IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

CIV

)

v.

)

)

COMPLAINT

Airborne Express, Inc., and Air One Transport )

Group, Inc., d/b/a Air One Transport of

)

JURY TRIAL DEMANDED

New Mexico, L.L.C.

)

)

Defendants.

)

)

NATURE OF THE ACTION

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

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

provide appropriate relief to Debra Smith, who was adversely affected by such practices during her

employment with Airborne Express, Inc., (“Airborne”). The Commission alleges that Debra Smith was

subjected to unwelcome sexual comments and conduct by employees of both Defendants, which created

a hostile work environment because of her sex, female. The Commission further alleges that Defendant Air

One Transport of New Mexico, L.L.C. (“Air One”), as a third party and an employer subject to Title VII,

unlawfullyinterferedwithMs. Smith’semployment by creating a hostile work environment, whichadversely

affected the terms, conditions and privileges of Smith’s employment with her employer, Defendant

Airborne. The Commission also alleges Defendant Airborne subjected Ms. Smith to retaliatory discipline and failed to promote her because she opposed the unlawful employment practices of Defendants.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. §2000e-5 (f)(1) and(3) ("Title VII") and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. §1981a. 2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the District of New Mexico.
PARTIES 3. Plaintiff, the EqualEmployment OpportunityCommission(the "Commission"),is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Section 706(f)(1) and (3) of Title VII, 42 U.S.C. §2000e-5(f)(1) and (3). 4. At all relevant times, Defendant Airborne has continuously been doing business inthe State of New Mexico, including the City of Albuquerque, and has continuously had at least 15 employees. 5. At all relevant times, Defendant Airborne has continuously been and is now an employer engaged in an industry affecting commerce within the meaning of Section 701(b), (g) and (h) of Title VII, 42 U.S.C. §2000e-(b), (g) and (h). 6. At all relevant times, Defendant Air One has continuously been doing business in the State
2

of New Mexico, including the City of Albuquerque, and has continuously had at least 15 employees. 7. At all relevant times, Defendant Air One has continuously been and is now an employer
engaged in an industry affecting commerce within the meaning of Section 701(b), (g) and (h) of Title VII, 42 U.S.C. §2000e-(b), (g) and (h).
STATEMENT OF CLAIMS 8. More than thirtydays prior to the institution of this lawsuit, Debra Smithfiled charges with the Commission alleging violations of Title VII by Defendants. All conditions precedent to the institution of this lawsuit have been fulfilled. 9. At all relevant times, and under a contractual agreement between both Defendants, Air One employees were assigned to work at the Defendant Airborne’s Albuquerque facility, the facility where Smith worked. 10. Since at least November 2001, Defendant Airborne has engaged in unlawful employment practices at its Albuquerque, New Mexico facility in violation of Section 703(a) of Title VII, 42 U.S.C. §§2000e-2(a) because of sex. These practices include:
a) the harassment of Debra Smith because of her sex, female, which created a hostile work environment; and
b) the failure to take immediate and appropriate corrective action. 11. As described below, since at least November 2001, Defendant Air One has engaged in unlawful employment practices at Airborne’s Albuquerque, New Mexico facility in violation of Section 703(a) of Title VII, 42 U.S.C. §§2000e-2(a) by creating a hostile work environment because of her sex,
3

female, which interfered with Smith’s employment opportunities and adversely affected the terms, conditions and privileges of Smith’s employment with Defendant Airborne. These unlawful employment practices include:
a.) interference with Debra Smith’s employment opportunities with her employer by subjecting her to offensive comments and conduct because of her sex, female; and
b) interference with Debra Smith’s employment opportunities with her employer by Defendant Air One’s failure to take immediate and appropriate corrective action.
12. Since at least November 2002, Defendant Airborne has engaged in unlawful retaliatory employment practices at its Albuquerque, New Mexico facility in violation of Section 704(a) of Title VII, 42 U.S.C. §§2000e-3(a). These retaliatory practices include:
a) subjecting Debra Smith to disciplinary action and adverse terms, conditions and privileges of employment after she expressed opposition to and made complaints about unlawful employment practices; and
b) failing to promote Debra Smith on or about February 2003 because she opposed the unlawful employment practices to which she was subjected.
13. The effect of the practices complained of in paragraphs 10 - 11 above has been to deprive Debra Smith of equal employment opportunities and otherwise adversely affect their status as employees because of her sex, female.
14. The effect of the practices complained of in paragraph 12 above has been to deprive Debra Smith of equal employment opportunities and otherwise adversely affect her status as an employee
4

because of her opposition to unlawful employment practices. 15. The unlawfulemployment practices complainedofinparagraphs 10, 11 and 12 above were
intentional. 16. The unlawful employment practices complained of in paragraphs 10, 11 and 12 above
were done with malice and/or reckless indifference to the federally protected rights of Debra Smith. PRAYER FOR RELIEF
Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunctionenjoining Defendants Airborne and Air One, their officers, successors, assigns and all persons in active concert or participation with it, from engaging in harassment of employees because of sex and any other employment practice which discriminates on the basis of sex. B. Grant a permanent injunction enjoining Defendant Airborne, its officers, successors, assigns and all persons in active concert or participation with it, from engaging in any employment practice which discriminatesor retaliates against any individualbecause of the individual’soppositionto perceived unlawful employment practices and/or because the individual filed a charge, testified, assisted, or participated in an investigation or proceeding under Title VII. C. Order Defendants Airborne and Air One to institute and carry out policies, practices and programs which provide equal employment opportunities for women and for those who oppose perceived unlawful employment practices and/or file charges, testify, assist or participate in an investigation or proceeding under Title VII, and which eradicate the effects of its past and present unlawful employment practices. D. Order Defendant Airborne to makewhole Debra Smithby providing appropriate back pay
5

with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to rightful place promotion of Debra Smith or front pay in lieu of rightful place promotion or placement.
E. Order Defendants Airborne and Air One to make whole Debra Smith by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraphs 10,11 and 12 above, in amounts to be determined at trial.
F. Order Defendants Airborne and Air One to make whole Debra Smith by providing compensation for past and future non pecuniary losses resulting from the unlawful practices complained of in paragraphs 10, 11 and 12 above, including but not limited to, emotional pain, suffering, inconvenience, mental anguish, humiliation, loss of enjoyment of life, and other non pecuniary losses, in amounts to be determined at trial.
G. Order Defendants Airborne and Air One to pay Debra Smith punitive damages for its malicious and/or reckless conduct described in paragraphs 10, 11 and 12 above, in amounts to be determined at trial.
H. Grant such further relief as the Court deems necessary and proper in the public interest. I. Award the Commission its costs in this action.
JURY TRIAL DEMANDED The Commission requests a jury trial on all questions of fact raised by its Complaint. DATED this 30th day of September 2004
Respectfully submitted,
6

ERIC S. DREIBAND General Counsel
JAMES L. LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, NW Washington, D.C. 20507
MARY JO O’NEILL Regional Attorney
C. EMANUEL SMITH Supervisory Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Phoenix District Office 3300 N. Central Ave. Suite 690 Phoenix, Arizona 85012
Electronically Filed LORETTA MEDINA Senior Trial Attorney
VERONICA A. MOLINA Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Albuquerque District Office 505 Marquette NW, Suite 900 Albuquerque, New Mexico 87102 (505) 248-5230
Attorneys for Plaintiff
7

8

 
 ...

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintifl~

)

)

v.

)

) .

DHL Express (USA), Inc.. f/k/a Airborne Express. Inc.,)

and Air One Transport Group, Inc .. d/h/a

)

Air One Transport of New Mexico, L.L.c.

)

)

)

Defendants.

)

----------------------------)

CIV 04-1 IIS.lPlD.lS
FIRST AMENDED COMPLAINT JURY TRIAL DF:MANDED

Comes now, Plainti ff, the Equal Employment Opportunity Commission and pursuant to Rule

15(a) of the federal Rules of Civil Procedure and hereby amends its Complaint filed on September

29.2004 to include as a Defendant, DHL Express (USA), Inc .. a Delaware Corporation which has

merged its business operations with Defendant Airborne Express. Inc.

:'tIATURE OF THE ACTION

This is an action under Title Vll of the Civil Rights Act of 1964, a~ amcnded and Title I of

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

retaliation, and to provide appropriate relief to Debra Smith, who was adversely affectcd by such
practices during her employment with Airborne Express, Inc .• ("Airborne"). The CO~lInission

alleges that Debra Smith was sUbjected to unwelcome sexual commcnts and conduct by employees

of Defendants Airborne and Air One, which created a hostile work environment becausc of her sex.

female. The Commission further alleges that Defendant Air One Transport ofJ\cw Mexico. L.L.C. ("Air One"), as a third party and an cmployer suhject to Title VII. unlawfully interfered with \1s. Smith's employment hy creating a hostile ,,'ork cnvironmcnt, which adversely affected the tcrms. conditions and privilegcs of Smith's employment with her employer. Defendant Airborne. The Commission also alleges Defendant Airborne subjected Ms. Smith to retaliatory discipline and failed to promote her because she opposcd the unlawful employment 'practices of Defendants.
JURISDICTION AND VENUE I. Jurisdiction of this Court is invoked pursuant to 28 U.S.c. §§451. 1331. 1337. 1343 and 1345. This action is authorized and instituted pursuant to Section 706(1)( I) and (3) oflitk VII ofthc Civil Rights Act of 1964, as amended 42 U.S.c. §2000e-5 (1)(1) and(3) ("Title VII") and Section 102 of the Civil Rights Act of 1991. 42 U.s.c. §198Ia. 2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the District of New Mexico.
PARTIES 3. Plaintiff. the Equal Employment Opportunity Commission (the "Commission"). is the agency of the United States of Amcrica charged with thc administration. interpretation and cnforccmcnt of Title VII. and is expressly authorized to bring this action by Scction 706(t)( I) and (3) ofTitle VII. 42 U.S.c. §2000c-5(t)(I) and (3). 4. At all relevant times, Defendant Airborne has continuously bcen doing husiness in thc State ofNel\' Mexico. including thc City of Albuquerque, and has continuously had' at least 15 employees.
2

5. At all relevant times. Defendant Airborne has continuously been and is now an employer engaged in an industry affecting commerce within the meaning of Section 70 I(b). (g) and (h) ofTitle VlI. 42 U.S.c. §2000e-(b). (g) and (h).
6. At all relevant times, Defendant, DHL Express (USA), Inc .. a Delaware Corporation ("DilL") has:
a) continuously had at least 15 employees; b) continuously been and is now an employer engaged in an industry affecting
commerce within the meaning of Section 701 (b). (g) and (h) of Title VII. 42 U.S.c. §2000e-(b), (g) and (h); and c) merged its business operations with the operations of Defendant Airborne and is therefore. for purposes of this lawsuit a successor corporation who is or may be liahle in this action. 7. At all relevant times, Defendant Air One has continuously been doing business in the State of New Mexico. including the City of Albuquerque, and has continuously had at least 15 employees. 8. At all relevant times, Defendant Air One has continuously heen and is now an employer engaged in an industry affecting commerce within the meaning of Section 70 I(b), (g) and (h) ofTitle VlI. 42 U.S.c. §2000e-(b). (g) and (h).
STATDIENT OF CLAIMS 9. More than thirty days prior to the institution ofthis lawsuit. Debra Smith filed charges with the Commission alleging violations of Title VlI by Defendants. All conditions precedent to the
3

institution of this lawsuit have been fulfilled.

10. At all relevant times, and under a contractual agreement between both Defendants,

Air One employees were assigned to work at the Defendant Airborne's Albul\uerl\ue facility, the

facility where Smith worked.

11. Since at least November 2001, Defendant Airborne has engaged in unlawful

employment practices at its Albuquerque, New Mexico facility in violation of Section 703(a) of

Title VII, 42 U.S.C. §§2000e-2(a) because of sex. These practices include:

a)

the harassment of Debra Smith because of her sex, female, which created a

hosti Ie work environment; and

b) the failure to take immediate and appropriate corrective action.

12. As descrihed helow, since at least Novcmber 200 I, Defendant Air One has engaged

in unlawful cmployment practices at Airhorne's Albuquerque, New Mexico facility in violation of

Section 703(a) ofTitlc VII, 42 U.s.c. §§2000e-2(a) by creating a hostile work environment hecause

of her sex, female, which interfered with Smith's employment opportunities and adversely affected

the ternls, conditions and privileges of Smith's employment with Defendant Airhorne. These

unlawful employment practices include:

a.) interference with Debra Smith's employment opportunities with heremployer

by SUbjecting her to offensive comments and conduct because of her sex,

female; and

b) interference with Debra Smith's emplO)111ent opportunities with her employer

by Defendant Air One's failure to take immediate and appropriate correctivc

4

action.

13. Since at least Novcmbcr 2002, Defendant Airborne has engaged in unlawful

retaliatoryemploymcnt practices at its Albuqucrque, New Mexico facility in violation of Section

704(a) of Title VII, 42 U.S.C. §§2000e-3(a). These retaliatory practices include:

a)

subjecting Debra Sqlith to disciplinary action and adverse terms, conditions

and privi leges of employment after she expressed opposition to and made

complaints about unlawful employment practices; and

b) failing to promote Debra Smith on or about February 2003 because she

opposed the unlawful employment practices to which she was subjected.

14. The effect of the practices complained of in paragraphs 11 - 12 above has been to

deprive Debra Smith ofequal employment opportunities and otherwise adversely affect their status

as employees because of her sex, female.

15. The effect of the practices complained of in paragraph 13 above has been to deprive

Debra Smith of equal employment opportunities find otherwisc adversely affcct hcr status as an

elllploy.:e because of her opposition to unlawful employment practices.

16. The unlawful empIO)111cnt practices complained ofin paragraphs 11, 12 and 13 above

were intentional.

17. The unlawful emplO)l1lent practices complained of in paragraphs 11, 12 and 13

above were done with malice and/or reckless indifTerence to thc federally protected rights of Debra

Smith.

PRAYER FOR R~:L1EF

Wherefore, the Commission respectfully requests that this Court:

A. Grant a penllanent injunction enjoining Defendants DHL, Airborne and Air One.

5

thcir officers, successors. assigns and all persons in active concert or participation with them. from engaging in harassment of employees because of sex and any other employment practice which discriminates on the basis of sex.
B. Grant a pennanent injunction enjoining Defendants DHL and Airborne, their otlicers. successors, assigns and all persons in active concert or participation with it. from engaging in any employment practice which discriminates or retaliates against any individual because of the individual's opposition to perceived unlawful employment practices and/or because the individual filed a chargc, testified, assisted, or pal1icipated in an investigation or proceeding under Title VII.
C. Ordcr Defendants DHL, Airborne and Air One to institute and carry out policies. practices and programs which provide equal employment opportunities for women and for those who oppose perceived unlawful.emplo}1nent practices and/or file charges, testi fy, assist or participate in an investigation orprocceding underTitlc VH, and which eradicate the effects ofits past and present unlawful employmcnt practices.
D. Order Defendants DHL and Airborne to make whole Dchra Smith hy providing appropriate hack pay with prejudgment interest. in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to rightful place promotion of Debra Smith or front pay in lieu of rightful place promotion or placemelit.
E. Order Defendants DHL, Airbome and.Air One to make whole Debra Smith by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraphs 11,12 and 13 above, in amounts to be detenilined at ·trial.
6

'. " .

. '

F.

Order Dcfend~llts DI-IL, Airborn~ and Air One _to make whole Debra Smith by

providing com~cnsaiiOl; for pilst and future non pccUI-iiarylos.scs resulting 1rolll the unla",fid

practices conlpl'lincd of in pilragrllphs II, 12 an;f13-;lh~)ve, including hut not limited to, emotional

pain, suffering, inconvenience, mcnml anguish, humili_~tion,loss ofcnjo~11lcnt of Ii fe, and (lther non

pecuniary losses; lriallloullts to be determined atiri(il. -
G. Order Defendants DII L, Airb~i-n~ and Air One to ray Debra Smith puniti\'e damages
,.: .
lor ils malicit'ms and,'o~ n:ckkss conduct uescrib~u in paragraphs II, 12 and 13 :tbo\'~, in mnounts

. to be determined at tri~a, l..
H. Grant su~h t-urther relief as the Court .Iee!i;' necessary anu proper in the public
~; . . '.
interest.

I.

Award the COlllmission its ('\jsts in this action.

JURY TRIAL DEMANDED
- -,
The Commission requests ;1 jury trial on ,111 qlJcstioilS()f fad raised by its Fir,t Amended

Con,plainL
- ..
DATED this Ist day of [)~cel1lber 2004

", ': _~~spcetft~ll}: submitted,

ERIC S.DRElBAl\D

... ---'.-' G. e.ne.r'l.l..

,C.,.:"ounsel ; .'.

-- ,

JA\1ESL LEE

"DeptHy General COllllsel

,G\VENDOLY:-J 'iOUNG REA1\1S ,"

,_ : Ass~i.:iale General COllnsd

,

EQl;A~ E\I!:'LOYMENT OI'PORT{)NI'ry

, COMMISSION
J 8ULL Street, l\W
, .,\Vashington, D.C'. 20507

-;

: '.

~ .'.' ,..

';.

..•.
... .'
. . .:.

. " ......

. ':'

.. "

...... '.'

' . ' .'

" MARY JO O'''JEILL

Regional "'\liorn~Y

"'~

J

'.C EMANUEL SMITH :".' ,Supervisory Trial' Att()rn~y
: ". ' ..: .'
"" EQUAL EMPLOYMEI'ZT OPPORTUI\"IT'r" , , " CO.\1MISSIO"J Phoenix District Office '3300 I'Z:Ccl;tral Ave. : Suite 690 Phoeilix; Arizona 85012
~&~
" LORETTA MEDII'ZA
'Sci~ior 'l'1ial Attomcy
: ..

• ' ,VERO\lICA A, MOLINA

. '_TiialAttorncv

,.

•

,..

J

...J - - .. '

:E'QU..\[ HviPLOYMENT OPPORTL:I\"ITY

. 'Co-MMISSIO"J '

'"

'

Albu,querquc District Office

: 505 Miirqilelle t\W ;SUilt! 900

, :A.liJuquerqut!;' Ncw Mexico 87102 , ."(5ti5j ~48~5230

'Atl,orneysror Plainti n-
........ ,

'... '"'" ,.

'.' . ,;

'.'.

" , .,,;:

. " .. ~. '.'"

. ".' ." . ~::

. .:...

··i.·: '.....

.,: ,"
' --.

'.'

";:.'!..' . , ... :'.

.-. '........'.

:, '.

'. "..

' .. ' .. ;--...

8

"',

 
 IN THE tlNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW :\-IEXICO

EQtlAL EMPLOYMENT OPPORTU:'IIITY COMMISSION.
Plaintiff,
\".
DHL, F/KI... AIRBORNE EXI'RESS, I~('.. and AIR OI\E TRANSPORT GROlIP, 1:-;('., d/b/a AIR ONE TR'-\:'iSI'ORT OF NEW MEXICO, L.L.c.
Defendants.
\'.

. . . " -, ()

: . ' oJ

)

. J '.

)

) CIV. No. CV-04-1118 ,'. .,'

)

JpfP))

)

)

)

)

)

)

)

)

)

DEBRA SMITH.

1)laintiff in Intcn'ention

COMPLAINT IN II'iTEI{vENTION FOR VIOLATIONS OF THE NEW MEXICO HtiMAN RIGHTS ACT AND TITLE VII FOR SEXUAL HARASSMENT ANI) RETALIATION AND INTENTIOI'iAL INFLICTION
or EMOTIONAL DISTRESS, RETALITORY DISCHARGE, BREACH OF CO:'llTRACT
ANI) BREACH OF THE DtiTY OF FAIR DEALING AI'iD REPRESEI'iTATIO~, NEGLIGEI'iT StiPERVISION. A:'IID PRIMA FACIE TORT

COMES l\OW Plaintiff in intcn'ention, lkhra Smith, by and through her counsel.

SERRA, GARRITY & MASlOWSKI, LLC and LAW OfFICE OF GEORGE GERAN, and l'or

her Complaint against Defendants states as 1()lIows:

I. Plaintiff in inten'ention, Dehra Smith (hereinafter "Ms, Smith"') is female and at

all times rde\'ant hereto was a resident of Bernalillo County. New Mexico. At all times pertinent

herein. Ms. Smith was emplo),L'd by Delendant Airborne Express, subsequently purchased by

mIl.. -,

Derendant DilL Ilk/a Airborne Express, Inc, (hercinalier "'Airborne "xpress"') is a

corporation with its principal place of business in Florida. doing business in Ncw Mexico with its facility locatcd at 3241 University Dlvd. l\.E. Albuquerque. New Mexico 87106.
3. Defendant AirOne Transport of Ncw Mexico. LLC Chercinatler "AirOne") IS a foreign limited liability company registered to and doing business in Ncw Mexico. at its primary husin,'ss location at 3241 University S.E.. Albuquerque. New Mexico. At all relcvant times lll!rclo. AirOne was a contractor Il)r Airborne Express. working on site at the Airborne Express facility. AirOnc's employees worked directly with and in the same physical vicinity with Airborne Exprcss employees.
-I. Ms. Smith began working for Airbornc Express in 199-1 as a Field Services Supervisor. In that position Ms. Smith's direct supcrvisor was the Station "'tanager. who reported to the Regional Manager.
5. Prior to February 2003. if there was a problem with AirOne employees. Ms. Smith was inl(lrmcd that she could speak directly to AirOne management. The other mcthod to report problems to AirOnc was Ilx Ms. Smith to rcport the issue to her own manager who would then discuss the situation with AirOne managemcnt. However. after February 2003. the managemcnt at Airhorne Express changcd. Robert Allison became the Station Manager in Fehruary 2003 and
thereafter. Ms. Smith was ordered by Mr. Allison not to wntact AirOne directly: she was
supposed to report the issuc to Mr. Allison. who would thcn work with AirOne management to address and resolve any issue.
6. Ilowevcr. instead of directing AirOne cmployees to respect and abide by what they \\ere asked to do by Airborne Express management. AirOnc employees were specifically told by Tom Bump. the AirOn.: manager that they could ignore Airborne Express management regarding
2

pcrformance/pcrsonnd issues.

7. Through out this time. AirOne cmployees consistently touched Ms. Smith in a

scxual manner, used language derogatory to women, profane language, and physically threatening

gestures in thc workplacl' specitically including:

a.

Daily, a gang of men would be present at the loading dock area. The men

were physically larger, taller, and were an intimidating presence to Ms. Smith. The men

would recount their sexual exploits, real or imagined, (including descriptions of raping

women-such as saying they were "holding the hitch down while she screamed") in

excruciating detail. These conversations took place nearly everyday, 4-5 times a day, but

inereascd in frequcncy after the weekend. The men were particularly obsessed with oral

sex, including such comments as there is "pussy juice on my face" and having a

"mouthful.·' There was no doubt about the sexual nature of these statements. They

would make these comments while looking at :'vls. Smith, challenging her to respond, and

she would tell them to stop:

b. \1s. Smith would confront the group and reprimand them for the

comments. Then they would semi-encircle Ms. Smith. They moved near her, often within

:2 I<:CI, and make the following statements and gestures:

1. The gang of men would make comments about "we'll get that bitch:"

.,
~.

Grab their crotches. look at her and say "I'll give you a big one:"

3. Make masturbating gestures and tell her "1 have a hig one:"

4. Look at her and call her a" fucking bitch:"

5. State "suck my dick," while making masturhating gestures, glaring
3

at h.:r to dare hcr to respond.

c.

Every day, and until \fs. Smith constructively terminated her position, the

gang of men would '"aecidentially'", hut really intcntionally, hrush against her breasts with

their hands and elbows, and rub their penises into her backside on the pretext of getting

by her in a tight space. At the beginning, the hehavior included picking Ms. Smith up

from hehind and/or hugging her too long, but her very visible negativc reaction to these

intentional touchings kd the men to adopt the more deniahle behavior. Regarding the

hehavior the men attempted to deny, including hrushing of her hreasts and ruhbing

against her, when Ms. Smith complained or reacted by moving away, thc men would

often accuse Ms. Smith of overreacting to th.:ir '"accidental'" touches. Nevertheless, the

touching behavior happened so frequently that it was clearly intentional and always

un\\,,: 1come.

d. The mcn would often (daily or almost daily) take large rolled up tubular

packaging materials (3-5 feet in kngth) and pretend they were penises. They would walk

around and masturbate the "penises" and make thrusting motions with them. This

hahitual hehavior was open and notorious and olien witnessed by every person in th.:

facility. The men would say the "penis" was thl'ir '"mother's douche", which actually

means "fuck your mother'";

e. The men would intentionally hlock Ms. Smith's pathway and not let her

pass: and

f.

Cp until 2001. whenever Ms. Smith complained to her manager, thl' initial

4

problem was tcmporarily resolved. before the cxcessivc language and physical behavior occurn:d, howcwr. it would start up again a1'h:r a fcw months. The environment newr rose to thc level where femalc employees felt personally thr.:atened. 8. llowever. in approximately the winter of 2001/2002. Ms. Smith began reporting the hostile environment to Ted Collins. the Distrkt Manager. Mr. Collins stated that he was surprised there had not heen more complaints. and that he had just heard an AirOnc employce say to another that the employec must have had oral sex the night he fore hecause it was still in his lleard. Although Ms. Smith repeatedly complained allout thl:' language and gl:'stures. and Airhorne Express management witnessed the behavior. Airllorne Express did nothing to address or stop the heha\'ior. In fact. the employees came to lldieve as a group that \-15. Smith could lle openly defied. As a result. AirOne employees increased the amount and intensity of their comments. resulting in the intended consequence that Ms. Smith was verbally threatencd with sexual abuse. 9. Starting in approximately the late 1tlll or early winter of 2001. when reporting to Mr. Collins. 1...1s. Smith indicated to him that she was afraid she would be physically hurt llecause of hl'r complaints. She complained to him regularly from then until August 2002. She informed \1r. Collins that AirOn.: employees were constantly saying things such as "fucking bitch" and "fucking cunt." directing those comments at her. she also rcported that shc was afraid. Ms. Smith also reported that thc AirOne employees would make masturllating gestures and carry rolled tulles of buhbk wrap and say it was someone's mother's douche. Evcn alier Mr. Collins witnessed thl! behavior himself. the complaints were not addressed and no remedial action was taken. \1r. Collins would laugh wh.:n told what was being said. and in violation of Airllorne Express' harassment policy. he never reported the language. or took any action to stop the harassment.
5

10. In August 2002. Ms. Smith began documenting the complaints to Mr. Collins. For example. via e-mail dated October 15. 2002. Ms. Smith reported to Mr. Collins that the word "fuck"" was used 10-15 times by a driver whcn AirOne management was present. yd no remedial action was taken by Airborne in response even though another e-mail from around this time states that other fe'male employees are complaining.
II. In October 2002. Ms. Smith also e-mailed AirOne management in Denver and reported that the language was sexual and excessive and had not been addressed by AirOnc. She r<'qllestl'd that the matter be resolved.
12. Despite informing Airborne Express and AirOne management or the harassing behavior. and dcspitc both Airborne Express and AirOne management personally witnessing the harassment. nothing was done to address the issue. Instead. upon ini(lrmation and belie!: the management actively encouraged and participated in the continued harassment. Ms. Smith was the victim or pervasive. unwelcome sexual harassment by AirOne employees. which was condoned and allowed to continue hy Airborne Express. to the extent that it atTccted the terms. conditions and privileges of her employment. Despite knowing of the harassment. her employer Airborne Express failed to take immediate and appropriate action and instead condoned and encouraged the harassm.::nt by failing to act and encouraging the continued harassment. Airborne Express then retaliated against Ms. Smith for reporting the harassment.
13. During the entire time Ms. Smith was subjected to a hostile environment. Airborne Express had established written policies against harassment and discrimination. as wdl as other matters. The sexual harassment policy defines abusive langllage lIsed by non-employees as sexual harassment and states that it will not be tolerated. The policy stated: ""all supervisors have an
6

aflirmative duty . . . to protect employees trom discrimination and to promptly report such incidents to Human Resources:· The policy also encourages reporting of any incident or r~taliation to the employee·s sup~rvisor. The discrimination policy provides: ··concerns or complaints will be promptly investigated. No one will sutTer retaliation for reporting such concerns ....
14. Despite following the policy and reporting the harassment to her supervisor. and dC'spite the sup~rvisor witnessing the behavior. Airborne Express management did not follow the policy and no investigation was ever done as required.
15. In the tall of 2002. ;vIs. Smith insisted that Mr. Collins report the AirOne employees' b~havior to Airborne Express' Human Resources. Mr. Collins stated that if they did. the District and \1s. Smith would be "placed under a microscope". Ms. Smith insisted that. if the problem was not resolved. she would contact Human Resources herself.
16. Prior to these complaints. Ms. Smith had nevcr been disciplined and always had good performance evaluations. However. on or about ~ovember 21. 2002. within weeks of tclling Mr. Collins that if he did not do so. Ms. Smith would contact Human Resources about the AirOne employees conduct. 1....1r. Collins reported Ms. Smith to IIuman Resources for requ~sting that an employee "waddle on up herc" (to the ol1ice). As a result of that complaint. Ms. Smith was reprimanded even though the employee did not complain and did not find the comment otTi:nsive. Waddle is not a sexual comment.
17. In the tall of 2002. Mr. Collins sent a memo to Airborne Expn:ss employ.:es indicating they should trcat each other with respect. However. the memo was not given to the AirOnc employees. Inst~ad. the harassment continued and escalated and Airborne Express
7

employet!s hecame involved. 18. Everyone knew that Ms. Smith was one employee who was complaining about the
sexually charged wurk environment. On ]\;ovemher 21. 2002. Mr. Allisun. a co-worker. called Ms. Smith a "fucking bitch." After she reportcd him, Mr. Allison would stand inches from Ms. Smith and would ball his hands into fists and glare at her. This happened most days f,)r at kast 2 to 3 months, and continued even atter he was made \15. Smith's manager. At least 10 times, Ms. Smith told Mr. Collins, the District Manager that she was afraid and did nut want to bt! alone with Mr. Allison because she was afraid of being physically assaulted by him. But all Mr. Collins did was laugh at her. Immediately following Airborne Express's ratification of this parti<:ular harassing behavior. an employee cut a finger otl" a glove and tacked it on the Airborne Express bulletin board, with a sign that it was a condum.
19. Subsequent to Mr. Allison calling her a "fucking bitch:' Ms. Smitb contacted Iluman Resources directly. She reported the excessive sexual profanity and gestures. the constant use of the words "tuck:' "fucking bitch," "fucking cunt." "suck my dick:' and masturbating gestures hy the AirOne employees. Shc also reported that Slllneone had cut the finger off a glove with a note that it was a condom and stuck it on the company bulletin board. Ms. Smith also informed Human Resources sht! had been reporting these types of incidents to \1r. Collins for about one year. Even alier this report. no investigation was commenced. Instead. she was berated by Iluman Resour<:es for using the term "waddle" over the intercom and questioned as to why she did not take the finger otl" the bulletin board immediately.
20. Within a fi:w days. Ms. Smith also report<:d to Human Resources that Mr. Allison called her a "fucking hitch" and that she was afraid of him.
8

21. Within days after reporting him to Human Resources, Mr. Collins thn:atened Ms. Smith's joh. He told her that she and the Cll-worker cither had to get along or they should n:sign.
'">-, By the beginning of Deccmher 2002, Ms. Smith notified I luman Resources that the harassment and retaliation were ongoing and constant and were affecting her emotionally and physi,ally, and making it nearly impossible to fun,tion in her work environment.
2J. Even after reporting to Iluman Resour,es, AirOne employees continued their hehavior and escalated their otTensive conduct. The profanity and gestures increased. AirOnc employees intentionally did this to threaten Ms. Smith. They would stand physically close to her, and encircle her in a threatening and intimidating manncr and spew their sexual remarks and and pert"lJrln sexual actions at her, and then dare her to report it. This was witnessed by Airborne Express and AirOne management. who did nothing.
24. In mid-f)ecembc'r 2002, Mr. Collins told \1s. Smith that Airhorne Exprcss had just pre\'ailed in a lawsuit that established vulgar language was not sexual harassment and that a coworker said Ms. Smith was setting up Airborne Express for a lawsuit. I Ie later informed \1s. Smith that a ,ontractor had complained that Ms. Smith was dim,ult to work with.
25. The excessive prorane languagc and gestures and physically threatening behavior continued. No inn!stigation was ever done, no one was disciplined, and no remedial action was undertaken. Ms. Smith became so emotionally and physically ill from the environment and the lack or response trom Airborne Express and AirOm: that she was forced to tuke medical leave. The leave temporarily helped her medical issues, to some extent. llowever, afkr her return. the behavior ,ontinued to the extent and degree that Ms. Smith's illness fully returned, worse than ever. The leave and the reason fllr the leave were wcll-known to all involved in management.
9

26. After Ms. Smith complained about Mr. Allison, Airborn~ Express promoted him to Ms. Smith's supervisor.
27. Ms. Smith was retaliated against because of her complaints. Despite being fully qualified for the position of Station Manager. <tnd having more experknce, Ms. Smith was denied the promotion (given to Mr. Allison) hecause of her complaints. Ms. Smith was asked by Jim Cullen, the Regional Man<tger, in her job interview that if she could not handle the language how she could handle the job. Ms. Smith's reply was "If I get the joh, the environment would not be an issue," meaning that \\"ith supervisory authority she would attempt to clean up the involved behavior. Mr. Collins informed Ms. Smith the interview presentation would be verbal. She was not tllid until the day of the interview that they expected a written presentation with graphics, although Mr. Allison had been informed of this to allow him to properly prepare such a presentation. Once Mr. Allison recei\'ed the promotion, he changed Ms. Smith's job schedule without business justification to one that was less desirahle, and told Ms. Smith she could not contact AirOne management and all issues had to go through him.
18. Airborne Express's response to Ms. Smith's rep~ated complaints of offensive s~xual language and gestures and other sexual harassment that she endured was entirely inadequate. Because of the severe sexual harassmcnt, and retaliation Ms. Smith was forced to ~ndure an intolerable and hostil~ work environmcnt at Airhorne Express. Airborne Express failed to eliminate the hostile work environment and instead ratilied and condoned Mr. Collins', \1r. Allison's and AirOne's ilkgal behavior, exacerbating the hostile work environment and Ms. Smith's cnwtional and physical distn:ss.
29. By the spring of 2002, it was clear to Ms. Smith that Airborne Expn:ss had not
10

taken. and would never take. the action necessary to end the illegal workplace harassment and retaliation. This resulted in her constructive termination trom Airhorne Express.
30. AirOne is an employer covered by Title VII. AirOne. because of its on-site presence at Airborne Express. and because of the continuous interaction with Airborne Express employees has the ability to affect the terms. conditions or privileges of Airborne Express employees' employment. By its employees' sexually harassing behavior and its failure to stop
or the harassment. AirOne adversely affected Ms. Smith's terms and conditions employment with
Airhorne Express and interfcred with that employment relationship. 31. As a result of the sexual harassment. hostile work environment. and retaliation
perpetuated by Airborne Express and AirOne. Yls. Smith has experienc.:d and continues to experience insomnia. trouble eating. anxiety attacks. depression and other issues. Ms. Smith also received. and continues to recd\·e. counseling and medical care rdated to the depression and anxiety experiences hccause of the treatment she endured.
Ms. Smith has met all administrati\'e requirements and exhausted administrative n:rnedies. Ms. Smith received prohable cause determinations from the EEOC as to the charges against Airhorne Express and AirOne on April 5. 2004. On September 30. 2004 the EEOC filed its complaint herein against the Defendant. At this time. Ms. Smith has met all administrative requirements necessary.
COlJNT I NM Human Rights Act- Gender Discrimination and Sexual Harassment
(Airborne Express and AirOne) 33. Ms. Smith im:orporates and re-alleges Paragraphs I through 32 above as if fully set forth herein.
1 I

34. The New Mexico Human Rights Act. NMSA. 1978. Section 28-1-7. makes it an unlawful and discriminatory practice for an employer to discriminate in the terms and conditions or privilegcs of employment because of a person's sex. AirOne and Airborne Express are both emplll}'Cfs covered by the New Mexico Human Rights Act. Ms. Smith was an employee of Airborne Express. AirOne. as the on-site contractor. had the ability to alleCl the terms and conditions or privileges of Ms. Smith's employment. and dirl'ctly and intentionally adversely interfered with Ms. Smith's employment relationship with Airborne Express.
35. Airborne Express and AirOne had a dUly by Inw not to discriminate against Ms. Smith because she is female.
36. Airhorne Express and AirOne brl'ached their duty to not discriminate against Ms. Smith and violated NMSA 1978. Section 28-1-7. by its aforementioned actions. inaction and omIssIons. that resulted in the unlawful sexual harassml'nt of Ms. Smith and created and perpetuated a sexually and physically hostile work environment.
37. As a direct result of the aforesaid conduct by Airhorne Express and AirOne. Ms. Smith has suffered and will continue to suller physical injury. severe emotional distress. emharrassment. humiliation and loss of employment. Further. as a direct result of the aforesaid conduct by Airborne Express and AirOne, Ms. Smith has been prevented from perfllrming her normal daily acti vities and obtaining the full enjoyment oflife and has sustained loss of earnings and medical expenses and will continue to incur other related damages.
38. The conduct of Airborne Express and AirOne set lorth above was intentional. willfu\. malicious. reckless. wanton and/or grossly negligent and was undertaken with a total disregard \c)r ~s. Smith's rights and feelings. knowing that its ad ions or inactions would cause
12

Ms. Smith to suffi:r severe emotional distress.

WIIEREFORE. on Count I. Ms. Smith prays for th.: entry of judgment in her favor and

against Airhorne Express and AirOne. awarding her compensatory damages. and reasonable

attorney fees. together with pre-judgment interest. post-judgment interest. costs and such further

rdief as th.: Court deems proper. When Plaintiff in Intervention uses the term "compensatory

damag.:s" herein that term is intended to include at least the following categories of damages:

a) hackpay:

h) loss offringe bendits:

c) loss of future carnings and future lost b.:neiits:

d) emotional distrl!ss damages:

C) medical and psychological expenses:

t)

future medical and psychological expenses:

g) loss of household sen'ices:

h) loss of enjoyment of life:

i) pre and post-judgment interest: and

j) any other damages which this Court deems fit and proper.

COUI\'[ II Title VII of the Civil Rights Act 196.... as amended in 1991 • ...2 lJ.S.C.. 2000. et seg.- Gender Discriminlltion and Sexual Harassment
(Airborne Express and AirOne)

39. Ms. Smith incorporates and re-alleges Paragraphs 1 through 38 ahove as if fully

s.:t forth herein.

"'0. Title VII of the Civil Rights Act of 1964 as am.:nded....2 U.S.c.. § 2000e5(1): and

13

28 U.S.c:.. et. seq .. makes it an unlawful employment practice for an employer to discriminate

against any individual in the terms and conditions of her employment because of her sex.

41.

AirOne and Airborne Express are both employers covered by Title VII. Ms.

Smith was an employee of Airborne Express. AirOne. as the on-site contractor. had the ability to

affect th~ terms and conditions or privileges of Ms. Smith's employment, and as a result of the

actions in perpetuating a hostile environment. and not addressing the environment after heing

notitied. and the other actions mentioned ahove. directly and intentionally adversely interfered

with ~1s. Smith's employment relationship with Airborne ExprL'ss.

42. The aforementioned actions of Airhorne Express and AirOne and their employees

constitute unlawlill sexual harassment. creating a hostile work environment in violation of Title

VII. as amended.

43. As a direct result of the afi:lresaid conduct hy Airborne Express and AirOne. Ms.

Smith has sutferL'd and will continue to suffer physical injury. severe emotional distress.

embarrassment, humiliation and loss of employment. Further. as a direct result of the aforesaid

conduct by Airborne Express. yjs. Smith has been prevented from performing her normal daily

activities and obtaining the full enjoyment of life and has sustained loss of earnings lUld medical

expenses and will continue to incur other related damages.

44. Defendants' actions were intentional. willful. malicious. reckless. wanton. grossly

negligent and deliherately indifferent to Ms. Smith's rights and feelings. thereby entitling Ms.

Smith to an award of punitive damages.

WI·lI'REFORE. on Count II. Ms. Smith prays for the entry of judgment in her favor and

against Airborne Express and AirOne. awarding her compensatory damages. punitive damages

14

and reasonahle attorney fees. together with pre-judgment interest. post-judgment interest. costs and such further relief as the Court deems proper.
COl!NT III :'11:\1 Human Rights Act-Retaliation
(Airborne Exprcss) 45. tv1s. Smith incorporates and re-alleges Paragraphs I through 44 ahove as if fully set forth herein. 46. The New Mexico Human Rights Act. NMSA. 1978. Scction 28-1-7. makes it an unlawful and discriminatory practice lor an cmployer to retaliate against a person for complaining of acts ilkgal under the I'MHRA and asserting rights protected by the Act. 47. In direct retaliation for complaining of the hostile environment. Ms. Smith sulkred adverse employment action. including but not limited to. heing unjustly disciplined. changing hcr scheduled to a less desirahle shift. heing denied a promotion. and making the environment so intolerahle no reasonahle person would stay. thus forcing her to resign. 48. Airborne Express breached its duty to not retaliate against Ms. Smith and violated \"MSA 1978. Scdion 28-1-7. by its aforementioned actions and inaction. 49. As a direct result of the al()resaid conduct hy Airhorne Express. \<1s. Smith has sufkred and will continue to suffer physical injury. severe emotional distress. emharrassment. humiliation and loss of employment. Further. as a direct result of the aforesaid conduct by Airborne Express. Ms. Smith has been prevented trom perfllfllling her normal daily a<:tivities and ohtaining thc full enjoyment of life and has sustained loss of earnings and medical expenses and will continue to incur other related damages.
15

50. Th.: conduct of Airborne Express sct forth above was intentional. willful. mali~ious. re~kless. wanton and/or grossly negligent and was undertaken with a total disregard for \1s. Smith's rights and feelings. knowing that its a~tions or inactions would ~ause Ms. Smith to suiTer sevcre emotional distress.
WIIERErORE. on Count Ill. Ms. Smith prays for th.: cntry of judgment in her favor and against Airhorne Express. awarding her compensatory damages. and reasonahle attorney fees. together with pre-judgment interest. post-judgment interest. eosts and such further rdief as the Court deems proper.
COlJ;'IIT IV Title VII of the Ci~'il Rights Act 196", as amended in 1991,
..2 U.S.c., 2000, et seg.-Retaliation (Airborne Express and AirOnc)
51. \1s. Smith incorporates and n:-alleg.:s Paragraphs I through 50 above as if fully set forth herein.
52. Titk VII of the Civil Rights Act of 1964. as amended...2 U.S.Coo § 2000e5(1): and 28 U.S.Coo et. s('qoo mak.:s it an unlawful employment practice t(lr an employ.:r to retaliate against an employee who complains of discrimination and/or who asserts the rights provided to them under litll' VII.
53. The aforementioned actions of Airhorn.: Express and AirOne and their .:mployees constitut(' unlawful retaliation in violation of Title VII. as am.:nded.
54. As a direct result of the aforesaid conduct by Airborne Express and AirOne. Ms. Smith has sutTered and will continue to suiTer physical injury. sever.: emotional distress. embarrassment. humiliation and loss of employment. Further. as a direct result of the aforesaid
16

conduct by Airborne Express and AirOne. Ms. Smith has been prevented trom performing her normal daily activities and obtaining the full enjoyment of life and has sustained loss of earnings and medical expenses and will continue to incur other related damages.
55. Defendants' actions were intentional. willful. malicious. reckless. wanton. grossly negligent and deliberately indifferent to Ms. Smith's rights and feelings. thereby entitling Ms. Smith to an award of punitive damages.
WIIEREFORE. on Count VI. Ms. Smith prays Illr the entry of judgment in her favor and against Airborne Express and AirOne. awarding her compensatory damages, punitive damages and reasonable attorney fees, together with pre-judgment inteTl:st. post-judgment inl<:rest. costs and such further relief as the Coun deems proper.
COU"'T V Intentional Infliction of Emotional Distress
(Airborne Express and AirOne) 56. Ms. Smith incorporates and re-alleges Paragraphs I through 55 above as if fully sct f(.lTth herein. 57. Airborne Express and AirOne have intentionally chosen not to imp\cI1H:nt an effective sexual harassment policy with knowledge that the policy in place at the time of Ms. Smith's employment was totally inelTective and meaningless. Airborne Express and AirOnc's actions and inactions as described above, including the total failure to respond in any way to Ms. Smith's complaints and then the subsequent retaliation, encouraged and perrnilted male perpetrators, to prey on female employees, such as Ms. Smith. 58. Airborne Express and AirOne knew or should have known Ms. Smith and other woman were being sexually harassed and/or discriminatl'd against with no .:t"fectivc means to
17

prevent and/or stop said harassment and knew that Ms. Smith was experiencing severe emotional distress as a result.
59. Airborne Express and AirOne's inaction and lailure to prevent the sexual harassment of Ms. Smith. and its failure to remedy the harassml'nt once they beeame awan:: of the situation. the failure to act in any way. or to remove Mr. Collins or Mr. Allison Irom the supervision llf and/or contact with Ms. Smith. and otherwisl! perform an adequate and effective investigation of Ms. Smith's daims and the retaliation. were intentional. willful. malicious. reckless. wanton and/or grossly negligent.
60. The conduct of Airborne Express and AirOne permitted the employees to have access to and sexually assault and harass Ms. Smith. This conduct constitutes an intentional inlliction of emotional distress upon Ms. Smith and has caused h<:r to sutTer severe emotional distress. thereby entitling her to an award of actual. compensatory and punitive damages.
61. The conduct of Airborne Express and AirOne set forth above was intentional. willful. malicious. reckless. wanton and/or grossly negligent and was undertaken with a total disregard for Ms. Smith's rights ,md feelings. knowing that its actions or inactions would cause Ms. Smith to suiTer sever.: emotional distress.
WHEREfORE. on Count V. Ms. Smith prays for the entry of judgment in her favor and against Airborne Express and AirOne. awarding her compensatory damages and punitive damages. together with pr<:-judgment interest. post-judgment interest. costs and such further relief as the Court deems proper.
18

COUNT VI Retaliatory Discharge
(Airborne Express) 6~. Ms. Smith incorporatcs and re-alleges Paragraphs I through 61 above as iI' fully set forth herein. 63. Th.: aforementioned actions and inactions of Airborne Express created a working environment that would have been intolerable to any reasonable employee, was designed to have the effect of causing Ms. Smith to terminate her employment against her will and left Ms. Smith no alternative but to terminate her employment. 6·+' Ms. Smith report.:d unlawful sexual harassment and discrimination against women, which is a report on a matter of public concern as evidenced by Title VII and the NMIlRA I30th statutes make discrimination illegal and provide a legal right to report such activities. Ms. Smith reported these illegal actions for herself and to protect othl'rs. 65. The refusal of Airborne Express to abide by its legal obligation to protect the rights of Ms. Smith. thc refusal to remedy the cnvironment in order to ensure her salety in the workplace and the retaliation, constituted a retaliatory dischargc of Ms. Smith's employment with Airborne Express. 66. Then:fore, Ms. Smith was wrongfully terminated and constructively discharged by Airborne Express. 67. All of Airborne Express's actions were intentional, willful, malicious. reckless, wanton, grossly negligent and deliberately indifferent to Ms. Smith's rights and feelings, ther.:by c'ntitling \1s. Smith to an additional award of punitive damages. 68. As a result of Airborne Express's conduct. Ms. Smith has suffered and will
19

continue to suiTer economic damages, embarrassmcnt. humiliation and severe emotional distress, as well as other related damages.
WHEREFORE, on Count VI. Ms. Smith prays l()r thc entry ofjudgment in her favor and ag.ainst Airborne Express, awarding. her compensatory damages and punitive damages, together with pre-judgment interest, post-judgment interest, costs and such further relief as the Court deems proper.
COUNT VII Grossly Negligent Supenision and Retention
(Airborne Express and AirOne) 69. Ms. Smith incorporates and re-alleges Paragraphs I through 68 above as if fully set forth herein. 70. Airhorne Express was grossly negligent in supervising and retaining Mr. Collins and :vir. Allison, especially following Ms. Smith's report tll Human Resoun:es of the hostile environment. and the fact that nothing was done to prewnt Mr. Collins or Mr. Allison from permitting the constant and continual and subsequent harassment of Ms. Smith. AirOne was grossly ncgligent in retaining Tom Bump after they became aware of the hostile work enviTllllment alld discrimination created by their employees and Tom Bump, who witnesses the AirOne employee's behavior and participated himself. This was because Airhorne Express and AirOne had no etTeetive policy in placc to protcct female employees, failed to enf(lrce policies designed to protect female employees from predators, failed to adequately investigate complaints of sexual harassment and takc ellective remedial action, faikd to monitor the activities of its employees following notice of the harassment, failed to adequately investigate and act upon the complaints made hy Ms. Smith. and failed to provide adequate training to all employees
20

concerning the prohibition against and prevention of and investigation of inappropriate sexual misconduct and failed to act subsequent to th~ complaints of a hostik work environment.
71. The aforesaid conduct of Airhorne Express and AirOne constitutes gross negligence and evidences a complete and total disregard for the rights and fedings of all female employees of Airhorne Expn:ss and AirOne, including Ms. Smith.
72. Airborne Express and AirOne reasonably knew or should have known that if it ignored complaints of sexual harassment and tailed to act in any manner to investigate and remedy a hostile work environment. harm to remale employees would likely he caused by such conduct and/or by the actions and omissions of Airhorne Express and/or AirOne in failing to prevent or effectively respond to such conduct.
73. As a direct result of the aforl!said conduct of Airborne Express and/or AirOne, Ms. Smith has sutlcred and will continue to suffer physical injury. severe cmotional distress, emharrassment, humiliation and loss of employmc'nt. Further, as a direct result of the aforesaid clmduct. Ms. Smith has been prevented from performing her normal daily activities and ohtaining the full enjoyment of life and has sustained loss of earnings and medical expenses and will continue to incur other related damages.
74. The actions of Airborne Express and AirOne were willful. malicious, reckless. wanton and/or grossly negligent, thereby entitling Ms. Smith to an award "f punitive damages.
WHEREFORE. on Count VII, Ms. Smith prays for thc entry of judgment in her favor and against Airhorne Express and AirOne, awarding her compensatory damages and punitive damages, togethc:r with pre-judgment interest, post-judgment interest. costs and such further rdief as the Court deems proper.

COliNT VIII Breach of Contract (Airborne Express) 75. Ms. Smith incorporates ami re-alleges Paragraphs 1 through 74 above as if fully set forth herein. 76. Plaintitl' was employed by Airborne Express undcr a wTittcn. oral and/or implied contract of employment that was modi lied and re-ent(.lrced by certain policies. practices. assurances and other express and implic!d statements of Airborne Express. Among these explicit policies were policies that banned gender discriminatitlll and harassment. mandated immediate and thorough invcstigation of gender discrimination and harassment complaints. and prompt discipline when such complaints were validated. In said contract. it was implicitly agreed that Plaintiff would not bc impeded in her job duties. and that she would be terminated only for cause. Plaintiff entered into said contract. inll'/, 1Ilill. to secure peace of mind and financial stahility. and refrained from seeking employment elsl'where in reliance thereon. 77. At all times material hereto. Plaintiff performed her obligations under her contract with Airborne Express. Airhorne Express breached its express and implied contractual commitments to Plaintiff by constructively terminating her employment without proper cause. allowing gender discrimination and harassment. failing to timely conduct investigations. and failing to discipline and supervise those who harassed and discriminated against Ms. Smith. 78. At the time the parties entered into the contract. as alleged herein above. it was known and understood. and within the reasonahle contemplatinn of the parties. that in the event of a hreach. Plaintiff would suffer present and future loss of earnings as a foreseeable and

prohahle result thereof. 79. As a direct and proximate result of Airhorne Express's hreach of the contract.
Plaintiff in fact has suffered loss of wages and henelits. the full extent and nature of which are presently unknown to her.
WHEREFORE. on Count VIII. Ms. Smith prays Ii.,r the entry of judgment in her favor and against Airborne Express. awarding her compensatory damages. together with pre-judgment interest. post-judgment interest. costs and such further rc:lief as the Court deems proper.
COliNT IX Breach of Connant of Good Faith and Fair I)ealing
(AirbornI!' Express) 80. Ms. Smith incorporates and re-alleges Paragraphs 1 through 79 above as if fully set forth herein. 81. Plaintiff and Airborne Expro:ss entered into a written. oral and/or implied employment contract upon her hire and during the term of Plaintifl's employment. The basic terms of the agreement provided that Plaintifl's employment would be secure as long as her perfonnance was satisfactory. that Plaintiff would not be impeded in her perll)rmanee or career expectations. that PlaintilY would not be terminated without good cause. and that Plaintiff would earn agn:ed-upon wages and fringe benefits. 82. Plaintiff undertook and continued employment. and duly performed all of the conditions of the employment agreement to be performed by her until prevented from further per/i.1rmance by Airborne Express. PlaintilY had at all times been ready. willing and ahle to pcrfonn all of the conditions of the agreement to be performed by her.
23

83. From the time sht: reported tht: gender discrimination and harassment. Airborne Exprl'sS hreached th" covenant ,)1" good faith and fair dt:aling by constructively terminating her, hy I[Jiling to investigate. by failing to follow its own policy prohibiting harassment. hy failing to act in any way to stop and prevent sexual harassment and discrimination. by n:taliating against hl'r when she complained, and by I[Jiling to secure her suitahle employment where she would not be suhjected to such discrimination.
8-1. PluintitTperformed all conditions precedent to Airhorne Express's perl,)rmance of its oblig,ni'''Js under the contract. Plaintirt's performance was at all times satisfactory.
85. The law imposed duties on Airhorne Express, in connection with the employment agret:ment, to act fairly and in good faith towards Plaintiff. Airborne l'xpress covenanted to give full cooperation to Plaintiff in her performance under the <!mployment agreement and to refrain from any act which would pre\'t:nt or impede any of the conditions of the employment agreement from being performed. which would deny the employment agreement or which would prevent Plaintiff Ii-om receiving the benelits of the employment agr.:ement, or would harm Plaintiff in connection wilh the perl()rmance of her duties pursuant that contract. or prevent PlaintitT from securing damages for such harms. Airborne breach.:d this covenant by allowing gender discrimination and harassment, failing to timely conduct investigations. and failing to discipline and supervise those who harassed and discriminated against Ms. Smith.
86. At the time the parties entered into the covenant, as alleged herein ahove. it was known and understood and within the reasonable contemplation of the parties that in the event of a breach. Plaintiff would suiTer loss of earnings and economic damage. As a dir.:ct and proximalt: result of Airborne Express's conduct, Plaintiff has suffered loss ,)f earnings and
24

economic damage in an amllunt according to proof but exceeding the jurisdictional minimum of this Court.
WHEREFORE. on Count IX. Ms. Smith prays for the entry ofjudgmcnt in her favor and against Airhorne Express. awarding her compensatory damages and punitive damages. together with pre-judgment interest. post-judgment interest. costs and slich further relief as the Court d"cms proper.
COlJNT X Tortious Interference With Contractual,
Business, And Employment Relations (AirOne)
R7. Ms. Smith incorporates and re-alleges Paragraphs 1-86 as through if fully set forth herein.
88. AirOne and its agents. principals. and employees intentionally interl<:red with Yls. Smith's perlllTlllanCe of her assigned job with Airhorne Express by the sexual harassment. retaliation and other harassment that it daily inflicted upon Ms. Smith. Thl'se hehaviors occurred eYen though AirOn.: and its agents. principals and employees each had explicit. direct knowkdge of thl' I([(;t that Ms. Smith had an on-going contractuaL business and/or employment relationship with Airhorne Express.
89. Becausl' of the interlerencc hy AirOne. and hecause of the emotional and physical distress of encountering the violent, sexual. retaliatory. defamatory and opprl'ssive work atmosphere on a daily hasis which \vas created in suhstantial part by AirOne and its agents. principals and cmployees, Ms. Smith's relations with Airhorne Express were substantially compromised to the extent that Airhorne Exprcss lost faith in her substantial management
25

capabiliti.:s. 90. As the in\"lllved interference increased. and as Ms. Smith's emotional and physical
distrl'ss also incn:ased due to the daily violent, sexual. retaliatory. defamatory and oppressiw work atmosphen: created in substantial part by AirOnc and its agents, principals and employees, Ms. Smith' s relations with Airborne Express got substantially worse. and the Airborne Express workers began to openly criticize and ignore Ms. Smith as well.
91. Ultimately the involved interlerence directly caused Airborne Express to constructively terminate Ms. Smith as detailed aho\'C. The loss of the job. as well as the underlying harassment and intcrfl'rence directly caused Ms. Smith substantial damages including causing her to seek medical and psychological attention. and causing her to move across country to lind replacement employment and the like.
92. The involved harassment and intertcn:nce wen: without excuse or privilege, and were kno\\ing. reckless, intentional. purposeful. and taken with the improper motive to end Ms. Smith's on-going employment by Airborne. As such, Ms. Smith is entitled to punitive, as well as compensatory damages.
WIIEREFORE. on Count X. Ms. Smith prays It)r the entry of jUdgment in her favor and against AirOnc. awarding her compensatory damages and punitin: damages. together with prejudgment interest, post-judgment interest, costs and such further relief as the Court deems proper.
COlTNT XI I'rima Facie Tort
(AirOne) 9.1. \1s. Smith incorporates and re-alleges Paragraphs I through 92 ahove as if fully
26

s~t forth hcr.:in. 94. Airhorn.: Express management and employees and AirOne management and
employees all condoned the unlawful sexual harassmcnt. Th.: defendants collectively encouraged the continued hostile environml!nt. AirOne fail.:d to investigate the complaints regarding its employees and management. and fail.:d to take any action designed to prevent .:ontinu~d harassment. AirOne mirrored the response hy Airhorn.: Express, the Company that hdd its contract. Indeed, hoth companies acted to prcserve their contractual relations and cause as little disagreement and discord as possihle, with th~ direct result of minimizing and ignoring Ms. Smith's complaints and the complained-of harassing acts. The acts of AirOne were taken with the motive of unreasonahly and without privilege ahsolutely preferring AirOnc's own l'conomic int.:rests ov.:r Ms. Smith's physical, emotional and economic integrity.
95. The acts of AirOnc as set forth her.:in, constitutl' a prima facie tort as the acts of AirOne were taken with the express und.:rstanding that AirOne's hehavillr would harm and continue to harm \1s, Smith, such harm did result, and the involved acts were taken without legal excus~ or justification, and wer~ impropcr in all regards.
96. As a direct and proximate rl!sult of AirOne's, Plaintiff has suffered and will continue to suiTer pain and suffering, and cxtrem~ and scvere mental anguish and emotional distress: she has incurr.:d and will continue to IIlcur medical expenses for treatmcnt hy psy.:hotherapists and other health professionals, and Illr other incidental expenses: and she will .:ontinue to suffer a loss llf earnings and joh opportunities. Plaintiff is therehy cntitled to general and compensatory damages in amounts to be proven at trial.
97. AirOnc's conduct as descrihed herein was malicious and oppreSSlVC, and done
27

with a conscious disn:gard of Plaintifl-s rights. WIIEREFORE. lln Count XI. Ms. Smith prays for the entry of judgment in her favor and
against AirOnc. awarding her compensatory damages and punitiv.: damages. together with prejudgment interest. post-judgment inter<:sl. costs and such further rdief as the Court deems proper.
Respectfully submitted.
~W\1{J,5IP~ Michele Masiowski Diane Garrity Serra. Garrity & Masiowski. LLC 1'.0. Box 8177 Santa Fe. New \1exico 87504 (505) 983-6956 George Geran. Esq. Law Otlices of Gcorge Geran 6~5 Franklin Avcnue Santa Fe. NM 87505 (505) 9l!3-1 085 AttortleJ'.lIor Plailltiff ill /Ilten'elltillll
~8

CHARGF OF DISCRIMINATION
t 1"-"=C<.~_':.n'J~~': l)~~...: __ .•.. _____. ' __________ . ____ .

IAG[NCY
LJ f[rA
(,:oj r. [0 c:

.YJ:LljlLm a n_Bt g]:lJ-....L.D i v ts 10 n~_.. _~..._._.__......_ ... ____. and EEOC
Srlll~ or local Agt"nl...v, if any

0 DRACE

COL OR

[KJ SEX

D RELIGION

D NATIONAL ORIGIN

00 o RETAliATION

[KlAGE

DISABILITY OCIHER(Sp~cJrr)

l:.-ARLI$Sr
01/02/199 11

j.ATEST
02/l2/200~

THE:. PARTICULARS ARE (If .ddHlon..l .p.ce t . n~edt"d• • tt.ah f!'ztr• •'If!'f!'t{s)):
I. STATEMENT OF HARM: I was denied promotion, sexully harassed,
harassed, disciplined and retaliated against.

II. RESPONDENT'S POLICY, PROCEDURE OR PRACTICE ALLEGEDLY RESULTING IN DISCRIMINATION: No valid reason was given me for the actions taken against me.

III. STATEMENT OF DISCRIMINATION: I believe I have been discriminated against because of my sex, female, and in retaliation for complainlng about sexual harassment and harassement both in in violation of Title VII of the Civil Rights Act of 196_, as amended. I also believe I have been discriminated against because of my age, 4_, in violation of the Age Discrimination in Employment of Act of 1967, as amended.

I believe I have been discriminated against in the following fo.l1m:o

- Since begining employment at Airborne Express I have beel)I:Jlumecc,.l)'tt" to daily vulgar, offensive, sexually charged comments and a'i'i1o~. .J~

- I have been denied promotion.

C)

':;~

- I was reprimanded for saying the word "waddle" to someonHho_wa~:··:.<l

not offended.

-. l=

•. ,.:,.,~)

I was told I could not be promoted because I could not t~ t'h'e· n

language

rn '=':;.'.'.~::

o

=
(..&,..1

cir',~n

I •• nt this charge rUed with bOth the HOC and the State or NOTARY - ('MIen necessary for St .. te and local Requiretnents)

local Agency, if any. I will advise the agenCies 11 I change ~Yf--------------.--. __..____ .~__ ...

address or telephono nUliber and cooperate tully with the.. 1n tlle J swur or affirM that J have read the above charge and that

ot

with

1t 1s true to the best ot lIy knowledge, 1nror~at1on and bellef.

I dochre under penalty ot perjury that the for.going is true and correct.

SIGNATURE OF

SUBSCRIBED AND SWOR
(Wonth, day and year)
Part

'. r.hll '.Ii-

'1. .'.': -:;., .'. I I '; !

-.-_.----- -------------.---------
AFFIDAVIT

CAO[ NU"U[R __ .i.2.°A3QQGlD ________

I, ,Qebra_..1_,_ Sm.1 th___________ be.ing first duly sworn upon my oath affirm and hereby say:
(Name)
I have been given assurances by an Agent of the U_S. Equal Employment Opportunity Commission that this Affidavit will be considered confidential by the United States Government and will not be disclosed as long <I, the case remains open unless it becomes necessary for the Government to produce the affidavit in a formal proceeding. Upon the closing of this case, the Affidavit may be subject to disclosure in accordance with Agency policy.

I am --.!li_ years of age, my gender is Fema 1 e and my racial identity is _ _-"W-,-,h.1t e

(sa)

(mer)

I reside at 5621 Timberline N.W.

(NumberISIr<<I )

City of Albuquerque

,County of _ _ _-=B=ernalillo

-_._---,

State of

NM

, Zip Code 81120

My telephone number iSllne}udinG or.. cDdel _ _-'(L",L),,-0..L5.1 899-3<;66

My statement concerns _--'-A'--'i"-'r'---b=o.r....n.'-'e~E"'_"x~p~r--'e'-'s~s=-=--..,.,...-__.--­
(N= of UnionK:ompany/Agency)

located at 3241 University S.E.

(N~mber7Strw)

In

Alb~u~q~u~eTr~a~u~e_ _ _ _ _ _ _'"_~~~N~M~---8~7~1~0~6~._--

(City)

(SIal<)

(Zip)

My job classification is (I r .pp1J..b} e 1_---'F~i"'e-"l"'d'--'S~e¥,r~vrli,..,e'-'e"-----"'S"'u"'P.e rv i so r

(job liJl<)

91-.1

Myimmediatesupervisorisl1r.pp}J..blel_ Ted Collins/Robert Allisol) Station

(Nam<)

(job lil/<)

which is

I believe I have been discriminated against because of my sex, female

in violation of Title VII of the Civ11 Rights Act of 1964, as amended

and because of my age, 44 in violation of the Age Discrimination in

Employment Act of 1967, as amended.

See attached e-mails.

::::0
rn

C)

[EOC AF-r A (06/139)

Page I of _______
(initials)

, - - - _. -.-._-_._----- . - - - - - - - - - - - - - - - - -

~'''Tf (IF

~:i':h. [·-;f::X.i (S.· ..___.____ ___ ..

CllY/COUNTY Of. i\] t·.'J.!.(~l.;!··.l:~ll~/n.!;:_J_:_n!?.l.ij ls!.__

CASE NAM[ .!~;.~li._th. 39. .J).irtLUT!:c' F:-:-
CASE NUMBER__ 3.9 Q_A 3.Q(J_~ i!3 ___-_-_~

AFFIDAVIT (cont.)

I have read and had an opportunity to correct this Affidavit conSlStlllg of ___ handwritten [J
typed 0 pages and swear that these facts are true and correct to the best of my knowledge and belief.
Subscribed and sworn to before me this _ _ _ day of __________
.---------------------
I.:roc Al"f fl (01l/89)

~ "I, ~ /I I. Y
'u ~;tiltr.mcr.t h('T"re .'. I Ii''' [;'<1 r I: Dc.:
l ._.. --'.._.. ._- --.- -_.

I {. I! ,",.1, r; i t!.! loll! f II
!
I. 3_: (~_A ~_(J.:~~(~ ~..~~l

_r·;~1.J3u. !~Fj~~ .. n ~ LbJ;;_~ __DJ v..! s to_~L __.___ .. __.__ ....___ .__.__._
Stfllr ur lo("al Agtnl)'. ~r atlY

're.; ·Nt..-iiE {l{;.lict>e;:·,~r~·~-H-;~-H.:'.o;~r---'·· - .------ -- -----------..- - - - - - - - - - ... fWE]i iT;; H',i.-'-;::·.;;:;"'"

--',,~;,.;-

s~U·h -A~~:7J~~·--.l:..~· .Sm .iJ!..J:L___. ----·'-··cTTy:-s·i~A·N·D··lI/'·-·i::-OOE-··--- .----.. - ( 5..9:iliJ.9 9(:tA:;f~rBili'H-

,,6;>1 Tlmb.,r-llIIe N.W. AlbuolH,rolJc Ni'1 WIL:,I

iC9!0:;;'J~',e

NAMED IS THE EMPLOYER, LABOR ORGANIZATION, EMPLOYMENT AGENCY APPRENTICESHIP COMMITTEE,

I STATE OR LOCAL GOVERNMENT AGENCY WHO DISCRIMINATED AGAINST ME (Jr~,vr ,.,." 0'" 1131 ""},,,-_,

NAME

lNUUBf"R or EUrLOYEES, YEMBE.RS TEU PHONr (Includ.. Art-if ;:'('<1('.1

r.,-Ai)'. _. 0 n c __QJ /II e w Mq x i c 0
STAllT ADDRESS

r-,,_t._!Ll.:,Q.L.f~.____ ('5 0 5J__ ]R_~2_~]9l2 _

CITY, STATE AND llP CODE

COUN1Y

_32.!!..LJlnJversitY _S.E., A1buqueraue, NM 83106 _

NAWE

____

'__ __QQL_.

~~:A .__LPHONE

i!",·}"de Ar-. ,,"",.;-

si-RfETAi;-o'Arss

CITY, STATE 'HO ZIP CO",

_ _ _ _ _ . _ _ _ _ _ _ ]c-ou:r~._-~-

rc.A:usE-of·OT5CRIMINATTOir·BASEO· ON (['f1t:~k "l'proj"',=ilJtfO bOX(NT)·-------·---··--- DATE DlSCRIt.lINA110N TOOK rlAC(

[J RAer

U COLO"

WSEX

DR'-LIGION [JNA1IONAI. ORIGIN

tK! RETAL IATION

0 AG~

DDISABILITY DOTHf.A(Spcc/0-'

or THE PAnTICUlARS ARE

.ddJ~lcHl.J $p.c~ 1.., fJ(!I'~dt·cl. IItC.eh ~x~rif .'1!/c't:'t(s)):

I. STATEMENT OF HARM: I have sexu11y harassed and

l"AR[,JE.,'iT
06/01/2002 02/12/2003 DO CONTINUING ACTION
harassed.

II. RESPONDENT'S POLICY, PROCEDURE OR PRACTICE ALLEGEDLY RESULTJNG IN DISCHIMINATION: No valid reason was given me for the actions taken
against me.

III. STATEMENT OF DISCRIMINATION: I believe I have been discriminated against because of my sex, female, in violation of Title VII of tllC
Civil Rights Act of 1964, as amended.

1 believe I have been discriminated a,gainst in the following form:

- Since Air One of New Mexico took ov~r the contract for Airborne

Exprcss I have been subjected to daily vulgar, offensive, sexually

charged comments and actions after numerous complaints to Tom---->£ulW. :::0 ~ U;~

III ;:::::::; -- .. ~~:.:J

('~;

-'-. -:-c ....,

-f_i r..
""'-.:~

-r-.:o
N
w

~;':-":");'""Il
,- ~":"·t':-)o n

n"l -1, =-~~

•

0

='-'-'

I want thlS cllargeo TIled wlth both the HOC ,and the State or NOTARY (When necessary tor State and local Rcqulr'el1'lcnts)

local Agency, iT any. I w1Il advise the agenc1es IT I change l I I y f - - - - . - - - - - - - - - - - - - - - - - . - . - - . -.. - ...----. _. __

address or tdepflone number and cooperate tully with them In the I Iwear or dUnn that I have read the ab"ve charge ilnd t/Iat
.. r.~~~.. l~' ~...£hal·ge ~~.!.~!.~~~::.....E.~.oced!_'.rc:."s"._ ___111'-1-1-- t.ru_e _to_t_ he _b_ut_co_1 I_lly _kn_ow_le_ dge.,__jn_To_rlla._tl_on and beltef,

J declare under penalty oT perjury that the ToregoJn{l 1s true
ilnd correc. t .

SIGNATURE OF COMPLAINANT

I SUBSCRIBED AND SWORN TO BErOilE ME ;HI.<; DATE (YOnth, day alld year)
[)J t Po

·- -. -'--"---"-':-~-'-'~--Y'I"-l:'-

r

'.I",'i ,'I

i.!',?; "J./""' _" .1.. __ .

01 Tiil-l>LI'TY 0' .f;) t~]L'l!!_~TQlIfjlLe,.rnaJ_JU0___

AFFIDAVIT

I, De,.b t"'a.J.'-'-- __~n l..tlL ____ ..__. _ __ b....ing first duly sworn upon my oath affirm and herehy say:
(NrZl1/f' )
I have been given assurances by an Agent of the U.S. Equal Employment 0pP<)ftunity COlllll1i"ioll that this Affidavit will be considered confidential by the United States Government and will not be disclosed as long as the case remains open unless it becomes necessary for the Government to produce the affidavit in a formal proceeding. Upon the closing of this case, the Affidavit may be subject to disclosure in accordance with Agency policy.

I am __.!!..!L. years of age, my gender is Fema 1..Q.. _ and Illy racial identity is ___ .b'llH~_____ '_' ___"_'__ .

(ux)

(raa)

I reside at --<)62J-Timberlill~!L...---("'M"u-"'m=heo:-,,-;r.l'I::"':::';i)--·-·----.- .-------.---...---.-- -.--,

City of __ft.) bugUG.!:.91"I""e_ _ _ __

,County of __.__.. Berna.l-i-ll.o----.-.--.-------- ,

State of

NM

. Zip ("..ode _ ..llD£Q.....__ .

My telephone number iSflnolUd1ne.rN co".1 __ .....J5..Q_2.LJl.92..::3';6_6__ .

I\-[y statement concerns _ _I\..i r One 0 f New Mefx"'i'-c"'-~o'----~-~~---­
(Nam~ of lJnionICompany/Agmcy)
=_: located at .....3..?..!LLJi.n i ve rs j ty S. E"'.'--____ (NumbtrISrru/J--

_____.__ which is

in _______Al buquerque
(Ci(v)

NM _____ 87106

(Slate)

(Zip)

My job classification is fIr .pf/lfcttble-)

Field Servi_~Sup.~isor
(job titl<)

My immediate supervisor is(Jr lJ)'pllC.tl>}C) Ted Collins/Hobert Alljso~ St.ation MBn':!£:,er __

(Name)

(job lille)

1 believe I have been discriminated against because of my sex, female
in Violation of Title VIr of the Civil Rights Act of 1964, as amended_
I have been subjected to daily vIIIgar, sexually charged comments. J have complained to Tom Bump on a weekly to daily basiS. Offensive comments consIst of "Shupa mi verga" "a la verga" continuous use of the work "fuck or fucking"

Page 1 <If __._
(imlirll.l"j

r----------------- ----

~,!Ah. C:

~>:~,~r ~.ji,): iCC:.

_..

._

CIT Y/U'(Ji.I TY OF _ .. I\.;.J )lI'LL1J~ .Ci-l ~~~I B.~~ ~ j a )j. 1..1 Q....

---------------, Cf\sr t~f..ME ;jm;i Lh_.'::: f1.;·L' Ul:I.:. ..~.;..r
3 !.! B CASE NUMB[ R__ __ 9..9l~, QJ) I.; _ __ ___ _

AFFIDAVIT (cont.)

I haw read and had an opportunity to correct this Affidavit consisting of _ _._ handwrittl!n L"J typed 0 pages and swear that these facts are trUl! and correct to the best of my knowledge and belief.
Subscribed and sworn to before me this ___ day of _ __
~:(JC At'f·B (Otl/flg)

C.S. EQUAL EMI'LOYME!'IT Ol'l'ORTUl'I'lTY COMMISSION

Houston District Office

TI rg©rgD"~ij
"' APR - 5 2004

1919 Smith, 7th f-"loor IIOII~IOII. Tl 77002-8049
PII: i7l3) 209-3320
TI))): (713) 209·34~9 FAX: (713) 209-3381 LU;AL: (713) 209-3401

Ii

I:J

Charge Number: 390-2003-00683

Debra Smith 36 Fourth Avenue Bluffton. SC 29910

Charging Party

Airhome Express 3101 Western Avenue 1'.0. Box 662 Seattle, WA 98111-0662

Respondent

DETERMINATION

Linder the authority vested in me by the Commission, I issue the following detennination as to the merits of the above cited charge, filed under Title VII of the Civil Rights Act of 1964. as amended, and the Age Discrimination in Employment Act of 1967, as amended.

All requirements for coverage have been met. Charging Party alleges that she was subjected to harassment because of her sex, age and retaliated against hy being disciplined and denied a promotion.

Respondent denies the allegations.

Based on the evidence, it is reasonable to believe that Charging Party was subjected to a sexually hostile work environment. Respondent failed to take Charging Party's complaints seriously and did not take appropriate actions to ensure a work environment free of sexual misconduct. It is also reasonable to believe that Charging Party was retaliated against for complaining about the hostile work environment. No finding is made as to other issues raiscd in the charge filed by Charging Party.

Upon finding there is reasonable cause to believe a violation has occun·ed, the Commission will attempt to eliminate the alleged unlawful practice by infonnal methods of conciliation. Therefore, the Commission now invites the parties to join with it in reaching ajust resolution of this matter.

If Respondent declines to discuss settlement or when for any other reason a settlement acceptable to the District Director is not obtained, the District Director will infoml the parties
~

and advise them of the court enforcement alternatives available to the aggrieved parties. A Commission Representative will contact each of the parties to begin conciliation.

~i-

On Behalf of the Commission
Michal' I Fetzer Acting Director

cc: Michele Masiowski Serra, Garrity & Masiowski, LLC 440 Cerrillos Road, Suite 4 Santa Fc, NM 87501

U.S. EQl1AL EMPLOYMENT OI'}'ORTUNITY COMMISSION

Houston District Office

Mlc)..ry l('l:H1d Fl"ckral Rwlding

1919 Smith Sllt'ct, 7110 Floor

HOlJ~t('n, TX 7i(I(!2-tlf).H

TI w:©w:n~W: ~

[".'13) 2u')·JJ2f1 IT\" (7:31 ]0'1 J~}i) FAX 1.71 ~ J 20~j·J.l~ I

Charge Number: 390-2003-00684

i f\.PR - 5 2004
\~
!\

Debra Smith 36 Fourth Avenue Blumon, SC 29910

Charging Party

Air One of New Mexico 3241 University S.E. Albuquerque, NM 87106

Respondent DETERMINA TION

Under the authority vested in me by the Commission, I issue the following determination as to the merits of the above cited charge, filed under Title VII of the Civil Right~ Act of 1964, as amended.
All requirements for coveragc have been met. Charging Party allcges that while working with Respondent's employees at Airborne Express's Albuquerque, New Mexico facility. she was sUbjectcd to daily vulgar, offensive, and sexually charged comments and actions by Respondent's employees and retaliated against because ofhcr sex.
Respondent denies the allegations.
Based on the evidence, it is reasonable to believe Charging Party was subjected to a sexually hostile work environment. Respondent failed to take Charging Party's complaints seriously and did not take appropriate actions to ensure a work environment free of sc,xualmiscontiuct. The Commission makes no finding on the other issues alleged in the chargc.
Upon finding there is reasonable cause to believe a violation has occurred, the Conmlission will attempt to eliminate thc alleged unlawful practice by informal methods of conciliation. Therefore, the COlTlmission now invites thc parties to join with it in reaching a just resolution of this matter.
If Respondent declines to discuss settlement or when for any other reason a settlement acceptable to the District Director is not obtained, the District Director will inform the parties and advise them of the court enforcement alternatives availahle to the aggrieved p~rtics.

A Commission Representative will contact each of the parties to begin conciliation.
On Behalf of the Commission
Michael Fetzer Acting Director
cc: Michele Masiowski Serra, Garrity & Masiowski, LLC 440 Cerrillos Road, Suite 4 Santa Fe, NM 87501

 
 IN TH~: LNITEJ) STATES DISTRICT COUR'";>" i L. :'"-. U FOR THE DISTRICT OF N~:W \fEXf(;O ....... ,

EQlIAL EMPLOYME:'IIT Ol'l'OIHlJNITY CO\IMISSION,
I'laintiff,
v.
DHL Explu:ss (liSA) INC., and AIR ONE TRANSPORT GROlIP, I:-;c.,d/b/a AIR ONE TRA~SPORT OF Nl::w MEXICO, LLC and Am O:-;E TRANSPORT OF NEW MEXICO, LLC
Defendants,
and
DEBRA SMITH,
Plaintiff in Intervention
v.
DHL EXPRESS (USA) I:-;c., and AIR ONE TKA:oiSPORT GROUP, hc.,d/b/a AIR O~E TRA:oiSPOKT OF Nr.w Mr.XICO, LLC and AIR ONE TRANSPORT OF Nl::w MEXICO, LLC
Defendants.

05 FEB 15 PH 3: 38

)

)

CLEHi<-S/~NTA FE

) CIV. No. CV-04-111S JI'/DJS

)
) FIRST AMENDED COMPLAINT ) 1:'11 INTERVE:'IITION

)

)

) ) .JURY TRIAL DEMANDED

)

)

)

)

)

)

)

)

)

)

)

) )

) )

)

)
)

FIRST AMENDED COMPLAINT IN I:'IITERVENTlO:'ll FOR VIOLATIONS OF TIlE NEW MEXICO 1I1IMA:'IIIUGHTS
ACT AND TITLE VII FOR SEXllAL HARASSMENT
AND RETALIAT10N AND TORT AND CONTRACT CLAIMS
CO:VIES NOW Plaintiff in intervention. Debra Smith. by and through her counsel.
SERRA. GARRITY & MASlOWSKI. LLC and the LA W OFFICE OF GEORGE GERAl". and

~\

Illr her First Amended Complaint in Intervention against lktl:ndants states as follows: 1. Plaintiff in internntion. Debra Smith (hereinalkr "Ms. Smith") is female and at
all times relevant hereto was a resident of fkrnalillo County. New Mexico. At all times pertinent herein. Ms. Smith was employed by Airborne Express. which was subscquently purchased by Defendant DHL Express (USA) Inc.
1. Defendant DHL Express (USA) Inc. is the agreed to successor corporation of Airhorne Express. Inc. and has assumed all its liabilitks in relation tn this matter as admitted to in its Answer to the First Amcnded Complaint. DilL Express (USA) Inc. is a doing business in :"kw Mexico with its facility located at 3141 University I3h·d. N.T'. Alhuquerque. >Jew Mexico 87106. Hereinafter in the First Amended Complaint in Intervention. DHL Express (USA) Inc. and Airhorne Express. Inc. will hereinat"ter he referred to as '"Airhorne Express".
3. Defendant Air Onc Transport of New Mexico. I.I.C is a foreign limited liahility company registered to and doing business in New Mexico. at its primary husiness location at 3241 Univcrsity SF. Alhuquerque. New Mexico. At all relevant times hereto. Air One Transport of New Mexico. I.Le was a contractor Itlr Airhorne Express. working on site at the Airborne Express lilcility. Air One Transport of >Jew Mexico LLC's employees worked directly with and in thc same physical vicinity with Airborne Express employees.
4. Defendant Air One Transport Group Inc. d/b/a Air One Transport of >Jew Ivlcxico LLC. is a Kansas Corporation. with its principal place ofbusincss located in Wichita. Kansas and doing business in New Mcxico and upon information and belief the managing Illl'mber and majority owner of Defendant Air One Transport of New Mexico LLC. At all times relevant to the complaint. Defendant Air One Transport Group. Inc. d/b/a Air One Transport Group of New

Mexico. I.I.C exercised day-to-day control over the operations of its alter ego. Air One Transport Group of New Mexico. LLC, and Air One Transport Group of :-Jew Mexico. LLC essentially functioned as a department of Air One Transport Group. In.:. UPlHl infclrmation and belief: this day-to-day control over operations is indicated herein by common ownership. common management. common usc of trademarks and names. common use of employees. common oflicers and directors. ownership by Air One Transport Group. Inc. of all or most of the stock of Air One Transport of New Mexico. LLC, the performance of inter-related business functions. Air One Transport of New tv1cxico LLC acting as a marketing arm of the parent .:orporation.
common receipt of instruction by Air One Transport of New Mexico LI.e from the parent
corporation and the like. Therefore. at all times relevant to the complaint. upon infc)rmation and helief. the putatively separate entities functioned as an integrated enterprise with inh:grated operations. centrali7.ed control of labor relations. common management. common ownership and the like. As such. the two entities can effectively be addressed by this Court as one. Alternatively. if the Court determines that Air One Transport Group Inc. is not the alter ego of Air One Transport of New Mexico. LLc that entity has been named as a sl'parate Defendant herein.
5. Where the complaint states "Air One" this it is intended to refer to each individually and in the alternative to both DetCndants Air One Transport of New Mexico I.I.C and Air One Transport Group Inc. d/b/a Air One Transport of New Mexico l.I.e.
6. Ms. Smith began working for Airhorne Express in 1994 as a Field Servi<:es Supervisor. In that position Ms. Smith's direct supervisor was the District field Service \1anager (hercinatier "District Manager"). who reported to the Regional Manager. Ms. Smith was also
3

responsible for !!nsurmg the completion of work 111 the dock area perfi)rmed by Air One employees
7. At the beginning of Ms. Smith's employment, Ms. Smith communicated work Issues and concerns with Air One employees, din:ctly to the Air One employees or Air One management. This communication was encouraged and supportcd by Ms. Smith's supervisor at Airhorne Express. Because of the nature of the work and thc working conditions, including hut not limited to the fact that thc physical environment was sharcd and the co-relationship of Airbornc Express and Air One, Air One sharcd or codctermined matters governing thl' essential terms and conditions of Ms. Smith's employment. Thus. Air One exercised a significant dcgre'e of agreed control owr \is. Smith's working conditions and exercised control through its harassment of her.
8. However, in approximately the end of 2001, beginning of 2002, when the hostile work environment ensu!!d and expanded as explained herein, Ms. Smith's ability to communicatc directly to Air One changed and Ms. Smith supervisors and Air One management undermined Ms. Smith's etll)rts to communicate directly to the Air One employees she worked with. Instead of directing Air On!! employees to respect and abide hy what they were askcd to do by Airborne Express managcment. Air One cmployees were specifically told hy Tom Bump. the Air One manager, that they could ignore Ms. Smith, regarding per/ormance/personnd issues.
9. Through out this time, Air One employce's consistently touched Ms. Smith in a sexual manner, used language derogatory to women. profane language, and physically threatening gestures in the workplace speci lically including:
a. Daily. a gang of m!!n would be present at the loading dock area. The men
4

were physically larger. taller. and were an intimidating presence to Ms. Smith. The men

would recount their sexual exploits, real or imagined, (including descriptions of raping

women-such as saying they were "holding the hitch down while she screamed") in

excruciating detail. These conversations took place nearly everyday, 4-5 times a day. hut

increased in frequency aller the weekend. The men were particularly ohsessed with oral

sex. including such comments as there is "pussy juice on my t~\ce" and having a

"mouthful." There was no doubt about the sexual nature of these stah:mcnts. They

would make these comments while looking at Yls. Smith, challenging her to respond. and

she would tell them to stop:

b. Ms. Smith would conti-ollt the group and reprimand them for the

comments. Then they would semi-encircle \1s. Smith. They mO\'l'd ncar her. oliell within

2. feet. and makc the Ii,llowing statements and gestures:

1. The gang of men would make comments about "we'll get that hitch:"

.,

Grab their crotches, look at her and say "I'll give you a hig one:"

3. Make masturbating gestures and tell her ,,' have a hig one;"

4. Look at her and call her a" fucking bitch:"

5. State "suck my dick," while making masturbating gestures. glaring at her to dare her to respond.

c.

Every day. and until the Defendants constructively terminated Ms. Smith's

position, the gang of men would "accidentially". but really intentionally. hrush against her

breasts with their hands and elbows, and rub their penises into her backside on the pretext

5

of getting hy her in a tight space. At thc beginning. the behavior included picking Ms. Smith up from hehind and/or hugging her too long. but her very \'isiblc negative reaction to these intentional touchings led the men to adopt the more deniable behavior. Regarding the behavior thc mcn attcmpted to deny. including brushing of her breasts and rubbing against her. when Ms. Smith complained or reacted by mo\'ing away. thc men would oftcn accuse Ms. Smith of overreacting to their "accidental" touches. Ne\'erthcless. the touching behavior happened so frequently that it was clearly intentional and always unwclcoml'.
d. The men would often (daily or almost daily) take large rolled up tubular packaging materials (3-5 feet in length) and pretcnd they were penises. They would walk around and masturbate the "penises" and make thrusting motions with them. This habitual behavior was open and notorious and ollen witnessed by e\'ery person in the facility. The men would say thc "penis" was their "mother's douche", which actually means "fuck your mother"; and
e. The men would intentionally block Ms. Smith's pathway and not let her pass. 10. Up and until 2001. whenever Ms. Smith complained to her then District Manager about the behavior. the problem was temporarily resolved. Nevcrtheless alier a few months it would start again. Aller 200 I and alier that manager was replaced with Ted Collins, the ncw Airborne Express District Manager. the environment rosc to the kvel where Ms. Smith and other female employees felt personally threatened. II. In approximately the winter of 200112002, and becausc the situation became
6

intractahle, Ms. Smith hegan verhally reporting the hostile environrlll:nt to Ted Collins, her new District Manager. In responst: to an initial complaint. Mr. Collins told her he was surprised there had not been more complaints. and that he had just heard an Air One employee say to another that thi.' employee must have had oral sex the night before hecause it was still in his beard. Despitt: Ms. Smith's complaints about language and gestures, and Airborne Express management witnessing the hehavior, Airborne Express did nothing to address or stop the behavior after these complaints.
12. It was during this timerrame, when Ms. Smith was originally reporting the harassment to Mr. Collins at Airborne Express. that Tom Bump the Air One manager informed the Air One employe<:s that they could ignore Ms. Smith's direction to them involving pi.'rsonncl issues and their behavior.
13. Because of Airborne Express's inaction and Air One management's directions to Ignon: Ms. Smith, the employees came to believe as a grtlUp that Ms. Smith could be op.:nly defied. As a result, Air One employees increased the amount and intensity of their comments, resulting in the reckless consequence that Ms. Smith was verbally threatened with sexual abuse. Additionally, Airborne Express employees also acted inappropriatdy as stated herein above and below.
14. Starting in approximately the winter of 200 112002. when reporting to Mr. Collins, Ms. Smith indicated to him that she was ati:aid she would he physically hurt hecause of her complaints. She verbally complained to him regularly from tht:n until August 2002 when she began documenting her complaints. She informed Mr. Collins that Air One employees were constantly saying things such as "fucking bitch" and "fucking cunt." and directing those
7

comments at her. She also reported that she was alraid of the employees. Ms. Smith further reported that the Air OnC" employees would make masturbating gestures and carry rolled tuhes of huhble wrap and say it was someone's mother's douche. EvC"n aftC"r Mr. Collins witnessC"d the behavior himself: the complaints were not addressed and no remedial action was taken. Mr. Collins would laugh when told what was being said, and in violation of Airborne Express' harassment policy, he never reported the language, or took any action to stop the harassment.
15. In August 2002, Ms. Smith began documenting the complaints to 1...1r. Collins. for example, via C"-mail dated Octl,ber 15, 2002, Ms. Smith reported to Mr. Collins that thl." word "fuck" was used 10-15 times by a driver when Air One managC"ment was present, yet no remedial action was taken by Airborne Express in response even though another e-mail Ii-om around this time states that other female employees were complaining.
16. In Octoher 2002, Ms. Smith began to complain in writing to Air One management (supplementing her prior oral complaints). At that time she e-mailcd Air One management in Denver and reported that its' employees' language was sexual and excessive and had not been addressed by Air One. She requested that the matter he resolved. Ms. Smith contacted Air One heeause it had a signilicant degree of control over important aspects of Ms. Smith's work and governed essential terms and conditions of Ms. Smith's working conditions.
17. Despite the fact that VIs. Smith repeatedly (orally and in writing) informed Airborne Express and Air One management of the harassing behavior, and despite both Airborne Express and Air One management personally witnessing the harassment, nothing was done to address the issue. Instead, upon inl(lrmation and bdieC both Airborne Express and Air One management actively encouraged the continued harassment and Tom Bump, the Air One manager,
8

continued using sexually offensivc language himsclf. \1s. Smith was the victim of pervasive. unwelcome sexual harassment hy Air One employees. which was condoned and allowed to continu<: by Airborne Express and Air One. to the c'xtent that it aflected the terms, conditions and privileges of her employment. Despite knowing of the harassment. Airborne Express and Air One faikd tll take immediate and appropriate action and instead condoned and encouraged the harassment by actively ignoring the complaints and failing to act. Airbornc Fxpress then retaliated against Ms. Smith for reporting the harassment.
18. During thc entire time Ms. Smith was subjected to a hostile environment. Airhorne Express had established writtcn policies against harassment and discriminatiLm. as wdl as other matters. The scxual harassment policy states scxual harassment will not be tolerated and that "all supervisors have an affirmative duty ... to protect employees from discrimination and to promptly report such incidents to Human Resources." The discrimination policy provides: "conccrns or clHnplaints will be promptly investigated. No one will suiTer retaliation for reporting such concerns ...."
19. D<:spite the fact that \ls. Smith followcd the Airhorne Express harassment and discrimination policies and reported the harassment to her supervisor at Airborne Express and also reported the Air One employee's actions to the management at Air One. and despite Airborne Express managcment (at least Ted Collins and later Robert Allison) and Air One management (at least. Tom Bump) witnessing the behavior. Airborne Express did not follow the policy and no im'estigation was ever done as reyuired.
20. In the fall of 2002. Ms. Smith insisted that Mr. Collins. Airhorne Express District Manager. r<:port the Air One employees' behavior tn Airborne Express' Human Resourccs
9

department. Mr. Collins stated that if they did. the District and Ms. Smith would be "placed under a microscope". Ms. Smith insisted that. if the problem was Iwt resol\'ed. she would contact Iluman Resourccs hcrsclt:
:! 1. Prior to these complaints. Ms. Smith had ne\'er bccn disciplined and always had good performance evaluations. However. on or about I\ovember 2 L 2002. within weeks of telling \1r. Collins that if he did not do so, Ms. Smith would contact Human Resources about the Air One employees conduct. Mr. Collins retaliated against Ms. Smith and reported her to lIuman Resources for requesting that an cmployee "'waddle on up herc"' (to the office). As a result orthat complaint. Ms. Smith was reprimanded. in itselfan additional act of retaliation.
All the persons associated with the Albuquerque facility knew that Ms. Smith was complaining about the sexually charged work environment. On November 2 L 2002. Mr. Allison. (at thc time a co-worker at Airborne Expn:ss and two months later promoted to the District ~Ianager position). called Ms. Smith a "'lilcking bitch."' Alier she reported him to the Airhorne Express Human Resources Department. :VIr. Allison would stand inches Irom Y1s. Smith and would ball his hands into lists and glare at her. This happened most days lor at kast 2 to 3 months. and continued even after Mr. Allison was made the Airborne Express District manager (taking Mr. Collins' position). Prior to Y1r. Allison's promotion. at least 10 times. Ms. Smith told Mr. Collins. the Airborne Express District Manager that she did not want to be alone with Mr. Allison because shc was alraid of being physically assaulted by him. Nevertheless all Mr. Collins did was laugh at hcr. Immediately following Airborne Exprcss's ratilication of this particular harassing behavior. un employee cut a linger off a glove and tacked it on the Airborne Express bulletin board. along side a sign that the glove linger was a condom.
10

23. After Mr. Allison called Ms. Smith a "lllI:king bitch:' she contact~d Human Resources directly. She reported the excessive sexual profanity and gestures, the constant use of the words "ruck," "lucking bitch:' "Iucking clint:' "suck my dick:' and masturbating gestures by the Air One employees. She also reported the glove linger incident. Ms. Smith also informed Human Resources shc had been reporting these types of incidents to Mr. Collins fl)r about one year. Even so, no investigation was commenced. Instead, Airborne Express Human Resources warned Ms. Smith fix using the term "waddle'" over the intercom and asked her why she did not take the glove finger down immediately.
24. Within a few days, Ms. Smith also reported to Human R~sourees that :vir. Allison called her a "fucking bitch" and that she was afraid of him. Within days aller Ms. Smith reported Mr. Allison to Airbllrne Express Human Resources. Mr. Collins threatened Ms. Smith's job. He told h~r that she and ~vlr. Allison had to get along or she should resign.
25. Again in December 2002, Ms. Smith notified Airborne Express' Human Resources Department that the harassment and retaliation were ongoing and constant and were affecting her emotionally and physically, and making it nearly impossible to function in her work environment.
~6. Even after th~se repeated reports to Airborn~ Express Human Resources, Air One l:mplo)'ces continued their bdJavior and escalated their oll"ensive conduct. The profanity and gestures increased. Air One employees intentionally did this to threaten Ms. Smith. They would stand physically close to her, and encircle her in a threatening and intimidating manner and taunt her effectively daring her to report them. This escalation was witnessed by Airborne Express and Air One management, who did nothing.
27. In mid-December ~oo~, Airborne Express' :'vir. Collins told Ms. Smith that
II

Airborne Express had just prevailed in a lawsuit that established vulgar language was not sexual harassment and that a co-worker (he did not say who it was) had told Mr. Collins that Ms. Smith was setting up Airhornc Exprcss for a lawsuit. Mr. Collins later informed 1\'ls. Smith that a contractor had complained that \1s. Smith was difficult to work with.
28. Air One employees' excessive proltlllc language and gestures and physically thrcat.:ning beha\'ior continued. No investigation was ever done. No one was disciplined. Neither company took any action. Ms. Smith became so emotionally and physically ill from thc environment and the lack of rcsponsc from Airborne Express and Air One that she was forced to takc mcdical leave in the spring of 2003. The leave temporarily helped hcr mcdical issues. to som.: extent. However, after her return, the beha\'ior continued to an extent and degree that caused Ms. Smith's illness to fully return. The kave and the reason for the leave were wcll-known to all involved in Air One and Airborne Exprcss manag.:ment.
29. Ms. Smith was retaliated against because llf her complaints. The ri.'taliation consistcd of at least: 1) Mr. Collins' intimidating remarks and reporting Ms. Smith for the waddk commcnt (explained above): 2) Ms. Smith heing reprimanded hy Human Resources for the waddl.: comment (explained ahove): 3) Mr. Collins not informing Ms. Smith of the typc of inter\'icw and presentation cxpccted of her during the intcr\'iew for the District Manager position (explained helow): -I) Ms. Smith being d.:nied the promotion to District Manager (given to Mr. Allison) despite having more experience (explained helow): and 5) Ms Smith having her scheduled changed to one less d.:sirahle.
30. Aftcr \1s. Smith complained to Airhorne Express 1·luman R.:sources Department and before the interview liJr District \1anager, Mr. Collins informcd Ms. Smith the interview
12

presentation would be verbal. lIe did not tell her until the day of the interview that they l'xpected a written presl!ntation with graphics. Ilowever, Mr. Allison, thl! other Airhorne Express employee in contention for the position, had been infonned of this to allow him to properly prepare such a presentation. This comprised a retaliatory incident hy Airborne Express senior managl!ment.
31. Despit.; being fully qualified for the position llf Airhorne Express District Manager, and having more experience, Ms. Smith was denied the promotion (given to Mr. Allison) because of her complaints. Ms. Smith was asked hy Jim Cullen, the Airborne Express
Regional Manager, in her job interview that ir she could not handle the languagl! how could she
handle the joh. Ms. Smith's reply was "If I get the joh, the environment would not he an issue," meaning that with her super\'isory authority she \\'ould attl'mpt to clean up the involved behavior. This comprised another complaint regarding the involved harassment, this time directly to a senior Airborne Express official. Mr. Cullen's question comprised an admission of the hostile I!nvironment and the failure to hire Ms. Smith was an act of retaliation.
Also in retaliation I()r her complaints, once Mr. Allison received the promotion, he changed Ms. Smith's job schedule without business justilication to one that was less desirable. and told Ms. Smith she could not contact Air One management and all issues had to go through him.
33. Airborne Express's and Air One's response to Ms. Smith's repeated complaints of offensive sexual language and gestures and other sexual harassment that she endured was entirely hostile. Because of the severe sexual harassment and retal iation, Ms. Smith was I()rced to endure an intolerable and hostile work environment at Airhorne Express and Air One. Airhorne Express and Air One failed to diminate the hostile work environment and instead ratilied and
\3

<.:ondoned Mr. Collins', Mr, Allison's and Air One's employ.:.:'s illegal behavior, exa<.:crbating the hostile work environment and Ms. Smith's emotional and physical distress.
34. By the spring of 2003, it was clear to \1s. Smith that Airborne Express and Air One had not tak.:n, and would never take, the action necessary to end th.: illegal workplace harassment and retaliation. This resulted in her constructive termination from Airborne Expr.:ss in approximately .Iuly 2003. See Attachment I.
35. Air One was an .:mployer of Ms. Smith, covered by Title VII and the New Mexico Human Rights Act. Air One, because of its on-site presence at Airborn.: Express, and because of the continuous inll!raction with Airhorne Express employees, has the ability to affect the terms, conditions or privileges of Airborne Express .:mployees' employment. Additionally, Air One shar.:d or codetermined matters governing the essential terms and conditions of Ms. Smith's employment and therefore, had a signiticant dcgrl'': of control or joint control over her working conditions. Air One is therefor.: an employer under the relevant law and tasked with preventing discrimination. Ry its employees' sexually harassing hehavior and its failur.: to stop the harassment, Air One advcrsdy affected Ms. Smith's Il'rms and conditions of employment. and interl~red with her employment relationship. Further because Mr. Smith's complaints only brought increased harassment hy the Air One employees, Air One directly retaliated against \1s. Smith.
36. As a result of the sexual harassment, hostile work environment, and retaliation perpetuated by Airborne Express and Air One, Ms. Smith has experiencl'd and <.:ontinues to experience insomnia, trouble eating, anxiety attacks, depression and other issues. Ms. Smith also received, and continues to r.:ceive, counseling and medical care rclat.:d to the depression and
14

anxiety experiences hecause of the treatment she endured. 37. Ms. Smith has met all administrative requirements and exhausted administrative
n:medies. Ms. Smith received prohable cause dcterminations from the EEOC as to the charges against Airhorne Express and Air One on April 5. 2004. See Attachment 2. :-'1s. Smith has also reccived an Order of Nondetermination, as to both Airborne and Air One, Irom the New Mexico Human Rights fkpartment. See Attachment 3. On Septcmber 30, 2004 the EEOC filed its complaint herein against the !)efi;=ndant. 42 U.s.c. *2()OOe-5 (t) (1) sp\!cifies that '"the person or persons aggrieved shall have the right to intervene. '" At this time, Ms. Smith has met all administrative requirements ncc\!ssary.
COli NT I NM Human Rights Act- Gender Discrimination and Sexual Harassment
(Airborne Express and Air One) 38. ~1s. Smith incorporates and re-alleges Paragraphs through 37 ahove as if fully set forth herein. 39. The New Mexico I·(uman Rights Act NMSA, 1978, Section 28-1-7, makes it an unlawful and discriminatory practice for an employer to discriminate in the terms and conditions or privileges of employment because of a person's sex. Air One and Airborne Fxpress arc hoth employers cO\wed by the New Mexico Human Rights Act. Ms. Smith was a direct employee of Airborne Express. Air One, as the on-site contractor, had the ahility to alkct the tcrms and conditions or privileges of Ms. Smith's employm\!nt by Airhorne Express, and directly and intentionally adversely interfi;=rcd with Ms. Smith's employment relationship with Airborne Express. Also. Air One shared or codetermined matters governing the essential tl'rms and conditions of :-'ls. Smith's employment, and controlled important aspects of her work and
15

therefore had a significant degree of control owr Ms. Smith's working conditions. As a result of the actions in perpetuating a hostile environment. and not addressing the environment after being notified. and the other actions mentioned ahove. directly and intentionally adversc:ly affected Ms. Smith's working conditions and employment relationship
40. Airhornc Express and Air One had a duty by law not to discriminate against Ms. Smith because she is female.
41. Airborne Express and Air One breached their duties to not discriminate against Ms. Smith and violated ;\IMSA 1978. Section 28-1-7. by its ali.>rementioned actions. inactions and omissions. resulting in the unlawful sexual harassment of Ms. Smith and creating and perpetuating a sexually and physically hostile work environment.
4' As a direct result of the aforesaid conduct by Airhorne Express and Air One. Ms. Smith has suffered and will continue to suffer physical injury. severe emotional distress. emharrassment. humiliation and loss of employment. Further. as a direct result of the ali.lresaid conduct by Airhorne Exprcss and Air One. Ms. Smith has heen prevented from performing her normal daily activities and obtaining the full enjoyment of lili: and has sustained loss of t:arnings and mcdical t!xpenses and will continue to incur other related damages.
43. The conduct of Airborne Express and Air One set forth above was intentional. wililili. malicious. reckless. wanton and/or grossly negligent and was undertaken with a total disregard I(lr Ms. Smith's rights and feclings. knowing that its actions or inactions would cause Ms. Smith to suffer severe emotional distress.
WHEREFORE. on Count I. Ms. Smith prays Ii.)r the entry ofjudgment in her favor and against Airborne r'xpress and Air One. awarding her compensatory damages. and reasonable
16

altorney fees, together with pre-judgment interest, post-judgment interest, costs and such further

relief as the Court deems proper. When Plaintiff in Intervcntion uses the term "compensatory

damages" herein that term is intended to include at least the 1()lIowing categories of damages:

a) back pay:

b) loss of fringe hcnelits;

c) loss of future earnings and future lost henefits:

d) emotional distress damages;

e) medical and psychological expenses:

I)

future medical and psychological expenses:

g) loss of household services;

h) loss of cnjoyment of life:

i)

pre and post-judgment interest; and

j)

any other damages which this Court del!ms lit and proper.

COlJNT II Title VII of the Civil Rights Aet 196-', as amended in 1991, 42 lJ.S.C., 2000, et seg.- Gender Discrimination and Sexual Harassment
(Airborne Express and Air One)

4-'. Ms. Smith incorporates and re-alleges Paragraphs I through 43 above as if fully

set forth herein.

45. Title VII of the Civil Rights Act of 1964 as al11l!nded, 42 U.S.C .. § 2000e5(f): and

28 U.S.C .. et. seq .. makes it an unlawful employment practice for an employer to discriminate

against any individual in the terms and conditions of her employment becausc of her sex.

46.

Air One and Airhorne Express arc both employers covcrcd hy Title VII. Ms.

17

Smith was an .:mploy.:.: of Airhorne Express. Air One. as the on-site contractor, had the ability to art<:ct the terms and conditions or privileges of Ms. Smith' s employment. and as a result of the actions in perpetuating a hostile environment. and not addressing the environment aller heing notifkd, and th.: other actions m.:ntioned above. dirl,ctly and intentionally adwrscly interfered with Ms. Smith's employment relationship with Airhorne Express. Also, Air One shared or codetermined matters governing the essential terms and conditions of Ms. Smith' s employment, and controlled important asp.:cts of her work and theretor.: had a signilicant degr.:.: of contfLll over ~1s. Smith's working conditions. As a result the actions perpetuating a hostile environment. and not addressing th.: environment ancr being notilit:d. and the other actions mentioned above, directly and intentillnally adversely affected Ms. Smith's working conditions and employm.:nt relationship
47. The aforementioned actions of Airbornl' Express and Air One and their employees constitute unlawful sexual harassment, creating a hostilt: work environment in violation of Title VII, as amended.
48. As a direct result of the aforesaid conduct by Airhorne Express and Air One, Ms. Smith has suffered and will continue to sui'l<:r physical injury. severe emotional distress, embarrassment. humiliation and loss of employment. Further, as a din:ct result of the aforesaid conduct by Airborn.: Express, Ms. Smith has been prevent.:d from performing her normal daily activities and ohtaining the full enjoyment of life and has sustained loss of earnings and medical expenses and will continue to incur other related damages.
49. Defendants actions were intentional. willful. malicious, reckless, wanton. grossly n.:gligent and deliberately inditTcrent to Ms. Smith's rights and I<:clings, th.:reby entitling Ms.
18

Smith to an award of punitive damages. WHEREFORE. on Count II. Ms. Smith prays for the entry of judgment in her favor and
against Airhorne Express and Air One. awarding her compensatory damages. punitive damages and r~asonahle attorney fees. together with pre-judgment ink·rest. post-judgment interest. costs and such further relief as the Court deems proper.
COlJ:'IIT III :'11M Human Rights Act-I{ctaliation
(Airborne Express) 50. Ms. Smith incorporates and re-alleges Paragraphs I through 49 ahove as if fully set forth herein. 51. The New Mexico lIuman Rights Act. NMSA. 1978. Section 28-1-7. makes it an unlawful and discriminatory practice for an employer to retaliate against a person f,)r complaining of acts illegal under the NMI IRA and asserting rights protected hy the Act. 52. In direct retaliation for complaining or the hostile environment. Ms. Smith surrcrcd adverse employment action. including hut not limited to. heing unjustly disciplined. changing her scheduled hours to less desirable shilts. heing denied a pronllltion. and intensifying the involved harassment and making the environment so intolerahle no reasonable person would stay. thus fordng her to resign. 53. Airborne Express hreached its duty to not retaliate against Ms. Smith and violated \!\>!SA 1978. Section 28-1-7. by its aforementioned actions and inaction. 54. As a direct result of the aflJrcsaid conduct by Airborne Express. Ms. Smith has suffered and will continue to suffer physical injury. severe emotional distress. embarrassment.
19

humiliation and loss of employment. Further. as a direct result of the af,)resaid conduct hy

Airborne Express. Ms. Smith has been prevented Irom performing her normal daily activities and

ohtaining the full enjoyment of life and has sustained loss of earnings and medical expenses and

will continue to incur other related damages.

55. The conduct of Airhorne Express set forth ahove was intentional. willful.

malicious. reckless. wanton and/or grossly negligent and was undertaken with a total disregard

for Ms. Smith's rights and feelings. knowing that its actions or inactions would cause \1s. Smith

to suffer severe emotional distress.

WHEREFORE. on Count III. Ms. Smith prays f,)r the entry of judgment in her favor and

against Airhorne Express. awarding her compensatory damages. and reasonable attorney fees.

together with pre-judgment interest. post-judgment interest. costs and such further relief as the

Court deems proper.

COUNT IV

Title VII of the ci~'i1 Rights Act 196~, as amended in 1991, ~2 lJ.S.C., 2000, et seg.-Retaliation (Airborne Express lind Air One)

56. Ms. Smith incorporates and re-alleges Paragraphs through 55 ahove as if fully

set tilrlh hcr.::in.

57. Title VII of the Civil Rights Act of 1964. as amended. 42 U.s.C .. § 2000e5(1\ and

28 U.S.c.. cl. seq.. makes it an unlawful employment practice for an employer to retaliate against

an employce who complains of discrimination and/or who asserts the rights provided to them

under Title VII.

SR. The aforcmentioned actions of Airhorne Express and Air One and their employees

20

constitute unlawful retaliation in violation orTitlc VII. as amend~d. 59. As a direct result of the afon:said condud by Airborne Express and Air One. \1s.
Smith has sulTered and will continue to suffer physical injury. severe emotional distress. embarrassment. humiliation and loss of employment. Further. as a direct result of the aforesaid conduct by Airborne Express and Air One. Ms. Smith has been prevented from perlilrming her normal daily activities and obtaining the full enjoyment of lili: and has sustained loss of earnings and medical expenses and will continue to incur other related damages.
60. Deli:ndants' actions were intentional. willful. malicious. reckless. wanton. grossly negligent and deliberately indifli:rent to Ms. Smith's rights and feelings. thereby entitling Ms. Smith to an award of punitive damages.
WHEREFORE. on Count VI. Ms. Smith prays for the entry of judgment in her fa\'or and against Airhorne Express and Air One. awarding her compensatory damages. punitive damages and reasonable attorney fees. together with pre-judgment inkrest. post-judgment interest. costs and such further relief as the Court deems proper.
COU:'IITV Intentional Infliction of Emotional Distress
(Airborne Express and Air One) 61. Ms. Smith incorporates and re-alleges Paragraphs I through 60 ahove as if fully set I{lrth herein. 62. Airhorne Express and Air One have intentionally chosen not to implement an etlcctivc sexual harassmcnt policy with knowledge that the policy in place at the time of Ms. Smith's employment was totally inefli:ctive and meaningless. Airborne Express and Air Onc's actions and inactions as described ahovc. including the total failure to respond in any way to Ms.

Smith's complaints and the related retaliation, encouraged and permitted male perpetrators, to prey on female ~mployees, such as Ms. Smith.
63. Airhorne Express and Air One knew or should have known ~ls. Smith and other woman were heing sexually harassed and/or discriminated against with no effective means to prevent and/or stop said harassment and knew that ~ls. Smith was experiencing severl' emotional distrcss as a result.
64. Airborn.: Express and Air One's inaction and railur~ to prevent the sexual harassment of Ms. Smith, and its failure to remedy the harassment oncc th.: two employers hecame aware of the situation, the failure to act in any way, or to removc Mr. Collins or Mr. Allison from the supervision of and/or contact with Ms. Smith, and otherwise perform an adcquat.: and dTective invcstigation or Ms, Smith's claims and th~ retaliation, wcr.: intentional, willful. malicious, reckless, wanton andlor grossly negligent.
65. Th~ conduct of Airborn~ Express and Air One permitted Tom Bump and male workers to have access to and sexually assault and harass ~ls. Smith. This conduct constitutes an intcntional intliction of .:motional distress upon Ms. Smith and has caused her to sulT~r severe "motional distress, therehy entitling her to an award or actual. compensatory and punitiv" damages,
66. The conduct of Airhorne Express and Air One set I,)rth ahovc was int~ntional. willful. malicious, reckless, wanton and/or grossly negligmt and was undertaken with a total disregard I,)r Ms. Smith's rights and f~elings, knowing that its actions or inactions would cause Ms. Smith to suiTer sevcre emotional distress.
WllEREFORE, on Count V, Ms. Smith prays for th.: entry of judgment in her f'1\"OT and
22

against Airborne Express and Air One. awarding her compensatory damages and punitive damages. together with pre-judgment interest. post-judgment interest. costs and such further relief as the Court deems proper.
COUNT VI Retaliatory Discharge
(Airborne Express) 67. Ms. Smith incorporates and re-alleges Paragraphs I through 66 ahove as if fully sct torth herein. 68. The al()rementioned actions and inactions of Airborne Express created a working environment that would han! b<::<::n intolerable to any reasonahle employee. was designed to have the effect of causing Ms. Smith to terminate her employment against hcr will and left \1s. Smith no alternative hut to terminate her employment. 69. Ms. Smith reported unlawful sexual harassmcnt and discrimination against women. which is a report on a matter of public concern as evidenced hy Title VII and the New Mexico lIuman Rights Act. Both statul<!s make discrimination illcgal and provide a legal right to report such activities. Ms. Smith reported these illcgal actions Il:lr herselfand to protect others. 70. Thc refusal of Airborne Express to ahidc by its I<::gal obligation to protect the rights of Ms. Smith. the refusal to remedy the environment in order to C'nsure her safety in the workplace and the retaliation. constituted a retaliatory discharge of 1..,,15. Smith's employment with Airborne Express. 71. Therefore. \1s. Smith was wrongfully terminated and constructively discharged by Airborne Express. 72. All of Airhorne Exprcss's actions were intentional. willful. malicious. reckless.
23

wanton. grossly negligent and deliberately indifferent to Ms. Smith's rights and feelings. therl'by entitling Ms. Smith to an additional award of punitive damages.
D. As a result of Airborne Express's conduct, Ms. Smith has suffered and will continue to sufii:r economic damages. embarrassment. humiliation and severe emotional distress, as well as other related damages.
WHEREFORE, on Count VI. Ms. Smith prays Illr the entry of judgment in her lavor and against Airborne Express. awarding her compensatory damages and punitive damages. together with pre-judgment interest. post-judgm.:nt inter.:st, costs and such further relief as the Court deems proper.
COUNTYII Grossly Negligent Supen'ision and Retention
(Airhorne Express and Air One) 74. Ms. Smith incorporates and re-alleges Paragraphs I through 70 above as if fully set forth herein. 75. Airborne Express was grossly negligent in supervising and retaining Mr. Collins and Mr. Allison, especially following 'vis. Smith's report to Human Resources of the hostile environment. and th.: lact that nothing was don.: to prevent 'vir. Collins or Mr. Allison from permitting the constant and continual and subsequent harassment of Ms. Smith. Air One was grossly negligent in retaining Tom Bump and other male workers. after they beeam.: aware of the hostile work environment and discrimination created by their employees and Tom Bump, who witnessed the Air One employee's behavior and participated himself. At all times Airborne Express and Air One had no elTective policy in place to protect fi:malc l'mployees. Illiled to enforce policic-s designed to protcct female employl'l's from predators. failed to adl'quatcly
24

invesligak complaints of sexual harassment and take elli!ctive remedial action. failed to monitor the activities of its employees following Illltice of the harassment. tailed to alkquatcly investigate and act upon the complaints made by Ms. Smith. and Iltiled to provide adequate training to all cmployees concerning the prohihition against. the prevention of. and the proper investigation of inappropriate sexual misconduct and failed to act suhsequent to Ms. Smith's complaints of a hostile work environment.
76. The aforesaid conduct of Airhorne T'xpress and Air One constitutes at least gross negligence and evidences a complete and total disn:gard for the rights and feelings of all Ii!male employees of Airborne Express and Air One. including Ms. Smith.
77. Airborne Express and Air One reasonably knew or should have known that if it ignored complaints of sexual harassment and failed to act in any manner to investigate and remedy a hosti Ie work environment. harm to female employees would likely be caused by such conduct and/or by the actions and omissions of Airhorne Express and/or Air One in failing to prevent or elli!ctively respond to such conduct.
78. As a direct result of the aforesaid conduct of Airborne Express and/or Air One. r-vls. Smith has suffered and will continue to suffer physical injury. severe emotional distress. embarrassment. humiliation and loss of employment. Furtl1<:r. as a direct n:sult of the aforesaid conduct. Ms. Smith has been prevented Irom performing her normal daily activities and obtaining the full enjoyment of life and has sustained loss of earnings and medical expenses and will continue to incur other related damages.
79. The actions of Airborne Express and Air One were willful. malicious. reckless. wanton and/or grossly negligent. thereby entitling Ms. Smith to an award of punitive damages.
25

WIIEREFORE. on Count VII, Ms. Smith prays for the entry of judgment in her favor and against Airborne Express and Air One, awarding her compensatory damages and punitive damagcs. together with pre-judgment interest, post-judgment interest. costs and such further relief as the Court deems proper.
COUNT VIII Breach of Contract (Airborne Express) 80. Ms. Smith incorporates and re-alleges Paragraphs 1 thwugh 79 above as if fully set I")rth herein. Rl. Plaintiff was employed by Airborne hpress under a written, oral and/or implied contract of employment that was modified and re-enforced by certain policies, practices. assurances and llther express and implied statements of Airborne Express. Among these explicit policies were policies that banned gender discrimination and harassment. mandated immediate and thorough investigation of gender discrimination and harassment complaints, and prompt discipline when such complaints were validated. In said Cllntract, it was implicitly agreed that Plaintiff would not be impeded in her job duties, and that she would be terminated only Il)r cause. Plaintiff entered into said contract, illler alia, to secure peace of mind and financial stability, and refrained from seeking employment elsewhere in reliance thereon. 82. At all times material hereto, Plaintiff performed her obligations under her contract with Airborne Express. Airborne Express breached its express and implied contractual commitments to PlaintilT by constructively terminating her employment without proper cause, allowing gender discrimination and harassment. failing to timely conduct investigations, and
26

failing to discipline and supervise those who harassed and discriminated against Ms. Smith. 83. At the time the parties entered into the contract. as alleged hcrein abovc, it was
known and understood. and within the reasonable conti.'mplation of the parties. that in the event of a hreach, Plaintiff would suffer present and future loss of earnings as a foreseeable and probable result thereof.
84. As a direct and proximate result of Airborne Express's breach of the contract, I'lainti ff in fact has suffered loss of wages and benelits, the full extent and nature of which arc presently unknown to her.
WHEREFORE, on Count VIII, Ms. Smith prays for the entry of judgment in her favor and against Airhorne Express, awarding her compensatory damages, together with pre-judgment interest. post-judgment interest, costs and such further relief as the Court deems proper.
COUNT IX Breach of Covenant of Good Faith and Fair Dt'aling
(Airbornt' Express) 85. Ms. Smith incorporates and re-alleges Paragraphs I through 84 ahove as if fully set forth herein. 86. I'lainlifT and Airborne Express entered into a written, oral and/or implied employment contract upon her hire and during the term of Plaintiffs employment. The basic terms of the agreement provided that Plaintiff's employment would be secure as long as her performance was satisfactory, that Plaintiff would not be impeded in her performance or career expectations, that Plaintiff would not be terminated without good cause, and that PlaintifT would carn agreed-upon wages and fringe benelits.

87. PlaintilT undertook and continued employment. and duly performed all of the conditions of the employment agrcl'ment to be perl<mned by her until pn:vented from further performance by Airborne Express. Plaintiff had at all times been ready. willing and abk to perfixm all of the conditions of the agreement to he performed by her.
88. From the time she reported the g.:nd.:r discrimination and harassment. Airhorne Express hreached the covenant of good faith and fair dealing by constructively terminating her, hy Illiling to investigate. hy failing to follow its own policy prohibiting harassment. by failing to act in any way to stop and prevent sexual harassment and discrimination. hy retaliating against her when she complained. and by failing to secure her suitahk o::mployment where she would not be subjected 10 such discrimination.
89. Plaintill" pcrformcd all conditions precedent to Airhorne Express's performance of its obligations under the contract. Plaintiffs performance was at all times satisfactory.
90. The law imposed duties on Airhornc Express. in connection with the employment agreement. to act fairly and in good filith towards Plaintiff. Airborne Express covcnanlt:d to give full cooperation to Plaintiff in her perltlrmanee under the employment agreement and 10 refrain from any act which would prevent or impede any ofthc conditions of the employment agro::o::mo::nt from heing performed. which would deny the employment agreement or which would prevent Plaintiff from receiving the benefits of the .:mployment agreement. or would harm PlaintilT in connection with the performance of her duties pursuant that contract. or prevent Plaintiff from securing damages for such harms. Airborne breached this covenant by allowing go::nder discrimination and harassment. failing to timely conduct investigations. and failing to discipline and supervise those who harassed and discriminated against Ms. Smith.
28

91. At the time the parties entered into the covenant. as alleged herein above. it was known and understood and within the reasonable contemplation of the parties that in the event of a breach. Plaintiff would suiTer loss of earnings and economic damage. As a direct and proximate result of Airborne Express's conduct. Plaintiff has suffered loss of earnings and economic damage in an amount according to proof but exceeding the jurisdictional minimum of this Court.
WllEREFORE. on Count IX. \1s. Smith prays for the entry of judgment in her favor and against Airborne Express. awarding her compensatory damages and punitive damages. together with pre-judgment interest. post-judgment interest. costs and such further relief as the Court deems proper.
COUNT X Tortious Interference With Contractual,
Business, And Employmt'nt Relations (Air One)
92. Ms. Smith incorporates and re-alleges Paragraphs 1-91 above as if fully set forth herein.
93. Air One and its agents. principals. and employees intentionally interfered with Ms. Smith's pcr/i.lTlnancc of her assigned job with Airborne Express hy the sexual harassment. retaliation and other harassment that it daily inflicted upon Ms. Smith. These hehaviors occurred even though Air One and its agents. principals and employees each had explicit. direct knowledge of the fact that Ms. Smith had an on-going contractual. business and/or employment relationship with Airborne Express.
94. llecause of the interference by Air One. and because of the emotional and physical
29

distress of encountering the violent. sexual. retaliatory. defamatory and oppressIve work atmosphere on a daily hasis which was created in suhstantial part hy Air One and its agents. principals and employees. Ms. Smith's relations with Airhorne Express were substantially compromised to the extent that Airborne Exprcss lost faith in her substantial management capabilitks.
95. As the involved interterence increased. and as Ms. Smith's emotional and physical distress also incr.:ascd due to the daily violent. sexual. retaliatory. dclillnatory and oppressive work atmosphcre created in suhstantial part by Air One and its agents. principals and employees. Ms. Smith's relations with Airborne Express got substantially worse. and the Airborne Express workers hegan to openly criticize and ignore Ms. Smith as well.
96. Ultimately the involved interference directly causcd Airhorne Express to constructively terminatc Ms. Smith as detailed ahovc. The loss of the joh. as well as the underlying harassment and intcrl~renee directly causcd ~ls. Smith suhstantial damages including causing her to seek medical and psychological attcntion. and causing her to move across country to lind replacement employment and the likc.
97. The involvcd harassment and interfcrence were without excuse or privilege. and were knowing. reckless. intentional. purposeful. and taken with the improper motive to end \1s. Smith's on-going cmployment by Airborne. As such. Ms. Smith is entitled to punitivc. as well as compensatory damages.
WHEREFORE. on Count X. Ms. Smith prays lelr the entry of judgment in her favor and against Air One. awarding her compensatory damages and punitive damages. togcthcr with prejudgment intcrest. post-judgmcnt intercst. costs and such further relief as thc Court deems proper.
30

COLINT XI Prima Facie Tort
(Air One) 98. Ms. Smith incorporates and re-alleges Paragraphs I through 97 above as if fully set forth herein. 99. Airborne Express manag<:m<:nt and <:mployees and Air One management and employecs all condoned the unlawful sexual harassment. The defendants collectively encouraged thc continued hosti!.: environment. Air One failed to investigatc the complaints regarding its employees and managcm<:nt. and faikd to take any action designed to prl'vcnt continued harassment. Air One mirrored the response hy Airhorne Express. the Company that held its contract. Indeed, both companies acted to preserve their contractual relations and cause as litt!.: disagreement and discord as possible, with the direct result of minimizing and ignoring Ms. Smith's complaints and the complained-of harassing acts. The acts of Air One were taken with the motive of unreasonably and without privilege ahsolutdy prderring Air One's own economic interests over Ms. Smith's physical. emotional and economic integrity. 100. The acts of Air One as set forth herein, constitute a prima facic tort as the acts of Air One were taken with the express understanding that Air One's hehavior would harm and continue to harm Ms. Smith. such harm did result, and the involved acts were taken without legal excuse or justitication. and w<:re improper in all regards. 101. As a direct and proximate result of Air One·s. Plaintiff has suffered and will continue to sufli:r pain and sutfering. and extreme and sevcrc mental anguish and emotional distress; shc has incurred and will continue to incur medical expenses for treatment by psychotherapists and other health professionals. and for other incidental cxpenscs; and she will
31

continue to suffer a loss of earnings and job opportunities. Plaintiff is tlll'reby entitled to general and compensatory damages in amounts to be proven at trial.
102. Air One's conduct as described herein was malicious and opprcssiVl:. and done with a conscious disregard of I'laintilrs rights.
WHEREFORE. on Count XI. Ms. Smith prays lilr the entry of judgment in her favor and against Air One. awarding her compensatory damages and punitive damages. togcthc:r with prejudgment interest. post-judgment interest. costs and such further rcliefas the Court deems proper.
.IlIRY TRIAL DEMANDED Plaintiff in intervention. Debra Smith. requests a jury trial on all matters raised hc:rein in her First Amended Complaint in Intervention.
Respectfully submitted.
BL_~~~~~~~~~ ~1ichelc Masiowski Diane Garrity Serra. Garrity & Masillwski. I.I.C P.O. Box 8177 Santa Fe. New Mexico 87504 (505) 983-6956 George Geran. Esq. Law Ortices of George Geran 625 Franklin Avenue Santa Fe. I\M 87505 (505) 983-1085 Attortleys for Plaillfiff iI/ Il/tavel/tilJII
32

July 8, 2003
Mr. Aaron Roser District Manager Airborne Express 3241 University S.E. Albuquerque, NM 87106

MICHELE MASIOWSh:J
AlTORNEY AT LAW

Dear Mr. Roser:
As you know this finn represents Ms. D. Smith regarding her complaint of discrimination, subsequent retaliation perpetrated on her by Airborne for filing that complaint, and any causes of action related thereto. Please be advised that we consider Ms. Smith to have been constructively discharged by Airborne. Ms. Smith repeatedly reported serious violations of your sexual harassment policy. Despite these reports, Airborne failed to investigate and to take any corrective action. Even after Ms. Smith was forced to file a discrimination charge, in an effort to remedy the situation and to protect herself, Airborne still failed to take any remedial measures.
Due to the emotional distress caused by the situation, Ms. Smith feIt that taking time ofT from the environment, would enable her to recoup and to return to work. However, when she did return to the work place, the harassment and hostile environment was worse. The hostile environment was so severe and pervasive that no reasonable person would be expected to tolerate it. Your position was essentially, that if you are employed at Airborne, you better be able to work in this hostile offensive environment. Ms. Smith was forced to leave her position for her health. Airborne's lack of action to correct the hostile environment, forced Ms. Smith out of her job and was also retaliation. Once the EEOC investigation is completed, in addition to Title VII and NM Human Rights Act causes of action, any complaint will also contain a cause of action for constructive discharge.

Michele Masiowski
cc: elient EEOC
644 DON GASPAR AVENUE, SANTA Fl'. NM 87505
(505)820-7667 MAMASIOWSKI@EAHTlII.INK.NI'T

•

-

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

lIouston District Office

TI ~ ~©~O~[g
ri APR - 5 2004

1919 Srnilh. 71b Floor lIoU)IOII, Tx 77002-8049
PI!: (713) 209-3320 TIlIl: (713)209-3<39 FAX: (713)209-3381 I~EGAL: (713) 209-3401

~

Chargc Number: 390-2003-00683

Debra Smith 36 Fourth Avenue Bluffton, SC 29910

Charging Party

Airborne Express 3101 Western Avenue P.O. Box 662 Seattle, WA 98111-0662

Respondent

DETERMINA TION

Undcr the authority vested in me by the Conunission, I issue the following detcnnination as to the merits of the above cited charge, filed under Titlc VII of the Civil Rights Act of 1964. as amended, and the Age Discrimination in Employmcnt Act of 1967, as amcnded.

All requirements for covcrage have been met. Charging Party alleges that she was subjected to harassment because of her sex, age and retaliated against by being disciplined and denied a promotion.

Respondent denies the allegations.

Based on the evidence, it is reasonable to believe that Charging Party was subjected to a sexually hostile work environment. Respondent failed to take Charging Party's complaints seriously and did not take appropriate actions to ensure a work environment free of sexual misconduct. It is also rcasonable to believe that Charging Party was retaliated against for complaining about the hostile work environment. No finding is made as to other issues raised in the charge filed by Charging Party.

Upon finding there is reasonablc cause to believe a violation has occurred, the Commission will attempt to eliminate the alleged unlawful practice by infonnalmcthods of conciliation. Therefore, the Commission now invites the parties to join with it in reaching a just resolution of this matter.

)f Respondent declines to discuss settlemcnt or when for any other reason a settlcment acceptable to the District Director is not obtained, thc District Director will infonn the parties

and advise them of the court enforccment altemativcs available to the aggrieved parties. A Commission Representative will contact each of the parties to begin conciliation.
On Behalf of the Conunission
Michael Fetzer Acting Director
cc: Michele Masiowski Serra, Garrity & Masiowski, LLC 440 Cerrillos Road, Suite 4 Santa Fe, NM 87501

•
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

HOllston District Office

Mlcley I dand F('delal Ouillllng

1919 Smith SITecl, 7110 Floor

Houston, TX 77002-8ii4!}

D~©~8"'1li. ~

(713) 209-3320 TIT (713, 209-J4J9 fAX (113) 209·3381

Charge Number: 390-2003-00684

ri APR - '5 2004
;Co'

Debra Smith 36 Fourth Avenue Blumon, SC 29910

Charging Party

Air One of New Mexico 3241 University S. E. Albuquerque, NM 87106

Respondent DETERMINATION

Under the authority vested in me by the Commission, I issue the following determination as to the merits of the above cited charge, filed under Title VII of the Civil Rights Act of 1964, as amended.
All requirements for coverage have been mel. Charging Party alleges that while working with Respondent's employees at Airborne Express's Albuquerque, New Mexico facility, she was subjected to daily vulgar, offensive, and sexually charged cO/JllJlents and actions by Respondent's employees and retaliated against because of her sex.
Respondent denies the allegations.
Based on the evidence, it is reasonable to believe Charging Party was subjected to a sexually hostile work environment. Respondent failed to take Charging Party's complaints seriously and did not take appropriate actions to ensure a work environment free of sexual misconduct. The Conunission makes no finding on the other issues alleged in the charge.
Upon finding there is reasonable cause to believe a violation has occurred, the Commission will attempt to eliminate the alleged unlawful practice by informal methods of conciliation. Therefore, the Commission now invites the parties to join with it in reaching a just resolution of this matter.
If Respondent declines to disellss settlement or when for any other reason a settlement acceptable to the District Director is not obtained, the District Director will inform the parties and advise them of the COllrt enforcement alternatives available to the aggrieved parties.

•
A Commission Representative will contact each of the parties to begin c·ollciliation.
On Behalf of the Commission

)~
Date

Michacl Fetzer Acting Director

cc: Michele Masiowski Serra, Garrity & Masiowski, LLC 440 Cerrillos Road, Suite 4 Santa Fe, NM 87501

02/18/0~D 09:03 FAX SOS 827 8878
BILL RlCHAIlDSON
GOVr:RNOR

HtHAN RIGHTS DIV.

CONROY CHINO
SECRETARY

OfFlct OF TIll! SECRETARY 401 BROADWAY, N,l. P.O. BOX 1918
ALiUQUEaQUI, ~,~, 8710)
(5DS) '41-1409 (505) 1011·10191 FAX

STATE OF NEW MEXICO
DEPARTMENT OF LABOR HUMAN RIGHTS DIVISION
lS96 Pacheco Street Santa Fe, New Mexico 87505-3979

~002
FR4NCII! CORDOV~ H,,",an R1Chti Oirtr:to
('01) 821-0138 1-'00·566.9471 (lO,) 827,(;171 FAX

AMENDED ORDER OF NONDETERMINATlON
February 08, 2005

Ms. Dcbl1l Smilh 36 Fourth Avenue Bluffton, SC 29910
RE: Debra Smith Y$, Airborne Express EEOC# 390-2003-00683
Dear Ms. Smith:
As authorized by Section 28-1-10 (0) ofthe New Mexico Human Rightll Act and the Work Sharing Agreement between the Equal Employment Opportunity Commission and the New Mexico Human Rights Division, tbisletlCl' constitutes an Order of Nondetermination as to your complaint. In accordance with Mitchell-Carr. Smith. Vaughn ape! Herrera v. Office and Profe.!lsjonl! Employees International Union Local 251, 1999-NMSC-02S, 110,127 N.M. 282, this Order of Nondetcrmination is is,~ to afford you the right to pursue )'Qur complaint under the Human Rights Act in state district court.
By issuing this Order ofNondetermination, the division has closed tbis complaint administratively, with prejudice. Therefore, you may not file this complaint with this division. You may obtain a new trial; however, by appealing this Order of Nondetermination to the proper district court. According to Section 28-\-13 (A) of the New Mexico Human Rights Act, you have thirty (30) days from the date ofservice of this Order of Nondetermination to file notice ofappea\ in the district court oflhe county where the alleged discriminatory practice occurred or where the respondent does business. Section 28-1-13 (A) of the Act also requires that you serve a copy of the notice of appeal personally or by certified mwl, return receipt requested, at the last known address of all parties, You also must serve a copy of the notice of appeal on the division

H["MAS RIGHTS DIV.
Order ofNondetennination Page 2
office in SlIIIa Fe. To properly serve the panics, you must comply with any other service of process requirements set forth in the New Mexico Rules of Civil Procedure at ]-004.
IF YOU DO NOT FILE A NOTICl OF APPEAL WITH TIlE APPROPRIATE DISTRICT COURT WITHIN TmRTY (30) DAYS OF SERVICE OF' mIS ORDER, AND IF \IOU DO NOT PROPERLY SERVE THE NOTICE, YOUR RIGHT TO APPEAL TIDS ORDER OJ' NONDETERMINATION TO THE DISTRICT COURT WILL EXPIRE.
If you have any question concerning this Order of Nondetermination, you may contact the Human Rights Division at 827-6838,
~esc~o,rd·ova Director
cc: Airborne Express

IlJ003

_.--_. __ - 02/16/05.. -W-ED-0-9:.04 FAX 505 827 68.78_
BILL RlCHAIlfISON
GOVERNOR

HUIIAS RIGHTS DIV.

CONROY CHlNO
SECRETARY

OfFICE OFTI-IE SECRETARV
401 BROADWAY, 1'1.1:.
P.O. BO)( 1911
ALBUQUERQUE, N.r.!. M7 10.' (50s) 141-8409
(50S) 141-i491 FAX

STATE of NEW MEXICO
DIPARTMENT OF LABOR HUMAN RIGHTS DIVISION
1596 P.~heco Street Santa Fe, New Medeo 87505-3979

1;!J004
FRANCIE CORDOVA 1·loml. Rlcbll Dlretlo
(~S) 117-6138 I ~IIOO-566-90111 (lOll BZ1-6K7B FAX

AMENDED ORDER OF NONPETERMINATJON
February 08, 200S

Mi. Debra Smith 36 Fourth Avenue Bluffton, SC 29910
RE: Debra Smith Vii. Air One ofNew Mexico EEOC# 390-2003-00684
Dear Ms_ Smith;
As authorized by Section 28-1-10 (D) of the New Mexico Human Rights Act and the Work Sharing Agreement between Ihe Equal Employment Opportunity Commiaaion and the New Mexico Human Rights Division, this letter cOllltitutes an Order of Nondetcnnination as to your complaint. In accordance with Mjtchell-Carr. Smith. Vauglm and Hqrqa v. Office ,M Professional Employees International Union Local
ill, 1999-NMSC-02S, , 10, 127 N.M. 282, Ihis Order ofNondctermination is issued to
afford you the right to pursue your complaint under the Human Rights Act in state district court.
By issuing Ihis Order of Nondetermination, the division has closed this complaint admini.tratively, with prejudice. Therefore, you may not file this complaint with this division. You may obtain a new trial; however, by appealing this Order of Nondetermination to the proper district court. According to Section 28-1-13 (A) of the New Mexico Human Rights Act, you have thirty (30) days from the date of scrvice of this Order of Nondetermination to file notice oflppeal in the district court oflhe county where the alleged dilCriminatory practicc occurred or where the respondent does busiDeas. Section 28-1-13 (A) of the Act also requires that you serve a copy of the notice of appeal personally or by ccnified mail, return receipt requcsted, at the last known address of all parties. You also mU5t serve a copy ofthe notice of appeal on the division

_----'0'-"2;)6 ·05 WED 09:0~ F,U 505 827 6878

HUMA~ RIGHTS DIV.

Order ofNondetcnnination Page 2
office in Santa Fe. To properly servc the panics, you must comply with lIJ\y other service of process requirements set forth in the New Mexico Rules of Civil Procedure at \-004.
IF YOU DO NOT FILE A NOTICE OF APPEAL WITH THE APPROPRIATE DISTRICT COURT WITHIN THIRTY (30) DAYS OP SERVICE OF THIS ORDER, AND IF YOU DO NOT PROPERLY SERVE THE NOTICE, YOUR RIGHT TO APPEAL TIDS ORDER OF NONDETERMINAnON TO THE DISTRICT COURT WILL EXPIRE.
If you have any question concerning this Order of Nondetcrmination. you llIay contact the Human Rights Division at 827-6838.
Sin~cet:IY' ....
Ffance Cordova Duec
cc: Air One ofNew Mexico

IlJ005

 
 IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

vs.

Civ. No. 04-1118 JP/WPL

DHL EXPRESS (USA), INC., f/k/a Airborne Express, Inc., and AIR ONE TRANSPORT GROUP, INC., d/b/a Air One Transport of New Mexico, L.L.C.,

Defendants,

and

DEBRA SMITH,

Plaintiff in Intervention,

vs.

DHL EXPRESS (USA), INC., f/k/a Airborne Express, Inc., and AIR ONE TRANSPORT GROUP, INC., d/b/a Air One Transport of New Mexico, L.L.C.,

Defendants.

MEMORANDUM OPINION AND ORDER

On December 15, 2005, Defendant Air One Transport Group, Inc., d/b/a Air One

Transport Group of New Mexico, L.L.C. (Air One) filed Defendant Air One Transport Group,

Inc.’s Motion to Dismiss Plaintiff’s First Amended Complaint (Doc. No. 9). Having considered

the briefs and relevant law, the Court finds that Air One’s motion to dismiss should be denied.

A. Background
The Plaintiff (EEOC) brought this Title VII lawsuit “to correct unlawful employment
practices on the basis of sex and retaliation, and to provide appropriate relief to Debra Smith, who
was adversely affected by such practices during her employment with Airborne Express, Inc.,
(‘Airborne’).” First Amended Complaint at 1 (Doc. No. 8), filed Dec. 1, 2004. The EEOC sued
Airborne (Ms. Smith’s employer) as well Air One. The EEOC alleges that at all relevant times
Air One had a contractual agreement with Airborne which provided that Air One employees,
including Ms. Smith, had to work at Airborne’s Albuquerque facility.1 The EEOC alleges that Air
One “as a third party and an employer subject to Title VII, unlawfully interfered with Ms. Smith’s
employment by creating a hostile work environment, which adversely affected the terms,
conditions and privileges of Smith’s employment with her employer, Defendant Airborne.” Id. at
2. The Plaintiff alleges that since November 2001 Air One interfered with Ms. Smith’s
“employment opportunities with her employer by subjecting her to offensive comments and
conduct because of her sex, female” and by failing “to take immediate and appropriate corrective
1Air One attached a Cartage Agreement between Air One and Airborne (Ex.1) to its Memorandum in Support of Motion to Dismiss Plaintiff’s First Amended Complaint. Although a document referred to in a complaint may be reviewed by a court in determining a Fed. R. Civ. P. 12(b)(6) motion to dismiss, the Cartage Agreement provided by Air One will be accorded little weight for two reasons. First, only the CEO from Air One signed the Cartage Agreement. Second, if the Cartage Agreement is in fact legally binding, it became effective on January 26, 2003, over a year after the conduct complained of in this lawsuit began in November 2001. See GFF Corp. v. Assoc. Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997)(“if a plaintiff does not incorporate by reference or attach a document to its complaint, but the document is referred to in the complaint and is central to the plaintiff’s claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss.”)(emphasis added).
2

action.” Id. at 4-5. Air One argues that the EEOC’s Title VII lawsuit must be dismissed against it because the EEOC has failed to allege that Air One was Ms. Smith’s employer for Title VII purposes. B. Standard of Review
In considering a motion to dismiss for failure to state a claim, the Court must liberally construe the pleadings, accept as true all factual allegations in the complaint, and draw all reasonable inferences in the plaintiff's favor. Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984). The Court may dismiss the complaint if it appears to a certainty that the plaintiff can prove no set of facts in support of the plaintiff’s claim which would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). C. Discussion
The parties agree that Ms. Smith and Air One did not have an explicit or direct employeremployee relationship. Air One initially argued that the Court should apply a hybrid test to determine if there was an otherwise implicit employment relationship between Ms. Smith and Air One. The Tenth Circuit, however, has held that the hybrid test is used only if there is an allegation that the charging party was an independent contractor as opposed to an “employee.” Bristol v. Board of County Com’rs of County of Clear Creek, 312 F.3d 1213, 1218 (10th Cir. 2002). Here, the EEOC does not allege facts in the First Amended Complaint to support the contention that Ms. Smith or Airborne were independent contractors. Instead, the EEOC argues that it has pled two theories of employer liability against Air One: third-party interference liability and joint employer liability.
3

1. Third-Party Interference Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973) established the theory of third-party interference liability under Title VII. The D.C. Circuit Court in Sibley held that third parties, i.e., parties not “actual nor potential direct employers of particular complainants,” could be liable under Title VII if they “control access to such employment and ... deny such access by reference to invidious criteria.” Id. at 1342. The third-party interference principle is also advanced and approved of in the EEOC Compliance Manual. Ex. A to Plaintiff Equal Employment Opportunity Commission’s Response to Defendant Air One Transport Group, Inc.’s Motion to Dismiss Plaintiff’s First Amended Complaint (Doc. No.14 ), filed Jan. 20, 2005. Air One argues that 1) the Tenth Circuit has not adopted the third-party interference theory; 2) the third-party interference theory is contrary to a previous holding by this Court; 3) the thirdparty interference theory is not widely-accepted; and 4) the EEOC Compliance Manual is entitled to no deference by the Court.
a. Whether the Tenth Circuit Has Approved the Third-Party Interference Theory In 1979, the Tenth Circuit cited approvingly to Sibley in finding that there was an employment relationship between Native American vendors on the Santa Fe Plaza and the Museum of New Mexico although the Museum of New Mexico did not pay the Native Americans vendors a salary. Livingston v. Ewing, 601 F.2d 1110, 1114-15 (10th Cir. 1979). The Tenth Circuit also cited to Sibley in 1980 to support the proposition that the definition of “employer” should be liberally construed. Owens v. Rush, 636 F.2d 283, 287 (10th Cir. 1980). Although these cases do not explicitly adopt the theory of third-party interference, they do not reject that theory either. See also Higgins v. Johnson County Medical Laboratories, Inc., 1996 WL 707102
4

*2 (D. Kan.)(applying third-party interference theory). Air One argues, however, that the Tenth Circuit has implicitly rejected the third-party
interference theory by applying tests like the hybrid test, integrated enterprise test, joint employer test, and the single-employer test to determine whether an employment relationship exists for Title VII purposes. As noted above, the hybrid test applies to cases alleging an independent contractor relationship. A hybrid test would therefore not preclude a third-party interference test in cases not involving an independent contractor relationship. The integrated enterprise test is used to determine “whether a parent corporation is liable for the acts of its subsidiary.” Frank v. U.S. West, 3 F.3d 1357, 1362 (10th Cir. 1993). Clearly, the integrated enterprise test would not preclude the use of a third-party interference theory outside of a parent corporation-subsidiary situation. A joint employer test determines whether two separate entities “co-determine the essential terms and conditions of employment” while the single employer test (also known as an economic realities test and in essence an integrated enterprise test) determines whether two separate entities should be treated as an integrated entity. Bristol, 312 F.3d at 1218. “[B]oth the joint-employer test and the single employer test are designed for situations where there is more than one alleged employer.” Id. In a third-party interference situation, the employee does not necessarily have to allege being employed by more than one employer. Third-party interference can occur “even where an employment relationship has never existed between the third-party employer and the individual.” Ex. A at 2-52. A third-party interference claim or test is, therefore, distinct and separate from a joint employer or single employer test which require an allegation of more than one employer. Consequently, the joint employer and single employer tests would not necessarily preclude a third-party interference claim in the Tenth Circuit. In sum, the Tenth
5

Circuit’s use of various tests for various employment situations to determine the existence of employment relationships does not prevent the EEOC from setting forth a third-party interference claim in this case.
b. The Court’s Previous Holding Regarding the Use of a Third-Party Interference Theory Next, Air One argues that this Court’s holding in Hunter, et al. v. PLB Enterprises, Inc., et al., Civ. No. 98-0077 JP/JHG, Memorandum Opinion and Order (Doc. No. 66), filed Oct. 18, 2000, precludes application of the third-party interference theory in this case. In Hunter, this Court applied a single employer or economic realities test in the context of a franchise arrangement. Although Air One asserts that it is irrelevant that Hunter involved a franchise arrangement, the Court finds that a franchise arrangement is sufficiently different from the situation at hand to distinguish Hunter from this case. Consequently, Hunter does not preclude the application of a third-party interference theory. c. Whether the Third-Party Interference Theory is Widespread Air One also argues that the EEOC’s representation of the widespread use of the thirdparty interference theory is erroneous. For purposes of this motion to dismiss, the important question is whether a third-party interference theory is viable in this circuit, not whether that theory is necessarily “widespread” throughout other circuits. As discussed already, the Court does not find that Tenth Circuit precedent or even precedent in this Court would prevent the EEOC from raising a third-party interference claim.
6

d. Reference to the EEOC Compliance Manual Finally, Air One argues that the EEOC Compliance Manual should be afforded no deference. Documents like the EEOC Compliance Manual are “‘entitled to respect’” as long as they have a “‘power to persuade.’” Christensen v. Harris County, 529 U.S. 576, 587 (2000)(quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). The EEOC Compliance Manual relies upon Sibley and EEOC v. Foster Wheeler Constructors, Inc., 1999 WL 515524 (N.D. Ill.) to support its adoption of the third-party interference theory. The EEOC Compliance Manual further disagrees with Bloom v. Bexar County, 130 F.3d 722, 724-25 (5th Cir. 1997) and EEOC v. State of Ill., 69 F.3d 167, 169 (7th Cir. 1995), cases rejecting the third-party interference theory, because “statutory language reflects congressional intent to cover an employer that meets the statutory requirements and is in the position to interfere with an individual’s employment with another employer. It is especially inappropriate to impose additional requirements when doing so undermines the general remedial purpose of the EEO statutes.” EEOC Compliance Manual at n.129, 2-52. The EEOC’s rationale in support of the use of a third-party interference theory is sufficient to give the EEOC Compliance Manual’s discussion of the theory of third-party interference a “power to persuade.” Hence, the EEOC’s adoption of that theory is entitled to respect by this Court. In giving the EEOC Compliance Manual’s adoption of the third-party interference theory respect and in considering the general lack of persuasive argument against the use of a third-party interference theory, the Court concludes that the EEOC has stated a third-party interference claim upon which relief can be granted.
7

2. Joint Employers In describing the theory of joint employers, the Tenth Circuit has stated the following: Title VII case law recognizes that two separate entities may be a worker’s employer if they share or codetermine matters governing the essential terms and conditions of the worker’s employment. When a worker is formally employed by one organization, but important aspects of his work are subject to control by another organization, both organizations are employers of the worker. An independent entity with sufficient control over the terms and conditions of the employment of a worker formally employed by another is a joint employer within the scope of Title VII. Thus two entities may both be a worker’s employer if “they share or co-determine those matters governing the essential terms and conditions of employment.” Sizova v. Nat. Institute of Standards & Technology, 282 F.3d 1320, 1329 (10th Cir. 2002)(citations omitted). The First Amended Complaint does not allege that Air One was a joint employer of Ms. Smith or that Air One controlled the terms and conditions of Ms. Smith’s employment with Airborne Express. Rather, the First Amended Complaint alleges that Air One “as a third party and an employer subject to Title VII, unlawfully interfered with Ms. Smith’s Employment by creating a hostile work environment, which adversely affected the terms, conditions and privileges of Smith’s employment with her employer Defendant Airborne.” First Amended Complaint at 2 (emphasis added). This allegation states a third-party interference claim, not a joint employer cause of action. Consequently, the Court concludes that the EEOC has stated only a third-party interference claim against Air One. IT IS ORDERED that Defendant Air One Transport Group, Inc.’s Motion to Dismiss Plaintiff’s First Amended Complaint (Doc. No. 9) is denied.
_______________________________________ SENIOR UNITED STATES DISTRICT JUDGE
8

9

 
 .. f :• '

IN THE UNITED STATES DISTRICT COURT . FOR THE DISTRICT OF NEW MEXICO

05 OCT -3 PH 4: 22

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff.

) ·,ClV04-IIIS JP!WPL .

)

v.

)

) SECOND AMENDED COMPLAINT

DHL Express (USA). Inc., f/kia Airborne Express. Inc ..)

and Air One Transport Group, Inc .. and

) JURY TRIAL DEMANDED

Air One Transport of New Mexico, L.L.c.

)

)

)

Defendants,

)

)

and

) .

)

DEBRA S\1ITH,

)

)

Plainti ff in

)

Intervention.

)

)

v.

)

)

DI-IL Express (USA) Inc., and Air One Transport· )

Group, Inc., d/h/a Air One Transport ofNel\' Mexico )

LLC and Air One Transport 0:' New Mexico, LLC, )

)

)

Defendants.

)

----------------.----------~-)

Comes now, Plaintift: the Equal Employment Opportunity Commission and pursuant to the

Initial Pre-trial Report, the Court's ruling that Plaintiff could have until Octoher 3, 2005 to amend

(Docket Entry 66. Clerk's Minutes ofSeptcmbcr 13. 2005) and Rule 15 of the Federal Rules of

:.'-

Civil Proccdure and hcreby amends its Complaint and First Amended Complaint as follows: !'IATURE OF TilE ACTION
This is an action under Title VII of the Civil Rights Act of 1964, as ameJided and Title I of
'..
the Civil Rights Act of 1991 to correct unlawful cmp,loymcnt practices on the basis of sex and
...,
retaliation, and to provide appropriate relief to Debra SJ11ith, who was adversely alTected by such practices during her employment with Airborne Express, Inc., (""Airhorne"). The Commission alleges that Dehra Smith was subjected to unwelcome sexual comments and conduct by employees of Defendants Airborne and the Air One Defendants, \vhich created a hostile work environment bccause of her sex, female. The Commission further alleges that Defendants Air One Transport Group, Inc., and Air One Transport of New Mexico, L.L.c. ("Air One"), as a third party, an employer and an integrated-enterprise subject to Title VII; unlawfully interfered.with Ms. Smith's employmcnt by creating a hosti Ie work environment, which adversely affected the telllls, conditions and privileges of Smith's employment with her employer, Defendant Airborne. The Commission also alleges Defendant Airborne subjected Ms. Smith to retaliatory discipline and failed to promote her because she opposed the unlawful employment prai:ticesof theDefendants.
.JURISDICTION AND VENUE I. ·Jurisdiction of this Court is invoked pursuant to 28 U.S.c. §§451, 1331, 1337, 1343 . and 1345. This action is authorized and instituted pUfSli.ant to Section 706(f)(1) and (3) ofTitic VII of the Civil Rights Act of 1964, as amended 42 U.S.C §2000e-5 (f)( I) and(3) ("Tiilc VII") and Section 102 of the Civil Rights Act of 1991, 42 U.S.c. §198Ia.
The emploYlm:nt practices alleged to· be unlawful were committed within the
2

" "".

jurisdiction orthe United States District Court for the District orNew Mexico.

PARTmS

3.

Plaintiff; the Equal Employment OpportiJnity Commission (the "Commission"), is

the agency of the Unitcd States of America charged with the administration, interpretation and

enforcement of Title VII, and is expressly authorized to bring this action by Scction 706(1)( I) and

(3) ofTitle VII, 42 U.S.c. §2000e-5(1)( I) and (3).

4.

At all relevant times, Defendant Airbome has continuously heen doing.husiness in

the State of New Mexico, including the City of Albuquerque, and has continuously had at least 15

employees.

5.

At all relcvant times, Defendant Airbome has continuously been and is now an

employer engaged in an industry affecting commercc within the meaning of Section 701 (b), (g) and

(h) ofTitle VB, 42 U.S.c. §2000e-(b), (g) and (h).

6. At all relevant times, Defendant, DHL Exprcss (USA), Inc., a Delaware Corporation

("DHL") has:

a) continuously had at least 15 employees;

h) continuously been and is now an employer engaged in an industry affecting
c~mmerce within the meaning·o(Sectio~l 701(b), (g) and (h) of Title VII; 42

U.S.c. §2000e-(h), (g) and (h); and

c) mcrged its business operations with the op·erations of Defendant Airbome and

is therefore, for purposes of this lawsuit a successor corporation who is or

may be liahle in this action.

3

7. At all relevant times, Defcndants Air'One Transport Group, Inc. and Air One

Transport of New Mexico. LL.C.. have continuously been doing business in the Statc of New

Mexico, including the City of Albuquenlue, and have continuously had at least 15 employees.

8. . At all relevant times, Defendants Air One Transport Group. Inc. and Air One

Transport of New Mexico. L.L.c., have continuously·been and arc now an employcr engaged in an

industry affecting commerce within the meaning of Section 701 (b), (g) and (h) of Title Vll, 42

U.S.C. §2000e-(b). (g) and (ll).

9.

At all relevant times. Defendants .Air One Transport Group, Inc., Air One New

Mexico. L.L.C.. and Haggar Enterprises, Inc., and other related entities have becn and arc now an

integrated enterprise with over SOO employees. This integrated C)lIerprise is liable for the violations

of Title Vll by the Air One Ddcndants as set forth in this complaint.

STATEI\-mNT OF CLAIMS

10. More than thirt:t days prior to the institution ofthis lawsuit, Debra Smith filed charges

with the Commission alleging violations ofTitle VII hy Defendants. All conditions precedent to the

institution of this lawsuit have, been fill filled.

II. At all relevant times, and under a contractual agreement between Defendants, Air One clllployeeswere assigned to work at the Defendant Airbol11~'s Albuquerque facility. the facility

where Smith worked.

12. Since at least November 2001, Defendant Airborne has engaged in unlawful

emplOyment practices at its Albuquerque, New Mexico facility in violation of Section 703(a) of

Title VII. 42 U.S.c. §§2000c-2(a) because of sex. These pract.iccs include:

'."
4
.....

;

a)

the harassment of Debra Smith hecause of her sex, female, which creatcd a

hostilc work cnvironment; and

b) the failure to take immediate an~ appropriate corrective action.

13. As described bdow, since at least November 2001, Defendants Air One Transport

Group, Inc., and Air One Transport of New Mexico, L.L.C.;have engaged in unlawfiil employment

practices at Airborne's Albuquerque, New Mcxico facility in .violation ofSection 703(a) ofTitie VII.

42 U.S.c. §§2000e-2(a) by creating a hostile work cnvironment forMs. Smith becausc of her sex, female, which interfered with Smith's emplo~leni opportUJiities and adversely affected the tenns,

conditions and privileges of Smith's employment with Defendant Airbome. Thcse unlawful

employment practices inClude:

a.) interference with Debra Smith's employment opportunities with hercmployer

by sub~ccting her to offensive comments and conduct because of her sex,

female; and

b) interference with Debra Smith's employmcnt opportunities with her employer

by Defendant Air One's failure to take immediate and appropriate corrective

action.

14. Since at least November 2002, Defendant Airborne has engaged in unlawful

reta'iiatoryemployment practices at its Albuquerque, J\cwMexico facility in violation of Section

704(a) ofTitle VII, 42 U.S.c. §§2000e-3(a). These retaliatory practices include:

a)

subjecting Debra Smith to disciplinary action and adverse tenns, conditions

and privileges of employment after she expressed opposition to and niade

complaints about unlawful cmployment practices; and

5

.;

b) failing to promote Debra Smith on or about February 2003 bccause shc

opposed the unlawful employmellt practices to which she was subjected.

15. ., The effect of the practices complain'ed of)n paragraphs I:! - 13 above has been to

deprive Debra Smith of equal employment opportunities and oiherwise adversely affect their status

as employees because ofhcr sex, female.

16. The effect of the practices complained of in paragraph 14ahove has been to deprive

Dehra Smith of equal employment opportunities and othef\\)se adversely affect her status as an

employee because of her opposition to unlawful cmployment practices.

17. The unlawful employment practices complaincd ofin paragraphs 12. 13 and 14 above

were intentional.

18. The unlawful employment practices complained ofin paragraphs 12, 13 and 14 above

were done with malice and/or reckless indifference to the federally protected rights of Dcbra Smith.

PRAVER FOR REU EF

Wherefore. the Comn~.ission respectfully requests that this Court:

A. . Grant a permanent injunction enjoining Defendants DHL, Airbome and Air One,

.;.

.

.'

their officers, successors, assigns and all persons ill activ~ concert or participation with them, from

engaging in harassment of employees hecause of sex· and any other employment practiCe which

discriminates on the basis of sex.

B. Grant a permancnt injunction enjoining Defendants DHL and Airbome, their officers,

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

employment practice which discriminates or retaliates against any individual because of the

individual's opposition to perceived unlawful employment practices and/or because the individual

6

filed a charge, testified, assiSl<d, or participated in an investigation or proceeding under Title VII.

C. Order Defendants DHL, Airborne and Air One to institute and carry out policies,

practices and programs which provide equal employment opportunities for women and for those who

oppose perceived unlilwful employment practices and/or file charges, testi fy, assist or participate in

an investigation or proceeding under Titlc VII, and which eradicate the effects ofits past and present

unlawful employment practice,;.

D. Order Defendants DHL and Airhorne to make whole Debra Smith hy providing

appropriate hack pay with prejudgment interest, in amounts to, he detennined at trial, and other

aftirmative reliefnecessary to eradicate the effects of its unlawful employment practices, including

but not limited to rightful place promotion of Debra Smith or front pay in lieu of rightful place

promotion or placement.

E. Order Defendants DHL, Airborne and.Air One to make whole Debra Smith by

. providing

compensation .

for

pas!:

and

future

pecuniary

losses

resulting

from

the

unlawful

employm.ent

practices described in paragraphs 12,13 and 14 above, in amounts to he detennined at trial.

F. Order Defendants DHL, Airborne and Air One to make whole Debril Smith by

providing compensation for past and future non pecuniary losses resulting from the unlawful

practices complained of in paragraphs 12, 13 and 14 ahove, including but not limited to, emotional

pain, suffering,'inconvenience, rilental anguish, humiliation', loss ofenjoyment ofli fe, and other non

pecuniary losses, in amounts to be detennined at trial.

G. Order Defendant> DHL, Airborne and AirOne to pay Debra Smith punitive damages.

for its malicious and/or reckless conduct described in paragraphs 12, 13 and 14 above, in amounts
.~
to be detennined at trial.

7

H. Grant such further rdicf as the Court decms necessary and proper in the puhlic

interest.

I.

Aivard thc Commission its costs in this action.

,JURY TRIAL DEMANDED

The Commission requests a jury trial on all questions of fact raised by its First Amended

Complaint.

DATED this 3rd day of Octoher 2005"

Rcspectfully submitted.

JAMES L. LEE Deputy General Counsel

GWENDOLYN YOUNG REAMS Associate Gcncral Counsel

EQUAL EMPLO'{MENT OPPORTUNITY COMMISSION 180 I L Street, NW Washington, D.C. 20507

MARY JO O'NEILL Rcgional Attorney
c. EMANUEL SMITH
Supervisory Trial Attorney

EQUAL EMPLO\'MENT OPPORTUNITY COMMISSION
Phoenix District Office 3300 N. Central Ave. Suite 690 Phoenix, Arizona 85012

8

· .;;
~MtQJ~ LORETTA MEDINA· Senior Trial Attorney VERONICA A. MOLINA Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Albuquerque District Office 505 Marquette J\W, Suite 900 Albuquerque, New Mexico 87102 (505) 248-5230 Attorneys for Plainti ff
9

 
 FiLED
:p. ~! !TT)~; I i'\.·;T:~~ r)ISTr~ICT counT
,'" '., i: .'i :;. i:.~·1- ii ~~r ~"f !vll::Xlcn

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff.

)

)

v.

)

)

)

DI-IL Express (USA) Inc.. and AIR ONE

)

TRANSPORT GROUP, INC.. d/b/a AIR ONE )

TRANSPORT OF NEW MEXICO, LLC a n d )

AIR ONE TRANSPORT OF NEW MEXICO. LLC )

)

Defendants,

-)

)

And

)

)

DEBRA SMITH

)

)

I'laintitl'in Intervention

)

)

v.

)

)

DBL Express (USA) Inc .. and AIR ONE

)

TRANSPORT GROUP, INC.. d/b/a AIR ONE

)

TRANSPORT OF NEW MEXICO, LLC and

)

AIR ONE TRANSPORT OF NEW MEXICO. LLC )

)

Defendants.

)

~. '\ TTHEW J. DYKMAN
CLUjK
No. CV-04-1118 JP/WP
CONSENT DECREE AS TO DEFENI>ANTS AIR ONE TRANSPORT GROUP, INC., AND AIR ONE TRANSPORT OF NEW MEXICO,LLC

Th.: United States Equal Employment Opportunity Commission (the Commission or EEOC) filed this action against DIlL Express (USA). Inc.. f/k/a Airborne Express. Inc., (hereinafter "DI·IL·') and Air One Transport Group. Inc., and Air One Transport ofNcw Mexico, L.L.C. (hereinafter "Air One") to cnlarce Title VII of the Civil Rights Act of 1964, as amended.
42 U.S.c. *2000e et seq. ("Title VII) and the Civil Rights Act of 1991. 42 U.S.c. § 1981a. In
the Complaint and Amended Complaints. the Commission alleged that Charging Party Debra

Smith was subjected to unwelcome comments and conduct liy employees of Airborne Express and Air One. which created a hostile work environment for Ms. Smith because of her sex. female. The Commission also alleged that Air One. as a third party, an employer and an integrated-enterprise subject to Titk VII. unlawfully interfCred with Ms. Smith's employment by creating a hostile work environment which adversely affected the terms, conditions, and privileges of Smith's employment with her employer. Finally, the Commission alleged that Airborne Express subjected Ms. Smith to retaliatory discipline and failed to promote her because she opposed the unlawful emp1l1yment practices of Defendants.
To resolve the claims of the Commission in this lawsuit. the parties have agreed that defendants Air One and DHL shall each separately agrt:t: to entry of a Consent Decree. This Consent Decree applies solely to Defendant Air One.
Air One denies all allegations of Plaintiff and Plaintin~lntervener Smith, and specifically denies that it discriminated against any individual on the basis of sex or any other unlawful practice under Title VII or the causes of action set fl)rth in the Complaint or the Complaint in Intervention.
This Consent Decree does not constitute an admission of liability by Air One. nor does it constitute an adjudication on the merits of the allegations in the Complaint or Complaint in Intervention. The parties do not object to the jurisdiction of the Court over this action and waive their rights to a hearing and tht: cntry of findings of fact and conclusions of law.
It is hereby ORI>EREI>. AI>.JlJl)GEI> ANI> I>ECREEl): I. This decree resolves all claims of the Commission against Air One on behalf of Debra Smith, including claims for back pay. compensatory and punitive damages, interest, injunctive
2

relief. attorncy's fees and costs arising out of the issues in this lawsuit.

IN.JUNCTION

2. Air One, their managers, agents, officers, employees, successors and assigns and all

persons in active concert or participation with them, are permanently enjoined for the duration of

the decree from discriminating against any employee because of his or her sex, including

subjecting employecs or individuals to sexual harassmcnt. This injunction will remain in efTect

for the duration of the decree at any facility operated by Air Onc in New Mexico and Arizona.

3. Air One, their managers, agents, otlicers, employees, successors and assigns and all

persons in active concert or participation with tlll:m, arc pennanently enjoined for the duration of

tht: decree from retaliating against any employee or individual because the employee or

individual has (a) opposed practices made unlawful by Title VII or a state equal cmployment

opportunity statute, (b) filed a charge of discrimination, including sexual harassment, (c) a~sisted

or participated in the filing of a charge of discrimination, including sexual harassment, (d)

assisted or participated in an investigation or proceeding under Title VII or a state equal

employment opportunity statute, or (e) files an internal complaint of discrimination.' This

injunction will remain in effcct for the duration of the decree at any facility operated by Air One

in New Mexico or Arizona.

RELIEF TO CHARGING I'ARTY

4.

In accordance with this decree, Air One shall pay the total amount of $125,000

payable to Debra L. Smith and her attorneys as compcnsatory damages.

5. Air One shaH pay the settlement amounts described in paragraph 4 of this decree

within fourteen (14) days of entry of this decree via business check payable to Ms. Smith and her

3

.. ' '. .~\ ;.

attorneys in c/o her attorneys. Within five (5) days of issuance of the eheek(s), Air One shall

submit a copy of the check and related correspondence to the Regional Attorney, Equal

Employment Opportunity Commission, Albuquerque Area Office, 505 Marquette NW, Suite

i .,

t.. ~

900, Albuquerque. New Mc!xico 87102-2189.

6. Air One shall not take any action against Debra Smith. any witness 111 this

proceeding or any other individual in retaliation tor filing a charge of employment discrimination

or for participating, assisting or testifying in this action.

DEFENDANTS' CORRECTIVE POLICIES AND PRACTICES

7. Air One shall institute and carry out policies and practices that will provide a work

environment tree from sex discrimination and retaliation, including policies. procedures and

practices to prevent sexual harassment of their employees and other individuals. and that allow

employees and other individuals to rais!! concerns or complaints about matters made unlawful by

Title VI!, whether alleged, perceived or actual without retaliation. To assist Air One in their

efforts to provide a work environment free of sex discrimination, sexual harassment and

n::taliation, Air One shall take the actions provided lor in Paragraphs 8 through 10 and 12 at each

of its facilities in New Mexico and Arizona.

8. Within sixty (60) days of the entry of this decree, Air Onl! shall review any existing

policies on sex discrimination, including sexual harassment and retaliation, which apply to its

New Mexico and Arizona facilities, and make any changes necessary so that their policies and

procedures comply with Title VII. Should Air One not currently have an existing policy

prohibiting sexual harassment or retaliation, defendant shall implement an effective anti-

retaliation policy and anti-harassment policy and procedure to receive employee complaints of

4

- - - - - . - - - - - - ------ ...
harassment based on sex. Air One shall ensure their written policy includes a statement which informs employees about their rights to complain directly to EEOC or any state equal opportunity agency. After reviewing and making any necessary revisions to its policies. Air One .shall distribute within 30 days. the revised sexual harassment and non-retaliation policies and complaint procedures to each of its current full and part-time <!mployees. and to each new employee hired for the duration of this decree. The policy and procedure statements that are provided to Air One employees should be designed to present easily understood. convenient, consistent, confidential and rl!liable procedures for reporting incidents of sexual harassment and retaliation at Air One facilities in New Mexico and Arizona. These procedures. at a minimum, shall include provisions incorporating the following:
A. Within thirty (30) days of entry of this decree and for the duration of this -decree, Air One shall designate at least one employee in a supervisory or managerial position for each facility to serve as investigative officer for sexual harassment or retaliation issues: that investigative officer need not work in the facility provided that the officer is reasonably available by tdephone and, when necessary and appropriate, is willing and able to travel to the facility;
B. Within thirty (30) days of entry of this decree and for thl! duration of this decree, the name(s), responsibilities. work location. and telephone number of thc investigative officer(s) will routinely and continuously be posted and provided to all employees so that an employee seeking such name can enjoy anonymiiy and remain inconspicuous to other employees;
C. For the duration of this decree, complaints of sexual harassment or retaliation will
5

be accepted in writing, orally, or anonymously and all complaints will be taken seriously and investigated: D. Only those who have an immediate need to know. including the investigative oflicer(s). senior management, the alleged target of harassment or retaliation. the alleged harasser(s) or retaliator(s) and any witnesses. may find out the identity of the complainant; E. During an investigation of a sexual harassment complaint of an employee or other individual, the investigative oflicer shall endeavor to interview as soon as practicable all alTeeted individuals and potential witnesses to the alleged
harassment;
F. All parties contacted in the course of an" investigation will be advised that any retaliation or reprisal against an individual who is an alleged target of harassment or retaliation. who has made a complaint. or who has provided evidence in connection with a complaint will not be tolerated and could result in disciplinary action;
G. Each investigative officer will receIve thorough and appropriate training about sexual harassment and will have the responsibility for expeditiously investigating all complaints. This training shall consist of at least two hours in addition to that provided under paragraph 10 of this decree;
H. The investigative oflicer will recommend remedial measures, if appropriate, based upon the results of the investigation, and Air One will promptly consider and act upon such recommendation;
6

I.

The investigative ollicer will maintain a file on the original complaint(s) and any

follow-up investigation; and

J.

Air One nlanagers. officials, agents or employees who engage in sexual

harassment or retaliation; who filii to cooperate with company-sponsored investigations of sexual

harassment or retaliation; or who refuse to implement remedial measures will b.: advised that

they may be sanctioned severely by, including but not limited to, suspension without payor

dismissal.

9. Air One shall post within thirty (30) days of the entry of this consent decree, and

continuously for a period of 36 months, in prominent places frequented by employees of their

New Mexico and Arizona facilities, the Notice attached to this decree as Exhibit A. This Notice

shall be the same type, styiC and size as in Exhihit A.

10. Defendant shall provide training on sex discrimination, sexual harassment, and

retaliation according to tht! 1i.,lIowing terms:

A. DeICndant shall provide at least four training sessions during the term of this

decree. All employees, including supervisors and managl'rs, at facilities owned or

operated by Air On.: in New Mexico and Arizona shall attend the training. In

addition, 13ill Haggar. Jim Haggar. and Monica Haggar shall attend at least one

training session required by this decree each year. Duplicative or videotaped

sessions may be held to accommodate stalling needs. Air One shall be

responsible for all costs associated with this training.

B. During the tirst year of the decree, the first training session shall be conducted

within ninety (90) days of the entry of this decree. In the first year of the decree,

7

· ...

.' :,.) ....

an additional training session must he held within one-hundred-twenty (120) days

of the previous training session for any hew employees or new managers hired

atkr the date of the tirst training session. Additional training shall be conducted

I

~ ~

at least once each remaining year of this Decree.

C. Air One shall select a qualifi.:d trainer and shall submit the trainer's name,

resume. training agenda and the date(s) of the proposed training to the Regional

Attorney of the Albuquerque Area Otlice of the Equal Employment Opportunity

Commission within forty-five (45) days of the entry of this decree. For the

second training session in year one and during the second and third years of the

d.:cree. the above information shall he submitted to the Regional Attorney at least

sixty (60) days prior to the seminar-training session. The Commission shall have

thirty days from the date of receipt of the information described above to accept

or reject the proposed consultant/lecturer and/or the contents of the seminar. In

the event the Commission does not approve defendant's designated

consultant/lecturer, the Commission shall designate the consultant/ lecturer at a

cost not to exceed $1000.00 per seminar'training session. which shall be paid by

Air One.

D. The training shall include a mll1lmUm of three hours of instruction. All

personnel. designated in Paragraph A shall both register and attend the training.

The registry of attendance shall be retained by Air One at least for the duration of

the decree.

E. The training. at a minimum shall include the subjects of: what constitutes sex

discrimination, including sexual harassment and retaliation; that sex discrimination in the hiring, firing,. compensation, assignment or other terms, conditions or privileges of employment imd retaliation violates Title Vll; how to prevent sex discrimination and retaliation; how to provide a work environment free from sex discrimination, sexual harassment, and retaliation; and to whom and by what means employees may complain if they feel they have been subjected to sex discrimination, sexual harassment or retaliation in the workplace. F. Immediately following the training sessions, Air One's highest ranking managerial official in tht: facility shall speak to the employees about: (I) potential discipline that can be taken against owners, stockholders, supervisors, managers and employees who commit acts of sex discrin'lination or retaliation or who allow sex discrimination or retaliation to occur in the workplace: (2) the importance of maintaining an environment free of sex discrimination and retaliation; and (3) the employer's policies regarding sex discrimination, sexual harassment, and retaliation. This time shall not be counied toward the three-hour minimum training required in paragraph IO.D. G. For the duration of this decree, at or around the. time of hire. employees hired after the annual training is presented, shall view a video tape of the training and/or a professional training tape which covers the topics set forth in paragraph IO.E. and shall be given any written material disseminated at the training. II. The Commission, at its discretion. may designate Commission representatives to attend and participate in any of the training sessions described above.

REPORTING BY DEFENDANTS AND ACCESS BY EEOC 12. Air One shall report in writing and in aflidavit form to the Regional Attorney of the Commission's Alhuquerque Area Office at 505 Marquette NW, Suite 900. Alhuquerque. New Mexico 87102-2189. heginning six months from the date of the Entry of this Decree, and thereafter every six months for the duration of the decree the following information: A. Any changes, modifications, revocations, or revisions to its policies and
procedures that concern or affect the subject of sex discrimination, sexual harassment and retaliation. B. The name. address, position. social security number and telephone number of any employee who during the six months preceding the report has brought allegations of sex discrimination, sex harassment, or retaliation arising from activities in Air One's facilities in New Mexico and Arizona against Air One or its personnel. including. but not limited to, owners, stockholders, management oflicials, vendors. agents. or employees. The nature of the complaint, investigatory efforts made by defendant and the corrective action taken. irany, shall be specified. C. The registries of persons attending each of the seminar-training sessions required in paragraphs 8 and 10 of this decree and a list of current employees on the day of the seminar-training session. D. An affidavit by Air One stating: (I) the Notice required in paragraph 9 of this decree was posted and the locations where it was posted, and (2) it has complied with paragraphs 7-10 and 12 of this decree.
10

, "

,"""

"i" : ""n , ~":" "-"

E. Copies of any video presentations Air On~ has utilized to comply with the

requirements of this decree.

1J. The Commission upon reasonable notice shall have the right to enter and inspect

the premises of Air One's facilities in New Mexico and Arizona ensure compliance with this

decree and federal anti-discrimination laws.

COSTS AND IjURATioN

14: . Each party shall bear its costs and attorney's fees' incurred as a result of this action

through the entry of-this decree.

15. The duration of this decree shall he three (3) years from its entry. "This Court
", """
shall retain jurisdiction of this action lilL the duration of the decree. during which the

Commission may petition this Court lilr complianc.e __:with ihis decree. Should the Court

"'

determine that Air One has not complied with this decree. appropriate relieC including extension

of this decree" for such period as may he necessary to r.cmedy its non-compliance. may he

ordered. 16.

This decree shall expire by its ownte~msai the ~nd or three (3) years after entry.

without further action hy the parties.

17. The parties agree to entry of this decree andsuhjeet to linal approval by the Court.

ENTERED AND ORDERED this "day 0 f _,------::.2:.:,:0.::.05::..:.-.,.
(~-
HI HOr--;ORABLE JAMES A. PARKER lOR UNITED STATES J)JSTRICT JUDGE

' " ",

APPROVED AND CONSENTED TO:

James L. Lee Deputy General Counsel

Gwendolyn Young Reams Associate General Counsel

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L. Street, N.W.
Washington. D.C. 20507

·k~~~

MARY JO O'NEILL

J

Regional Attorney

·1JN\~~~ jn ..11

C. EMANUEL SMITH

I¥"

Supervisory Trial Attorney

, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
3300 N. C.:ntral Ave., Suite 690 Phoenix, Arizona 85012
~~ LORETTA MEDINA Senior Trial Attorney
VERONICA MOLINA Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY
COMMIS~ION
Alhuqucrquc Area Ollie.: 505 Marquette NW, Suite 900 Albuquerque, New Mexico 87102-2189
Attorneys lor Plaintiff

vry, Esq . .Ie 'ica ernand.:z. Es RODEY. DICKASON. SLOAN. AKIN & ROI3I3, P.A. Post Office Box 1888 Albuquerque. New Mcxic1l87103 (505) 765-5900

Attorneys for Detendant Air One Transport Group, Inc:

Approved by Telephone 12/1/~;'
Michele Masiowski Serra, Garrity & Masiowski. LLC P.O. Box 8177 Santa Fe, New M"xico R7504 (505) 983-6956

Approved by Telephone 12/1/65

George Geran, Esq.

,

Law Offices of George Geran

625 Franklin Avenue Santa Fe, NM 87505 (505) 983-1085

~~ ~~

Attorneys Il)f Interwn.:r Debra Smith

;

NOTICE TO ALL AIR ONE EMPLOYEES

It is unlawful under the fedcrallaw Critic VlIoftheCivil Rights Act or 1964) and state law to discriminate against an employee on the hasis of sex in hiring, firing, GOmpensation or other terms, and conditions or privileges of employment, including sexual harassment. It is also unlawful under federal and state law to retaliate against any individual who c(implains of harassment..

Air One prohihits all fOl1ns of sex discrimination, .including sexual ·harassment. Prohibited sexual harassment includes, but is not limited to, the following conduct:

a. unwelcome touching of a sexual nature; " h. unwelcome comments, including comments regarding intimate body parts, or
clothing and discussion of sexual jokes or sexilal behavior; c. unwelcome requests for dates, sexual favors and propositions d. unwelcome distribution in the workplace or cartoons. pictures of drawings
of a sexual nature; and e. unwelcome display ofpomographic material in the workplace.

Air One shall not discriminate on the basis of sex and shall not retaliate against any employee who opposes a practice madc unlawful under federal law, tiles, assists or participates in the filing of a charge of discrimination or participates in any invcstigation under Title VII, or who files a grievance alleging discrimination.

I I' you believc you are heing sexually harassed, discriminated against hased on sex or
retaliated against you should report this to the designated investigative officer at your workplacc who may be contacted at _._ _ _ _ _ _'--_ _ _ _ _ _ _ _ _ _ _ _~

If you believe you have been discriminated against or retaliated against by Air One, you always have the right to seck assistance from or file a charge with:

I) Equal Employment Opportunity Commission (EEOC), 505 Marquette, Suite 900. Albuquerque, New Mexico 87102:(505) 248-5201. or
(2) The New Mexico Department of Lahor, ]·Iuman Rights Division, 1596 Pacheco St., Suite 103, Santa Fe, New \1cxieo 87505, (505) 827-6838.'

~~XHI8IT A

 
 FILED
l.INITI,n ~;T"l'I:~: UI~;nIlCr C()UnT !\U it jC;t :l~ll()!.!i=. ~.. !~ \,:V HEXICO
IN THE UNITED STATES DISTRICT COURT ore n 6 zeDs
FOR THE DISTRICT OF N~:W MEXICO
MATTHEW J. DYKMAN
CLERK

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.

CIV. No. 04-1118 JPIDJS
CONSENT DECREE AS TO DHL EXPRESS (USA), INC.

DHL EXPRESS (USA), INC., and AIR ONE TRANSPORT GROUP, INC., d/b/a AIR ONE TRANSPORT OF NEW MEXICO, LLC and AIR ONE TRANSPORT OF NEW MEXICO, LLC

Defendants,

And DEBRA SMITH,

Plainti ff in Intervention,

v.

DHL EXPRESS (USA), INC., and AIR ONE TRANSPORT GROUP, INC., d/b/a AIR Ol\E TRANSPORT OF NEW MEXICO, LLC and AIR ONE TRANSPORT OF NEW MEXICO, LLC,

Defendants.
-------------------------------/

The United States Equal Employment Opportunity Commission (the "Commission" or "EEOC") filed this action against DHL Express (USA), Inc., flk/a Airborne Express, Inc., (hereinaner "DI'IL") to enforce Title VII of the Civil Rights Act of 1964. as amended, 42 U.S.c. §2000e et seq. ("Title VII") and the Civil Rights Act of 1991,42 U.S.c. §198Ia. In the Complaint and Amended Complaints, the Commission alleged that Charging Party Dehra Smith, as

an employee of Airborne Express, was subjected to unwelcome comments and c.onduc.t by employees of Airborne Express and Air One, which created a hostile work environment for Ms. Smith because of her sex, female. Finally, the Commission alleged that Airborne Express subjected Ms. Smith to retaliatory discipline and failed to promote her because she opposed the
)
unlawful employment practices of Defendants. To resolve the claims of the Commission in this lawsuit, the parties have agreed that the
defendants Air One and DHL shall each separately agree to entry of a Consent Decree. This Consent Decree applies solely to defendant DHL.
This consent decree does not constitute an admission of liability by DHL. DHL expressly denies that it discriminated or retaliated against Ms. Smith on any basis under Title VlI. DHL admits that it merged its business operations with defendant Airborne Express and for purposes of this lawsuit, it is the successor corporation.
The parties do not object to the jurisdiction of the Court over this action and waive their rights to a hearing an the entry of findings of fact and conclusions of law.
It is hereby ORDERED, ADJUDGED AND DECREED: 1. This decree resolves all claims of the commission against DHL on behalf of Debra Smith, including claims for back pay, compensatory and punitive damages, interest, injunctive relief, and attorneys' fees and costs arising out of the issues in this lawsuit.
INJUNCTION 2. DHL, its managers, officers, employees, and successors, are permanently enjoined for the duration of the decree from discriminating against any employee in New Mexico hecause of his or her sex, including subjecting employees or individuals to sexual harassment. This
2

injunction will remain in effect for the duration of the decree at any facility operated by DHL in New Mexico.
3. DHL, its managers, officers, employees, and successors, are permanently enjoined for the duration of the decree from retaliating against any employee in New Mexico or individual in New Mexico because the employee or individual has (a) opposed practices made unlawful by Title VII or a state equal employment opportunity statute, (b) filed a charge of discrimination, including sexual harassment, (c) assisted or participated in the filing of a charge of discrimination, including sexual harassment, (d) assisted or participated in an investigation or proceeding under Title VII or a state equal employment opportunity statute, or (e) files an internal complaint of discrimination. This injunction will remain in effect for the duration of the decree at any facility operated by DHL in New Mexico.
RELmF TO CHARGING PARTY 4. In accordance with this decree, DHL shall pay the total amount of $175,000 payable to DEBRA SMITH as damages and attorneys' fees and costs. 5. DHL shall pay the settlement amount described in Paragraph 4 of this decree within fourteen (14) days of entry of the Consent Decree by the Court. The Consent Decree will be filed with the Court upon the parties' execution of all documents necessary to complete settlement. Within five (5) days of issuance of the business eheek(s) to Ms. Smith and her attorneys, DHL shall submit a copy of the checks and related correspondence to the Regional Attorney, Equal Employment Opportunity Commission, Albuquerque Area Office, 505 Marquette NW, Suite 900, Albuquerque, New Mexico 87102-2189. 6. In response to any employment inquires or reference checks concerning Debra Smith, DHL shall provide only her dates of employment, last position held, and final salary. DHL shall
3

not engage in any disparagement of Ms. Smith in response to any inquiries about her. This provision shall remain in force for so long as Debra Smith uses DHL as a reference and is not limited to the three-year duration of this decree.
7. DHL shall not take any action against Debra Smith, any witness in this proceeding or any other individual in retaliation for filing a charge of employment discrimination or for participating, assisting or testifying in this action.
DEFENDANT'S CORRECTIVE POLICIES AND PRACTICES 8. DHL shall institute and carry out policies and practices in its New Mexico facilities that will provide a work environment free from sex discrimination and retaliation, including policies, procedures and practices to prevent sexual harassment of their employees and other individuals, and that allow employees and other individuals to raise concerns or complaints about matters made unlawful by Title VII, whether alleged, perceived or actual without retaliation. To assist DHL in their efforts to provide a work environment free of sex discrimination, sexual harassment and retaliation in its New Mexico facilities, DHL shall take the actions provided for in Paragraphs 9 through 12. 9. Within sixty (60) days of the entry of this decree, DHL shall review any existing policies on sex discrimination, including sexual harassment and retaliation, which apply to its New Mexico facilities, and make any changes necessary so that their policies and procedures comply with Title VII. Should DHL not currently have an existing policy prohibiting sexual harassment or retaliation, DHL shall implement an effective anti-retaliation policy and antiharassment policy and procedure to receive employee complaints of harassment based on sex. Aller reviewing and making any necessary revisions to its policies, DHL shall distribute within thirty (30) days, the revised sexual harassment and non-retaliation policics and complaint
4

procedures to each of its current full and part-time employees in New ~exico, and to each new

employee in New Mexico hired for the duration of this decree. The policy and procedure

statements that are provided to DHL employees ih New Mexico should be designed to present

easily understood, convenient, consistent, confidential and reliable procedures for reporting

incidents of sexual harassment and retaliation in DHL facilities. These procedures, at a

minimum, shall include provisions incorporating the following:

A. Within thirty (30) days of the entry of this decree, and for the duration of this

decree, DHL shall designate a Human Resources Representative who will serve as. the

investigative person for sexual harassment or retaliation issues in New Mexico and DHL shall

post in all New Mexico facilities the identity of the Human Resources Representative, which

shall remain posted for the duration of the decree;

...,.'

B. For the duration of this decree, complaints of sexual harassment or retaliation

in New Mexico will bc accepted in writing or orally and all complaints will be taken seriously

and investigated;

C. Only those who have an immcdiate need to know, including the person.

identified in A above, the alleged target of harassment or retaliation, the alleged harasser(s) or

retaliator(s) and any witnesses, may find out the identity of the complainant;

D. During an investigation of a sexual harassment complaint of an employee or'

other individual, the person identified in A above shall endeavor to immediately interview all

affected individuals and potential witnesses to the alleged harassment;

E. All parties contacted in the course of an investigation will be advised that any

retaliation or reprisal against an individual who is an aliegedtarget of harassment or retaliation,

5 ..

who has made a complaint, or who has provided evidence in connection with a complaint, will not be tolerated and could result in disciplinary action; "
F. The person identified in A shall receive or will have received a minimum of three (3) hours of training about sexual harassment that is separate from the training provided in paragraph 11 D, and will have the responsibility for expeditiously investigating all complaints;
G. The person identified in A above will recommend remedial measures, if appropriate, based upon the results of the investigation, and DHL will promptly consider and !lct " upon such recommendation;
H. The person identified in A ahove will maintain a file on the original complaint(s) and any follow-up investigation; and
1. DH L managers, officials, or employees who engage in sexual harassment or retaliation, who fail to cooperate with company-sponsored investigations of sexual harassment or retaliation, or who refuse to implement remedial measures will be advised that they may be sanctioned severely by suspension without payor dismissal.
10. DBL shall post within thirty (30) days of the entry of this consent decree; and continuously for a period of thirty six (36) mOlllhs in a prominent place in the workplace of their New Mexico facilities, the Notice atlached to this decree as Exhibit A. This Notice shall be the same type, style arid size as in Exhibit A. DHL shall also distribute within thirty (30) da)'s of the entry of this consent decree, the Notice attached to this decree as Exhibit A, to each of its employees in New Mexico.
II. DHL shall provide training on sex discrimination, sexual harassment, andrctaliation" in its New Mexico facilities according to the following terms:
6

A. DHL shall provide its New Mexico employees with at least three (3) training sessions during the tenn of this decree. All DHL employees at facilities owned or operated by DHL in New Mexico, including supervisors and managers, shall attend the training. New employees at DHL shall receive the training within six (6) months of beginning employment. Duplicative sessions or videotaped sessions may be held to accommodate staffing needs. DH L shall be responsible for all costs associated with this training.
B. During the first year of the decree, the first training shall be conducted within one hundred and twenty (120) days of the entry of this decree. Additional training shall be conducted at least once each remaining year of this decree.
C. DHL shall select a member of DHL's legal department. i-iuman Resources Representative or outside consultant who is qualified in employment law to provide the training referred to in this decree. DHL shall provide the trainer's name, resume and the date of the scheduled training to the Regional Attorney of the Equal Employment Opportunity Commission, Albuquerque Area Office, thirty (30) days before the first scheduled training. For the second and third years of this decree, DHL shall provide the same infonnation thirty (30) days before the subsequent scheduled training. The Commission shall have lifteen (15) days from the date ofthe receipt of the infonnation described above to accept or reject the proposed trainer/consultant.
D. The training shall include a minimum of three (3) hours of instruction.. All personnel designated in Paragraph II A shall both register and attend the training. The registry of attendance shall be retained by DI-IL at least for the duration of the decree.
E. The training, at a minimum. shall include the subjects of: what constitutes sex discrimination, including sexual harassment and retaliation; that sex discrimination in the hiring, firing, compensation, assignment or other terms, conditions or privileges of employment and
7

retaliation violates Title VII; how to prevent sex discrimination and retaliation; how to provide a work environment free from sex discrimination, sexual.harassment, and retaliation; and to whom and by what means employees may complain if they feel they have been subjected to sex discrimination, sexual harassment or retaliation in the workplace.
F. Immediately following the training sessions, DHL's highest ranking managerial official in the facility shall speak to the employees about: (1) potential discipline that can be taken against supervisors, managers and employees who commit acts of sex discrimination or retaliation or who allow sex discrimination or retaliation to occur in the workplace, (2) the importance of maintaining an envirolUnent free of sex discrimination and retaliation, alid (3) the employer's policies regarding sex discrimination, sexual harassment and retaliation. This time shall not be counted toward the three-hour minimum training required in liD.
G. The Commission, at its discretion, may designate Commission representatives to attend any of the training sessions described above.
REPORTING BY DEFENDANT AND ACO:SS BY EEOC 12. DH L shall report in writing and in affidavit form to the Regional Attorney of the Commission's Albuquerque Area Office at 505 Marquette NW, Suite 900, Albuquerque, N'::w Mexico 87102-2189, beginning six (6) months from the date of the Entry of this Decree, and thereafter every six (6) months for the duration of the decree the following infonnation:
A. Any changes, modifications, revocations, or revisions to its policies and procedure which concern or affect the subject of sex discrimination, sexual harassment and retaliation.
8

B. The number of people who, during the six months preceding the report, have brought allegations of sex discrimination, sex harassment, or retaliation arising from activities in DHL's facilities in New Mexico against DHL or its personnel, including, but not limited to management officials, vendors or employees. The nature of the complaint, investigatory efforts made by DHL, and the corrective action taken, if any, shall be specified.
C. The registries of persons attending each of the seminar-training sessions required in Paragraphs 9 and II of this decree and a list of current employees on the day of the seminartraining session.
D. An affidavit by DHL stating: (I) the Notice required in Paragraph 10 of this decree was posted and the location where it was posted, and (2) it has complied with Paragraphs 9,10, and 11 of this decree.
E. Copies of any video presentations DHL has utilized to comply with the requirements of this decree, ifany.
13. The Commission upon reasonable notice shall have the right to enter and inspect the premises of DHL's facilities in New Mexico to ensure compliance with this decree and federal anti-discrimination laws.
COSTS AND DURATION 14. Each party shall bear its costs and attorneys' fees incurred as a result of this action through the entry of this decree. 15. The duration of this decree shall be three (3) years from its entry. This Court shall retain jurisdiction of this action for the duration of the decree, during which the Commission may petition this Court for compliance with this decree. Should the Court determine that DHL has
9

not complied with this decree, appropriate relief, including extension of this dccrec for such period as may be necessary to remedy its non-compliance, may be ordered.
16. This decree shall expire by its own ternlS at the end of three (3) years after cntry. without further action by the partics.
17. The parties agree to entry of this decree subject to final approval by the Court. ENTERED AND ORDERED this _ day of _ _ _ _ _ _., 2005.

e Honorable James A. Parker enior United States District Judge

APPROVED AND CONSENTED TO:
\, DATED: JJ~ )005
DATED: JJ~. ~ I ).005

James L. Lee Deputy General Counsel

Gwendolyn Young Reams Associate Gcneral Counsel

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L. Street. N.W. Washington, D.C. 20507

b~~/iM

Mary Jo O'Neill

I

Regional Attorney

~1Yw~~ C. Emanuel Smith Supervisory Trial Attorncy

10

. ;

,.

EQUAL EMPLOYMENT OPPORTUNITY

CO~MISSION

3300 N. Central Ave., Suite 690

Phoenix, Arizona 85012

DATED: ~ (, JooS

lMo~~
Loretta Medina Senior Trial Attorney

Veronica Molina Trial Attorncy
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Albuquerque Area Office 500 Marquette NW, Suite 900 Albuqucrque, New Mexico 87102-2189
Attorneys for Plaintiff

Timothy

AmyK.

a

FISHER &P

LP

501 - 14th Street, Suite 200

Oakland, California 946 J 2

(510) 763-441 J

Attorneys for DHL EXPRESS (USA), INC.

II

NOTICE TO ALL DHL EMPLOYEES

It is unlawful under the federal law (Title VII of the Civil Rights Act of 1964) and state law to discriminate against an employee on the basis of sex in hiring, firing, compensation or other terms, and conditions or privileges of employment, including sexual harassment. It is also unlawful under federal and state law to retaliate against any individual who complains of harassment.

DHL prohibits all fonns of sex discrimination, including sexual harassment. Prohibited sexual harassment includes, but is not limited to, the following conduct:

a. unwelcome touching of a sexual nature;

b. unwelcome comments, including comments regarding intimate body parts, or clothing and discussion of sexual jokes or sexual behavior;

c. unwclcome requests for dates, sexual favors and propositions;

d. unwelcome distribution in the workplace of cartoons, pictures of drawings of a sexual nature; and

e. unwelcome display of pornographic material in the workplace.

DHL shall not discriminate on the basis of sex and shall not retaliate' against any employee who opposes a practice made unlawful under federal law, files, assists or participates in the filing of a charge of discrimination or participates in any investigation under Title VII, or who files a grievance alleging discrimination.

If you believe you are being sexually harassed, discriminated against based on sex or

retaliated against, you should report this to your Human Resources Representative at

- - - - - - - - or contact the:

.

1) Equal Employment Opportunity Commission (EEOC), 505 Marquette, Suite 900, Albuquerque, New Mexico 87102, (505) 248-5201. or
(2) The New Mexico Department of Labor, Human Rights Division, 1596 Pacheco St., Suite 103, Santa Fe, New Mexico 87505, (505) 827-6838 or 1-800-566-9471.

EXHIBIT A

 
 ;

FRLER:

UANII/T"'lI:D' ~T!\ TF!''; DI.(~Td)(~-,T (",'0', JI'l I'
...1,}( j ,l.!I.:i{{jl!l:. J'i!:W r,,·l!.::X!C·

IN THE UNITED STATES DISTRICT COURT

,0

FOR TIlE DISTRICT OF NEW MEXICO 'FEB 2 4 2006

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
DHL EXPRESS (USA), INC., and AIR ONE TRANSPORT GROUP, INC., d/bla AIR ONE TRANSPORT OF NEW MEXICO, LLC and AIR ONE TRANSPORT OF NEW MEXICO, LLC
Defendants,
And DEBRA SMITH,
Plaintiff in Intervention,
v.
DHL EXPRESS (USA), INC., and AIR ONE TRANSPORT GROUP, INC., d/bla AIR ONE TRANSPORT OF NEW MEXICO, LLC and AIR ONE TRANSPORT OF NEW MEXICO, LLC,
Defendants. __________________1

MATT~EW J, DYKMAN
CLEiU, CIY. No: 04-1118 JP/DJS
AMENDED CONSENT DECREE AS TO DHL EXPRES~ (USA), INC.

The United States Equal Employment Opportunity CommissiOl) (thc "Commission" or "EEOC") filcd this action against DHL Express (USA), Inc" flkia Airborne Express, Inc., (hereinaftcr "DJ-IL") to enforce Title VII of the Civil Rights Act of 1964, 'as amended, 42 U.S.c. §2000c ct seq. ("Title VII") and the Civil Rights Act of 1991, 42 U.S.c. §198Ia. In the Complaint and Amended Complaints, the Commission alleged that Charging Party Debra Smith, as

- - - - - - - - - - -.. ... -.-.~ - ................_..........._...
. ,
an employee of Airborne Express, was subjected to unwelcome coniments and conduct by :
employees of Airborne Express and Air One, which created a hostile work environment for Ms. Smith because of her sex, female. Finally, the Commission alleged! that Airborne Express subjected Ms. Smith to retaliatory discipline and failed to promote her ~ecause she opposed the unlawful employment practices of Defendants.
To resolve the claims of the Commission in this lawsuit, the parties have agreed that the defendants Air One and DHL shall each separately agree to entry of a Consent Decree. This Consent Decree applies solely to defendant DHL.
This consent decree does not constitute an admission of liability by DHL. DHL expressly denies that it discriminated or retaliated against Ms. Smith on any basis under Title VII. DHL admits that it merged its business operations with defendant Airborne Express and for purposes of this lawsuit, it is the successor corporation.
The parties do not object to the jurisdiction of the Court over this action and waive their rights to a hearing an the entry of findings of fact and conclusions oflaw.
It is hereby ORDERED, ADJUDGED AND DECREED: I. This decree resolves all claims of the commission against DH L on behal I' of Dehra Smith, including claims for back pay, compensatory and punitive damages, interest, injunctive relief, and attorneys' fees and costs arising out of the issues in this lawsuit.
INJUNCTION 2. DHL, its managers, officers, employees, and successors, are pennanently enjoined for the duration of the decree from discriminating against any employee in New Mexico because of his or her sex, including subjecting employees or individuals to sexual harassment. This
2

injunction will remain in effect for thc duration of the decrec at any facility operated by DHL in New Mexico.
3. DHL, its managers, officers, cmployees, and successors, are permanently enjoined for the duration of the dccree from retaliating against any employee in New Mcxico or individual in
i
Ncw Mexico bccause the employee or individual has (a) opposed practices made unlawful by Title VII or a state equal employment opportunity statute, (b) tiled a chargc of discrimination, including sexual harassmcnt, (c) assisted or participatcd in thc filing of a charge of diserimination, including scxual harassment, (d) assisted or participated in an investigation or proceeding under Title VII or a state equal employment opportunity statute, or (e) tiles an internal complaint of discrimination. This injunction will remain in effcct for the duration of the decrce at any tacility operated by DHL in New Mexico.
RELIEF TO CHARGING PARTY 4. In accordancc with this decree, DHL shall pay the total amount of $175,000 payable to DEBRA SMITH as damages and attorneys' fees and costs with $20,000 less applicable tax withholding allocated to lost wage and the balance for attorneys' fees and costs. 5. DHL shall pay the settlement amount descrihed in Paragraph 4 of this decrcc within fourteen (14) days of entry of thc Consent Decree by the Court. The Consent Decree will be tiled with the Court upon the parties' cxecution of all documcnts necessary to complete settlement. Within tive (5) days of issuance of the business check(s) to Ms. Smith and her attorneys, DHL shull submit a copy of the checks and related correspondence to the Regional Attorney, Equal Employment Opportunity Commission, Albuquerque Area Office, 505 Marquette NW, Suite 900, Albuquerque, New Mexico 87102-2189.
3

6. In response to any employment inquires or reference checks concerning Debra Smith, DHL shall provide only her dates of employment, last position held, and tinal salary. DHL shall not engage in any disparagement of Ms. Smith in response to any inquiries about her. This
I
provision shall remain in force for so long as Debra Smith uses DHL a~ a reference and is not limited to the three-year duration of this decree.
7. DHL shall not take any action against Debra Smith, any witn~ss in this proceeding or any other individual in retaliation for filing a charge of employmen.t discrimination or for participating, assisting or testifying in this action.
DEFENDANT'S CORRECTIVE POLICIES AND PRACTICES 8. DHL shall institute and carry out policies and practices in its New Mexico facilities that will provide a work environment free from sex discrimination arid retaliation, including policies, procedures and practices to prevent sexual harassment of their employees and other individuals, and that allow employees and other individuals to raise concerns or complaints about. matters made unlawful by Title VII, whether alleged, perceived or actual without retaliation. To assist DHL in their efforts to provide a work environment free of sex discrimination, sexual harassment and retaliation in its New Mexico facilities, DHL shall take the actions provided lor in Paragraphs 9 through 12. 9. Within sixty (60) days of the entry of this decree, DHL sliall review any existing policies on sex discrimination, including sexual harassment and retaliation, which apply to its New Mexico facilities, and make any changes necessary so that their policies and procedures comply with Title VII. Should DHL not currently have an existing policy prohibiting sexual harassment or retaliation, DHL shall implement an efrective anti-retaliation policy and antiharassment policy and procedure to receive employee complaints of harassment based on sex.
4

After reviewing and making any necessary revisions to its policies, DH L shall distribute within
thirty (30) days, the revised sexual harassment and non-retaliation policies and complaint procedures to each of its current full and part-time employees in New Mexico, and to each new employee in New Mexico hired for the duration of this decree. The policy and procedure statements that arc provided to DHL employees in New Mexico should be designed to present
I
easily understood, convenient, consistent, confidential and reliable procedures for reporting incidents of sexual harassment and retaliation in DHL facilities. These procedures, at a minimum, shall include provisions incorporating the following:
A. Within thirty (30) days of the entry of this decree, and for the duration of this decree, DHL shall designate a Human Resources Representative who will serve as the investigative person for sexual harassment or retaliation issues in New.Mexico and DHL shall post in all New Mexico facilities the identity of the Human Resources Representative, which shall remain posted felr the duration of the decree;
B. For the duration of this decree, complaints of sexual harassment or retaliation in New Mexico will be accepted in writing or orally and all complaints will be taken seriously and investigated;
C. Only those who have an immediate need to know, including the person identified in A above, the alleged target of harassment or retaliation, the alleged harasser(s) or retaliator(s) and any witnesses, may find out the identity of the complainant;
D. During an investigation of a sexual harassment complaint of an employee or other individual, the person identified in A above shall endeavor to immediately interview all affected individuals and potential witnesses to the alleged harassment;
5

,
E. All parties contacted in the course of an investigation will be advised that any retaliation or reprisal against an individual who is an alleged target of h~rassment or retaliation, who has made a complaint, or who has provided evidence in connectiori with a complaint. will not be tolerated and could result in disciplinary action;
I
F. The person identified in A shall receive or will have ,received a minimum of
three (3) hours of training about sexual harassment that is separate from the training provided in paragraph 11 D, and will have the responsibility for expeditiously investigating all complaints;
G. The person identified in A above will recommend remedial measures, if appropriate, based upon the results of the investigation, and DHL will promptly consider and act upon such recommendation;
H. The person identified in A above will maintain a file on the original complaint(s) and any follow-up investigation; and
I. DHL managers, officials, or employees who engage in sexual harassment or retaliation, who fail to cooperate with company-sponsored investigations of sexual harassment or retaliation, or who refuse to implement remedial measures will be advised that they may be sanctioned severely by suspension without payor dismissal.
10. DHL shall post within thirty (30) days of the entry of this consent decree, and
continuously for a period of thirty six (36) months in a prominent place i~ the workplace of thei~
I
New Mexico facilities, the Notice attached to this decree as Exhibit A. !his Notice shall be the ,
same type, style and size as in Exhibit A. DHL shall also distribute within thirty (30) days of the entry of this consent decree, the Notice attached to this decree as Exhibit A, to each of its' employees in New Mexico.
6

II. DH L shall provide training on sex discrimination, sexual harassment. and retaliation in its New Mexico facilities according to the following tems:
A. DHL shall provide its New Mexico employees with at; least three (3) training sessions during the term of this decree. All DllL employees at facilities owned or operated by DJ-lL in New Mexico, including supervisors and managers, 'shall attend the training. New employees at DHL shall receive the training within six (6) months of beginning employment. Duplicative sessions or videotaped sessions may be lleldto accommodate staffing needs. DHL shall be responsible ti:)r all costs associated with this training.
B. During the first year of the decree, the first training shull be conducted within one hundred and twenty (120) days of the entry of this decree. Additional training shall he . conducted at least once each remaining year of this decree.
. ...,
C. DHL shall select a member of DHI:s Icgal department, Human Resources Representative or outside consultant who is qualiticd in employment law to provide the training referred to in this decree. DI-lL shall provide the trainer's name, reslime and the date of the scheduled training to the Regional Attorney of the Equal Employment Opportunity Commission,· Albuquerque Area Office, thirty (30) days before the first scheduled training. For the second and third years of this decree, DHL shall provide the same infornJation thirty (30) days before the suhsequent scheduled training. The Commission shall have fifteen (15) days from the date of the receipt of the infonnation described above to accept or reject the proposed trainer/consultant.
D. The training shall include a minimum of three (3) hours of instruction. All personnel designated in Paragraph II A shall both register and attend the training. The registry of attendance shall be retained by DHL at least for the duration of the decree.
7

E.. TIle training, at a minimum, shall i!lclude the subjects of: what constitutes sex discrimination, including sexual harassment and retaliation; that sex discrimination in the hiring, firing, compensation, assignment or other terms, conditions or privileges of employment .and retaliation violates Title VII; how to prevent sex discrimination and retaliation; how to provide a work environment free from sex discrimination, sexual harassment, and retaliation; and to whom'
,
and by what means employees may complain if they feel they have. been subjected to ~ex discrimination, sexual harassment or retaliation in the workplace.
F. Immediately following the training sessions, m·IL's highest ranking managerial official in the facility shall speak to the employees about: (I) potential discipline that can be taken against supervisors, managers and employees whci 'conlmit acts of sex discrimination or retaliation or who allow sex discrimination or retaliation to occur in' the workplace, (2) the importance of maintaining an environment free of sex discrimination and retaliation, and (3) the employer's policies regarding sex discrimination, sexual harassm.ent and retaliation. This time shall not be counted toward the three-hour minimum training required in I I D.
G. The Commission, at its discretion, may designate Commission representatives to. attend any of the training sessions described above.
REPORTING BY DEFENDANT AND ACCESS 8YEEOC 12. DHL shall report in writing and in affidavit form to the Regional Attorney of the Commission's Albuquerque Area Ofliee at 505 Marquette NW, Suite 900, Albuquerque, New Mexico 87102-2189, beginning six (6) months from the date of the Entry of this Decree', and thereafter every six (6) months tor the duration of the decree the following infonnation:
8

A. Any changes, modifications, revocations, or revisions to its policies and procedure which concern or affect the subject of sex discrimination, ~sexual harassment and retaliation.
B. The number of pcople who, during the six months pre.ceding the report, have
I
brought allegations of sex discrimination, sex harassment, or retaliation arising from activities in DilL's facilitics in New Mexico against DHL or its personnel, including, but not limited to management officials, vendors or employecs. The nature of the complaint, investigatory efforts made by DHL, and the corrective action taken, if any, shall be specified..
C. The registries of persons attending each of the seminar-training sessions required in Paragraphs 9 and II of this decree and a list of current employees on'the day of the seminartraining session.
D. An affidavit by DHL stating: (I) the Notice required ,in Paragraph 10 of this decree was posted and the location where it was posted, and (2) it has complied with Paragraphs 9, 10, and 11 of this decrce.
E. Copies of any video presentations DH L has utilized to comply with the
requiremcnts ofthis decree, if any. 13. Thc Commission upon reasonable notice shall have the right to cnter and inspect the
premises of DHL's facilities in New Mexico to cnsure compliance with this decree and federal anti-discrimination laws.
COSTS AND DURATION 14. Each party shall bear its costs and attorneys' fees incurred as a result of this action through the entry of this decree.
9

15. The duration of this decree shall be three (3) years from its entry. This Court shall
retain jurisdiction of this action for the duration of the decree, during which the Commission may I I
petition this Court for compliance with this decree. Should the Court detennine that DIlL has
not complied with this decree, appropriate relief, including extension b, f this decree for such period as may be necessary to remedy its non-compliance, may be ordered.
16. This decree shall expire by its own tenns at the end of thn,e (3) years after entry,
without further action by the parties.
17. The parties agree to entry of this decree subject to final approval by the Court.
ENTERED AND ORDERED this day of _ _ _ _-+-_, tOOS.
;

APPROVED AND CONSENTED TO: DATED:

Honorable James A. Parker ior United States District Judge
James L. Lee Deputy General Counscl
Gwendolyn Young Reams Associate General Counsel
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ,
1 1801 L. Street, N.W. ;
i~h;"~O"' D.C. 20 07
rI 1C/\~/MQ_k
aryJo O'Neill' Regional Attorney

10

· . - .. -
DATED: ?./16 (06
DATED:

'.. ~. I. ,~'.;
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 3300 N. Central Ave., Suite 690 Phoenix, Arizona 850 12
{d\oka11k ~A-' Loretta Medina Senior Trial Attorney:
Veronica Molina Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Albuquerque Area Oi'tice 500 Marquette NW, Suite 900 Albuquerque, New M.cxico 87102-2189 Attorneys for Plaintifr
ree. Ul e _00 Oakland, California 9,4612 (510) 763-4411 Attorneys for DHL EXPRESS (USA), INC.

1 1

• •

'.

NOTICE TO ALL DHL EMPLOYEES

It is unlawful under the federal law (Title VII of the Civil Right~ Act of 1964) and state

law to discriminatc against an cmployec on the basis of sex in hiring, tiring, compensation or

other terms, and conditions or privileges of employment. including sexual harassment. It is also

unlawful undcr federal and statc law to rctaliate against any individ,ual who complains of

harassment.

I

DHL prohibits all forms of sex discrimination, including sexual harassment. Prohibited sexual harassment includes, but is not limited to, the following conduct:

a. unwelcome touching of a sexual nature;

b. unwelcome comments, including comments regarding intimatc body parts, or clothing and discussion of sexual jokes or sexual bchavior;
I
c. unwelcome rcquests tor dates, sexual favors and propositions;
I
d. unwelcome distribution in the workplace of cartoons, pictures of drawings of a sexual nature; and

c. unwelcome display of pornographic material in the workplace.

DH L shall not discriminate on the basis of scx and shall not retaliate against any cmployee who opposes a practice made unlawful under fedcral law, filcs; assists or participates in the filing of a chargc of discrimination or participates in any investigation undcr Title VII, or who files a grievance alleging discrimination.

If you believc you arc being sexually harassed, discriminated against based on sex or retaliated against, you should report this to your Human Resources Representative at _ _ _ _ _ _ _ _ or contact the:
i I) Equal Employment Opportunity Commission (EEOC), 505 Marquette,
Suite 900, Albuquerque, New Mcxico 87102, (505) 248-5201.
or
(2) The New Mexico Department of Labor. Human Rights Division, 1596
Pacheco St., Suite 103, Santa Fe, New Mexico 87505, (505) 827-6838 or .
1-800-566-9471.

EXHIBIT A

 
 District Version v3.0.5 LIVE DB - Docket Report

https://ecf.nmd.uscourts.gov/cgi-bin/DktRpt.pl?479945413699713-L_3...

MTNDDL, REFER, TERMED
U.S. District Court District of New Mexico - Version 3.0 (Albuquerque) CIVIL DOCKET FOR CASE #: 1:04-cv-01118-JAP-WPL

EEOC v. Airborne Express, et al Assigned to: District Judge James A. Parker Referred to: Magistrate Judge William P Lynch Demand: $0 Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 09/30/2004 Date Terminated: 12/06/2005 Jury Demand: Defendant Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by C Emanuel Smith EEOC 3300 N Central Ave #690 Phoenix, AZ 85012 (602) 640-5033 Fax: 640-5009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eric S Dreiband EEOC Legal Counsel Office 1801 L Street, NW Washington, DC 20507 (202) 663-4669 Fax: 663-4639 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gwendolyn Young Reams EEOC Legal Counsel Office 1801 L Street, NW Washington, DC 20507 (202) 663-4669 Fax: 663-4639 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James L Lee EEOC Legal Counsel Office 1801 L Street, NW Washington, DC 20507 (202) 663-4669

1 of 11

5/22/2007 12:11 PM

District Version v3.0.5 LIVE DB - Docket Report
V. Defendant DHL Express (USA), Inc. formerly known as Airborne Express, Inc
2 of 11

https://ecf.nmd.uscourts.gov/cgi-bin/DktRpt.pl?479945413699713-L_3...
Fax: 663-4639 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Loretta F Medina EEOC 505 Marquette, NW #900 Albuquerque, NM 87102 (505) 248-5230 Fax: 248-5217 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Jo O'Neill EEOC Phoenix District Office 3300 North Central Avenue #690 Phoenix, AZ 85012-2504 (602) 640-5000 Fax: (602) 640-5009 Email: mary.oneill@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Veronica A Molina Equal Employment Opportunity Commission Legal Unit 505 Marquette N.W., Suite 900 Albuquerque, NM 87102 (505) 248-5231 Fax: (505) 248-5217 Email: veronica.molina@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amy K. Skryja Fisher & Phillips, LLP 501 Fourteenth St Second Floor Oakland, CA 94612 (510) 763-4411 LEAD ATTORNEY ATTORNEY TO BE NOTICED
5/22/2007 12:11 PM

District Version v3.0.5 LIVE DB - Docket Report
Defendant Air One Transport Air One Transport Group, Inc. TERMINATED: 10/03/2005 doing business as Air One Transport of New Mexico, L.L.C.
Defendant Air One Transport Group, Inc d/b/a Air One Transport of New Mexico, LLC TERMINATED: 12/06/2005 doing business as Air One Transport of New Mexico LLC
3 of 11

https://ecf.nmd.uscourts.gov/cgi-bin/DktRpt.pl?479945413699713-L_3...
Gregory P Williams Dines & Gross PC 6301 Indian School Road NE, Suite 900 Albuquerque, NM 87110 505-889-4050 Fax: 505-889-4049 Email: gwilliams@dineslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy J Murphy Fisher & Phillips, LLP 501 Fourteenth St Second Floor Oakland, CA 94612 (510) 763-4411 Fax: 763-4418 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeffrey L. Lowry PO Box 1888 Albuquerque, NM 87103-1888 505-765-5900 Fax: 505-768-7395 Email: jlowry@rodey.com TERMINATED: 10/03/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica M Hernandez Rodey, Dickason, Sloan, Akin & Robb (ABQ) PO Box 1888 Albuquerque, NM 87103-1888 Email: jhernandez@rodey.com TERMINATED: 10/03/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeffrey L. Lowry (See above for address) TERMINATED: 12/06/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica M Hernandez (See above for address)
5/22/2007 12:11 PM

District Version v3.0.5 LIVE DB - Docket Report

https://ecf.nmd.uscourts.gov/cgi-bin/DktRpt.pl?479945413699713-L_3...

Defendant Air One Transport of New Mexico LLC TERMINATED: 12/06/2005
Intervenor Debra Smith TERMINATED: 01/24/2006

TERMINATED: 12/06/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeffrey L. Lowry (See above for address) TERMINATED: 12/06/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica M Hernandez (See above for address) TERMINATED: 12/06/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by George T Geran 625 Franklin Avenue Santa Fe, NM 87505 505-983-1085 Fax: 505-955-1941 Email: geranlaw@aol.com TERMINATED: 01/24/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele A Masiowski 625 Franklin Avenue Santa Fe, NM 87505 505-690-4052 Fax: 505-955-1941 Email: mmasiowski@sgmnmlaw.com TERMINATED: 01/24/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/30/2004 09/30/2004 10/06/2004

#

Docket Text

1 COMPLAINT for civil rights (referred to Magistrate Judge Don J. Svet) (emr) (Entered: 10/01/2004)
LETTER re: consent to proceed before a US Magistrate Judge (emr) (Entered: 10/01/2004)
2 NOTICE of refusal to consent to proceed before a US Magistrate Judge by plaintiff (emr) (Entered: 10/06/2004)

4 of 11

5/22/2007 12:11 PM

District Version v3.0.5 LIVE DB - Docket Report

https://ecf.nmd.uscourts.gov/cgi-bin/DktRpt.pl?479945413699713-L_3...

10/07/2004 10/15/2004 10/15/2004 11/05/2004 12/01/2004 12/01/2004 12/01/2004 12/15/2004 12/15/2004 12/22/2004 01/03/2005 01/05/2005 01/19/2005 01/20/2005 01/25/2005 01/27/2005 01/31/2005 02/02/2005
02/04/2005

3 MINUTE ORDER: Case reassigned from Magistrate Judge Alan C. Torgerson to District Judge M. C. Armijo (cc: all counsel*) (bap) (Entered: 10/07/2004)
4 MINUTE ORDER: Case reassigned from Judge M. Christina Armijo to Senior Judge James A. Parker (cc: all counsel*) (bap) (Entered: 10/15/2004)
SUMMONS issued as to defts (bap) (Entered: 10/18/2004)
5 ACCEPTANCE/ACKNOWLEDGEMENT OF SERVICE of S/C by Jeffrey Lowry for deft Air One Transport on 11/5/04 (bap) (Entered: 11/08/2004)
6 MOTION by intervenor Debra Smith to intervene as of right (mjr) (Entered: 12/01/2004)
7 CERTIFICATE of service by intervenor Debra Smith of mtn to intervene to counsel on 12/1/04 (mjr) (Entered: 12/01/2004)
8 FIRST AMENDED COMPLAINT [1-1] by pltf; jury demand (bap) (Entered: 12/02/2004)
9 MOTION by deft Air One Transport to dismiss first amended complaint (bap) (Entered: 12/16/2004)
10 MEMORANDUM by deft Air One Transport in support of motion to dismiss first amended complaint [9-1] (bap) (Entered: 12/16/2004)
SUMMONS issued as to defendant DHL Express (sl) (Entered: 12/23/2004)
11 ORDER by Senior Judge James A. Parker granting Debra Smith's motion to intervene [6-1] (cc: all counsel*) (bap) (Entered: 01/04/2005)
12 INTERVENOR'S COMPLAINT by intervenor Debra Smith (mjr) (Entered: 01/05/2005)
13 RESPONSE by pltf to deft Airborne's motion to dismiss first amended complaint [9-1] (*) (bap) (Entered: 01/19/2005)
14 APPENDIX (Exhibit "A") filed by pltf to response to deft Air One's motion to dismiss first amended complaint [13-1], (bap) (Entered: 01/21/2005)
15 ENTRY OF APPEARANCE for deft DHL Express by Gregory P. Williams (jrm) (Entered: 01/26/2005)
16 MOTION by deft DHL Express for attorneys Timonty J. Murphy and Amy K. Skryja to appear pro hac vice (bap) (Entered: 01/28/2005)
17 ANSWER to 1st amended complaint by defendant DHL Express [8-1] (dmw) (Entered: 02/01/2005)
18 ORDER by Magistrate Judge Don J. Svet granting deft DHL's motion for attorneys Timonty J. Murphy and Amy K. Skryja to appear pro hac vice [16-1] (cc: all counsel) (bap) (Entered: 02/02/2005)
19 REPLY by deft Air One Transport in support of motion to dismiss first amended complaint [9-1] (*) (bap) (Entered: 02/04/2005)

5 of 11

5/22/2007 12:11 PM

District Version v3.0.5 LIVE DB - Docket Report

https://ecf.nmd.uscourts.gov/cgi-bin/DktRpt.pl?479945413699713-L_3...

02/07/2005 02/16/2005 03/18/2005 03/23/2005 03/23/2005 04/14/2005 04/20/2005 04/28/2005
05/11/2005 05/27/2005
06/23/2005 06/30/2005
07/13/2005 07/13/2005 07/13/2005 07/13/2005 07/14/2005 07/20/2005

20 NOTICE by deft Air One Transport of completion of briefing on mtn to dismiss [9-1] (jrm) (Entered: 02/08/2005)
21 FIRST AMENDED COMPLAINT in Intervention [12-1] w/jury demand (td) (Entered: 02/17/2005)
22 WAIVER OF SERVICE upon defendant DHL Express on 2/16/05 (pz) (Entered: 03/21/2005)
23 RETURN OF SERVICE executed upon defendant Air One Transport Group Inc on 2/28/05 upon Brandon Adcock (pz) (Entered: 03/23/2005)
24 RETURN OF SERVICE executed upon defendant Air One Transport of New Mexico LLC on 2/28/05 upon Brandon Adcock (pz) (Entered: 03/23/2005)
25 ANSWER by deft DHL Express [21-1], [12-1]; jury demand (*) (bap) (Entered: 04/15/2005)
26 ANSWER by defts Air One Transport, Air One Transport, Air One Transport to first amended complaint in intervention [21-1 (bap) (Entered: 04/21/2005)
27 MINUTE ORDER: terminating case referral to Magistrate Judge Don J. Svet , Case transferred and referred to Magistrate Judge William P. Lynch (cc: all counsel*) (seal) (Entered: 04/28/2005)
28 NOTICE by intervenor Debra Smith's counsel of non-availability from 7/1/05 through 7/6/05 (pz) (Entered: 05/12/2005)
29 INITIAL SCHEDULING ORDER by Magistrate Judge William P. Lynch Rule 16 scheduling conference is set for 7/20/05 @ 1:30 pm; provisional discovery plan & IPTR due 7/6/05 (cc: all counsel*) (bap) (Entered: 05/27/2005)
30 PROVISIONAL DISCOVERY PLAN by parties (bap) (Entered: 06/24/2005)
31 MEMORANDUM, OPINION, AND ORDER: by Senior Judge James A. Parker denying motion to dismiss first amended complaint [9-1] by Air One Transport (cc: all counsel*) (dmw) (Entered: 06/30/2005)
32 CERTIFICATE of Service by pltf of initial disclosures, mailed to counsel on 7/13/05 (*) (bap) (Entered: 07/13/2005)
33 CERTIFICATE of service by intervenor Debra Smith of initial disclosures to counsel on 7/13/05 (pz) (Entered: 07/13/2005)
34 CERTIFICATE of Service by deft DHL Express of initial disclosures, mailed to counsel on 7/13/05 (*) (bap) (Entered: 07/14/2005)
35 CERTIFICATE of Service by defts Air One Transport of initial disclosures, mailed to counsel on 7/13/05 (seal) (Entered: 07/14/2005)
36 ANSWER by defts Air One to first amended complaint [8-1] (bap) (Entered: 07/15/2005)
37 NOTICE by defendant Air One Transport of disclosure statement pursuant to Rule 7.1 (sl) (Entered: 07/21/2005)

6 of 11

5/22/2007 12:11 PM

District Version v3.0.5 LIVE DB - Docket Report

https://ecf.nmd.uscourts.gov/cgi-bin/DktRpt.pl?479945413699713-L_3...

07/20/2005 07/21/2005 07/21/2005 07/21/2005 07/22/2005
07/25/2005 07/25/2005 07/28/2005 08/04/2005 08/11/2005 08/11/2005 08/12/2005
08/22/2005 08/24/2005 08/24/2005
08/24/2005

38 NOTICE by defendant Air One Transport of New Mexico of disclosure statement pursuant to Rule 7.1 (sl) (Entered: 07/21/2005)
39 CLERK'S MINUTES: before Magistrate Judge William P. Lynch Rule 16 scheduling conference held * (dmw) (Entered: 07/22/2005)
40 ORDER by Magistrate Judge William P. Lynch assigning standard track , Discovery cutoff 1/16/06; Motion Filing cutoff 2/15/06; Pretrial order ddl 4/16/06 (cc: all counsel*) (dmw) (Entered: 07/22/2005)
41 NOTICE of unavailability of counsel by deft 8/1-8/5/05 (jm) (Entered: 07/22/2005)
42 CERTIFICATE of service by intervenor Debra Smith of 1st interrogs & Request for Production to defts DHL, Air One Transport of NM, LLC & Air One Transport Group, Inc and counsel on 7/21/05 (pz) Modified on 07/29/2005 (Entered: 07/25/2005)
43 CERTIFICATE of service by deft on 1st set of interrog's to counsel on 7/22/05 (jm) (Entered: 07/26/2005)
44 CERTIFICATE of service by deft on 1st set of interrog's to counsel on 7/22/05 (jm) (Entered: 07/26/2005)
45 CERTIFICATE of service by plaintiff EEOC on 1st set of interrogs & request for production to counsel on 7/26/05 (jm) (Entered: 07/29/2005)
46 CERTIFICATE of Service by deft DHL Express of supplemental initial disclosures, mailed to counsel on 8/4/05 (*) (bap) (Entered: 08/05/2005)
47 NOTICE by pltf of non-availability of attorney from 8/26/05 through 9/9/05 (*) (bap) (Entered: 08/11/2005)
49 CERTIFICATE of Service by deft DHL Express of first set of document requests, mailed to counsel on 8/11/05 (*) (bap) (Entered: 08/12/2005)
48 INITIAL PRE-TRIAL REPORT by Senior Judge James A. Parker and Magistrate Judge William P. Lynch; Discovery is set for 1/16/06; mtn filing ddl is set for 2/15/06; proposed pretrial order is due 4/16/06; pretrial conference is set for 10:00 am on 4/13/06; jury trial is set for 10:00 am on 6/5/06; Estimated # of Trial Days: 7-10; Chances of Settlement: Unknown (cc: all counsel) (bap) (Entered: 08/12/2005)
50 CERTIFICATE of Service by deft DHL Express of first set of interrogatories, mailed to counsel on 8/19/05 (bap) (Entered: 08/23/2005)
51 CERTIFICATE of Service by plaintiff of responses to deft Air One first set of interrogatories, mailed to counsel on 8/24/05 (*) (bap) (Entered: 08/24/2005)
52 CERTIFICATE OF SERVICE by deft Air One Transport of New Mexico, LLC re deft's answers to pltf Smith's interrogatories and response to request for production was mailed to all counsel of record on 08/12/05 (ln) (Entered: 08/24/2005)
53 CERTIFICATE OF SERVICE by deft Air One Transport Group, Inc. re answer to pltf Smith's interrogatories and response to request for production were mailed

7 of 11

5/22/2007 12:11 PM

District Version v3.0.5 LIVE DB - Docket Report

https://ecf.nmd.uscourts.gov/cgi-bin/DktRpt.pl?479945413699713-L_3...

08/25/2005 08/25/2005 08/26/2005 08/31/2005 09/02/2005 09/07/2005 09/07/2005 09/07/2005 09/07/2005 09/07/2005 09/08/2005 09/12/2005 09/15/2005 09/23/2005

to all counsel of record on 08/23/05 (ln) (Entered: 08/24/2005)
54 CERTIFICATE of Service by deft Air One Transport of NM of answers to first set of interrogatories and response to first request for production, mailed to counsel on 8/25/05 (bap) (Entered: 08/26/2005)
55 CERTIFICATE of Service by defendant Air One Transport Group, Inc of answers to first set of interrogatories and response to first request for production, mailed to counsel on 8/25/05 (bap) (Entered: 08/26/2005)
56 CERTIFICATE of service by intervenor Debra Smith of responses to deft Air One Transport Group's first set of (unknown) to counsel on 8/24/05 (mjr) (Entered: 08/26/2005)
57 ORDER by Magistrate Judge William P. Lynch referring case to Magistrate Judge Torgerson for the purpose of conducting a Settlement Conference (cc: all counsel*) (bap) (Entered: 09/01/2005)
58 ORDER by Magistrate Judge William P. Lynch setting Rule 16 Settlement Conference for 11/7/05 @ 9:30 am (cc: all counsel*) (bap) (Entered: 09/02/2005)
59 CERTIFICATE of Service by deft DHL Express of answers to pltf's first set of interrogatories, mailed overnight to counsel on 9/6/05 (*) (bap) (Entered: 09/07/2005)
60 CERTIFICATE of Service by deft DHL Express of response to pltf's first request for production, overnight delivery to counsel on 9/6/05 (*) (bap) (Entered: 09/07/2005)
61 CERTIFICATE of Service by deft DHL Express of response to pltf Smith's first request for production, mailed overnight to counsel on 9/6/05 (*) (bap) (Entered: 09/07/2005)
62 CERTIFICATE of Service by deft DHL Express of answers to pltf Smith's first set of interrogatories, mailed overnight to counsel on 9/6/05 (*) (bap) (Entered: 09/07/2005)
63 MOTION by pltfs & deft DHL to extend deadline for identification of experts and submission of expert reports (*) (bap) (Entered: 09/07/2005)
64 ORDER by Magistrate Judge William P. Lynch granting motion to extend deadline for identification of experts and submission of expert reports as further described herein; [63-1] (cc: all counsel) (yc) (Entered: 09/08/2005)
65 CERTIFICATE of service by intervenor Debra Smith of responses to 1st set of document requests to counsel on 9/12/05 (td) Modified on 11/14/2005 (Entered: 09/13/2005)
66 CLERK'S MINUTES: before Magistrate Judge William P. Lynch re: telephonic discovery conference held on 9/13/05 allowing pltf until 10/3/05 to amend complaint (*) (bap) Modified on 10/04/2005 (Entered: 09/16/2005)
67 CERTIFICATE of service by intervenor Debra Smith of supplemental initial disclosures to counsel on 9/19/05 (pz) (Entered: 09/26/2005)

8 of 11

5/22/2007 12:11 PM

District Version v3.0.5 LIVE DB - Docket Report

https://ecf.nmd.uscourts.gov/cgi-bin/DktRpt.pl?479945413699713-L_3...

09/28/2005 09/28/2005 09/30/2005 09/30/2005 09/30/2005 09/30/2005 10/03/2005 10/05/2005 10/14/2005 10/17/2005 10/17/2005 10/24/2005 10/24/2005 10/25/2005
10/25/2005
10/25/2005
10/25/2005
10/26/2005

68 CERTIFICATE of service of 2nd set of interrog(s) by defendant Air One Transport Group to counsel on 9/27/05 (jrm) (Entered: 09/29/2005)
69 CERTIFICATE of Service by deft Air One Transport of second set of interrogatories, mailed to counsel on 9/27/05 (bap) (Entered: 09/29/2005)
70 MOTION by defts Air One Transport to amend answer to pltf in intervention's first amended complaint (bap) (Entered: 10/03/2005)
71 MOTION by pltf Debra Smith to compel written discovery (td) (Entered: 10/03/2005)
72 MOTION by pltf Debra Smith to compel DHL to respond to requests for production of documents (td) (Entered: 10/03/2005)
73 CERTIFICATE of service by pltf Debra Smith of mtn to compel DHL to counsel on 9/30/05 (td) (Entered: 10/03/2005)
74 SECOND AMENDED COMPLAINT by plaintiff; jury demand (bap) (Entered: 10/04/2005)
75 CERTIFICATE of service on 1st Supplemental Initial Disclosures by plaintiff EEOC to counsel on 10/4/05* (jm) (Entered: 10/05/2005)
78 RESPONSE by deft DHL Express to mtn to compel DHL to respond to requests for production of documents [72-1] (jm) (Entered: 10/19/2005)
76 RESPONSE by pltfs EEOC & Debra Smith to motion to amend answer to pltf in intervention's 1st amended complaint [70-1] (td) (Entered: 10/18/2005)
77 RESPONSE by deft Air One Transport to mtn to compel written discovery [71-1] (jm) (Entered: 10/19/2005)
79 NOTICE by intervenor Debra Smith of unavailability of counsel George Geran from 11/7/05-11/14/05 & 11/22/05-11/27/05 (td) (Entered: 10/24/2005)
80 ANSWER by defts Air One Transport & Air One Transport of New Mexico [74-1]* (jm) (Entered: 10/25/2005)
81 CERTIFICATE of service on supplemental response to pltf Smith's 1st set of interrogs by deft DHL Express to counsel on 10/24/05* (jm) (Entered: 10/25/2005)
82 CERTIFICATE of service on supplemental response to pltf EEOC's 1st set of interrogs by deft DHL Express to counsel on 10/24/05* (jm) (Entered: 10/25/2005)
83 CERTIFICATE of service on supplemental response to pltf Smith's 1st request for production by deft DHL Express to counsel on 10/24/05* (jm) (Entered: 10/25/2005)
84 CERTIFICATE of service on supplemental response to pltf EEOC's 1st request for production by deft DHL Express to counsel on 10/24/05* (jm) (Entered: 10/25/2005)
85 ANSWER by deft DHL Express to 2nd amended complaint [74-1]* (jm) (Entered: 10/26/2005)

9 of 11

5/22/2007 12:11 PM

District Version v3.0.5 LIVE DB - Docket Report

https://ecf.nmd.uscourts.gov/cgi-bin/DktRpt.pl?479945413699713-L_3...

10/26/2005 10/27/2005 10/31/2005 10/31/2005
10/31/2005 10/31/2005 11/02/2005 11/03/2005 11/03/2005 11/03/2005 11/09/2005 11/17/2005
12/06/2005
12/06/2005 01/19/2006 01/24/2006 02/24/2006

86 REPLY by intervenor Debra Smith to mtn to compel DHL to respond to requests for production of documents [72-1] (td) (Entered: 10/27/2005)
87 NOTICE by intervenor Debra Smith of briefing complete re: mtn to compel [72-1] (pz) (Entered: 10/28/2005)
88 CERTIFICATE of service on 2nd set of interrogs by pltf to counsel on 10/28/05 (jm) (Entered: 11/01/2005)
89 CERTIFICATE of service by intervenor Debra Smith of responses to deft Air One Transport Group's 2nd set of interrogs to counsel on 10/31/05 (pz) (Entered: 11/02/2005)
90 CERTIFICATE of service by intervenor Debra Smith of identification of expert witnesses to counsel on 10/31/05 (pz) (Entered: 11/02/2005)
91 NOTICE of disclosure of expert witnesses by intervenor Debra Smith (pz) (Entered: 11/02/2005)
92 CERTIFICATE of service by plaintiff of disclosure of expert witnesses to counsel on 10/31/05 (vv) (Entered: 11/03/2005)
93 REPLY by intervenor Debra Smith to deft Air One's response to motion to compel written discovery [71-1] (pz) (Entered: 11/03/2005)
94 NOTICE of briefing complete by intervenor Debra Smith re: mtn to compel written discovery of Air One defts [71-1] (pz) (Entered: 11/03/2005)
95 REPLY by Air One defendants to response to motion to amend answer to pltf in intervention's first amended complaint [70-1] (vv) (Entered: 11/04/2005)
96 SETTLEMENT CONFERENCE held 11/7/05 before the Honorable Alan C. Torgerson; case settled* (jm) (Entered: 11/09/2005)
97 ORDER regarding finalization of settlement documents as described herein by Magistrate Judge Alan C. Torgerson (cc: all counsel)* (jm) (Entered: 11/18/2005)
98 CONSENT DECREE JUDGMENT by Senior Judge James A. Parker dismissing defts Air One Transport Group and Air One Transport of NM (cc: all counsel) (bap) (Entered: 12/07/2005)
99 CONSENT DECREE JUDGMENT by Senior Judge James A. Parker as to deft DHL Express dismissing case (cc: all counsel) (bap) (Entered: 12/07/2005)
100 UNOPPOSED MOTION by intervenor Debra Smith to dismiss with prejudice all of her claims against all defts (pz) (Entered: 01/20/2006)
101 ORDER by Senior Judge James A. Parker dismissing pltf-in-intervention by Debra Smith (cc: all counsel) (jm) (Entered: 01/24/2006)
102 ORDER by Senior Judge James A. Parker of amended consent decree as to DHL Express, Inc. as described herein (cc: all counsel) (sl) (Entered: 02/24/2006)

10 of 11

5/22/2007 12:11 PM

District Version v3.0.5 LIVE DB - Docket Report

https://ecf.nmd.uscourts.gov/cgi-bin/DktRpt.pl?479945413699713-L_3...

PACER Service Center

Transaction Receipt

05/22/2007 11:09:41

PACER Login:

hs0328

Client Code:

eeoc++++++++++++++++++++++++++++

Description:

Docket Report

Search Criteria:

1:04-cv-01118-JAP-WPL

Billable Pages:

6

Cost: 0.48

11 of 11

5/22/2007 12:11 PM