FII E ED-7. - .0 FOR OiH:f;f')ING

04 AP~JHMNNlJ:!W STATES DISTRICT COURT

FOR THE N'ditrHERN DISTRICT OF ILLINOIS

US DINRERi\ EASTERN DIVISION

. .

ICT COURT

U.S. EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION, )

)

Plaintiff,

)

)

v.

)

)

CONTINENTAL AIRLINES, INC., .' )

)

'. JURY TRIAL DEMANDED

Defendant.

MP,GISTRtJE JUO(;E I(EY~;

This is an action under Title VU of the Civil Right~.~ct of 1964, as amended, 42 U.S.C.

,

"'.'.'

§ ZOOOe et seq. ("Title VII"), and Title I of the Civil Rights Act of 1991,42 U.S.C. § 1981a, to

conect unlawful employment practices on the basis ofnlCe and sex and to provide appropriate

relief to Alaini Mustafaa ("Mustafaa" or "Charging Party"), who was adversely affected by such

practices. The U.S. Equal Employment Opportunity Commission ("EEOC" or "Commission")

alleges that Defendant Continental Airlines, Inc. ("Defendant") discriminated against Charging

Party on the basis of her race, Black and sex, female, in that she waS harassed, not supported by

her supervisors, disciplined and demoted, in violation of Title VII.

JURISDICTION AND VENUE

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

and 1345. This action is authorized and instituted pursuant to Sections 706(f)(1) and (3) ofTitle

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

1991,42 U.S.C. § 1981a.

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

jurisdiction of the United States District COUlt in the Northern District of Illinois, Eastern

Division.

PARTIE§!

3. Plaintiff U.s. Equal Employment Opportunity Commission (the "Commission"), is

an agenby of the United States of America charged with the administration, interpretation and

enforcement of Title VIIan,d is expressly authorized to bring this action by Sections 706(f)(1)

and (3) ofTitl\) VII, 42 U.S.C. § 2000e-5(f)(1) and (3).

4. At all relevant times Defendant Continental Airlines, Inc. ("Defendant") has been

and is now an Illinois corporation doing business in the State of Illinois and has continuously had

and does now have at least fifteen (15) employees.

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

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

U.S.C. §§ 2000e-5 (b), (g) and (h).

STATEMENT OF CLAIMS

6. More than thirty (30) days prior to the institution of this lawsuit, Mustafaa filed a

charge with the Commission alleging violations of Title VII by Defendant. All conditions

precedent to the institution of this lawsuit have been fulfilled.

7. Since.at least November 2000, Defendant has engaged in unlawful employment

practices

at

its

O'Hare ,

Airp. ort

facility

in

violation

of Section

703(a)

ofTitle

VII,

42

U.S.C.

§

2000e-2(a). These practices include, but are not limited to demoting Mustafaa from a Lead

Customer Service Agent position back to her previous position of (ordinary) Customer Service

Agent because of her race and sex; and subjecting her to an unlawfully hostile and abusive working environment on tht) basis of her race and sex.
8. The effect of the practices <;omplained oOn paragraph 7 has been to deprive Mustafaa of equal employment opportunities and otherwise adversely affect her status as an employee because of her race, Black and sex, fern alt).
9. The unlawful employment practices complained of in paragraph 7 above were intentional.
11. The lInlawful employment practices complained of in paragraphs 7 and 8 above were done with malice or with reckless indifference to the federally protected rights ofMustafaa.
PRAYER FOR RELIEF WHEREFORE, the Commission respectfully prays that this Court:
A. Grant a permanent injunction enjoining Defendant, its officers, management p\lrsonn~J, ~mployees, agents, Sl.\CQe~sors, assigns and all persons in active concert or
participation with it, from engaging in any employment practice which discriminates on the basis race Of sex.
B. Order Defendant to institute \ll1d carry out policies, practices and programs which provide equal employment opportunities for its employees regardless ofrace and sex and which eradicate the effects of its past and present unlawful employment practices.
C. Order Defendant to make whole Mustafaa by providing appropriate back pay with prejudgment interest, in amounts to be determined at trial, and other affimlativf;l relief n~cessary to eradicate the dfects of its unlawful employment practices.
D. Qrder Defendant to mak<:l whole Mustafaa by providing compensati9n for pecuniary losses resulting from the unlawful employment practices des.cribed in paragraph 7, above, in

amounts to be proved at trial. E. Order Defendant to make whole Mustafaa by providing compensation for non·
pecuniary losses resulting from the unlawful practices complained of in paragraph 7 above, including pain, suffering, emotional distress, inconv~nience and mental anguish, in amounts to be proved at trial.
F. Order Defendant to pay Mustafaa punitive damages for its malicious and reckless conduct, as described in paragraph 7, in amounts to be proved at trial.
G. Grant such further rdief as the Court deems necessary and proper. H. Grant the Commission its costs in this action.
JURY TRIAL m;MANDED
The Commission requests a jury trial on all questions of fact raised by the Complaint.

Respectfully submitted,

ERIC DREIBAND General Counsel

GWENJ;:lOLYN YOUNG REAMS Associate G~neral Counsel

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

18

t, . W.

0, . . 20507

U. S. Equal Employment Opportunity Commission
Chicago Di~trict Office 500 West Madison Street Suite 2800 Chicago, Illinois 60661
(312) 353·7259

Civil Cover Sheet

Page 1 of2

o6N,9f,JJI ED UNITED STATES DISTRICT COURT

FILED "DR

ERN DISTRICT OF ILLINOIS

I 04 APR~9 11111/: <€ivil Cover Sheet

~rto U.S'D1Si../·)-iii(
This automated JS-44 confot{fr[

the manual JS·44 approved by the Judicial Conference of the United States in

September \974. The data is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. The

information contained herein neither replaces nor supplements the filing and service of pleadings or other papers as required

by law. This form is authorized for use only in the Northern District of Illinois.

Plaintiff(s): U.S. EQUAL EMPLOYMENT Defendant(s):CONTINENTAL AIRLINES,

OPPORTUNITY COMMISSION

INC.,

County of Residence:

County of Residence:

Plaintiffs Atty:

June Wallace Calhoun

Defendant's Atty:

Equal Employment Opportunity

Commission

500 W. Madison, Suite 2800

Chicago, IL 60661

312-353-7259

Margaret Coullard Phillips Continental Airlines, Inc. 41stFloorHQSLG,1600 Smith Street, Houston, TX 77002 (713)324-5000

II. Basis of Jurisdiction:

1. U.S. Gov't Plaintiff

1ll._Citi~J1shipQfPrincipal
Parties (Diversity Cases Only) Plaintiff:· NIA
Defendant:- NIA

IV. Origin:

1. Original Proceeding

04C 3055
JUDGE ASPEN
Mf\GISiRt\IE JUDGE KE'lS

V. Nature of Suit:

442 Employment

VLCause of Action:

Title VII of the Civil Rights Act of 1964 and Title I of the Civil

Rights Act of 1991 to correct the unlawful employment practices on

the basis of race and sex. VII. Requested in Complaint

VII. Reguested in Complaint

I~~~., ',_;.

Class Action:

Dollar Demand:

Jury Demand:Y es

VIII. This case IS NOT a refiling of a previously dismissed case.

http://www.ilnd.uscourts.govIPUBLIClForms/autojs44.cfm

4/2912004

('\

(\

Ul\ __ ED STATES DISTRICT COL.f

NORTHE~ DISTRICT OF ILLINOIS

In the Matter of

O~

'f;? i' fi
A '"Ol(q,;>

.s: r U.S.

Equal

Employment

Opportunity

_/,0"
Covmi~sioIn'j~'i'2.9

{ih"C.(~
4, "('111(,

Plaintiff,

0/ C( 'h WII ,..

Stf(fr/( <'6'

Y.

Cl"

COu, ,

Continental Airlines, Inc"

'I?(

Defendant.

~'A) t~
Case.~V
JUDGE ASPEN

APPEARANCES ARE HEREBY FILED BY THE UNDERSIGNED AS ATTORNEY(S) FOR;

Plaintiff, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION MAGISTRATE JlJDGF Kr:y~

,

(A)

/ --\ L K00" 1. ~11 0JLn. Ac .,-

""June ~allace Calhoun '-

lilRM E~l Employment Opportunity Commission

" (B)

11 trMAA - 1/t.o I •.;t.1Ij

-"

L "'( ,!P

...-'.ll\.

(

~"h~ './"/,,

"'R.?Equal Employment Opportunity Commission

STREET ADDRESS 500 W. Madison St., Suite 2800 CITYISTAT8ZIP Chicago, 1L 60661

STRBET ADDRESS

UU W. Mor1ionn St. Suite 2800

C,TYISTAWZIP Chicago, IL 60661

TELEPIIONLNUMBLR312_353_7259

TELEPHoNENUMBLR312_886·9124

IDENTIFICATION NUMnER (SEE ITEM , ON REVERSE)USDC No. 06202058

IDENTIFICATION NUMBER (silE ITEM 'ONREVER,E) ARDC No. 06210804

MEMBER or TR.IAL BAR'!

YliS

X

NO

MEMBER OF TRIAL BAR'/

YES X NO

TRIAL ADORNEY!

YES
L

X

NO

TRIAL ATIORNEY?

.L. ,.o:;c,""

I

Dl!SIGNATI3D AS LQCAL COUNSEL.'!

~ .X. 1 .. J-j f _ii,' L ~ ~

-"~

,iii kl '.,;;11

I ~l/it~.Lzl/I

,k'

,. ,- "~ /Jolln

• TT

L.
'"

"FIRM Equal :mnloyment Opportunity ~

.,,". """".
,;oo;')[('~I~(\ • p.

NAME
",., "
F.tr;

\ STREET
~ I;".

~ )Uu W. Monio(\n St. Suite 2800 Chicago, 1L 60661

STREET ADDRESS
APR? • "hn.
CH

YES X NO
YUS 0 NO 0
(D)

.
TELEPHONE NUMBER312_353_8551 (I. '.
Rnr No. 0'1187589 lDIlNTIPICATlON NUMUER(SUTllTliM ~ ON R'OVURSE) A

Tf;LEPHONE NUMBER

.. ,
"C;t

NVMBER($BU

',,"VBRSI»

MEMBER OF TRIAL BAR? TRIAL ATIORNEY? DESIGNATUO AS LOCAL COUNSElL'1

X YES NO 0 YES X NO 0 0 YES NO 0

MEMBIlR OF TRIAL BAR? TRIAL ATIORNEY,/ DESIGNATED AS LOCAL COUNSEL?

YES 0 NO 0

YES D) ~ep~

o( YES

NOY

! ~

 
 Case 1:04-cv-03055 Document 105-2 Filed 12/21/2006 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
CONTINENTAL AIRLINES, INC. Defendant.

)

)

)

)

Civil Action No. 04 C 3055

)

)

Hon. Judge Aspen

)

Magistrate Judge Keys

)

)

)

}

CONSENT DECREE

Introduction

I.

Plaintiff U.S. Equal Employment Opportunity Commission (the "EEOC" or

"Commission"), filed this action alleging that Continental Airlines, Inc. ("Defendant"),

discriminated against Alaini L. Mustafaa ("Mustafaa") on the basis of her race, Black and sex,

female, in that she was harassed, not supported by her supervisors, disciplined and demoted, in

violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e el seq.

("Title VII"), and Title I ofthe Civil Rights Act ofl991, 42 U.S.C. § 1981a. The Court granted

Defendant's motion for summary judgment with respect to EEOC's claims that Defendant

discriminated against Mustafaa on the basis ofrace or sex with respect to lack of support of her

supervisors, discipline, or demotion. The Court also granted Defendant's motion for summary

judgment with respect to EEOC's claim that Mustafaa was harassed on the basis of her race. The

Court denied Defendant's motion for summary judgment on EEOC's claim that Mustafaa was

harassed on the basis of her sex.

Case 1:04-cv-03055 Docu ment 105-2 Filed 12/21/2006 Page 2 of 9
2. In the interest of resolving this matter and as a result of comprehensive settlement negotiations, the parties have agreed that this action should be finally resolved by entry of this Consent Decree. This Consent Decree fully and finally resolves any and all issues and claims arising out of the Complaint filed by the EEOC in this action regarding the Terminal Operations Department (or its equivalent) at Defendant's Chicago O'Hare facility.
FINDINGS 3. Having carefully examined the t=s and provisions of this Consent Decree, and based on the pleadings, records and stipulations of the parties, the Court finds the following:
a. This Court has jurisdiction of the subject matter of this action and of the parties.
b. The t=s of this Consent Decree are adequate, fair, reasonable, equitable and just. The rights of the parties and the public interest are adequately protected by this Consent Decree.
c. This Consent Decree conforms to the Federal Rules of Civil Procedure and Title VII and is not in derogation of the rights or privileges of any person. The entry of this Consent Decree will further the objectives of Title VII and will be in the best interests of the parties and the pUblic.
THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED THAT: NON-ADMISSIONS
4. Neither party admits to any of the claims or defenses raised or asserted by the other in this case, and this Decree shall not be construed as such an admission. This Consent Decree and compliance with this Consent Decree shall not be construed as an admission by the Defendant of any liability whatsoever, or as an admission by the Company of any violation of

Case 1:04-cv-03055 Document 105-2 Filed 12/21/2006 Page 3 of 9
the rights of Mustafaa or any person, or violation of any order, law, statute, duty, or contract whatsoever against Mustafaa or any person. Defendant specifically disclaims any liability to Mustafaa or any other person for any alleged violation of the rights of Mustafaa or any other person for any alleged violation of any alleged of any order, law, statute, duty, or contract on the part ofDefendant.
Likewise, this Consent Decree shall not be construed as an admission by the EEOC of the validity of any Defendant's claims or Defenses raised in response to the allegations of discrimination raised in this case.
INJUNCTION AGAINST EMPLOYMENT DISCRIMINATION 5. Defendant shall not discriminate against any employee in its Tenninal Operations department (or its equivalent) at its Chicago O'Hare facility on the basis of sex. 6. Defendant shall not retaliate against any person in its Tenninal Operations department (or its equivalent) at its Chicago O'Hare facility because that person has opposed any policy or practice made unlawful under Title VII, has filed a charge with EEOC, or because of the person's participation in or cooperation with, the initiation, investigation, litigation, resolution and/or administration of any case under Title VII or asserted rights under this Consent Decree.
MONETARY RELIEF 7. To resolve the claims in this litigation, Defendant has paid $40,000.
POSTING OF NOTICE 8. Within ten (10) business days after entry of this Consent Decree, Defendant shall post a same-size copy of the Notice attached as Exhibit A to this Consent Decree in a location in its Tenninal Operations department (or its equivalent) at Defendant's Chicago O'Hare facility,

Case 1:04-cv-03055 Document 105-2 Filed 12/21/2006 Page 4 of 9
where notices to employees and applicants for employment at such facility are normally posted. The Notice shall remain posted until that date which is eighteen (18) months from the date of entry of this Consent Decree. Defendant shall take all reasonable steps to ensure that its posting is not altered, defaced or covered by any other material. Defendant shall certifY to the EEOC in writing within ten (10) days after the date of such posting that the copy of the Notice has bten properly posted. Defendant shall permit a representative of the EEOC to enter its premises for purposes of verifYing compliance with this Paragraph at any time during normal business hours and, provided that the EEOC complies with all federaUy required security measures.
RECORD KEEPING 9. For a period of eighteen (18) months following entry of this Consent Decree, Defendant shall document and maintain and make available for inspection and copying by the EEOC records of each gender discrimination complaint received by Defendant (whether written or oral) received by i) Defendant's Director of Diversity, ii) the General Manager for Defendant's Chicago O'Hare facility, or iii) the supervisors responsible for Lead Customer Service Agents or Customer Service Agents (or the equivalent to those positions) at Defendant's Chicago O'Hare facility alleging that Defendant has discriminated against any Lead Customer Service Agent or Customer Service Agent (or the equivalent to those positions) in its Terminal Operations Department (or its equivalent) at Defendant's Chicago O'Hare facility. For purposes of this paragraph, "complaint" shall be defined to mean (i) a written or oral statement by a Lead Customer Service Agent or Customer Service Agent at Defendant's O'Hare facility; (ii) that he/she has stated that he/she has been subjected to discrimination because ofhislher gender. The documents required to be maintained under this Paragraph shall include the name, address, and telephone number of the complainant; details of the complaint; and details of all actions taken in

Case 1:04-cv-03055 Document 105-2 Filed 12/21/2006 Page 5 of 9
response to the complaint. 10. Defendant shall make all documents or records referred to in paragraph 8, above,
available for inspection and copying within ten (10) business days after the EEOC so requests in writing. In addition, upon five (5) business days advance written notice by the EEOC, Defendant shall make available, at a mutually convenient time and place, all persons within its employ whom the EEOC requests for purposes of verifying compliance with this Consent Decree and shall permit a representative of the EEOC to enter its premises for such purposes, provided that EEOC complies with all federally required security measures.
11. Nothing in this Consent Decree shall be construed to limit any obligation Defendant
may otherwise have to maintain records under Title vn or any other law or regulation.
REPORTING 12. Defendant shall furnish to the EEOC the following written reports semi-annually for a period of eighteen (18) months following entry of this Consent Decree. The first report shall be due six (6) months after entry of this Consent Decree. The subsequent report shall be due six months thereafter until that date which is eighteen (18) months after the date of entry of this Consent Decree. Each such report shall contain (a) the information required to be maintained pursuant to paragraph 9, above, and (b) a certification by Defendant that the Notice required to be posted pursuant to paragraph 8, above, remained posted during the entire six (6) month period preceding the report.
TRAINING 13. Defendant shall provide training on Title VII to all employees (management and non-management) in its terminal operations department at Defendant's Chicago O'Hare facility within three (3) months of the entry of this decree. This training shall include substantive

Case 1:04-cv-03055 Document 105-2 Filed 12/21/2006 Page 6 of 9
discussion on sex discrimination, including specific discussion of the company's prohibition of harassment and discrimination, the procedure for reporting complaints, and the consequences of employees found to be engaged in harassment or discrimination.
14. Defendant shall provide the EEOC with the identities and credentials of the trainer(s), a description of the training, and an advance copy of any training materials. EEOC may make objections to the training materials if these objections are made to Defendant within two (2) weeks after Defendant provides a copy of the materials to the EEOC. If the parties cannot agree on a resolution of the EEOC's objections, the parties may invoke the dispute resolution procedures contained in paragraph 15 below.
DISPUTE RESOLUTION 15. In the event that either party to this Consent Decree believes that the other party has failed to comply with any provision(s) of the Consent Decree, the complaining party shall notify the other party of the alleged non-compliance and shall afford the alleged non-complying party ten (10) business days to remedy the non-compliance or to satisfy the complaining party that the alleged non-complying party has complied. If the alleged non-complying party has not remedied the alleged non-compliance or satisfied the complaining party that it has complied within ten (10) business days, the complaining party may apply to the Court for appropriate relief.
DURATION OF DECREE AND RETENTION OF JURISDICTION 16. All provisions of this Consent Decree shall be in effect (and the Court shall retain jurisdiction of this matter to enforce this Consent Decree) for a period of eighteen (18) months immediately following entry of the Consent Decree, provided, however, that if, at the end of the eighteen (18) months period, any disputes under paragraph 15, above, remain unresolved, the term of the Consent Decree shall be automatically extended (and the Court will retain

Case 1:04-cv-03055 Document 105-2 Filed 12/21/2006 Page 7 of 9
jurisdiction of this matter to enforce the Consent Decree) until such time as all such disputes have been resolved.
MISCELLANEOUS PROVISIONS 17. Each party to this Consent Decree shall bear its own expenses, costs and attorneys' fees. 18. The terms ofthis Consent Decree are and shall be binding upon the present and future representatives, agents, directors and assigns ofDefendant. 19. The terms of this Decree are and shall be binding upon the present and future representatives, agents, directors, officers, assigns, and successors of Defendant in their capacities as representatives, agents, directors and officers of Defendant, and not in their individual capacities. 20. When this Consent Decree requires the submission by Defendant of reports, certifications, notices or other materials to the EEOC, they shall be mailed to June Wallace Calhoun, Equal Employment Opportunity Commission, 500 West Madison Street, Suite 2800, Chicago, lllinois 60661. When this Consent Decree requires submission by the EEOC of materials to Defendant they shall be mailed to: Margaret Coullard Phillips, Esq., Continental Airlines, Inc., 15th Floor HQSLG, 1600 Smith Street, Houston, TX 77002, with a copy to Defendant's attorney, Keith C. Hult, Littler Mendelson, P .C., 200 North LaSalle Street, Suite 2900, Chicago, lllinois 60601.

Case 1:04-cv-03055 Document 105-2 Filed 12/21/2006 Page 8 of 9

For ilie EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION 500 West Mawson Street, Suite 2800 Chicago, Illinois 60661 (312) 353-7259
RONALD S. COOPER General Counsel
JAMES LEE Deputy General Counsel

For CONTINENTAL AIRLINES, INC.
Jennife Vogel Senio ice President, General Counsel Secretary, and Chief Compliance Officer Continental Airlines, Inc. 15th Floor HQSLQ 1600 Smiili Street Houston, Texas 77002

;-
I

u.S. District Court Judge spen

Dated:

i\ .1")
1\\\ i

Case 1:04-cv-03055 Document 105-2 Filed 12/21/2006 Page 9 of 9
Exhibit A
NOTICE TO ALL EMPLOYEES AND APPLICANTS OF CONTINENTAL AIRLINES, INC.
This Notice is being posted pursuant to a Consent Decree entered by the federal court in EEOC v. Continental Airlines. Inc., 04 C 3055 (N.D. Illinois), settling a lawsuit filed by the Equal Employment Opportunity Commission ("EEOC").
In its suit, the EEOC alleged that Defendant Continental Airlines, Inc., discriminated against a female employee at its Chicago O'Hare facility in that she was harassed, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII").
To resolve this lawsuit the parties have entered into a Consent Decree, in which neither party admitted to any of the claims or defenses raised or asserted by the other in this case. The Consent Decree prohibits discrimination and provides appropriate relief.
This notice is to inform you that all employees have the right to work in an environment free of discrimination. You are further informed that the law prohibits retaliation against employees for engaging in their rights to complain about unlawful discrimination, to oppose discrimination, or to assist anyone you believe has been unlawfully discriminated against.
Continental Airlines remains committed to complying with and enforcing all laws prohibiting harassment, discrimination, and retaliation, including Title VII of the Civil Rights Act of 1964, as amended.
The EEOC enforces the federal laws against discrimination in employment on the basis of disability, race, color, religion, national origin, sex and age. If you believe you have been discriminated against, you may contact the EEOC at (312) 353-2713. The EEOC charges no fees and has employees who speak languages other than English.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
This Notice must remain posted for eighteen (18) months from the date below and must not be altered, defaced or covered by any othertterial. Any questions about this Notice or compliance with its terms may be dire d to: Continental Airlines, Inc.
7 G Settlement, EE07 500 W7t ?;diSOn Street, Suite 2 0, C . a 0, lllinois 60661.
Dated: .la 7A I 0
J U.S. District Judge Aspen

 
 395 F.Supp.2d 738 (2005)
UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
CONTINENTAL AIRLINES, INC., Defendant.
No. 04 C 3055.
United States District Court, N.D. Illinois, Eastern Division.
October 11, 2005.
73490 *739 June Wallace Calhoun, Gregory M. Gochanour, John C. Hendrickson, United *740 States Equal Employment Opportunity Commission, Richard John Mrizek, U.S. Equal Employment Opportunity Commission, Chicago, IL, for Plaintiff.
Shanthi V. Gaur, Amanda Helm Wright, Keith C. Hult, Littler Mendelson, P.C., Chicago, IL, for Defendants.
MEMORANDUM OPINION AND ORDER
KEYS, United States Magistrate Judge.
Currently before the Court is Defendant Continental Airlines, Inc.'s ("Continental") Motion to Compel the Production of the United States Equal Employment Opportunity Commission's ("EEOC") Investigative Memorandum. The EEOC investigated charges of discrimination, harassment, and retaliation filed by Continental's employee, Alaini Mustafaa. Continental now seeks to discover the EEOC's investigative report. For the reasons set forth below, Continental's Motion is denied.
Background Facts
Alaini Mustafaa is an African American woman, who began working for Continental on March 23, 1995. Ms. Mustafaa claims that, as one of the only African American females in a supervisory position, she was repeatedly subjected to harassment, discrimination, and retaliation at Continental. On October 1, 2001, Ms. Mustafaa filed with the EEOC a Charge of Discrimination, detailing Continental's alleged violations of Title VII of the Civil Rights Act of 1964. 42 U.S.C.2000e, et seq. (West 2005).
EEOC Investigator Tyler Graden headed the investigation into Ms. Mustafaa's Charge. After reviewing documents and interviewing witnesses, Mr. Graden issued an investigative report, which the EEOC relied upon in deciding how to proceed with Ms. Mustafaa's Charge. On April 28, 2004, the EEOC filed a complaint against Continental; the case was assigned to Judge Marvin E. Aspen.
During discovery, Continental served upon the EEOC its First Set of Interrogatories and Document Requests, including a request for "[a]ny and all documents contained in the Plaintiff's EEOC file concerning the individual charge of discrimination filed by Alaini Mustafaa (Charge No. 210A20007) against Defendant, or the investigation of said charges." Def.'s Request No. 2. The EEOC turned over responsive materials, but refused to produce the investigative report compiled by Mr. Graden. The EEOC argued that the report was protected by the governmental deliberative process privilege. Pursuant to Court Order, however, the EEOC agreed to produce Mr. Graden for a deposition.
On May 24, 2005, Continental deposed Mr. Graden. Mr. Graden testified that he had reviewed the investigative report in preparation for his deposition. In addition, the EEOC's counsel asked Mr. Graden about the method he used to compile the investigative report. Counsel for Continental argued that the EEOC had crossed the line, waiving any claim that the investigative report was privileged. Not surprisingly, the EEOC disagreed. Despite

attempts to resolve the dispute without the court's involvement, the parties could not reach an accord. Judge Aspen referred the matter to this Court for resolution.
Discussion
Continental argues that the EEOC should be required to produce its investigative report, because it is relevant to the issues forming the basis of the litigation. Continental disputes that the deliberative process privilege applies, 741 and further argues that, even if the EEOC could satisfy *741 the prerequisites for application of the privilege, the EEOC waived the privilege by divulging the contents of the investigative report during Mr. Graden's deposition, and by having Mr. Graden review the investigative report before his deposition. The Court will address each argument in turn.
A. The Governmental Deliberative Process Privilege
"Traditionally, government deliberations have been protected by a variety of qualified privileges in order to promote efficient and effective decision-making which is fueled by the free-flow of information." In re Bank One Securities Litigation, 209 F.R.D. 418, 426 (N.D.Ill.2002) citing United States v. Farley, 11 F.3d 1385 (7th Cir.1993) (recognizing that the deliberative process privilege, which operated to protect pre-decisional documents created by the Federal Trade Commission, encouraged frank discussion of legal and policy matters). One such privilege, the deliberative process privilege, protects the decision-making process of government agencies in certain circumstances. EEOC v. Sears, Roebuck & Co., 111 F.R.D. 385, 390 (N.D.Ill.1986). Specifically, the privilege extends only to "predecisional" governmental documents, which reveal the "give and take of the consultative process." EEOC v. Stauffer Chemical Co., No. 89 C 2725, 1990 WL 19967, at *1 (N.D.Ill. Feb. 27, 1990) (explaining that predecisional documents are generated before the adoption of an agency policy or decision).
In the instant case, the EEOC's investigative report, which the Court viewed in camera, clearly constitutes a predecisional governmental document that is "actually ... related to the process by which policies are formulated." Brown v. United States Patent and Trademark Office, 355 F.Supp.2d 940, 942 (N.D.Ill.2005) (quoting Jordan v. Unites States Dep't of Justice, 591 F.2d 753, 774 (D.C.Cir.1978) (en banc)). The report was created before the EEOC made its decision to pursue its enforcement action against Continental, readily satisfying the predecisional prong of the deliberative process privilege test.
Turning to the second prong of the privilege's test, the Court concludes that the report was created for the purpose of assisting the EEOC in its decision regarding Ms. Mustafaa's Charge. The investigative report reflects Mr. Graden's impressions about the information learned during the course of his investigation, and contains recommendations to his EEOC superiors with respect to Ms. Mustafaa's EEOC Charge[1]. As Judge Aspen stated, "[i]t is precisely these types of records that the deliberative process privilege is designed to protect." Brown, 355 F.Supp.2d at 942.
In addition to making this showing, the EEOC has also complied with the formal requirements for asserting the privilege by having its department head, EEOC Chair Cari M. Dominguez: 1) make a knowing and formal claim of privilege; 2) submit a Declaration stating the precise reasons for preserving the confidentiality of the investigative report; and 3) identify and describe the documents. See K.L v. Edgar, 964 F.Supp. 1206, 1209 (N.D.Ill.1997). 742 Because the EEOC has satisfied its threshold *742 burden of establishing that the privilege applies, Continental now has the burden of showing a particularized need for the investigative report. Id.
In weighing Continental's need for the material against the EEOC's need for privacy, the Court considers: 1) the relevance of the evidence sought; 2) the availability of other evidence; 3) the government's role in the litigation; 4) the seriousness of the litigation and the issues involved in it; and 5) the extent to which the disclosure would hinder frank communications within the governmental agency. Id.
Initially, the Court concludes that, when viewing the investigative report in its entirety, the information in the report is clearly relevant to the primary issue of discrimination. The Court acknowledges that "[t]he existence of probable cause to sue is generally and in this instance not judicially reviewable," EEOC v. Caterpillar, 409 F.3d 831, 833

(7th Cir.2005), but the evidence unearthed by Mr. Graden and documented in the investigative report goes to the heart of the underlying claims of discrimination.
Nevertheless, "relevance alone is an insufficient reason for breaching the deliberative process privilege." Farley, 11 F.3d at 1390. More important is the fact that Continental has not shown that its need for the materials outweighs the EEOC's interest in not disclosing the investigative report. Id. at 1389-90. The information that Continental purportedly seeks has already been made available to Continental. In particular, the EEOC produced the facts contained in the report to Continental when it turned over the interview notes. Because the EEOC has produced all of the source materials to Continental, the information Continental purportedly seeks is already available to Continental, and Continental cannot make the requisite showing of particularized need[2].
Requiring the EEOC to produce the investigative memorandum when it has already produced the underlying source material would reveal nothing more than Mr. Graden's deliberations and assessment of the evidence. Subjecting such deliberations and assessments to disclosure would hinder future agency communications; courts cannot expect frank and open internal communications if "each remark is a potential item of discovery and front page news." Enviro Tech Int'l, Inc. v. U.S. Environmental Protection Agency, 371 F.3d 370, 374 (7th Cir.2004).
Because the Court concludes that Continental has not demonstrated a particularized need for the investigative report, the privilege applies and the Court turns to Continental's claims of waiver.
B. The EEOC Did Not Waive the Privilege
Continental argues that the EEOC waived any claim that the investigative report is privileged[3], because: 1) Mr. 743 Graden revealed the substance of the investigative report at his deposition; and 2) Mr. *743 Graden reviewed the
report to refresh his memory in preparation for his deposition.
Continental notes that, during Mr. Graden's deposition, the EEOC's counsel questioned Mr. Graden about his preparation of the investigative report. Specifically, the EEOC's counsel asked Mr. Graden: 1) "When you did your investigative memorandum for this case, did you put all of the facts and evidence obtained during your investigation into the investigative memorandum?"; 2) "How did you decide which ones to put into the investigative memorandum?"; 3) "what process do you use to decide what to put in?" See Graden Dep. at pp. 137-38. Citing Shell Oil Co. v. Internal Rev. Serv., 772 F.Supp. 202, 209-10 (D.Del.1991), Continental argues that this prodding into the decisions Mr. Graden made during his preparation of the investigative report constitutes waiver. The Court disagrees.
In Shell Oil, the court found that the IRS had waived the deliberative process privilege with respect to its draft definition of "tar sands," after an IRS employee read the definition from a draft notice of proposed rule making at a public meeting of both governmental and industry officials. Id. at 206. The Shell Oil court accepted the defendant's argument that "if an authorized disclosure is made to a non-federal party and the disclosure is not necessary to effect the purpose of the document, a waiver occurs." Id. "[T]he Shell Oil court was animated by a fear of empowering agencies to selectively disclose materials publicly." Sherman v. U.S. Dept. of Army, 244 F.3d 357, 363 n. 9 (5th Cir.2001).
Because the EEOC has not selectively disclosed information and then sought the shelter of privilege, Shell Oil is readily distinguishable. In Shell Oil, the defendant sought to discover the precise information that the government had already leaked to selected parties 0907 ie., the draft definition of tar sands. Conversely, the EEOC has revealed neither selected portions of its investigative report, nor revealed the report (in its entirety or otherwise) to select non-public individuals.
Instead of revealing the substance or specifics of the report, Mr. Graden's deposition described, in a very broad and general sense, the manner in which this EEOC investigative report, and other investigative reports, are compiled, and the method employed to determine what evidence to include/exclude from the report. The EEOC elicited this information in an attempt to establish the existence of the deliberative process privilege. Mr. Graden did not identify specific facts that he included or excluded, or what commentary he included in the report.

If Mr. Graden had allowed other non-governmental entities to view the report, or had selectively disseminated all or part of the report in an attempt to advance the EEOC's case, the Court agrees that, in accord with the analysis in Shell Oil, a waiver would have occurred. But that is not the case; Mr. Graden did not selectively disclose any substantive information contained in the investigative report. Thus, the Court finds that the EEOC did not waive the privilege when Mr. Graden answered questions regarding the compilation of the investigative report.
Next, Continental argues that the EEOC waived the deliberative process privilege, because Mr. Graden reviewed the investigative report to refresh his recollection prior to his deposition. Citing Wheeling-Pittsburgh Steel Corp. v. Underwriters Labs., Inc., 81 F.R.D. 8, 9 (1978), Continental notes that Federal Rule of Evidence 612 authorizes 744 the disclosure of privileged documents relied upon by a witness while testifying. The EEOC seeks to *744 discredit Continental's analysis in a footnote, by referring the Court to the discussion in Suss v. MSX Int'l Engineering Services, Inc., 212 F.R.D. 159, 165 (S.D.N.Y.2002). While the EEOC's argument on the point is brief, the Suss court's thorough analysis of Rule 612 is persuasive.
Federal Rule of Evidence 612 authorizes the disclosure of an otherwise privileged document if it is used by a witness to refresh his memory for the purpose of testifying. Specifically, Rule 612 provides that:
If a witness uses a writing to refresh memory for the purpose of testifying ...
1) while testifying, or
2) before testifying, if the court in its discretion determines it is necessary in the interest of justice,
an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.
Fed. R.Evid. 612. The purpose of the Rule is to allow a party to properly cross-examine a testifying witness. Berkey Photo, Inc. v. Eastman Kodak Co., 74 F.R.D. 613, 615 (S.D.N.Y.1977).
Notably, disclosure of a document relied upon by a testifying witness is not mandatory. The Advisory Committee Notes to Rule 612 state that "nothing in the Rule [should] be considered as barring the assertion of a privilege with respect to writings used by a witness to refresh his memory." Advsry. Comm. Notes. Fed. R. Evid 612. "In applying Rule 612, courts must balance the tension between the disclosure needed for effective crossexamination and the protection against disclosure afforded by any relevant privilege." Suss, 212 F.R.D. at 163.
When a witness uses a writing while testifying, the scales generally tip in favor of disclosure. See, e.g., Bailey v. Meister Brau, Inc., 57 F.R.D. 11 (N.D.Ill.1972). However, courts have exercised their considerable discretion in deciding whether a writing must be produced when a witness has reviewed the document prior to testifying. Suss, 212 F.R.D. at 163. For example, the Suss court focused on two questions 0907 1) was the privilege properly invoked; and 2) did some action of the party seeking to invoke the privilege act as a waiver? 0907 in concluding that the witness did not waive the attorney client privilege by reviewing documents prior to his deposition. Id. at 163-64. The court stated that "given the special protection afforded by the attorney-client privilege, the Court finds no reason to order disclosure." Id. at 165.
Defendant argues that Suss is readily distinguishable, because the deliberative process challenge is not as broad as the attorney-client privilege. True enough. But Suss provides a framework for assessing challenges to other privileges, explaining that the particular balancing undertaken by the court should be tailored to the privilege asserted. Id. at 163. For example, a court weighing whether a work-product privilege has been waived, should assess factors at the heart of the work product privilege 0907 such as substantial need and undue hardship. Id.
Like the work-product privilege, the deliberative process privilege is a qualified privilege that may be overcome if a party demonstrates sufficient need of the otherwise privileged material. Brock v. Weiser, No. 86 C 2129, 1987 WL 12686, at *1 (N.D.Ill. June 15, 1987). The fact that Mr. Graden consulted his own investigative report prior to 745 his deposition does not *745 heighten Continental's need for the material. How Mr. Graden prepared his report, and the method used to decide which facts to include and which to exclude are simply not relevant to the underlying litigation. In addition, there is no evidence that Mr. Graden or the EEOC attempted to gain an unfair advantage by having Mr. Graden consult the report and then refuse to disclose it; nor does the Court see how

such a result could occur even if not intended. So, while Mr. Graden's review of the investigative notebook may have impacted his testimony, the testimony at issue does not involve substantive issues in this case. It involves only the EEOC's internal decisionmaking process, which is not relevant to this enforcement action[4]. See EEOC v. St. Michael Hosp., No. CIV A 96-C-1428, 1997 WL 665757, at *2 (E.D.Wis. Sept. 26, 1997)(finding that the employer may not litigate, as a preliminary matter, the reasonableness of the EEOC's determination).
Continental has failed to demonstrate how the interests of justice are served by requiring the EEOC to disclose the investigative report, simply because Mr. Graden reviewed the report prior to his deposition. Derderian v. Polaroid Corp., 121 F.R.D. 13, 17 (D.Mass.1988). Therefore, the Court concludes that it would be inappropriate to allow Continental to access the investigative report.
Conclusion
For the reasons set forth above, the Court finds that the EEOC has properly established that the deliberative process privilege applies. Continental's claims of waiver are without merit. Therefore, Defendants' Motion to Compel is Denied.
[1] Continental argues that the investigative report contains purely factual material and is, therefore, discoverable. To the contrary, as Mr. Graden testified, Mr. Graden's report does not contain all facts unearthed in the investigation, and instead is a compilation of those facts deemed most important. In addition, the investigative report includes summaries of witness testimony with respect to certain issues, commentary and notes regarding this evidence, and timelines. The Court rejects Continental's attempt to label the report as purely factual.
[2] Indeed, even if the EEOC had not produced the source materials, Continental has not demonstrated why it is unable to conduct the same investigation undertaken by the EEOC.
[3] In its opening brief, Continental asserts that the EEOC waived the privilege merely by bringing the enforcement action. The EEOC notes that courts in this Circuit have upheld the privilege in enforcement actions, see, e.g., EEOC v. St. Michael Hosp., No 96-C-1428, 1997 WL 665757 (E.D.Wis. Sept. 26, 1997); EEOC v. Sears, Roebuck and Co., 111 F.R.D. 385 (N.D.Ill.1986). Instead of addressing the EEOC's authorities, Continental abandons the argument in its Reply Brief.
[4] This finding is distinguished from the Court's previous conclusion that the entire investigative report is relevant to the underlying litigation. Mr. Graden's report contains relevant factual information, while Mr. Graden's testimony about the compilation of the report concerns only the EEOC's decision-making process.
Save trees - read court opinions online on Google Scholar.

 
 U.S. E.E.O.C. v. Continental Airlines, Inc., Not Reported in F.Supp.2d (2006)
2006 WL 14510 United States District Court, N.D. Illinois, Eastern Division.
UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
CONTINENTAL AIRLINES, INC., Defendants.
No. 04 C 3055. | Jan. 3, 2006.
Attorneys and Law Firms
June Wallace Calhoun, Gregory M. Gochanour, John C. Hendrickson, Richard John Mrizek, United States Equal Employment Opportunity Commission, Chicago, IL, for Plaintiff.
Shanthi V. Gaur, Amanda Helm Wright, Keith C. Hult, Littler Mendelson, P.C., Chicago, IL, for Defendants.
Opinion
MEMORANDUM ORDER AND OPINION
ASPEN, J.
*1 Presently before this Court is defendant Continental Airlines, Inc.’s (“Continental”) motion for summary judgment of plaintiff United States Equal Employment Opportunity Commission’s (“EEOC”) employment discrimination and harassment lawsuit on behalf of Alaini Mustafaa. For the reasons set forth below, we grant in part and deny in part the motion for summary judgment.
I. SUMMARY OF THE FACTS1 For purposes of this motion, we view the facts in the light most favorable to Mustafaa, the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Alaini Mustafaa, an African-American woman, began working at Continental as a Customer Service Agent (“CSA”) in 1995. (Def. Facts ¶ 3, 4.) “CSAs load and unload luggage, freight and mail on and off airplanes.” (Pl. Facts ¶ 7.) On September 16, 2000, Continental promoted her to a Lead, a non-management position in which the employee assists his or her supervisor in directing CSAs’ work. (Def. Facts ¶ 20.) Mustafaa was the only female Lead ever employed at Continental’s Chicago O’Hare station; she was also one of only a few female CSAs. (Pl. Facts ¶ 2.) While Mustafaa was a Lead, the chain of command went as follows: Mustafaa reported directly to supervisors Romualdo Derain and Angel Castillo, who reported to manager Ron Kobylski; Kobylski then reported to Jim Hanselmann, Continental’s general manager at Chicago O’Hare. (Def. Facts ¶ 23.)
1. Demotion As a consequence of the airline industry’s economic crisis, Continental elected to reduce its work force in September 2001, including three Lead positions at Chicago O’Hare. (Def. Facts ¶ 48, 50-51.) Kobylski decided to demote Mustafaa and Jose Santiago, a Hispanic male, after consulting ramp supervisors regarding their performances.2 (Id. at ¶¶ 52, 53, 55, 71.) Continental contends that performance is the primary consideration for the reduction in Leads. (Id. at ¶ 54; Hanselmann Dep. at 72). However, Continental’s July 2001 written reduction in work force policy in the Fly to Win Handbook for Agents lists seniority as the sole factor for consideration.3 (Pl.Resp.¶ 54.) At the time she was demoted, Mustafaa was more senior than other Leads who remained in place. (Id.; Pl. Facts ¶ 101.). Subsequent to Mustafaa’s demotion, Continental eliminated another Lead position in the international department. Hector Munguia worked as a Lead in that division until his demotion in October 2001. (Def.Resp.¶ 112.) Continental demoted Munguia, the employee with the least seniority, after determining
1

U.S. E.E.O.C. v. Continental Airlines, Inc., Not Reported in F.Supp.2d (2006)
that none of the Leads in the international department had performance problems. (Id.)
In response to Kobylski’s inquiry about Leads’ performances, five supervisors commented on Mustafaa. One of the five participants, Glenn Bergner, never personally supervised or observed her work. (Pl.Resp.¶ 55.) Rick Bray did not supervise Mustafaa, but he complained about her lack of organizational skills, observing that “she seemed frazzled.” (Id. at ¶ 59; Def. Resp. ¶ 117.) Bray also mentioned concerns with Lead Santiago, who caused damage to an aircraft. (Def. Facts ¶ 63.) Additionally, Bray commented on punctuality: Mustafaa called in late two to three times due to car trouble and Lead Janzin Dixon also had attendance problems. (Pl. Resp. ¶ 59; Pl. Facts ¶ 108.) Bray’s final contribution involved concerns about Mustafaa’s “horseplay” in the break room. (Id.)
*2 Matt Gorny, one of the five supervisors to respond to Kobylski, only viewed Mustafaa’s work at the beginning of her shifts when Leads did not have many responsibilities. (Id.) Nonetheless, Gorny told Kobylski that he had observed Mustafaa in the break room rather than performing duties for incoming flights. (Def. Facts ¶ 64.) Gorny also complained about Santiago’s performance, and he concurred with Bray’s assessment of Mustafaa’s punctuality. (Id.)
Derain’s contribution consisted of choosing whether to demote Mustafaa or Miguel Reyes. (Pl.Resp.¶ 55.) Derain selected Mustafaa, despite her seniority and Reyes’ prior safety violation, because he “was a stronger [L]ead ... [even though h]e was just pretty much the same as [Mustafaa.]” (Id.; Derain Dep. at 96-97.) In January 2001, Continental formally disciplined Reyes for negligently failing to follow safety procedures, which resulted in damage to an airplane, injury to a co-worker, and cancelled flights. (Pl.Resp.¶ 71.) In contrast, during the time Derain supervised Mustafaa as a Lead, he could not recall any complaints from CSAs about her performance, and he prepared positive write-ups for her file. (Pl. Facts ¶¶ 12, 14-18.) Also, in May 2001, Derain drafted a memorandum to Kobylski stating that “Mustafaa worked well [as a Lead] and is very knowledgeable of the ramp operation ... The problem isn’t with the way she handles the operation, it’s all the secondary issues with individual agents.” (Id. at 18.)
Castillo provided most of the complaints about Mustafaa during the meeting. He asserted that Mustafaa “demonstrated planning errors and communication problems in ‘irregular operation’ situations, which occur when flights failed to take off or land as scheduled.” (Def. Facts ¶ 56.) While Castillo coached Mustafaa on irregular operations, he never indicated that she was not progressing well prior to September 2001. (Pl. Resp. ¶ 56; Pl. Facts ¶ 19.)
2. Mustafaa’s interpersonal skills Mustafaa admits to a personal conflict with co-worker Andrea Weisinger, an African-American female, in May and June 2001. (Def. Facts ¶ 29.) Continental managers Derain, Hanselmann and Kobylski discussed the conflict with the women and issued written notices that future incidents at work would result in formal discipline. (Id. at ¶ 31.)
Continental did discipline Mustafaa for an incident involving CSA Vinnie Ziegler. (Id. at ¶ 32.) Mustafaa claims that Ziegler subjected her to “thirty minutes of gender-based attacks,” which included calling her a “bitch,” “slut,” and “sexually touchy feely,” in supervisor Derain’s presence. (Pl.Resp.¶ 32.) Before Derain intervened, Mustafaa made two requests for his assistance, and she threatened to call the police because she believed that Ziegler was going to hit her. (Id. at ¶ 68.) Mustafaa responded to Ziegler’s attacks by making a statement over the public address system. (Def. Facts ¶ 34.) Derain heard Mustafaa say, “I’m touchy-feely, but he’s gay[,]” but Mustafaa testified that she said, “if it’s okay for him to call me a slut, I guess it’s okay if I say I think he’s gay.” (Id. at ¶ 33-34.) Management issued Mustafaa a written warning for her inappropriate statement and disciplined Ziegler for his behavior. (Id. at ¶¶ 35, 36.)
*3 Another incident involved CSA Darnell Austin. Castillo claims that he observed Mustafaa yell at Austin, but she explained that she sternly reminded him of her authority as a Lead after enduring gender-based derogatory comments from her subordinate. (Id. at ¶ 58; Pl. Facts ¶ 27.)
3. Management’s lack of support Mustafaa’s complaints include claims that management failed to support her as a Lead and failed to adequately respond to discriminatory and harassing behavior in the workplace. At a meeting on May 21, 2000, Hanselmann, Kobylski, Castillo, and Derain discussed Mustafaa’s concern that she was not getting support from management. (Def. Facts ¶ 40.) Continental claims that Mustafaa could not provide specific instances of conduct regarding the lack of support and discriminatory conduct; Mustafaa counters that she did in fact supply examples, but the managers dismissed them as having been previously
2

U.S. E.E.O.C. v. Continental Airlines, Inc., Not Reported in F.Supp.2d (2006)
addressed. (Id. at ¶ 41, 42; Pl. Resp. ¶ 41, 42.)
Mustafaa also informed her supervisors immediately following certain incidents between her and various CSAs. (Pl.Resp.¶ 42.) For example, she told Castillo about CSA Roberto Niz’s failure to follow her directions, CSA Austin’s insubordination and inappropriate communications, and Lead Doran’s comments, such as “[you] need[ ] to go home to cook for [your] husband.” (Id.) At first, Castillo responded to Mustafaa’s complaints by informing her crew that such discriminatory behavior would not be tolerated. (Def. Facts ¶ 107; Mustafaa Dep. at 206-07.) The situation did not improve and she no longer felt comfortable relying on Castillo so she reported subsequent misconduct to Derain. (Pl. Resp. ¶ 108; Def. Facts ¶ 109.) For example, Mustafaa informed Derain about Ziegler’s behavior, which included failing to follow instructions and disrespectful remarks. (Id.) According to Mustafaa, Derain met with Mustafaa’s crew and said: “This is your [L]ead agent. You will treat her like a [L]ead agent. And, guys, understand she’s a woman. Sometimes she might need a little bit of help.” (Def. Facts ¶ 109.) Also, Derain counseled Mustafaa about her concerns that the crew did not listen to her by likening Mustafaa’s experience to his own: “[t]hese guys are just-you’re new. They’re giving you a hard time because they really don’t know how you are as ... a[L]ead ... [The same thing happened with me.]” (Derain Dep. at 44.)
Additionally, Derain prepared a memorandum dated May 20, 2001, wherein he informed Kobylski and Hanselmann that Mustafaa “alleges that [CSAs] don’t respect her authority on the ramp because she is a [black] woman.” (Pl.Resp.¶ 47.) Management met with Mustafaa to address her concerns, but there is no evidence that the company further investigated her claims of gender discrimination. (Pl. Facts ¶ 84; Def. Facts ¶ 40.) Rather, Continental responded by issuing “a written directive to all agents [ ] instructing them to comply with their [L]eads’ orders.” (Def. Facts ¶ 44.) Additionally, supervisors met with the CSAs to verbally reinforce the directive.4 (Pl.Resp.¶ 44.)
4. Discrimination and harassment during work *4 Mustafaa testified that CSAs and Lead Doran regularly directed gender-based comments at her during the year that she worked as a Lead, including:5
1. “I’m not listening to this slut. I hate her ... I hate this bitch ... Whore.” 2. “Man, she a[sic] woman ... This a[sic] man’s job.”
3. Look at how she doing this job. Man, she need to carry her butt back to the morning shift. She don’t know what she doing. These women.”
4. “You need to go home and cook for your husband.”
5. “That woman doesn’t know what she’s doing.”
6. “Man, you ain’t no man. Why you trying to do this job?”
7. “You’re a woman trying to do a man’s job. Be a man and unload that tire.”
8. “Can’t no [sic] woman be on no ramp, all this loading and lifting. What she [sic] trying to do? Ain’t nobody going to listen. I ain’t going to listen to her.”
9. “I’m not going to listen to her ass ... She a[sic] fucking woman. She don’t know [sic] what she talking about.”
10. “I’m not going to listen to a woman.”
11. “You’re trying to be a man, doing a man’s job, you can do it yourself.”
12. “You’re a woman trying to do a man’s job.”
13. “Be a man and unload that tire.”
14. “Look at how she doing this job. Man she need to carry her butt back to the morning shift. She don’t know what she doing. These women!”
3

U.S. E.E.O.C. v. Continental Airlines, Inc., Not Reported in F.Supp.2d (2006)
15. “I’m talking to your ass.”
(Pl. Resp. ¶ 75; Pl. Facts ¶¶ 31, 36, 37, 38; Def. Facts ¶ 74-75; Mustafaa Dep. at 125-26, 175 199-201, 203-04, 281-82.)
Mustafaa reported most of the comments to her supervisors, but at some point she refrained from making complaints because she felt that they were not taken seriously. (Pl. Facts ¶ 85; Mustafaa Dep. at 177-78; Derain Dep. at 178.) Mustafaa believed she needed to accept the discriminatory behavior or quit her job. (Pl. Facts ¶ 85; Mustafaa Dep. at 177-78.) Castillo reinforced her perception when he advised Mustafaa to learn to work with Doran despite his discriminatory comments because “that’s just how Pat is.” (Pl. Facts ¶ 95.) Mustafa also claims that she was subjected to racial slurs. For example, Lead Pat Moore described the crew Mustafaa was working on to include a “nigger” and a “spic.” (Id. at ¶ 41.) Mustafaa claims that she heard Lead Aberle use the term “nigger.”6 (Mustafaa Dep. at 284, 288-89.)
Further, Mustafaa complained that Doran, Roberto Niz, Scott Savage, and Castillo regularly cursed at her during work. (Pl. Facts ¶ 29.) For example, Doran cursed at her twice a week during her tenure as Lead. (Def. Facts ¶ 76.) Mustafaa admits that she also used profanity, but not in the same context as her co-workers. (Pl. Facts ¶ 21.) For example, Doran would tell Mustafaa to “get [her] ass at home, go sit behind that fucking desk ... [that she was] a fucking idiot [and] ... so damn stupid.”7 (Id.) While Mustafaa reported Doran’s conduct to Kobylski on at least five separate occasions, the situation did not improve. (Id.) Also, Mustafaa claims that Castillo often cursed at her and that after she complained about his conduct to Kobylski and Bray she had a lot of problems with him. (Def. Facts ¶¶ 78, 79; Pl. Resp. ¶¶ 78, 79.) Mustafaa also witnessed Castillo, Doran, Niz, and Savage use profanity with male and Caucasian employees. (Def. Facts ¶ 80; Def. Resp. ¶ 29.)
*5 In addition to workplace statements, Mustafaa testified about certain events that created an unpleasant environment. For example, she recounted an incident where Lead Doran sprayed her in the face with de-icing fluid while they were working on an aircraft. (Def. Facts ¶ 89.) At the time of the disturbance, Mustafaa was stationed at the tail of the plane and Doran was located on the opposite side. (Pl.Resp.¶ 90.) Based on their relative positions, Mustafaa claims that Doran needed to specifically aim the de-icer at her, discounting the possibility of an accidental occurrence despite winter weather conditions. (Id.) After Doran sprayed Mustafaa, she complained to Kobylski who observed the incident. Kobylski laughed as he responded: “spray his ass back.” (Pl.¶ 50.)
Mustafaa also described instances where she was sent up to her superior’s office “for no reason,” especially in the weeks leading up to her demotion. (Pl.Resp.¶ 103.) For example, Kobylski regularly called Mustafaa to the office before she could punch in for the day and question her about previously addressed issues, such as her complaints about the work environment. (Id.; Def. Facts ¶ 103.) She also claims that one time Kobylski sent her to the office to be furloughed even though she was not eligible. (Pl.Resp.¶ 103.)
Finally, Mustafaa lists specific complaints against Castillo, her direct superior.8 Mustafaa testified that Castillo assigned her to work on crews to help CSAs rather than perform her Lead functions at least eight times. (Pl. Facts ¶ 9.) While she admits that “[i]t is common practice for [L]eads to ‘work on crews,” ’ she asserts that Castillo could have selected Reyes, the other Lead under his supervision, rather than exclusively requiring her to perform CSA functions. (Def. Facts ¶ 24; Pl. Resp. ¶ 100.)
Continental filed this motion for summary judgment after the completion of discovery. Mustafaa responded to the motion arguing that a genuine issue of material fact exists as to “whether Continental engaged in unlawful discrimination on the basis of sex and race in demoting Ms. Mustafaa from the position of [L]ead and by subjecting her to a hostile work environment.” (Mem. Opp. Summ. J. at 4.)
II. STANDARD OF REVIEW Summary judgment is proper only when “there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Fed R. Civ. P. 56(c). A genuine issue for trial exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. This standard places the initial burden on the moving party to identify “those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quotation marks omitted). Once the moving party meets this burden of production, the nonmoving party “may not rest upon the mere allegations or denials of the adverse party’s pleading” but rather “must set forth specific facts showing that there is a genuine
4

U.S. E.E.O.C. v. Continental Airlines, Inc., Not Reported in F.Supp.2d (2006)
issue [of material fact] for trial.” Fed.R.Civ.P. 56(e). In deciding whether summary judgment is appropriate, we must accept the nonmoving party’s evidence as true, and draw all inferences in that party’s favor. See Anderson, 477 U.S. at 255. Finally, “[w]e apply the summary judgment standard with special scrutiny to employment discrimination cases, which often turn on the issues of intent and credibility.” Michas v. Health Cost Controls of Illinois, Inc., 209 F.3d 687, 692 (7th Cir.2000) (citing Bellaver v. Quanex Corp., 200 F.3d 485, 491 (7th Cir.2000)).
III. ANALYSIS
A. Discrimination on the basis of sex and race: Mustafaa’s demotion *6 Mustafaa raises claims of discrimination based on race and sex under both Title VII and Section 1981. Title VII forbids an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... race or sex.” 42 U.S.C. § 2000e-2(a)(1). Section 1981 makes it unlawful to discriminate on the basis of race in the making and enforcing of contracts.9 42 U.S.C. § 1981. In examining Mustafaa’s § 1981 claim, “we employ the same framework that we use with respect to Title VII claims.” Vakharia v. Swedish Covenant Hosp., 190 F.3d 799, 806 (7th Cir.1999); see also Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir.1998) (same).
A plaintiff can establish a Title VII claim either by offering direct proof of discrimination, or by presenting evidence indirectly under the McDonnell Douglas burden-shifting analysis. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see also Haywood v. Lucent Techs., Inc., 323 F.3d 524, 529 (7th Cir.2003). Under either method, summary judgment is inappropriate if Mustafaa proffers evidence from which an inference of intentional discrimination can be drawn. See Fuka v. Thompson Cons.Electronics, 82 F.3d 1397, 1402-03 (7th Cir.1996). Mustafaa argues that a genuine issue of material fact exists whether we address her discrimination claim under the direct approach or under the McDonnell Douglas burden shifting scheme, so we will assess the viability of each of her claims under both methods.
1. Application of the direct approach Under the direct method, a plaintiff may show through either direct or circumstantial evidence that “the employer’s decision to take the adverse job action was motivated by an impermissible purpose, such as her race....” Haywood, 323 F.3d at 529. Direct evidence of discrimination is evidence that would show a clear acknowledgment of discriminatory intent by the employer. See, e.g., Davis v. Con-Way Transp. Cent. Express, Inc., 368 F.3d 776, 783 (7th Cir.2004) (explaining that direct evidence is an “outright admission by the decisionmaker that the challenged action was undertaken because of the [employee’s] race”). Alternatively, Mustafaa may succeed under the direct method by presenting circumstantial evidence which provides a “convincing mosaic of discrimination,” Troupe v. May Department Stores Company, 20 F.3d 734, 737 (7th Cir.1994), from which a jury may reasonably infer intentional discrimination. Volovsek v. Wisconsin Dep’t of Agric., Trade & Cons.Prot., 344 F.3d 680, 689 (7th Cir.2003). In Volovsek, the Seventh Circuit explained that such circumstantial evidence typically includes:
(1) suspicious timing, ambiguous statements, behavior towards other employees and so on; (2) evidence, but not necessarily rigorous statistical evidence, that similarly situated employees were treated differently; or (3) evidence that the employee was qualified for the [job in question] and passed over and the employer’s reason for the difference in treatment is a pretext for discrimination.
*7 Id. at 689-90 (citing Troupe, 20 F.3d at 736). The three forms of circumstantial evidence can be used independently or in the aggregate to “provide a basis for drawing an inference of intentional discrimination.” Troupe, 20 F.3d at 736.
Mustafaa does not have direct evidence of a clear acknowledgment of Continental’s discriminatory intent to demote her. Rather, she proffers circumstantial evidence, which she argues provides a basis to draw an inference of intentional discrimination based on race and sex. Indeed, circumstantial evidence, if sufficiently persuasive, may defeat a motion for summary judgment. See Troupe, 20 F.3d at 736. Mustafaa relies on the first type of evidence described in Volovsek to support her racial discrimination claim, but she points to a range of evidence under all three Volovsek prongs for her gender discrimination claim.
5

U.S. E.E.O.C. v. Continental Airlines, Inc., Not Reported in F.Supp.2d (2006)
a. Racial discrimination Mustafaa failed to present sufficient circumstantial evidence upon which a jury could find that Continental demoted her based on her race. She proffers five derogatory statements made by two Leads and one supervisor while she worked at Continental. She personally heard the term “nigger” used twice, even though only one comment was directed at her, and she learned of three other instances where employees uttered racial slurs or discriminatory comments. Disregarding hearsay issues, five comments made predominantly by co-workers without supervisory authority over a number of years, or even one year, do not rise to the level of circumstantial evidence deemed sufficient to withstand a motion for summary judgment contemplated by Volovsek.
Even if the five statements could be imputed to Mustafaa’s supervisors, Mustafaa fails to present any evidence of a nexus between the discriminatory comments and the decision to demote her. The Seventh Circuit has explained that “bigotry, per se, is not actionable. It is actionable only if it results in injury to a plaintiff; there must be a real link between the bigotry and an adverse employment action.” Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759, 762 (7th Cir.2001). In order for discriminatory comments to be probative of intent, they also must be causally connected to the decision-making process or contemporaneous with the employment action. See Marshall v. Am. Hosp. Ass’n, 157 F.3d 520, 526 (7th Cir.1998); see also Hong v. Children’s Mem’l Hosp., 993 F.2d 1257, 1265 (7th Cir.1992) (“[T]he plaintiff must show that the hospital relied on [ ] impermissible criterion in making its [employment] decision.”). Mustafaa does not submit any evidence that racial animus motivated or even infiltrated Kobylski’s decision to demote her. To substantiate her claim of discrimination, Mustafaa fleetingly references her race without providing evidence other than conclusory allegations, which are insufficient to withstand a motion for summary judgment. See Tyler v. Runyon, 70 F.3d 458, 465 (7th Cir.1995). Therefore, the racial discrimination claims under both Title VII and Section 1981 fail under the direct approach.
b. Gender discrimination *8 Turning to the gender discrimination claim, Mustafaa submits evidence that she believes falls under each Volovsek category of circumstantial evidence to show that Continental’s decision to demote her was based on her sex. However, even the cumulative effect of the evidence does not raise a question of fact as to Continental’s discriminatory intent.
i. General circumstantial evidence The first type of evidence outlined in Volovsek “consists of suspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group, and other bits and pieces from which an inference of discriminatory intent might be drawn.” Troupe, 20 F.3d at 736. Mustafaa does not provide evidence of suspicious timing as a basis for inferring discrimination since her demotion occurred as a result of Continental’s reduction in work force due to an economic crisis in the airline industry. Mustafaa also failed to submit evidence that Kobylski or any supervisors made ambiguous statements regarding her demotion. Rather, Kobylski testified that he demoted Mustafaa because her performance as a Lead compared poorly to her co-workers based on the Supervisors’ reviews, which included complaints about organization, punctuality, and interpersonal skills.
Mustafaa points to a number of sexist comments uttered by her co-workers’ to support an inference of discrimination. (Pl. Facts ¶¶ 27, 31, 36-38, 43.) However, none of those co-workers were involved in the decision to demote Mustafaa.10 In Cerutti, plaintiffs alleging age discrimination attempted to introduce two supervisors’ statements, “out with the old, in with the new,” as circumstantial evidence of a Title VII violation. 349 F.3d at 1062. The Seventh Circuit held that it was inappropriate to consider their statements since they were not involved in the termination decisions. Id.; see also Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 397 (7th Cir.1997) (same). Likewise, Mustafaa cannot use her co-workers’ sexist comments to speculate on Kobylski’s or the supervisors’ discriminatory intent.
Next, Mustafaa points to Derain’s discussion with the CSAs in response to her complaints that they did not work well together. According to Mustafaa, Derain told the CSAs, “[t]his is your lead agent. You will treat her like a lead agent. And guys, understand she’s a woman. Sometimes she might need a little bit of help.” (Mustafaa Dep. at 195.) Assuming Derain’s comment evinces gender discrimination, Mustafaa must show “a causal link between the prejudicial views ... and her [demotion.]” Cerutti, 349 F.3d at 1063. However, no evidence indicates that Kobylski’s decision was tainted by Derain’s comment. First, nothing indicates that Derain made the alleged comment within close temporal proximity to Mustafaa’s demotion so as to create an inference of a causal nexus. See Bellaver, 200 F.3d at 493 (“a long time period between a remark and an employment action can defeat the inference of a causal nexus between the remark and the [employment action].”) (quotation omitted).
6

U.S. E.E.O.C. v. Continental Airlines, Inc., Not Reported in F.Supp.2d (2006)
*9 Second, no evidence indicates that Derain’s alleged gender bias influenced the other supervisors’ evaluations or Kobylski’s ultimate decision. In Cerutti, two individuals who participated in the decion-making process for plaintiffs’ terminations allegedly made prejudicial comments about the plaintiffs’ age. 349 F.3d at 1063. However, because they comprised only a portion of the decision-making team, the Seventh Circuit held that their “alleged animus toward older workers is relevant only if there is other evidence from which a reasonable jury could infer that their animus influenced the selection panels’ deliberations to such a degree so as to result in the plaintiffs’ terminations.” Id. In this case, Derain’s involvement with the decision to demote Mustafaa was limited to one conversation with Kobylski in Derain’s office where Kobylski asked him to choose the better Lead between Mustafaa and Reyes. (Derain Dep. at 95-96.) Derain selected Reyes without expounding upon his decision or volunteering any commentary. Id. Kobylski then decided to demote Mustafaa based on his personal knowledge of the Ziegler and Weisinger incidents, Derain’s opinion, and four other supervisors’ input regarding Leads’ performances. Since no evidence suggests that Derain’s alleged animus towards females tainted Kobylski’s decision, Mustafaa failed to demonstrate a real link between the discriminatory comment and her demotion.
ii. Similarly situated employees Mustafaa also contends that she has presented the second kind of evidence outlined in Volovsek: “evidence, whether or not rigorously statistical, that similarly situated employees were treated differently.” 344 F.3d 680. She claims that Continental overlooked the male Leads’ performance and interpersonal skills problems for which she was criticized and ultimately demoted. Specifically, Mustafaa asserts that Continental should have demoted Reyes for one incident of negligent performance, Dixon for attendance problems, and Doran and Aberle for use of profanity, raised voices, and racial slurs. For us to find disparate treatment, Mustafaa must show that Continental treated Reyes, Dixon, Doran, and Aberle differently and their disciplinary histories and performances were “directly comparable to her[s] in all material respects.” Ajayi v. Aramark Bus. Serv., Inc., 336 F.3d 520, 531-32 (7th Cir.2003) (quoting Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir.2002)). “In determining whether two employees are similarly situated, a court must look at all relevant factors, the number of which depends on the context of the case.”11 Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir.2000). Mustafaa did not show that her performance record directly or even substantially compared to any of the four male leads.
Management found one area of weakness in each of the four male Leads’ performance whereas the supervisors raised concerns about Mustafaa’s performance in each category of assessment. For example, Continental observed operational skills deficiencies in both Reyes and Mustafaa. The company disciplined Reyes’ for his involvement with a safety violation in January 2001 and Castillo, Bray, and Gorny complained of Mustafaa’s mishandling irregular operations and lack of organizational skills. Mustafaa presented no evidence that other male Leads received acceptable reviews for handling irregular operations the way she did. Also, Reyes received no complaints for interpersonal skills, personal conflicts with co-workers, or punctuality. Further, during the eight months between the January incident and the September demotions, it does not appear as though Reyes engaged in any other misconduct or sub-par performance. In contrast, Mustafaa’s supervisors complained about ongoing problems with organization and managing irregular operations. See Brummett, 414 F.3d at 693 (finding that employer did not treat plaintiff differently from a co-worker who had the same supervisor, job duties, and monthly sales quotas because that co-worker’s overall performance surpassed plaintiff’s). Even assuming Reyes’ performance directly compared to Mustafa’s, there is no evidence that Derain chose Reyes over Mustafaa based on his gender. Rather, the evidence shows that despite Reyes’ involvement in a safety violation in January 2001, Derain believed that he transitioned better into Lead due to his work ethic.12
*10 Mustafaa’s performance also does not directly compare to Dixon’s record. During the demotion discussions, Bray raised Dixon’s and Mustafaa’s attendance problems but he ultimately selected Mustafa as the weakest Lead. Mustafaa admits calling in late to work on a couple of occasions and both parties agree that Dixon’s attendance was also an issue. Mustafaa did not submit evidence detailing Dixon’s attendance record, so we cannot ascertain whose problems were more egregious. Regardless, Mustafaa presented no evidence that any supervisors complained about Dixon’s interpersonal skills or his performance during irregular operations.
Doran’s and Aberle’s work history also do not directly compare to Mustafaa’s because their only infractions involved interpersonal skills whereas complaints about Mustafaa ranged from personal conflicts and organizational difficulties to punctuality. Additionally, complaints regarding Mustafaa’s interpersonal skills centered on her involvement in the Ziegler incident and her conflict with Weisinger. Neither Doran, nor Aberle engaged in personal ongoing conflicts with co-workers or a dispute involving misuse of the intercom system.13
Nonetheless, Mustafaa raises an additional argument of disparate treatment by claiming that the supervisors did not criticize
7

U.S. E.E.O.C. v. Continental Airlines, Inc., Not Reported in F.Supp.2d (2006)
Doran’s and Aberle’s use of profanity and disrespectful communications whereas her interactions were more carefully scrutinized. Mustafaa claims that complaints about her interpersonal skills reflect her supervisors’ displeasure for behavior inconsistent with female stereotypes. Thus, she argues that Continental employed a double standard for men and women Leads. See Bellaver, 200 F.3d at 492 (“evaluations may demonstrate discriminatory intent when employees are evaluated on how their interpersonal skills match stereotyped, unequal ideas of how men and women should behave.”). In Bellaver, the Seventh Circuit found that the only complaint about plaintiff’s performance involved interpersonal skills and “the same types of deficiencies seemed to be tolerated in male employees.” Unlike Bellaver, Mustafaa did not present sufficient evidence to suggest systemic disparities in expectations for male and female Leads at Continental. As a threshold matter, the supervisors’ complaints about Mustafaa’s interpersonal skills centered on the Ziegler and Weisinger incidents, and Mustafaa presented no evidence that Doran or any other Lead participated in any analogous situations.14
Mustafaa points to one occasion where Castillo verbally reprimanded her for speaking harshly to Austin, an insubordinate CSA, despite Continental’s acceptance of Lead Doran’s use of inappropriate language and modes of communication to co-workers.15 For Mustafaa to show disparate treatment with regard to disciplinary action, she must demonstrate that Doran was similarly situated regarding conduct, performance, and qualifications. See Radue, 219 F.3d at 617. “This normally entails a showing that the two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer’s treatment of them.” Id. at 617-18. Mustafaa testified that Doran yelled at another CSA, used profanity towards supervisor Derain, and screamed and cursed at her during work. As to the first allegation, Doran’s and Mustafaa’s interactions both involved CSAs and aggressive communications. Castillo observed both incidents and counseled Mustafaa and Doran not to treat their subordinates inappropriately. (Castillo Dep. at 93-95.) Therefore, while similarly situated, Castillo did not treat Mustafaa differently than Doran. The second example does not satisfy the similarly situated requirement because Doran used profanity while joking with Derain, thus changing the context of the interaction.16 (Def.Resp.109.) Finally, Mustafaa complained to Castillo, Hanselmann, and Gorny that Doran mistreated her. However, the record indicates that those supervisors advised Mustafaa that they would discuss the matter with Doran the same way Castillo discussed communication problems with Mustafaa after she spoke harshly to Darnell Austin. Even if they did not speak with Doran, there is no evidence that management approved of his behavior. Therefore, it does not appear as though Continental disciplined Mustafaa for behavior that was acceptable for male Leads like Doran and, consequently, her reliance on Bellaver is misplaced.
*11 Mustafaa completes her argument under this prong of the analysis by claiming that Castillo treated her differently than male Leads because he assigned her to work on crews at least eight times during the year she served as Lead.17 (Pl. Facts ¶ 9.) No one disputes that supervisors commonly assign Leads to work on crews; however, Mustafaa claims that “she was the only Lead under [Castillo’s] supervision that was assigned to work on a crew.”18 (Id. at ¶ 10; Def. Facts ¶ 24.) Specifically, Mustafaa contends that Castillo did not assign Reyes to work on crews while he was a Lead. (Pl. Facts ¶ 11.) Assuming the truth of Mustafaa’s testimony, we cannot say that Castillo’s decision suggests gender discrimination because the evidence indicates that, according to Castillo, Mustafaa and Reyes were not similarly situated. Castillo complained of Mustafaa’s inability to handle irregular operations, but he made no similar complaints about Reyes’ performance under pressure. Also, even assuming Reyes and Mustafaa were similarly situated, no evidence indicates that gender discrimination underlie Castillo’s decision, given Mustafaa’s contentious personal relationship with her supervisor and his alleged difficulty overseeing and delegating tasks to Leads. While we cannot determine whether Castillo’s decision to staff Mustafaa on crews was the result of personal animosity, a power struggle, conflicting managerial styles, or perceived performance problems, the evidence, even viewed in Mustafaa’s favor, does not support an inference that Castillo assigned Mustafaa to crews because he harbored gender-based animus. Analysis of the totality of the evidence reveals that Continental did not treat similarly situated employees differently than Mustafaa. See Hong, 993 F.2d at 1263 (“No technologist retained by the hospital was involved in as many disciplinary actions [or performed as poorly on evaluations] as the plaintiff.”); see also Czerska v. United Airlines, Inc., 292 F.Supp.2d 1102, 1113-14 (N.D.Ill.2003).
iii. Pretext The third category of circumstantial evidence outlined in Volovsek is evidence that the reason supplied by the employer for the employment action is a pretext for discrimination. “Pretext exists where the ostensible reason for the employment decision is really a lie contrived to mask unlawful discrimination.” Little v. Illinois Dep’t of Revenue, 369 F.3d 1007, 1012 (7th Cir.2004). In evaluating pretext, we are not to sit as “super personnel departments to second guess an employer’s facially legitimate business decisions.” Wells v. Unisource Worldwide, Inc., 289 F.3d 1001, 1007 (7th Cir.2002). At the same time, we must evaluate whether Continental’s reason for demoting Mustafaa had no basis in fact, did not actually motivate, or was insufficient to motivate her demotion.19 Davis, 368 F.3d at 784. Viewing the evidence in the light most favorable to Mustafaa
8

U.S. E.E.O.C. v. Continental Airlines, Inc., Not Reported in F.Supp.2d (2006)
does not lead to a finding of pretext.
*12 First, Mustafaa argues that we should find Continental’s decision pretextual because it demoted her in violation of its written policy. Continental’s Fly to Win Handbook for Agents lists seniority as the sole criterion for consideration during a reduction in workforce yet Continental demoted Mustafaa based upon her performance rather than seniority. Assuming that the written policy applies to Leads, and disregarding Hanselmann’s testimony that Continental’s policy and practice is to demote Leads based on performance, we cannot characterize Continental’s decision as pretext for gender discrimination because the company also demoted Santiago, a male Lead with more seniority than some remaining Leads, based on performance.20 Therefore, even if Continental disregarded their written policy, they did so indiscriminately for males and females.
Mustafaa also points to Hector Munguia’s demotion as evidence that Continental reinstated the seniority system after they eliminated her Lead position. Munguia worked as a Lead in the international division until October 2001 when Continental got rid of his position. (Def.Resp.¶ 112.) Continental selected Munguia, the employee with the least seniority, after determining that, unlike the domestic division, no Leads in the international department had performance problems. (Id.) Munguia’s demotion does not support an allegation of pretext because Continental used the same process for demoting an international Lead as they did when demoting the domestic Leads in September 2001. Mustafaa submitted no evidence that any international Lead fell below expectations to suggest that Continental ignored performance problems in demoting Munguia.
Next, Mustafaa argues that complaints about her performance had no basis in fact or did not actually motivate her demotion. She claims that Kobylski’s reliance on the supervisors’ subjective, informal performance reviews evinces pretext. Kobylski solicited supervisors’ input based on their informal assessments of Leads’ performances because Continental did not conduct formal reviews at that time. There is nothing inherently suspect about verbal, contextual reviews by knowledgeable managers. See Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 980 (7th Cir.2004) (“[E]mployer’s lack of corroborating written evidence is not enough by itself to rebut the employer’s nondiscriminatory explanation for adverse employment actions”); Scott v. Parkview Mem’l Hosp., 175 F.3d 523, 525 (7th Cir.1999) (finding that nothing requires employers “to prefer paper-heavy evaluations over contextual assessments by knowledgeable reviewers, or to exalt an assessment of past conduct over a prediction of future performance.”). In this case, at least four of the five supervisors that commented on Mustafaa’s performance had personal knowledge of her work-related conduct, and nothing indicates that gender discrimination played a role in Kobylski’s decision to rely on their feedback. See Patton v. Indianapolis Pub. Sch. Bd., 276 F.3d 334, 339 (7th Cir.2002) (finding that consultant’s recommendation to demote plaintiffs because they were ill-equipped to handle new challenges was not pretextual).
*13 Mustafaa also argues that her supervisors’ subjective reviews were tainted by gender discrimination because they knew about her co-workers’ sexist behavior, failed to address the problem, and then penalized her for the inability to manage those who degraded her. Ironically, Mustafaa’s argument supports Continental’s position that it demoted her based on performance: showing that she performed poorly, even if her shortcomings stemmed from co-workers’ repugnant behavior, bolsters Continental’s assertion that she failed to meet the job expectations rather than inferring that their decision was pretextual. Thus Mustafaa’s attempt to establish a causal nexus between her co-workers’ behavior and Kobylski’s decision to demote her in the guise of pretext is unpersuasive. Indeed, Mustafaa’s argument essentially conflates the discrimination and hostile work environment claims. Whether and to what degree Mustafaa’s performance was affected by her co-workers’ sexism are valid considerations for a hostile work environment action. See Section III(B)(2), (3),(4), infra.
Further, we find no merit in Mustafaa’s assertions that Kobylski disbelieved Castillo’s assessment of her performance or that Castillo’s evaluations were marred by gender discrimination. To support her allegations, Mustafaa relies on Gage v. Metropolitan Water Reclamation Dist. of Greater Chicago, No. 02 C 9396, 2004 WL 1899902, at *10 (N.D.Ill. Aug. 18, 2004), where we found a question of fact as to how a supervisor’s bias impacted the company’s decision to terminate plaintiff. In Gage, the decision-maker solely relied upon one supervisor for input on plaintiff’s performance, but he did not know about that supervisor’s racial animus and contentious relationship with plaintiff. See also Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir.1990) (reversing summary judgment where decision-maker relied on one supervisor’s input, that supervisor made discriminatory comments and exaggerated plaintiff’s flaws). Unlike Gage, the decision-maker in this case, Kobylski, had ample reason to credit Castillo’s negative reviews given other supervisors’ corroboration and his personal knowledge of misconduct, including the Ziegler incident and Weisinger conflict. Also, Kobylski knew about Castillo’s and Mustafaa’s contentious relationship and Mustafaa’s belief that Castillo treated her differently than other Leads under her supervision. Since the evidence suggests that Kobylski was not blinded by ignorance of a supervisor’s ulterior motives, this case is distinguishable from Gage. Also, Mustafaa failed to present evidence that Castillo’s evaluations were based upon or tainted by sex discrimination. As previously discussed, Mustafaa and Castillo clashed over managerial styles and they had
9

U.S. E.E.O.C. v. Continental Airlines, Inc., Not Reported in F.Supp.2d (2006)
trust and communication issues, but nothing indicates that their problems stemmed from gender-based animus. See Section III(A)(1)(b)(ii), supra. Similarly, while Castillo found Mustafaa’s performance in irregular operations inadequate, no evidence indicates that Castillo approved of other Leads’ performance in like circumstances where they conducted themselves in the same manner as Mustafaa.21
*14 Finally, Mustafaa puts forth a circular argument to establish pretext: she claims that Continental did not believe that she performed poorly since they did not consider demoting her until September 2001. However, waiting until September to demote her does not mean that she performed better than the other Leads, that her supervisors lied about deficiencies in her performance, or that Kobylski demoted her based on anything other than performance reviews. Further, Mustafaa’s self-serving declaration that she performed better than other Leads does not suffice to create a genuine issue as to whether Continental’s legitimate nondiscriminatory reason for demoting her had no basis in fact. Wyninger, 361 F.3d at 980.
In sum, Kobylski and the supervisors involved in the demotion process believed that they needed to retain the most qualified Leads in anticipation of an increase in workload and stress. Kobylski demoted Mustafaa after the supervisors relayed concerns about her reliability, judgment, and ability to work in irregular operations. No Lead other than Mustafa received as many complaints about overall performance, and nothing supports an inference that Kobylski doubted the supervisors’ assessments or that he independently believed that Mustafaa was more capable than another domestic Lead. Further, nothing indicates that Castillo’s review was tainted by gender bias, that Kobylski relied upon impermissible factors, or that the purportedly legitimate reason for Mustafaa’s demotion was a lie. Despite drawing reasonable inferences in Mustafaa’s favor, we find that a combination of all the circumstantial evidence does not raise a genuine issue of material fact as to the possibility that Continental demoted Mustafaa because of her sex under the direct method.
2. Indirect method McDonnell Douglas sets out a three step analysis to assess unlawful discrimination in the absence of direct proof. 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. First, the plaintiff must establish a prima facie case of discrimination. Id. at 802. If the plaintiff fails to meet his or her initial burden, the defendant is entitled to summary judgment. Oest v. Illinois Dep’t of Corrections, 240 F.3d 605, 612 (7th Cir.2001). Assuming that the plaintiff satisfies the first step, the burden shifts to the defendant to offer a legitimate nondiscriminatory reason for its action. McDonnell Douglas, 411 U.S. at 802. If the defendant succeeds in so doing, the burden shifts back to the plaintiff to present evidence that the reason provided by the defendant is pretextual. See id. at 804.
To satisfy the prima facie case requirement, Mustafaa must show that (1) she is a member of a protected class, (2) she performed her job satisfactorily, (3) she suffered an adverse employment action, and (4) Continental treated similarly situated employees outside her class more favorably. Russell v. Bd. of Trustees of Univ. of Ill. at Chicago, 243 F.3d 336, 341 (7th Cir.2001). It is undisputed that Mustafaa can establish two elements: as an African-American female, she is a member of a protected group, and her demotion was an adverse employment action. See Ajayi, 336 F.3d at 531 (“[A] demotion is a paradigm adverse employment action”). The second and fourth prongs of the prima facie case are more problematic.
*15 In cases like the one before us, in which the employer claims that it dismissed plaintiff due to inadequate job performance, the second prong is inextricably intertwined with the question of pretext. Gordon v. United Airlines, Inc., 246 F.3d 878, 886 (7th Cir.2001). Continental asserts that it demoted Mustafaa based on the cumulative effect of poor judgment, punctuality problems, and mishandling of irregular operations. Mustafaa rebuts some of Continental’s allegations and submits that she met all performance expectations. We need not decide which party is correct to ascertain whether Mustafaa has established her prima facie case. The McDonnell Douglas analysis must be applied flexibly, and in circumstances where the dispute centers on whether the employee was dismissed for failing to meet expectations or for discriminatory reasons, it is acceptable to bypass the second prong and address the issue when we analyze pretext. See Wyninger, 361 F.3d at 980 (“Since [the company] relied on [plaintiff’s] job performance as its explanation for firing her and because those assessing [her] performance were the same parties accused of discrimination, [plaintiff] does not need to present evidence at the prima facie stage that she was performing her job satisfactorily.”); see also Curry v. Menard, Inc., 270 F.3d 473, 478 (7th Cir.2001); Cannon v. Nat’l R.R. Passenger Corp., No. 01 C 2571, 2002 WL 15698 (N.D.Ill. Jan.4, 2002).
We thus move on to the fourth prong, where Mustafaa’s case fails. As previously discussed in Section III(A)(1)(b)(ii) supra, Mustafaa has not identified any other similarly situated non-black male Leads who were treated more favorably. Therefore, we grant Continental’s motion for summary judgment on the discrimination claim relating to the demotion because Mustafaa failed to establish a prima facie case under the indirect method.22
10

U.S. E.E.O.C. v. Continental Airlines, Inc., Not Reported in F.Supp.2d (2006)
B. Hostile Work Environment An employer violates Title VII when it engages in racial or sexual harassment that creates a hostile or offensive working environment. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986); Hardin v. S.C. Johnson & Son, Inc., 167 F.3d 340, 345 (7th Cir.1999); Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 673 (7th Cir.1993). Mustafaa must prove that (1) her work environment was subjectively and objectively offensive, (2) the harassment was based on her membership in a protected class, (3) the conduct was severe or pervasive, and (4) there is a basis for employer liability. Cerros v. Steel Techs., Inc., 288 F.3d 1040, 1045 (7th Cir.2002). “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive-is beyond Title VII’s purview.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). A court must consider the “totality of the circumstances, including the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” ’ Cerros, 288 F.3d at 1046 (quoting Harris, 510 U.S. at 23). Continental argues that “[Mustafaa] fails to establish a claim for a hostile work environment because she cannot demonstrate that she was subject to unwelcome harassment because of her race or sex nor do her allegations constitute a severe or pervasive hostile environment.”23 (Mot. Summ. J. at 11.) We agree that Mustafaa did not establish her prima facie case for racial harassment. However, she presented sufficient evidence to sustain a sexual harassment claim and thus withstand summary judgment.
1. Racial Harassment *16 The only evidence that could be construed to support the racial harassment claim consists of two derogatory racial slurs uttered by Continental employees: Pat Moore once described Mustafaa’s crew as including a “nigger” and Bill Aberle also said “nigger.”24 While racial epithets should never be condoned, two statements over the course of several years, or even one year, do not create an objectively offensive environment, nor do they rise to the requisite level of severity. See Gage, 2004 WL 1899902, at *11-12; compare, e.g., Cerros, 288 F.3d at 1040 (finding that plaintiff had shown enough to go to trial on a racial harassment claim where employees and supervisors referred to plaintiff as brown boy, spic, wetback, Julio and Javier; racial epithets were painted on bathroom walls referring to Hispanics and plaintiff and touting the KKK; and plaintiff’s tires were slashed) with Williams v. Metro. Water Reclamation Dist. of Greater Chicago, No. 01-0514, 2002 WL 484860, at *5 (N.D.Ill. Mar.28, 2002) (finding that isolated race-based discriminatory comment-“it wasn’t the Italians that I had a problem with, it was you blacks”-was not actionable because it was neither threatening nor severe and other evidence indicated that the supervisor was harsh, difficult and unfair, but did not suggest he harbored racial animus). Accordingly, we grant Continental’s motion for summary judgment on Mustafaa’s racial harassment claim.
2. Objectively offensive harassment based on sex In her deposition testimony, Mustafaa recounted fifteen to twenty-two gender biased, disparaging comments made by various co-workers over the course of one year. See Section I(B)(4), supra. In addition to the explicit gender-based discriminatory comments, Mustafaa testified that Pat Doran cursed at her twice a week while she was Lead.25 For example, Doran would tell Mustafaa to “get [her] ass home, go sit behind that fucking desk, do some paperwork, learn [her] fucking job, [she’s] a fucking idiot, [she’s] so damn stupid.” (Def. Facts ¶ 75.) While Mustafaa acknowledged that Doran also cursed at male employees, she testified at her deposition that he did not call other employees “stupid” or tell them that they “needed to go home and cook for their husbands.”26 (Pl.Resp.¶ 75.) Based on a totality of the circumstances, a reasonable jury could find that Doran’s comments implicitly conveyed gender-based hostility. But see Wyninger, 361 F.3d 965 (finding that supervisors were abrasive to and used vulgarities with all employees so plaintiff could not causally connect their crude conduct to her gender).
Mustafaa also presented evidence that Derain, a supervisor, echoed and possibly endorsed the employees’ sentiments when he counseled her team on appropriate workplace decorum: “[t]his is your lead agent. You will treat her like a lead agent. And, guys, understand she’s a woman. Sometimes she might need a little bit of help.”
*17 Mustafaa’s testimony paints a picture of hostility from her co-workers due to their beliefs that she was “a woman trying to do a man’s job.”27 See Hardin, 167 F.3d at 345 (“The complained of conduct must have either a sexual or racial character or purpose to support a Title VII claim.”) (emphasis in original); see also Smith v. Sheahan, 189 F.3d 529, 533 (7th Cir.1999) (holding that sex-based animus is sufficient for a Title VII claim). Continental did not produce evidence that its employees made similar gender-based comments to male Leads, nor did they submit proof that the sexist comments could be attributed
11

U.S. E.E.O.C. v. Continental Airlines, Inc., Not Reported in F.Supp.2d (2006)
to frustration with Mustafaa’s performance irrespective of her gender. See Hicks, 2004 WL 3119016, at *4, 12 (finding an issue of fact where a male plaintiff showed that employee continuously made sexually explicit comments and gestures towards him but not to any female employees and where the evidence suggested the cause of the employee’s behavior was either a work-related dispute or gender bias); but cf. Spearman v. Ford Motor Co., 231 F.3d 1080, 1085 (7th Cir.2000) (sexually explicit remarks made as a result of acrimony over work-related disputes do not constitute sexual harassment). Thus, viewed in the light most favorable to Mustafaa, Continental employees singled her out because of her gender. Despite Continental employees’ repugnant behavior, we must still determine if the sexual stereotyping was objectively offensive, i.e. sufficiently severe or pervasive, because “not every unpleasant workplace is a hostile environment.” Wyninger, 361 F.3d at 977.
3. Severe and pervasive sexual harassment Whether the complained of conduct reaches the requisite level of severity depends upon where the sexist statements fall on the line between sexual harassment and mere vulgar banter. The Seventh Circuit outlined a continuum of inappropriate behavior:
On one side lie sexual assaults; other physical contact, whether amorous or hostile, for which there is no consent express or implied; uninvited sexual solicitations; intimidating words or acts; obscene language or gestures; pornographic pictures. On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers.
Worth v. Tyer, 276 F.3d 249, 267 (7th Cir.2001). To place this case on the continuum, we must assess the context of the sexist remarks, the gravity of the discriminatory behavior, and the effect it had on the conditions of Mustafaa’s employment. Pennsylvania State Police v. Sudders, 542 U.S. 129,-, 124 S.Ct. 2342, 2347 (2004); Oncale v. Sundower Offshore Serv., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 1003, 140 L.Ed.2d 201 (1998); Meritor, 477 U.S. at 67.
Mindful of the need for sensitivity to social context, we believe that a fact finder could reasonably decide that Continental employees’ gender-based animus exceeded the bounds of acceptable workplace banter. See Oncale, 523 U.S. at 81; accord Smith, 189 F.3d at 535. First, viewed in the light most favorable to Mustafaa, the evidence shows that she was subjected to a stream of sexist remarks criticizing her performance and questioning her suitability as a Lead due to her gender. Moreover, the gender-based hostility rose to a dangerous level during an argument with Ziegler where he ran up to her in a forceful manner and got in her face screaming “I’m not listening to this slut ... I hate this bitch.”28 (Mustafaa Dep. at 125-28.)
*18 Second, the gender discrimination was not occasional, infrequent or isolated as a matter of law. Mustafaa testified at her deposition that she endured gender-biased comments regularly, and she specifically recalled between fifteen to twenty-two instances of explicit gender based incidents during the course of one year. In Hicks, the court found that the plaintiff satisfied the “pervasive” portion of the analysis by presenting evidence of twenty-nine to thirty sexually explicit comments during a year and a half to two years. 2004 WL 3119016, at *13; but see Haywood v. Evergreen Motor Cars, Inc., No. 02 C 6408, 2003 WL 21418248 (N.D.Ill. Jun.18, 2003) (finding five to six discriminatory comments and one email over four years insufficient to satisfy the “objectively offensive” requirement). However, the court in Baskerville v. Mulligan International Company found that nine comments over a seven month period did not constitute an objectively offensive environment given (1) the nature of the alleged discrimination-the employee did not say anything that could not be repeated on prime time television, and (2) the context of the statements-the employee never touched the plaintiff, threatened to harm her, or even invited her to go on a date. 50 F.3d 428, 430-32 (7th Cir.1995). Unlike Baskerville, the bulk of the remarks in this case are unambiguously and offensively sexist, the employees’ insubordination could be construed as an extension of their gender-based animus, and it is not “difficult to imagine a context that would render [the employees’ conduct] threatening or otherwise deeply disturbing” considering the Ziegler incident. Id. at 431.
Finally, a jury could find that the sexual harassment “alter[ed] the conditions of [Mustafaa’s] employment and create[d] an abusive working environment.” Meritor, 477 U.S. at 67; see also Oncale, 523 U.S. at 80 (“The critical issue ... is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”). For example, Mustafaa regularly faced discriminatory ridicule and insults at work, which made her uncomfortable and distressed. Meritor, 477 U.S. at 65 (“Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult.”). Also, the sexual harassment detracted from her ability to successfully perform as a Lead: her job required overseeing and delegating responsibilities to the same employees that exhibited contempt for females’ involvement with ramp operations and service in authoritative positions.29 See Howley v.
12

U.S. E.E.O.C. v. Continental Airlines, Inc., Not Reported in F.Supp.2d (2006)
Town of Stratford, 217 F.3d 141, 154-56 (2d Cir.2000) (considering the impact on plaintiff’s respect and impairment of her ability to lead in a hostile work environment claim). Viewing the evidence in the light most favorable to Mustafaa, a factual dispute exists as to whether her co-workers’ conduct rose to the level of severity proscribed by the statute based on the cumulative effect of the nature of the sexist comments, the frequency with which Mustafaa had to endure the harassment, and the degree to which the discriminatory attitudes interfered with her ability to perform as a Lead. See Hicks, 2004 WL 3119016, at *13; but see Spencer v. Office of Illinois Attorney Gen., No. 01C 7811, 2002 WL 31898190, at *7 (N.D.Ill.Dec.31, 2002) (holding that three brief comments about plaintiff’s body and attire over a period of a year without any allegation that the inappropriate conduct interfered with her work did not constitute severe or pervasive harassment).
4. Basis for employer liability for sexual harassment *19 Having established a genuine issue of fact as to the first three elements of her prima facie case, Mustafaa must overcome one more hurdle to defeat the motion for summary judgment: she needs to show why Continental should be liable for her co-workers’ harassment.30 “[E]mployers are liable for a co-employee’s harassment only when they have been negligent either in discovering or remedying the harassment.” Parkins v. Civil Constructors of Illinois, 163 F.3d 1027, 1035 (7th 1998) (quotation omitted). However, “[a]n employer’s legal duty in co-employee harassment cases will be discharged if it takes reasonable steps to discover and rectify acts of sexual harassment by its employees.” Id.; Hicks, 2004 WL 3119016, at *15 (same). In this case, Continental took reasonable steps to discover and prevent sexual harassment, but a question of fact exists as to whether they were negligent in remedying Mustafaa’s situation.
First, Continental provides multiple avenues for their employees to report harassment: If the harassment continues ... contact your supervisor or manager ... [I]f you fail to solve your problem by talking with your supervisor/manager, take your complaint to the next level of supervision, or another manager. If the problem is still unresolved or if you fear retaliation, contact the Human Resources Manager ... or [headquarters].”
(Pl.Resp.¶ 11.) Mustafaa, along with all Continental employees, received a copy of the company’s anti-harassment policy at the outset of her employment. She participated in anti-harassment training on an annual basis, and Continental posted the anti-harassment policy and complaint procedure throughout O’Hare. (Def. Facts ¶¶ 7, 15, 17.)
Second, “notice or knowledge of the harassment is a prerequisite for liability.”31 Parkins, 163 F.3d at 1035. In her brief opposing summary judgment, Mustafaa cited seventeen paragraphs in her Rule 56.1(b)(3) statement to show that Continental knew about her co-workers’ misconduct. Construing the facts liberally in her favor, she complained about Doran’s screaming and cursing to Castillo and Hanselmann three times, and Kobylski and Gorny at least once. (Pl. Facts ¶¶ 63-66). She also raised Ziegler’s demeaning behavior and CSAs’ cursing during a meeting with management on May 21, 2001. (Pl. Facts ¶ 60.) At that meeting, Mustafaa complained “that people wouldn’t listen to her, [that they would] give her a hard time as far as working together. If she gave some direction, it wouldn’t always be followed.” (Hanselmann Dep. at 61.) She also complained to Derain, Castillo, and Kobylski that the CSAs would not follow her directions. Derain documented Mustafaa’s concerns in a letter to Kobylski and Hanselmann wherein he notes that Mustafaa believed her difficulties stemmed from hostility due to her race or gender. (Derain Dep. at 88-90.)
Also, Continental referenced an occasion where Mustafaa reported sexist comments to Castillo after she first started working as a Lead. (Def. Facts ¶ 107.) It is undisputed that Castillo then spoke to the CSAs and informed them that their behavior was unwarranted and inappropriate. (Mustafaa Dep. at 206.) When the harassment continued, Mustafaa reported their misconduct to Derain. (Def. Facts ¶¶ 108-109.) Derain met with her crew to address the issue and said, “[t]his is your lead agent. You will treat her like a lead agent. And, guys, understand she’s a woman. Sometimes she might need a little bit of help.” (Mustafaa Dep. at 195.) Mustafaa told Derain that she found his remarks inappropriate so he apologized. (Def. Facts ¶ 110.) After Derain’s meeting, Mustafaa continued to experience harassment from her co-workers and she continued to report their misconduct. She also reported Derain’s statement to Kobylski and Hanselmann when they met in May 2001 to discuss her complaints. (Mustafaa Dep. at 196.)
*20 Since Continental was aware of at least some of Mustafaa’s complaints of harassment, we must assess whether they were negligent in remedying the problems. The law requires Continental to take reasonable steps, even if not necessarily effective, to prevent future misconduct. Baskerville, 50 F.3d at 433; Parkins, 163 F.3d at 1036. However, “a remedial measure that makes the victim of sexual harassment worse off is ineffective per se.” Hosteller v. Quality Dining, Inc., 218 F.3d 798, 811
13

U.S. E.E.O.C. v. Continental Airlines, Inc., Not Reported in F.Supp.2d (2006)
(7th Cir.2000). We cannot say as a matter of law that Continental dodges liability here, because despite evidence that Continental took steps to address the gender discrimination, it is disputed whether their actions were timely, sufficient, or reasonably calculated to prevent future harassment.
As a threshold matter, it is undisputed that Continental effectively disseminated its’ anti-harassment policy and provided recurrent anti-harassment training. Such pro-active initiatives satisfy the purpose of Title VII and weigh in favor of finding that the company took reasonable steps to address sexual harassment. See Parkins, 163 F.3d at 1037. Also, the evidence indicates that Mustafaa did not always take advantage of all avenues of recourse, despite knowledge of the company’s policies and her dissatisfaction with the response to her complaints. However, she did raise the misconduct with multiple supervisors, a manager, and O’Hare’s general manager. Therefore, we cannot say as a matter of law that Mustafaa unreasonably failed to mitigate her damages, a pre-requisite for establishing employer liability. See Sudders, 124 S.Ct. at 2354, 2357; see also Parkins, 163 F.3d at 1036-1038 (finding plaintiff unreasonably failed to reduce her harm where she only brought harassment complaints to two co-workers who had no supervisory or managerial authority despite the prevalence of supervisors and the existence of established grievance procedures). Moreover, neither the existence of anti-harassment policies, nor Mustafaa’s failure to exhaust her remedies under those policies is determinative. Meritor, 477 U.S. at 72 (“we reject ... that the mere existence of a grievance procedure and a policy against discrimination, coupled with respondent’s failure to invoke that procedure, must insulate petitioner from liability.”).
Mustafa argues that her supervisors failed to relay her concerns to higher management, Continental neglected to conduct any investigation into her complaints, and it never addressed her co-workers’ gender-biased attitudes. For example, in response to complaints that Doran cursed and talked down to Mustafa, Castillo said, “[w]ell, you know, that’s just how Pat is. You know, the two of you just have to learn how to work together.” (Pl.Resp.¶ 40.) Gorny told her not to worry about Doran and that he would talk to Hanselmann; Hanselmann told Mustafaa that he would take care of Doran. However, Continental submitted no evidence that Gorny spoke with Hanselmann or that either individual followed-up on Mustafaa’s complaints, investigated Doran’s misconduct, or counseled him about his behavior. (Mustafaa Dep. at 164-167.)
*21 Continental provided evidence that they took some action at the May 2001 meeting where Hanselmann, Kobylski, Castillo, and Derain got together with Mustafaa to discuss her concerns. First, “the managers informed Mustafaa that she should bring up concerns with management as soon as they arise, so that her supervisors could support her and ensure that CSAs followed her directions.” (Def. Facts ¶ 44.) They also issued a written directive to all CSA agents to follow their Leads’ orders and instructed all of the supervisors to meet with CSAs to verbally reinforce the directive. While Continental’s response did not explicitly address the underlying gender discrimination, a jury could find that their actions were reasonable to prevent future harassment, especially since it is unclear what role gender discrimination played at the meeting.32 Although, a jury could also consider Continental’s failure to implement common-sense remedial measures, such as reminding the CSAs of the anti-harassment policy, providing Mustafaa the option to work with a different crew, directly confronting the harasses or requesting that they apologize for their misconduct, since Mustafaa “presented some evidence suggesting that the steps her employer took were not reasonably likely to prevent the harassment from recurring[.]” See Williams v. Waste Mgmt. of Illinois, 361 F.3d 1021, 1031 (7th Cir.2004); see also Wyninger 361 F.3d at 978 (discounting the company’s failure to “remind[ ] its employees of the ... sexual harassment policy, offer [ plaintiff] an alternative to dealing directly with the [harasser], and order [ ] the men to offer an apology” because the employer acted reasonably to prevent, and actually did prevent, future harassment.)
Further, the evidence is somewhat ambiguous as to what, if anything, occurred subsequent to the May 2001 meeting after it became clear that management’s directives failed to curb Mustafaa’s harassers. Management apparently met with Mustafaa to discuss the continuing problem, but nothing suggests that Continental took steps to investigate her claims or confront the perpetrators, and she continued to work with the same crew. Also, Mustafaa’s gender discrimination complaints pre-dated May 2001 and there is evidence that Continental’s early response could have made her situation worse. Most importantly, when Derain met with Mustafaa’s crew to discuss her concerns, he said she was a woman so “she may need a little extra help.” (Def. Facts ¶ 109.) A jury could find that such remarks not only failed to rectify harassment or gender-based animus, but encouraged and reinforced the discrimination. Thus, we cannot say that Continental acted reasonably to prevent future harassment as a matter of law based on the undisputed evidence. See Wyninger, 361 F.3d at 978 (finding that defendant acted reasonably when it conducted a prompt, thorough investigation into claims of discrimination, tapped the victim’s phone to identify the culprit in future harassing calls, and where the harassment stopped after the victim reported the misconduct); see also Parkins, 163 F.3d at 1036 (holding that employer acted reasonably where it conducted immediate investigation into complaints, promptly punished and threatened to terminate the harassers, and the harassment ceased after the company took action); Baskerville, 50 F.3d at 432 (finding that once plaintiff complained to appropriate department, the company promptly investigated the claims of harassment, confronted the harasser and instructed him to discontinue his behavior, delayed awarding him a salary increase, and successfully prevented future harassment); Saxton v. American Telephone & Telegraph
14

U.S. E.E.O.C. v. Continental Airlines, Inc., Not Reported in F.Supp.2d (2006)
Co., 10 F.3d 526, 535 (7th Cir.1993) (finding that conducting an investigation the day after the plaintiff reported sexual harassment, completing the detailed report in two weeks, and transferring the harasser out of plaintiff’s department was “both timely and reasonably likely to prevent the conduct underlying her complaint from recurring.”).

IV. CONCLUSION *22 For the reasons set forth above, we hereby grant Continental’s motion for summary judgment on Mustafaa’s Title VII and Section 1981 discrimination claims and the hostile work environment claim based on race. However, we deny Continental’s motion for summary judgment with respect to the hostile work environment claim based on sex.

Parallel Citations

97 Fair Empl.Prac.Cas. (BNA) 304

Footnotes

1

The EEOC brought this claim as a result of Mustafaa’s complaints of unlawful discrimination and harassment on the basis of sex

and race. We refer to the plaintiff as “Mustafaa” since she is the charging party.

We find it necessary to comment on both parties’ failure to comply with Local Rule 56.1 (“Rule 56.1”). Rule 56.1 requires parties

to include material facts, supported by admissible evidence, in their Statements of Facts. See Malec v. Sanford, 191 F.R.D. 581,

583-85 (N.D.Ill.2000). The Malec court outlined the procedure for complying with Rule 56.1 in painstaking detail. Id.

Nevertheless, plaintiff repeatedly cited extraneous, irrelevant information and failed to provide admissible evidence for a number

of assertions. (Pl. Facts ¶¶ 40, 91, 97, 41). Also, both parties made denials supported by evidence that did not show a dispute with

the preceding statement. (Pl. Resp. ¶¶ 10, 11, 25, 55, 57, 65, 99; Def. Resp. ¶¶ 10, 11, 26, 35, 42, 46, 62, 67); see Malec, 191

F.R.D. at 584 (“If the cited material does not clearly create a genuine dispute over the movant’s allegedly undisputed fact, the

nonmovant should provide an explanation.”). Further, both parties cited to evidence which did not support their assertions. (Def.

Facts ¶¶ 26; Def. Resp. ¶¶ 10, 11; Pl. Facts ¶¶ 53, 55, 60, 83, 100).

Additionally, Continental, which frequently relied upon Malec to chastise plaintiff’s noncompliance, failed to follow Malec’s

teachings when, rather than submitting a narrative of facts, it merely directed us to its 56.1 statement. (Mot. Summ. J. at 1; see,

e.g., Def. Resp. ¶ 1.) Malec counsels that “[Rule] 56.1 statements do not abrogate a party’s obligation to recite its version of the

facts in its supporting memorandum; it is inappropriate in one’s memo to simply refer the Court to the 56.1 statement.” 191 F.R.D.

at 585. Aside from inconveniencing us, Continental’s attempt to skirt the rule effectively afforded it more space to argue, which

could have disadvantaged plaintiff. See Hicks v. Sheahan, No. 03 C 0327, 2004 WL 3119016, at *1 (N.D.Ill.Dec.20, 2004).

However, plaintiff neglected to object to this impropriety, and we also granted plaintiff’s motion for leave to file their response

brief in excess of the fifteen page limit, so we do not find that Continental’s violation of Rule 56.1 warrants denial of its motion.

We have broad discretion to mandate strict compliance with Rule 56.1, but, since both parties made errors, we “will simply

admonish [them] to please conform their pleadings to the rule in the future, and [we] will do [our] best to work with what [we

have] been given.” Id. at *1; see, e.g., Koszola v. Bd. of Ed. of City of Chicago, 385 F.3d 1104, 1109 (7th Cir.2004); Curran v.

Kwon, 153 F.3d 481, 486 (7th Cir.1998) (citation omitted). Consequently, we will simply disregard any inappropriate statements,

i.e. all non-material facts or material facts that are not supported by admissible evidence. See Malec, 191 F.R.D. at 584. Also, we

will hereinafter refer to plaintiff as “Mustafaa” since she is the charging party in the EEOC’s action.

2

Lead Pat Moore, a white male, voluntarily assumed the role of CSA, abdicating his Lead position. (Pl. Facts ¶ 113.)

3

On its face, the criteria listed in the Fly to Win Handbook for Agents applies to employment decisions irrespective of job titles or

classifications like “bid” positions. (Pl. Opp. to Mot. for Summ. J. Ex. G (Fly to Win Handbook for Agents ) at 1.)

4

Mustafaa claims that Castillo informed a number of CSAs that they could bypass Mustafaa and go to him directly if they needed

anything. (Id. at ¶¶ 44, 92.) There are serious questions as to whether this evidence constitutes inadmissible hearsay. Regardless,

Castillo’s alleged statements do not impact our ruling so we will disregard the evidence.

5

Continental repeatedly objects to Mustafaa’s “self serving and uncorroborated testimony.” However, facts within Mustafaa’s

personal knowledge, such as co-workers’ derogatory statements made in her presence, are properly supported by deposition

testimony at this stage of litigation. See Payne v. Pauley, 337 F.3d 767, 773 (7th Cir.2003) (finding self-serving affidavit proper

form of evidence for summary judgment so long as the information contained therein is based on personal knowledge).

6

Mustafaa recounts additional instances where Aberle used derogatory terms outside of her presence. (Pl. Facts ¶ 39-40; Mustafaa

Dep. at 284, 288-89.) She also claims that a Hispanic co-worker overheard Castillo make racist comments in Spanish. (Mustafaa

Dep. at 328.) However, we cannot consider those inadmissible hearsay statements for summary judgment. See Eisenstadt v. Centel

15

U.S. E.E.O.C. v. Continental Airlines, Inc., Not Reported in F.Supp.2d (2006)

Corp., 113 F.3d 738, 742 (7th Cir.1997)

7

Mustafaa admitted that Doran also cursed at other employees, including males and Caucasians, but not in the same discriminatory

manner that he degraded her. (Def. Facts ¶ 77; Pl. Facts ¶ 26.)

8

Ever since Continental promoted Castillo to supervisor and Mustafaa to Lead, the two did not work well together. Mustafaa

complained to Kobylski that Castillo would not allow her to perform her lead duties. (Pl. Facts ¶ 55.) Castillo’s performance

evaluations for 2001 indicated overall problems with communication and delegation to Leads. (Pl. Resp. to Def. Facts ¶¶ 45, 57.)

In May 2001, Castillo and Mustafaa admitted that they had communication problems and agreed to work on improving the

situation. (Def. Facts ¶ 45.)

9

“For purposes of [Section 1981], the term ‘make and enforce contracts’ includes the making, performance, modification, and

termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42

U.S.C. § 1981. Employment-at-will relationships constitute a contract under § 1981. See Stone v. American Federation of

Government, 135 F.Supp.2d 873 (N.D.Ill.2001).

10

The one comment Mustafaa attributes to Castillo, “the fucking ramp is [hers,]” is not inherently sexist, nor can we properly infer

gender discrimination given the context of the statement. See Cerutti v. BASF Corp., 349 F.3d 1055, 1062 (7th Cir.2003).

11

For example, courts look at whether the employees “(i) held the same job description, (ii) were subject to the same standards, (iii)

were subordinate to the same supervisor, and (iv) had comparable experience, education, and other qualifications.” Brummett v.

Sinclair Broad. Group, Inc., 414 F.3d 686, 692-93 (7th Cir.2005).

12

Additionally, Derain’s past praise of Mustafaa’s ramp operation does not automatically render his decision suspect. Given the fact

that Derain’s positive commentary occurred in May, four months before the demotion discussions, and did not involve assessments

of her abilities vis a vis other Leads, we cannot infer discriminatory intent behind his opinion that Reyes’ performance surpassed

Mustafa’s.

13

Mustafaa and Derain recall the situation differently, but even Mustafaa admits questioning and/or referencing Ziegler’s sexuality

over the loud speaker at work during an intense dispute.

14

Further, Derain disciplined both Mustafaa and Ziegler for their conduct so Mustafaa cannot argue disparate treatment.

15

Mustafaa also complains about Aberle’s use of profanity and racial slurs, but the evidence she cites is inadmissible hearsay. (Pl.

Facts ¶ 40.)

16

Also, “[d]ifferent employment decisions, concerning different employees made by different supervisors, are seldom sufficiently

comparable to establish a prima facie case ... [because] different supervisors may exercise their discretion differently.” Radue, 219

F.3d at 618.

17

Mustafaa presented no evidence that working on crews at least eight times in one year is disproportionate to the number of times

other Leads performed the same duties.

18

Continental cites Castillo’s deposition testimony to refute Mustafaa’s allegation, but his testimony does not directly contradict

Mustafaa’s. (Def.Resp.¶ 10-11.) In fact, according to his testimony, Castillo only specifically recalls assigning Mustafaa to work

on crews. (Castillo Dep. at 68-69.) Viewed in the light most favorable to Mustafaa, the evidence either supports her interpretation

or presents an issue of fact for the jury.

19

The Seventh Circuit recognized that the third type of circumstantial evidence under the direct method is substantially equivalent to

the evidence required under the indirect method of McDonnell Douglas. See Huff v. UARCO, Inc., 122 F.3d 374, 380 (7th

Cir.1997).

20

Mustafaa’s motion to strike Amanda Helm’s affidavit and portions of Defendant’s Response that referred to the affidavit is moot.

We did not consider Helm’s attestation that Continental’s written policy only applies to “bid” positions like CSAs as opposed to

merit-based Leads for two reasons, irrespective of Federal Rule of Civil Procedure 37(c)(1). First, a plain reading of the written

policy reveals that while the preamble defines different job categories, distinguishing CSAs from Leads, the first paragraph in the

criteria section, wherein seniority is listed as the critical factor, appears to apply to all Continental employees. Since we view the

facts in Mustafaa’s favor for purposes of this motion, we assumed that the policy applied to Leads. Second, Hanselmann testified at

his deposition that the written policy did not apply to Leads, thus Helm’s affidavit was largely redundant and immaterial.

21

Mustafaa cannot claim that Derain’s alleged gender bias tainted his evaluation given his favorable report on her performance in a

May 2001 letter to Kobylski and Hanselmann. For a discussion regarding Derain’s decision to select Mustafaa over Reyes see

Section III(A)(1)(b)(i), supra.

16

U.S. E.E.O.C. v. Continental Airlines, Inc., Not Reported in F.Supp.2d (2006)

22

Moreover, the evidence does not suggest that Continental’s purported reason for demoting Mustafaa-performance-was pretextual.

See Section III(A)(1)(b)(iii), supra.

23

The evidence indicates that Mustafaa subjectively believed her environment was hostile.

24

Mustafaa points to other occasions where Aberle used derogatory language, but we cannot consider that hearsay evidence.

Eisenstadt, 113 F.3d at 742. Even if we disregarded the evidentiary bar, the racial harassment claim would fail because Aberle’s

remarks were directed at other employees and “the impact of [such] second-hand harassment is obviously not as great as the impact

of harassment directed at [Mustafaa].” Russell, 243 F.3d at 343 (citation and quotation marks omitted).

25

The other allegations of cursing do not explicitly refer to gender or implicitly evince gender bias when they are viewed in context.

(Def. Facts ¶¶ 78, 81.) Thus, Mustafaa cannot establish the necessary causal nexus between the profanity and her gender. See

Wyninger, 361 F.3d at 976; Hardin, 167 F.3d at 346.

26

Continental’s argument that this statement should be stricken is without merit since Mustafaa testified based on her personal

knowledge. Moreover, Continental failed to provide any evidence to rebut Mustafaa’s testimony that Doran did not curse at male

co-workers with gender-based attacks.

27

In her deposition testimony, Mustafaa described additional acts of alleged sexism, including: Castillo assigned her to work on

crews eight times; Doran intentionally sprayed her with de-icing fluid; and management repeatedly summoned her to the office.

While she only relied on the sexist comments to oppose summary judgment, we must still assess the legal implications of the

supplemental evidence on her sexual harassment claim. Flynn v. Sandal, 58 F.3d 283, 288 (7th Cir.1995). However, none of these

incidents bolster her prima facie case since nothing indicates that the alleged misconduct occurred because of her sex. First, as

described in Section III(A)(1)(b)(ii), supra, Mustafaa did not show that she was treated unfairly relative to male Leads with regard

to working on crews and, further, Castillo thought poorly of Mustafaa’s performance thus negating an inference of causation

between his decision to assign her to a crew-rather than remain a Lead during irregular operations-and her gender. Second, aside

from her conclusory allegations, nothing suggests that Doran sprayed Mustafa because of her gender. Finally, Management

“summoned” Mustafaa to the office to address her concerns, not to single her out.

28

Neither party addressed whether Ziegler’s behavior was attributable to a work-related dispute, a mere personality clash, or

gender-based animus. While expletives like “slut” and “bitch” refer to females, their modern-day usage does not automatically

equate to disparaging someone because of their sex. Also, Ziegler’s reference to Mustafaa being “sexually touchy-feely” and

“talking sex with male ramp employees” could either indicate displeasure that she was not one of the boys or a complaint about

inappropriate behavior. Nonetheless, a jury could find that Ziegler verbally assaulted and threatened Mustafaa because of her sex

after assessing the context of their dispute and making credibility determinations. See Wrick v. City of Chicago, No. 99 C 4777,

2003 WL 21823544, at *7 (N.D.Ill. Aug.6 2003).

29

While Mustafaa’s inability to gain her crew’s respect could be attributed to sources other than gender bias, a jury could find that

their insubordination stemmed from her sex. Moreover, Continental did not show that male Leads experienced similar, ongoing,

and persistent difficulties with crews.

30

Mustafaa limited her claim to co-worker harassment thus precluding the need to assess vicarious liability under the strict liability

theory espoused in Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), and Burlington Indus.,

Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).

31

It is not our job to scour the record searching for evidence to bolster Mustafaa’s position, which means that “supporting documents

submitted with a motion that are not referred to in the statement of facts will be ignored.” See Malec, 191 F.R.D. at 583. Further,

only those complaints referring to or inferring sexual harassment are relevant for this analysis.

32

According to Mustafaa, she relayed examples of harassment, but they were dismissed as old news. For its part, Continental claims

that Mustafaa failed to provide specifics of her complaints, which could factor into a reasonableness analysis regarding their

response.

17

 
 CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket... https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?722736462774597-L_35...
CASREF, KEYS, TERMED
United States District Court Northern District of Illinois - CM/ECF LIVE, Ver 3.0 (Chicago)
CIVIL DOCKET FOR CASE #: 1:04-cv-03055

EEOC v. Continental AL Inc Assigned to: Hon. Marvin E. Aspen Demand: $0 Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 04/29/2004 Date Terminated: 12/27/2006 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by June Wallace Calhoun United States Equal Employment Opportunity Commission 500 West Madison Street Suite 2800 Chicago, IL 60661 (312) 353-7568 Email: june.calhoun@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory M. Gochanour United States Equal Employment Opportunity Commission 500 West Madison Street Suite 2800 Chicago, IL 60661 (312) 886-9124 Email: gregory.gochanour@eeoc.gov ATTORNEY TO BE NOTICED

John C. Hendrickson United States Equal Employment Opportunity Commission 500 West Madison Street Suite 2800 Chicago, IL 60661 (312) 353-8551 Fax: (312) 353-8555 Email: john.hendrickson@eeoc.gov ATTORNEY TO BE NOTICED

Richard John Mrizek U.S. Equal Employment Opportunity Commission 500 W. Madison

1 of 12

6/6/2007 9:08 AM

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket... https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?722736462774597-L_35...

V. Defendant Continental Airlines, Inc.

Suite 2800 Chicago, IL 60661 (312) 886-9078 Fax: (312) 353-8555 Email: richard.mrizek@eeoc.gov ATTORNEY TO BE NOTICED
represented by Shanthi V. Gaur Littler Mendelson, P.C. 200 North LaSalle Street Suite 2900 Chicago, IL 60601 (312) 372-5520 Email: sgaur@littler.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amanda Helm Wright Littler Mendelson, P.C. 200 North LaSalle Street Suite 2900 Chicago, IL 60601 (312) 372-5520 Email: awright@littler.com ATTORNEY TO BE NOTICED
Keith C. Hult Littler Mendelson, P.C. 200 North LaSalle Street Suite 2900 Chicago, IL 60601 (312) 372-5520 Email: khult@littler.com ATTORNEY TO BE NOTICED

Date Filed 04/29/2004
04/30/2004

#

Docket Text

1 COMPLAINT; jury demand - Civil cover sheet - Appearance(s) of John C. Hendrickson, Gregory M. Gochanour, June Wallace Calhoun as attorney(s) for plaintiff (No summons(es) issued.) (Documents: 1-1 through 1-3) (vmj) (Entered: 04/29/2004)
SCHEDULE set on 4/30/04 by Hon. Marvin E. Aspen : Status hearing set to 10:30 6/10/04, in Courtroom 2525. Plaintiff is to advise defendant of status. Mailed notice (gl) (Entered: 04/30/2004)

2 of 12

6/6/2007 9:08 AM

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket... https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?722736462774597-L_35...

05/10/2004 05/17/2004 06/14/2004
06/22/2004 06/22/2004 07/08/2004
09/29/2004 10/15/2004 10/21/2004
10/28/2004 11/23/2004
01/13/2005 01/14/2005
01/14/2005

2 ATTORNEY APPEARANCE for defendant by Shanthi V. Gaur, Keith C. Hult, Amanda Helm Wright. (vmj) (Entered: 05/11/2004)
3 WAIVER of service of summons as to defendant Continental AL Inc sent on 4/29/04. (vmj) (Entered: 05/18/2004)
SCHEDULE set on 6/14/04 by Hon. Marvin E. Aspen : Status hearing held and continued to 10:30 7/8/04. Parties are to come in with a joint discovery plan and advise the court on the prospects of settlement. Mailed notice (gl) (Entered: 06/14/2004)
4 CORPORATE DISCLOSURE STATEMENT by defendant (rmm) (Entered: 06/23/2004)
5 ANSWER and affirmative defenses by defendant to plaintiff's complaint [1-1] (rmm) (Entered: 06/23/2004)
SCHEDULE set on 7/8/04 by Hon. Marvin E. Aspen : Status hearing held and continued to 10:30 11/23/04. Discovery ordered closed on 11/1/04. Joint Pretrial order is to be submitted in open court on 10:30 11/23/04. Mailed notice (gl) (Entered: 07/08/2004)
SCHEDULE set on 9/29/04 by Hon. Marvin E. Aspen : Settlement conference set for 10:30 10/28/04. Principles or somone with settlement authority are to be present. Mailed notice (gl) (Entered: 09/29/2004)
6 AGREED MOTION to stay discovery pending initial settlement conference ; Notice. (vmj) (Entered: 10/22/2004)
7 MINUTE ORDER of 10/21/04 by Hon. Marvin E. Aspen: Agreed motion to stay discovery pending initial settlement conference is granted [6-1]. Discovery is stayed pending settlement conference. The court will set a new discovery date on 10/28/04, if the case does not settle. Mailed notice (vmj) (Entered: 10/22/2004)
SCHEDULE set on 10/28/04 by Hon. Marvin E. Aspen : Settlement conference held. No notice (gl) (Entered: 11/02/2004)
SCHEDULE set on 11/23/04 by Hon. Marvin E. Aspen : Status hearing held and continued to 10:30 3/24/05. All Discovery ordered closed on 3/1/05. Final date. Joint Pretrial order is to be submitted in open court on 10:30 3/24/05. Mailed notice (gl) (Entered: 11/23/2004)
8 MOTION by plaintiff for entry of a protective order (Attachments); Memorandum of law in support; Notice. (gma) Modified on 01/13/2005 (Entered: 01/13/2005)
9 REFERRAL ORDER: Case referred to Hon. Arlander Keys for discovery motion, plaintiff's motion for entry of a protective order striking paragrph (b) from defendant's amended notice of deposition. Mailed notice. (gl) (Entered: 01/14/2005)
12 ORDER referring a civil case to the designated Magistrate Judge. Signed by Judge Marvin E. Aspen on 1/14/2005: (vmj, ) (Entered: 02/07/2005)

3 of 12

6/6/2007 9:08 AM

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket... https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?722736462774597-L_35...

01/27/2005
01/28/2005
02/08/2005 02/08/2005 02/08/2005 02/11/2005 02/16/2005 02/16/2005
02/16/2005 02/16/2005 02/16/2005
02/16/2005

10 MINUTE entry before Judge Arlander Keys : Settlement Conference set for 2/14/2005 at 01:30 PM. All parties are to be represented at the settlement conference by an individual (other than their attorneys) with full authority to settle. The parties are to exchange (but not file) written settlement offers, copies of which are to be submitted to the court by 2/08/05. (ac, ) (Entered: 01/27/2005)
11 MINUTE entry before Judge Arlander Keys : The matter was referred to this Court for ruling on plaintiff's motion for entry of a protective order 8, not for a settlement conference. The 1/27/05 notice of settlement conference is stricken. Defendant will file a response to plaintiff's motion for entry of protective order by 2/8/05. Ruling set for 2/16/05 at 9:00 a.m. Notices mailed by judge's staff (vmj, ) (Entered: 02/01/2005)
13 MOTION by Defendant Continental Airlines, Inc. to extend time for discovery. (gma, ) (Entered: 02/08/2005)
14 NOTICE of Motion by Keith C. Hult for presentment of MOTION by Defendant Continental Airlines, Inc. to extend time for discovery 13 before Honorable Arlander Keys on 2/16/2005 at 09:00 AM. (gma, ) (Entered: 02/08/2005)
15 RESPONSE by Continental Airlines, Inc. to plaintiff's motion for protective order8; Exhibits. (gma, ) Modified on 1/12/2006 (ym, ). (Entered: 02/08/2005)
16 MINUTE entry before Judge Marvin E. Aspen : Status hearing and for filing of the joint pretrial order set for 3/24/05 is reset for 4/7/2005 at 10:30 AM. Notices mailed by judge's staff. (gl, ) (Entered: 02/11/2005)
17 MINUTE entry before Judge Marvin E. Aspen dated 2/16/05: The referral to Magistrate Judge Keys is enhanced to include conducting a settlement conference. Notices mailed by judge's staff. (gl, ) (Entered: 02/16/2005)
18 MINUTE entry before Judge Arlander Keys : Settlement Conference set for 4/4/2005 at 10:00 AM. All parties are to be represented at the settlement conference by an individual (other than their attorneys) with full authority to settle. The parties are to exchange (but not file) written settlement offers, copies of which are to be submitted to the court by 3/28/05. Notices mailed by judge's staff. (ac, ) (Entered: 02/16/2005)
19 MOTION by Plaintiff Equal Employment Opportunity Commission to quash subpoena; Exhibits. (rbf, ) Modified on 2/28/2006 (ym, ). (Entered: 02/17/2005)
20 NOTICE of Motion by June Wallace Calhoun for presentment of motion to quash subpoena 19 before Honorable Arlander Keys on 2/18/2005 at 09:00 AM. (rbf, ) (Entered: 02/17/2005)
21 MINUTE entry before Judge Arlander Keys : Plaintiff's motion for entry of a protective order 8 is granted for the reasons stated in open court. Motion by defendant Continental Airlines, Inc. to extend time for discovery 13 is granted. The discovery cut off deadline is extended to 3/15/05 for the limited purpose of taking depositions of witnesses that have been already identified. Status hearing set to 3/18/05 at 9:00 a.m. Mailed notice (vmj, ) (Entered: 02/18/2005)
24 MINUTE entry before Judge Arlander Keys : Pursuant to the parties telephonic request to this court, plaintiff's motion to quash subpoena 19 is entered and continued to 4/4/2005 at 10:00 AM. Mailed notice (vmj, ) (Entered: 02/24/2005)

4 of 12

6/6/2007 9:08 AM

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket... https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?722736462774597-L_35...

02/18/2005 02/18/2005 02/25/2005 04/04/2005 04/21/2005 04/21/2005 04/21/2005 04/21/2005 04/25/2005
04/25/2005

22 AGREED MOTION by Plaintiff Equal Employment Opportunity Commission to stay discovery pending settlement conference (gma, ) (Entered: 02/18/2005)
23 NOTICE of Motion by June Wallace Calhoun for presentment of AGREED MOTION by Plaintiff Equal Employment Opportunity Commission to stay discovery pending settlement conference 22 before Honorable Marvin E. Aspen on 2/24/2005 at 10:30 AM. (gma, ) (Entered: 02/18/2005)
25 MINUTE entry before Judge Marvin E. Aspen dated 2/24/05: Agreed motion to stay 22 discovery pending settlement is granted. Discovery is extended to 5/16/2005. The status hearing and for filing of the joint pretrial order set for 4/7/05 is reset to 6/9/05 at 10:30 a.m. Notices mailed by judge's staff. (gl, ) (Entered: 02/25/2005)
26 MINUTE entry before Judge Arlander Keys : Extensive settlement conference held. While a great deal of progress was made on several proposals for resolving this case, the parties cannot agree to a settlement at this time. All matters relating to the referral of this action having been resolved, the case is returned to the assigned judge. Mailed notice (mjc, ) (Entered: 04/06/2005)
27 MOTION by Plaintiff Equal Employment Opportunity Commission to compel production of documents (rbf, ) (Entered: 04/22/2005)
28 NOTICE of Motion by Equal Employment Opportunity Commission for presentment of motion to compel production of documents 27 before Honorable Marvin E. Aspen on 4/25/2005 at 09:00 AM. (rbf, ) (Entered: 04/22/2005)
29 NOTICE of Motion by Equal Employment Opportunity Commission for presentment of motion for protective order and renewed motion to quash before Honorable Arlander Keys on 4/25/2005 at 09:00 AM. (rbf, ) (Entered: 04/22/2005)
30 MOTION by Plaintiff Equal Employment Opportunity Commission to protective order and renewed motion to quash subpoenas. (vmj, ) Modified on 11/21/2006 (mjc, ). (Entered: 04/25/2005)
31 MINUTE entry before Judge Arlander Keys: Equal Employment Opportunity Commission's oral motion to preclude defendant from deposing plaintiff's treating psychiatrist is granted. However, in return for defendant's agreement not to pursue plaintiff's psychiatric records and the deposition of Dr. Gleaves, plaintiff agreed that her only testimony regarding any alleged emotional distress will be limited to her having been upset, angry, embarrassed and humiliated. No other testimony or evidence will be introduced on this issue. Therefore, the treatment records and the deposition of Dr. Gleaves is unnecessary. It is so ordered. Mailed notice (vmj) (Entered: 04/28/2005)
32 MINUTE entry before Judge Arlander Keys: Plaintiff's motion to compel production of documents 27 is granted in part as stated during oral argument. The production of employee files will be limited to review by attorneys eyes only. Equal Employment Opportunity Commission motion for protective order 30 and renewed motion to quash 30 is granted. Records of plaintiff's employment dating back to almost 10 years are irrelevant to the issue in this case. Mailed notice (vmj) (Entered: 04/28/2005)

5 of 12

6/6/2007 9:08 AM

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket... https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?722736462774597-L_35...

04/29/2005 05/04/2005 06/01/2005 06/01/2005 06/01/2005 06/01/2005 06/01/2005 06/03/2005 06/03/2005
06/06/2005 06/14/2005
07/06/2005

33 EXECUTIVE COMMITTEE ORDER:Case referred to magistrate judge Arlander Keys. Signed by Executive Committee on 4/29/05. (vmj, ) (Entered: 05/03/2005)
34 MINUTE entry before Judge Arlander Keys : All matters relating to the referral of this action having been resolved, the case is returned to the assigned judge. Judge Arlander Keys no longer referred to the case. No notice. Modified on 6/23/2006 (smm, ). (Entered: 05/04/2005)
35 MOTION by Defendant to extend final date to file dispositive motions or submit joint pretrial order (gma, ) (Entered: 06/02/2005)
36 NOTICE of Motion by Shanthi V. Gaur for presentment of MOTION by Defendant to extend final date to file dispositive motions or submit joint pretrial order 35 before Honorable Marvin E. Aspen on 6/7/2005 at 10:30 AM. (gma, ) (Entered: 06/02/2005)
37 MOTION by Defendant Continental Airlines, Inc. to compel production of the EEOC's investigative memorandum (gma, ) (Entered: 06/02/2005)
38 NOTICE of Motion by Shanthi V. Gaur for presentment of MOTION by Defendant Continental Airlines, Inc. to compel production of the EEOC's investigative memorandum 37 before Honorable Marvin E. Aspen on 6/7/2005 at 10:30 AM. (gma, ) (Entered: 06/02/2005)
39 MEMORANDUM by Equal Employment Opportunity Commission in Support of MOTION by Defendant Continental Airlines, Inc. to compel production of the EEOC's investigative memorandum 37 (gma, ) (Entered: 06/02/2005)
40 MINUTE entry before Judge Marvin E. Aspen dated 6/3/05: The status hearing and for filing of the joint pretrial order set for 6/9/05 is reset to 6/16/2005 at 10:30 AM. Judicial staff mailed notice (gl, ) (Entered: 06/04/2005)
41 MINUTE entry before Judge Marvin E. Aspen dated 6/3/05: Defendant's motion to extend final date to file dispositive motions or submit joint pretrial order (35) is granted. The status hearing and for filing of dispositive motions and/or the joint pretrial order set for 6/9/05 is reset to 8/18/05 at 10:30 a.m. Final extension. Judicial staff mailed notice (gl, ) (Entered: 06/05/2005)
42 EXECUTIVE COMMITTEE ORDER:Case referred to Magistrate Judge Arlander Keys. Signed by Executive Committee on 6/6/05. (vmj, ) (Entered: 06/09/2005)
43 MINUTE entry before Judge Arlander Keys: EEOC to file response to defendant Continental Airlines, Inc.'s motion to compel production of the EEOC's investigative memorandum 37 by 7/6/05. EEOC will submit the investigative memorandum at issue herein to the court for in camera inspection. Defendant to file reply brief, if desired by 7/14/05. Defendant will submit to the court, the deposition transcript of the deposition of Mr. Tyler Graden. The court will rule by mail. Mailed notice (vmj, ) (Entered: 06/20/2005)
44 RESPONSE by plaintiff, Equal Employment Opportunity Commission to defendant's motion to compel production of EEOC's investigative memorandum 37 (Exhibits). (vmj, ) (Entered: 07/12/2005)

6 of 12

6/6/2007 9:08 AM

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket... https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?722736462774597-L_35...

07/14/2005 08/03/2005 08/03/2005 08/03/2005 08/03/2005 08/08/2005
08/17/2005 08/17/2005
08/23/2005
09/19/2005 09/19/2005
09/19/2005 09/19/2005 09/19/2005

45 REPLY in further support of its motion to compel production of the EEOC's investigative memorandum 37. (vmj, ) (Entered: 07/19/2005)
46 MOTION by Defendant for summary judgment (gma, ) (Entered: 08/04/2005)
47 NOTICE of Motion by Amanda Helm Wright for presentment of MOTION by Defendant for summary judgment 46 before Honorable Marvin E. Aspen on 8/9/2005 at 10:30 AM. (gma, ) (Entered: 08/04/2005)
48 MEMORANDUM by defendant in support of MOTION by Defendant for summary judgment 46 (gma, ) (Entered: 08/04/2005)
49 LOCAL RULE 56.1(a)(3) STATEMENT by defendant of uncontested material facts in support of its motion for summary judgment 46 (gma, ) (Entered: 08/04/2005)
50 MINUTE entry before Judge Marvin E. Aspen dated 8/8/05: Plaintiff is to Respond to defendant Continental Airlines, Inc.'s motion for summary judgment (46) on or before 8/29/2005 Defendant is to Reply by 9/13/2005. The status hearing set for 8/18/05, before Judge Aspen is stricken. Ruling is set for 1013/05 at 10:30 a.m. Judicial staff mailed notice (gl, ) (Entered: 08/08/2005)
51 UNOPPOSED MOTION by Plaintiff for extension of time to file its response to defendant's motion for summary judgment (gma, ) (Entered: 08/18/2005)
52 NOTICE of Motion by June Wallace Calhoun for presentment of UNOPPOSED MOTION by Plaintiff for extension of time to file its response to defendant's motion for summary judgment 51 before Honorable Marvin E. Aspen on 8/23/2005 at 10:30 AM. (gma, ) (Entered: 08/18/2005)
53 MINUTE entry before Judge Marvin E. Aspen dated 8/23/05 : Plaintiff Equal Employment Opportunity Commission's motion (51) for extension of time to file its response to defendant's motion for summary judgment, to 9/19/05 is granted. Defendant is to reply by 10/3/05. The ruling date of 10/13/05 is reset to 11/3/05 at 10:30 a.m. Judicial staff mailed notice (gl, ) (Entered: 08/23/2005)
54 MOTION by Plaintiff Equal Employment Opportunity Commission for leave to file brief in excess of fifteen pages (Attachments: # 1 Memorandum)(vcf, ) (Entered: 09/20/2005)
55 NOTICE of Motion by Equal Employment Opportunity Commission for presentment of motion for leave to file brief in excess of fifteen pages in response to defendant's motion for summary judgment54 before Honorable Marvin E. Aspen on 9/22/2005 at 10:30 AM. (vcf, ) (Entered: 09/20/2005)
56 RULE 56.1(b) by Plaintiff Equal Employment Opportunity Commission RESPONSE to defendant's statement of uncontested material facts in support of its motion for summary judgment. (vcf, ) (Entered: 09/20/2005)
57 NOTICE by Equal Employment Opportunity Commission of motion for summary judgment 55, Response to defendant's statement of facts, EEOC's additional facts, and EEOC's exhibits56. (vcf, ) (Entered: 09/20/2005)
61 EXHIBITS by plaintiff in support of EEOC's OPPOSITION to summary judgment(gma, ) (Entered: 09/20/2005)

7 of 12

6/6/2007 9:08 AM

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket... https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?722736462774597-L_35...

09/19/2005 09/20/2005 09/20/2005 09/20/2005 09/26/2005
09/26/2005
09/30/2005 09/30/2005 10/11/2005
10/11/2005 10/17/2005 10/17/2005

62 STATEMENT of additional undisputed material facts by Equal Employment Opportunity Commission (vmj, ) (Entered: 09/21/2005)
58 MOTION by Defendant Continental Airlines, Inc. for extension of time to file reply to summary judgment and response to statement of additional material facts (Gaur, Shanthi) (Entered: 09/20/2005)
59 NOTICE of Motion by Shanthi V. Gaur for presentment of motion for extension of time58 before Honorable Marvin E. Aspen on 9/27/2005 at 10:30 AM. (Gaur, Shanthi) (Entered: 09/20/2005)
60 MINUTE entry before Judge Marvin E. Aspen dated 9/20/05: Plaintiff Equal Employment Opportunity Commission motion (54) for leave to file its response to defendant's motion for summary judgment in excess of 15 pages is granted. Telephoned notice (gl, ) (Entered: 09/20/2005)
63 MINUTE entry before Judge Marvin E. Aspen dated 9/26/05: Defendant Continental Airlines, Inc.'s motion to extend time to file reply to summary judgment and response to statement of additional material facts 58, until 10/17/05 is granted. The ruling date of 11/3/05 is reset to 11/22/05 at 10:30 a.m. Judicial staff mailed notice (gl, ) (Entered: 09/26/2005)
64 MINUTE entry before Judge Marvin E. Aspen dated 9/26/05: The plaintiff (EEOC) is directed to re-submit to the Court, on or before 10/7/05, its Local Rule 56.1(b) response to the defendant's statement of uncontested material facts in support of its motion for summary judgment with proper citations to the following portions: P. 13, Response to #40, P. 14, Response to #42, P. 17, Response to #54, P. 26, Response to #70, and P.27-28, Response to #75. Judicial staff mailed notice (gl, ) (Entered: 09/26/2005)
65 ATTORNEY Appearance for Plaintiff Equal Employment Opportunity Commission by Richard John Mrizek (Mrizek, Richard) (Entered: 09/30/2005)
66 RULE 56.1(b) Statement by Equal Employment Opportunity Commission regarding motion for summary judgment46 Revised (Attachments: # 1)(Mrizek, Richard) (Entered: 09/30/2005)
67 MINUTE entry before Judge Arlander Keys: Memorandum opinion and order entered. For the reasons outlined in the attached order, defendant's motion to compel production of the EEOC's Investigative memorandum [#37] is hereby denied. All matters relating to the referral of this action having been resolved, the case is returned to the assigned judge. (jmm, ) (Entered: 10/13/2005)
68 MEMORANDUM Opinion and Order Signed by Judge Marvin E. Aspen on 10/11/2005.(jmm, ) (Entered: 10/13/2005)
69 REPLY by Continental Airlines, Inc.in Support of MOTION by Defendant Continental Airlines, Inc. for summary judgment46 (Gaur, Shanthi) (Entered: 10/17/2005)
70 RESPONSE by Defendant Continental Airlines, Inc. to Rule 56 statement66 of Additional Undisputed Material Facts (Attachments: # 1 Affidavit of Amanda Helm Wright)(Gaur, Shanthi) (Entered: 10/17/2005)

8 of 12

6/6/2007 9:08 AM

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket... https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?722736462774597-L_35...

11/01/2005
11/01/2005 11/03/2005
11/10/2005
11/15/2005
11/21/2005 12/28/2005 01/03/2006 01/03/2006 02/02/2006 03/28/2006

71 MOTION by Plaintiff Equal Employment Opportunity Commission to strike Response70 Affidavit of Amanda Helm Wright and Defendant's Response to Plaintiff's Undisputed Material Fact 103 pursuant to Rule 37(c)(1) (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2)(Mrizek, Richard) (Entered: 11/01/2005)
72 NOTICE of Motion by Richard John Mrizek for presentment of motion to strike, motion for relief,, 71 before Honorable Marvin E. Aspen on 11/3/2005 at 10:30 AM. (Mrizek, Richard) (Entered: 11/01/2005)
73 MINUTE entry before Judge Marvin E. Aspen dated 11/3/05: Defendant is to respond to plaintiff's motion to strike affidavit of Amanda Helm Wright and defendant's response to plaintiff's statement of additional undisputed material facts 103 pursuant to Rule 37(c)(1) on or before 11/10/05. Plaintiff is to reply by 11/15/05. Judicial staff mailed notice (gl, ) (Entered: 11/03/2005)
74 RESPONSE by Continental Airlines, Inc. to MOTION by Plaintiff Equal Employment Opportunity Commission to strike Response70 Affidavit of Amanda Helm Wright and Defendant's Response to Plaintiff's Undisputed Material Fact 103 pursuant to Rule 37(c)(1)71 (Attachments: # 1 Exhibit A)(Gaur, Shanthi) (Entered: 11/10/2005)
75 REPLY by Equal Employment Opportunity Commissionin Support of MOTION by Plaintiff Equal Employment Opportunity Commission to strike Response70 Affidavit of Amanda Helm Wright and Defendant's Response to Plaintiff's Undisputed Material Fact 103 pursuant to Rule 37(c)(1)71 (Mrizek, Richard) (Entered: 11/15/2005)
76 MINUTE entry before Judge Marvin E. Aspen 1/21/05: The ruling date of 11/22/05 is stricken and reset to 12/29/2005 at 10:30 AM. Judicial staff mailed notice (gl, ) (Entered: 11/21/2005)
77 MINUTE entry before Judge Marvin E. Aspen dated 12/28/05: The ruling date set for 12/29/05 is reset to 2/2/06 at 10:30 a.m. Judicial staff mailed notice (gl, ) (Entered: 12/28/2005)
78 MINUTE entry before Judge Marvin E. Aspen dated 1/3/06: Enter Memorandum Opinion and Order: We grant in part and deny in part the motion for summary judgment (46). Plaintiff's motion to strike (70) is moot. Judicial staff mailed notice (gl, ) (Entered: 01/03/2006)
79 Enter MEMORANDUM Opinion and Order dated 1/3/06 Signed by Judge Marvin E. Aspen on 1/3/2006:Judicial staff mailed notice(gl, ) (Entered: 01/03/2006)
80 MINUTE entry before Judge Marvin E. Aspen dated 2/2/06: Status hearing held on 2/2/2006, and continued to 4/6/2006 at 10:30 AM., for report on settlement. Judicial staff mailed notice (gl, ) (Entered: 02/02/2006)
81 EXECUTIVE COMMITTEE ORDER: Case referred to Magistrate Judge Arlander Keys. Signed by Judge Charles P. Kocoras on 3/28/06. (gcy, ) (Entered: 03/31/2006)

9 of 12

6/6/2007 9:08 AM

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket... https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?722736462774597-L_35...

04/03/2006
04/03/2006 05/03/2006
05/19/2006 05/24/2006 05/24/2006
06/14/2006 06/14/2006
06/23/2006 06/23/2006

82 MINUTE entry before Judge Arlander Keys : Pursuant to the agreement of the parties, Settlement Conference set for 5/3/2006 at 01:30 PM. All parties are to be represented at the settlement conference by an individual (other than their attorneys) with full authority to settle. The parties are to exchange (but not file) written settlement offers, copies of which are to be submitted to the court by 4/25/06. (ac, ) (Entered: 04/03/2006)
83 MINUTE entry before Judge Marvin E. Aspen dated 4/3/06: The status hearing set for 4/6/06, before Judge Aspen, is reset to 5/23/2006 at 10:30 AM., for report on settlement. Judicial staff mailed notice (gl, ) (Entered: 04/03/2006)
84 MINUTE entry before Judge Arlander Keys : Extensive settlement conference held in an attempt to get the parties to agree to language in a consent decree for resolution of this case. The parties are extremely close to a resolution. However, there is one issue on which the parties will need to negotiate further. The parties will exchange proposed settlement language and will confer in order to attempt to resolve this matter. Status hearing set for 5/24/2006 at 9:00 AM. The 5/22/06 date given after the conference is stricken. Mailed notice (eav, ) (Entered: 05/08/2006)
85 MINUTE entry before Judge Marvin E. Aspen dated 5/19/06: The status hearing set for 5/23/06, before Judge Aspen, is reset to 5/25/2006 at 10:30 AM., in Courtroom 2525. Judicial staff mailed notice (gl, ) (Entered: 05/19/2006)
86 MINUTE entry before Judge Marvin E. Aspen dated 5/24/06: The status hearing eet for May 24, 2006 is rest to 6/20/2006 at 10:30 AM. Judicial staff mailed notice (gl, ) (Entered: 05/24/2006)
87 MINUTE entry before Judge Arlander Keys : Another Settlement Conference is set for 6/14/2006 at 10:00 AM. in an attempt to get the parties to agree to language in a consent decree for resolution of this case. There continues to remain one issue on which the parties need to negotiate further. The parties will exchange proposed consent decree language copies of which are to be submitted to the court by 6/9/06. Mailed notice (kmt, ) (Entered: 05/26/2006)
88 MINUTE entry before Judge Marvin E. Aspen dated 6/14/06: The status hearing set for June 20, 2006, before Judge Aspen, is reset to 6/27/2006 at 10:30 AM. Judicial staff mailed notice (gl, ) (Entered: 06/14/2006)
89 MINUTE entry before Judge Arlander Keys : Third Settlement conference held on 6/14/2006. The case will not settle. This case is not about money. The issue is the language to be agreed to in a consent decree. While the parties are extremely close with regard to most of the language, the extent of their disagreement over the remaining language is such that this disagreement will prohibit settlement. All matters relating to the referral of this action having been resolved, the case is returned to the assigned judge. Case no longer referred to Arlander Keys. Mailed notice (eav, ) (Entered: 06/16/2006)
90 MOTION by Defendant Continental Airlines, Inc. to clarify scope of trial (Attachments: # 1 Exhibit)(Gaur, Shanthi) (Entered: 06/23/2006)
91 NOTICE of Motion by Shanthi V. Gaur for presentment of motion by plaintiff to clarify90 before Honorable Marvin E. Aspen on 6/27/2006 at 10:30 AM. (Gaur, Shanthi) (Entered: 06/23/2006)

10 of 12

6/6/2007 9:08 AM

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket... https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?722736462774597-L_35...

06/26/2006
07/12/2006 07/20/2006 08/18/2006 08/24/2006 10/06/2006 10/06/2006 10/11/2006
10/26/2006 10/26/2006 11/02/2006 12/04/2006

92 MINUTE entry before Judge Marvin E. Aspen 6/26/06: Plaintiff is to respond to defendant's motion to clarify scope of trial (90) on or before July 12, 2006. Defendant is to reply by July 20, 2006. The status hearing set for June 27, 2006 is reset to August 24, 2006 at 10:30 a.m. The motion hearing set for June 27, 2006 is stricken. Judicial staff maield notice (gl, ) (Entered: 06/26/2006)
93 RESPONSE EEOC's Response to Defendant's Motion to Clarify Scope of Trial (Attachments: # 1 Notice of Filing)(Calhoun, June) (Entered: 07/12/2006)
94 REPLY by Continental Airlines, Inc.in Support of MOTION by Defendant Continental Airlines, Inc. to clarify scope of trial90 (Gaur, Shanthi) (Entered: 07/20/2006)
95 MINUTE entry before Judge Marvin E. Aspen dated 8/18/06: Presently before us Continental's motion to clarify the Scope of Trial (Dkt. No. 90). Rather than consider the merits of Continental's motion, we deny it for lack of ripeness. Motion terminated. Judicial staff mailed notice (gl, ) (Entered: 08/19/2006)
96 MINUTE entry before Judge Marvin E. Aspen dated 8/24/06: Status hearing held on 8/24/2006, and continued to December 7, 2006 at 10:30 a.m. Parties are to file a joint pretrial order in open court on December 7, 2006, at 10:30 a.m. Judicial staff mailed notice (gl, ) (Entered: 08/24/2006)
97 MOTION by Defendant Continental Airlines, Inc. to clarify Scope of Trial/Renewed (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Gaur, Shanthi) (Entered: 10/06/2006)
98 NOTICE of Motion by Shanthi V. Gaur for presentment of motion to clarify97 before Honorable Marvin E. Aspen on 10/12/2006 at 10:30 AM. (Gaur, Shanthi) (Entered: 10/06/2006)
99 MINUTE entry before Judge Marvin E. Aspen dated 10/11/06: Plaintiff is to respond to defendant's renewed motion (Dkt. No. 97) to clarify scope of trial on or before 10/26/06. Defendant is to reply by 11/2/06. The motion hearing set for October 12, 2006 is stricken. Judicial staff mailed notice (gl, ) (Entered: 10/11/2006)
100 RESPONSE Plaintiff EEOC's Response to Defendant's Renewed Motion to Clarify Scope of Trial (Calhoun, June) (Entered: 10/26/2006)
101 NOTICE by Equal Employment Opportunity Commission of Filing Plaintiff EEOC's Response to Defendant's Renewed Motion to Clarify Scope of Trial (Calhoun, June) (Entered: 10/26/2006)
102 REPLY by Continental Airlines, Inc.in Support of MOTION by Defendant Continental Airlines, Inc. to clarify Scope of Trial/Renewed97 (Gaur, Shanthi) (Entered: 11/02/2006)
103 MINUTE entry before Judge Marvin E. Aspen dated 12/4/06: Before us is Defendant Continental Airlines, Inc.'s Renewed Motion to Clarify Scope of Trial after executing a confidential settlement agreement with the former employee at the center of the Equal Employment Opportunity Commission's Complaint. For the reasons set forth below, we deny the motion. (Dkt. No. 97). Motion terminated. Judicial staff mailed notice (gl, ) (Entered: 12/04/2006)

11 of 12

6/6/2007 9:08 AM

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docket... https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?722736462774597-L_35...

12/06/2006 12/21/2006 12/27/2006 12/27/2006

104 MINUTE entry before Judge Marvin E. Aspen dated 12/6/06: The status hearing set for December 7, 2006 is reset to December 28, 2006 at 10:30 a.m. Parties may submit on or before the December 28, 2006 status date, any stipulation to dismiss or draft order order of dismissal with the Court. Judicial staff mailed notice (gl, ) (Entered: 12/06/2006)
105 MOTION by Plaintiff Equal Employment Opportunity Commission to approve consent judgment Agreed Motion for Entry of Consent Decree (Attachments: # 1 Appendix Consent Decree# 2 Notice of Filing)(Calhoun, June) (Entered: 12/21/2006)
106 MINUTE entry before Judge Marvin E. Aspen dated 12/27/06: Agreed Motion to approve consent judgment 105 is granted. Motion terminated. Entere Consent Judgment. The status hearing set for December 28, 2006 is stricken. Civil case terminated. Judicial staff mailed notice (gl, ) (Entered: 12/27/2006)
107 Enter Consent Decree Signed by Judge Marvin E. Aspen on 12/27/2006:Judicial staff mailed notice(gl, ) (Entered: 12/28/2006)

PACER Service Center

Transaction Receipt

06/06/2007 09:08:35

PACER Login: hs0328

Client Code: eeoc

Description: Docket Report Search Criteria: 1:04-cv-03055

Billable Pages: 8

Cost:

0.64

12 of 12

6/6/2007 9:08 AM