007 02/02/2007 02/02/2007 02/05/2007
02/05/2007 02/06/2007 02/07/2007 02/09/2007 02/09/2007 02/09/2007
02/14/2007 02/14/2007 02/16/2007 02/16/2007
02/16/2007

66 MOTION for Extension of Time For Discovery and Dispositive Motion Deadlines by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Exhibit List# 2 Exhibit # 3 Text of Proposed Order)(Kruse, Katherine) (Entered: 01/23/2007)
67 Notice re Service of Plaintiff's Responses to Discovery by Equal Employment Opportunity Commission (Kruse, Katherine) (Entered: 01/26/2007)
68 REPLY in Support re 59 MOTION for Leave to Take Depositions in Excess of Ten, 60 MOTION to Expedite Briefing and Ruling on Motion (Doc. 59) filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 01/29/2007)
69 NOTICE of Deposition of the Boeing Company, pursuant to Fed. R. Civ P. 30(b)(6), filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 01/31/2007)
70 NOTICE of Deposition of John Fisher − Amended Notice, filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 02/02/2007)
71 Notice re Service of First Supplemental Disclosures by Equal Employment Opportunity Commission (Chen, Tin−Tin) (Entered: 02/02/2007)
72 ORDER denying pla's 59 Motion to Take Depositions in Excess of Ten; granting pla's 60 Motion for Expedited Consideration. This order is without prejudice to the right of pla to renew its motion as to any particular witness who refuses to be interviewed. Signed by Judge Frederick J Martone on 2/5/2007.(LAD) (Entered: 02/05/2007)
73 RESPONSE in Opposition re 61 MOTION for Motion to Sever filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 02/05/2007)
74 Notice re Notice of Service of The Boeing Company's Fourth Supplemental Response to Plaintiff's First Request for Production by The Boeing Company (Rocush, Erica) (Entered: 02/06/2007)
75 Notice re Service of Supplemental Disclosures by Equal Employment Opportunity Commission (Chen, Tin−Tin) (Entered: 02/07/2007)
76 RESPONSE to Motion re 66 MOTION for Extension of Time For Discovery and Dispositive Motion Deadlines filed by The Boeing Company. (Rocush, Erica) (Entered: 02/09/2007)
77 Notice re Notice of Service by The Boeing Company (Rocush, Erica) (Entered: 02/09/2007)
78 RESPONSE to Motion re 65 MOTION to Compel Responses to EEOC's Second Request for Production of Documents, 64 MOTION to Compel Responses to EEOC's First Request for Production of Documents filed by The Boeing Company. (Attachments: # 1 Exhibit A−C to Defendant's Combined Response to Motions to Compel)(Rocush, Erica) (Entered: 02/09/2007)
79 Notice re Notice of Service of Defendant's Response to EEOC's Notice of Rule 30(b)(6) Deposition by The Boeing Company (Nagy, Tibor) (Entered: 02/14/2007)
80 STIPULATION for entry of Protective Order by Equal Employment Opportunity Commission, The Boeing Company. (Chen, Tin−Tin) (Entered: 02/14/2007)
81 REPLY in Support re 61 MOTION for Motion to Sever filed by The Boeing Company. (Attachments: # 1)(Nagy, Tibor) (Entered: 02/16/2007)
82 REPLY TO RESPONSE TO 66 MOTION for Extension of Time For Discovery and Dispositive Motion Deadlines by Plaintiff Equal Employment Opportunity Commission. (Chen, Tin−Tin) Modified on 2/20/2007 (LAD). INCORRECT EVENT SELECTED. THIS ENTRY HAS BEEN MODIFIED FROM REPLY TO REPLY TO RESPONSE TO MOTION. (Entered: 02/16/2007)
83 REPLY to Response to Motion re 65 MOTION to Compel Responses to EEOC's Second Request for Production of Documents, 64 MOTION to Compel Responses to EEOC's First Request for Production of Documents filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Kruse, Katherine) (Entered: 02/16/2007)

Case: 2:05-cv-3034 As of: 11/16/2019 04:12 PM MST 7 of 11

02/16/2007 02/16/2007 02/20/2007 02/28/2007 02/28/2007
03/02/2007 03/02/2007 03/07/2007 03/08/2007 03/13/2007 03/16/2007 03/16/2007
03/19/2007 03/27/2007 03/27/2007

84 Joint MOTION for Reopen 30(b)(6) Deposition by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Kruse, Katherine) (Entered: 02/16/2007)
85 MOTION to Compel 30(b)(6) Deposition Testimony and Motion for Sanctions by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A−D# 2 Text of Proposed Order)(Kruse, Katherine) (Entered: 02/16/2007)
86 NOTICE TO FILER OF DEFICIENCY re 82 Reply filed by Equal Employment Opportunity Commission. Description of deficiency: Incorrect document type selected. Do not refile. See attached. (LAD) (Entered: 02/20/2007)
87 PROTECTIVE ORDER REGARDING RENEE WREDE AND ANTONIA CASTRON'S CONFIDENTIAL MEDICAL AND/OR MENTAL HEALTH INFORMATION. Signed by Judge Frederick J Martone on 2/28/2007. (LAD, ) (Entered: 02/28/2007)
88 ORDER granting 84 Joint Motion (Stipulation) to Reopen Deposition of the Boeing Company Pursuant to Federal Rule of Civil Procedure 30(b)(6); ORDERED that the deposition of The Boeing Company pursuant to Federal Rule of Civil Procedure 30(b)(6) shall be reopened on a date no later than 3/9/07 for questioning on the following topics in the deposition notice: 3, 4, 5, 6, 7, 8, 11, 12, 13, 18, 19, 20, 21, 22 and 23. Signed by Judge Frederick J Martone on 2/28/2007.(LAD, ) (Entered: 02/28/2007)
89 AMENDED DOCUMENT by Equal Employment Opportunity Commission. Amendment to 69 Notice of Deposition of the Boeing Company, pursuant to Fed. R. Civ P. 30(b)(6). (Kruse, Katherine) (Entered: 03/02/2007)
90 ORDER denying pla's 64 Motion to Compel; denying pla's 65 Motion to Compel; denying on grounds of mootness pla's 66 Motion for Extension Discovery and Dispositive Motion Deadlines. Signed by Judge Frederick J Martone on 3/2/2007.(LAD) (Entered: 03/02/2007)
91 ORDER denying 61 Motion to Sever. Signed by Judge Frederick J Martone on 03/07/07.(ESL) (Entered: 03/07/2007)
92 RESPONSE to Motion re 85 MOTION to Compel 30(b)(6) Deposition Testimony and Motion for Sanctions filed by The Boeing Company. (Attachments: # 1 Exhibit Exhibit A to Def's Response to Plaintiff's Motion to Compel and Motion for Sanctions)(Rocush, Erica) (Entered: 03/08/2007)
93 STIPULATION and Joint Motion to Extend Dispositive Motion Deadline by The Boeing Company. (Attachments: # 1 Text of Proposed Order re Extension of Dispositive Motion Deadline)(Rocush, Erica) (Entered: 03/13/2007)
94 STIPULATION re Withdrawal of Affirmative Defenses by Equal Employment Opportunity Commission, The Boeing Company. (Attachments: # 1 Text of Proposed Order)(Kruse, Katherine) (Entered: 03/16/2007)
95 ORDER granting 93 STIPULATION and Joint Motion to Extend Dispositive Motion Deadline; ORDERED that the dispositive motion deadline in this matter is extended until Friday, 4/6/07; no further extensions shall be granted; this extension and its consequences shall not be offered as a basis to amend any other deadline in the R.16 order; Dispositive motions reset to 4/6/2007. Signed by Judge Frederick J Martone on 3/16/2007. (LAD, ) (Entered: 03/16/2007)
96 REPLY in Support re 85 MOTION to Compel 30(b)(6) Deposition Testimony and Motion for Sanctions filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A−C)(Kruse, Katherine) (Entered: 03/19/2007)
97 Notice re Service of First Supplemental Discovery Response by Equal Employment Opportunity Commission (Chen, Tin−Tin) (Entered: 03/27/2007)
98 ORDER granting 94 STIPULATION; ORDERED granting the parties' request for expedited ruling; FURTHER ORDERED granting the parties' request, via stipulation, for withdrawal of the affirmative defenses set forth in paragraphs 18, 19, and 20(b) of Boeing's Answer. Signed by Judge Frederick J Martone on 3/27/2007. (LAD, ) (Entered: 03/27/2007)

Case: 2:05-cv-3034 As of: 11/16/2019 04:12 PM MST 8 of 11

04/04/2007
04/06/2007 04/06/2007 04/06/2007 04/11/2007 04/11/2007
04/11/2007
04/18/2007 04/25/2007 05/14/2007 05/14/2007 05/14/2007 05/14/2007 05/18/2007 05/24/2007 05/29/2007

99 MOTION TO EXCEED PAGE LIMITATION Proposed Defendant's Motion to Exceed Page Limitation. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by The Boeing Company. (Attachments: # 1)(Nagy, Tibor) INCORRECT EVENT TYPE SELECTED. THIS ENTRY HAS BEEN MODIFED FROM LODGED PROPOSED DOCUMENT TO MOTION FOR LEAVE TO FILE EXCESS PAGES, Modified on 4/6/2007 (ESL). (Entered: 04/04/2007)
100 NOTICE TO FILER OF DEFICIENCY re 99 Lodged Proposed Document filed by The Boeing Company. Description of deficiency: Inccorect event type selected. DO NOT REFILE. (ESL) (Entered: 04/06/2007)
101 ORDER denying 99 Motion for Leave to File Excess Pages. Defendant shall have to and including 04/13/07 to file a motion in compliance with the rules of court. Signed by Judge Frederick J Martone on 04/05/07.(ESL) (Entered: 04/06/2007)
102 NOTICE OF CORRECTION BY THE CLERK re 100 Notice of Filer of Deficiency. Description of deficiency: Wrong PDF Attached. Follow up by Clerks Office: The deficiency indicated above has been addressed by the Clerk. Court use only: ESL. (ESL) (Entered: 04/06/2007)
103 MOTION for Summary Judgment by The Boeing Company. (Nagy, Tibor) (Entered: 04/11/2007)
104 STATEMENT of Separate Statement of Facts in Support of Defendant's Motion for Summary Judgment by Defendant The Boeing Company. (Attachments: # 1 Exhibits 1 and 2# 2 Exhibits 3 − 7# 3 Exhibit 8, Part 1# 4 Exhibit 8, Part 2# 5 Exhibits 9, 10, 11 (Part 1)# 6 Exhibit 11, Part 2# 7 Exhibits 12 − 16# 8 Exhibits 17 − 23# 9 Exhibits 24 − 25# 10 Exhibits 26 − 29)(Nagy, Tibor) (Entered: 04/11/2007)
105 Additional Attachments to Main Document Separate Statement of Facts in Support of Defendant's Motion for Summary Judgment (Part 2) by Defendant The Boeing Company. (Attachments: # 1 Exhibit 30# 2 Exhibit 31, Part 1# 3 Exhibit 31, Part 2# 4 Exhibit 31, Part 3 and Exhibit 32, Part 1# 5 Exhibit 32, Part 2# 6 Exhibits 33 − 37# 7 Exhibits 38 − 41# 8 Exhibits 42 − 44)(Nagy, Tibor) (Entered: 04/11/2007)
106 ORDER denying pla's 85 Notice of Discovery Dispute and Motion to Compel 30(b)(6) Deposition Testimony; Motion for Sanctions. Signed by Judge Frederick J Martone on 4/17/2007.(LAD) (Entered: 04/18/2007)
107 Notice re Service of Fifth Supplemental Disclosure by Equal Employment Opportunity Commission (Kruse, Katherine) (Entered: 04/25/2007)
108 STATEMENT of Facts in Support of Response to Summary Judgment by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit List and Exhibits 1 −20# 2 Exhibits 21 −36# 3 Exhibits 38 −45# 4 Exhibits 46−68)(Kruse, Katherine) (Entered: 05/14/2007)
109 STATEMENT of of Facts in Support of Plaintiff's Response to Defendant's Motion for Summary Judgment (Addition) re 108 Statement by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 69# 2 Exhibit 70)(Kruse, Katherine) (Entered: 05/14/2007)
110 RESPONSE in Opposition re 103 MOTION for Summary Judgment Rule 56.1(b) Responses to Defendant's Statement of Facts filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 05/14/2007)
111 RESPONSE to Motion re 103 MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 05/14/2007)
112 Notice re Errata Regarding EEOC's Response to Boeing's Motion for Summary Judgment by Equal Employment Opportunity Commission re 111 Response to Motion (Kruse, Katherine) (Entered: 05/18/2007)
113 Joint MOTION for Extension of Time to File Defendant's Reply in Support of It's Motion for Summary Judgment by The Boeing Company. (Attachments: # 1 Text of Proposed Order)(Nagy, Tibor) (Entered: 05/24/2007)
114 The requested extension having no effect on our R.16 Scheduling Order, IT IS ORDERED GRANTING the Motion for Extension of Time to and including June 8,

Case: 2:05-cv-3034 As of: 11/16/2019 04:12 PM MST 9 of 11

06/08/2007
06/08/2007
06/08/2007 06/08/2007 06/11/2007
06/11/2007 06/11/2007
07/09/2007 07/13/2007 07/24/2007 07/25/2007 08/06/2007 08/10/2007
08/13/2007 08/14/2007

2007. [doc. 113]. Signed by Judge Frederick J Martone on 5/28/07.(FJM, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 05/29/2007)
115 MOTION to Exceed Page Limitation by The Boeing Company. Attachments: # 1 Text of Proposed Order)(Nagy, Tibor) Modified on 6/11/2007 (LAD). INCORRECT EVENT TYPE SELECTED. THIS ENTRY HAS BEEN MODIFIED FROM LODGED PROPOSED DOCUMENT TO MOTION. (Entered: 06/08/2007)
116 REPLY in Support re 103 MOTION for Summary Judgment filed by The Boeing Company. (Nagy, Tibor) Modified on 6/11/2007 (LAD). DOCUMENT FILED PREMATURELY. ***MODIFIED on 7/9/07, PER ORDER #122, REPLY HAS BEEN APPROVED FOR FILING*** (Entered: 06/08/2007)
117 RESPONSE to Plaintiff's Statement of Facts by Defendant The Boeing Company. (Attachments: # 1 Exhibit A to Def's Response to Pl's SOF)(Nagy, Tibor) (Entered: 06/08/2007)
118 Reply Defendant's Reply to Plaintiff's Local Rule of Practice 56.1(b) Response to Defendant's Separate Statement of Facts by Defendant The Boeing Company. (Nagy, Tibor) (Entered: 06/08/2007)
119 NOTICE TO FILER OF DEFICIENCY re 116 Reply in Support of Motion filed by The Boeing Company. Description of deficiency: Original proposed pleading not electronically lodged using the "Lodged Proposed Document" event. Leave of Court required to file document. (LAD) (Entered: 06/11/2007)
120 NOTICE TO FILER OF DEFICIENCY re 115 Lodged Proposed Document filed by The Boeing Company. Description of deficiency: Incorrect event type selected. Do not refile. See attached for details. (LAD) (Entered: 06/11/2007)
121 LODGED Proposed Defendant's Reply in Support of Motion for Summary Judgment re: 103 MOTION for Summary Judgment. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by The Boeing Company. (Nagy, Tibor) (Entered: 06/11/2007)
122 ORDER granting 115 Motion for Leave to File Reply by one page. The clerk shall accept the reply for filing. Signed by Judge Frederick J Martone on 7/6/07.(MAP) (Entered: 07/09/2007)
123 Notice re Service of Sixth Supplemental Disclosure by Equal Employment Opportunity Commission (Kruse, Katherine) (Entered: 07/13/2007)
124 MOTION to Strike re Defendant's Response to Plaintiff's Statement of Facts and Defendant's Reply to Plaintiff's Response to Defendant's Statement of Facts by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 07/24/2007)
125 ERRATA re 117 Response in Opposition to Defendant's Motion for Summary Judgment by Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1)(Chen, Tin−Tin) (Entered: 07/25/2007)
126 Joint MOTION for Extension of Time for Pretrial Deadlines and Trial Date by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Chen, Tin−Tin) (Entered: 08/06/2007)
127 RESPONSE to Motion re 124 MOTION to Strike re Defendant's Response to Plaintiff's Statement of Facts and Defendant's Reply to Plaintiff's Response to Defendant's Statement of Facts filed by The Boeing Company. (Nagy, Tibor) (Entered: 08/10/2007)
128 ORDER denying 126 Motion. Signed by Judge Frederick J Martone on 8/10/07.(DMT, ) (Entered: 08/13/2007)
129 REPLY in Support re 124 MOTION to Strike re Defendant's Response to Plaintiff's Statement of Facts and Defendant's Reply to Plaintiff's Response to Defendant's Statement of Facts filed by Equal Employment Opportunity Commission. (Kruse, Katherine) (Entered: 08/14/2007)

Case: 2:05-cv-3034 As of: 11/16/2019 04:12 PM MST 10 of 11

08/16/2007 08/16/2007 08/23/2007 09/05/2007 09/26/2007 09/26/2007 10/15/2007
10/16/2007 10/29/2007 10/29/2007
10/30/2007 01/22/2008
02/01/2008 03/03/2009 03/20/2009 06/18/2009
06/23/2009

130 ORDER granting 103 dft's Motion for Summary Judgment; denying 124 plaintiff's Motion to Strike. Signed by Judge Frederick J Martone on 8/15/07.(DMT, ) (Entered: 08/16/2007)
131 JUDGMENT entered in favor of The Boeing Company against Equal Employment Opportunity Commission. Plaintiff to take nothing, and complaint and action are dismissed. (DMT, ) (Entered: 08/16/2007)
132 BILL OF COSTS ; Notice of Application to Tax Costs; Declaration of Tibor Nagy, Jr. by The Boeing Company. (Nagy, Tibor) (Entered: 08/23/2007)
133 Joint MOTION to Stay re Taxation of Costs by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order to Stay Taxation of Costs)(Chen, Tin−Tin) (Entered: 09/05/2007)
134 ORDER denying 133 Motion to Stay taxation of costs. Signed by Judge Frederick J Martone on 9/26/07.(DMT, ) (Entered: 09/26/2007)
135 Notice re Errata by Equal Employment Opportunity Commission (Attachments: # 1)(Chen, Tin−Tin) (Entered: 09/26/2007)
136 NOTICE OF APPEAL to 9th Circuit, as to 130 Order, 131 Judgment, by Equal Employment Opportunity Commission. (Chen, Tin−Tin) Modified on 10/16/2007 (DMT, ). DOCKET TEXT MODIFIED TO CORRECT DOCUMENT LINKAGE. (Entered: 10/15/2007)
137 Notice of Appeal Notification Form; Notice of Appeal and copy of docket sheet transmitted to Ninth Circuit and all parties re 136 Notice of Appeal (DMT, ) (Entered: 10/16/2007)
138 Ninth Circuit Case Number 07−16903 for 136 Notice of Appeal. (DMT, ) (Entered: 10/29/2007)
139 TRANSCRIPT DESIGNATION AND ORDER FORM by Equal Employment Opportunity Commission for proceedings held on No Transcripts before Judge Frederick J. Martone, re 136 Notice of Appeal (Kruse, Katherine) (Entered: 10/29/2007)
140 CERTIFICATE OF RECORD TRANSMITTED TO 9TH CIRCUIT COURT OF APPEALS re 136 Notice of Appeal (DMT, ) (Entered: 10/30/2007)
141 ORDER of 9th Circuit, that court will initiate a further conference by telephone on 2/22/08 at 10:00 am Briefing schedule is amended; appeal case number 07−16903, as to 136 Notice of Appeal filed by Equal Employment Opportunity Commission (DMT, ) (Entered: 01/22/2008)
142 Taxation of Costs in amount of $ 5,380.31 against Plaintiff.Signed by Chief Deputy Michael O'Brien on 2/1/08. (Soucie, Annie) (Entered: 02/01/2008)
143 MOTION to Withdraw as Attorney by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Kruse, Katherine) (Entered: 03/03/2009)
144 ORDER granting 143 Motion to Withdraw as Attorney, Attorney Katherine J Kruse terminated. Signed by Judge Frederick J Martone on 3/19/09.(LSP) (Entered: 03/20/2009)
145 MANDATE of 9th Circuit (Certified Copy) case is reversed and remanded re case number 07−16903, as to 136 Notice of Appeal filed by Equal Employment Opportunity Commission. (Attachments: # 1 Memorandum, # 2 Notice of Docket Activity)(TLJ) (Entered: 06/18/2009)
146 ORDER − IT IS ORDERED that the parties shall meet, confer, and file no later than 7/20/09, a jointly prepared supplemental case management plan that contains proposed dates for the lodging of the proposed pretrial order, the final pretrial conference, and a firm trial date. FURTHER ORDERED setting a Status Conference in connection with the proposed plan on 8/21/2009 at 2:45 PM in Courtroom 506, 401 West Washington Street, Phoenix, AZ 85003 before Judge Frederick J Martone. Signed by Judge Frederick J Martone on 6/22/09. (SAT) (Entered: 06/23/2009)

Case: 2:05-cv-3034 As of: 11/16/2019 04:12 PM MST 11 of 11

07/07/2009 07/20/2009 08/18/2009 08/21/2009
08/24/2009
08/24/2009 01/22/2010 01/22/2010 01/22/2010 01/22/2010 01/22/2010 01/27/2010
08/17/2010

147 NOTICE of Appearance by Nancy Eileen Griffiths on behalf of Equal Employment Opportunity Commission (Griffiths, Nancy) (Entered: 07/07/2009)
148 REPORT re: Rule 26(f) Planning Meeting by Equal Employment Opportunity Commission. (Griffiths, Nancy) (Entered: 07/20/2009)
149 ORDER of 9th Circuit, appeal case number 07−16903, that appellant's request for publication is granted. The memorandum disposition filed on 4/8/09 is withdrawn. A published opinion will be filed concurrently with this order as to 136 Notice of Appeal filed by Equal Employment Opportunity Commission. (Attachments: # 1 NDA) (LAD) (Entered: 08/18/2009)
150 Minute Entry for proceedings held before Judge Frederick J Martone: Scheduling Conference held on 8/24/2009. Appearances: Sally Shanley & Nancy Griffiths for Plaintiff; and Tibor Nagy for Defendant. Case management plan shall be as follows: Proposed Pretrial Order due by 1/22/2010. Final Pretrial Conference set for 1/29/2010 at 3:00 PM in Courtroom 506, 401 West Washington Street, Phoenix, AZ 85003 before Judge Frederick J Martone. Jury Trial set for 2/9/2010 at 9:00 AM (6 days) in Courtroom 506, 401 West Washington Street, Phoenix, AZ 85003 before Judge Frederick J Martone. (Court Reporter Linda Schroeder.)(This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.) (KAR) Modified on 8/24/2009 file date from 8/24 to 8/21(PAB, ). (Entered: 08/24/2009)
151 RULE 16 SCHEDULING ORDER: Discovery due by 2/26/2010. Dispositive motions due by 8/30/2010. Proposed Pretrial Order due by 9/17/2010. Final Pretrial Conference set for 9/24/2010 at 3:00 PM in Courtroom 506, 401 West Washington Street, Phoenix, AZ 85003 before Judge Frederick J Martone. Jury Trial set for 10/13/2010 at 9:00 AM in Courtroom 506, 401 West Washington Street, Phoenix, AZ 85003 before Judge Frederick J Martone. Signed by Judge Frederick J Martone on 8/21/2009. (KAR) Modified on 8/24/2009 Document filed in error. Will be refiled in correct case by the clerk (PAB, ). (Entered: 08/24/2009)
152 NOTICE OF CORRECTION BY THE CLERK re 151 Scheduling Order,,. Description of deficiency: Document #151 entered in wrong case.. Follow up by Clerks Office: The deficiency indicated above has been addressed by the Clerk. Court use only: KAR. (PAB, ) (Entered: 08/24/2009)
153 TRIAL BRIEF by Equal Employment Opportunity Commission. (Chen, Tin−Tin) (Entered: 01/22/2010)
154 Proposed Voir Dire by Equal Employment Opportunity Commission. (Chen, Tin−Tin) (Entered: 01/22/2010)
155 MOTION in Limine re: After Acquired Evidence by Equal Employment Opportunity Commission. (Griffiths, Nancy) (Entered: 01/22/2010)
156 Proposed Jury Instructions by Equal Employment Opportunity Commission. (Chen, Tin−Tin) (Entered: 01/22/2010)
157 NOTICE of Settlement and Joint MOTION for Judgment for Entry of Consent Decree by Boeing Company, Equal Employment Opportunity Commission (Attachments: # 1 Exhibit Consent Decree)(Griffiths, Nancy) Modified on 1/25/2010 TO INCLUDE MOTION (KMG). (Entered: 01/22/2010)
158 CONSENT DECREE − This Decree resolves all claims of the Commission in this case against Defendant, including, but not limited to, back pay, compensatory and punitive damages, attorneys fees, costs, interest, and injunctive relief arising out of the issues in this lawsuit. Defendant and its officers etc are permanently enjoined. Plaintiff is awarded $280,000.00 against defendant. This Decree shall expire by its own terms at the end of two (2) years after entry of the Decree, without further action by the parties or the Court. Signed by Judge Frederick J Martone on 1/27/10. (see order for full details) (Attachments: # 1 exhibit A−B)(DMT) (Entered: 01/27/2010)
159 MANDATE of USCA (re−issued) as to 136 Notice of Appeal, appeal case number 07−16903 filed by Equal Employment Opportunity Commission. (Attachments: # 1 Opinion, # 2 NDA)(ESL) (Entered: 08/17/2010)