Case4:11-cv-03162-YGR Document1 Filed06/27/11 Page1 of 6

WILLIAM R. TAMAYO, SBN 084965 (CA) JONATHAN T. PECK, SBN 12303 (VA) MARCIA L. MITCHELL, SBN 18122 (WA) U.S. EQUAL EMPLOYMENT OPPORTUNITY COMM San Francisco District Office 350 The Embarcadero, Suite 500 San Francisco, CA 94105 Telephone No. (415) 625-5651 Fax No. (415) 625-5657 Marcia.Mitchell@eeoc.gov
1(7 Attorneys for Applicant
E-filing
UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF CALIFORNIA

I
~ I

U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

) CaseNo.:

14

Plaintiff,

CCOMPTA a . 3 1 6 4

1

VS.

) CIVIL RIGHTS - EMPLOYME

) DISCRIMINATION

ABERCROMBIE & FITCH STORES, INC. )

dba HOLLISTER, HOLLISTER CO. CALIFORNIA, LLC

1
) JURY TRIAL DEMAND

,

Defendants.

I21

NATURE OF THE ACTION

11 I 22

This is an action under Title VII of the Civil Rights Act of 1964 and Title 1 of the Civil

123 Rights Act of 1991 to correct unlawful employment practices on the basis of religion
I QtO
124 provide appropriate relief to Umme-Hani Khan who was adversely affected by such p ctices.

1 1 la I 25 Ms. Khan is Muslim. As alleged below, Abercrombie & Fitch Stores, Inc. dba Hollist

1 4 1 26 (hereinafter "Abercrombie & Fitch") and Hollister Co. California LLC (hereinafter "H llister")

1 4i, II 27 unlawfully discriminated against Ms. Khan by failing to accommodate her sincerely h id

II Complaint

Case4:11-cv-03162-YGR Document1 Filed06/27/11 Page2 of 6

religion, Islam.

JURISDICTION AND VENUE

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

1345. This action is authorized and instituted pursuant to Sections 706(f)(l) and (3) o:'Title VII

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

Section 102 of the Civil Rights Act of 1991,42 U.S.C. $198la.
T 2. The employment practices alleged to be unlawful were and are now being co itted
within the County of San Mateo in the State of California which is within the jurisdict on of the United States District Court for the Northern District of California. Venue is therefore proper in

the United States District Court for the Northern District of California.

INTRADISTRICT ASSIGNMENT

~

3.

c This action is appropriate for assignment to the San Francisco Division of this ourt as

Y the alleged unlawful practices were and are now being committed in San Mateo Count ,which i

within the jurisdiction of the San Francisco Division.

PARTIES

4.

t Plaintiff, the Equal Employment Opportunity Commission ("EEOC" or "Com ission"),

is the agency of the United States of America charged with the administration,

enforcement of Title VII and is expressly authorized to bring this action by

and (3) of Title VII, 42 U.S.C. $2000e-5(f)(l) and (3).

and has continuously had at least fifteen employees.

Complaint

- 2

Case4:11-cv-03162-YGR Document1 Filed06/27/11 Page3 of 6

6. At all relevant times, Defendant Abercrombie & Fitch has continuously been an employer engaged in an industry affecting commerce within the meaning of Section 73 1(b), (g), and (h) of Title VII, 42 U.S.C. §2000e-(b), (g), and (h). 7. At all relevant times, Defendant Hollister has been and is now a California lim ted liability corporation doing business in the State of California and the City of San Mateo and has continuously had at least fifteen employees. 8. At all relevant times, Defendant Hollister has continuously been an employer engaged in an industry affecting commerce within the meaning of Section 701(b), (g), and (h) of l'itle VII, 42 U.S.C. §2000e-(b), (g), and (h). 9. All of the acts and failures to act alleged herein were duly performed by and atributable to all Defendants, each acting as a successor, agent, alter ego, employee, employer, integrated enterprise and/or under the direction and control of the specifically alleged otherwise. Said acts and failures to act were within the and/or employment, and each Defendant participated in, approved andor ratified the acts and omissions by the other Defendants complained of herein. Whenever and reference is made in this Complaint to any act by a Defendant or Defendants, and reference shall also be deemed to mean the acts and failures to act of each Defend individually, jointly, andfor severally.

1124 10.

STATEMENT OF CLAIMS More than thirty days prior to the institution of this lawsuit, Umme-Hani Khan

25 charge of discrimination with the Commission alleging violations of Title VII by
26
The Commission has issued a Letter of Determination finding reasonable cause
27
28 Defendants Abercrombie & Fitch and Hollister collectively discriminated

Case4:11-cv-03162-YGR Document1 Filed06/27/11 Page4 of 6
I , Khan because of her religion and therefore violated Title VII. Prior to instituting this awsuit, th
Commission attempted to eliminate the unlawful employment practices alleged herein and to effect voluntary compliance with Title VII through informal methods of conciliation, onference and persuasion within the meaning of Section 706(b) of Title VII, 42 U.S.C. §$2000e- (b) and
1 2000e-6. All conditions precedent to the institution of this lawsuit have been fulfilled.
11. Since at least February 2010, Defendants have engaged in unlawful employme t practices at their San Mateo California location in violation of Section 703(a)(l) of Ti le VII, 42 U.S.C. tj2000e-2(a)(l). Ms. Khan is Muslim. In wears a hijab in public and when she is in the presence of men who are not members immediate family. Defendants hired Ms. Khan in San Mateo, California, on October 5,2009. called a hijab when she was interviewed and incident, wearing her hijab, from October 2009 until February 2010. On or about 2010, Defendants' District Manager, Adam Chmielewski, observed Ms. Khan the store. On or about February 15,2010, at Mr. Chmielewski's request, Ms. that she believes that her religion, Islam, requires her to wear the hijab while Chmielewski suspended Ms. Khan that same day. Mr. Chmielewski Human Resources Director, Amy Yoakum and they determined not continue working for Defendants while wearing a hijab grooming policy known as the "Look Policy." Thereafter, February 23,2010. These actions constitute discrimination religion.
Complaint

Case4:11-cv-03162-YGR Document1 Filed06/27/11 Page5 of 6
I 12. The effect of the practices complained of in paragraph 11 above has been to d rive Ms.
Khan of equal employment opportunities and otherwise to adversely affect her status s an employee because of her religion, Islam. 13. The unlawful employment practices complained of in paragraph 11 above wer and are
j intentional.
14. The unlawful employment practices complained of in paragraph 11 above wer and are committed with malice andlor reckless disregard for the federally protected rights of s. Khan.
i PRAYER FOR RELIEF
WHEREFORE, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendants, Abercrombie & Fi ch and Hollister, their officers, successors, assigns, and all persons in active concert or partici ation with them, from engaging in any employment practices which discriminate on the bas's of religion. B. Order Defendants to institute and carry out policies, practices, and prog ams which provide equal employment opportunities for their employees of all religions an which
1 eradicate the effects of their past and present unlawful employment practices. C. Order Defendants to make whole Ms. Khan by providing compensatio for past and future pecuniary losses resulting from the unlawful employment practices describ d above,
: with interest, in amounts to be determined at trial. D. Order Defendants to make whole Ms. Khan by providing compensatio for past and future non-pecuniary losses caused by the above unlawful conduct, including suffering, emotional distress, indignity, loss of enjoyment of life, loss of self-esteem, humiliation, in amounts to be determined at trial.
E. Order Defendants to pay Ms. Khan punitive damages for its malicious reckless conduct described above, in amounts to be determined at trial.
F. Grant such further relief as the Court deems necessary and proper.
Complaint

Case4:11-cv-03162-YGR Document1 Filed06/27/11 Page6 of 6

G. Award the Commission its costs in this action.

I I

JURY TRIAL DEMAND

1

P The Commission requests a jury trial on all questions of fact raised by its corn laint.

P. DAVID LOPEZ

GENERAL COUNSEL

I1 Dated: June 25.20 11

JAMES L. LEE DEPUTY GENERAL COUNSEL
GWENDOLYN YOUNG REAMS ASSOCIATE GENERAL COUNSEL
EQUAL EMPLOYMENT OPPORTUNI COMMISSION 1801 L Street, N.W. Washington, DC 20507
IS1 William R. Tamayo WILLIAM R. TAMAYO Regional Attorney

Dated:

Dated:

Senior Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION San Francisco District Office

Complaint

 
 Case5:11-cv-03162-EJD Document28 Filed09/09/11 Page1 of 10

1

Zahra Billoo, State Bar No. 267634 COUNCIL ON AMERICAN-ISLAMIC RELATIONS (CAIR)

2 3000 Scott Blvd., Suite 101 Santa Clara, CA 95054

3 Telephone: (408) 986-9874

Facsimile: (408) 986-9875

4 Email:

zbilloo@cair.com

5 Christopher Ho, State Bar No. 129845

6 Araceli Martínez-Olguín, State Bar No. 236561

The LEGAL AID SOCIETY –

7

EMPLOYMENT LAW CENTER

8 180 Montgomery Street, Suite 600 San Francisco, CA 94104

9 Telephone: (415) 864-8848

Facsimile: (415) 593-0096 10 Emails: cho@las-elc.org

11

araceli@las-elc.org

12 Attorneys for Plaintiff-Intervenor UMME-HANI KHAN
13

14

IN THE UNITED STATES DISTRICT COURT

15

FOR THE NORTHERN DISTRICT OF CALIFORNIA

16

17 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
18

Plaintiff, 19

and 20

UMME-HANI KHAN, 21

Plaintiff-Intervenor, 22

v. 23

ABERCROMBIE & FITCH STORES INC. 24 d/b/a HOLLISTER CO., HOLLISTER CO.
CALIFORNIA, LLC, 25

26

Defendants.

Case No. CV 11-3162 DMR
COMPLAINT IN INTERVENTION FOR DAMAGES AND INJUNCTIVE AND DECLARATORY RELIEF FOR EMPLOYMENT DISCRIMINATION
DEMAND FOR JURY TRIAL

27

28

Complaint for Employment Discrimination

1

Case5:11-cv-03162-EJD Document28 Filed09/09/11 Page2 of 10

1

INTRODUCTION

2

1. This action is brought by Plaintiff-Intervenor Khan to secure redress for

3 Defendants’ violation of her civil right to be free from employment discrimination on the basis

4 of her religion and her religious practices.

5

2. In accordance with her religious beliefs and as a part of the exercise of her

6 religion, Ms. Khan wears a hijab in public and when she is in the presence of men who are not

7 members of her immediate family.

8

3. After working for Defendants for over four months, Plaintiff-Intervenor Umme-

9 Hani Khan, an observant Muslim, was unlawfully suspended and subsequently terminated for

10 refusing, as a condition of her employment, to remove her hijab, a headscarf covering her hair,

11 ears, neck, and part of her chest.

12

4. Defendants unlawfully failed to accommodate Plaintiff-Intervenor Khan’s

13 sincerely held religious beliefs.

14

JURISDICTION

15

5. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 in that

16 this case arises under federal law, specifically, Title VII of the Civil Rights Act of 1964, 42

17 U.S.C. § 2000e, et seq.

18

6. This Court has supplemental jurisdiction over the related state law claims

19 pursuant to 28 U.S.C. § 1367(a) because Plaintiff-Intervenor’s claims under the California Fair

20 Employment and Housing Act (“FEHA”) form part of the same case or controversy under

21 Article III of the United States Constitution. Plaintiff-Intervenor’s state law claims share all

22 common operative facts with her federal law claim, and the parties are identical. Resolving all

23 state and federal claims in a single action serves the interests of judicial economy, convenience,

24 and fairness to the parties.

25

VENUE

26

7. Venue is proper in the Northern District of California pursuant to Section

27 706(f)(3) of Title VII, 42 U.S.C. § 2000e-5(f)(3), because the unlawful employment

28

Complaint for Employment Discrimination

2

Case5:11-cv-03162-EJD Document28 Filed09/09/11 Page3 of 10

1 discrimination giving rise to Plaintiff-Intervenor’s claims occurred in this District.

2

PARTIES

3

8. Plaintiff-Intervenor UMME-HANI KHAN is a 20 year-old college student from

4 Foster City, California. She is a practicing Muslim and is and has been an adherent of Islam

5 since birth. In accordance with her religious beliefs and as a part of the exercise of her religion,

6 Plaintiff-Intervenor Khan wears a headscarf covering her hair, ears, neck, and part of her chest

7 when she is in public and when she is in the presence of men who are not members of her

8 immediate family. She was employed by Abercrombie & Fitch Co. at a Hollister Co. store

9 located in San Mateo, California from October 5, 2009 to February 22, 2010.

10

9. Defendant ABERCROMBIE & FITCH STORES INC. d/b/a HOLLISTER CO.

11 (“A&F”) is a limited liability corporation that operates stores and websites selling casual

12 sportswear apparel under the Abercrombie & Fitch, abercrombie, and Hollister Co. brands.

13 While each brand targets a different age-range of consumers, all three of the brands are

14 managed by A&F. A&F employs more than 500 people nationwide, is headquartered in New

15 Albany, Ohio, and is doing business in the State of California and the City of San Mateo.

16

10. Defendant HOLLISTER CO. CALIFORNIA, LLC (“Hollister”) is a California

17 limited liability corporation doing business in the State of California and the City of San Mateo

18 and has continuously had at least fifteen employees.

19

11. All of the acts and failures to act alleged herein were duly performed by and

20 attributable to all Defendants, each acting as a successor, agent, alter ego, employee, indirect

21 employer, joint employer, integrated enterprise and/or under the direction and control of the

22 others, except as specifically alleged otherwise. Said acts and failures to act were within the

23 scope of such agency and/or employment, and each Defendant participated in, approved and/or

24 ratified the unlawful acts and omissions by the other Defendants complained of herein.

25 Whenever and wherever reference is made in this Complaint to any act by a Defendant or

26 Defendants, such allegations and reference shall also be deemed to mean the acts and failures to

27 act of each Defendant acting individually, jointly, and/or severally.

28

Complaint for Employment Discrimination

3

Case5:11-cv-03162-EJD Document28 Filed09/09/11 Page4 of 10

1

EXHAUSTION OF ADMINISTRATIVE REMEDIES

2

12. Plaintiff-Intervenor Khan has exhausted her administrative remedies. She filed

3 timely administrative charges of discrimination against Hollister with the U.S. Equal

4 Employment Opportunity Commission (EEOC) and the California Department of Fair

5 Employment and Housing (DFEH).

6

13. The EEOC issued a letter of determination on September 24, 2010. Though the

7 parties attempted conciliation, conciliation failed on January 28, 2011.

8

STATEMENT OF THE FACTS

9

14. Plaintiff-Intervenor Khan applied for and interviewed for a job at the Hollister

10 Co. store in the Hillsdale Mall in San Mateo, California in October 2009. During that

11 interview, in which she wore a hijab, Plaintiff-Intervenor Khan was asked if she could wear a

12 hijab while at work that comported with A&F’s “Look Policy,” specifically, Hollister Co.’s

13 colors and Plaintiff-Intervenor Khan responded that she could.

14

15. Defendants thereupon hired Plaintiff-Intervenor Khan as a stockroom employee.

15 Although she primarily worked in the stockroom as an “impact associate,” Plaintiff-Intervenor

16 Khan was occasionally required to go out onto the sales floor to replenish clothing. Plaintiff-

17 Intervenor Khan worked at Hollister Co. for over four months, performing her duties

18 satisfactorily and with no problems or complaints.

19

16. On or about February 9, 2010, Adam Chmielewski (“Chmielewski”), a visiting

20 district manager, saw Plaintiff-Intervenor Khan on the sales floor.

21

17. On or about February 15, 2010, Chmielewski asked Plaintiff-Intervenor Khan to

22 speak on the phone with A&F’s director of human resources, Amy Yoakum (“Yoakum”).

23 Yoakum told Plaintiff-Intervenor Khan that her hijab violated the company’s “Look Policy” and

24 asked Plaintiff-Intervenor Khan if she could remove her hijab while working. Plaintiff-

25 Intervenor Khan explained that she could not do so because she wore her hijab in accordance

26 with her religious beliefs. Yoakum thereupon suspended Plaintiff-Intervenor Khan from

27 working until further notice.

28

Complaint for Employment Discrimination

4

Case5:11-cv-03162-EJD Document28 Filed09/09/11 Page5 of 10

1

18. On or about February 19, 2010, Plaintiff-Intervenor Khan received a call from

2 the Hollister Co. assistant store manager, who requested that Plaintiff-Intervenor Khan come to

3 the store the following Monday, February 22, 2010.

4

19. On February 22, 2010, Plaintiff-Intervenor Khan went to the Hollister Co. store

5 and met with Chmielewski and Yoakum. Yoakum participated by telephone. Yoakum asked

6 Ms. Khan whether she would remove her hijab while at work to comply with the “Look Policy”.

7 Plaintiff-Intervenor Khan refused, citing her Muslim faith. Yoakum thereupon told Plaintiff-

8 Intervenor Khan that A&F could not accommodate her religious observance. Plaintiff-

9 Intervenor Khan was immediately terminated.

10

20. As a result of Defendants’ discriminatory refusal to accommodate Plaintiff-

11 Intervenor Khan’s religious observation, and its subsequent suspension and termination of

12 Plaintiff-Intervenor Khan, she lost her source of income and experienced emotional distress.

13

RELIEF ALLEGATIONS

14

21. An actual controversy exists between Plaintiff-Intervenor and Defendants

15 regarding their respective rights and duties. Plaintiff-Intervenor seeks a judicial declaration of

16 the rights and duties of the respective parties, including a declaration that Defendants’ conduct

17 violated Title VII and the California Fair Employment and Housing Act. Plaintiff-Intervenor is

18 informed and believes, and thereon alleges, that Defendants deny that its actions and/or failures

19 to act were unlawful. Declaratory relief is therefore necessary and appropriate at this time so

20 that Plaintiff-Intervenor can ascertain her rights.

21

22. Defendants intentionally acted or failed to act as herein alleged on the basis of

22 Plaintiff-Intervenor Khan’s religion.

23

23. Defendants acted or failed to act as herein alleged with malice or reckless

24 indifference to the protected rights of Plaintiff-Intervenor Khan. Plaintiff-Intervenor Khan is

25 thus entitled to recover punitive damages in an amount to be determined according to proof.

26

//

27

//

28

Complaint for Employment Discrimination

5

Case5:11-cv-03162-EJD Document28 Filed09/09/11 Page6 of 10

1

FIRST CLAIM FOR RELIEF

2

Unlawful Discrimination and Discharge on the Basis of Religion in Violation of Title VII

3

24. Plaintiff-Intervenor Khan repeats and realleges the allegations set forth in

4 Paragraphs 1 through 23 as though fully set forth herein.

5

25. Defendants’ conduct as herein alleged violated Title VII of the Civil Rights Act

6 of 1964, 42 U.S.C. § 2000e-2(a)(1), which makes unlawful discrimination against employees on

7 the basis of religion. The term “religion” includes “all aspects of religious observance and

8 practice, as well as belief.” 42 U.S.C. § 2000e(j).

9

26. Defendants discriminated against Plaintiff-Intervenor Khan in violation of Title

10 VII when it suspended and subsequently terminated her because she wears a hijab and would

11 not remove her hijab.

12

27. As a proximate result of Defendants’ discriminatory actions, Plaintiff-Intervenor

13 Khan has suffered losses in compensation, earning capacity, humiliation, mental anguish, and

14 emotional distress. As a result of those actions and consequent harms, Plaintiff-Intervenor

15 Khan has suffered such damages in an amount to be proved at trial.

16

28. Defendants’ unlawful actions were intentional, willful, malicious and/or done

17 with reckless disregard for Plaintiff-Intervenor Khan’s rights.

18

29. Plaintiff-Intervenor Khan requests relief as described in the Prayer for Relief

19 below.

20

SECOND CLAIM FOR RELIEF

21

Unlawful Failure to Accommodate Religious Beliefs in Violation of Title VII

22

30. Plaintiff-Intervenor Khan repeats and realleges the allegations set forth in

23 Paragraphs 1 through 29 as though fully set forth herein.

24

31. Defendants’ conduct as herein alleged violated Title VII of the Civil Rights Act

25 of 1964, 42 U.S.C. § 2000e(j), which requires an employer to “accommodate” religious

26 practices and beliefs.

27

32. Defendants acted in violation of Title VII when, rather than initiating steps

28

Complaint for Employment Discrimination

6

Case5:11-cv-03162-EJD Document28 Filed09/09/11 Page7 of 10

1 toward accommodating her religious practice, Defendants suspended and subsequently fired

2 Plaintiff-Intervenor Khan because she wears a hijab and would not remove her hijab.

3

33. Accommodating Plaintiff-Intervenor Khan’s religious practice would not have

4 caused Defendants an undue hardship.

5

34. As a proximate result of Defendants’ discriminatory actions, Plaintiff-Intervenor

6 Khan has suffered losses in compensation, earning capacity, humiliation, mental anguish, and

7 emotional distress. As a result of such actions and consequent harms, Plaintiff-Intervenor Khan

8 has suffered such damages in an amount to be proved at trial.

9

35. Defendants’ unlawful actions were intentional, willful, malicious and/or done

10 with reckless disregard for Plaintiff-Intervenor Khan’s rights.

11

36. Plaintiff-Intervenor Khan requests relief as described in the Prayer for Relief

12 below.

13

THIRD CLAIM FOR RELIEF

14

Unlawful Discrimination and Discharge on the Basis of Religion in Violation of the California Fair Employment and Housing Act

15

37. Plaintiff-Intervenor Khan repeats and realleges the allegations set forth in

16 paragraphs 1 through 36 as though fully set forth herein.

17

38. Defendants’ conduct as herein alleged violated the California Fair Employment

18 and Housing Act, which makes it an unlawful employment practice for an employer to

19 discharge or discriminate against an employee in the terms, conditions, and privileges of

20 employment because of her religion. Cal. Gov’t Code § 12940.

21

39. Defendants discriminated against Plaintiff-Intervenor Khan in violation of FEHA

22 when Defendants suspended and subsequently fired Plaintiff-Intervenor Khan because she

23 wears a hijab and would not remove her hijab.

24

40. As a proximate result of Defendants’ discriminatory actions, Plaintiff-Intervenor

25 Khan has suffered losses in compensation, earning capacity, humiliation, mental anguish, and

26 emotional distress. As a result of such actions and consequent harms, Plaintiff-Intervenor Khan

27 has suffered such damages in an amount to be proved at trial.

28

Complaint for Employment Discrimination

7

Case5:11-cv-03162-EJD Document28 Filed09/09/11 Page8 of 10

1

41. Defendants’ unlawful actions were intentional, willful, malicious and/or done

2 with reckless disregard for Plaintiff-Intervenor Khan’s rights.

3

42. Plaintiff-Intervenor Khan requests relief as described in the Prayer for Relief

4 below.

5

FOURTH CLAIM FOR RELIEF

6

Unlawful Failure to Accommodate Religious Beliefs in Violation of the California Fair Employment and Housing Act

7

43. Plaintiff-Intervenor Khan repeats and realleges the allegations set forth in

8 paragraphs 1 through 42 as though fully set forth herein.

9

44. Defendants’ conduct as herein alleged violated the California Fair Employment

10 and Housing Act, which makes it an unlawful employment practice for an employer to

11 discharge or discriminate against an employee in the terms, conditions, and privileges of

12 employment because of her religion. Cal. Gov’t Code § 12940.

13

45. Defendants violated FEHA when, rather than initiating steps toward

14 accommodating her religious practice, Defendants suspended and subsequently fired Plaintiff-

15 Intervenor Khan because she wears a hijab and would not remove her hijab.

16

46. Accommodating Plaintiff-Intervenor Khan’s religious practice would not have

17 caused Defendants an undue hardship.

18

47. As a proximate result of Defendants’ discriminatory actions, Plaintiff-Intervenor

19 Khan has suffered losses in compensation, earning capacity, humiliation, mental anguish, and

20 emotional distress. As a result of such discriminatory actions and consequent harm, Plaintiff-

21 Intervenor Khan has suffered such damages in an amount to be proved at trial.

22

48. Defendants’ unlawful actions were intentional, willful, malicious and/or done

23 with reckless disregard for Plaintiff-Intervenor Khan’s rights.

24

49. Plaintiff-Intervenor Khan requests relief as described in the Prayer for Relief

25 below.

26

//

27

//

28

Complaint for Employment Discrimination

8

Case5:11-cv-03162-EJD Document28 Filed09/09/11 Page9 of 10

1

PRAYER FOR RELIEF

2

WHEREFORE, Plaintiff-Intervenor Khan requests that this Court:

3

1. Enter a declaratory judgment that the practices complained of in this complaint

4 are unlawful and violate Title VII of the Civil Rights Act of 1964 and the California Fair

5 Employment and Housing Act;

6

2. Grant all injunctive relief necessary to bring Defendants into compliance with

7 the aforementioned laws;

8

3. Order Defendants to pay the wages, salary, employment benefits, and other

9 compensation denied or lost to Plaintiff-Intervenor Khan to date by reason of Defendants’

10 unlawful actions, in amounts to be proven at trial;

11

4. Order Defendants to pay compensatory damages for Plaintiff-Intervenor Khan’s

12 emotional pain and suffering, in an amount to be proven at trial;

13

5. Order Defendants to pay exemplary and punitive damages;

14

6. Order Defendants to pay attorneys’ fees and costs of the action;

15

7. Order Defendants to pay interest at the legal rate on such damages as

16 appropriate, including pre- and post-judgment interest; and

17

8. Grant any further relief that the Court deems just and proper.

18 19 Dated: September 9, 2011
20
21

Respectfully submitted,
Zahra Billoo COUNCIL ON AMERICAN-ISLAMIC RELATIONS (CAIR)

22

Christopher Ho

23

Araceli Martínez-Olguín

The LEGAL AID SOCIETY –

24

EMPLOYMENT LAW CENTER

25

26

By: ___/s/____________________________________

ARACELI MARTÍNEZ-OLGUÍN

27 Attorneys for Plaintiff-Intervenor
28

Complaint for Employment Discrimination

9

Case5:11-cv-03162-EJD Document28 Filed09/09/11 Page10 of 10

1

JURY TRIAL DEMAND

2

Plaintiff-Intervenor hereby demands a jury trial on all issues so triable.

3 4 Dated: September 9, 2011
5
6

Respectfully submitted,
Zahra Billoo COUNCIL ON AMERICAN-ISLAMIC RELATIONS (CAIR)

7

Christopher Ho

8

Araceli Martínez-Olguín

The LEGAL AID SOCIETY –

9

EMPLOYMENT LAW CENTER

10

11

By: __/s/________________________________

ARACELI MARTÍNEZ-OLGUÍN

12 Attorneys for Plaintiff-Intervenor
13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Complaint for Employment Discrimination

10

 
 1

2

3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5

6 U.S. EQUAL EMPLOYMENT 7 OPPORTUNITY COMMISSION,

8

Plaintiff,

9 and

10
UMME-HANI KHAN,
11
Plaintiff-Intervenor,
12

13

vs.

Case No.: 11-cv-03162-YGR ORDER GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANTS’ CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

United States District Court Northern District of California

14 ABERCROMBIE & FITCH STORES, INC., d/b/a HOLLISTER CO., HOLLISTER CO.
15 CALIFORNIA, LLC,
16
Defendants.
17

18

19

Pending before the Court are cross-motions for partial summary judgment. Plaintiff U.S.

20 Equal Employment Opportunity Commission (“EEOC”) filed this action against Defendants1 on June

21 27, 2011 alleging discrimination on the basis of religion in violation of Title VII, 42 U.S.C. section

22 2000e-2(a)(1). (Dkt. No. 1.) On September 9, 2011, Plaintiff-Intervenor Umme-Hani Khan (“Khan”)

23 filed a Complaint in Intervention for Damages and Injunctive and Declaratory Relief for Employment 24 Discrimination.2 (Dkt. No. 28.)

25
1 Defendants are Abercrombie & Fitch Stores, Inc., d/b/a Hollister, Hollister Co. California, LLC. 26 Hereafter, the Court will refer to Defendants as “Abercrombie.”
27 2 Khan alleges four claims: (1) Unlawful Discrimination and Discharge on the Basis of Religion in 28 Violation of Title VII, 42 U.S.C. section 2000e-2(a)(1); (2) Unlawful Failure to Accommodate
Religious Beliefs in Violation of Title VII, 42 U.S.C. section 2000e(j); (3) Unlawful Discrimination

United States District Court Northern District of California

1

The EEOC and Khan (collectively, “Plaintiffs”) have jointly filed a Motion for Partial

2 Summary Judgment (“Motion”), seeking judgment in their favor as to (i) liability on the claims

3 regarding religious accommodation and (ii) Abercrombie’s sixth, eighth, and tenth affirmative

4 defenses based on failure to exhaust administrative remedies, undue hardship, and infringement upon

5 Abercrombie’s right to commercial free speech, respectively. (Dkt. No. 97.) Abercrombie opposes

6 Plaintiffs’ Motion, and filed a Cross-Motion for Partial Summary Judgment (“Cross-Motion”) seeking

7 (i) dismissal of the EEOC’s claims on the grounds the EEOC failed to conciliate in good faith and

8 (ii) summary judgment on Plaintiffs’ claims for injunctive relief and punitive damages. (Dkt. No. 9 103.) On June 18, 2013, the Court held oral argument on the pending motions. (Dkt. No. 117.)3

10

Having carefully considered the papers submitted and the pleadings in this action, the

11 arguments of counsel, and for the reasons set forth below, the Court hereby GRANTS Plaintiffs’

12 Motion for Partial Summary Judgment and DENIES Defendants’ Cross-Motion for Partial Summary

13 Judgment.

14 I.

FACTUAL AND PROCEDURAL BACKGROUND

15

A. Abercrombie and the Look Policy

16

Defendant Abercrombie & Fitch, Inc. operates retail stores across the country under the brand

17 names Abercrombie & Fitch, Hollister Co., abercrombie kids and Gilly Hicks. (UMF No. 2.)4

18 Employees who work in both the stock room and on the sales floor to restock merchandise are titled

19 “Impact” or Part-Time Impact (“PTI”) employees (sometimes referred to as associates). (UMF No. 4;

20 Declaration of Marcia Mitchell in Support of Plaintiffs EEOC’s and Khan’s Motion for Partial

21

22 and Discharge on the Basis of Religion in Violation of the California Fair Employment and Housing Act (“FEHA”), Cal. Gov’t Code section 12940; and (4) Unlawful Failure to Accommodate Religious
23 Beliefs in Violation of FEHA, Cal. Gov’t Code section 12940.

24 3 The parties attempted to provide the Court with supplemental authority and/or additional evidence

25 and argument after the hearing on the motions. The Court struck those documents from the record.

(Dkt. No. 119.)
26

27

4 “UMF” refers to the Parties’ Joint Statement of Undisputed Material Facts. (Dkt. No. 102.) Unless otherwise noted, the references to the material facts include the underlying evidence referenced in

28 support of the fact. Although the parties did not number the UMFs, the Court will refer to the facts in

numerical order.

2

United States District Court Northern District of California

1 Summary Judgment [“Mitchell Motion Decl.” (Dkt. No. 98)], Ex. 11 [Videotaped Deposition of Amy 2 Yoakum (“Yoakum Dep.”)] 59:9–245.) Abercrombie also employs “Models” who work on the sales

3 floor. (UMF No. 3; Mitchell Motion Decl., Ex. 7 [Deposition of Chad W. Moorefield (“Moorefield 4 Dep.”] 50:8–51:146.)

5

Abercrombie maintains a “Look Policy” which was effective at all times relevant to this case.

6 (UMF No. 5.) The Look Policy is a grooming policy that gives employees guidelines regarding their

7 appearance and the clothing they are expected to wear while at work. (Mitchell Motion Decl., Ex. 4

8 [Deposition of Deon Riley, Ph.D. (“Riley 3/14/12 Dep.”)] 135:16–25.) The Look Policy requires

9 employees to wear clothes similar to those sold in Abercrombie stores, though they are not required to 10 wear Abercrombie clothing. (Id. 202:4–8.)7 In 2010, the Look Policy prohibited employees from

11 wearing headwear. (Mitchell Motion Decl., Ex. 6; Yoakum Dep. 255:19–25; Clark Decl., Ex. E.

12 [30(b)(6) Deposition of Christopher Fugarino (“Fugarino Dep.”)] at Ex. 26 at 29–30.)

13

In addition to the Look Policy, Abercrombie’s marketing strategy seeks to create an “in-store

14 experience” for customers that conveys the principal elements and personality of each Abercrombie

15 brand. (Mitchell Motion Decl., Ex. 2 [Abercrombie & Fitch Co., Annual Report (Form 10-K)

16 (January 30, 2010)] at 2.) The in-store experience is the “primary vehicle for communicating the

17 spirit of each brand.” (Id.) “[S]ales associates . . . reinforce the aspirational lifestyles represented by

18 the brands” and “are a central element in creating the atmosphere of the stores.” (Id.) Abercrombie

19

20

21 5 Additional excerpts of the Yoakum Dep. were attached to the Declaration of Daniel J. Clark in Support of Defendants’ Opposition to Plaintiffs’ Partial Motion for Summary Judgment and Cross-

22 Motion for Partial Summary Judgment [“Clark Decl.” (Dkt. No. 104)], Ex. F and the Declaration of

23

Marcia Mitchell in Support of Plaintiffs’ Reply to Defendants’ Combined Opposition to Plaintiffs’ Motion for Partial Summary Judgment and Cross-Motion for Partial Summary Judgment [“Mitchell

24 Reply Decl.” (Dkt. No. 108)], Ex. 21.

25 6 Additional excerpts of the Moorefield Dep. were attached to the Mitchell Reply Decl., Ex. 26.

26 7 The Look Policy also requires employees to wear specific types of shoes (flip flops, Converse

27

sneakers, or Vans sneakers), prohibits facial hair and clothing with obvious logos from nonAbercrombie stores, and restricts the type of jewelry may be worn. (Riley 3/14/12 Dep. 136:1–

28 137:9,140:17–141:3, 204:2–11.)

3

United States District Court Northern District of California

1 considers the in-store experience to be its main form of marketing, although it also engages customers

2 through social media and mobile commerce. (Id. at 3.)

3

All store employees, including Impact and PTI employees, are required to comply with the

4 Look Policy. (UMF No. 6.) Applicants for employment are informed of the Look Policy during the

5 interview process. (UMF No. 7.) New employees sign an acknowledgement of the Look Policy when

6 they are hired, and the Look Policy also appears in the Abercrombie employee handbook. (UMF No.

7 8.)

8

B. Khan’s Employment with Abercrombie

9

Plaintiff Umme-Hani Khan is Muslim. (UMF No. 1.) Khan believes that Islam dictates that

10 she wear clothes that she considers modest. (Mitchell Motion Decl., Ex. 1 [Videotaped Deposition of 11 Umme-Hani Khan (“Khan Dep.”)] 23:7–15.)8 She further believes that Islam requires her to wear a

12 head scarf, also known as a hijab, when in public or in the presence of men who are not immediate

13 family members. (Id. 17:13–16, 22:7–14, 46:16–48:3.) At the time of her hire, Khan had fully

14 adopted the practice of wearing a hijab in public or when in the presence of males outside of her

15 immediate family. (Id. 50:18–24.) She wore a headscarf when she was interviewed for her position,

16 and knew that Abercrombie did not sell headscarves. (UMF Nos. 10 & 11.) When hired, Khan

17 acknowledged the Look Policy and agreed to abide by it. (Khan Dep. 79:15–80:10, 89:8–11.)

18

In October 2009, Khan began work as a PTI employee at a Hollister store in the Hillsdale

19 Shopping Center in San Mateo. (UMF No. 9.) As a PTI employee, she was responsible for ensuring

20 that merchandise was prepared for the sales floor, which included folding clothes received in

21 shipments, placing those items on the floor, and replacing those items as clothes are sold. (Yoakum

22 Dep. 59:9–24; Khan Dep. 76:6–13 (also ensured shipments were complete); Moorefield Dep. 34:16–

23 23 (impact associate’s job is “to process shipment and fill the sales floor”).) Khan’s duties were

24 performed primarily in the stockroom. (Khan Dep. 77:5–8; Yoakum Dep. 60:5–9.) While the

25 unpacking and folding of items would take place in stockrooms, Khan would restock clothes on the

26 floor anywhere from one to four times per shift. (Khan Dep. 77:9–20.)

27

28
8 Additional excerpts of the Khan Dep. were attached to the Clark Decl., Ex. J.

4

United States District Court Northern District of California

1

Khan wore her headscarf at work from October 2009 until her termination in February 2010.

2 She regularly wore long-sleeved shirts and jeans purchased at Hollister along with a pair of flip-flops

3 to work. (Plaintiff-Intervenor Umme-Hani Khan’s Declaration in Support of Plaintiffs’ Motion for

4 Partial Summary Judgment [Dkt. No. 99] ¶ 4.) Local supervisors permitted Khan to wear her

5 headscarf so long as it matched company colors. (Khan Dep. 69:5–23.) During that time, the store

6 managers never informed her she was not complying with the Look Policy. (Id. 84:16-21.)

7

On or around February 10, 2010, during a regularly scheduled store visit to the Hillsdale store,

8 District Manager Adam Chmielewski noticed that Khan was not in compliance with the Look Policy.

9 (UMF No. 12.) When he saw Khan on that occasion, he did not know that she had been employed by

10 Abercrombie for several months. (UMF No. 13.) Chmielewski contacted Amy Yoakum, Senior

11 Manager of Human Resources, for guidance on how to address the situation. (UMF No. 14.) On

12 February 15, 2010, Yoakum discussed the situation with Chmielewski and Khan over the phone.

13 (UMF No. 15.) During that phone conversation, Yoakum told Khan that her headscarf was in

14 violation of the company’s Look Policy and asked her if she could take it off. (UMF No. 16.) Khan

15 told Yoakum that she could not take the headscarf off because it was part of her religion. (UMF No.

16 17.) Yoakum informed Khan that Abercrombie would suspend her shifts but continue to pay her

17 while they investigated. (Yoakum Dep. 63:5–15.)

18

Khan returned to the store on February 22, 2010 for a second phone conversation with

19 Yoakum and Chmielewski. (UMF No. 18.) Prior to the phone call, Abercrombie prepared Khan’s

20 final paycard (equivalent to a paycheck). (Yoakum Dep. 101:23–103:3.) During the call, Yoakum

21 asked again whether Khan could remove her headscarf while she was on the clock. (UMF No. 19.)

22 Khan responded, again, that she could not do so because of her religious beliefs. (UMF No. 20.)

23 Yoakum terminated Khan’s employment for non-compliance with the company’s Look Policy. (UMF

24 Nos. 21 & 22.) Khan’s refusal to remove her hijab was the sole reason for her suspension and 25 termination. (Mitchell Motion Decl., Ex. 9; Yoakum Dep. 61:11–23, 62:24–64:19, 99:13–18.)

26

Eleven days later, on March 5, 2010, Abercrombie extended Khan an unconditional offer of

27 reinstatement with the accommodation of being allowed to wear her headscarf to work. (UMF No.

28 23.) Khan declined the offer of reinstatement. (Khan Dep. 140:6–8.)

5

United States District Court Northern District of California

1

C. Post-Termination Conduct Between EEOC and Abercrombie

2

Khan filed a Charge of Discrimination with the EEOC and DFEH on March 1, 2010.

3 (Declaration of Michael Baldonado in Support of Plaintiff’s Motion for Partial Summary Judgment

4 [“Baldonado Decl.” (Dkt. No. 100)], Ex. 1.) On March 8, 2010, the EEOC notified Abercrombie of

5 the charge. (Baldonado Decl., Ex. 2.)

6

In 2010, the EEOC was involved in two other cases with Abercrombie: (1) EEOC v.

7 Abercrombie & Fitch Stores, Inc., d/b/a Abercrombie Kids, No. 10-cv-03911-EJD (N.D. Cal.) and

8 (2) EEOC v. Abercrombie & Fitch Stores, Inc., d/b/a Abercrombie Kids, No. 09-cv-602-GKF-FHM 9 (N.D. Okla.). In the Northern District of California action (hereafter, “Banafa”), the EEOC alleged

10 that Abercrombie refused to hire Halla Banafa as a PTI associate because she wore a hijab. (Mitchell

11 Reply Decl. ¶ 4.) In the Northern District of Oklahoma case (hereafter, “Elauf”), the EEOC alleged

12 that Abercrombie refused to hire Samantha Elauf into a Model position because she wore a hijab. (Id.

13 ¶ 5.) On or about September 16, 2010, the EEOC informed Abercrombie’s counsel that it would be

14 interested in jointly negotiating a settlement of the Banafa and Elauf cases. (Id. ¶¶ 7–8 & Ex. 2.)

15

On September 24, 2010, the EEOC sent Abercrombie a “Determination” letter stating that

16 there was reasonable cause to believe it had discriminated against Khan in violation of Title VII.

17 (Baldonado Decl., Ex. 3; Mitchell Reply Decl. ¶ 9; Declaration of Stacia Marie Jones, Esq. [Dkt. No.

18 104-14] ¶ 4.) In the Determination, the EEOC invited Abercrombie to conciliate the charge

19 informally. Also on September 24, the EEOC sent a conciliation offer letter to Abercrombie

20 recommending compensatory damages and other forms of non-monetary relief, to which Abercrombie

21 replied with a counteroffer. (Clark Decl., Ex. O.)

22

The EEOC and Abercrombie jointly discussed settlement of Banafa and Elauf in October

23 2010. (Mitchell Reply Decl., Ex. 3.) Marcia Mitchell, the attorney assigned to negotiate with

24 Abercrombie in Banafa and in the instant action (which was then in conciliation) understood that the

25 parties were pursuing a global settlement of all three matters. (Id. ¶¶ 10 & 12.) The discussions in

26 October 2010 included exchanging draft consent decrees containing terms to resolve all three matters.

27 (Id. ¶ 14.) Negotiations regarding the consent decrees continued into November 2010. (Id. ¶¶ 16–23

28

6

United States District Court Northern District of California

1 & Exs. 4–11.) On December 10, 2010, the parties participated in a settlement conference in Elauf

2 before a magistrate judge, but the case did not settle. (Id. ¶ 25.)

3

On December 17, 2010, the EEOC presented Abercrombie with proposed language to adopt as

4 company policy. (Clark Decl., Ex. M [Deposition of Hussam Ayloush Pursuant to Federal Rule 5 30(b)(6) on Behalf of CAIR-California] at Ex. 48.)9 The EEOC stated that “[i]f Hollister is willing to

6 incorporate the above language in its policies, then the EEOC would be happy to continue with

7 conciliation efforts on issues of money and other injunctive relief.” (Id.) In addition, the EEOC 8 “included the new requests from Charging Party [Khan] and her counsel.” (Id.) Abercrombie

9 rejected the conciliation demand on December 20, 2010 because the EEOC’s proposed language

10 mandated that all employees be allowed to wear headscarves in the future and did not permit

11 consideration on a case-by-case basis. (Id.) The rejection email from Abercrombie concluded with

12 the statement: “To the extent the EEOC continues to force us to do more than is required under the

13 law and in the EEOC’s own guidance, this matter will not resolve.” (Id.)

14

On January 6, 2011, the EEOC emailed CAIR, who was representing Khan, and informed

15 CAIR that its intent was to “fail conciliation” with Abercrombie. (Id. at Ex. 48 (also seeking Khan

16 and CAIR’s input on failing conciliation).) On January 11, 2011, CAIR informed the EEOC that

17 Khan did not object to failing conciliation. (Id. at Ex. 50.) On January 18, 2011, the EEOC notified

18 Abercrombie that it had “determined that efforts to conciliate the[] cases as required by [its]

19 procedures and policies have been unsuccessful.” (Baldonado Decl., Ex. 4.) A letter was also sent to

20 CAIR and Khan informing them that the EEOC would next determine whether to file a civil action.

21 (Clark Decl., Ex. M at Ex. 52.)

22

In March 2011, the parties re-engaged in settlement negotiations for all three matters.

23 (Mitchell Reply Decl. ¶ 28 & Ex. 12.) Emails and/or conference calls occurred on March 7, 8, 9, 14,

24 15, 21, 23, 30 and 31, wherein monetary and non-monetary demands were made on behalf of Khan.

25 (Id. ¶¶ 27–36 & Exs. 12–16.) Further settlement negotiations occurred via email and conferences on

26 April 7, 11, 12, 19, 20 and 27. (Id. ¶¶ 37–43 & Exs. 17–20.)

27
28 9 CAIR-California is the Council on American-Islamic Relations, California.

7

United States District Court Northern District of California

1

On May 13, 2011, the EEOC requested a status update from Abercrombie. (Id. ¶ 44 & Ex.

2 20.) Abercrombie rejected the demands made by the EEOC. (Id. ¶ 45.) The EEOC informed

3 Abercrombie that it had been “holding off on filing the lawsuit with the hope of resolving all of the

4 cases at once” and that if there was nothing further to discuss, the EEOC would “proceed with filing

5 Ms. Khan’s case.” (Id., Ex. 20.) Abercrombie responded on May 19, 2011 that it appeared the parties

6 were at an impasse. (Id.) The EEOC filed the instant action on June 27, 2011. (Dkt. No. 1.)

7 II. LEGAL STANDARD

8

Summary judgment is appropriate when no genuine dispute as to any material fact exists and

9 the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A party seeking

10 summary judgment bears the initial burden of informing the court of the basis for its motion, and of

11 identifying those portions of the pleadings, depositions, discovery responses, and affidavits that

12 demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,

13 323 (1986). Material facts are those that might affect the outcome of the case. Anderson v. Liberty

14 Lobby, Inc., 477 U.S. 242, 248 (1986). The “mere existence of some alleged factual dispute between

15 the parties will not defeat an otherwise properly supported motion for summary judgment; the

16 requirement is that there be no genuine issue of material fact.” Id. at 247–48 (dispute as to a material

17 fact is “genuine” if there is sufficient evidence for a reasonable jury to return a verdict for the non-

18 moving party).

19

Where the moving party will have the burden of proof at trial, it must affirmatively

20 demonstrate that no reasonable trier of fact could find other than for the moving party. Soremekun v.

21 Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). On an issue where the non-moving party will

22 bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district

23 court that the non-moving party lacks evidence to support its case. Id. If the moving party meets its

24 initial burden, the opposing party must then set out “specific facts” showing a genuine issue for trial

25 in order to defeat the motion. Id. (quoting Anderson, 477 U.S. at 250). The opposing party’s

26 evidence must be more than “merely colorable” but must be “significantly probative.” Id. at 249–50. 27 Further, that party may not rest upon mere allegations or denials of the adverse party’s evidence, but 28 instead must produce admissible evidence that shows a genuine issue of material fact exists for trial.

8

United States District Court Northern District of California

1 Nissan Fire & Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d 1099, 1102–03 (9th Cir. 2000); Nelson v.

2 Pima Cmty. College Dist., 83 F.3d 1075, 1081–1082 (9th Cir. 1996) (“mere allegation and speculation

3 do not create a factual dispute”); Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th

4 Cir. 2001) (“conclusory allegations unsupported by factual data are insufficient to defeat [defendants’]

5 summary judgment motion”).

6

When deciding a summary judgment motion, a court must view the evidence in the light most

7 favorable to the non-moving party and draw all justifiable inferences in its favor. Anderson, 477 U.S.

8 at 255; Hunt v. City of Los Angeles, 638 F.3d 703, 709 (9th Cir. 2011). However, in determining

9 whether to grant or deny summary judgment, it is not a court’s task “to scour the record in search of a

10 genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (internal

11 quotations omitted). Rather, a court is entitled to “rely on the nonmoving party to identify with

12 reasonable particularity the evidence that precludes summary judgment.” See id.; Carmen v. San

13 Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001) (“The district court need not

14 examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set

15 forth in the opposing papers with adequate references so that it could conveniently be found.”)

16 III. REQUIREMENT OF CONCILIATION

17

As a threshold requirement, the EEOC must satisfy four conditions precedent prior to filing

18 suit. It must: (1) receive a timely charge of discrimination and provide notice to the employer thereof;

19 (2) conduct an investigation; (3) determine that reasonable cause exists to believe that discrimination

20 has occurred; and (4) attempt to eliminate any alleged unlawful employment practice by informal

21 methods of conference, conciliation, and persuasion. EEOC v. Pierce Packing Co., 669 F.2d 605, 607

22 (9th Cir. 1982). Plaintiffs argue that the EEOC satisfied these requirements. Abercrombie disagrees

23 as to the last element only. If all elements are not met, the entire lawsuit may be dismissed or stayed

24 at the Court’s discretion. Accordingly, the Court addresses this issue first.

25

The issue at hand concerns the fourth condition precedent. The EEOC emphasizes that it

26 attempted to conciliate Khan’s charge from September 2010 to May 2011, prior to initiating the 27 lawsuit. Because these efforts were unsuccessful, the EEOC elected to file suit. See 42 U.S.C. § 28 2000e-5(f)(1) (EEOC is authorized to file suit thirty days after the filing of a charge if “the

9

United States District Court Northern District of California

1 Commission has been unable to secure from [defendant] a conciliation agreement acceptable to the

2 Commission.”) Khan thereafter intervened in this action to vindicate her rights under Title VII and

3 FEHA. Abercrombie argues that the conciliation efforts were required to be done in good faith and

4 EEOC failed to do so.

5

The proper standard for reviewing whether the EEOC conciliated in good faith varies amongst

6 the circuits. Under a “highly deferential” approach, the “form and substance of the EEOC’s

7 conciliation proposals are within the discretion of the EEOC and are not subject to judicial second-

8 guessing.” EEOC v. Timeless Investments, Inc., 734 F. Supp. 2d 1035, 1052 (E.D. Cal. 2010) 9 (quoting EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1102 (6th Cir.1984)). Under a stricter approach,

10 “the EEOC must meet three requirements to fulfill its conciliation duty: (1) outline to the employer

11 the reasonable cause for its belief that the [statute] has been violated; (2) offer an opportunity for

12 voluntary compliance; and (3) respond in a reasonable and flexible manner to the reasonable attitudes

13 of the employer.” Timeless Investments, 734 F. Supp. 2d at 1052 (citing EEOC v. Asplundh Tree

14 Expert Co., 340 F.3d 1256, 1259 (11th Cir. 2003); EEOC v. Johnson & Higgins, Inc., 91 F.3d 1529,

15 1534 (2d Cir. 1996); EEOC v. Klingler Electric Corp., 636 F.2d 104, 107 (5th Cir. 1981)). The Ninth

16 Circuit has not adopted a standard. As set forth herein, the Court need not determine which standard

17 applies in the pending Motions because the Court finds dismissal is not warranted under either

18 standard.

19

The proffered evidence of the EEOC’s purported lack of good faith include: (1) providing

20 exclusive updates or advanced notice to Khan and CAIR; (2) providing bcc’s to CAIR on all

21 communications to and from Abercrombie; (3) failing to “respond to the reasonable attitudes of the

22 employer” and demanding an injunction that would not permit it to make determinations on a case-by-

23 case basis, as permitted by law; (4) abruptly ending conciliation without explanation, while

24 Abercrombie was still willing to negotiate; (5) taking an all-or-nothing approach, seeking eleven

25 excessive demands. Based on these reasons, Abercrombie argues that the Court should exercise its

26 discretion to dismiss the action. See EEOC v. High Speed Enter., Inc., No. CV-08-01789-PHX-ROS,

27 2010 WL 8367452, at *6 (D. Ariz. Sept. 30, 2010) (“When the EEOC fails to satisfy its statutory

28

10

United States District Court Northern District of California

1 obligation to conciliate in good faith, the Court has sound discretion to stay the matter or dismiss 2 it.”)10

3

Plaintiffs counter that they engaged in significant efforts to settle this action, along with the

4 Banafa and Elauf actions, prior to the filing of the Complaint. Using the deferential standard of 5 review, the EEOC argues it did conciliate in good faith.11

6

Given the extensive discussions between the parties, the Court agrees with Plaintiffs and

7 declines to exercise its discretion to dismiss this action.12 Abercrombie’s arguments that the EEOC

8 failed to respond to the reasonable attitudes of the employer and took an all-or-nothing approach

9 establish nothing except that the parties took different positions on the scope of appropriate relief.

10 Further, Abercrombie’s argument that the EEOC “abruptly ended” conciliation in January 2011 is

11 belied by the fact that the parties continued to negotiate from March through May 2011. Finally, the

12 Court is not persuaded that updating a charging party and/or providing bcc’s to her representative

13 evidence a lack of good faith warranting outright dismissal of an action. EEOC v. High Speed Enter.,

14 Inc., 2010 WL 8367452, at *6 (noting dismissal is a harsh remedy).

15

For the foregoing reasons, the Court GRANTS Plaintiffs’ Motion on Abercrombie’s affirmative

16 defense that Plaintiffs failed to exhaust administrative remedies, and DENIES Defendants’ Cross-

17 Motion seeking dismissal for failure to conciliate. Accordingly, the Court will proceed to address the

18 remaining issues in the parties’ motions.

19

20

21

22 10 Although not related to the issue of good faith, Abercrombie also argues that “[i]n light of

23

Abercrombie’s unconditional offer of reinstatement to Khan and its voluntary efforts to ensure future Title VII compliance, . . . the EEOC’s conciliation demands are moot.” (Cross-Motion at 13.)

24
11 The EEOC agrees with Abercrombie that the Ninth Circuit has not adopted a standard, but argues 25 that “nearly all” of the district courts within the Ninth Circuit have adopted the “deferential” standard.

26 12 The Court notes that Abercrombie objects at-large to statements contained in the Mitchell Reply

27

Decl. and exhibits attached thereto because Ms. Mitchell has not been identified as a trial witness that would testify as to the EEOC conciliation process. The Court disagrees with Abercrombie that this

28 evidence may not be considered at summary judgment under Fed. R. Civ. P. 56(c)(2).

11

United States District Court Northern District of California

1 IV. PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

2

As discussed above, Plaintiffs move for summary judgment on liability on their claims that

3 Abercrombie failed to accommodate Khan’s religious beliefs. Plaintiffs also seek summary judgment

4 on Abercrombie’s affirmative defenses of undue hardship and infringement upon Abercrombie’s right

5 to commercial free speech. The Court will first address liability on the failure to accommodate claims

6 followed by reviewing the affirmative defenses.

7

A. Claims for Religious Accommodation

8

1. Relevant Statutory Basis for Federal and State Claims

9

Plaintiffs move for partial summary judgment on their claims that Abercrombie failed

10 to accommodate Khan’s sincerely-held religious belief that Islam required her to wear a hijab,

11 including while at work.

12

Title VII makes it an “unlawful employment practice for an employer . . . to fail or refuse to

13 hire or to discharge any individual, or otherwise to discriminate against any individual with respect to

14 his compensation, terms, conditions, or privileges or employment, because of such individual’s . . .

15 religion.” 42 U.S.C. § 2000e-2(a)(1). “The term ‘religion’ includes all aspects of religious

16 observance and practice, as well as belief, unless an employer demonstrates that he is unable to

17 reasonably accommodate to an employee’s . . . religious observance or practice without undue

18 hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j).

19

Under California’s FEHA, an employer may not refuse to employ a person or “discriminate

20 against a person in compensation or in terms, conditions, or privileges of employment because of a

21 conflict between the person’s religious belief or observance and any employment requirement, unless

22 the employer . . . demonstrates that it has explored any available reasonable alternative means

23 of accommodating the religious belief or observance, including the possibilities of excusing the

24 person from those duties that conflict with his or her religious belief or observance or permitting those

25 duties to be performed at another time or by another person, but is unable to reasonably accommodate

26 the religious belief or observance without undue hardship . . . on the conduct of the business of the

27

28

12

United States District Court Northern District of California

1 employer.” Cal. Gov’t Code § 12940(l)(1).13 The Fair Employment and Housing Commission has

2 promulgated regulations regarding reasonable accommodations relating to dress standards: “[d]ress

3 standards or requirements for personal appearance shall be flexible enough to take into account

4 religious practices.” Cal. Code Regs. Tit. 2 § 7293.3(c)(2).

5

The analysis of a religious discrimination claim is the same under FEHA and Title VII.

6 Madsen v. Associated Chino Teachers, 317 F. Supp. 2d 1175, 1180 (C.D. Cal. 2004). California

7 courts have observed that “[a]lthough the wording of [T]itle VII differs in some particulars from the 8 wording of FEHA, the antidiscriminatory objectives and overriding public policy purposes of the two

9 acts are identical.” Beyda v. City of Los Angeles, 65 Cal. App. 4th 511, 517 (Cal. Ct. App. 1998);

10 Brooks v. City of San Mateo, 229 F.3d 917, 923 n.3 (9th Cir. 2000) (quoting Beyda). As such, courts

11 may rely on federal decisions in interpreting analogous state statutes. Brooks, 229 F.3d at 923 n.3;

12 Cook v. Lindsay Olive Growers, 911 F.2d 233, 241 (9th Cir. 1990) (“Federal precedent applies to

13 provisions of the California Fair Employment and Housing Act analogous to Title VII.”). The Court

14 therefore analyzes jointly the claims under both Title VII and FEHA for failure to accommodate.

15

2. Analytical Framework

16

The Ninth Circuit applies a two-part framework to analyze Title VII religious

17 accommodation claims. A plaintiff must first establish a prima facie case. If successful, the burden

18 then shifts to the employer to show that it “initiated good faith efforts to accommodate reasonably the

19 employee’s religious practices or that it could not reasonably accommodate the employee without

20 undue hardship.” Peterson v. Hewlett-Packard Co., 358 F.3d 599, 606 (9th Cir. 2004) (emphasis

21 13 Undue hardship under FEHA means “an action requiring significant difficulty or expense, when

22 considered in light of the following factors: (1) The nature and cost of the accommodation needed.

23

(2) The overall financial resources of the facilities involved in the provision of the reasonable

24

accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.

25

(3) The overall financial resources of the covered entity, the overall size of the business of a

covered entity with respect to the number of employees, and the number, type, and location of its

26

facilities.

27

(4) The type of operations, including the composition, structure, and functions of the workforce of the entity.

28

(5) The geographic separateness, administrative, or fiscal relationship of the facility or facilities.”

Cal. Gov’t Code § 12926(t) (emphasis supplied).

13

United States District Court Northern District of California

1 supplied) (citing Tiano v. Dillard Dep’t Stores, Inc., 139 F.3d 679, 681 (9th Cir. 1998) and Lawson v.

2 Washington, 296 F.3d 799, 804 (9th Cir. 2002)); Opuku-Boateng v. State of Cal., 95 F.3d 1461, 1467

3 (9th Cir. 1996) (“Only if the employer can show that no accommodation would be possible without

4 undue hardship is it excused from taking the necessary steps to accommodate the employee’s

5 religious beliefs.”).

6

Here, Abercrombie does not dispute that Plaintiffs have established a prima facie case.14

7 Thus, the burden shifts to Abercrombie to prove it has a defense. With respect to its burden, 8 Abercrombie only argues that it could not reasonably accommodate Khan without undue hardship.15

9

10

11

12 14 An employee’s prima facie case for failure to accommodate requires a showing that (i) she had a

13 bona fide religious belief which conflicted with an employment duty, (ii) she informed her employer of the belief and conflict, and (iii) the employer subjected her to discriminatory treatment because of

14 her inability to fulfill the job requirement. Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993).

15

Abercrombie does not dispute that Plaintiffs have established the required elements. First, Khan is Muslim and holds a bona fide belief that Islam requires her to wear a hijab in public, including while

16 she worked in the Abercrombie store. (UMF 1; Khan Dep. 48:17–20, 50:14–51:15.) Second, when

asked to remove the hijab, Khan informed Abercrombie that her religious beliefs prohibited her from

17 removing her it while at work. (UMF Nos. 16, 17, 19 & 20.) Third, Abercrombie suspended Khan

18

when she initially informed them she could not remove the hijab, and Abercrombie later terminated her when she reaffirmed the same. It is undisputed that Khan was terminated “for non-compliance

19 with the company’s Look Policy.” (UMF No. 22.) Khan’s only violation of the Look Policy was the

headscarf.
20

15 The Court notes that the record is devoid of any evidence that Abercrombie actually initiated good 21 faith efforts to accommodate Khan. The only option offered to Khan was “to comply with The Look

22 Policy” or, put another way, to “wear the hijab on her own personal time” but not in the store. (Yoakum Dep. 96:13–97:13.) Yoakum did not consider allowing Khan to wear her hijab in store

23 colors because it was still headwear prohibited by the Look Policy (Yoakum Dep. 100:13–20), despite

24

the fact that she had been wearing it in store colors for the prior four months. Moreover, although Yoakum explains that she spoke with Khan as part of an “interactive process” regarding her hijab,

25 Yoakum had already stated to Chmielewski prior to the initial phone conversation: “If she responds

that it is against her religion and she can’t [remove her hijab during shifts], we will tell her that she

26 will be taken off the schedule and once we have made a decision we will notify her[.] . . . We will

27

then request her last check and when it comes we will set a time for her to come in and terminate her employment.” (Mitchell Motion Decl., Ex. 9.) Yoakum also testified that she had already decided to

28 terminate Khan prior to the second phone call in which they discussed whether she could remove her

hijab while at work. (Yoakum Dep. 102:23–103:3.)

14

United States District Court Northern District of California

3. Undue Hardship Defense
1
To establish undue hardship, an employer must show that a requested accommodation
2
would result in “more than a de minimus cost.” Trans World Airlines, Inc. v. Hardison, 432 U.S. 63,
3
84 (1977). In the Ninth Circuit, heightened proof of the undue hardship defense is required. EEOC v.
4
Abercrombie & Fitch Stores, Inc., No. 10-CV-03911-EJD, 2013 WL 1435290, at *14 (N.D. Cal. Apr.
5
9, 2013); Anderson v. General Dynamics Convair Aerospace Division, 589 F.2d 397, 402 (9th Cir.
6
1978) (“Undue hardship means something greater than hardship.”) Hypothetical or merely
7
conceivable hardships cannot support a claim of undue hardship. Tooley v. Martin-Marietta Corp.,
8
648 F.2d 1239, 1243 (9th Cir. 1981); Anderson, 589 F.2d at 402 (“Undue hardship cannot be proved
9
by assumptions nor by opinions based on hypothetical facts.”). The Ninth Circuit is skeptical of
10
“‘hypothetical hardships’ based on assumptions about accommodations which have never been put
11
into practice.” Anderson, 589 F.2d at 402; Heller, 8 F.3d at 1440. Rather, undue hardship requires
12
proof of actual imposition or disruption. Tooley, 648 F.2d at 1243 (citing Anderson, 589 F.2d at 402).
13
Both the magnitude and the fact of hardship require an examination of the facts of each specific case.
14
Tooley, 648 F.2d at 1243.
15
Abercrombie argues that it has produced sufficient evidence precluding summary judgment on
16
its undue hardship affirmative defense. Importantly, it posits that it need not show economic harm to
17
prove undue hardship nor that such proof be proffered with specificity or exactitude. (Cross-Motion
18
at 18 (citing Balint v. Carson City, Nevada, 180 F.3d 1047, 1054 (9th Cir. 1999) and Cook v.
19
Chrysler, 981 F.2d 336, 339 (8th Cir. 1992).) In support of this position, Abercrombie offers
20
testimony from numerous employees, who testified that—based on their “personal experiences”—
21
compliance with the Look Policy is key to Abercrombie’s success and/or that deviations from the
22
policy “detract from the in-store experience and negatively affect [the] brand.” (Cross-Motion at 19–
23
20.) Abercrombie argues that its Look Policy goes to the “very heart of [its] business model” and thus
24
any requested accommodation to deviate from the Look Policy threatens the company’s success.
25
Plaintiffs counter that Abercrombie’s evidence of undue hardship is speculative and fails to
26
include “specific admissible evidence” showing the degree to which compliance with the Look Policy
27
affects store performance or brand image, or causes financial hardship. In particular, the evidence
28
fails to show: (i) that Khan’s wearing of a hijab during her four months of employment had a negative
15

United States District Court Northern District of California

1 effect on sales, the brand, or any customer’s experience; nor (ii) any tracking or correlation between 2 Look Policy deviations, including wearing a hijab, and a negative impact on sales.16 Plaintiffs also

3 emphasize that the offer to reinstatement Khan as a PTI associate with an accommodation to wear her 4 hijab is inconsistent with any claim of hardship.17 In sum, Plaintiffs argue that “Abercrombie has

5 failed to produce even one document, survey, customer complaint, sales report or financial statement

6 linking an employee’s non-compliance with the Look Policy with an adverse impact on its brand or

7 bottom line, or as the root cause of some sort of customer confusion.” (Motion at 20.)

8

As a preliminary matter, the Court disagrees with Abercrombie’s view of the nature of

9 evidence required to sustain its burden. The Ninth Circuit in Balint did not hold that economic harm

10 is not required per se. Rather, in that case the Ninth Circuit noted that undue hardship “could include

11 ‘additional costs in the form of lost efficiency or higher wages,’” but that it may also exist where “an

12 accommodation would cause more than a de minimis impact on coworkers, such as depriving

13 coworkers of seniority rights or causing coworkers to shoulder the plaintiff’s share of potentially

14 hazardous work.” Balint, 180 F.3d at 1054.

15

Here, Abercrombie only offers unsubstantiated opinion testimony of its own employees to

16 support its claim of undue hardship. The deposition testimony and declarations from Abercrombie

17 witnesses demonstrate their personal beliefs, but are not linked to any credible evidence. Khan had

18 worked at Abercrombie for four months before Chmielewski observed her during a site visit.

19
20 16 Plaintiffs further argue that Abercrombie fails to establish that customers are “confused” by an employee wearing a hijab because the hijab is inconsistent with the brand, or a likelihood that
21 granting Khan’s accommodation would have led to a floodgate of requests for Look Policy exceptions 22 by other employees.

23 17 Further undercutting its claim of undue hardship is the fact that Abercrombie has granted “almost

24

80 Look Policy exceptions since at least 2005” including: (i) allowing male employees to grow facial hair or wear a yarmulke or baseball cap; (ii) allowing female employees to wear visible jewelry

25 (including a cross) or a long skirt that was inconsistent with the store’s look; and (iii) granting more

than 16 exceptions for headscarves since 2006. (Motion at 15, 17). On this point, Abercrombie

26 responds that the majority of permitted exceptions to the Look Policy “were made when religious garb

27

was not observable” and were “thus distinguishable from Khan’s request to wear a highly visible headscarf.” (Cross-Motion at 19–22 (other exceptions granted for medical reasons or to employees in

28 non-customer-facing positions).)

16

United States District Court Northern District of California

1 Abercrombie failed to proffer any evidence from those four months showing a decline in sales in the

2 Hillsdale store; customer complaints or confusion; or brand damage linked to Khan’s wearing of a

3 hijab. (See Mitchell Motion Decl., Ex. 3 [Videotaped Deposition of Adam Chmielewski

4 (“Chmielewski Dep.”)] 155:12–16 (Abercrombie did not receive complaints about Khan while she

5 was employed) & 155:20–23 (did not know of any change in sales from the time of Khan’s hire to 6 departure).)18 Moreover, Yoakum, who terminated Khan, testified that Khan’s hijab was a violation

7 of the Look Policy regardless of how much or little time she spent on the sales floor (Yoakum Dep. 8 94:1–13) and without consideration of whether the hijab was distracting to customers (id. 99:12–18).

9 Without evidence of any negative effect resulting from Khan’s hijab, Abercrombie cannot establish

10 that accommodating Khan in this instance would have caused an undue hardship.

11

To the extent that Abercrombie argues more broadly that an accommodation for Khan would

12 have threatened the core of its business model and the company’s overall success, the Court is not

13 persuaded. Each Abercrombie witness testified that they believe deviations from the Look Policy

14 harm sales and/or customers’ experiences in the store. None were able to provide a more concrete

15 basis than that it was their “belief” based on “personal experience” that such harms result. Notably, 16 employees could not identify any reports, surveys, or complaints as a basis for their beliefs.19 In fact,

17 two Abercrombie sales executives testified that Abercrombie does not specifically examine the effect

18 of the Look Policy on sales. James Roth, former Director of Stores and current Director of Stores for

19 Asia-Pacific, testified that Abercrombie “wouldn’t look” specifically at a link between the Look

20
21 18 Additional excerpts of the Chmielewski Dep. were attached to the Clark Decl., Ex. C.

22 19 (Clark Decl., Ex. B [Deposition of Jessica Passalacqua (“Passalacqua 10/1/12 Dep.”)] 191:22– 192:16 & 195:11–21 (cannot identify any empirical data to support the belief) and Mitchell Reply

23 Decl., Ex. 25 (also “Passalacqua 10/1/12 Dep.”) 96:16–24 (not aware of studies determining whether

24

permitting deviations in Look Policy had negative impact on sales); Mitchell Reply Decl., Ex. 23 [Deposition of Jessica M. Passalacqua (“Passalacqua 6/25/09 Dep.”)] 20:21–21:6 (no reports showing

25 lost sales in particular stores because employees are not properly dressed); Chmielewski Dep. 199:4–

25 (belief not based on any report, customer complaints, or employee complaints); Fugarino Dep.

26 307:22–25 (has not personally seen studies regarding poor store experience and negative impact on

27

sales) & 309:10–14 (not aware of customer complaints about employees wearing headscarves); Moorefield Dep. 267:13–18 (does not know of any studies, reports, or analyses performed to

28 determine whether allowing model to wear a yarmulke had negative effect on sales).)

17

United States District Court Northern District of California

1 Policy component of the in-store experience and an increase or decrease in sales. (Clark Decl., Ex. H

2 [Deposition of James Roth (“Roth Dep.”)] 187:8–12.) In addition, Director of Sales Jessica

3 Passalacqua testified that Abercrombie does not measure in any report how much money is lost at a

4 store because employees are not properly dressed, nor does it focus on drawing a correlation between 5 the Look Policy and financials. (Passalacqua 6/25/09 Dep. 20:21–21:6 & 33:7–34:3.)

6

To the extent that employees were able to identify specific instances upon which their beliefs

7 are based, those instances are speculative and purely subjective in nature. Three examples are

8 noteworthy. First, Chmielewski testified that he took over the Palo Alto store, which had “Look

9 Policy issues,” but that with training on the policy, “sales increased dramatically over time.”

10 However, he also testified that the Look Policy was only “[o]ne of many” problems in the Palo Alto

11 store. (Chmielewski Dep. 60:25–61:13 & 201:5–16.) Second, executive Timothy McKinsey

12 identified the Valley Fair store as not doing a good job of protecting the brand and being “a concern

13 for a significant period of time.” In addition to having Look Policy issues and declining sales, though,

14 Valley Fair also had staffing issues where the employees were not outgoing. (Clark Decl., Ex. D 15 [Deposition of Timothy John McKinsey (“McKinsey Dep.”)] 41:10–44:18.)20 Third, Group Vice

16 President of Human Resources Deon Riley testified as follows when asked whether allowing the hijab

17 accommodations had any negative impact on sales: “I was going to say I’m unable to say whether

18 they have a negative impact on sales because I don’t study the impact on sales. [¶] However, our

19 goal is to provide the right customer service, or the right customer in-store experience, and our policy

20 is part of that. We’ve had very slow sales in the past two years, but I wouldn’t say that was just

21 because of hijabs. I’m sure the economy played a part, but that would just be purely speculative.”

22 (Mitchell Reply Decl., Ex. 22 [Deposition of Deon Riley (“Riley 3/17/11 Dep.”)] 236:7–19.) These

23

24

20 (See also Passalacqua 10/1/12 Dep. 262:9–263:24 (based on experience in Germany store where two employees wore too much eye makeup, believes that deviation or stores that don’t comply with

25 Look Policy will “typically” lead to other deviations); Fugarino Dep. 298:19–300:17 (basis of belief

regarding Look Policy exceptions damaging brand is “observations [and] . . . personal experiences

26 and conversations with regional managers,” who told Fugarino that cause for low sales was “either

27

they don’t have great associates working or those associates aren’t in Look Policy or there is another store experience element that’s impacting it. Those are sometimes the cause from their perspective.”)

28 (emphasis supplied).)

18

United States District Court Northern District of California

1 examples provide only a tenuous, potential connection between the Look Policy and undue hardship,

2 as “other” store issues contributed to declining sales and the evidence does not establish an actual 3 imposition or disruption as is required in the Ninth Circuit.21

4

Abercrombie must provide more than generalized subjective beliefs or assumptions that

5 deviations from the Look Policy negatively affect the sales or the brand. The evidence presented does

6 not raise a triable issue that a hardship, much less an undue hardship, would have resulted from

7 allowing Khan to wear her hijab, particularly where she had already been wearing the hijab on the job 8 for four months without any complaints, disruption, or a noticeable effect on sales. A reasonable jury

9 could not conclude that Abercrombie would be unduly burdened by allowing Khan to continuing

10 wearing her hijab as she had been prior to February 2010.

11

For the foregoing reasons, the Court GRANTS Plaintiffs’ Motion as to Abercrombie’s undue

12 hardship affirmative defense.

13

B. Commercial Speech Affirmative Defense

14

Notwithstanding the foregoing, Abercrombie has proffered an affirmative defense of

15 commercial free speech under the First Amendment as protection from liability. Plaintiffs request

16 summary judgment on this defense, contending: (i) the conduct at issue does not involve commercial

17 speech; and (ii) even if commercial speech exists, any restriction thereon is permissible under

18 Supreme Court precedent.

19

Commercial speech is that “which does ‘no more than propose a commercial transaction.’”

20 Valle Del Sol Inc. v. Whiting, 709 F.3d 808, 818 (9th Cir. 2013) (quoting Va. State Bd. of Pharmacy v.

21 Va. Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976)). The test for determining whether

22 commercial speech exists is set forth in Bolger v. Youngs Drug Products Corp. There, the Supreme

23 Court held that commercial speech can be found where the speech: (i) is an advertisement; (ii) refers

24

25 21 Plaintiffs have objected to the Declaration of James Roth (Clark Decl., Ex. A) at paragraphs 12–13

on the ground that Abercrombie refused to produce and eventually stipulated not to rely on sales

26 reports not produced in this action, but such reports would have allowed Plaintiffs to test the validity

27

of the statements Roth now makes to oppose summary judgment. The objections are DENIED as moot. The statements at issue do not change the outcome. They are merely ambiguous assertions of a

28 purported negative effect on sales and do not establish an undue hardship, as Roth provides no

quantification of said negative effect.

19

United States District Court Northern District of California

1 to a particular product; and (iii) the speaker has an economic motivation for the speech. 463 U.S. 60,

2 66–67 (1983) (holding that the “combination of all these characteristics” provided “strong support”

3 that the pamphlets at issue were properly characterized as commercial speech). Commercial speech is

4 entitled to constitutional protection, albeit a lesser degree of protection than is afforded to other forms

5 of speech. See Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York, 447 U.S.

6 557, 562–63 (1980).

7

Abercrombie uses a novel argument that the Bolger elements are met because the store

8 associates should be classified as “living advertisements” for the brand and therefore their appearance

9 is protected as commercial speech. As such, the “speech” promotes the product of the Hollister

10 brand’s California beach-inspired clothing and the use of store associates to advertise is economically

11 driven.

12

As a threshold matter, Plaintiffs counter that a PTI employee’s appearance is not commercial

13 speech protected by the First Amendment because no basis exists to consider them “living

14 advertisements.” PTI employees are essentially stockroom employees responsible for receiving

15 shipments, folding clothes, and placing clothes on the sales floor. They are not hired to serve as

16 “living advertisements” of Abercrombie’s brands, and thus their appearances cannot constitute the

17 same. Second, Abercrombie never identifies a particular product as being advertised. Employees are 18 not required to wear clothing sold in the stores, and are allowed to wear other clothing brands.22

19

The Court agrees there is no commercial speech. Abercrombie has not provided any authority

20 supporting its novel argument, nor can it meet Bolger under the facts of this case. Abercrombie

21 requires all employees, including PTIs such as Khan, to “represent the brand.” (See Fugarino Dep.

22 314:11–24 (“Models are expected to represent the brand to customers. And impacters may be,

23 depending upon the head count at the store, out on the floor often. If they are gonna be out on the

24 floor, then we would want them representing the brand in terms of their style and grooming.”).)

25

26 22 Even if a PTI employee’s appearance is somehow considered commercial speech, Plaintiffs argue

27

that commercial speech may be regulated by the government if certain requirements are met under Central Hudson. See 447 U.S. at 564; Valle Del Sol, 709 F.3d at 820–21. The Court need not reach

28 this issue.

20

United States District Court Northern District of California

1 However, “representing the brand” does not equate to being a “living advertisement,” particularly

2 where the employees’ responsibilities consist of ensuring shipments are complete, folding clothing,

3 and placing/replacing clothing on the floor. (Yoakum Dep. 59:9–24, 60:5–9; Khan Dep. 76:6–13,

4 77:5–8; Moorefield Dep. 34:16–23.) These duties are primarily performed in the stockroom. 5 Moreover, employees are not even wearing, necessarily, the products being sold.23 Thus, the PTI

6 employees’ appearance does not promote a particular product under Bolger nor does it “propose a

7 commercial transaction” (Valle Del Sol, 709 F.3d at 818 (quoting Va. State Bd. of Pharmacy, 425 U.S.

8 at 762)).

9

For these reasons, the Court GRANTS Plaintiffs’ Motion on Abercrombie’s affirmative

10 defense based on infringement upon its right to commercial free speech.

11

There being no viable defense, the Court hereby GRANTS Plaintiffs’ Motion as to liability on

12 Plaintiffs’ claims for failure to accommodate under Title VII and FEHA.

13 V.

DEFENDANTS’ CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

14

Having already addressed Abercrombie’s affirmative motion seeking dismissal based on a

15 purported failure to conciliate, supra, the only remaining issues in Abercrombie’s Cross-Motion relate

16 to Plaintiffs’ claims for injunctive relief and punitive damages.

17

A. Injunctive Relief

18

The EEOC seeks a permanent injunction enjoining practices which discriminate based on

19 religion, and an order that Abercrombie institute policies, practices, and programs providing equal

20 employment opportunities for employees of all religions and which “eradicate” effects of past

21 unlawful practices. Khan seeks all injunctive relief necessary to bring Defendants into compliance

22 with Title VII and FEHA.

23

24 23 Notably, Abercrombie created the role of the “impact” employee to allow Models to remain on the 25 sales floor to see, greet, and help customers. (Moorefield Dep. 50:8–51:14.) The distinction between
PTI employees and Models is further evidenced by the fact that during the interview process, the 26 styling and appearance of PTI candidates are not assessed. (Riley 3/14/12 Dep. 86:3–13.) On the 27 other hand, Models were required to be handsome and good-looking in order to “[r]epresent
[Abercrombie].” (Moorefield Dep. 98:18–21.) Notwithstanding the foregoing, the Court does not 28 opine on the use of the defense in the context of Models.

21

United States District Court Northern District of California

1

“Generally, a person subjected to employment discrimination is entitled to an injunction

2 against future discrimination, unless the employer proves it is unlikely to repeat the practice.”

3 E.E.O.C. v. Goodyear Aerospace Corp., 813 F.2d 1539, 1544 (9th Cir. 1987) (citations omitted).

4 “[V]oluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and

5 determine the case, i.e., does not make the case moot.” County of Los Angeles v. Davis, 440 U.S. 625,

6 631 (1979) (quoting United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953)). However, an

7 injunction may be unnecessary where there is no reasonable expectation that the alleged violation will 8 recur and “interim relief or events have completely and irrevocably eradicated the effects of the

9 alleged violation.” County of Los Angeles, 440 U.S. at 631. To obtain an injunction, the “necessary

10 determination is that there exists some cognizable danger of recurrent violation, something more than

11 the mere possibility which serves to keep the case alive.” W. T. Grant Co., 345 U.S. at 633.

12

Abercrombie argues Plaintiffs’ desired injunctive relief is inappropriate for three reasons.

13 First, Abercrombie offered Khan unconditional reinstatement with the accommodation of wearing the

14 hijab. Second, it is inappropriate to enter an injunction where there is no threat of future, recurring 15 violations. Abercrombie details significant policy changes it has made since February 2010.24 Third,

16 the injunction sought is itself overbroad in that it seeks nationwide relief beyond the scope of the

17 instant case and generically requires Abercrombie to comply with the law, enjoin discriminatory

18 practices, and implement policies that provide equal opportunities and eradicate effects of past

19 discrimination.

20

Plaintiffs respond that under Title VII, a court has the authority to order any “equitable relief

21 as the court deems appropriate” to enjoin an employer who has engaged in unlawful employment

22

23 24 First and foremost, Abercrombie changed its policies and procedures to ensure that religious

24

accommodations requests would be handled appropriately, which included issuing guidance and training employees to contact Human Resources for any conflict between the Look Policy and an

25 employee’s religious beliefs. (Fugarino Dep. 47:8–48:17.) Second, Abercrombie provided a

supplement to the Look Policy, which provided sketches of permissible manners of wearing a

26 headscarf and clearly recognizes a duty to interact with employees requesting accommodations. (Id.

27

48:18–49:4 & Ex. 19.) Third, Abercrombie provided thorough training relating to religious accommodations to management and HR personnel. (Yoakum Dep. 123:15–125:16.) Fourth, since

28 Khan’s termination, Abercrombie has permitted several employees to wear headscarves as religious

accommodations. (Id. 300:11–20.)

22

United States District Court Northern District of California

1 practices. 42 U.S.C. § 2000e-5(g)(1). They argue a material question of fact exists as to whether

2 (i) the wrongful conduct at issue in this case is reasonably likely to recur and (ii) Abercrombie’s

3 efforts thus far have completely eradicated the effects of the alleged violations. Specifically, Plaintiffs

4 contend there are insufficient assurances that violations will not recur where an employer “takes

5 curative actions only after it has been sued.” EEOC v. Goodyear Aerospace Corp., 813 F.2d at 1544.

6 Here, Abercrombie revised its Look Policy, but only after lawsuits with the EEOC. Thus, Plaintiffs

7 argue it is plausible that Abercrombie may resort to prior practices without an injunction. Plaintiffs

8 urge that Abercrombie’s repeated assertion of an undue hardship defense shows a need for injunctive

9 relief despite its changes in practices.

10

Finally, Plaintiffs argue that the requested injunctions do more than require Abercrombie to

11 comply with the law; they seek for Abercrombie to adopt policies, practices, or programs that will

12 eradicate the effects of past and present unlawful employment practices. See EEOC v. Goodyear

13 Aerospace Corp., 813 F.2d at 1544 (requested injunction was not superfluous because, among other

14 things, it would “subject [defendant] to the contempt power of the federal courts if it commits future

15 violations” and “reduce the chilling effect of [defendant’s] alleged retaliation”).

16

Based on the totality of the record, the Court finds that a triable issue exists as to whether the

17 recent changes in Abercrombie’s policies have completely and irrevocably eradicated the effects of

18 the alleged violation. County of Los Angeles, 440 U.S. at 631. Most notably, Abercrombie’s own

19 executives suggest that the changes were based not so much on the laws prohibiting its conduct, but

20 on “the distraction of all of the litigation[, which caused] tying up of resources to deal with the

21 litigation.” (Riley 3/17/11 Dep. 102:8–16.) Second, numerous Abercrombie witnesses continue to

22 believe that allowing employees to wear hijabs has an adverse impact on sales or hurts the

23 Abercrombie brand. (Passalacqua 10/1/12 Dep. 191:22–192:11 & 194:21–195:4; Fugarino Dep.

24 242:5–17; Yoakum Dep. 291:16–292:9 (still believes that exception for headscarf creates an undue

25 burden).) Finally, the record is not developed sufficiently to assess fully whether the requested relief

26 is, in fact, overbroad.

27

For these reasons, the Court DENIES Abercrombie’s Cross-Motion seeking summary judgment

28 on Plaintiffs’ claims for injunctive relief.

23

United States District Court Northern District of California

1

B. Punitive Damages

2

Plaintiffs seek punitive and exemplary damages in the Complaint and Complaint in

3 Intervention. Abercrombie contends that punitive damages are not warranted in this case.

4

Title VII explicitly provides for punitive damages when a defendant engages in a

5 discriminatory practice “with malice or with reckless indifference to the federally protected rights of

6 an aggrieved individual.” 42 U.S.C. § 1981a(b)(1). The standard for determining whether evidence is

7 sufficient to present a claim for punitive damages to a jury is governed by Kolstad v. Am. Dental

8 Ass’n, 527 U.S. 526 (1999). In Kolstad, the Supreme Court stated that an employer may be liable for 9 punitive damages where it “discriminate[s] in the face of a perceived risk that its actions will violate

10 federal law.” Id. at 536. Under this analysis, “in general, intentional discrimination is enough to 11 establish punitive damages liability,” but egregious conduct is not required. Passantino v. Johnson & 12 Johnson Consumer Prods., Inc., 212 F.3d 493, 515 (9th Cir. 2000). The Ninth Circuit has further 13 expanded on the instances in which intentional discrimination does not give rise to punitive damages 14 liability:

15

The [Kolstad] Court set forth three areas in which the factfinder could find intentional

16

discrimination but the defendant would nonetheless not be liable for punitive

damages. First, if the theory of discrimination advanced by the plaintiff was

17

sufficiently novel or poorly recognized, the employer could reasonably believe that its

action was legal even though discriminatory. Second, the employer could believe it

18

had a valid [bona fide occupational qualification] defense to its discriminatory

19

conduct. Third, in some (presumably rare) situations, the employer could actually be

unaware of Title VII's prohibition against discrimination. Common to all of these

20

exceptions is that they occur when the employer is aware of the specific

discriminatory conduct at issue, but nonetheless reasonably believes that conduct is

21

lawful. Under such circumstances, an employer may not be liable for punitive

22

damages.

23 Id. at 515 (citing Kolstad, 527 U.S. at 536–37). The Kolstad Court also held that “an employer may

24 not be vicariously liable for the discriminatory employment decisions of managerial agents where

25 these decisions are contrary to the employer’s good faith efforts to comply with Title VII.” Swinton v.

26 Potomac Corp., 270 F.3d 794, 810 (9th Cir. 2001) (quoting Kolstad, 527 U.S. at 545) (internal

27 quotations omitted).

28

24

United States District Court Northern District of California

1

Abercrombie argues punitive damages are inappropriate because it maintains anti-

2 discrimination and harassment policies, trains its managers on diversity and equal opportunities,

3 maintains a comprehensive process for addressing requests for religious and other accommodations—

4 all in good faith. If Yoakum discriminated against Khan, this was itself in violation of Abercrombie’s

5 policies and her own training. In addition, Abercrombie argues that the purposes behind punitive

6 damages (punishment and deterrence from future wrongdoing) are not served here. Abercrombie

7 emphasizes that it promptly repudiated Yoakum’s decision to terminate Khan by offering her 8 unconditional reinstatement with an accommodation and undertook measures to address the

9 circumstances that led to Khan’s termination, which render punitive damages unnecessary.

10

By contrast, Plaintiffs argue that triable issues exist with respect to the motivations for

11 Abercrombie’s conduct. First, evidence exists that Khan was fired in the face of a perceived and

12 obvious risk that Abercrombie’s actions violated federal law. Passantino, 212 F.3d at 515. Under

13 Kolstad, Plaintiffs argue that Yoakum, who served as Abercrombie’s Senior Human Resources

14 Manager, constitutes a managerial agent for punitive damage purposes and she was also responsible

15 for implementing anti-discrimination policies. Moreover, Plaintiffs argue that Yoakum consulted

16 Senior Legal Counsel Stacia Jones, Senior VP of Diversity Todd Corley, and Director of Sales Tony

17 Park regarding accommodating Khan, but she nonetheless failed to engage in any dialogue with Khan 18 to identify an accommodation and only offered her the option of removing it.25 (Reply at 13 (“Given

19 the evidence that at least four high level executives were involved in the decision to suspend and fire

20 [her], a jury could find that Defendants acted in reckless disregard of its Title VII obligations.”); see

21 Yoakum Dep. 65:21–68:14.)

22

Plaintiffs next argue that there is a triable issue of fact over whether Abercrombie implemented

23 its policies in good faith at the time of Khan’s termination, given that Yoakum was charged with

24

25 25 Although responding to arguments made by Plaintiffs in their Reply, Abercrombie affirmatively

argues for the first time in its Sur-Reply that punitive damages are not appropriate because there was

26 no wrongful action taken by a managerial agent. The Court notes that regardless of whether the

27

inclusion of this affirmative argument was proper in Sur-Reply, triable issues exist regarding the status of the various actors in Abercrombie’s corporate structure. See Passantino, 212 F.3d at 516

28 (“[W]hile the actors here were clearly managerial, it is not apparent to us exactly how senior they

were. . . . A determination regarding the status of the principal actors is crucial to the outcome . . .”).

25

United States District Court Northern District of California

1 implementing those policies and also committed the discriminatory act at issue. See Swinton, 270

2 F.3d at 810–11 (“[I]t is well established that it is insufficient for an employer simply to have in place

3 anti-harassment policies; it must also implement them.”). Plaintiffs assert that Abercrombie’s after-

4 the-fact offer of reinstatement and policy changes do not insulate it from liability for punitive

5 damages. Id. at 815 (“evidence of post-charge remediation would not automatically bar the

6 imposition of punitive damages” and a jury would be free to discount such evidence).

7

The Court finds that given the facts of this case, a jury could find that punitive and exemplary

8 damages are appropriate. Reasonable jurors could determine that by offering Khan one option—to

9 remove her hijab despite her religious beliefs—Abercrombie acted with malice, reckless indifference

10 or in the face of a perceived risk that its actions violated federal law. 42 U.S.C. § 1981a(b)(1);

11 Kolstad, 527 U.S. at 536. Triable issues also remain regarding whether Abercrombie implemented its

12 antidiscrimination policies in effect at the time of Khan’s termination in good faith. Finally, the

13 record is not fully developed regarding Abercrombie’s implementation of its newly-adopted policies,

14 such that the Court cannot determine whether the purposes of punishment or deterrence are served

15 with an award of punitive damages.

16

For these reasons, summary judgment on the claim for punitive damages is not warranted and

17 the Cross-Motion on that ground is DENIED.

18 VI. CONCLUSION

19

For the foregoing reasons, the Court GRANTS Plaintiffs’ Motion for Partial Summary

20 Judgment. Specifically, summary judgment is granted in favor of Plaintiffs on Abercrombie’s

21 (i) sixth affirmative defense (failure to exhaust administrative remedies), (ii) eighth affirmative

22 defense (undue hardship), and tenth affirmative defense (infringement upon Abercrombie’s right to

23 commercial free speech). Consequently, there being no viable affirmative defense, summary

24 judgment is granted in favor of Plaintiffs as to liability on their claims that Abercrombie failed to

25 accommodate Khan’s religious beliefs.

26

Further, the Court DENIES Defendants’ Cross-Motion for Partial Summary Judgment in its

27 entirety and will not dismiss the action for failure to conciliate or dismiss Plaintiffs’ requested relief

28 for an injunction or punitive damages.

26

United States District Court Northern District of California

1

This Order terminates Dkt. Nos. 97 & 103.

2

IT IS SO ORDERED.

3
Dated: September 3, 2013
4
5

______________________________________ YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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 Case5:11-cv-03162-EJD Document170 Filed09/19/13 Page1 of 11

1 (Counsel Listed on Next Page)

2

3

4

5

6

7 UNITED STATES DISTRICT COURT
8 NORTHERN DISTRICT OF CALIFORNIA
9

10 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

11 Pl
12 and

aintiff,

Case No.: CV 11-3162 YGR Case No.: CV 10-03911- EJD

13 UMME-HANI KHAN,

14

Plaintiff-Intervenor,

[PROPOSED] STIPULATED JUDGMENT AND DECREE

15

vs.

16 ABERCROMBIE & FITCH STORES, INC. d/b/a HOLLISTER CO.,
17 HOLLISTER CO. CALIFORNIA, LLC,

[Hon. Edward J. Davila]

18

Defendants.

19 ___________________________________

20 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

21

Pl

aintiff,

22 vs.

23 ABERCROMBIE & FITCH STORES,
24 INC. d/b/a ABERCROMBIE KIDS,

25

Defendant.

26

27

28

STIPULATED JUDGMENT AND DECREE

Case5:11-cv-03162-EJD Document170 Filed09/19/13 Page2 of 11
1 William R. Tamayo, SBN 084965 (CA) Jonathan T. Peck, SBN 12303 (VA)
2 Marcia L. Mitchell, SBN 18122 (WA) Sirithon Thanasombat, SBN 270201 (CA)
3 U.S. EEOC, San Francisco District Office 350 The Embarcadero, Suite 500
4 San Francisco, CA 94105 Telephone No. (415) 625-5651
5 Fax No. (415) 625-5657 Marcia.Mitchell@eeoc.gov; Sirithon.Thanansombat@eeoc.gov
6 Attorneys for Plaintiff EEOC
7 Zahra Billoo, State Bar No. 267634
8 Rachel Roberts, State Bar No. 282864 COUNCIL ON AMERICAN-ISLAMIC
9 RELATIONS, CALIFORNIA (CAIR-CA) 3000 Scott Blvd., Suite 101
10 Santa Clara, CA 95054 Telephone: (408) 986-9874
11 Facsimile: (408) 986-9875 Email: zbilloo@cair.com
12 Christopher Ho, State Bar No. 129845
13 Marsha J. Chien, State Bar No. 275238 The LEGAL AID SOCIETY – EMPLOYMENT LAW CENTER
14 180 Montgomery Street, Suite 600 San Francisco, CA 94104
15 Telephone: (415) 864-8848 Facsimile: (415) 593-0096
16 Email: cho@las-elc.org; mchien@las-elc.org
17 Attorneys for Plaintiff-Intervenor UMME-HANI KHAN
18 Douglas E. Dexter, SBN 115868 Diego F. Acevedo, SBN 244693
19 FARELLA BRAUN + MARTEL LLP 235 Montgomery Street, 17th Floor
20 San Francisco, CA 94104 Telephone: (415) 954-4400
21 Facsimile: (415) 954-4480 E-mail: ddexter@fbm.com
22 Mark A. Knueve (Ohio Bar No. 0067074) Admitted Pro Hac Vice
23 Daniel J. Clark (Ohio Bar No. 0075125) Admitted Pro Hac Vice VORYS, SATER, SEYMOUR AND PEASE LLP
24 52 East Gay Street, P.O. Box 1008 Columbus, Ohio 43216-1008
25 Telephone: (614) 464-6387 Facsimile: (614) 719-4808
26 E-mail: maknueve@vorys.com , djclark@vorys.com
27 Attorneys for Defendants ABERCROMBIE & FITCH STORES, INC., dba HOLLISTER CO., HOLLISTER CO. CALIFORNIA, LLC
28
STIPULATED JUDGMENT AND DECREE

Case5:11-cv-03162-EJD Document170 Filed09/19/13 Page3 of 11

1

Plaintiff U.S. Equal Employment Opportunity Commission (“EEOC”) and Plaintiff-

2 Intervenor Umme-Hani Khan (collectively, Plaintiffs) filed these actions under Title VII of the Civil

3 Rights Act of 1964 and the California Fair Employment and Housing Act (“FEHA”), alleging that

4 Defendants Abercrombie & Fitch Stores, Inc. d/b/a Hollister Co., and Hollister Co. California, LLC

5 (“Defendants”) violated Title VII and FEHA by failing to reasonably accommodate the religious

6 beliefs of Halla Banafa and Umme Hani Khan.

7

On September 3, 2013, in EEOC v. Abercrombie (CV 11-3162) the court granted plaintiff’s

8 motion for partial summary judgment as to liability on their claims that Abercrombie failed to

9 accommodate Khan’s religious beliefs under Title VII and FEHA.

10

For purposes of settlement and compromise only, Plaintiffs and Defendants (the “Parties”)

11 have advised the Court that they wish to resolve the instant controversies without the expense, delay,

12 and burden of further litigation.

13

The parties acknowledge that the settlement of these lawsuits and entry of this agreement,

14 with Defendants’ consent, is not and shall not be construed as an admission that Defendants have

15 violated the law. This agreement shall not be used as evidence of liability or non-liability for

16 unlawful discrimination, or for any other purpose, in any proceeding other than one relating to the

17 enforcement of the agreement.

18

THEREFORE, it is the finding of this Court, made on the pleadings, the record as a whole,

19 and upon agreement of the parties, that: (i) this Court has jurisdiction over the parties to and the

20 subject matter of these actions; (ii) the purposes of Title VII will be furthered by the implementation

21 of this Decree; (iii) this Decree is intended to and does resolve all matters in controversy in these

22 lawsuits between the Parties; and (iv) the terms of this Decree constitute a fair and equitable

23 settlement of all issues in these lawsuits.

24

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED as follows:

25 I. General Provisions

26

1. Defendants shall not discriminate against any applicant or employee who makes

27 Defendants aware of a need for religious accommodation by failing to reasonably accommodate

28 such applicant or employee’s request for religious accommodation. Defendants shall grant requests

[PROPOSED] STIPULATED JUDGMENT AND DECREE

1

Case5:11-cv-03162-EJD Document170 Filed09/19/13 Page4 of 11

1 for religious accommodation unless Defendants are unable to reasonably accommodate the need or

2 request for religious observation or practice without undue hardship on the operation of its business.

3

2. Defendants shall not discriminate against any employee or applicant because such

4 employee or applicant has opposed any practices alleged in these lawsuits to be unlawful under Title

5 VII or FEHA, has participated in an investigation related to these lawsuits, has participated in these

6 lawsuits, and/or has benefited in any way as a result of this Stipulated Judgment and Decree.

7 II. Relief Specific to Umme-Hani Khan

8

3. Defendants agree to pay in settlement of all claims alleged against it by the Plaintiffs

9 on behalf of Umme-Hani Khan a total of $48,000 (forty-eight thousand dollars and no cents), such

10 sum representing backpay and compensatory damages. One check, representing backpay, shall be

11 made payable to Ms. Khan in the amount of $120, less any deductions for the employee’s portion of

12 FICA and applicable federal, state and local tax withholdings. A separate check, representing

13 compensatory damages, shall be made payable to Ms. Khan in the amount of $47,880 and shall be

14 designated as “other income” on IRS Form 1099. The checks shall be made payable to Umme-Hani

15 Khan and shall be delivered to her by means of certified mail, return receipt requested within fifteen

16 (15) days of the entry of this Decree. Defendants shall provide counsel for Plaintiffs with copies of

17 the checks within fifteen (15) days of mailing.

18

4. Defendants shall provide Umme-Hani Khan with a statement of regret for her

19 personal use only for the actions of its personnel that led to her filing her EEOC charge of

20 discrimination in this matter.

21

5. Defendants shall provide Umme-Hani Khan with a letter of reference within fifteen

22 (15) days of entry of this Decree.

23

6. Defendants certify that Umme-Hani Khan’s personnel file does not contain any

24 references to her request for religious accommodation, EEOC charge, or the instant litigation.

25

7. Defendants shall change Ms. Khan’s official reason for termination, as reflected in

26 her personnel file, to “quit.”

27

8. The Parties agree that attorneys’ fees and costs for Umme-Hani Khan will be

28 governed by a separate, confidential agreement entered into as a condition of this settlement.

[PROPOSED] STIPULATED JUDGMENT AND DECREE

2

Case5:11-cv-03162-EJD Document170 Filed09/19/13 Page5 of 11

1 III. Relief Specific to Halla Banafa

2

9. Defendants agree to pay in settlement of all claims alleged against it by the EEOC on

3 behalf of Halla Banafa a total of $23,000 (twenty-three thousand dollars and no cents), such sum

4 representing backpay and compensatory damages. One check, representing backpay, shall be made

5 payable to Ms. Banafa in the amount of $2,500 (two thousand five hundred dollars and no cents),

6 less any deductions for the employee’s portion of FICA and applicable federal, state and local tax

7 withholdings. A separate check, representing compensatory damages, shall be made payable to Ms.

8 Banafa in the amount of $20,500 (twenty thousand five hundred dollars and no cents) and shall be

9 designated as “other income” on IRS Form 1099. The checks shall be made payable to Halla Banafa

10 and shall be delivered to her by means of certified mail, return receipt requested within fifteen (15)

11 days of the entry of this Decree. Defendants shall provide counsel for EEOC with copies of the

12 checks within fifteen (15) days of mailing.

13 IV. Injunctive Relief

14

10. The parties acknowledge that the Defendants have adopted certain religious

15 discrimination policies and procedures, and agree to maintain those policies during the term of this

16 agreement. Defendants further agree to revise and supplement existing policies as follows:

17

11. Defendants shall adhere to, throughout the duration of the Decree, the revised

18 Accommodation Policy (“Policy”) attached hereto as Exhibit A. The revised policy includes

19 creation of a process through which an applicant or employee may appeal the denial of a request for

20 religious accommodation to the Look Policy to Defendants’ Director of Human Resources U.S., or

21 other individual of equivalent rank and function, for further review and determination of whether all

22 feasible options for accommodation have been explored. The applicant or employee shall receive

23 notice of the appeal process at the time the requested accommodation is denied, and the Director

24 shall review and decide the appeal within 14 business days of its receipt. Current employees will be

25 permitted to continue to work with the requested accommodation during the appeals process.

26

12. The Policy shall be contained in the Store Associate Handbook in whatever forms it is

27 made available to Defendants’ employees, and a reference to the Policy shall appear in the table of

28 contents within sixty (60) days of the entry of this Stipulated Judgment and Decree. The Handbook’s

[PROPOSED] STIPULATED JUDGMENT AND DECREE

3

Case5:11-cv-03162-EJD Document170 Filed09/19/13 Page6 of 11

1 discussion of the Look Policy shall include a reference to the Accommodation Policy, specifically

2 “for associates who may need accommodations from the Look Policy for religious or medical

3 reasons, please consult the Accommodation Policy in this handbook.”

4

13. Upon receiving a request for an accommodation of a sincerely-held religious belief

5 under the Policy, Defendants shall continue to consider the request, engage in an interactive process,

6 and offer a reasonable accommodation unless doing so would cause an undue hardship on the

7 operation of its business.

8

14. Defendants’ Specialty Group Interview Guide shall be revised to read as follows: “If

9 you have any questions or concerns about the Look Policy, or believe that you may require an

10 exception to Look Policy, please see me after this interview.” Within sixty (60) days of entry of this

11 Stipulated Judgment and Decree, Defendants will also revise the Kiosk and On-line application

12 process to inform applicants about Defendants’ Accommodation Policy.

13

15. Within sixty (60) days of the entry of this Stipulated Judgment and Decree,

14 Defendants shall: (1) require all current District Managers, Store Managers, and Assistant Store

15 Managers and Managers in Training to review the Policy; (2) inform them that employees may be

16 permitted to wear headscarves as set forth in the Policy; and (3) inform them that any request to be

17 allowed to wear a headscarf as a religious accommodation must be forwarded to the Human

18 Resources Department for consideration. In addition, Defendants shall include in all yearly training

19 sweeps conducted during the duration of the decree scenarios related to accommodations for

20 religious head coverings.

21

a. Within sixty (60) days of the entry of this Decree, Defendants shall adopt

22 systems to ensure uniform application of the Look Policy, including the institution of regular, but no

23 less than quarterly reviews, by the Director of Human Resources for Stores, U.S. or other individual

24 of equivalent rank and function, of all Look Policy religious accommodation decisions made in each

25 period to ensure that they are being handled consistently.

26 V. Posting of Required Notices

27

16. Within sixty (60) days of the Court’s entry of the Stipulated Judgment and Decree,

28 Defendants shall post at all stores owned by Defendants in the Hillsdale Shopping Center and

[PROPOSED] STIPULATED JUDGMENT AND DECREE

4

Case5:11-cv-03162-EJD Document170 Filed09/19/13 Page7 of 11

1 Milpitas Great Mall the notice attached hereto as Exhibit B. Such notice shall be posted on the

2 employee bulletin board or other similar conspicuous location throughout the duration of the decree.

3 VI. Reporting and Monitoring

4

17. Within ninety (90) days of the entry of the Stipulated Judgment and Decree,

5 Defendants shall provide Plaintiffs’ counsel with written notice of their compliance with the

6 requirements set forth in Sections II through V.

7

18. During the term of the Stipulated Judgment and Decree, Defendants shall submit a

8 report every six (6) months to Plaintiffs’ counsel. Such reports shall include:

9

a. a description of any employee or applicant request to be allowed to wear a

10

headscarf as a religious accommodation during the foregoing six (6) months;

11

b. the job held by or applied for by the requestor;

12

c. the name and address of the store where the request was made;

13

d. a confirmation that the request was granted; or, if the request was denied, the

14

reason for the denial;

15

e. if the request was denied, Defendants will provide the reason for the denial to

16

counsel for the EEOC. If the EEOC needs additional information regarding the denial,

17

counsel for the EEOC will contact Defendants’ counsel within thirty (30) days to discuss the

18

denial. The EEOC shall be entitled to request and receive contact information for the

19

applicant or associate whose accommodation request was denied if, after the meeting

20

between counsel, the EEOC believes it needs to communicate directly with the applicant or

21

associate; and

22

f. the report shall also include a description of any changes in Defendants’

23

policies or practices related to religious accommodation governed by this Decree.

24 VII. Term and Effect of Decree

25

19. By entering into this Stipulated Judgment and Decree, the Parties do not intend to

26 resolve any charges of discrimination other than the charges filed by Umme-Hani Khan or Halla

27 Banafa that created the jurisdictional foundation for the Complaints filed in those cases.

28

20. This Decree shall be binding upon the Parties, their successors and assigns.

[PROPOSED] STIPULATED JUDGMENT AND DECREE

5

Case5:11-cv-03162-EJD Document170 Filed09/19/13 Page8 of 11

1

21. This Decree shall be in force for a period of three (3) years. During that period of

2 time, the Court shall retain jurisdiction of this case for purposes of enforcement of the Stipulated

3 Judgment and Decree and the separate, confidential agreement described in paragraph 8 herein. The

4 term of the Stipulated Judgment and Decree can be extended only upon a showing that Defendants

5 have substantially failed to comply with a material term thereof after having been given notice of

6 any such failure to comply, and a reasonable opportunity to correct any such non-compliance.

7 Dated: September 18, 2013
8
9

//s// Marcia L. Mitchell Marcia Mitchell Sirithon Thanasombat Attorneys for Plaintiff EEOC

10 Dated: September 18, 2013
11
12

//s// Christopher Ho Christopher Ho Marsha Chien

13

//s// Zahra Billoo

Zahra Billoo

14

Rachel Roberts

AttorneyS for Plaintiff-Intervenor KHAN 15

16 Dated: September 18, 2013 17

//s// Mark A. Knueve Mark A. Knueve Attorney for Defendants

18

The Order to Show Cause issued September 12, 2013, is DISCHARGED

and the hearing VACATED. A copy of this order shall be filed in both case

19 IT IS SO ORDERED: numbers and the clerk shall close both files.

20

21

HON. EDWARD J. DAVILA

U.S. District Court Judge 22

23

24

25

26

27

28

[PROPOSED] STIPULATED JUDGMENT AND DECREE

6

Case5:11-cv-03162-EJD Document170 Filed09/19/13 Page9 of 11
Exhibit A
Accommodation Policy
There may be occasions when an associate or applicant needs an accommodation to complete the essential functions of his or her job. The Company will accommodate associates and applicants who need such an accommodation for a disability or sincerely-held religious belief unless an accommodation creates an undue hardship on the business.
An applicant or associate who desires an accommodation for a disability or sincerely-held religious belief must make the Company aware of the need for an accommodation. To make a request for an accommodation, an associate must inform their District Manager of their request. When a request is made to a District Manager, the District Manager must contact Human Resources by calling (866) 367-1892. An applicant must inform his or her interviewing manager. When a request is made to an interviewing manager, the manager must contact Human Resources by calling (866) 367-1892.
A representative from the Human Resources department will contact the applicant or associate to discuss the request for accommodation, to explore options, and to determine whether an accommodation is possible without creating an undue hardship. The applicant or associate must cooperate with the Company’s attempts to accommodate the request. In accordance with federal and state law, the Company will accommodate disabilities and the sincerely-held religious beliefs of its associates unless an accommodation would create an undue hardship.
If the associate wishes to appeal the denial of an accommodation, the associate may contact the Director of Human Resources, U.S. by calling (866) 367-1892.

Case5:11-cv-03162-EJD Document170 Filed09/19/13 Page10 of 11
EXHIBIT B [Company letterhead]
IMPORTANT NOTICE TO ALL EMPLOYEES CONCERNING RELIGIOUS ACCOMMODATIONS
This notice is being posted pursuant to a Stipulated Judgment and Decree entered to resolve a claim of religious discrimination in the case of Equal Employment Opportunity Commission v. Abercrombie & Fitch, Stores, Inc., d.b.a. Hollister Co. et al, Case No. 11-CV-3162-YGR and EEOC v. Abercrombie & Fitch Stores, Inc. dba abercrombie kids, Case No. 10-cv-3911-EJD on file in the United States District Court for the Northern District of California.
Title VII of the Civil Rights Act of 1964 requires employers to grant an employee’s request for religious accommodation in the workplace, unless the employer shows that it is unable to accommodate the request without undue hardship on its business. The California Fair Employment and Housing Act (“FEHA”) gives employees similar legal rights.
In accordance with federal and state law, Abercrombie & Fitch will accommodate the sincerely-held religious beliefs of its applicants and associates, including granting exceptions to the Look Policy, as applicable unless doing so would create an undue hardship on its business. For example, under appropriate circumstances, Abercrombie& Fitch will permit employees to wear a headscarf (“hijab”) at work in accordance with their sincerely-held religious beliefs.
An applicant or associate who desires an accommodation for a disability or sincerely-held religious belief must make the Company aware of the need for an accommodation. To make a request for an accommodation, an associate must inform their District Manager of their request. A Human Resources representative will contact the applicant or associate to discuss the request for reasonable accommodation, to explore options and to determine whether an accommodation is possible. If your request for accommodation is denied, you may appeal the decision to the Director of Human Resources for further review. You will receive a decision on the appeal within fourteen (14) days. Current employees will be permitted to continue to work with the requested accommodation during the appeals process.
Abercrombie & Fitch supports and will comply with Title VII and FEHA in all respects and will make every effort to accommodate requests relating to religious observance and/or practice, except for those instances where Abercrombie is unable to accommodate the request without undue hardship on the conduct of its business.
Employees also are free to make inquiries or complaints about Abercrombie’s failure to accommodate a request relating to religious observance and/or practice to the U.S. Equal Employment Opportunity Commission, San Francisco District Office {Address and phone number to be provided by EEOC by November 1, 2013}
Date:

Case5:11-cv-03162-EJD Document170 Filed09/19/13 Page11 of 11

{title

of Abercrombie official}

Under the terms of the Consent Decree, this notices must remain posted until {date}

 
 Case: 5:11-cv-03162-EJD As of: 02/09/2014 12:13 PM PST 1 of 19
ADRMOP,CLOSED,E−Filing,REFSET−DMR,RELATE
U.S. District Court California Northern District (San Jose) CIVIL DOCKET FOR CASE #: 5:11−cv−03162−EJD

U.S. Equal Employment Opportunity Commission v. Abercrombie &Fitch Stores, Inc. Assigned to: Hon. Edward J. Davila Referred to: Magistrate Judge Howard R. Lloyd
Magistrate Judge Donna M. Ryu (Settlement)
Relate Case Case: 5:10−cv−03911−EJD
Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 06/27/2011 Date Terminated: 09/19/2013 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

U.S. Equal Employment Opportunity Commission

represented by Denise M. Hulett Legal Aid Society Employment Law Center 180 Montgomery Street, Suite 600 San Francisco, CA 94104−4244 415−864−8848 Fax: 415−593−0096 Email: dhulett@las−elc.org TERMINATED: 01/22/2014 ATTORNEY TO BE NOTICED

Jonathan T. Peck U.S. EEOC 450 Golden Gate Ave POB 36025 San Francisco, CA 94102 415−522−3425 Fax: 415−625−5657 Email: Jonathan.Peck@eeoc.gov ATTORNEY TO BE NOTICED

Marcia L. Mitchell U.S. Equal Employment Opportunity Comm'n 350 The Embarcadero Suite 500 San Francisco, CA 94105−1687 (415) 625−5651 Fax: 415−625−5657 Email: marcia.mitchell@eeoc.gov ATTORNEY TO BE NOTICED

Marsha Jade Chien Legal Aid Society−Employment Law Center 180 Montgomery Street Suite 600 San Francisco, CA 94104 United Sta 415−864−8848 Email: mchien@las−elc.org ATTORNEY TO BE NOTICED

Sirithon Thanasombat US Equal Employment Opportunity Commission 450 Golden Gate Ave POB 36025 San Francisco, CA 94102

Case: 5:11-cv-03162-EJD As of: 02/09/2014 12:13 PM PST 2 of 19
415−522−3425 Email: sirithon.thanasombat@eeoc.gov ATTORNEY TO BE NOTICED
William Robert Tamayo U.S. EEOC 450 Golden Gate Ave POB 36025 San Francisco, CA 94102 415−522−3425 Fax: 415−625−5657 Email: william.tamayo@eeoc.gov ATTORNEY TO BE NOTICED

V. Intervenor Pla Umme−Hani Khan

represented by Araceli Martinez−Olguin Legal Aid Society − Employment Law Center 180 Montgomery St, Suite 600 San Francisco, CA 94104 415−864−8848 Fax: 415−593−0096 Email: araceli@las−elc.org TERMINATED: 05/31/2013
Christopher Ho Legal Aid Society−Employment Law Center 180 Montgomery Street Suite 600 San Francisco, CA 94104 415−864−8848 Fax: 415−593−0096 Email: cho@las−elc.org ATTORNEY TO BE NOTICED
Marsha Jade Chien (See above for address) ATTORNEY TO BE NOTICED
Zahra Aslam Billoo CAIR SFBA 3000 Scott Blvd Ste 101 Santa Clara, CA 95054 408−986−9874 Email: zbilloo@cair.com ATTORNEY TO BE NOTICED

V.
Defendant
Abercrombie &Fitch Stores, Inc. doing business as Hollister, Hollister Co. California, LLC

represented by Amarra Autumn Lee Farella Braun + Martel LLP 235 Montgomery Street 17th Floor San Francisco, CA 94104 415−954−4400 Fax: 415−954−4480 LEAD ATTORNEY

Case: 5:11-cv-03162-EJD As of: 02/09/2014 12:13 PM PST 3 of 19

ATTORNEY TO BE NOTICED

Diego F. Acevedo Farella Braun &Martel LLP 235 Montgomery Street, 30th Floor San Francisco, CA 94104 (415) 954−4401 Fax: (415) 954−4480 Email: dacevedo@fbm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Clark Vorys, Sater, Seymour &Pease 52 East Gay Street Columbus, OH 43216−1008 PRO HAC VICE ATTORNEY TO BE NOTICED

Daniel John Clark Vorys, Sater, Seymour and Pease LLP 52 East Gay St. P.O. Box 1008 Columbus, OH 43216 614−464−6436 Fax: 614−719−4650 Email: djclark@vorys.com ATTORNEY TO BE NOTICED

Douglas Evans Dexter Farella Braun + Martel LLP 235 Montgomery Street 17th Floor San Francisco, CA 94104 415/954−4409 Fax: 415−954−4480 Email: ddexter@fbm.com ATTORNEY TO BE NOTICED

Mark Arnold Knueve Vorys, Sater, Seymour and Pease LLP 52 E. Gay Street PO Box 1008 Columbus, OH 43216−1008 (614) 464−6387 Fax: 614−719−4808 Email: maknueve@vorys.com ATTORNEY TO BE NOTICED

Samantha Alyson Stilp Vorys, Sater, Seymour and Pease 52 East Gay Street Columbus, OH 43216−1008 (614) 464−8259 Fax: Email: sastilp@vorys.com PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant Hollister Co. California, LLC

represented by Amarra Autumn Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 5:11-cv-03162-EJD As of: 02/09/2014 12:13 PM PST 4 of 19

Miscellaneous
Council on American−Islamic Relations, California (CAIR−CA)

Diego F. Acevedo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel John Clark (See above for address) ATTORNEY TO BE NOTICED
Douglas Evans Dexter (See above for address) ATTORNEY TO BE NOTICED
Samantha Alyson Stilp Vorys, Sater, Seymour and Pease 52 East Gay Street Columbus, OH 43216−1008 (614) 464−8259 Email: sastilp@vorys.com ATTORNEY TO BE NOTICED
represented by Aliah A Abdo 12 South First St. Ste 600 San Jose, CA 95113 408−294−0404 Email: aliah@eflawfirm.com ATTORNEY TO BE NOTICED
Marsha Jade Chien (See above for address) ATTORNEY TO BE NOTICED

Date Filed 06/27/2011
06/27/2011 06/27/2011 06/27/2011
06/27/2011
06/27/2011
06/27/2011

# Docket Text
1 COMPLAINT against Abercombie &Fitch Stores, Inc. filed by U.S. Equal Employment Opportunity Commission. (vlk, COURT STAFF) (Filed on 6/27/2011) (Additional attachment(s) added on 6/29/2011: # 1 Civil Cover Sheet) (vlkS, COURT STAFF). (Entered: 06/28/2011)
2 ADR SCHEDULING ORDER: Case Management Statement due by 10/12/2011. Case Management Conference set for 10/19/2011 01:30 PM. (Attachments: # 1 Standing Order)(vlk, COURT STAFF) (Filed on 6/27/2011) (Entered: 06/28/2011)
3 Summons Issued as to Abercombie &Fitch Stores, Inc.. (vlk, COURT STAFF) (Filed on 6/27/2011) (vlkS, COURT STAFF). (Entered: 06/28/2011)
4 MOTION to Intervene filed by Umme−Hani Khan. Responses due by 7/11/2011. Replies due by 7/18/2011. (vlk, COURT STAFF) (Filed on 6/27/2011) Modified on 6/28/2011 (vlk, COURT STAFF). (vlk, COURT STAFF). (Entered: 06/28/2011)
5 MEMORANDUM in Support re 4 MOTION to Intervene filed by Umme−Hani Khan. (Related document(s) 4 ) (vlk, COURT STAFF) (Filed on 6/27/2011) Modified on 6/28/2011 (vlk, COURT STAFF). (vlk, COURT STAFF). (Entered: 06/28/2011)
6 Declaration of Araceli Martinez−Olguin in Support of 4 MOTION to Intervene filed by U.S. Equal Employment Opportunity Commission, Umme−Hani Khan. (Related document(s) 4 ) (vlk, COURT STAFF) (Filed on 6/27/2011) Modified on 6/28/2011 (vlk, COURT STAFF). (vlk, COURT STAFF). (Entered: 06/28/2011)
7 Proposed Order re 4 MOTION to Intervene by U.S. Equal Employment Opportunity Commission. (vlk, COURT STAFF) (Filed on 6/27/2011) (Entered:

Case: 5:11-cv-03162-EJD As of: 02/09/2014 12:13 PM PST 5 of 19

06/27/2011 06/28/2011 06/28/2011 07/05/2011 07/05/2011 07/27/2011 07/27/2011 07/27/2011 07/28/2011 07/29/2011 08/03/2011 08/08/2011
08/08/2011 08/19/2011 08/23/2011 08/24/2011

06/28/2011)
8 CERTIFICATE OF SERVICE by Umme−Hani Khan re 5 Memorandum in Support, 7 Proposed Order, 4 MOTION to Intervene, 6 Declaration in Support, (vlk, COURT STAFF) (Filed on 6/27/2011) (vlk, COURT STAFF). (Entered: 06/28/2011)
9 FILED IN WRONG CASE. PLEASE DISREGARD.CLERK'S NOTICE re completion of In Forma Pauperis affidavit or payment of filing fee due within 30 days. (vlk, COURT STAFF) (Filed on 6/28/2011) Modified on 6/28/2011 (vlk, COURT STAFF). (Entered: 06/28/2011)
10 NOTICE by U.S. Equal Employment Opportunity Commission of Unavailability of Counsel (Mitchell, Marcia) (Filed on 6/28/2011) (Entered: 06/28/2011)
11 CONSENT to Proceed Before a US Magistrate Judge by Umme−Hani Khan.. (Attachments: # 1 Affidavit Proof of Service for Consent to Proceed Before a U.S. Magistrate Judge)(Martinez−Olguin, Araceli) (Filed on 7/5/2011) (Entered: 07/05/2011)
12 CONSENT to Proceed Before a US Magistrate Judge by U.S. Equal Employment Opportunity Commission.. (Attachments: # 1 Certificate of Service)(Peck, Jonathan) (Filed on 7/5/2011) (Entered: 07/05/2011)
13 CLERK'S NOTICE TO DEFENDANT RE: Consent or Declination to Proceed before a U.S. Magistrate Judge with deadline set. (ig, COURT STAFF) (Filed on 7/27/2011) (Entered: 07/27/2011)
14 CERTIFICATE OF SERVICE TO DEFENDANT of 13 Clerk's Notice re: Consent or Declination to proceed before a U.S. Magistrate Judge (ig, COURT STAFF) (Filed on 7/27/2011) (Entered: 07/27/2011)
15 Declination to Proceed Before a U.S. Magistrate Judge by Abercombie &Fitch Stores, Inc.. (Lee, Amarra) (Filed on 7/27/2011) (Entered: 07/27/2011)
16 CLERK'S NOTICE of Impending Reassignment to U.S. District Judge (vlk, COURT STAFF) (Filed on 7/28/2011) (Entered: 07/28/2011)
17 ORDER REASSIGNING CASE. Case reassigned to Judge Phyllis J. Hamilton for all further proceedings. Magistrate Judge Donna M. Ryu no longer assigned to the case. Signed by Executive Committee on 7/29/11. (kk, COURT STAFF) (Filed on 7/29/2011) (Entered: 07/29/2011)
18 ORDER SETTING CASE MANAGEMENT CONFERENCE. Joint Case Management Statement due by 11/10/2011. Initial Case Management Conference set for 11/17/2011 02:00 PM. Signed by Judge Phyllis J. Hamilton on 8/3/11. (nah, COURT STAFF) (Filed on 8/3/2011) (Entered: 08/03/2011)
19 Re−Notice of re 4 Motion to Intervene filed by Umme−Hani Khan. Motion Hearing set for 9/14/2011 09:00 AM in Courtroom 3, 3rd Floor, Oakland before Hon. Phyllis J. Hamilton. Responses due by 8/22/2011. Replies due by 8/29/2011. (Ho, Christopher) (Filed on 8/8/2011) Modified on 8/9/2011 (vlk, COURT STAFF). (Entered: 08/08/2011)
Set/Reset Deadlines as to 4 MOTION to Intervene. Motion Hearing set for 9/14/2011 09:00 AM before Hon. Phyllis J. Hamilton. (vlk, COURT STAFF) (Filed on 8/8/2011) (Entered: 08/09/2011)
20 Statement of Non−Opposition re 4 MOTION to Intervene filed byU.S. Equal Employment Opportunity Commission. (Related document(s) 4 ) (Mitchell, Marcia) (Filed on 8/19/2011) (Entered: 08/19/2011)
26 ORDER Cases C10−3911 EJD and C11−3162 PJH are NOT related within the meaning of Rule 3−12(a).. Signed by Judge Edward J. Davila on 8/23/11. (cv, COURT STAFF) (Filed on 8/23/2011) (Entered: 08/30/2011)
21 MOTION of Samantha A. Stilp for leave to appear in Pro Hac Vice ( Filing fee $ 275, receipt number 4611007494.) filed by Abercombie &Fitch Stores, Inc.. (Attachments: # 1 Proposed Order)(vlk, COURT STAFF) (Filed on 8/24/2011)

Case: 5:11-cv-03162-EJD As of: 02/09/2014 12:13 PM PST 6 of 19

08/24/2011
08/26/2011 08/29/2011 08/29/2011 09/08/2011 09/08/2011
09/09/2011
09/13/2011 09/30/2011 11/03/2011
11/07/2011 11/09/2011 11/09/2011
11/09/2011 11/15/2011
11/16/2011 11/17/2011

(Entered: 08/25/2011)
22 MOTION of Daniel J. Clark for leave to appear in Pro Hac Vice ( Filing fee $ 275, receipt number 44611007494.) filed by Abercombie &Fitch Stores, Inc.. (Attachments: # 1 Proposed Order)(vlk, COURT STAFF) (Filed on 8/24/2011) (Entered: 08/25/2011)
23 ANSWER to Complaint byAbercombie &Fitch Stores, Inc., Hollister Co. California, LLC. (Lee, Amarra) (Filed on 8/26/2011) (Entered: 08/26/2011)
24 ORDER by Judge Phyllis J. Hamilton granting 21 Motion for Pro Hac Vice for Samantha Stilp. (nah, COURT STAFF) (Filed on 8/29/2011) (Entered: 08/29/2011)
25 ORDER by Judge Phyllis J. Hamilton granting 22 Motion for Pro Hac Vice for Daniel Clark. (nah, COURT STAFF) (Filed on 8/29/2011) (Entered: 08/29/2011)
27 ORDER Granting 4 MOTION to Intervene filed by Umme−Hani Khan. Signed by Judge Phyllis J. Hamilton on 9/8/2011. (hlk, COURT STAFF) (Filed on 9/8/2011) (Entered: 09/08/2011)
29 MOTION of Mark A. Knueve for leave to appear in Pro Hac Vice ( Filing fee $ 275, receipt number 44611007569.) filed by Abercombie &Fitch Stores, Inc., Hollister Co. California, LLC. (Attachments: # 1 Proposed Order)(vlk, COURT STAFF) (Filed on 9/8/2011) (Entered: 09/09/2011)
28 Intervenor COMPLAINT, Demand for Jury Trial, for Damages and Injunctive and Declaratory Relief for Employment Discrimination. Filed by Umme−Hani Khan. (Ho, Christopher) (Filed on 9/9/2011) Modified on 9/12/2011 (kc, COURT STAFF). (Entered: 09/09/2011)
30 ORDER by Judge Phyllis J. Hamilton granting 29 Motion for Pro Hac Vice for Mark A. Kneuve. (nah, COURT STAFF) (Filed on 9/13/2011) (Entered: 09/13/2011)
31 ANSWER to Intervenor Complaint byAbercombie &Fitch Stores, Inc., Hollister Co. California, LLC. (Lee, Amarra) (Filed on 9/30/2011) (Entered: 09/30/2011)
32 MOTION to Appear by Telephone at Case Management Conference filed by Abercombie &Fitch Stores, Inc., Hollister Co. California, LLC. (Attachments: # 1 Proposed Order Granting Motion to Participate in Case Management Conference by Telephone)(Stilp, Samantha) (Filed on 11/3/2011) (Entered: 11/03/2011)
33 ADR Clerks Notice re: Non−Compliance with Court Order. (tjs, COURT STAFF) (Filed on 11/7/2011) (Entered: 11/07/2011)
34 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) (Martinez−Olguin, Araceli) (Filed on 11/9/2011) (Entered: 11/09/2011)
35 ORDER SCHEDULING TELEPHONIC CASE MANAGEMENT CONFERENCE re 32 MOTION to Appear by Telephone at Case Management Conference filed by Abercombie &Fitch Stores, Inc., Hollister Co. California, LLC. Joint Case Management Statement due by 11/10/2011. Initial Case Management Conference set for 11/17/2011 01:30 PM. Signed by Judge Phyllis J. Hamilton on 11/9/11. (nah, COURT STAFF) (Filed on 11/9/2011) (Entered: 11/09/2011)
36 CASE MANAGEMENT STATEMENT Joint Case Management Statement filed by Umme−Hani Khan. (Billoo, Zahra) (Filed on 11/9/2011) (Entered: 11/09/2011)
ADR Clerk Notice Setting an ADR Phone Conference on 11/16/11 at 10:00 a.m. Pacific time. The court will provide instructions for connecting to the call in a separate notice to the parties. (sgd, COURT STAFF) (Filed on 11/15/2011) (Entered: 11/15/2011)
ADR Remark: ADR Phone Conference held by RWS on 11/16/11. (sgd, COURT STAFF) (Filed on 11/16/2011) (Entered: 11/16/2011)
37 Minute Entry: Initial Case Management Conference held on 11/17/2011 before Phyllis J. Hamilton (Date Filed: 11/17/2011), CASE REFERRED to Magistrate

Case: 5:11-cv-03162-EJD As of: 02/09/2014 12:13 PM PST 7 of 19

11/21/2011 11/30/2011 01/18/2012 01/23/2012
01/24/2012 01/31/2012 04/03/2012 04/10/2012 04/12/2012 05/16/2012
05/21/2012 05/22/2012

Judge Corley for Settlement Conference. Non−Expert Discovery due by 8/1/2012. Disclosure of Experts due by 9/17/2012. Expert Discovery due by 2/8/2013. Dispositive Motions to be filed by 7/10/2013. Final Pretrial Conference set for 12/12/2013 02:00 PM. Jury Selection set for 1/13/2014 08:30 AM before Hon. Phyllis J. Hamilton. Jury Trial set for 1/13/2014 08:30 AM before Hon. Phyllis J. Hamilton. (Court Reporter Not Reported.) (nah, COURT STAFF) (Date Filed: 11/17/2011) (Entered: 11/18/2011)
38 CASE MANAGEMENT AND PRETRIAL ORDER re 37 Case Management Conference − Initial. Signed by Judge Phyllis J. Hamilton on 11/21/11. (nah, COURT STAFF) (Filed on 11/21/2011) (Entered: 11/21/2011)
39 Notice of Settlement Conference and Settlement Conference Order. Settlement Conference set for 4/3/2012 at 09:30 AM in Courtroom F, 15th Floor, San Francisco before Magistrate Judge Jacqueline Scott Corley. Signed by Magistrate Judge Jacqueline Scott Corley on 11/30/2011. (ahm, COURT STAFF) (Filed on 11/30/2011) (Entered: 11/30/2011)
40 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Yvonne Gonzalez Rogers for all further proceedings. Judge Hon. Phyllis J. Hamilton no longer assigned to the case. Signed by Judge Gonzalez Rogers on 1/18/12. (vlk, COURT STAFF) (Filed on 1/18/2012) (Entered: 01/18/2012)
41 CLERKS NOTICE Case Management Conference set for 5/7/2012 02:00 PM. Dispositive Motions to be heard by 7/9/2013. Jury Selection set for 1/13/2014 08:30 AM before Hon. Yvonne Gonzalez Rogers. 8 Day Jury Trial set for 1/13/2014 08:30 AM before Hon. Yvonne Gonzalez Rogers. Pretrial Conference set for 1/3/2014 09:00 AM before Hon. Yvonne Gonzalez Rogers in a designated courtroom in the Oakland Courthouse. (Attachments: # 1 Certificate/Proof of Service) (fs, COURT STAFF) (Filed on 1/23/2012) (Entered: 01/23/2012)
42 SECOND JOINT CASE MANAGEMENT STATEMENT filed by Umme−Hani Khan, U.S. Equal Employment Opportunity Commission, Abercrombie &Fitch Store, Inc. (Martinez−Olguin, Araceli) (Filed on 1/24/2012) Modified on 1/25/2012 (kc, COURT STAFF). (Entered: 01/24/2012)
43 NOTICE of Appearance by Sirithon Thanasombat for Plaintiff Equal Employment Opportunity Commission (Thanasombat, Sirithon) (Filed on 1/31/2012) (Entered: 01/31/2012)
44 Minute Entry: Settlement Conference held on April 3, 2012 before Magistrate Judge Jacqueline Scott Corley (Date Filed: 4/3/2012). Case did not settle. (Court Reporter: Not Reported) (ahm, COURT STAFF) (Date Filed: 4/3/2012) (Entered: 04/03/2012)
45 STIPULATION WITH PROPOSED ORDER to Continue Case Management Conference filed by Abercrombie &Fitch Stores, Inc.. (Stilp, Samantha) (Filed on 4/10/2012) (Entered: 04/10/2012)
46 ORDER by Judge Yvonne Gonzalez Rogers granting 45 Stipulation continuing Case Management Conference to 6/4/12 (fs, COURT STAFF) (Filed on 4/12/2012) (Entered: 04/12/2012)
47 MOTION to Appear by Telephone (Unopposed Request for Administrative Relief to Appear by Telephone at the Case Management Conference) filed by Abercrombie &Fitch Stores, Inc.. (Attachments: # 1 Proposed Order Granting Defendants' Unopposed Request for Administrative Relief)(Stilp, Samantha) (Filed on 5/16/2012) Modified on 5/17/2012 (kc, COURT STAFF). (Entered: 05/16/2012)
48 JOINT CASE MANAGEMENT STATEMENT filed by Abercrombie &Fitch Stores, Inc., U.S. Equal Employment Opportunity Commission, Umme−Hani Khan. (Stilp, Samantha) (Filed on 5/21/2012) Modified on 5/22/2012 (kc, COURT STAFF). (Entered: 05/21/2012)
49 ORDER by Judge Yvonne Gonzalez Rogers granting 47 Defendants Abercrombie &Fitch Stores, Inc., Hollister Co. Motion to Appear by Telephone for the 6/4/12 Case Management Conference. Defendants' local counsel, Douglas Dexter, must

Case: 5:11-cv-03162-EJD As of: 02/09/2014 12:13 PM PST 8 of 19

05/22/2012
05/24/2012
05/25/2012 06/04/2012
06/14/2012 07/03/2012 07/03/2012 10/15/2012 10/17/2012 10/19/2012 10/25/2012 11/06/2012

appear in person. (fs, COURT STAFF) (Filed on 5/22/2012) (Entered: 05/22/2012)
CLERKS NOTICE Defendants' Abercrombie &Fitch Stores, Inc., Hollister Co. California, LLC's Counsel shall contact CourtCall at (866) 582−6878 to make arrangements for the telephonic appearance for the Case Management Conference on 6/4/12 at 2:00pm before Judge Yvonne Gonzalez Rogers. See Order Dkt. No. 49 as to specified counsel allowed to appear by telephone.
(This is a text only docket entry, there is no document associated with this notice.)
(fs, COURT STAFF) (Filed on 5/22/2012) (Entered: 05/22/2012)
CLERKS NOTICE Local Counsel Defendant Attorney Diego Acevedo is allowed to appear in person for the 6/4/12 Case Management Conference, in place of Defendant Attorney Douglas Dexter.
(This is a text only docket entry, there is no document associated with this notice.)
(fs, COURT STAFF) (Filed on 5/24/2012) (Entered: 05/24/2012)
50 NOTICE of Appearance by Diego F. Acevedo (Acevedo, Diego) (Filed on 5/25/2012) (Entered: 05/25/2012)
51 Minute Entry: Further Case Management Conference held on 6/4/2012 before Yvonne Gonzalez Rogers (Date Filed: 6/4/2012). Amended Pleadings due by 6/29/2012. Non−Expert Discovery due by 10/30/2012. Joinder of Parties due by 6/29/2012. Dispositive Motions heard by 7/10/2013. Case Management Conference set for 12/10/2012 02:00 PM. Final Pretrial Conference set for Friday, 9/13/2013 09:00 AM. Jury Selection set for 9/30/2013 08:30 AM before Hon. Yvonne Gonzalez Rogers. 8 Day Jury Trial set for 9/30/2013 08:30 AM before Hon. Yvonne Gonzalez Rogers. (Court Reporter Raynee Mercado.) (fs, COURT STAFF) (Date Filed: 6/4/2012) (Entered: 06/14/2012)
52 CASE MANAGEMENT AND PRETRIAL ORDER. Signed by Judge Yvonne Gonzalez Rogers on 6/14/12. (fs, COURT STAFF) (Filed on 6/14/2012) (Entered: 06/14/2012)
53 STIPULATION WITH PROPOSED ORDER Proposed Stipulated Protective Order filed by Abercrombie &Fitch Stores, Inc.. (Stilp, Samantha) (Filed on 7/3/2012) (Entered: 07/03/2012)
54 STIPULATED PROTECTIVE ORDER AS MODIFIED BY THE COURT. Signed by Judge Yvonne Gonzalez Rogers on 7/3/2012. (fs, COURT STAFF) (Filed on 7/3/2012) (Entered: 07/05/2012)
55 Joint Discovery Letter Brief of defendants and third−party CAIR−CA filed by Abercrombie &Fitch Stores, Inc., Hollister Co. California, LLC. (Attachments: # 1 Exhibit)(Acevedo, Diego) (Filed on 10/15/2012) (Entered: 10/15/2012)
56 ORDER by Judge Yvonne Gonzalez Rogers granting in part and denying in part 55 Discovery Letter Brief. Deposition shall occur no later the 10/30/12. (sisS, COURT STAFF) (Filed on 10/17/2012) (Entered: 10/17/2012)
57 First Discovery Letter Brief regarding HR Contact Records filed by Umme−Hani Khan. (Martinez−Olguin, Araceli) (Filed on 10/19/2012) (Entered: 10/19/2012)
58 ORDER re 57 First Discovery Letter Brief regarding HR Contact Records filed by Umme−Hani Khan. Signed by Judge Yvonne Gonzalez Rogers on 10/25/12. (fs, COURT STAFF) (Filed on 10/25/2012) (Entered: 10/26/2012)
59 Joint Discovery Letter Brief filed by U.S. Equal Employment Opportunity Commission, Abercrombie &Fitch Stores, Inc., Holliter Co. California, LLC, Umme−Hani Khan. (Mitchell, Marcia) (Filed on 11/6/2012) Modified on 11/7/2012 (cjl, COURT STAFF). (Entered: 11/06/2012)

Case: 5:11-cv-03162-EJD As of: 02/09/2014 12:13 PM PST 9 of 19

11/06/2012 11/08/2012 11/09/2012 11/13/2012

60 Joint Discovery Letter Brief filed by U.S. Equal Employment Opportunity Commission, Hollister Co. California, LLC, Abercrombie &Fitch Stores, Inc. , Umme−Hani Khan. (Mitchell, Marcia) (Filed on 11/6/2012) Modified on 11/7/2012 (cjl, COURT STAFF). (Entered: 11/06/2012)
61 ORDER REQUIRING PERSONAL APPEARANCE. Signed by Judge Yvonne Gonzalez Rogers on 11/8/12. (fs, COURT STAFF) (Filed on 11/8/2012) (Entered: 11/08/2012)
62 Plaintiffs' Notice of Resolution of All Discovery Disputes and Request to Vacate Parties Personal Appearanceby Umme−Hani Khan. (Martinez−Olguin, Araceli) (Filed on 11/9/2012) Modified on 11/13/2012 (cjl, COURT STAFF). (Entered: 11/09/2012)
CLERKS NOTICE The 11/13/12 at 9:00am Meet and Confer Session is vacated as counsel have filed a notice regarding the resolution of the Discovery issues. (fs, COURT STAFF) (Filed on 11/13/2012)

(This is a text only docket entry, there is no document associated with this notice.)

11/16/2012
11/19/2012 12/03/2012 12/03/2012 12/03/2012 12/21/2012
12/21/2012 01/04/2013

(Entered: 11/13/2012)
63 MOTION FOR ORDER CHANGING TIME filed by Umme−Hani Khan. Responses due by 11/30/2012. Replies due by 12/7/2012. (Attachments: # 1 Declaration Declaration Of Christopher Ho In Suppport Of Stipulated Request For Order Changing Time, # 2 Proposed Order [Proposed] Order Granting Stipulated Request For Order Changing Time)(Ho, Christopher) (Filed on 11/16/2012) Modified on 11/19/2012 (cp, COURT STAFF). (Entered: 11/16/2012)
64 ORDER by Judge Yvonne Gonzalez Rogers granting 63 Motion for Discovery time extension. (kk, COURT STAFF) (Filed on 11/19/2012) (Entered: 11/19/2012)
65 MOTION to Appear by Telephone at the December 10, 2012 Case Management Conference filed by Abercrombie &Fitch Stores, Inc., Hollister Co. California, LLC. (Attachments: # 1 Proposed Order)(Clark, Daniel) (Filed on 12/3/2012) (Entered: 12/03/2012)
66 CASE MANAGEMENT STATEMENT Joint Case Management Conference Statement filed by Umme−Hani Khan, U.S. Equal Employment Opportunity Commission, Abercrombie &Fitch Stores, Inc, Hollister Co. California, LLC. (Ho, Christopher) (Filed on 12/3/2012) Modified on 12/4/2012 (cpS, COURT STAFF). (Entered: 12/03/2012)
67 ORDER VACATING CASE MANAGEMENT CONFERENCE by Judge Yvonne Gonzalez Rogers denying as moot 65 Motion to Appear by Telephone and Re−Setting Deadline for Summary Judgment Motion. (fs, COURT STAFF) (Filed on 12/3/2012) (Entered: 12/04/2012)
68 MOTION for Sanctions Against Third Party CAIR−CA filed by Abercrombie &Fitch Stores, Inc., Hollister Co. California, LLC. Motion Hearing set for 1/29/2013 02:00 PM in Courtroom 5, 2nd Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Responses due by 1/4/2013. Replies due by 1/11/2013. (Attachments: # 1 Declaration Declaration of Mark Knueve in Support of Motion for Sanctions, # 2 Proposed Order)(Clark, Daniel) (Filed on 12/21/2012) (Entered: 12/21/2012)
69 AMENDED CERTIFICATE OF SERVICE by Abercrombie &Fitch Stores, Inc., Hollister Co. California, LLC re 68 MOTION for Sanctions Against Third Party CAIR−CA (Clark, Daniel) (Filed on 12/21/2012) Modified on 12/26/2012 (cpS, COURT STAFF). (Entered: 12/21/2012)
70 RESPONSE (re 68 MOTION for Sanctions Against Third Party CAIR−CA ) filed byCouncil on American−Islamic Relations, California (CAIR−CA). (Attachments: # 1 Certificate/Proof of Service Cert. of Service, # 2 Declaration Decl. of OMF, # 3 Declaration Decl. of DL)(Abdo, Aliah) (Filed on 1/4/2013) (Entered: 01/04/2013)

Case: 5:11-cv-03162-EJD As of: 02/09/2014 12:13 PM PST 10 of 19

01/04/2013 01/04/2013
01/04/2013 01/11/2013 01/11/2013 01/24/2013
01/25/2013 01/29/2013 01/30/2013 01/30/2013 02/04/2013

71 Declaration of Zahra Billoo in opposition (re 68 MOTION for Sanctions Against Third Party CAIR−CA ) filed byCouncil on American−Islamic Relations, California (CAIR−CA). (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Abdo, Aliah) (Filed on 1/4/2013) Modified on 1/7/2013 (cpS, COURT STAFF). (Entered: 01/04/2013)
72 DECLARATION of Aliah A. Abdo in Opposition to 68 Defendants' Motion for Sanctions Against Third−Party CAIR−CA for Failure to Provide a 30(b)(6) Representative for Deposition filed byCouncil on American−Islamic Relations, California (CAIR−CA). (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P)(Related document(s) 68 ) (Abdo, Aliah) (Filed on 1/4/2013) Modified on 1/7/2013 (cpS, COURT STAFF). (Entered: 01/04/2013)
73 EXHIBITS re 72 Declaration in Opposition,, Exhibit P Cont. filed byCouncil on American−Islamic Relations, California (CAIR−CA). (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit)(Related document(s) 72 ) (Abdo, Aliah) (Filed on 1/4/2013) (Entered: 01/04/2013)
74 REPLY (re 68 MOTION for Sanctions Against Third Party CAIR−CA ) filed byAbercrombie &Fitch Stores, Inc., Hollister Co. California, LLC. (Clark, Daniel) (Filed on 1/11/2013) (Entered: 01/11/2013)
75 MOTION Request for Determination of Defendants' Motion for Sanctions Without Oral Argument and Request to Vacate the January 29, 2013 Hearing on Defendants' Motion for Sanctions re 68 MOTION for Sanctions Against Third Party CAIR−CA filed by Abercrombie &Fitch Stores, Inc., Hollister Co. California, LLC. Responses due by 1/25/2013. Replies due by 2/1/2013. (Clark, Daniel) (Filed on 1/11/2013) (Entered: 01/11/2013)
76 RESPONSE (re 75 MOTION Request for Determination of Defendants' Motion for Sanctions Without Oral Argument and Request to Vacate the January 29, 2013 Hearing on Defendants' Motion for Sanctions re 68 MOTION for Sanctions Against Third Party CAIR−C, 68 MOTION for Sanctions Against Third Party CAIR−CA ) filed byCouncil on American−Islamic Relations, California (CAIR−CA). (Attachments: # 1 Declaration Declaration of Aliah A. Abdo, # 2 Declaration Declaration of Omair M. Farooqui, # 3 Declaration Declaration of Zahra Billoo, # 4 Declaration Declaration of David Lawson, # 5 Certificate/Proof of Service Certificate of Service)(Abdo, Aliah) (Filed on 1/24/2013) (Entered: 01/24/2013)
77 ORDER by Judge Yvonne Gonzalez Rogers DENYING 75 Motion for Determination of Defendants' Motion for Sanctions without Oral Argument and request to vacate 1/29/2013 Motion Hearing (fs, COURT STAFF) (Filed on 1/25/2013) (Entered: 01/25/2013)
82 Minute Entry: Motion Hearing held and submitted on 1/29/2013 before Yvonne Gonzalez Rogers (Date Filed: 1/29/2013) re 68 MOTION for Sanctions Against Third Party CAIR−CA filed by Hollister Co. California, LLC, Abercrombie &Fitch Stores, Inc.. (Court Reporter Raynee Mercado.) (fs, COURT STAFF) (Date Filed: 1/29/2013) (Entered: 02/04/2013)
78 Letter Brief Requesting Pre−Filing Conference filed byU.S. Equal Employment Opportunity Commission, Umme−Hani Khan. (Mitchell, Marcia) (Filed on 1/30/2013) Modified on 1/31/2013 (cpS, COURT STAFF). (Entered: 01/30/2013)
79 Letter Brief re: Joint Notice of Efforts to Meet and Confer filed byCouncil on American−Islamic Relations, California (CAIR−CA), Hollister Co. California, LLC, Abercrombie &Fitch Stores Inc. (Abdo, Aliah) (Filed on 1/30/2013) Modified on 1/31/2013 (cpS, COURT STAFF). (Entered: 01/30/2013)
80 Letter Brief Responding to Plaintiffs' Request for Pre−filing Conference filed byAbercrombie &Fitch Stores, Inc., Hollister Co. California, LLC. (Knueve, Mark) (Filed on 2/4/2013) (Entered: 02/04/2013)

Case: 5:11-cv-03162-EJD As of: 02/09/2014 12:13 PM PST 11 of 19

02/04/2013 02/05/2013
02/06/2013 02/07/2013 02/19/2013 02/27/2013 03/15/2013 03/15/2013 03/15/2013 03/15/2013 03/15/2013 03/15/2013
03/19/2013 03/25/2013

81 Letter Brief of Defendants Requesting a Pre−filing Conference filed byAbercrombie &Fitch Stores, Inc., Hollister Co. California, LLC. (Knueve, Mark) (Filed on 2/4/2013) (Entered: 02/04/2013)
83 ORDER that defendants and third−party CAIR exchange the information as set forth herein re 79 JOINT NOTICE OF EFFORTS TO MEET AND CONFER, filed by Hollister Co. California, LLC, Council on American−Islamic Relations, California (CAIR−CA), Abercrombie &Fitch Stores, Inc.. Signed by Judge Yvonne Gonzalez Rogers on 2/5/2012. (cp, COURT STAFF) (Filed on 2/5/2013) (Entered: 02/05/2013)
84 ORDER SETTING PRE−SUMMARY JUDGMENT CONFERENCE: Conference set for 2/27/2013 02:00 PM before Hon. Yvonne Gonzalez Rogers re 81 , 78 Signed by Judge Yvonne Gonzalez Rogers on 2/6/2013. (cpS, COURT STAFF) (Filed on 2/6/2013) (Entered: 02/06/2013)
85 Letter Brief Responding to Defendant's Pre−Filing Conf Statement filed byU.S. Equal Employment Opportunity Commission. (Mitchell, Marcia) (Filed on 2/7/2013) (Entered: 02/07/2013)
86 ORDER by Judge Yvonne Gonzalez Rogers denying 68 Motion for Sanctions (fs, COURT STAFF) (Filed on 2/19/2013) (Entered: 02/19/2013)
87 Minute Entry: Pre−filing Conference re Motions for Summary Judgment held (Date Filed: 2/27/2013). (Court Reporter Diane Skillman.) (fs, COURT STAFF) (Date Filed: 2/27/2013) (Entered: 03/04/2013)
88 Joint Statement of Undisputed Facts by Abercrombie &Fitch Stores, Inc., Hollister Co. California, LLC, U.S. Equal Employment Opportunity Commission, Umme−Hani Khan. (Clark, Daniel) (Filed on 3/15/2013) Modified on 3/18/2013 (cpS, COURT STAFF). (Entered: 03/15/2013)
89 Separate Statement of Material Facts Relevant to Undue Hardship Defense by Abercrombie &Fitch Stores, Inc., Hollister Co. California, LLC. (Clark, Daniel) (Filed on 3/15/2013) Modified on 3/18/2013 (cpS, COURT STAFF). (Entered: 03/15/2013)
90 Legal Brief regarding the appropriate standard of review on undue hardship defense filed byAbercrombie &Fitch Stores, Inc., Hollister Co. California, LLC. (Attachments: # 1 Exhibit A − Draft Instructions)(Clark, Daniel) (Filed on 3/15/2013) Modified on 3/18/2013 (cpS, COURT STAFF). (Entered: 03/15/2013)
91 Statement Plaintiffs Preliminary Statement of Disputed Facts by Umme−Hani Khan. (Martinez−Olguin, Araceli) (Filed on 3/15/2013) (Entered: 03/15/2013)
92 Proposed Jury Instructions by Umme−Hani Khan concerning undue hardship under Title VII and the California Fair Employment and ousing Act. (Martinez−Olguin, Araceli) (Filed on 3/15/2013) Modified on 3/18/2013 (cpS, COURT STAFF). (Entered: 03/15/2013)
93 Supplemental Brief re 92 Proposed Jury Instructions, 91 Statement Regarding The Undue Hardship Standard Under Title VII and The California Fair Employment and Housing Act filed byCouncil on American−Islamic Relations, California (CAIR−CA), Umme−Hani Khan, U.S. Equal Employment Opportunity Commission. (Related document(s) 92 , 91 ) (Martinez−Olguin, Araceli) (Filed on 3/15/2013) (Entered: 03/15/2013)
94 AMENDED DOCUMENT by Abercrombie &Fitch Stores, Inc., Hollister Co. California, LLC. Amendment to 89 Statement of Material Facts Relevant to Undue Hardship. (Clark, Daniel) (Filed on 3/19/2013) (Entered: 03/19/2013)
95 Transcript of Proceedings held on February 27, 2013, before Judge Yvonne Gonzalez Rogers. Court Reporter Diane E. Skillman, Telephone number 510−451−2930, Diane_Skillman@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no

Case: 5:11-cv-03162-EJD As of: 02/09/2014 12:13 PM PST 12 of 19

04/04/2013 04/11/2013 04/11/2013
04/11/2013 04/11/2013 04/11/2013 04/15/2013 04/25/2013 04/25/2013

later than 5 business days from date of this filing. Release of Transcript Restriction set for 6/24/2013. (Skillman, Diane) (Filed on 3/25/2013) (Entered: 03/25/2013)
96 ORDER SETTING SUMMARY JUDGMENT SCHEDULE. Set/Reset Deadlines as to Plaintiffs' (combined) opening motion: 4/11/13; Defendants' Opposition/Cross−Motion due by 4/25/2013. Plaintiffs' Reply due by 5/9/2013; Defendants' Sur−Reply due 5/23/2013. Cross−Motions for Summary Judgment Hearing set for 6/18/2013 02:00 PM in Courtroom 5, 2nd Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Signed by Judge Yvonne Gonzalez Rogers on 4/4/13. (fs, COURT STAFF) (Filed on 4/4/2013) (Entered: 04/04/2013)
97 MOTION for Summary Judgment (Partial) filed by Umme−Hani Khan, U.S. Equal Employment Opportunity Commission. Motion Hearing set for 6/18/2013 02:00 PM in Courtroom 5, 2nd Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Responses due by 4/25/2013. Replies due by 5/9/2013. (Mitchell, Marcia) (Filed on 4/11/2013) (Entered: 04/11/2013)
98 Declaration of Marcia Mitchell in Support of 97 MOTION for Summary Judgment (Partial) filed byU.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52, # 53 Exhibit 53)(Related document(s) 97 ) (Mitchell, Marcia) (Filed on 4/11/2013) (Entered: 04/11/2013)
99 Declaration of Umme−Hani Khan in Support of 97 MOTION for Summary Judgment (Partial) filed byU.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit F, # 6 Exhibit G, # 7 Exhibit H)(Related document(s) 97 ) (Mitchell, Marcia) (Filed on 4/11/2013) (Entered: 04/11/2013)
100 Declaration of Michael Baldonado in Support of 97 MOTION for Summary Judgment (Partial) filed byU.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Related document(s) 97 ) (Mitchell, Marcia) (Filed on 4/11/2013) (Entered: 04/11/2013)
101 Proposed Order re 97 MOTION for Summary Judgment (Partial) by U.S. Equal Employment Opportunity Commission. (Mitchell, Marcia) (Filed on 4/11/2013) (Entered: 04/11/2013)
102 PARTIES JOINT STATEMENT OF UNDISPUTED MATERIAL FACTS filed byAbercrombie &Fitch Stores, Inc., Council on American−Islamic Relations, California (CAIR−CA), Hollister Co. California, LLC, Umme−Hani Khan, U.S. Equal Employment Opportunity Commission. (Related document(s) 97 ) (Ho, Christopher) (Filed on 4/15/2013) Modified on 4/16/2013 (cpS, COURT STAFF). (Entered: 04/15/2013)
103 RESPONSE (re 97 MOTION for Summary Judgment (Partial) ) and Cross−Motion for Partial Summary Judgment filed byAbercrombie &Fitch Stores, Inc., Hollister Co. California, LLC. (Clark, Daniel) (Filed on 4/25/2013) (Entered: 04/25/2013)
104 Declaration of Daniel J. Clark in Support of 103 Opposition/Response to Motion and Cross−Motion for Partial Summary Judgment filed byAbercrombie &Fitch Stores, Inc., Hollister Co. California, LLC. (Attachments: # 1 Exhibit A − Declaration of Roth, # 2 Exhibit B − Excerpts from Deposition of Passalacqua, # 3 Exhibit C − Excerpts from Deposition of Chmiewlewski, # 4 Exhibit D − Excerpts from Deposition of McKinsey, # 5 Exhibit E − Excerpts from Deposition of Fugarino, # 6 Exhibit F − Excerpts from Deposition of Yoakum, # 7 Exhibit G − Excerpts from Deposition of Corley, # 8 Exhibit H − Excerpts from Deposition of

Case: 5:11-cv-03162-EJD As of: 02/09/2014 12:13 PM PST 13 of 19

04/25/2013 05/09/2013
05/09/2013 05/09/2013
05/09/2013 05/23/2013 05/23/2013 05/31/2013 06/18/2013

Roth, # 9 Exhibit I − Excerpts from Deposition of Riley, # 10 Exhibit J − Excerpts from Deposition of Khan, # 11 Exhibit K − Excerpts from Deposition of Moore, # 12 Exhibit L − Excerpts from Deposition of Moore (Banafa), # 13 Exhibit M − Excerpts from Deposition of CAIR, # 14 Exhibit N − Declaration of Jones, # 15 Exhibit O − Conciliation Correspondence, # 16 Exhibit P − Declaration of Fugarino, # 17 Exhibit Q − Excerpts from EEOC Compliance Manual, # 18 Exhibit R − Form 10−K)(Related document(s) 103 ) (Clark, Daniel) (Filed on 4/25/2013) (Entered: 04/25/2013)
105 Proposed Order re 97 Motion and Cross−Motion for Partial Summary Judgment by Abercrombie &Fitch Stores, Inc., Hollister Co. California, LLC. (Clark, Daniel) (Filed on 4/25/2013) Modified on 4/26/2013 (cpS, COURT STAFF). (Entered: 04/25/2013)
106
***FILED IN ERROR, INCORRECT CASE NUMBER***
REPLY (re 97 MOTION for Summary Judgment (Partial) ) &OPPOSITION to CROSS−MOTION for Partial Summary Judgment filed byUmme−Hani Khan, U.S. Equal Employment Opportunity Commission. (Mitchell, Marcia) (Filed on 5/9/2013) Modified on 5/10/2013 (cpS, COURT STAFF). (Entered: 05/09/2013)
107 REPLY (re 97 MOTION for Summary Judgment (Partial) ) &CROSS−MOTION for Partial Summary Judgment filed byUmme−Hani Khan, U.S. Equal Employment Opportunity Commission. (Mitchell, Marcia) (Filed on 5/9/2013) Modified on 5/10/2013 (cpS, COURT STAFF). (Entered: 05/09/2013)
108 Declaration of Marcia Mitchell in Support of 107 Reply to Opposition/Response to Motion for Partial Summary Judgment &Cross−Motion for Partial Summary Judgment filed byUmme−Hani Khan, U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30)(Related document(s) 107 ) (Mitchell, Marcia) (Filed on 5/9/2013) (Entered: 05/09/2013)
109 Proposed Order Denying re 97 MOTION for Summary Judgment (Partial) by Umme−Hani Khan, U.S. Equal Employment Opportunity Commission. (Mitchell, Marcia) (Filed on 5/9/2013) Modified on 5/10/2013 (cpS, COURT STAFF). (Entered: 05/09/2013)
110 Surreply Memorandum re 97 Cross−Motion for Partial Summary Judgment, filed by Abercrombie &Fitch Stores, Inc., Hollister Co. California, LLC. (Clark, Daniel) (Filed on 5/23/2013) Modified on 5/24/2013 (jlm, COURT STAFF). (Entered: 05/23/2013)
111 Declaration of Daniel J. Clark in Support of 110 Sur−Reply Memorandum, filed by Abercrombie &Fitch Stores, Inc., Hollister Co. California, LLC. (Attachments: # 1 Exhibit A− EEOC Concilaition Documents, # 2 Exhibit B− Deposition of Todd Corley, # 3 Exhibit C− Deposition of Tony Park)(Related document(s) 110 ) (Clark, Daniel) (Filed on 5/23/2013) Modified on 5/24/2013 (jlm, COURT STAFF). (Entered: 05/23/2013)
112 NOTICE of Change In Counsel as to Araceli Martinez−Olguin, filed by Umme−Hani Khan (Martinez−Olguin, Araceli) (Filed on 5/31/2013) Modified on 6/3/2013 (jlm, COURT STAFF). (Entered: 05/31/2013)
117 Minute Entry: Motion Hearing held and submitted on 6/18/2013 before Yvonne Gonzalez Rogers (Date Filed: 6/18/2013) re 97 MOTION for Summary Judgment (Partial) filed by Umme−Hani Khan, U.S. Equal Employment Opportunity Commission and re 103 Cross−Motion for Partial Summary Judgment filed by Abercrombie &Fitch Stores, Inc., Hollister Co. California, LLC. (Court Reporter Raynee Mercado.) (fs, COURT STAFF) (Date Filed: 6/18/2013) (Entered:

Case: 5:11-cv-03162-EJD As of: 02/09/2014 12:13 PM PST 14 of 19

06/19/2013
06/24/2013
06/25/2013
06/26/2013 06/26/2013 07/10/2013 08/13/2013 08/21/2013 08/22/2013 08/22/2013

06/26/2013)
113
***DOCUMENT STRICKEN, PER ORDER (DOCUMENT # 119 )
Supplemental Authority Related to 97 MOTION for Summary Judgment (Partial), 107 Cross−Motion for Summary Judgment, 103 Cross−Motion for Summary Judgment filed by U.S. Equal Employment Opportunity Commission, Umme−Hani Khan. (Attachments: # 1 Exhibit EEOC v. Costco)(Related document(s) 97 , 110 , 107 , 103 ) (Mitchell, Marcia) (Filed on 6/19/2013) Modified on 6/20/2013 (kcS, COURT STAFF). Modified on 7/11/2013 (cpS, COURT STAFF). (Entered: 06/19/2013)
114
***DOCUMENT STRICKEN, PER ORDER (DOCUMENT # 119 )
RESPONSE re 113 Supplemental Brief, filed byAbercrombie &Fitch Stores, Inc., Hollister Co. California, LLC. (Attachments: # 1 Exhibit 1 (Declaration of Daniel J. Clark in Support of Defendants' Response to Plaintiff EEOC's Supplemental Authority Related to Cross Motions for Summary Judgment))(Related document(s) 113 ) (Clark, Daniel) (Filed on 6/24/2013) Modified on 6/25/2013 (cpS, COURT STAFF). Modified on 7/11/2013 (cpS, COURT STAFF). (Entered: 06/24/2013)
115 MOTION to Strike 114 RESPONSE TO EEOCS SUPPLEMENTAL AUTHORITY (DKT. NO. 114) filed by Council on American−Islamic Relations, California (CAIR−CA), Umme−Hani Khan, U.S. Equal Employment Opportunity Commission. Motion Hearing set for 8/13/2013 02:00 PM in Courtroom 5, 2nd Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Responses due by 7/9/2013. Replies due by 7/16/2013. (Attachments: # 1 Proposed Order)(Chien, Marsha) (Filed on 6/25/2013) Modified on 6/26/2013 (cpS, COURT STAFF). (Entered: 06/25/2013)
116 NOTICE OF ERRATA TO DKT. NO. 115 by Council on American−Islamic Relations, California (CAIR−CA), Umme−Hani Khan, U.S. Equal Employment Opportunity Commission re 115 MOTION to Strike 114 Brief, NOTICE OF MOTION AND MOTION TO STRIKE DEFENDANTS RESPONSE TO EEOCS SUPPLEMENTAL AUTHORITY (DKT. NO. 114) (Attachments: # 1 Errata, # 2 Proposed Order)(Chien, Marsha) (Filed on 6/26/2013) Modified on 6/27/2013 (cpS, COURT STAFF). (Entered: 06/26/2013)
118 RESPONSE (re 115 MOTION to Strike 114 RESPONSE TO EEOCS SUPPLEMENTAL AUTHORITY (DKT. NO. 114) ) filed byAbercrombie &Fitch Stores, Inc., Hollister Co. California, LLC. (Clark, Daniel) (Filed on 6/26/2013) (Entered: 06/26/2013)
119 ORDER STRIKING DOCUMENTS FILED AFTER SUMMARY JUDGMENT HEARING AND TERMINATING DKT. NO. 115 AS MOOT. Signed by Judge Yvonne Gonzalez Rogers on 7/10/13. (fs, COURT STAFF) (Filed on 7/10/2013) (Entered: 07/10/2013)
120 TRANSCRIPT ORDER by Abercrombie &Fitch Stores, Inc., Hollister Co. California, LLC for Court Reporter Raynee Mercado. (Clark, Daniel) (Filed on 8/13/2013) (Entered: 08/13/2013)
121 ORDER REFERRING CASE to Magistrate Judge Donna M. Ryu for Settlement Conference. Signed by Judge Yvonne Gonzalez Rogers on 8/21/2013. (fs, COURT STAFF) (Filed on 8/21/2013) (Entered: 08/21/2013)
CASE REFERRED to Magistrate Judge Donna M. Ryu for Settlement (ahm, COURT STAFF) (Filed on 8/22/2013) (Entered: 08/22/2013)
122 ORDER SETTING SETTLEMENT CONFERENCE: Settlement Conference set for 9/5/2013 10:00 AM before Magistrate Judge Donna M. Ryu. Signed by Magistrate Judge Donna M. Ryu on 8/22/13. (ig, COURT STAFF) (Filed on 8/22/2013) (Entered: 08/22/2013)

Case: 5:11-cv-03162-EJD As of: 02/09/2014 12:13 PM PST 15 of 19

08/30/2013 08/30/2013 08/30/2013 08/30/2013 08/30/2013
08/30/2013 09/03/2013 09/06/2013 09/06/2013 09/06/2013 09/09/2013 09/09/2013

123 MOTION in Limine No. 1 to Exclude Evidence of the Consent Decree filed by Abercrombie &Fitch Stores, Inc., Hollister Co. California, LLC. Responses due by 9/13/2013. Replies due by 9/20/2013. (Clark, Daniel) (Filed on 8/30/2013) (Entered: 08/30/2013)
124 MOTION in Limine No. 2 To Exclude Evidence of Lost Wages After the Offer of Reinstatement was Made filed by Abercrombie &Fitch Stores, Inc., Hollister Co. California, LLC. Responses due by 9/4/2013. (Clark, Daniel) (Filed on 8/30/2013) (Entered: 08/30/2013)
125 MOTION in Limine No. 3 to Exclude Evidence Relating to Emails Sent by Anonymous Third Parties to CAIR filed by Abercrombie &Fitch Stores, Inc., Hollister Co. California, LLC. Responses due by 9/4/2013. (Clark, Daniel) (Filed on 8/30/2013) (Entered: 08/30/2013)
126 MOTION in Limine No. 4 to Exclude Evidence Relating to Other Cases Involving Head Scarfs filed by Abercrombie &Fitch Stores, Inc., Hollister Co. California, LLC. Responses due by 9/4/2013. (Clark, Daniel) (Filed on 8/30/2013) (Entered: 08/30/2013)
127 Declaration of Daniel J. Clark in Support of 125 MOTION in Limine No. 3 to Exclude Evidence Relating to Emails Sent by Anonymous Third Parties to CAIR, 124 MOTION in Limine No. 2 To Exclude Evidence of Lost Wages After the Offer of Reinstatement was Made, 126 MOTION in Limine No. 4 to Exclude Evidence Relating to Other Cases Involving Head Scarfs filed byAbercrombie &Fitch Stores, Inc., Hollister Co. California, LLC. (Attachments: # 1 Exhibit A − Excerpts from Umme−Hani Khan's Deposition Transcript, # 2 Exhibit B − Excerpts from CAIR's Deposition Transcript, # 3 Exhibit C − Excerpts from CAIR's Responses to Questions to Be Answered Under Oath, # 4 Exhibit D − Article, # 5 Exhibit E − Order Case No. 5:10cv03911, # 6 Exhibit F − Judgment Case No. 4:08−cv−1470)(Related document(s) 125 , 124 , 126 ) (Clark, Daniel) (Filed on 8/30/2013) (Entered: 08/30/2013)
128 ORDER EXTENDING DEADLINE FOR PRETRIAL FILINGS TO SEPTEMBER 9, 2013. Signed by Judge Yvonne Gonzalez Rogers on 8/30/2013. (fs, COURT STAFF) (Filed on 8/30/2013) (Entered: 08/30/2013)
129 ORDER by Judge Yvonne Gonzalez Rogers granting 97 Plaintiff's Motion for Partial Summary Judgment; denying 103 Defendant's Cross−Motion for Partial Summary Judgment. (fs, COURT STAFF) (Filed on 9/3/2013) (Entered: 09/03/2013)
130 Minute Entry: Settlement Conference HELD 9/5/2013. Further telephonic settlement proceedings to take place on 9/6/2013. (Date Filed: 9/6/2013). (Court Reporter Not recorded.) (dmrlc1, COURT STAFF) (Date Filed: 9/6/2013) (Entered: 09/06/2013)
131 FURTHER ORDER RE DEADLINES FOR MOTIONS IN LIMINE. Motions in Limine which remain at issue filed by 10:00am on 9/9/2013. Oppositions filed by 9:00am on 9/12/2013. No reply papers are allowed. Signed by Judge Yvonne Gonzalez Rogers on 9/6/13. (fs, COURT STAFF) (Filed on 9/6/2013) (Entered: 09/06/2013)
144 Minute Entry: Further Telephonic Settlement Conference discussions HELD 9/6/13. (Date Filed: 9/6/2013). (Court Reporter Not recorded.) (dmrlc1, COURT STAFF) (Date Filed: 9/6/2013) Modified on 9/10/2013 (cpS, COURT STAFF). (Entered: 09/09/2013)
132 MOTION in Limine No. 1 to Exclude Evidence of the Consent Decree filed by Abercrombie &Fitch Stores, Inc., Hollister Co. California, LLC. Responses due by 9/12/2013. (Clark, Daniel) (Filed on 9/9/2013) (Entered: 09/09/2013)
133 MOTION in Limine No. 2 to Exclude Evidence of Lost Wages After the Offer of Reinstatement was Made filed by Abercrombie &Fitch Stores, Inc., Hollister Co. California, LLC. Responses due by 9/12/2013. (Clark, Daniel) (Filed on 9/9/2013) (Entered: 09/09/2013)

Case: 5:11-cv-03162-EJD As of: 02/09/2014 12:13 PM PST 16 of 19

09/09/2013 09/09/2013 09/09/2013
09/09/2013 09/09/2013 09/09/2013 09/09/2013 09/09/2013 09/09/2013
09/09/2013
09/09/2013 09/09/2013

134 MOTION in Limine No. 3 to Exclude Evidence Relating to Emails Sent by Anonymous Third Parties to CAIR filed by Abercrombie &Fitch Stores, Inc., Hollister Co. California, LLC. Responses due by 9/12/2013. (Clark, Daniel) (Filed on 9/9/2013) (Entered: 09/09/2013)
135 MOTION in Limine No. 4 to Exclude Evidence Relating to Other Cases Involving Head Scarfs filed by Abercrombie &Fitch Stores, Inc., Hollister Co. California, LLC. Responses due by 9/12/2013. (Clark, Daniel) (Filed on 9/9/2013) (Entered: 09/09/2013)
136 Declaration of Daniel J. Clark in Support of 133 MOTION in Limine No. 2 to Exclude Evidence of Lost Wages After the Offer of Reinstatement was Made, 135 MOTION in Limine No. 4 to Exclude Evidence Relating to Other Cases Involving Head Scarfs, 134 MOTION in Limine No. 3 to Exclude Evidence Relating to Emails Sent by Anonymous Third Parties to CAIR filed byAbercrombie &Fitch Stores, Inc., Hollister Co. California, LLC. (Attachments: # 1 Exhibit A − Excerpts from Deposition of Umme−Hani Khan, # 2 Exhibit B − Excerpts from Deposition of CAIR, # 3 Exhibit C − Excerpts from CAIR's Responses to Questions, # 4 Exhibit D − Article, # 5 Exhibit E − Order, # 6 Exhibit F − Judgment)(Related document(s) 133 , 135 , 134 ) (Clark, Daniel) (Filed on 9/9/2013) (Entered: 09/09/2013)
137 MOTION in Limine #1 to Exclude Prejudicial References re EEOC and CAIR filed by Umme−Hani Khan. Responses due by 9/23/2013. Replies due by 9/30/2013. (Ho, Christopher) (Filed on 9/9/2013) (Entered: 09/09/2013)
138 MOTION in Limine #2 to Exclude Lay Testimony re The Look Policy's Alleged Effect on Sales and Branding filed by Umme−Hani Khan. Responses due by 9/23/2013. Replies due by 9/30/2013. (Attachments: # 1 Sirithon Thanasombat)(Ho, Christopher) (Filed on 9/9/2013) (Entered: 09/09/2013)
139 MOTION in Limine #3 to Exclude Inquiries, References, or Evidence Relating to CAIR and CAIR−CA filed by Umme−Hani Khan. Responses due by 9/23/2013. Replies due by 9/30/2013. (Ho, Christopher) (Filed on 9/9/2013) (Entered: 09/09/2013)
140 MOTION in Limine #4 to Preclude Evidence of Backpay, Mitigation, or Offer of Reinstatement filed by Umme−Hani Khan. Responses due by 9/23/2013. Replies due by 9/30/2013. (Ho, Christopher) (Filed on 9/9/2013) (Entered: 09/09/2013)
141 MOTION in Limine #5 to Exclude References to Certain Topics of Examination in Deposition of Hani Khan filed by Umme−Hani Khan. Responses due by 9/23/2013. Replies due by 9/30/2013. (Ho, Christopher) (Filed on 9/9/2013) (Entered: 09/09/2013)
142 Proposed Order re 139 MOTION in Limine #3 to Exclude Inquiries, References, or Evidence Relating to CAIR and CAIR−CA, 138 MOTION in Limine #2 to Exclude Lay Testimony re The Look Policy's Alleged Effect on Sales and Branding, 137 MOTION in Limine #1 to Exclude Prejudicial References re EEOC and CAIR, 141 MOTION in Limine #5 to Exclude References to Certain Topics of Examination in Deposition of Hani Khan, 140 MOTION in Limine #4 to Preclude Evidence of Backpay, Mitigation, or Offer of Reinstatement by Umme−Hani Khan. (Ho, Christopher) (Filed on 9/9/2013) (Entered: 09/09/2013)
143 CERTIFICATE OF SERVICE by Umme−Hani Khan re 139 MOTION in Limine #3 to Exclude Inquiries, References, or Evidence Relating to CAIR and CAIR−CA, 142 Proposed Order,, 138 MOTION in Limine #2 to Exclude Lay Testimony re The Look Policy's Alleged Effect on Sales and Branding, 137 MOTION in Limine #1 to Exclude Prejudicial References re EEOC and CAIR, 141 MOTION in Limine #5 to Exclude References to Certain Topics of Examination in Deposition of Hani Khan, 140 MOTION in Limine #4 to Preclude Evidence of Backpay, Mitigation, or Offer of Reinstatement (Ho, Christopher) (Filed on 9/9/2013) (Entered: 09/09/2013)
145 Witness List by Umme−Hani Khan Plaintiffs' and Defendants' Trial Witness Lists. (Chien, Marsha) (Filed on 9/9/2013) (Entered: 09/09/2013)
146 Joint List of All Parties, Counsel, and Potential Witnesses by Umme−Hani Khan, U.S. Equal Employment Opportunity Commission, Hollister Co., California KKC,

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09/09/2013
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09/10/2013

Abercrombie &Fitch Stores, Inc (Chien, Marsha) (Filed on 9/9/2013) Modified on 9/10/2013 (cpS, COURT STAFF). (Entered: 09/09/2013)
147 Proposed Form of Verdict by Umme−Hani Khan . (Chien, Marsha) (Filed on 9/9/2013) (Entered: 09/09/2013)
148 Proposed Voir Dire by Umme−Hani Khan . (Chien, Marsha) (Filed on 9/9/2013) (Entered: 09/09/2013)
149 Proposed Form of Verdict by Abercrombie &Fitch Stores, Inc., Hollister Co. California, LLC . (Clark, Daniel) (Filed on 9/9/2013) (Entered: 09/09/2013)
150 Exhibit List (Joint) by U.S. Equal Employment Opportunity Commission., Umme−Hani Khan, Hollister Co. California LLC, Abercrombie &Fitch Stores Inc. (Mitchell, Marcia) (Filed on 9/9/2013) Modified on 9/10/2013 (cpS, COURT STAFF). (Entered: 09/09/2013)
151 Proposed Voir Dire by Abercrombie &Fitch Stores, Inc., Hollister Co. California, LLC . (Attachments: # 1 Exhibit A − Proposed Juror Questonnaire)(Clark, Daniel) (Filed on 9/9/2013) (Entered: 09/09/2013)
152 STIPULATION WITH PROPOSED ORDER Regarding Trial Stipulations by U.S. Equal Employment Opportunity Commission, Umme−Hani Khan, Hollister Co. California LLC, Abercrombie &Fitch Stores Inc. (Mitchell, Marcia) (Filed on 9/9/2013) Modified on 9/10/2013 (cpS, COURT STAFF). (Entered: 09/09/2013)
153 Joint Proposed Jury Instructions by Abercrombie &Fitch Stores, Inc., Hollister Co. California, LLC,Umme−Hani Khan, U.S. Equal Employment Opportunity Commission . (Clark, Daniel) (Filed on 9/9/2013) Modified on 9/10/2013 (cpS, COURT STAFF). (Entered: 09/09/2013)
154 [Proposed] Preliminary Statement of the Case by Umme−Hani Khan, U.S. Equal Employment Opportunity Commission, Hollister Co. California LLC, Abercrombie &Fitch Stores Inc. (Chien, Marsha) (Filed on 9/9/2013) Modified on 9/10/2013 (cpS, COURT STAFF). (Entered: 09/09/2013)
155 Revised Proposed Jury Questionnaire and/or Voir Dire Questions by Umme−Hani Khan, U.S. Equal Employment Opportunity Commission, CAIR−CA. (Chien, Marsha) (Filed on 9/9/2013) Modified on 9/10/2013 (cpS, COURT STAFF). (Entered: 09/09/2013)
156 Joint Lists of Discovery Excerpts by Abercrombie &Fitch Stores, Inc., Hollister Co. California, LLC, CAIR−CA, Umme−Hani Khan, U.S. Equal Employment Opportunity Commission (Attachments: # 1 Exhibit A − Parties' Deposition Designations)(Clark, Daniel) (Filed on 9/9/2013) Modified on 9/10/2013 (cpS, COURT STAFF). (Entered: 09/09/2013)
157 Pretrial Conference Statement by Abercrombie &Fitch Stores, Inc., Council on American−Islamic Relations, California (CAIR−CA), Hollister Co. California, LLC, Umme−Hani Khan, U.S. Equal Employment Opportunity Commission Joint Pretrial Conference Statement. (Dexter, Douglas) (Filed on 9/9/2013) (Entered: 09/09/2013)
158 Proposed Order re 133 MOTION in Limine No. 2 to Exclude Evidence of Lost Wages After the Offer of Reinstatement was Made, 134 MOTION in Limine No. 3 to Exclude Evidence Relating to Emails Sent by Anonymous Third Parties to CAIR, 135 MOTION in Limine No. 4 to Exclude Evidence Relating to Other Cases Involving Head Scarfs, 132 MOTION in Limine No. 1 to Exclude Evidence of the Consent Decree by Abercrombie &Fitch Stores, Inc., Hollister Co. California, LLC. (Clark, Daniel) (Filed on 9/9/2013) (Entered: 09/09/2013)
159 ERRATA re 156 Notice (Other), Joint Lists of Discovery Excerpts by Abercrombie &Fitch Stores, Inc., Council on American−Islamic Relations, California (CAIR−CA), Hollister Co. California, LLC, Umme−Hani Khan, U.S. Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A − Parties Deposition Designations)(Mitchell, Marcia) (Filed on 9/10/2013) (Entered: 09/10/2013)

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09/10/2013
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09/11/2013

160 Proposed Order re 159 Errata, Joint Lists of Discovery Excerpts by Abercrombie &Fitch Stores, Inc., Council on American−Islamic Relations, California (CAIR−CA), Hollister Co. California, LLC, Umme−Hani Khan, U.S. Equal Employment Opportunity Commission. (Mitchell, Marcia) (Filed on 9/10/2013) (Entered: 09/10/2013)
161 Minute Entry: Settlement Conference HELD. Matter fully settled. (Date Filed: 9/10/2013). (Court Reporter Not recorded.) (dmrlc1, COURT STAFF) (Date Filed: 9/10/2013) (Entered: 09/10/2013)
162 NOTICE by U.S. Equal Employment Opportunity Commission of Impending Settlement (Mitchell, Marcia) (Filed on 9/10/2013) (Entered: 09/10/2013)
163 ORDER CONTINUING PRETRIAL CONFERENCE. Pretrial Conference set for 9/13/2013 is CONTINUED TO Friday, 9/20/2013 at 9:00AM in Courtroom 5, 2nd Floor, Oakland before Hon. Yvonne Gonzalez Rogers. Signed by Judge Yvonne Gonzalez Rogers on 9/11/13. (fs, COURT STAFF) (Filed on 9/11/2013) Modified on 9/11/2013 (fs, COURT STAFF). (Entered: 09/11/2013)
164 CLERKS NOTICE. THE FRIDAY, SEPTEMBER 20, 2013 PRETRIAL CONFERENCE WILL BE HELD AT 9:00AM.

(This is a text only docket entry, there is no document associated with this notice.)

09/12/2013

(fs, COURT STAFF) (Filed on 9/11/2013) (Entered: 09/11/2013)
165 CLERKS NOTICE: IN LIGHT OF THE COURT'S PREVIOUS ORDER THAT THE NOTICE OF RELATED CASES BE FILED BY SEPTEMBER 17, 2013, AND UNLESS ORDERED OTHERWISE, NO FURTHER PRETRIAL DOCUMENTS NEED TO BE FILED.

(This is a text only docket entry, there is no document associated with this notice.)

09/12/2013
09/12/2013
09/12/2013 09/13/2013 09/15/2013

(fs, COURT STAFF) (Filed on 9/12/2013) (Entered: 09/12/2013)
166 ORDER granting 119 Motion to Relate Case. Case No. 4:11−cv−03162−YGR is a related case and therefore shall be reassigned to me. The two cases shall be consolidated for any proceedings related to settlement, but shall remain separate, stand−alone cases for all other purposes. This order shall be filed in both cases. Signed by Judge Edward J. Davila on 9/12/2013. (ejdlc1, COURT STAFF) (Filed on 9/12/2013) (Entered: 09/12/2013)
167 ORDER TO SHOW CAUSE RE: SETTLEMENT. Order to Show Cause Hearing set for 9/20/2013 10:00 AM. Counsel must appear in person. The Order to Show Cause shall be automatically vacated and the parties relieved of the obligation to appear if documents finally resolving these cases are filed on or before 4:00 p.m. on 9/18/2013. Signed by Judge Edward J. Davila on 9/12/2013. (ejdlc1, COURT STAFF) (Filed on 9/12/2013) (Entered: 09/12/2013)
168 Minute Entry: Telephone Conference HELD before Judge Yvonne Gonzalez Rogers (Date Filed: 9/12/2013). (Court Reporter Not Reported.) (fs, COURT STAFF) (Date Filed: 9/12/2013) (Entered: 09/13/2013)
Case Reassigned to Judge Edward J. Davila. Judge Yvonne Gonzalez Rogers no longer assigned to the case. (Per Related Case Order). Signed by Executive Committee on 9/13/13. (kk, COURT STAFF) (Filed on 9/13/2013) (Entered: 09/13/2013)
169 Transcript of Proceedings held on June 18, 2013, before Judge Yvonne Gonzalez Rogers. Court Reporter Raynee H. Mercado, CSR, Telephone number 510−451−7530, cacsr8258@gmail.com, raynee_mercado@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request

Case: 5:11-cv-03162-EJD As of: 02/09/2014 12:13 PM PST 19 of 19

09/19/2013 01/22/2014

Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 12/16/2013. (Related documents(s) 120 ) (rhm) (Filed on 9/15/2013) (Entered: 09/15/2013)
170 STIPULATED JUDGMENT AND DECREE. The Order to Show Cause issued 9/12/2013 is DISCHARGED and the hearing VACATED. A copy of this order shall be filed in both case numbers and the clerk shall close both files. Signed by Judge Edward J. Davila on 9/19/2013. (ejdlc1, COURT STAFF) (Filed on 9/19/2013) (Entered: 09/19/2013)
171 NOTICE by U.S. Equal Employment Opportunity Commission Notice of Withdrawal (Hulett, Denise) (Filed on 1/22/2014) (Entered: 01/22/2014)