NAVARRO~JS 44

CIVIL COVER SHEET

The JS-44f,~v~l-<o~er s~eet and the reformation contained herein neither replace nor supplement the fihng and service of pleadings or other papers as required by law, e~c/~p~a~ firdt¢iqle~l ~ydocat rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the
use of the~r.~rlg 15f Co’tff-t for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

DEFENDANTS
TXI OPERATIONS, L P.
30 3 CV 1868 P

(b) County of Residence of First Listed Plaintiff

County of Residence of First Listed Defendant

(C) Attorney’s (Firm Name, Address, and Telephone Number) RONETTA J. FRANCIS, SENIOR TRIAL ATTORNEY EEOC-Dallas District Office 207 South Houston, 3’d Floor Dallas, Texas 75202 (214) 655-3334
II. BASIS OF JURISDICTION(Place an "X" in One Box Only)

x 1 U.S. Government Plaintiff

[] 3 Federal Question (U.S. Government Not a Party)

NOTE. IN LAND CONDEMNA’I LAND INVOLVED
Attorneys (If Known)

CLERK, U.S. DISTRICT COURT NORTHERN DISTRICT OF TEXAS

III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an"X",n One Box for Plaintiff

(For Diversity Cases Only)

and One Box for Defendant)

PTF DEF

PTF DEF

Citizen of This State

[] 1 [] 1 Incorporated or Principal Place [] 4 [] 4

of Business In This State

[] 2 U.S. Government Defendant

[] 4 Diversity (Indicate Citizenship of Parties ~n Item III)

IV. NATURE OF SUIT (Place an "X" in One Box Only)

CONTRACT

TORTS

Citizen of Another State [] 2
Citizen or Subject of a [] 3 Forel n Count
FORFEITURE/PENALTY

[] 2 Incorporated and Principal Place [] 5 [] 5 of Business In Another State

[] 3 Foreign Nation

[] 6 [] 6

BANKRUPTCY

OTHERSTATUTES

[] 110 Insurance [] 120 Marine [] 130 MillerAct [] 140 Negottable Instrument [] 150 Recovery of Overpayment
& Enforcement of Judgment [] 151 Medicare Act [] 152 Recovery of Defanlted
Student Loans (Excl. Veterans) [] 153 Recovery of Overpayment of Veteran’s Benefils [] 160 Stockholders’ Stats [] 190 Other Contract [] 195 Contract Product Llabthty
REAL PROPERTY
[] 210 LandCondemnatton
[] 220 Foreclosure
[] 230 Rent Lease & Ejeatment [] 240 Torts to Land [] 245 Tort Product Liability [] 290 All Other Real Property

PERSONAL INJURY [] 310 Airplane [] 315 Airplane Product
Liab,lity [] 320 Assault, Libel &
Slander [] 330 Federal Employers’
Liability [] 340 Manne [] 345 Manne Product
Liabthty [] 350 Motor Vehicle [] 355 Motor Vehicle
Product Liability [] 360 Other Personal Injury
CIVIL RIGHTS
[] 441 Voting X 442 Employment
[] 443 Housing/ Aecommodanons
[] 444 Welfare [] 440 Other Civd Rights

PERSONAL INJURY [] 362 Personal Injury--
Med Malpractice [] 365 Personal Injury --
Product Llablhty [] 368 Asbestos Personal
InJury Product Liablhty PERSONAL PROPERTY [] 370 Other Fraud [] 371 Truth in Lending [] 380 Other Personal Propen’y Damage [] 385 Property Damage Product L~ability
PRISONER PETITIONS
[] 510 Motions to Vacate
Sentence
Habeas Corpus [] 530 General [] 535 Death Penalty [] 540 Mandamus & Other [] 550 Ciwl Rights [] 555 Prison Cond~t=on

[] 610 Agriculture [] 620 Other Food & Drug [] 625 Drug Related Seizure
of Property 21 USC [] 630 Liquor Laws [] 640 R R &Truck [] 650 A~rlIne Regs [] 660 Occupational
Safety/Health [] 690 Other
LABOR
[] 710 Fmr Labor Standards Act
[] 720 Labor/Mgmt Relations
[] 730 Labor/Mgmt Repomn~ & Disclosure Act
[] 740 Railway Labor Act
[] 790 Other Labor Lmgatlon
[] 791Empl Ret Inc Security Act

1S}122 Appeal 28 USC 158
[~23 Withdrawal 28 USC 157
PROPERTY RIGHTS ISB20 Copyrights [~30 Patent 1~40 Trademark
SOCIAL SECURITY
1~61 HIA (1395f0 [~62 Black Lung (923) 1~63 DIWC/DIWW (405(g)) [S~64 SSID Title XVI [[865 RSI (405(g))
FEDERAL TAX SUITS
[]]70 Taxes (U S. Plaintiff or Defendant)
[]]71 IRS--Third Patly 26 USC 7609

[] 400 State Reapportionment
[] 410 Antitrust [] 430 Banks and Banktng [] 450 Commerce/ICC Rates/etc.
[] 460 Deportation [] 470 Racketeer Influenced and
Corrupt OrganlzaUons [] 810 Selective Setwtce [] 850 Secunties/Commodines/
Exchange [] 875 Customer Challenge
12 USC 3410 [] 891 Agricultural Acts
[] 892 Econormc Stabihzation Act [] 893 Environmental Matters [] 894 Eneigy AlloeaUon Act [] 895 Freedom of
Information Act
[] 900 Appeal of Fee
Determination Under Equal
Access to JusUee [] 950 ConstrtuUonality of
State Statutes [] 890 Other Statutory Actions

V. ORIGIN X 1 Original
Proceeding

(PLACE AN "X" IN ONE BOX ONLY)

[] 2 Removed from State Court

[] 3 Remanded from Appellate Court

Transferred from [] 4 Reinstated or [] 5 (speacniofyth)er district
Reopened

VI. CAUSE OF ACTION Do not cite j(OurteisthdeicUt.iSo. nCaivlilsStatattuutteeusnudenrlwehsischdyivouerasreitfyilm)g and write brief statement of cause

[] 6 Multldlstrict Litigation

Appeal to D,strict Judge from
[] 7 Magistrate Judgment

This cause of action m brought pursuant to T~tle VII of Civil Rights Act of 1964 to correct unlawful employment piatices 24 Hour Professional Janttorial Services v~olated Title VII of Civil Rights Act of

1964, as amended, b), falhn to hire or retam Ms Ruffin and Mr. Eventt because of their race (Black) Defendants violated Section 703(a) of Title VII, 42USC Section 2000e-2

VII. REQUESTED IN

[] CHECK IF THIS IS A CLASS ACTION

DEMAND $

CHECK YES only If demanded in complaint:

COMPLAINT:

UNDER F.R.C.P. 23

JURY DEMAND:

X Yes [] No

VIII. RELATED CASE(S) IF ANY

(See instructions)

JUDGE

DOCKET NUMBER

RECEIPT #

AMOUN

APPLYING IFP

JUDGE

MAG JUDGE

~ U.S, D~ISTRICT COURT

I NORTHERN DISTRICT OF TEXAS

t

FILED

IN THE UNITED STATES DISTRICT COL]RT

FOR THE NORTHERN DISTRICT OF TE3~S

DALLAS DIVISION

CLERK, U.S. reSTRICT CO URI,

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,

Deputy
CIVIL ACTION NO.

TXI OPERATIONS, L.P.,

COMPLAINT
30 3 CV 1868 P

Defendant.

JURY TRIAL DEMAND

NATURE OF THE ACTION This an action under the Equal Pay Act of 1963, as amended ("EPA"), 29 U.S.C. §206(d), Title VII of the Civil Rights Act of 1964, as amended, and Title I of the Civil Rights Act of 1991 to restrain the unlawful payment of wages to an employee of one sex at a rate less than the rates paid to employees of the opposite sex, to correct unlawful employment practices on the basis of sex and to provide appropriate relief to Julie Fundling. The Commission alleges that Defendant, TXI Operations, L.P. (hereafter "Defendant"), violated the EPA and Title VII by paying Ms. Fundling lower wages than Defendant’s male employee performing substantially the same job duties.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Sections 16(c) and 17 of the Fair Labor Standards Act of 1938 (the "FLSA"), as amended, 29 U.S.C. §§ 216(c) and 217, to

COMPLAINT

1

enforce the requirements of the Equal Pay Act of 1963, codified as Section 6(d) of the FLSA, 29 U.S.C. §206(d).
2. Jurisdiction of this Court is further invoked pursuant to 28 U.S.C. 5451, 1331, 1337, 1343, 1345. This action is also authorized and instituted pursuant to Section 706(1)(f) and (3) of the Civil Rights Act of 1964, as amended, ("Title VII"), 42 U.S.C. §2000e-5(f) (1) and (3), and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981A.
3. The employment practices alleged to be unlawful were and are now being committed within the jurisdiction of the United States District Court for the Northern District of Texas.
PARTIES 4. Plaintiff, Equal Employment Opportunity Commission ("Commission"), is an agency of the United States of America charged with the administration, interpretation and enforcement of the EPA and Title VII of the Civil Rights Act of 1964, as amended and is expressly authorized to bring this action by Sections 16(c) of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §216(c), as amended by Section 1 of Reorganization Plan No. 1 of 1978, 92 Stat. 3781, and by Public Law 98-532 (1984), 98 Star. 2705 and Sections 706(0(1) and (3) of Title VII, 42 U.S.C. §2000e-5(f)(1) and (3). 5. At all relevant times, Defendant has continuously been and is now doing business in the state of Texas and has continuously had at least fifteen employees. 6. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce under Section 3(d) of the FLSA, 29 U.S.C. 5203 (d) and Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. §2000e-(b), (g) and (h).

COMPLAINT

2

7. At all relevant times, Defendant has continuously employed employees engaged in commerce or in production of goods for commerce within the meaning of Section 3(b), (i) and (j) of the FLSA, 29 U.S.C. §203 (d), (i) and (j), or has continuously been an enterprise engaged in commerce or in the production of goods for commerce within the meaning of Section 3(r) and (s) of the FLSA, 29 U.S.C. §203(r) and (s), in that said enterprise has continuously been engaged in the operation of a corporation that supplies building materials, particularly cement and structural steel in several States and is an enterprise whose annual gross volume of sales made or business done is not less than $500,000.00.
STATEMENT OF CLAIMS 7. More than thirty days prior to the institution of this lawsuit, Julie Fundling filed a Charge of Discrimination with the Commission alleging violations of the EPA and Title VII of the Civil Rights Act of 1964, as amended, by the Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled. 8. Since at least September 1999, Defendant has engaged in unlawful employment practices in Dallas, Texas, by discriminating against Julie Fundling with respect to her compensation, in violation of Section 703 (a)( 1 ) of Title VII, 42 U.S.C. § 2000e-2(a)(1 ). Specifically, Defendant discriminated against Ms. Fundling by paying her lower wages than the similarly-situated male employee. 9. The effect of the practices complained of above has been to deprive Julie Fundling of equal compensation, terms, conditions, and privileges of employment and otherwise adversely affected her status as an employee because of her sex. 10. The unlawful employment practices complained of in paragraph 8 above were

COMPLAINT

3

intentional. 11. The unlawful employment practices complained of in paragraph 8 above were
done with malice or with reckless indifference to the federally protected rights of Julie Fundling. 12. Since at least September 1999, Defendant has violated Sections 6(d)(1) and
15(a)(2) of the FLSA, 29 U.S.C. §§ 206(d)(1) and 215(a)(2), by paying wages to its female Associate General Counsel in Dallas, Texas at a rote less than the rate paid to the male employee in the same establishment for substantially equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. Specifically, Defendant paid and has continued to pay Julie Fundling at a rate less than comparable male employees, at least until the date of this Complaint.
13. As a result of the acts complained of above, Defendant unlawfully withheld and is continuing to withhold the payment of wages due to Julie Fundling.
14. The unlawful practices complained of in Paragraph 12, above, were and are willful.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining the Defendant, its officers, successors, assigns, and all person in active concert or participation with it, from engaging in any employment practice which discriminates on the basis of sex by paying wages to female employees at rates less than the rates paid to employees of the opposite sex in the same establishment for substantially equal work on jobs, the performance of which requires substantially equal skill, effort, and responsibility and which are performed under similar

COMPLAINT

4

working conditions, or engaging in any employment practice which discriminates on the basis of

Grant a permanent injunction enjoining the Defendant, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in any employment practice which discriminates in violation of the EPA and Title VII.
C. Order the Defendant to institute and carry out policies, practices, and programs which provide equal employment opportunities for Julie Fundling and eradicate the effects of its past and present unlawful unemployment practices.
D. Order the Defendant to make whole Julie Fundling by providing appropriate back pay with prejudgment interest, in amounts to be proved at trial, and other affirmative relief necessary to eradicate the effects of the Defendant’s unlawful employment practices, ncluding but not limited to pay increases.
E. Order the Defendant to make whole Julie Fundling by providing compensation for past and future non-pecuniary losses resulting from the unlawful employment practices described in paragraph 8 above, including but not limited to, emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life, in amounts to be determined at trial.
F. Order the Defendant to pay Julie Fundling punitive damages for its malicious conduct or reckless indifference, described in paragraphs 8 and 11 above, in an amount to be determined at trial.
G. Grant a judgment requiring Defendant to pay appropriate back wages in an amount to be proved at trial, and an equal sum as liquidated damages, or prejudgment interest in lieu thereof, to Julie Fundling, whose wages were, and continue to be, unlawfully withheld as a result of the acts

COMPLAINT

5

complained of above. Grant such further relief as the Court deems necessary and proper in the public
interest. Award the Commission its costs in this action.
JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its Complaint.

COMPLAINT

6

Respectfully submitted,
ERIC S. DREIBAND General Counsel
ROBER’I~ A. CANINO Regional/Attorney Oklahoma State Bar No. 011782
SUZANNE M. ANDERSON Supervisory Trial Attorney Texas Bar No. 14009470
R"(~F~. FRANCIS Senior Trial Attorney Virginia State Bar No. 39886
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Dallas District Office 207 South Houston Street, 3rd Floor Dallas, Texas 75202 Tel No. (214) 655-3334 Fax No. (214) 655-3331

COMPLAINT

7

 
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IN THE UNITED STATES DISTRICT OURT~~'::' .::..:... '. _._

J FOR THE NORTHERN DISTRICT OF TEXAS

'1

DALLAS DIVISION

IlEC • 3_2003

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, vs. TXI OPERATIONS, L.P.,
Defendant.

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CIVIL ACTION NO. 303 CV 1868 P

§

§

§

§

AGREED PROTECTIVE ORDER

The parties are seeking the production of certain business, personnel, employment, medical and legal records in this action. Those documents contain confidential personal information about Plaintiff Julie Fundling and certain other present or former employees of Defendant TXI Operations, L.P. ("TXI"), as well as proprietary business information andlor confidential employment related information. These documents may also contain information that is protected by the attorney-client relationship. The parties desire to maintain the confidentiality of all information contained in these sensitive records for all purposes and uses other than those that may be required for the conduct of this litigation. The parties therefore enter into this Agreed Protective Order to limit the disclosure of such documents and information and to ensure that no unfair advantage is gained by any party as a result of discovery or other activities. By entering into this Agreed Protective Order, neither party is agreeing to produce any specific records or waiving their objections to producing specific records.

AGREED PROTECTIVE ORDER - Page 1
Dallas:116968.2016749.1015

Accordingly, the parties stipulate and agree, by and through their undersigned counsel of record, as follows:
1. Any disclosure that a party believes in good faith contains proprietary information, privileged information or confidential or otherwise sensitive business or personnel information, including but not limited to answers to interrogatories, answers to requests for admissions, deposition testimony, production of documents or tangible things, and other discovery responses contemplated by the Federal Rules of Civil Procedure, may be designated CONFIDENTIAL by a marking that prominently displays the word "CONFIDENTIAL."
2. Confidential Information shall be maintained in confidence and shall not be disclosed to anyone other than those permitted herein. Confidential Information and information derived therefrom will be used solely for the purpose of pursuing Ms. Fundling's claims in this litigation.
3. Counsel receiving Confidential Information may, subject to the limitations of paragraph 4, disclose the Confidential Information to the following individuals, solely for the purpose of pursuing Ms. Fundling's claims in this litigation:
(i) the Court (including court staff); (ii) Attorneys of record for the parties, including any attorney, clerical staff, paralegal, law clerk, or other employee of counsel for TXI's firm and of the legal department of the EEOC (including outside copy services), and Defendant's in-house legal representatives; (iii) testifying experts retained by a party; (iv) consulting only experts retained by a party; (v) the parties and their employees who are assisting counsel and who have a need to know the Confidential Information;
AGREED PROTECTIVE ORDER - Page 2
Dallas:116968.2016749.1015

(vi) any court reporter(s) taking deposition testimony and their necessary

stenographic, videographic, and clerical personnel; and

(vii) other witnesses, in connection with preparation for their testimony or for use

during depositions or testimony at any trial.

4. Counsel of record receiving Confidential Information, pnor to disclosing it,

except to persons in categories 3(i), 3(ii) and 3(vi), shall: (a) inform the individual as to the terms

of this order; (b) obtain that person's written agreement to be bound by the provisions of this

Order in the form attached as Exhibit A; and (c) submit an executed copy of the agreement

promptly to counsel producing the Confidential Information.

However, counsel of record need not obtain written agreement to be bound by the

Protective Order prior to utilizing Confidential Information during a deposition of a witness over

whom the counsel has no opportunity to discuss and/or obtain the witness's agreement, so long

as all other provisions of this Order are complied with, the Confidential Information is

maintained as required by this Order and the use of the Confidential Information in the

deposition is not designed to avoid obtaining the written agreement required by this Order.

5.

Nothing in this Order precludes TXI from using information obtained in this

lawsuit internally for proper and lawful business purposes.

6. Nothing herein will prevent any party from applying to the Court for modification

of the terms of this Order at any time upon a showing of good cause.

7. At any time after the production of any materials designated as Confidential by

one party, any other party to this Order may serve a notice of objection to such designation

stating the reasons for such objection. The parties shall make a good faith effort to confer

verbally and to resolve any disagreement over any objection to a "Confidential" designation of

AGREED PROTECTIVE ORDER - Page 3
Dallas:116968.2016749.1015

documents or information. Should the parties be unable to resolve the issue raised by the objection, the objecting party may thereupon seek a ruling from this Court with respect to the merits of the designation. The burden of proving the appropriateness of the designation shall be upon the party designating the materials as confidential.
8. At times, witnesses at depositions may testify about documents or other information that is deemed confidential in accordance with this order. During the deposition, any party may designate all or portions of deposition testimony as confidential under this Agreed Protective Order by advising the court reporter and the videographer, as applicable, and all counsel at the deposition or proceeding of such fact. The court reporter shall transcribe those portions of the testimony so designated and mark the face of each relevant page of the transcript with the word "Confidential."
9. Whenever any confidential document is identified or marked as an exhibit in connection with deposition testimony given in these proceedings, it shall be kept separate from the other exhibits in an envelope marked "Confidential - Subject to Agreed Protective Order." Once the written transcript is marked and prepared in the foregoing manner, the videographer shall label any tape which includes confidential information as "Confidential- Subject to Agreed Protective Order."
10. Subject to the Federal Rules of Evidence, the Confidential Information may be offered in evidence at trial, deposition, court hearing, or in connection with any motion, response or other pleading filed with the Court, but only under the terms of this protective order.
11. If filed with the Court, the Confidential Information, whether it be deposition testimony or confidential documents, shall be filed under seal to be reviewed by Court personnel only and not to be released to the pUblic. Each sealed envelope containing the specific
AGREED PROTECTIVE ORDER - Page 4
Dallas:116968.2016749.1015

, ,

information detailed in this paragraph shall be labeled with the caption of this action, the terms

"Confidential Information" or "Confidential-Attorneys' Only" and the following statement:

"This envelope is sealed pursuant to order of the Court. It contains Confidential Information produced in this case by one of the parties and shall not be opened, or its contents displayed or revealed, prior to trial except by the Court or the Court's judicial staff or by further order of the Court."

The parties will agree to confer, prior to filing a pleading or other document with the Court, as to

whether any documents marked as "Confidential" can be filed without the protections of this

paragraph.

12.

Nothing in this Protective Order shall preclude any party from seeking and

obtaining from the Court additional protection with respect to the confidentiality of information,

documents, or other things, as that party may consider appropriate. Nothing in this Protective

Order shall be construed as a waiver of any objections that a party may have with regard to any

document, thing, or information.

13. If the case is appealed, the party designating the Confidential Information shall

agree to such orders as necessary to allow the Confidential Information to be included in the

record of appeal.

14. If another court or an administrative agency subpoenas or orders the production of

Confidential Information from any Party, the Party from whom the information is sought shall

notify the other Parties of such subpoena or order as soon as possible and, at least, within five (5)

days of receipt of the subpoena or order. The Party from whom information is sought shall wait

a minimum of ten (10) days to tender the documents to the requesting entity, unless the

requesting entity asks the documents be produced in less than ten days, in order to give the other

Parties an opportunity to review the order or subpoena and seek appropriate relief from the Court

if desired. In the event that the information ordered by the requesting entity is to be produced

AGREED PROTECTIVE ORDER - Page 5
Dallas:116968.2016749.1015

,

I

within ten days, the party from whom the infonnation is sought shall notify the other parties within one day of its receipt of the subpoena or order and will not produce the documents until so ordered.
15. This Order is intended to facilitate efficient litigation between the parties and is not intended to alter resolution of any substantive issues or to affect the parties' substantive rights.
16. This Order may be amended by agreement of counsel for the parties in the fonn of a stipulation filed with and approved by the Court.
17. The Order shall survive until the final destruction ofthe Confidential Infonnation, and the Court shall retain jurisdiction to resolve any dispute concerning the use or disclosure of Confidential Infonnation. The EEOC will maintain the Confidential Infonnation in accordance with this Order and then destroy these records in accordance with EEOC Order 201lAppendix A. The parties may not use Confidential Infonnation for any reason other than for the purposes of pursuing Julie Fundling's claims as asserted by the EEOC in this litigation, and all appeals therefrom.

IT IS SO ORDERED this~ day of_IJ_~_---,,--k--=>.-_ _ _ _ _, 2003.

Honorable Jorge A. Solis United States District Judge

AGREED PROTECTIVE ORDER - Page 6
Dallas:116968.2016749.1015

, "

AGREED

~cM1M Ronetta J. Francis Virginia State Bar No. 39886
EEOC Dallas District Office 207 South Houston Street 3rd Floor Dallas, TX 75202
ATTORNEYS FOR PLAINTIFF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

£~/~~.
Ronald E. Manthey Texas State Bar No. 12927400 Ellen L. Perlioni Texas State Bar No. 00794155
LITTLER MENDELSON A Professional Corporation 2001 Ross Avenue, Suite 2600 LockBox 116 Dallas, Texas 75201.2931 214.880.8100 214.880.0181 (Fax)
ATTORNEYS FOR DEFENDANT TXI OPERATIONS, L.P.

AGREED PROTECTIVE ORDER - Page 7
Dallas: 116968.2 016749.1015

· .
EXHIBIT A
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, vs. TXI OPERATIONS, L.P.,
Defendant.

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§

CIVIL ACTION NO. 303 CV 1868 P

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1. Mynameis __________________________________________ 2. I am aware that an Agreed Protective Order has been entered in the above-captioned action and a copy of this Order has been given to me. 3. I agree that any documents, information, materials or testimony, which are protected under the Agreed Protective Order entered in this case and designated as Confidential Materials will be used by me only in connection with the above-captioned matter. 4. I agree not to disclose or discuss such protected materials with any person other than those individuals permitted by the Order to review such materials. 5. I understand that any use of such confidential documents, information, materials, or testimony obtained by me (or any portions or summaries thereof) in any manner contrary to the provisions of the Order may subject me to a sanction from this Court for violating the Order.

AGREED PROTECTIVE ORDER - Page 8
Dallas:116968.2016749.1015

 
 u.s. DISTRICT COURT

NORTHERi,\," DISTRICT OF TEXAS

' IN THE UNITED STATES DISTRICT :OURT FILED

ORIGiNA bFOR THE NORTHERN DISTRICT OF TEXAS

~

DALLAS DIVISION

~cL - 6 ~J

EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, Plaintiff,
v. TXI OPERATIONS, L.P.,
Defendant.

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CU:.RK, u.s.n~~"l'RlCr COURT B1 ____ _ ~---- _____

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Dotpllitli

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Civil Action No.

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3:03-CV-1868-P

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ORDER

Pursuant to the District Court's Order of Reference, filed June 14, 2004, Defendant TXI

Operations, L.P. 's Motion to Compel Discovery Responses, Production of Documents and

Depositions, andAlternative Motion to Deem Evidence Inadmissible and Briefin Support, filed June

10, 2004, has been referred to this Court for hearing, if necessary, and for determination. Also

before the Court are Appendix to Defendant TXIOperations, L.P. 's Motion to Compel Discovery

Responses, Production ofDocuments and Depositions, and Alternative Motion to Deem Evidence

Inadmissible and Brief in Support, filed June 10, 2004, and Plaintiff's Response in Opposition to

Defendant's Motion to Compel, Plaintiff's Brief in Support of its Response in Opposition to

Defendant's Motion to Compel, and Appendix to Plaintiff's Brief in Support of its Response in

Opposition to Defendant's Motion to Compel, filed June 29, 2004.

A hearing on the motion was held on Friday, July 2, 2004. After consideration of the

pleadings, evidence, oral argument, and applicable law, and for the reasons stated on the record

during the hearing, the Court determines that the motion should be, and it is hereby, DENIED, in

1

part, and GRANTED, in part. Accordingly, it is ORDERED that Defendant's motion to compel the deposition offormer EEOC Investigator
George R. Garrett is GRANTED. Plaintiff shall provide Defendant with Mr. Garrett's last known address within ten business days from the date of this Order. Defendant's motion to compel the deposition of EEOC Acting District Director Janet V. Elizondo is DENIED. Defendant's motion to compel additional responses to its Requests for Production Nos. 9-12 is DENIED. However, Plaintiffshall review all documents withheld from production on the basis ofthe deliberative process privilege to ensure that all non-privileged factual information contained therein has been produced. Plaintiff shall supplement its responses and/or certify in writing that it has provided all responsive factual non-privileged information no later than ten (10) business days from the date of this Order. It is further
ORDERED that Defendant's Interrogatory No.5 and Requests for Production Nos. 17 and 24 are modified and limited to medical providers consulted by, or who treated, Charging Party for her alleged physical and mental symptoms of emotional anguish, including but not limited to, high blood pressure. Defendant's motion to compel responses to Interrogatory No.5 and Requests for Production Nos. 17 and 24, as modified and limited, is GRANTED. Plaintiff shall provide full and complete responses to these discovery requests no later than ten (10) business days from the date of this Order. It is further
ORDERED that Plaintiff shall produce a copy of Charging Party's notes to the Court for in camera review no later than Friday, July 9, 2004. It is further
ORDERED that Defendant's motion to compel a more detailed privilege log is DENIED. It is further
2

ORDERED that Defendant's motion to compel additional responses to Interrogatory No. 6 and Request for Production No.1 is DENIED.
All relief not expressly awarded herein is hereby denied. SO ORDERED on this 2nd day of July, 2004.
J~~d~ IlUv1A CARRILLO RAMIRE UNITED STATES MAGISTRATE JUDGE
3

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

U.S. DISTRICT COURT NORTHERN DISTRICT OF TEXAS
FILED

EQUAL EMPLOYMENT, OPPORTUNITY COMMISSION,
Plaintiff, v. TXI OPERATIONS, L.P.,
Defendant.

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CLEJuc. U.s. DJSnucr

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§ CASE NO.: 3:03-CV-1868-P

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MEMORANDUM OPINION AND ORDER

Now before the Court is Defendant TXI Operations, L.P.'s ("TXI" or "Defendant")

Motion for Summary Judgment ("Def.'s Br."), filed September 7, 2004. Plaintiff Equal

Employment Opportunity Commission ("EEOC") filed its Response ("PI. 's Resp.") on October

13, 2004, and Defendant filed its Reply ("Def. 's Reply") on October 27, 2004. After considering

the parties' arguments and briefing, and the applicable law, the Court GRANTS Defendant's

Motion for Summary Judgment.

I. Background and Procedural History

On August 19,2003, "Plaintiff Equal Employment Opportunity Commission ("EEOC"

[or "Plaintiff']) brought this lawsuit on behalf of Charging Party Julie Fundling (,Fundling')

against [TXI] alleging (1) Equal Pay Act and (2) Title VII sex discrimination relating to her

salary." Def.'s Mot. for Summ. J. ("Def.'s Mot.") at p. 1. Fundling asserts "her salary was

discriminatory as compared to that ofWes Schlenker (,Schlenker'), a male employee. Fundling

and Schlenker were both attorneys in TXl's legal department reporting to Robert Moore

("Moore"), TXl's Vice President, General Counsel and Secretary."
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In November 1991, Moore hired Fundling to work in Defendant's legal department (the
"legal department,,).l See Fundling dep. at p. 37,1. 25 to p. 38, 1. 19 (Def. 's App. at pp. 146-47);
Moore dec1. at ~ 2 (Def.'s App. at p. 103); Def.'s Offer of Employment (PI.'s App. at p. 10).
Fundling began with a starting annual salary of $57, 500 as a Grade 13 employee, see Moore
dec1. at ~ 9 (Def. 's App. at p. 104), and reported directly to Moore in her new position. Def. 's
Offer of Employment (PI.'s App. at p. 10). At the time of her hire, only Moore and Fundling
worked in the legal department. Fundling dep. at p. 38, 11. 4-8 (Def. 's App. at p. 147). Previous
to her employment with Defendant, Fundling worked as an associate with the law firm of Johnson & Gibbs, P.C. from approximately April 1990 to October 1991.2 Moore dec1. Ex. 2
(Def.'s App. at pp. 121-24).
At the time of her hire, TXI assigned Fundling a substantial amount of real estate matters
in addition to her other duties. See Moore dec1. at ~~ 4, 11-12 (Def. 's App. at pp. 103, 105).
Unfortunately, Fundling had no experience in the area of real estate law. See Fundling Resume
(Pl.'s App. at pp. 5-6). Indeed, from approximately 1992 to 1993, Fundling received three
separate complaints regarding her work on real estate matters. Bone dep. at p. 27, 1. 3 to p. 31, 1.
2 (Def. 's App. at pp. 76-77). After the third complaint, Barry M. Bone ("Bone"), TXI's Real
Estate Vice President, "informed [Moore] that the Real Estate Department would not use
1 Apparently, Fundling married sometime between November 1991 and 1994. Compare Moore decI. Ex. 2 ("Employment Application") (Def. 's App. at pp. 121-24) (showing Fundling's last name to be Henderson and listing her emergency contact as "Mr. Scott Fundling," her "boyfriend") with August 12, 1994, Performance Evaluation (PI.'s App. at pp. 15-23) (showing Fundling's last name to be Fundling); see also Moore dep. at p. 63, ll. 8-11 (PI.'s App. at p. 89). 2 "While at Johnson & Gibbs, [] Fundling practiced general corporate law, and performed work dealing with bankruptcy, securities, contracts and filing." PI.'s Resp. at p. 2 (citing PI.'s App. at pp. 1-4 ("Fundling's TXI Employment Applicatoin")). 3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 2

Fundling for any oftheir legal work going forward." Moore decI. at ~ 14 (Def. 's App. at p. 105); Bone dep. at p. 31,11.3-12 (Def.'s App. at p. 77). As a result, Moore "authorized the Real Estate Department to take all of their legal work, with the exception of litigation relating to real estate matters and certain administrative matters relating to corporate governance and board resolutions, to outside counsel to handle." Moore decI. at ~ 14 (Def.'s App. at p. 105).
Fundling received her first performance evaluation from Moore on August 12, 1994. (PI. 's App. at pp. 15-23). Therein, Moore omitted any reference to Fundling's real estate difficulites. On the contrary, Moore noted that Fundling "[q]uickly gained the confidence of [TXI's] managers because of her willingness to work hard and her cooperative attitude," and further that "[c]onsidering her lack of experience she has performed very well and needs minimum supervision."3 Id. at 2. (App. at p. 22). Following "Fundling's August 12, 1994[,] performance evaluation, she received a salary increase to $65,000 per year, an increase of 13%, effective September 16, 1994." PI.'s Resp. at p.6 (citing PI.'s App. at 24-25). Fundling then "received her second formal performance review from [] Moore on June 15, 1999." Id. (citing PI. 's App. at 26-29). This second review contains no comments from Moore. !d. Thereafter, "[e]ffective June 14, 1999, [] Fundling received a merit salary increase to $74.796.00 per year, an increase of 15 percent." Id. (citing PI. 's App. at p. 30).
"From December 2, 1991 until September 7, 1999, [] Moore and [] Fundling were the only full-time in-house attorneys employed by the Legal Department of TXI." PI. 's Resp. at p. 10 (citing Fundling decI. at ~ 22 (PI. 's App. at p. 132)). However, "[i]n 1998, TXI dramatically
3 Moore also stated that "[d]ue to her willingness to accomodate [sic] everyone who requested her service she doesn't prioritize well. (neither do I by the way)," and that "[Fundling] is intelligent and picks up quickly what the company's requirements are in the transactions she handles. She needs to force herself to take a [second] or third look at her documents to see if they can be improved despite the time pressure to get them out." 3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 3

increased its operations with the collateral effect of significantly increasing the legal department's work load." Moore decI. at ~ 20 (Def. 's App. at p. 107). Subsequently, Moore began planning for the addition of another attorney to the legal department. Notably, during "Fundling's performance evaluation in June 1999, [] Moore and [] Fundling discussed the possibility of [Moore] hiring another in-house attorney. At that time, [] Moore told [] Fundling that depending on how much the new attorney would be paid, he would adjust her salary accordingly.,,4 PI. 's Resp. at p. 11 (citing PI. 's App. at p. 31); see also Fundling dep. at p. 86,1. 9 to p. 88,1. 11 (Def.'s App. at p. 159).
Thereafter, TXI apparently began preparations for the additional hire. "Just as [he] did before hiring Fundling, [Moore] went to the Vice President of Human Resources ... and asked that the compensation group conduct a market survey to determine a competitive salary for the new attorney position given the experience level [he] sought." Moore dec1. at ~ 25 (Def.' s App. at p. 7). After that, in April 1999, "a Job Description for a Grade 14 Attorney was drafted in preparation for Defendant's anticipated hire of a new attorney." PI.' s Resp. at p. 11; see also Moore dep. at p. 114, 11. 1-11 (PI. 's App. at p. 95). Moore "decided to offer the new attorney a starting salary of approximately $100,000 annually ...." Additionally, in its ad listing, TXI stated that it sought "a corporate attorney for a diverse in-house practice," with a background of "5-8 years legal experience.,,5 (PI. 's App. at p. 32). Specifically, the required background
4 "Moore also informed the Human Resources Department that, depending on what it took to bring in the new attorney and after observing the performance of the new attorney and as compared to Fundling, Fundling's salary would be adjusted if the salary gap was too large based on the comparative abilities of the two attorneys." Def.'s Mot. at pp. 7-8. 5 TXI's ad listing omitted any references to salary amount or grade level. (See Pl.'s App. at p. 32). 3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 4

included "experience in corporate transactions, general contracts and real estate, financing and merger, acquisition and securities." Although several individuals applied for the position, Moore "screened them down from 30 to about 12 ...." Moore dep. at p. 117,11. 14-24 (Def. 's App. at p. 8). After further interview rounds with various executives, TXI reached a consensus decision to choose Schlenker. Id. at p. 118, 1. 2 to p. 122, 1. 17 (Def. 's App. at pp. 9-10).
Moore extended the position to Schlenker at an initial salary of approximately $100,000. Moore decI. at ~ 32 (Def. 's App. at p. 110). While Schlenker rejected this "starting offer," Moore adjusted the salary (as well as additional benefits) to an amount more suitable to Schlenker. Id. (Def.'s App. at pp. 110-11); see also Schlenker dep. at p. 68, 1. 16 to p. 76, 1. 25; Moore dep. at p. 125, 11. 2-23 (Def.'s App. at pp. 28-30; 32). Eventually, the parties reached agreement, and "[o]n August 20, 1999, [] Moore offered [] Schlenker the job as an attorney with an annual salary of$115,000.00." PI.'s Resp. at p. 12 (citing PI.'s App. at p. 34( "Schlenker Offer of Employment")). Schlenker then called Moore and accepted that offer. Schlenker dep. at p. 79, 11. 11-21 (Def.'s App. at p. 31). At the time TXI hired Schlenker, Fundling earned an annual salary of $74,796.00. See Moore decI. at ~~ 26,32,45 (Def.'s App. at pp. 109, 110-11, 114).
After TXI hired Schlenker, he received projects directly from Moore. Cj Moore decI. at
~ 34 (Def.'s App. at p. 111) Both parties agree that Moore transferred some of Fundling's responsibilities to Moore. See Fundling decI. at ~~ 27-28 (PI.'s App. at p. 133); Moore decI. at ~~ 36-37 (Def. 's App. at pp. 111-12). The reasons why Schlenker received certain projects-including work originally assigned to Fundling- remains a disputed issue between the parties. Plaintiff charges Moore sexually discriminated against Fundling, see, e.g., PI. 's App. at
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36-37, while Defendant maintains it distributed assignments according to experience, and redistributed assignments to familiarize Schlenker with TXI. See Moore dep. at p. 126,1. 16 to p. 127,1. 12; Moore dec1. at ~ 37 (Def.'s App. at pp. 11; 112). Regardless, on October 1, 2001, Fundling filed a charge of sex discrimination with the Texas Commission on Human Rights and the EEOC "alleging unequal pay claims under both the [EPA] and Title VII". PI. 's Resp. at p. 14 (citing PI.'s App. at p. 36-37). Afterward, "[o]n October 15,2001, [] Fundling received a merit salary increase to $95,000.00 per year, an increase of27 percent." Id. (citing PI.'s App. at p.38).
In January 2002, Moore conducted Schlenker's first performance review, Moore decl. at ~ 47 (Def. ' s App. at p. 115), and "[0]n January 21, 2002, [] Schlenker received a merit salary increase to $124,000 per year, an increase of7.8 percent." PI.'s Resp. at p. 14 (citing PI.'s App. at p. 45).
Later that year, "[i]n October 2002, the Board of Directors for Texas Industries, Inc., the publicly traded parent corporation of [TXI], voted Schlenker to be the Assistant Secretary for [TXI]." Moore dec1. at ~ 51 (Def.'s App. at p. 116). Schlenker, however, did not receive notice of his promotion until approximately eight months later in May 2003. See Moore dep. at p. 133, 11.8-14; p. 134,1. 24 to p. 136,1. 21 (PI.'s App. at pp. 97; 98-100). "As a result of the creation of [their] job descriptions, [] Fundling now reported to [] Schlenker, as the Assistant General Counsel, as well as to [] Moore, as the General CounseL" PI.'s Resp. at p. 15 (citing PI.'s App. at pp. 48-50).
In May 2003, Moore conducted Fundling's third formal performance evaluation. Therein, Moore referenced incidents relating back not only to Fundling's previous evaluation,
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but to events occurring at her employment inception. (See PI.'s App. at pp. 51-57). Shortly thereafter, "[o]n May 22, 2003, [] Fundling received a merit salary increase to $100,000 per year, an increase of 5 percent." PI.'s Resp. at p. 15 (citing PI.'s App. at p. 58). Fundling did not receive any additional formal performance evaluations or salary increases subsequent to this date.
"On May 29,2003, [] Moore conducted a formal performance evaluation for [] Schlenker." PI.'s Resp. at p. 15; see also PI.'s App. at pp. 59-64. Therein, Moore states that he has not "clearly delineated [Schlenker's] role from [Fundling's]." Subsequently, "[fJollowing his promotion to Senior Attorney/Assistant General Counsel, [] Schlenker received a salary increase to $138,000.00 per year, an increase of 11.3 percent." PI.'s Resp. at p. 15 (citing PI.'s App. at pp. 45, 65).
Finally, on August 19,2003, "[t]he EEOC filed this lawsuit on Fundling's behalf." See Def.'s Mot. at p. 11. Six months later, "[o]n February 20, 2004, Fundling submitted her resignation to TXI." Id. II. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,323 (1986). Themovingparty bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. !d. However, all evidence and the reasonable inferences to be drawn therefrom
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must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
Once the party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending the motion for summary judgment cannot defeat the motion unless he provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in his favor. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent a summary judgment. Id. at 248-50; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993). In other words, conc1usory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).
If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to his case, and on which he bears the burden of proof at trial, summary judgment is mandatory. Celotex Corp., 477 U.S. at 322-24; Washington v. Armstrong World Indus., Inc., 839 F.2d 1121, 1122 (5th Cir. 1988). A motion for summary judgment cannot be granted simply because there is no opposition, even if the failure to oppose it violates a local rule. Hibernia Nat 'I Bank v. Adminstracion Central Sociedad Anonima, 776 F.3d 1277, 1279 (5th Cir. 1985). However, when the non-movant fails to provide a response identifying the disputed issues of fact, the Court is entitled to accept the movant's description of the undisputed facts as prima facie evidence of its entitlement to judgment. Eversly v. MBank Dallas, 843 F.2d
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172, 173-174 (5th Cir. 1988); Nordar Holdings, Inc. v. W Sec. (USA) Ltd., No. 3:96-CV-0427H, 1996 WL 739019, *2 (N.D. Tex. Dec. 18, 1996).
Furthermore, the Court has no duty to search the record for triable issues. Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455,458 (5th Cir. 1998). "The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise matter in which the evidence supports his or her claim." Id. A party may not rely upon "unsubstantiated assertions" as competent summary judgment evidence. Id.
Finally, the Fifth Circuit admonishes that "[w]hen dealing with employment discrimination cases, which usually necessarily involve examining motive and intent, ... granting of summary judgment is especially questionable. In these cases 'summary judgment should be used cautiously and all procedural requirements given strict adherence .... ,,, Hayden v. First Nat 'I Bank, 595 F.2d 994,997 (5th Cir. 1979) (quoting Lavin v. Illinois High School Ass 'n, 527 F.2d 58, 61 (7th Cir. 1975)); cf Thornbrough v. Columbus & G. R. Co., 760 F.2d 633,639 (5th Cir. 1985) (citing Mendez, Presumptions a/Discriminatory Motive in Title VII Disparate Treatment Cases, 32 Stan. L. Rev. 1129 (1980) ("Unless the employer is a latter-day George Washington, employment discrimination is as difficult to prove as who chopped down the cherry tree."). III. Equal Pay Act
Under the Equal Pay Act ("EPA"), an employer is prohibited from discriminating "between employees on the basis of sex ... for equal work on jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions." 28 U.S.C. § 206(d)(I) (1978). To establish aprima/acie case under the EPA, a
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plaintiff must demonstrate that (1) her employer is subject to the EPA; (2) she performed work in a position requiring equal skill, effort and responsibility under similar working conditions; and (3) she was paid less than members of the opposite sex providing the basis for comparison.6 Jones v. Flagship Int'!, 793 F.2d 714,722-23 (5th Cir. 1986); Williams v. Tex. Dep 't ofTrans. , 1997 WL 53142, at *5 (N.D. Tex. 1997). Plaintiff need not show that her job duties were identical to those of higher paid male employees, only that the "skill, effort and responsibility" required in the performance of the compared jobs are "substantially equal." Peters v. City of Shreveport, 818 F.2d 1148, 1153 (5th Cir. 1987); Williams, 1997 WL 53142, at *6.7
When a plaintiff succeeds in establishing her prima facie case, the burdens of production and persuasion shift to the employer to demonstrate one of the four affirmative defenses specified under the EPA. Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1136 (5th Cir. 1983).8 In other words, the burden shifts to the employer once a plaintiff shows she was paid less than a male who was performing substantially the same job. Id. The EPA provides exceptions, sometimes referred to as affirmative defenses, for disparate wage payments made pursuant to: (1) a seniority system; (2) a merit system; (3) a system that measures earnings by quantity or quality; or (4) a differential based upon any factor other than sex. Peters, 818 F.2d at 1153 (citing 29 U.S.C. § 206(d)(I».
6 See Hodgson v. Am. Bank o/Commerce, 447 F.2d 416, 420 (5th Cir. 1971) ("Any wage differential between the sexes, no matter how small and insignificant, is sufficient under the statutory prohibition.") (emphasis added). 7 Unlike a claim arising under Title VII, a plaintiff in an EPA case need not demonstrate discriminatory intent. [d. 8 Unlike a claim arising under Title VII, the plaintiff does not retain the ultimate burden of persuasion in an Equal Pay Act case. In an Equal Pay Act case, the employer, not the employee, must prove the actual wage disparity is not sex linked. Plemer, 713 F.2d at 1136. 3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 10

a. Prima Facie Case As Defendant concedes it is subject to the EPA, and that Fundling "was paid at a lower rate than Schlenker during her employment," see Def. 's Br. at p. 3, the core issue is whether Fundling "performed work in a position requiring equal skill, effort and responsibility under similar working conditions." Jones, 793 F.2d at 722. Although "[w]hat constitutes equal skill, equal effort, or equal responsibility cannot be precisely defined ... [t]he terms constitute separate tests, each of which must be met in order for the equal pay standard to apply." 29 C.F.R. § 1620. 14(a) (2004). Moreover, "[i]t should be kept in mind that 'equal' does not mean 'identical.' Insubstantial or minor differences in the degree or amount of skill, or effort, or responsibility required for the performance ofjobs will not render the equal pay standard inapplicable." Id. Finally, "it is the overall job, not individual segments, that must form the basis of comparison. Thus, even if a portion of [male and female] jobs overlapped, this would not be enough to prove and [sic] EPA violation." Kern v. GE Capital Info. Tech. Solutions, 2003 WL 22433817 at *5 (N.D. Tex. Feb. 19,2003). At the outset, Defendant concedes that "[f1rom a global perspective, Fundling and Schlenker's jobs were similar. Both were attorneys in TXI's legal department reporting to the General Counsel," and "[m]any of the types of work handles by Fundling and Schlenker overlapped." Def. 's Br. at p. 4. Nonetheless, Defendant argues further that "this Court need only look at the realities of the work performed by Fundling and Schlenker" in determining that the two were not performing equal work requiring equal skill, effort and responsibility under similar working conditions. Def. 's Reply at p. 3. Defendant then details a laundry list of assignments Schlenker performed, including a large lease transaction, a technical patent
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infringement lawsuit, and a hydrocarbon contamination project. See Def. 's Br. at pp. 5-6; see also Allen dep. at p. 30, 1. 11 to p. 31,1. 21; Moore decl. at ~ 38; ~ 39 (Def.'s App at pp. 57; 112; 112-13). Defendant ends this argument announcing that because "Schlenker shouldered more responsibility as he handled the more complex legal matters," Fundling cannot prove that "she and Schlenker performed 'equal work' in jobs requiring equal skill, effort and responsibility." Def.'s Br. at p. 7.
Although Plaintiff also details a laundry list of assignments Fundling performed, it begins its argument by stating that "[i]n determining the equality of the requirements of the job held by Fundling and Schlenker, the Court need look no further than their job descriptions, ... [which] demonstrate that the two positions are substantively identical." PI. 's Resp. at p. 22. Admittedly, in some cases, job descriptions may be a factor in EPA claims. See Brennan v. OwensboroDaviess County Hospital, 523 F.2d 1013, 1017 (6th Cir. 1975) [hereinafter Owensboro], cert. denied 425 U.S. 973 (1976).
Althoughjob descriptions should not be accorded as much weight as that given to the duties actually performed by employees in determining whether jobs are substantially equal ... they may be helpful, particularly where the description of the jobs to be compared are similar and were written by the very employer who claims that the wage differentials are not based on an impermissible criterion. Id. (emphasis added). However, Owensboro recognized also that the duties actually performed must be accorded more weight than job descriptions. Id. Indeed, the regulations find job content controlling. See C.F.R. § 1620. 13(e) (2004). "Application of the equal pay standard is not dependent on job classifications or titles but depends rather on actual job requirements and performance." Id. (emphasis added).
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In this case, Plaintiff accords too much weight to the job descriptions for two reasons. First, the Court finds the job descriptions list responsibilities in very general terms. For instance, both descriptions include the responsibility of "[preparing] and [executing] legal documents by analyzing, drafting, negotiating, reviewing, and filing these documents." PI. 's App. at pp. 33, 50. Other general responsibilities include "[studying] proposed and existing legislation, [reviewing] business practices and policies, and [advising] management of potential risks." Id. Such descriptions provide merely an overview of legal projects, rather than the minutiae of daily activity. As such, their utility with respect to equality ofjob requirements is minimized.
Second, the job descriptions do contain some differences. In fact, each carries responsibilities the other does not. To wit, only Fundling's responsibilities include the preparation of SEC forms. PI. 's App. at p. 50. In contrast, while both descriptions include the responsibility of "[carrying] out broad legal assignments that are complex and difficult in nature," Schlenker may do so under "minimal supervision," while Fundling may do so under "appropriate supervision." PI. 's App. at pp. 33, 50. Therefore, in this case, while the job descriptions furnish helpful background information, they do not provide the necessary details this Court needs to make a proper comparison.
In sum, the Court finds it must address actual job performance to determine whether Schlenker and Fundling performed substantially similar work. In this regard, Plaintiff details a variety of assignments Fundling performed, including restructuring companies into partnerships, overseeing environmental compliance, enabling cash management bank agreements and executing equipment leases. See Fundling dec1. at ~ 6; 8; Allen dep. at pp. 28, 11. 10-19; p. 31,1.
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22 to p. 32, 1. 7; Fundling decl. at ~ 12 (PI. 's App. at p. 7; Def. 's App. at pp. 56; 57; PI. 's App. at p. 130).
Defendant counters Plaintiffs view of Fundling by highlighting her admission that Schlenker handled more complex matters. See Def. 's Repl. at p. 1-2 (citing Fundling dep. at p. 172 (Def. 's App. at p. 174)). Defendant argues that such an admission combined with Schlenker's experience proves that Schlenker's position required greater skill and effort. However, at this point, the comparison is between the actual performance, which mayor may not include experience and skill. As the regulation instructs, "[p]ossession of a skill not needed to meet the requirements of the job cannot be considered in making a determination regarding equality of skill. The efficiency of the employee's performance in the job is not in itself an appropriate factor to consider in evaluating skill." C.F.R. § 1620. 13(e) (2004).
At this point, the Court cannot state affirmatively that as a matter of law, the skill and effort of Schlenker and Fundling were substantially dissimilar. While Defendant offers transactions and situations to differentiate Schlenker's position, it does not provide competent summary judgment evidence as to why and how such items are substantially dissimilar from those Fundling performed. While some differences existed, the record does not demonstrate the necessary substantiality with respect to these prongs.9
Nevertheless, the Court does find that substantial differences injob responsibility existed between Schlenker and Fundling. "Responsibility is concerned with the degree of accountability
9 Moreover, Moore's own admission draws some doubt on such a finding. See Moore dep. at p. 148,11. 11-14 ("[Fundling] kept saying that she wanted to know the difference between what she was doing and Wes was doing. And I said a lot of the times there's no difference in what you're doing. But I had hired Wes to be able to handle stuff that I handled.") (Def.'s App. at p. 13). 3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 14

required in the performance of the job, with emphasis on the importance of the job obligation."
29 C.F.R. § 1620.17(a) (2004). In this situation, there can be no dispute Schlenker exercised
more responsibility than Fundling. No statement illustrates this more than Fundling's own admission that Schlenker handled the more complex matters at TXI. See Fundling dep. at p. 172, 11. 12-20 (Def. 's App. at p. 174). Such an admission goes far beyond Schlenker's listed
responsibilities; rather, it reveals what actually occurred, and eliminates any need for speculation. 10
Furthermore, the Court finds additional evidence of Schlenker's elevated level of responsibility. For instance, Defendant states that "[b]ecause of [Schlenker's] prior experience
as the General Counsel of a publicly traded company, Moore also designated Schlenker as
Acting General Counsel during [Moore's] two-month leave of absence for knee surgery," and
that "Fundling was never designated as Acting General Counsel and she never had the
responsibility to act as the General Counsel on TXI's behalf." Def. 's Resp. at p. 6 (citing Moore
dec!. at,-r,-r 41,43 (Def.'s App. at pp. 113, 113-14)). Indeed, prior to Schlenker's employment,
Moore vacationed for shorter periods, and scheduled his "vacation at times when [he] knew the
Company was not involved in complex transactions." Moore dec!. at,-r 42 (Def.'s App. at p.
113). Moreover, during such times, "if complex general counsel level questions arose while
[Moore] was on vacation and if [he] could not be reached, TXI's Vice Presidents had full
10 The Court finds Plaintiffs reliance on Brennan v. Prince William Hospital Corp., 503 F.2d 282 (4th Cir. 1974) [hereinafter Prince William], inexpedient. While it may be true that "[h]igher pay is not related to extra duties when ... [q]ualified female employees are not given the opportunity to do the extra work," id. at 286 (citing Schultz v. Wheaton Glass Co., 421 F.2d 259 (3rd Cir. 1969)), the Court deems such language inapplicable to this case. Aside from conclusory allegations, Plaintiff fails to proffer competent summary judgment type evidence establishing that TXI or Moore excluded Fundling from opportunities. Rather, the evidence establishes that Moore delegated assigmnents based on experience and skill. 3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 15

authority to contact designated outside counsel." Id. at ~ 43 (Def.'s App. at pp. 113-14). Whatever Fundling's duties included during such times, they were a far cry from the full responsibility and authority Schlenker exercised "on TXI's behalf that [was] associated with the General Counsel position." Cf Moore decl. at ~ 41 (Def.'s App. at p. 113). As such, the Court finds that the relative responsibility that Schlenker and Fundling exercised cannot be deemed substantially similar. Hence, as the evidence demonstrates a lack of this factor, Plaintiff cannot establish aprima/acie case under the EPA. See Christopher v. State a/Iowa, 559 F.2d 1135, 1138 n.14 (8th Cir. 1977) ("The requirements of equal sill, equal effort and equal responsibility are considered to constitute three separate tests, each of which must be met in order for the equal pay standards to apply.") (internal citations omitted).
However, even were the Court to find that Fundling performed work in a position requiring equal skill, effort and responsibility under similar working conditions, Defendant still proffers a valid exemption.
b. Exemptions At the outset, it must be remembered that "[a]n exemption from the coverage of the Act must be narrowly construed." Hodgson v. Behrens Drug Co., 475 F.2d 1041, 1047 (1973) (internal citations omitted); see also Corning Glass Works v. Brennan, 417 U.S. 188,207 (1974) ("The [EPA] is broadly remedial and it should be construed and applied so as to fulfill the underlying purposes which Congress sought to achieve."). Nevertheless, courts recognize valid exemptions. Specifically, with regard to factors "other than sex," several determinants pass judicial muster, including "different job levels, different skill levels, previous training, and
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experience." Pouncy v. Prudential Ins. Co., 668 F.2d 795,802-03 (5th Cir. 1982). Courts also consider other factors such as "prior salary history, performance, and competitors' offers," finding these factors to be "legitimate, nondiscriminatory reasons for paying [employees] different amounts." Lyons v. Burlington Coat Factory Warehouse, 2004 U.S. Dist. LEXIS 3575,
at *16-17.
Defendants proffer three determinants for the differences in pay: (1) Schlenker's experience, particularly his securities and general counsel experience; (2) Schlenker's performance of more complex legal work; and (3) TXI's dynamic legal situation. In tum, each explanation supports the other listed reasons. Nevertheless, each reason is an independent rationale which employers may consider when making salary decisions. Additionally, the record corroborates that TXI established Schlenker's grade and salary before it made the hiring decision. As such, while this may not be a determinant in and of itself, it buttresses the validity of the previous three rationales. Finally, Plaintiff presents no evidence that Defendant utilized such reasons as pretexts for determination.
1. Specialized Experience As Defendant notes, experience qualifies as a valid "other than sex" factor for pay differentials. Clearly, Schlenker brought with him a wide variety of experience that Fundling did not possess. Although not exhaustive, Schlenker's background included real estate and financing experience, see Schlenker dep. at p. 49, 1. 18 to p. 50, 1. 16; Moore dec1. at 'Il31 (Def. 's App. at pp. 24; 110); see also PI. 's App. at p. 74-75 ("Schlenker Resume"), involvement in working with a publicly traded company, see, e.g., Moore dec1. at 'Il31 (Def. 's App. at p. 110); Schlenker Resume, implementation of a patent program, see Schlenker dep. at p. 43, 1. 3 to p. 44,
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1. 20 (Def.'s App. at p. 23), and significant securities experience, including specific expertise with the 1933 Securities Act. See Schlenker Resume; Moore dec1. at ~ 31 (Def.'s App. at p. 110); cf Schlenker dep. at p. 43, 1. 3 to p. 44, 1. 20 (Def.'s App. at p. 23). The latter experience is most significant as Fundling concedes that before the hiring decision, Moore acknowledged openly he sought an attorney with more securities experience in this area. See Fundling dep. at p. 209, 1. 22 to p. 212, 1. 16 (Def.'s App. at pp. 183-84). Moreover, Schlenker utilized much of his expertise and experience shortly after being hired. See, e.g., Moore dec1. at ~ 38 (Def.'s App. at p. 112) ("[Moore] assigned Schlenker a highly technical patent infringement lawsuit with cross claims and third party claims contesting the patent ... With little or no supervision, Schlenker took the lead and ultimately negotiated a very favorable result for TXI.").
Additionally, Schlenker brought with him approximately five years experience as general counsel of a publicly traded company. See Schlenker Resume. Again, the Court finds great significance in this experience as Moore states specifically he "sought an attorney who had General Counsel experience ...." Moore dec1. at ~ 24 (Def.'s App. at p. 108).
Finally, as Plaintiff concedes that Schlenker encompassed experience and skill which Fundling did not, there is no need to examine the ability Fundling possessed. The affirmative defenses to the APA do not mandate a "substantiality" requirement. As the Supreme Court exhorted: "Under the [EPA], the courts and administrative agencies are not permitted to substitute their judgment for the judgment of the employer ... who [has] established and applied a bona fide job rating system, so long as it does not discriminate on the basis of sex." County of Washington v. Gunther, 452 U.S. 161 (1981) (internal citations omitted); see also Hodgson v.
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Golden Isles Convalescent Homes, Inc., 468 F.2d 1256, 1258 (1972) ("Congress intended to
permit employers wide discretion in evaluating work for pay purposes."). Nevertheless, even if
the Court were to incorporate "substantiality" into the affirmative defense, sufficient evidence
exists proving experience and skill Schlenker possessed and utilized was more than extraneous
or random. Hence, Plaintiffs cannot succeed by arguing that Schlenker's experience and skill
were utilized in an insignificant manner.
In sum, the Court cannot ignore the immense experience Schlenker brought to the table,
nor can it ignore the fact that Schlenker utilized much of his experience at TXI. Furthermore,
the Court recognizes fully that Schlenker possessed much expertise and experience which
Fundling did not. See, e.g., Fundling dep. at p. 62,1. 19 to p. 63, 1. 1; p. 69, 11. 16-23; p. 82,11.4-
10; p. 82, 1. 25 to p. 83,1. 7 (Def.'s App. at pp. 153; 154; 158; 158). As experience qualifies as a
bona fide exemption to the EPA, the Court finds that Defendant establishes its affirmative
defense. ll
2. Complex Legal Work
Added to Schlenker's expertise and experience is Fundling's admissions that Schlenker
handled the more complex work at TXI since his arrival. See Fundling dep. at p. 172,11.7-20
11 Plaintiff complains vociferously about Defendant's use of the term "market forces" when referring to the pay differentials between Schlenker and Fundling. See PI. 's Resp. at p. 31 ("[T]he Fifth Circuit has routinely disallowed such arguments that wage differentials could be justified because the salary paid to a newly hired employee was driven by market forces that must be expended to attract qualified individuals.") (citing Siler-Khodr v. Univ. ofTex. Health Sci. Ctr. San Antonoi, 261 F.3d 542,549 (5th Cir. 2001)). Plaintiff, however, takes liberties with its assertions. A thorough review of the caselaw reveals exactly what type of "market forces" behavior is prohibited. Compare Brock v. Georgia Southwestern College, 765 F.2d 1026, 1037 (11th Cir. 1985) ("[T]he argument that women qua women may be paid less is exactly the kind of evil that the [EPA] was designed to eliminate, and has been rejected.") (citing Brennan v. City Stores, Inc., 479 F.2d 235, 241 n. 12 (5th Cir. 1973) with Horner v. Mary Inst., 613 F.2d 706, 714 (8th Cir. 1980) ("[A]n employer may consider the market place value of the skills of a particular individual when determining his or her salary.") (emphasis added). In this case, Defendant's use of the term "market forces" fully comports with allowable behavior. 3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 19

(Def.'s App. at p. 174). This admission is quite logical because of Schlenker's skills and experience which Fundling did not possess. The actual performance of Schlenker's added skill level lends explains and justifies the pay differentials between Schlenker and Fundling. Again, the Court need not make quantitative determinations with respect to how much complex legal work Schlenker performed. There is no sliding scale to calculate pay disparities according to the level of complex work performed, nor should one exist. Furthermore, the Court need not concern itself with deciding equitable pay disparities; the law does not require such an analysis. It is enough to note that Schlenker handled the more complex legal work at TXI since the beginning of his employment. Such a determination qualifies as a valid affirmative defense.
3. Changing Legal Status Finally, the Court recognizes TXI's dynamic legal situation as a valid justification for wage disparities. As stated earlier, "[i]n 1998, TXI dramatically increased its operations with the collateral effect of significantly increasing the legal department's workload." Moore dec1. at 'J 20 (Def.'s App. at p. 107). TXI acquired several operations that triggered finance operations involving a private placement and a public offering of stock. !d. Additionally, the acquisitions "all occurred within a short time period after TXI merged with Chaparral Steel via a public tender for its outstanding stock." Id. These substantial business dealings caused an influx of securities and financing work to TXI's legal department. Notably, these dealings brought with them complexities and situations novel to Fundling's skills and experience. Compare Moore dec1. at 'J'J22-23 (Def.'s App. at pp. 107-108) with Fundling dep. at p. 56, 11. 9-15; p. 58,11.2022; p. 76, 1. 7 to p. 77, 1. 19; p. 82,11.19-24; p. 115,11.6-17 (Def.'s App. at p. 151; 152; 156;
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158; 161). Hence, sufficient reason existed for TXI to seek an attorney with those skills and expertise. Moreover, the decision to offer the incoming attorney a higher wage than Fundling is not subject to judicial alteration as the reason offered was for a valid business judgment other than sex. Accordingly, the Court finds TXI's dynamic legal situation an acceptable affirmative defense.
4. Preset Determinations In addition to these determinants, solid evidence exists that Moore established the grade 14 classification and $100,000 per annum salary before Schlenker applied for TXI employment. 12 See PI.'s App. at p. 31 ("Legal Department FY 2000 Salary Plan"). The increased grade and salary infer an attorney with more skill and experience than Fundling possessed. However, even if viewed as circumstantial, Moore's declaration, coupled with Schlenker's experience and Fundling's admissions solidify the notion that the grade and salary were more than red herrings. Therefore, the Court finds substantial evidence and reason to accept Defendant's affirmative defenses. In sum, TXI proffers sufficient justification for its wage allocation under the EPA. IV. Title VII Title VII provides that "it shall be an unlawful employment practice for an employer--(1) to fail or refuse to hire or to discharge any individual ... because of such
12 While Plaintiff highlights that TXI in fact hired Schlenker as a grade 13 employee, see PI. 's Resp. at p. 12 (citing Durbin dep. at p. 69,11. 19-21 (PI.'s App. at p. 110), it does not dispute Defendant's evidence of Moore's intention to hire Schlenker as a grade 14 employee. As TXI created the Legal Department FY 2000 Salary Plan before it made its hiring decision, it is Defendant's evidence that deserves the proper spotlight. 3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 21

individual's race, color, religion, sex, or national origin." 42 U.S.c. § 2000e-2(a)(1). In a sex discrimination case, the plaintiff must establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The prima facie case, if established, raises a presumption of discrimination. The defendant must rebut this presumption by articulating a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). "Moreover, Title VII incorporates that portion of the [EPA] which permits dissimilar wages between men and women pursuant to (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production, or (4) a differential based on any other factor other than sex." Def.' s Br. at pp. 10-11 (citing County of Washington, 452 U.S. 161). If the defendant satisfies this burden, the presumption disappears, and the plaintiff must prove that the proffered reasons are a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) [hereinafter Hicks]. The plaintiff retains the ultimate burden of persuasion throughout the case. Burdine, 450 U.S. at 256.
In cases not involving discharge, a plaintiff must prove the following in order to establish a prima facie case of discrimination: (1) she belonged to a protected group; (2) she was qualified for her position; (3) she suffered an adverse employment action; and (4) similarly-situated employees outside her protected class were treated more favorably under circumstances nearly identical to hers. See Martin v. Kroger Co., 65 F. Supp.2d 516,543 (S.D. Tex. 1999); see also Nieto v. L&H Packing Co., 108 F.3d 621,623 (5th Cir. 1997); Waggoner v. Garland, 987 F.2d 1160, 1163-64 (5th Cir. 1993); Thornbrough, 760 F.2d at 639; Little v. Republic Refining Co.,
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Ltd., 924 F.2d 93,97 (5th Cir. 1991)).13 As Defendant concedes the first three prongs, the Court need only address whether Schlenker qualifies as a similarly situated employee with a circumstance nearly identical to Fundling.
Analogous to Plaintiffs APA claim, Defendant argues Schlenker cannot be considered as a similarly situated employee as "Schlenker was hired under different circumstances and with experiences and skill sets that Fundling did not have and that TXI valued." Def. 's Br. at p. 12. In response, Plaintiff repeats its previous arguments asserted in Plaintiff s APA assertions. See id. ("[Defendant's] claims of gender discrimination stems solely from Fundling's subjective belief that it was discriminatory to pay Schlenker more than she was paid. However, and as discussed more fully above, the circumstances between FundIing and Schlenker are not nearly identical ...."). As such, the Court need not entertain a repeat analysis of this issue. Rather, the Court reiterates that Schlenker's and Fundling's jobs were not substantially equal, and that under Title VII, Schlenker and Fundling were not similarly situated employees. Therefore, FundIing's Title VII claim also fails.
a. Exemptions However, even assuming arguendo that Schlenker and Fundling were similarly situated employees, Defendant offers a legitimate, nondiscriminatory reason for its actions. Specifically, that Schlenker's experience "necessarily demanded greater compensation." Def. 's Br. at p. 13. To wit, Defendant allocated a larger salary to Schlenker because of his skill set and general counsel background. In listing and arguing such reasons, Defendant essentially reiterates its
13 Although Waggoner, Thornbrough and Little address discrimination from the viewpoint of the Age Discrimination in Employment Act ("ADEA"), courts apply a similar analysis when scrutinizing Title VII situations. See Thornbrough, 760 F.2d at 639 nA. 3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 23

previous arguments from Plaintiffs APA claim. The Court finds that such reasons satisfy the Defendant's burden of offering acceptable rationales for its actions. Therefore, Plaintiff must prove that the proffered reasons are a pretext for discrimination. See Hicks, 509 U.S. at 507.
To establish pretext, Plaintiff cannot rely upon sUbjective belief that TXI discriminated against Fundling. See Price v. Marathon Cheese Corp., 119 F.3d 330,337 (5th Cir. 1997); Ray v. Tandem, 63 F.3d 429,434 (5th Cir. 1995). It must provide substantial evidence from which a reasonable inference can be draw that the Defendant's proffered reasons are false; a mere shadow of doubt is insufficient. EEOC v. Lousiana Office a/Community Services, 47 F.3d 1438, 1444 (5th Cir. 1995). In this case, there is no evidence indicating that Defendant's proffered reasons are false.
Plaintiff attempts to prove pretext by first asserting that Moore failed Fundling by not providing learning opportunities so that Fundling could gain the expertise and experience that Schlenker possessed. Such a response confuses the issue. Title VII does not guarantee plaintiffs that they must be given employment opportunities. Rather Title VII prohibits the employer from considering certain criteria, in this case sex, when making that employment decision. The issue is discrimination, not equitable advancement. 14
In short, Plaintiff fails to produce substantial evidence from which this Court can infer that the Defendant's proffered reasons for the pay disparity were actually pretext for sex
14 Plaintiff alleges further that additional evidence proves Defendant's discriminatory animus toward Fundling. However, the Court finds otherwise. The comment that Moore threatened to make Schlenker "Fundling's supervisor if she persisted with her unequal pay claim," PI. 's Resp. at p. 36, is sufficiently explained when put into context. See Moore dep. at p. 148,1. 8 to p. 149,1. 5 (Def. 's App. at p. 13). Additionally, the Court addressed previously any argument regarding Fundling's contributions to the legal department or Schlenker's expertise and need not repeat such analysis. 3:03-CV-1868-P Order GRANTING Defendant's Motion for Summary Judgment Page 24

discrimination. In sum, Defendant's Motion for Summary Judgment with respect to Plaintiffs
Title vn claims must be GRANTED.
v. Conclusion
For the foregoing reasons, Defendant's Motion for Summary Judgment is GRANTED.

It is so ordered.

~ay Signed this 13

of January 2005.

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CLOSED, JURY, RAMIREZ
U.S. District Court Northern District of Texas (Dallas) CIVIL DOCKET FOR CASE #: 3:03-cv-01868

Equal Employment Opportunity Commission v. TXI Operations, Date Filed: 08/19/2003

LP

Date Terminated: 01/13/2005

Assigned to: Judge Jorge A Solis

Jury Demand: Plaintiff

Cause: 28:451 Employment Discrimination

Nature of Suit: 442 Civil Rights: Jobs

Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Ronetta J Francis Equal Employment Opportunity Commission Dallas District Office 207 S Houston 3rd Floor Dallas, TX 75202 214/253-2746 Fax: 214/253-2749 FAX Email: Ronetta.Francis@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Keri L Mallon Equal Employment Opportunity Commission Dallas District Office 207 S Houston 3rd Floor Dallas, TX 75202 214/253-2743 Fax: 214/253-2749 FAX Email: Keri.Mallon@eeoc.gov ATTORNEY TO BE NOTICED

Robert A Canino, Jr Equal Employment Opportunity Commission Dallas District Office 207 S Houston 3rd Floor Dallas, TX 75202 214/253-2750 Email: robert.canino@eeoc.gov

Suzanne M Anderson Equal Employment Opportunity

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V. Defendant TXI Operations, LP

Commission Dallas District Office 207 S Houston 3rd Floor Dallas, TX 75202 214/253-2740 Fax: 214/253-2749 FAX Email: suzanne.anderson@eeoc.gov
represented by Ronald E Manthey Baker & McKenzie - Dallas 2001 Ross Ave Suite 2300 Dallas, TX 75201 214/978-3030 Fax: 214/978-3099 FAX Email: ron.manthey@bakernet.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ellen L Perlioni Baker & McKenzie - Dallas 2001 Ross Ave Suite 2300 Dallas, TX 75201 214/978-3055 Fax: 214/978-3099 FAX Email: ellen.perlioni@bakernet.com ATTORNEY TO BE NOTICED

Date Filed 08/19/2003 08/19/2003 08/19/2003 08/19/2003 08/19/2003

#

Docket Text

1 COMPLAINT against TXI Operations, LP , filed by Equal Employment Opportunity Commission.(lmr, ) (Entered: 08/21/2003)
DEMAND for Trial by Jury by Equal Employment Opportunity Commission.(filed within complaint) (lmr, ) (Entered: 08/21/2003)
2 CERTIFICATE OF INTERESTED PERSONS by Equal Employment Opportunity Commission. (lmr, ) (Entered: 08/21/2003)
3 Summons Issued as to TXI Operations, LP. (lmr, ) (Entered: 08/21/2003)
***Magistrate Judge Irma Ramirez chosen by random selection to handle matters that may be referred in this case. (lmr, ) (Entered: 08/21/2003)

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09/16/2003 09/16/2003 09/17/2003 10/20/2003 11/05/2003
12/03/2003 04/19/2004 06/10/2004 06/10/2004 06/14/2004
06/15/2004
06/29/2004 06/29/2004

4 ORIGINAL ANSWER to Complaint by TXI Operations, LP.(lmr, ) (Entered: 09/17/2003)
5 CERTIFICATE OF INTERESTED PERSONS by TXI Operations, LP. (lmr, ) (Entered: 09/17/2003)
6 Order Requiring Attorney Conference and Proposal for Contents of Scheduling and Discovery Order. Proposed Scheduling Order due by 10/20/2003.(see order for specifics) (Signed by Judge Jorge A Solis on 09/17/03) (lmr, ) (Entered: 09/18/2003)
7 JOINT STATUS REPORT by Equal Employment Opportunity Commission, TXI Operations, LP. (lmr, ) (Entered: 10/22/2003)
8 SCHEDULING ORDER: Amended Pleadings due by 2/10/2004. Discovery due by 8/6/2004. Pretrial Conference set for 1/7/2005 09:30 AM before Judge Jorge A Solis. Joinder of Parties due by 1/9/2004. Jury Trial set for 1/17/2005 09:00 AM before Judge Jorge A Solis. Proposed Pretrial Order due by 12/24/2004. Pretrial Materials due by 1/10/2005.(see order for specifics) (Signed by Judge Jorge A Solis on 11/05/03) (lmr, ) (Entered: 11/06/2003)
9 AGREED PROTECTIVE ORDER (Signed by Judge Jorge A Solis on 12/3/03) (aat, ) (Entered: 12/04/2003)
10 NOTICE of Change of Address..Re:attorney, Ronald E. Manthey & Ellen Perlioni/2300 Trammell Crow Center/2001 Ross Ave/Dallas, TX 75201. (lmr, ) (Entered: 04/20/2004)
11 MOTION to Compel Discovery Responses, Production of Documents and Depositions, and Alternative Motion to Deem Evidence Inadmissible and brief in support by TXI Operations, LP. (lmr, ) (Entered: 06/15/2004)
12 Appendix to 11 MOTION to Compel Discovery Responses, Production of Documents and Depositions, and Alternative Motion to Deem Evidence Inadmissible filed by TXI Operations, LP. (lmr, ) (Entered: 06/15/2004)
13 ORDER OF REFERENCE..Referring 11 Motion to Compel Discovery Responses, Production of Documents and Depositions, and Alternative Motion to Deem Evidence Inadmissible filed by TXI Operations, LP to Judge Irma Ramirez for hearing, if necessary and determianation. (Signed by Judge Jorge A Solis on 06/14/04) (lmr, ) (Entered: 06/16/2004)
14 ORDER..Pursuant to the District Court's Order of Reference, filed June 14, 2004 Defendant TXI Operations Motion to Compel Discovery Responses, Production of Documents and Depositions, and Alternative Motion to Deem Evidence Inadmissible., Set Deadlines as to 11 Motion to Compel. Response due by 6/29/2004.(see order for specifics) (Signed by Judge Irma C Ramirez on 06/15/04) (lmr, ) (Entered: 06/17/2004)
15 RESPONSE in Opposition to Defendant's 11 MOTION to Compel filed by Equal Employment Opportunity Commission. (lmr, ) (Entered: 07/01/2004)
16 Brief in Support of its 15 RESPONSE in Opposition to Defendant's 11 MOTION to Compel filed by Equal Employment Opportunity Commission. (lmr, ) (Entered: 07/01/2004)

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06/29/2004 07/02/2004 07/06/2004
07/21/2004 07/22/2004
08/19/2004 09/07/2004 09/07/2004 09/15/2004 09/15/2004 10/13/2004 10/13/2004

17 Appendix to Plaintiff's 16 Brief in Support of its 15 RESPONSE in Opposition to Defendant's 11 MOTION to Compel filed by Equal Employment Opportunity Commission. (lmr, ) (Entered: 07/01/2004)
19 Minute Entry for proceedings held before Judge Irma C Ramirez : Motion to Compel Hearing held on 07/02/04. (Court Reporter Electronic#139-140ICR.) (lmr, ) (Entered: 07/08/2004)
18 ORDER granting in part and denying in part 11 Motion Contempt of Deposition Subpoena for hearing, if necessary and determination. It is Ordered that's Defendant's motion to compel the deposition of former EEOC Investigator George R. Garrett is Granted. Defendant's motion to compel the deposition of EEOC Acting District Director Janet V. Elizondo is Denied. All relief not expressly awarded herein is hereby denied.(see order for specifics) (Signed by Judge Irma C Ramirez on 07/06/04) (lmr, ) (Entered: 07/07/2004)
20 Minute Entry for proceedings held before Judge Irma C Ramirez : Telephone Conference held regarding Motion to Compel. (lmr, ) (Entered: 07/22/2004)
21 ORDER: Pursuant to the District Court's Order of Reference, file June 14, 2004, Defendant's Motion to Compel Discovery Responses, Production of Documents and Depositions and Alternative Motion to Deem Evidence Inadmissible filed June 10, 2004 has been referred to this Court for hearing, if necessary and determination. The Court determines that the Defendant's Motion to Compel production of Fundling's notes should be Granted. It is hereby Ordered that Plaintiff shall provide a copy of Fundling's notes to Defendant's counsel within five (5) business days of this Order.(see order for specifics) (Signed by Judge Jorge A Solis on 07/22/04) (lmr, ) (Entered: 07/22/2004)
22 JOINT STATUS REPORT by Equal Employment Opportunity Commission, TXI Operations, LP. (lmr, ) (Entered: 08/20/2004)
23 MOTION for Summary Judgment by TXI Operations, LP. (lmr, ) (Entered: 09/08/2004)
24 Brief in Support of its 23 MOTION for Summary Judgment filed by TXI Operations, LP. (lmr, ) (Entered: 09/08/2004)
26 UNOPPOSED MOTION for Extension of Time to File Response as to 23 MOTION for Summary Judgment by Equal Employment Opportunity Commission. (lmr, ) (Entered: 09/15/2004)
27 ORDER granting 26 UNOPPOSED MOTION for Extension of Time to File Response as to 23 MOTION for Summary Judgment. Defendant's Reply due by 10/25/2004. Plaintiff's Response due by 10/13/2004.(see order for specifics) (Signed by Judge Jorge A Solis on 09/15/04) (lmr, ) (Entered: 09/16/2004)
28 RESPONSE in Opposition to Defendant's 23 MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. (lmr, ) (Entered: 10/14/2004)
29 Brief in Support ot its 28 RESPONSE in Opposition to Defendant's 23 MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. (lmr, ) (Entered: 10/14/2004)

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10/13/2004 10/27/2004 12/22/2004 01/03/2005 01/05/2005 01/05/2005 01/05/2005 01/05/2005
01/05/2005 01/05/2005 01/05/2005 01/06/2005 01/07/2005
01/13/2005
01/13/2005
01/27/2005 01/27/2005 02/03/2005

30 Appendix filed by Equal Employment Opportunity Commission. (lmr, ) (Entered: 10/14/2004)
31 REPLY supporting its 23 MOTION for Summary Judgment filed by TXI Operations, LP. (lmr, ) (Entered: 10/28/2004)
32 TRIAL BRIEF by Equal Employment Opportunity Commission. (lmr, ) (Entered: 12/27/2004)
33 JOINT PRETRIAL ORDER..(see order for specifics) (Signed by Judge Jorge A Solis on 01/03/05) (lmr, ) (Entered: 01/04/2005)
34 Witness List by Equal Employment Opportunity Commission. (lmr, ) (Entered: 01/06/2005)
35 Exhibit List by Equal Employment Opportunity Commission. (lmr, ) (Entered: 01/06/2005)
36 Deposition Designations by Equal Employment Opportunity Commission. (lmr, ) (Entered: 01/06/2005)
37 TRIAL BRIEF Regarding the Statutes of Limitations and Recover Periods Applicable to Plaintiff's Claim by TXI Operations, LP. (lmr, ) (Entered: 01/06/2005)
38 Deposition Designations by TXI Operations, LP. (lmr, ) (Entered: 01/06/2005)
39 Witness List by TXI Operations, LP. (lmr, ) (Entered: 01/06/2005)
40 Exhibit List by TXI Operations, LP. (lmr, ) (Entered: 01/06/2005)
41 NOTICE of Attorney Appearance by Keri L Mallon on behalf of Equal Employment Opportunity Commission. (lmr, ) (Entered: 01/07/2005)
42 Minute Entry for proceedings held before Judge Jorge A Solis : Pretrial Conference held on 01/07/05. (Court Reporter Shawn McRoberts.) (lmr, ) (Entered: 01/11/2005)
43 Memorandum Opinion and Order Granting 23 Motion for Summary Judgment filed by TXI Operations, LP,. Plaintiff fails to produce substantial evidence from which this Court can infer that the Defendant's proffered reasons for the pay disparity were actually pretext for sex discrimination.(see order for specifics) (Signed by Judge Jorge A Solis on 01/13/05) (lmr, ) (Entered: 01/14/2005)
44 FINAL JUDGMENT..Pursuant to the Court's Memorandum Opinion and Order filed on January 13, 2005, the Court issues judgment as follows: Plaintiff takes nothing from its claim. Costs are assessed against Plaintiff. (Signed by Judge Jorge A Solis on 01/13/05) (lmr, ) (Entered: 01/14/2005)
45 BILL OF COSTS by TXI Operations, LP. (lmr, ) (Entered: 01/28/2005)
Costs Taxed in amount of $8293.38 against Equal Employment Opportunity Commission. (lmr, ) (Entered: 01/28/2005)
46 Objections to Defendant's 45 Bill of Costs filed by Equal Employment Opportunity Commission. (lmr, ) (Entered: 02/04/2005)

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07/05/2005 07/06/2005

47 RESPONSE to Plaintiff's 46 Objections to Defendant's 45 Bill of Costs filed by TXI Operations, LP. (lmr, ) (Entered: 02/25/2005)
48 REPLY to Defendant's 47 RESPONSE to Plaintiff's 46 Objections to Defendant's 45 Bill of Costs filed by Equal Employment Opportunity Commission. (lmr, ) (Entered: 03/07/2005)
49 ORDER: Now before the Court are the following: Defendant's Bill of Costs; Plaintiff's Objections; Defendant's Response to Plaintiff's Objections and Plaintiff's Reply to Defendant's Response. Accordingly, after reviewing the Defendant's Bill of Costs, the parties' briefing and the applicable law, the Court hereby awards Defendant: $3,0577.78 - Deposition transcripts cots. $1,091.92 Exemplification and copy costs for a total of $4,149.70.(see order for specifics) (Signed by Judge Jorge A Solis on 06/07/05) (lmr, ) (Entered: 06/08/2005)
50 BILL OF COSTS by TXI Operations, LP. (lmr, ) (Entered: 07/07/2005)
Costs Taxed in amount of $ 4149.70 against Equal Employment Opportunity Commission. (lmr, ) (Entered: 07/07/2005)

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