• •
IN TIlE UNITED STATES DISTRICT COURT
FOR THE DISTRlCT OF SOUTH DAKOTA

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

G & N ENTERPRlSES, INC.

)

(d/b/a Western Way Work Warehouse)

)

)

lJetendant.

)

COMPLAINT AND JURY TRIAL DEMAND

OCT 301998

NATURE OF THE ACTION This action arises under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of sex and retaliation, and to provide appropriate relief to Elizabeth Fawkes ("Fawkes"), who was adversely affected by such practices. As alleged with greater particularity below, the Commission alleges that Fawkes, a woman, was subjected to on-going sexual harassment by James Greenfield, a supervisor employed by G & N Enterprises, Inc. ("Defendant" or "Employer"). The Commission also alleges that Defendant, by and through James Greenfield and Defendant's owner, Harvey Greenfield, retaliated against Fawkes by tenninating her employment after she engaged in the protected activity of expressing opposition to James Greenfield's sexual harassment.

• •

JURISDICTION AND VENUE

1. Jurisdiction ofthis Court is invoked pursuant to 28 U.S.C. §§ 451,1331,1337,1343 and 1345. This action is authorized and instituted pursuant to Section 706(f)(1) and (3), of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(I) and (3), and Section 102 of the Civil Rights Act ofl991, 42 U.S.C. § 1981A.

2. The employment practices alleged herein to be unlawful were committed within the jurisdiction of the United States District Court for the District of South Dakota.

PARTIES 3. Plaintiff. the Equal Employment Opportunity Commi~~ion (the "rommi«ion"), ;,

the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Section 706(f)(1) and (3) ofTitle VII, 42 U.S.C. § 2UOUe-~(f)(1) and (3).

4. At all relevant times, Defendant has continuously been a South Dakota corporation authorized to do business in the State of South Dakota and has continuously had at least 15

employees.

5.

At all relevant times, Defendant has continuously been all taupluyer tmgagtJu ill an

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

U.S.C. §§ 2000e(b), (g) and (h).

STATEMENT OF FACTS

6.

More than thirty days prior to the institution of this lawsuit, Fawkes filed charges of

discrimination with the Commission alleging violations of Title VII by Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled.

2

• •
7. Silll;" at kast January of 1996, Defendant has engaged in unlawful employment practices at its Sioux Falls, South Dakota facility, in violation of Section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a), and Section 704(a) ofTitle VII, 42 U.S.C. § 2000e-3(a).
8. Fawkes began working for Defendant in January, 1996. At the time of the alleged discriminatory practices, Fawkes worked as a sales clerk under the direct supervision of Jam", Greenfield.
9. During her employment, James Greenfield subjected Fawkes to unwelcome sexual harassment to the extent of creating a hostile and intimidating work environment. Specifically, James Greenfield engaged Fawkes and other employees in inappropriate sexual discussions and sexual joke telling, invited Fawkes to give him a "blow job" in exchange for a day off, propositioned Fawkes to pennit him to take sexually-provocative pictures of her, and asked Fawkes to tryon seethrough t-shirtS.
10. James Greenfield's sexual harassment of Fawkes involved physical contaet, including but not limited to, touching and smelling her hair on a frequent basis and rubbing his waist and genitalia against her.
11. Ou at lllast two occasions during Fawkes' employment, Fawkes reported James Greenfield's harassment to Harvey Greenfield. No remedial action resulted from Fawkes' complaints.
12. At or around the time of these occurrences, Respondent had no policy prohibiting sexual harassment in effect, no established procedures for reporting and investigating ,:uIllplaiuts uf sexual harassment, and no sexual harassment training program for managers and employees.
13. On or around April 4, 1997, Fawkes complained to co-workers about James
3

• •
14. One co-worker who overheard Fawkes' complaints or otherwise became aware of said complaints reported Fawkes' comments to James Greenfield.
15. Thereafter, on or about AprilS, 1997, James Greenfield called Fawkes into his office and asked her whether she told co-workers that he was sexually harassing her. Fawkes admitted that she had made such comments and maintained that her reports regarding James Greenfield's sexual harassment were true.
16. James Greenfield immediately terminated Fawkes for "spreading rumors." Fawkes then contacted Harvey Greenfield by telephone to determine whether she was, in fact, terminated. Harvey Greenfield ratified James Greenfield's decision to terminate Fawkes' employment.
17. On April 18, 1997, Fawkes filed a charge of discrimination against Defendant,
allegiug s"xual harassment and retaliatory discharge.
STATEMENT OF CLAIMS COUNT I: Sexual Harassment 18. The effect of the practices complained of in paragraphs 9-12 above has been to deprive Fawkes of equal terms and conditions of employment and otherwise adversely affect Fawkes' status as an employee because of her gender, in violation of Section 703(a) of Title VII, 42. U.S.C. § 2000e-2(a). 19. The unlawful employment practices complained of in paragraphs 9-12 were intentional. 20. The unlawful employment practices complained ofin paragraphs 9-12 were done with malice or with reckless indifference to the federally protected rights of Fawkes.
4

• •
COUNT II: Retaliation 21. The effect of the practices complained of in paragraphs 11-16 above has been to deprive Fawkes of equal employment opportunities and otherwise to adversely affect Fawkes' status as an employee because of her exercise of a federally protected right to oppose practices that she reasonably believes constitute violations of Title VII, in violation of Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a). 22. The unlawful employment practices complained of in paragraphs 11-16 above were intentional. 23. 111.c unlawful employment practices complained of in paragraphs 11-16 above were done with malice or with reckless indifference to the federally protected rights of Fawkes.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Cow"!: A. Pursuant to Counts I and 11, grant a permanent injunction enjoining Defendant, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in sexual harassment and retaliation, and any other discriminatory employment practice. B. Pursuant to Count I, order Defendant to institute and carry out policies, practices, and programs that proscribe workplace sexual harassment, that provide equal employment opportunities for women, and that eradicate the effects of its past and present unlawful employment practices. C. Pursuant to Count II, order Defendant to institute and carry out policies, practices, and programs that proscribe retaliation against those who complain· about discriminatory employment practices, and that eradicate the effects of its past and present unlawful employment
5

• •
practices. D. Pursuant to Counts I and II, order Defendant to make Fawkes whole, by providing
appropriate backpay with prejudgment interest, in amounts to be determined at trial, and order other affilmative relief necessary to eradicate the effects of its unlawful employment practices descrihed herein, including, but not limited to, frontpay.
E. Pursuant to Counts I and II, order Defendant to make Fawkes whole, by providing compensation for past and future pecuniary and non-pecuniary losses resulting from the unlawful employment practices described herein, in amounts to be determined at trial.
F. Pursuant to Counts I and II, order Defendant to make Fawkes whole by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of above, including physical and emotional pain and suffering, inconvenience, loss of enjoyment of life, and medical expenses, in amounts to be determined at trial.
G. Order Defendant to pay Fawkes punitive damages for its malicious and reckless conduct described in paragraphs 9-17 above, in amounts to be determined at trial.
H. Grant such further relief as the Court deems necessary and proper in the public interest.
1. Award the Commission its costs ofthis action. JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by this complaint. Dated this 29th day of October, 1998.
6

•

•
C. GREGORY STEWART General Counsel
GWENDOLYN REAMS Associate General Counsel
JOSEPH H. MITCHELL Regional Attorney

PLEASE NOTE:
It is sufticient for purposes of service on the EEOC that pleadings, notices, and any other court document be served upon the Trial Attorney. Therefore, duplicate service is not required on the General Counselor Deputy General Counsel located in Washington, D.C.

Trial Attorney (303) RIiIi-1374
MERRILY S. ARCHER Trial Attorney (303) 866-1382
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Denver District Office 303 East 17th Avenue, Suite 510 Denver, CO 80203 Tel. No. (303) 866-1374

7

 
 IN THE UNITED STATES DISTRICT COlJRT FOR THE DISTRICT OF SOUTH DAKOTA

EQUAL EMPLOYMENT OPPORTUNITY: COMMISSION (EEOC),
Plaintiff,

Civ.98-41-95

Flr_~F~n
FEB 1 7 1999

AND ELIZABETH FAWKES,
Intervenor,
G & N ENTERPRISES, INC. (d/b/a Western Way Work Warehouse)
Defendant,

COMPLAINT IN INTERVENTION

The Intervenor named above, files this, her complaint of intervention, against the above-named Defendants, and says:
1. The Equal Employment OppOliunity Commission, the original Plaintiff ill this cause, filed its complaint on October 30, 1998 ("the original Complaint"), against G & N Enterprises, Inc. (d/b/a Western Way Work Warehouse, Defendant for violation of Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of sex and retaliation, and to provide appropriate relief to Elizabeth Fawkes ("Fawkes"), who was adversely affected by such practices. The Commission alleges that Fawkes, a woman, was subjected to on-going sexual harassment by James Greenfield, a supervisor employed by G & N Enterprises, Inc. ("Defendant" or "Employer"). The Commission also alleges that Defendant, by and through James Greenfield and Defendant's owner, Harvey Greenfield, retaliated against Fawkes by terminating her employment after she engaged in the protected activity of express opposition to James Greenfield's sexual harassment.

I • I
2. G & N Enterprises, Inc. (d/b/a Western Way Work Warehouse), the original Defendant in this case, filed its Answer in the original action on December 30, 1998.
STATEMENT OF CLAIMS COUNT I: Sexual Harassment - Hostile Work Environment 3. Elizabeth Fawkes, intervenor in this action, hereby incorporates all allegations in Plaintiff's Complaint as if fully set forth herein, and claims that the effect of the practices complained of have been to deprive hel uf t:4ual terms and conditions of employment and otherwise adversely affected Fawkes' status as an employee because of her gender, in violation of Section 703(a) of Title VII, 42. U.S.C. § 2000e-2(a). 4. The unlawful employment practices complained of in the original Complaint were intentional. 5. The unlawful employment practices complained of were done with malice or with reckless indifference to the federally protected rights of Fawkes.
COUNT II: Sexual Harassment - Quid Pro Quo 6. In the course of Fawkes' employment James Greenfield ("James"), her immediate supervisor, made statements to her that if she performed oral sex on him he would give her Sundays off, which terms of employment constituted quid pro quo sexual harassment.
COUNT III: Retaliation 7. The effects of the practices complained of have been to deprive Fawkes of equal employment opportunities and otherwise to adversely affect Fawkes' status as an employee because of her exercise of a federally protected right to oppose practices that
2

she reasonably believed constitute violations of Title VII, in violation of Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a).
8. The unlawful employment practices complained of were intentional. 9. The unlawful employment practices complained of were done with malice or with reckless indifference to the federally protected rights of Fawkes.
COUNT IV: Negligent Retention of James Greenfield 10. fawkes incorporates all allegations of this Complaint and the origimll Complaint as if fully set forth herein. 11. Fawkes had complained to Harvey Greenfield ("Harvey"), Defendant's President, on at least two occasions of James Greenfield's sexual harassment of her, and was told by Harvey that he would take care of the problem. James Greenfield was never reprimanded for his actions, and is still in a supervisory position with Defendant. Defendant failed in its duty to provide a safe work environment for its employees, and failed to take corrective actions against James Greenfield, thereby threatening and harming Fawkes and possibly other employees of Defendant.
COUNT V: Negligent Supervision of James Greenfield 12. Fawkes incorporates all allegations of this Complaint and the original Complaint as if fully set forth herein. 13. Harvey Greenfield knew or should have known that James was sexually harassing Fawkes, and had a duty but failed to properly supervise James in an attempt to abate such harassment, thus leaving Fawkes in an intimidating and hostile work environment.
3

COUNT VI: Intentional Infliction of Emotional Distress 14. Fawkes incorporates all allegations of this Complaint and the original Complaint as if fully set forth herein. 15. The actions of Defendant, through its agents as previously alleged herein, constitute extreme and outrageous conduct toward Fawkes, which actions were done intentionally or recklessly by Defendants. 16. As a direct and proximate result of Defendant's extreme and outrageous conduct, Plaintiff has suffered and continues to suffer severe emotional distress, including but not necessarily limited to mental anguish, pain and suffering, humiliation, embarrassment, and fear.
COUNT VII: Battery 17. Fawkes incorporates all allegations of this Complaint and the original Complaint as if fully set forth herein. 18. James Greenfield committed battery on Fawkes, including but not limited to touching and smelling her hair on a frequent basis, rubbing his waist and genitalia against her, putting his armpit in her face, and grabbing her in the rib cage
directly below her breast area.
COUNT VIII: Wrongful Discharge 19. Fawkes incorporates all allegations of this Complaint and the original Complaint as if fully set forth herein. 20. Fawkes was wrongfully discharged from her employment with Defendant after exercising her lawful rights as an employee by complaining of sexual harassment.
4

r:OONT IX: Invasion of Privacy 21. Fawkes incorporates all allegations of this Complaint and the original Complaint as if fully set forth herein. 22. Subsequent to Defendant's discharge of Fawkes, James or other agents of Defendant made numerous anonymous and annoying telephone calls to Fawkes' home for the purpose of further harassing Fawkes. 23. Such actions by DefemlanLs' agenLs invaueu LIte privacy of Fawkes and resulted in Fawkes' being fearful and intimidated by Defendant and its agents.
COUNT X: Punitive Damages 24. Based on the foregoing allegations, Defendant's conduct showed a disregard for Plaintiff's rights because Defendant acted willfully or wantonly to the injury of Plaintiff and is therefore liable to Plaintiff for punitive damages.
PRA YER FOR RELIEF Wherefore, Intervenor requests that this Court: A. Pursuant to all Counts, grant a permanent injunction enjoining Defendant, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in sexual harassment and retaliation, and any other discriminatory employment practice. B. Order Defendant to institute and carry out policies, practices, and programs that proscribe workplace sexual harassment, that provide equal employment opportunities for women, and that eradicate the effects of its past and present unlawful employment practices.
5

C. Order Defendant to institute and carry out policies, practices, and programs that proscribe retaliation against those who complain about discriminatory employment practices, and that eradicate the effects of its past and present unlawful employment practices.
D. Order Defendant to make Fawkes whole by providing appropriate backpay with prejudgment interest, in amounts to be determined at trial, and order other affirmative relief necessary to eradicate the effects of its unlawful employment practices described herein, including, but not limited to, front pay.
E. Order Defendant to make Fawkes whole, by providing compensation for past and future pecuniary and non-pecuniary losses resulting from the unlawful employment practices described herein, in amounts to be determined at trial.
F. Order Defendant to make Fawkes whole by providing compensation for past and future non-pecuniary losses resulting from the unlawful practices complained of above, including physical and emotional pain and suffering, inconvenience, loss of enjoyment of life, and medical expenses, in amounts to be determined at trial.
G. Order Defendant to pay Fawkes punitive damages for its malicious and
reckless conduct, in amounts to be determined at trial.
H. Grant such further relief as the Court deems necessary and proper in the public interest.
I. Order Defendants to pay Intervenor's attorney fees, costs, and disbursements and any further amounts deemed appropriate.
6

J. Intervenor further requests that an Answer be filed to this complaint in intervention by G & N Enterprises, Inc. (d/b/a Western Way Work Warehouse), the Defendant in this cause.
JURY TRIAL DEMAND
Plaintiff requests a jury trial on all questions of fact raised by this Complaint
Sf Dated this d"'"'"a" y of December, 1998.
Richard D. Casey Attorney at Law 300 N. Dakota Ave. Suite 301 Sioux Falls, SD 57401
7

 
 FIL~T)

UNITED STATES DISTRICT COURT

FEB 172000

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

*****************************************************************************

*
EQUAL EMPLOYMENT OPPORTUNITY *

COMMISSION (EEOC)

*

Plaintiff,

*

CIV 98-4195

*

ORDER DENYING PLAINTIFFS'

and

*

MOTION FOR

ELIZABETH FAWKES,

*

PARTIAL SUMMARY JUDGMENT

*

Intervenor Plaintiff,

*

*

-vs-

*

*

G & N ENTERPRISES, INC,

*

(d/b/a Western Way Work Warehouse), *

*

Defendant.

*

*

******************************************************************************

Pending before the Court is Plaintiffs' Motion for Partial Summary Judgment (Doc. 19).

This is an action brought pursuant to Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e

et seq., for sexual harassment and retaliatory discharge. (Doc. 1, Complaint.) On April 5, 1997,

Elizabeth Fawkes ("Fawkes") was terminated from her employment with defendant, G&

Enterprises. Plaintiffs allege that Fawkes' dismissal was an act of unlawful retaliation because 0

her reports of sexual harassment. Defendant denies the plaintiffs' claims entirely and contends tha

Fawkes was discharged for "telling lies, spreading rumors, and causing disruption in the workplace."

(Doc. 23, Defendant's Statement of Disputed Facts in Opposition to Plaintiffs Motion for Partial

Summary Judgment, ~ 24.) The plaintiffs also claim that Fawkes was subjected to sexual harassment

in the form of a hostile work environment. Both plaintiffs move for summary judgment on the

retaliation claim set forth in count II ofthe Complaint. I For the following reasons, plaintiffs' motio for partial summary judgment will be denied.
Plaintiffs' retaliation claim revolves around the events that occurred at Western Way on Apri 5, 1997. On that day, Fawkes' co-worker, Keith De Pauw, heard Fawkes say that James Greenfield Fawkes' supervisor, had offered Fawkes time off if she would give him a "blow job."2 (Doc. 24 Attachment C, De Pauw deposition, at 62-63.) De Pauw told another co-worker, Dianne Barne (fin/a Dianne Hoffman) what he had heard Fawkes say, and Barney reported it to James Greenfield (Doc. 24, De Pauw deposition at 65-66 and Barney deposition, Attachment D at 56-57.) Jame Greenfield telephoned his father, the president of G&N Enterprises, Harvey Greenfield, for advice (Doc. 21, Exhibit B, James Greenfield deposition at 194; Exhibit C, Harvey Greenfield depositio at 198-199.) Harvey Greenfield advised James Greenfield to ask Fawkes, in front of employees D Pauwand Barney, whether she was saying that James Greenfield offered her days off in exchang for oral sex, and ifso, he said, "we'll have to let her go." (Docs. 20 and 23,,-r 11.) James Greenfiel called Fawkes into his office, with De Pauw and Barney present, and confronted Fawkes about th allegations of sexual harassment. (Id. at,-r 12.) Barney testified that Fawkes initially denied makin the allegations against Greenfield. (Barney deposition at 57.) Fawkes admitted she told a co-worke that James Greenfield had offered Fawkes time off in exchange for oral sex. (James Greenfiel deposition at 230, 234; Barney deposition at 94-95; De Pauw deposition at 67.) Fawkes wa terminated by James Greenfield. After she was terminated, Fawkes asked to speak to Harve
'The underlying discrimination charge need not be meritorious for the related activity to b protected from retaliation under Title VII. See,~, Brower v. Runyon, 178 F.3d 1002, 1006 (8t Cir. 1999); cf. Montandon v. Farmland Indus., Inc., 116 F.3d 355,359 (8th Cir. 1997) ("To establis that he engaged in statutorily protected activity, Montandon need not prevail on his underlying Title VII claim. He must, however, have a reasonable belief that his activity (complaining about his supervisor's behavior) was protected by Title VII .... ")
2Fawkes testified that she was talking to her co-worker, Jessica Peters, and she "explained what was going on with Jim, and I told her that from then on I was going to make ajournal of when he touched me and when he said things to me. At that point, if things continued, that I would file a sexual harassment suit against Jim." (Fawkes deposition at 78.)
2

Greenfield. James Greenfield got Harvey Greenfield on the telephone to speak with Fawkes Fawkes asked for her job back. (Docs. 20 and 23. ,-r 18.) Harvey Greenfield testified that he tol Fawkes "ifthis is true what she was saying about Jim, if she was actually saying those things, whic Keith and Dianne told James they overheard, I would have to end her employment." (Harve Greenfield deposition at 200.) The plaintiffs allege that Fawkes' termination was the result of he opposition to sexual harassment. James Greenfield denies offering Fawkes time offin exchange fo oral sex (Doc. 4, Answer at,-r 11), and he contends that he terminated Fawkes for spreading rumors. (Doc. 23, ,-r 14.)
The Eighth Circuit has cautioned that "summary judgment should seldom be used i employment-discrimination cases." Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994). Summary judgment is appropriate in employment discrimination cases only in "those rare instances where there is no dispute of fact and where there exists only one conclusion." Johnson v. Minnesot Historical Society, 931 F.2d 1239, 1244 (8th Cir. 1991); cf. Snowv. Ridgeview Medical Center, 128 F.3d 1201, 1205 (8 th Cir. 1997) ("Because discrimination cases often turn on inferences rather th on direct evidence, we are particularly deferential to the nonmovant. ")
Title VII ofthe Civil Rights Act of 1964 protects employees and applicants for employmen from discrimination on the basis ofrace, color, religion, sex, or national origin. 42 U.S.C. §§ 2000e2000e-17. The clause at issue in the pending motion is the "opposition clause" which prohibits retaliation against an employee or applicant for employment because she "opposed any practice made an unlawful employment practice by this subchapter." 42 U.S.C. § 2000e-3(aV To establish a prima facie case of retaliatory discrimination, Fawkes must show that she engaged in protected activity. that an adverse employment action was taken against her, and that there was a causal
3The retaliation provision of Title VII also contains a "participation clause" which makes it unlawful for employers to retaliate against an employee or applicant for employment because she "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.c. § 2000e-3(a). Plaintiffs have not argued that defendant has violated this provision.
3

connection between the two. See, e.g., Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997). Cases from the Eighth and other circuit courts provide little guidance as to what activities fall within the meaning of "opposition" to sexual harassment. Some district courts have held that protected opposition activities include resisting and expressing opposition to sexual advances, Boyd v. James S. Hayes Living Health Care Agency, 671 F.Supp. 1155, 1167 (W.D. Tenn. 1987), registering internal complaints with management regarding sexual harassment, Hollis v. Fleetguard, Inc., 668 F.Supp. 631,638 (M.D. Tenn. 1987), testifying on behalf of or supporting the claims of another employee, Jones v. Lyng, 669 F.Supp. 1108, 1121 (D.D.C. 1986), or notifying law enforcement authorities, Ross v. Double Diamond, Inc., 672 F.Supp. 261, 275 (N.D.Tex. 1987). For purposes ofthe pending motion, the question is whether the Court finds that Fawkes' statements to her co-worker and supervisor were undisputedly made in opposition to sexual harassment.
Viewing the evidence in the light most favorable to the defendant, the Court concludes that there is a genuine issue of material fact as to whether Fawkes engaged in protected activity on April 5, 1997. James Greenfield denies offering Fawkes time off in exchange for oral sex. If the jury believes him, then they could not find that Fawkes engaged in protected activity because she could not oppose sexual harassment that did not occur. Further, the jury might conclude that defendant's stated reason for Fawkes' termination was the real reason behind the termination. See,~, Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) ("Although contesting an unlawful employment practice is protected conduct, the anti-discrimination statutes do not insulate an employee from discipline for violating the employer's rules or disrupting the workplace. ") Because the jury could find in favor of the defendant on these two elements of plaintiffs' retaliation claim (engaging in protected activity and a causal connection between the protected activity and the termination), the Court must deny summary judgment on the retaliation claim. Accordingly,
IT IS ORDERED that Plaintiffs' Motion for Partial Summary Judgment is denied. (Doc. 19)
4

1 Dated this \ "iay of February, 2000.

ATTEST:
B . (SEAL)

t-b
DEPUTY

awrence L. Piersol Chief Judge

5

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH DAKOTA

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC),
Plaintiff,
AND ELIZABETH FAWKES,
Intervenor,

Civ. 98-41-95

MAY (l 4 2001]

STIPULATION FOR DISMISSAL

v.
G&N ENTERPRISES, INC. (d/b/a Western Way Work Warehouse)

Defendant,

IT IS HEREBY STIPULATED AND AGREED by and between said parties, through the undersigned, being the attorneys of record for the respective parties, as follows:
I. That Counts IV, V, VIII and IX of the Intervening Plaintiff's Complaint in Intervention in the above entitled action shall be in all things dismissed with prejudice.
II. That an Order in accordance with this Stipulation may be forthwith entered by the Court without further notice to the parties or their counsel.

~RII: ~ Dated this -2.1-tiy of April, 2000.

D D. CASEY

Attorney for the Intervening Plaintiff

• Dated thi. s~~day of April, 2000.

Z,i Dated this

day of April, 2000.

2

 
 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA

PltF.:D
AlAY 0 4 2000

SOUTHERN DIVISION

)f'iZQ~l

*******************************************************

*****~**W*~*******
CLr~

EQUAL EMPLOYMENT OPPORTUNITY *

COMMISSION (EEOC)

*

Plaintiff,

*

CIV 98-4195

*

ORDER DISMISSING

and

*

COUNTS IV, V, VIII AND IX OF

ELIZABETH FAWKES,

*

COMPLAINT IN INTERVENTION

*

Intervenor Plaintiff,

*

*

-vs-

*

*

G & N ENTERPRISES, INC,

*

(d/b/a Western Way Work Warehouse), *

*

Defendant.

*

*

******************************************************************************

In accordance with the parties' written Stipulation to allow the Intervenor Plaintiff to

withdraw Counts IV, V, VIII and IX of her Complaint in Intervention,

IT IS ORDERED, ADJUDGED and DECREED that Counts IV, V, VIII and IX of the

Complaint in Intervention are dismissed with prejudice.

LfSay Of~ Dated this

2000.

Y TIlE COUU \. ~~JI--""'"'I

ATTEST: JOSEPH HAAS, CLERK
B~~Ld~ (SEA) DEPUTY

L wrence 1. Piersol ief Judge

 
 UNITED STATES DISTRICT COURT

..", '·1

,.,"

DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

&-';5?"') : 1 \'-.'."..<. :.,':,'\),,.r______, CLt::""

******************************************************************************

* EQUAL EMPLOYMENT OPPORTUNITY *

COMMISSION (EEOC)

*

Plaintiff,

*

CIV 98-4195

*

and ELIZABETH FAWKES,

*

VERDICT FORM

*

*

Intervenor Plaintiff,

*

*

-vs-

*

G & N ENTERPRISES, INC,

• *

(d/b/a Western Way Work Warehouse), *

*

Defendant.

*

*
******************************************************************************

Note: Complete question no, 1 by writing in the name required by your verdict.

in favor of:

1, On the sexual harassment claim ofplaintiffs EEOC and Elizabeth Fawkes, we find

(Plaintiffs EEOC and Fawkes)

or

(Defendant G&N Enterprises)

Note: Complete question no, 2 by writing in the name required by your verdict. 2. On the retaliation claim ofplaintiffs EEOC and Elizabeth Fawkes we find in favor
of:

(Plaintiffs EEOC and Fawkes)

or

(Defendant G&N Enterprises)

Note: Complete all three parts of question no. 3 only if your finding on question no. I and/or question no. 2 is in favor of plaintiffs. Ifyour finding in question no. I and question no. 2 is in favor of defendant, skip to question nos. 4 and 5.

3(A). We find Ms. Fawkes' lost wages to be:
DO
$ 5/JDOl' (stating the amount or if none, write the word "none.")

3(B). We find Ms. Fawkes' other damages, excluding past lost wages, to be:

J!aOOO ", ..$

,t>O

$

(stating the amount or if none, write the word "none.")

3(C). We find Ms. Fawkes' punitive damages on question no. I and/or question no. 2 to be:
.:,.b$l6, DO~~1satating the amount or if none, write the word "none. ")

Note: Complete question nos. 4 and 5 by writing in the name required by your verdict.
4. On the intentional infliction of emotional distress claim ofplaintiffElizabeth Fawkes, we find in favor of:

(Plaintiff Fawkes)

or

(Defendant G&N Enterprises)

5. On the battery claim of plaintiff Elizabeth Fawkes, we find in favor of:

(Plaintiff Fawkes)

or

(Defendant G&N Enterprises)

Note: Complete question no. 6 only if your finding on either question no. 4 or question no. 5 is in favor of plaintiff. If your finding on both question no. 4 and question no. 5 is in favor of defendant,

then have your foreperson sign and date this form because you have completed your deliberations on these claims.

6. We find plaintiff Elizabeth Fawkes' actual damages from the intentional infliction of emotional distress claim in question 4 and/or the battery claim in question 5 to be:

.!II
$

(;l.~ll):(-f):D~stating

the

amount

or

if

none,

write

the

word

"none.")

7. We find plaintiff Elizabeth Fawkes' punitive damages from the intentional infliction of emotional distress claim in question 4 and/or the battery claim in question 5 to be:
~ 1~ DO~ating the amount or if none, write the word "none.")

In summary, with no damages to be duplicated, we award damages to plaintiff Elizabeth Fawkes as follows:

r DOS --. 1. For loss of wages and benefits: It. ~;) ~ ,(stating the amount, or if

50 OOO~tating none, write the word "no~")
2. For general damages: $

00
the amount, or if none, write

the word "none.")

A

~

5 3. For punitive damages: $ J 0 I 000 " (stating the amount, or if none,

write the word "none.")

_5-=-__ Dated this

day of May, 2000.

Foreperson

 
 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA

FILED
MAY 10 2lIIJ

•
EQUAL EMPLOYMENT OPPORTUNITY *

COMMISSION (EEOC)

•

Plaintiff,

•

•

~d

•

ELIZABETH FAWKES.

•

•

Intervenor Plaintiff,

•

•

-vs-

•

•

U & N ENTERPRISES, INC.

•

(d/b/a Western WllY Wurk Warehouse),

•

•

Defendant.

•

•

elv 98-4 I 95 JUDGMENT

In accordance with the Verdict ofthc jury rendered on May 5, 2000,
n IS ORDERED, ADnJDGED and DECREED:
(I) that Judgment is entered in favor of plaintiff EEOC and intervenor-plaintiff Eliwbelh Fawkes ami agaim.t defemlarlt G&N Enterprises. Inc. on plaintiffs' Title VII sexulll harassment claim"-' slated in count one of the EEOC's complaint and in counts one and two of Ms. Fawkes' complaint;

(2) that Judgment is entered in favor of plaintiff EEOC and intervenor-plaintiff Elizabeth Fawkes and Ilgainst defendant G&N Enterprises. Inc. on plaintiffs' Title VI! retaliation claim, as stated in count two of the EEOC's complaint and in count three of Ms. Fawkes' complaint;

(3) that inteTVtmor-plaintiJrElimoclh h" kcs i~ awanled lost wages of$5,202. actual damages of $25,000 and plmitive damages 01'$75,000 on the scxual harassment and retaliation claull5, with the punitive damages being s\lbj,:cl 10 the limitations of 42 U.S.C. § 1981a(bl(3), thus being reduced to $50,000 a~ the defendant had more than 14 and fewer than 101 employees;

I
I

(4) that Judgment i~ ~ntm~d in favor of plaintiff-intervenor Elizabeth Fawkes and against defendant G&N Enterprises, Inc_ on plaintiff ~ state-law claim of intentional
infliction of emotional distress, as stated in count six of her complaint;

(5) that Judgment is entered m favor of plaintiff-intervenor Elizabeth Fawkes and against defendunt C.&N Enterprises. Inc. on plaintiffs state-law hattery claim as stated in COlUlt seven nfher complaint;

(6) that plaintiff-intervenor E1i7.abcth Fawkes is awarded actual damages of $25.000 and punitive damages of 175,000 on the intentional infliction or emotional distress and battery claims;

(7) that plaintiff-intervenor Elizabeth Fawkes is a\varded pre] udgment interest in the amount of$I.~09 on her claim for lost wages because the backpay recovery would not be complete and Ms. Fawkes would not be made whole without prejudgment interest. In addition, the liability and the amolUlt of damages concerning baekpa)'
",ere i;'irly certain, and nt the time of the discriminatory ~cts the baekpay recovery
wasreasonablycaJXlble nfbeing a,certained. Behlarv. Smith, 719 F_2d 950, 954 (8" CiT. \983). The prejudgment interest was calculated at len percent (10%) of$5,202, a'l set forth in SDCL 21-1-13.1 and 54-3-\6 (Category B), beginning on January I, 1998 through May 5, 2000. this being a fair and equitable rate of interest. EEOC y. ~ath Packing Co , 787 F.2d 318, 334 n.14 (ll'h Cir. 19~6);

(8) that plaintiff intervenor Eliwbelh Fawkes is entitled to postjudgment interest
pursi./ilnt to 28 USc. § 1961, until the Judgment is paid in (ull.

liS=- Dated this

day of May, 2000.

TIIECOURT:

L" ",renee L. Piersol ief Judge
ATfEST: JOSEPH HAAS, C
f~
Dt~~,,"!k~""'-

2

 
 IN THE UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION
Civil Action No. 98-4195 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, and ELIZABETH FAWKES,
Plaintiff-Intervenor,
v.
G & N ENTERPRISES, INC (d/b/a Western Way Warehouse)

PILED

NOV - 9 ZOOO

((~2<L~

---"

ClEflr;

Defendant.

CONSENT DECREE

RECITALS 1. This matter was instituted by plaintiff, Equal Employment Opportunity Commission
(hereinafter "the COMMISSION"), an agency of the United States Government, alleging violation of Title VII of the Civil Rights Act of 1964, as amended, 42 US.C § 2000e et seq. (hereinafter Title VII) to the effect that the Defendant, G & N ENTERPRISES, INC d/b/a Western Way Warehouse (hereinafter" G & N ENTERPRISES") discriminated against ELIZABETH FAWKES (" FAWKES") on the basis of sex and in retaliation for FAWKES having complained about sex discrimination. Such unlawful employment practices included the subjecting of FAWKES and other females to sexually hostile work

environment and the discharging of FAWKES when she complained of the sexual harassment. 2. The COMMISSION and G & N ENTERPRISES, being desirous of settling this action by an appropriate Consent Decree ("Decree"), agree to the jurisdiction of this Court over the parties and the subject matter of this action. 3. A judgement being entered against G & N ENTERPRISES on May 10, 2000, this Decree is being voluntarily entered into by the COMMISSION and G & N ENTERPRISES, to resolve all pending motions for injunctive relief and costs. 4. This Decree is final and binding upon the COMMISSION and G & N ENTERPRISES as to the issues resolved, as well as upon their successors and assigns. Furthermore, the COMMISSION and G & N ENTERPRISES agree to defend this consent decree should it be challenged. 5. Solely for the purpose of amicably resolving remaining claims, G & N ENTERPRISES joins with the COMMISSION in requesting this Court to adjudge as follows IT IS ORDERED, ADJUDGED, AND DECREED AS FOLLOWS
JURISDICTION 6. The COMMISSION and G & N ENTERPRISES stipulate to the jurisdiction of the Court
over the respective parties and subject matter of this action. 7. The term of this Decree will be for three years from the date of signing by the court,
subject to the reporting provisions in paragraphs 16 through 17.

ISSUES RESOLVED

8. This Decree resolves all claims for back pay, compensatory and punitive damages,

injunctive and any other kind of relief arising out of the issues and claims between the

COMMISSION and G & N ENTERPRlSES as set forth in Civil Action No. 98-4195.

9. G & N ENTERPRlSES, its officers, agents, employees, successors, and all other persons

in active concert or participation with any of them will not interfere with the relief herein

ordered, but will cooperate in the implementation of this Decree.

SEXUAL HARASSMENT POLICY

l O G & N ENTERPRlSES AGREES to maintain a work environment free of sexual

harassment and to implement a sexual harassment policy to address allegations of sexual

harassment in the workplace. G & N ENTERPRlSES ' s sexual harassment policy is

attached as Attachment A, and is incorporated into this Decree by reference.

COMPLIANCE

11. In order to be adjudged in compliance with the terms of this decree, within (20) days from

the date of signing ofthe Decree, G & N ENTERPRlSES must make whole FAWKES,

by issuing a check payable to FAWKES constituting her back pay and all other da~

12.

De~,fhall arising out of this action.
Within ninety (90) days of the signing of the Consent

~ ~~~

~

provide the commission

an affidavit attesting that it has provided training on sex sexual harassment to its

employees at all South Dakota locations attaching to said affidavit a list of attendees and

all course outlines and materials.

3

COMPENSATION PROCEDURES

13. G & N ENTERPRISES will pay FAWKES an agreed upon amount of damages as

outlined in the Settlement Agreement, Waiver and Release ("Waiver and Release")

executed by FAWKES and G & N ENTERPRISES. Said Waiver and Release is

incorporated and made a part of this agreement, and is attached hereto as Attachment C.

COSTS AND ATTORNEY'S FEES

14. Other than as specified herein, eac!l party will be responsible for and will pay its own

costs and attorney's fees, unless otherwise ordered by the Court. G. & N.

ENTERPRISES agrees to pay the Commission its costs in the amount of $4505.80 by

submitting to the Commission a check payable to the United States Treasury within

twenty (20) days of the signing ofthe Consent Decree.

POSTING PROVISIONS

15. G & N ENTERPRISES will post and keep posted in a conspicuous place in all its stores

~~where notices to employees and applicants for employment are customarily kept or

V

posted, the Notice, attached to the Decree as Attachment B.

REPORTING PROVISIONS

16. G & N ENTERPRISES will provide a total of six reports, one for each six month period

following the date the court signs the decree. G & N ENTERPRISES will file a final

report six months after the expiration of the Decree. The reports will be due thirty (30)

days following the end of the six-month period. The COMMISSION must notifY G & N

ENTERPRISES within twenty days of receipt of any report of any objections or questions

4

regarding the content of said reports. All reports that are not objected to or questioned will be deemed accepted. 17. Each report will provide the following information: a. regarding claims of sexual harassment, the names of all person filing internal claims
'J-df~ of sexual harassment at any of its facilities and G & N ENTERPRISES
resolution of the complaint along with copies of any and all written correspondence or reports regarding tbe resolution of such internal complaints. b. the dates, time, notices, and list of persons in attendance of all sexual harassment training conducted for employees at its store. RETENTION OF JURISDICTION AND FILING OF DECREE 18. This Court will retain jurisdiction of this cause for purposes of compliance with this Decree and entry of such further orders or modification as may be necessary or appropriate to effectuate equal employment opportunities without regard to sex or to avoid unnecessary hardship to G & N ENTERPRISES. Upon compliance with the terms of this Decree or at any time following the final report, G & N ENTERPRISES and/or the COMMISSION may move this Court, on due notice to the other party and the Court, for the dissolution of this Decree and this Decree will be dissolved upon showing by G & N ENTERPRISES that it has substantially complied with the terms and objectives of this Consent Decree.
5

ENFORCEMENT 19. There is no private right of action to enforce G & N ENTERPRISES's obligations under
the Decree and only the COMMISSION and G & N ENTERPRISES, or their successors
may enforce compliance herewith. 20. Enforcement may be had by either the COMMISSION or G & N ENTERPRISES
petitioning the court for enforcement of the terms of this Decree.
COMMISSION AUTHORITY
21. With respect to matters or charges outside the scope of this Decree, this Decree will in no
way limit the powers of the COMMISSION in seeking to eliminate unlawful employment
practices pursuant to Title VII.
NOTICE
22. .Any notice, report, or communication required under the provisions of this Decree will be
sent by certified mail, postage prepaid, to the appropriate party as follows:
THE COMMISSION Regional Attorney
Denver District Office Equal Employment Opportunity Commission
303 E. 17th Avenue, Suite 510 Denver, Colorado 80203

G & N ENTERPRISES CIO Harvey Greenfield Western Way Work Warehouse Rapid City, South Dakota 57701

t.9o~tul.tttf SO ORDERED TIDS !fjAY OF

,2000.

6

J7LU~ t%:Cu.WI.) ,<-
LAWREN . PEIRSOL UNITED STATES DISTRICT JUDGE
APPROVED AS TO FORM
JOSEPH H IMITCHELL Regional
U---"d::;--
NELSON G., LSTON EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION Denver District Office 303 E. 17th Avenue, Suite 510 Denver, CO 80203 Telephone: (303) 866-1378

JOHNS N, HEI EPRIEM, MINER, MARLOW & JANKLOW, LLP 431 N. Phillips Ave. Suite 400 Sioux Falls, SD 57104-5933 Telephone (605) 338-4304
ATTORNEYS FOR DEFENDANT

BY CONSENT:

COl)S]ON EQUAL EMPWYMEN; oPPoRryrny

BY.· ~ " ~ ',d/ ? /1 ,()O

Joseph . Mite ell

'

Date

Regional Attorney

J" -H ,~." ..
Date
7

 
 IN THE UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

PILED
JUl - 2 1999
&~().I1 ~ ..•.~ , ' CLERIC

******************************************************************************

*

EQUAL EMPLOYMENT OPPORTUNITY

*

COMMISSION (EEOC),

*

*

Plaintiff,

*

*

and

*

+

CIV. #98-4195 OFFER OF JUDGMENT

ELIZABETH FAWKES,

*

*

Plaintiff/Intervenor,

*

*

vs.

*

*

G & N ENTERPRISES, INC.,

*

(d/b/a Western Way Work Warehouse),

*

*

Defendant.

*

*

******************************************************************************

TO: PLAINTIFF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) and its attorney of record, Mia Bitterman, and PLAINTIFF/INTERVENOR ELIZABETH FAWKES and her attorney of record, RICHARD CASEY

Dtlfl:lU.lUlit G&N Entl:rprbt:~, III~., dIb/a Western Way Wurk Warl:huusl:, ht:rt:by uJlhs tu

allow Judgment to be taken against it by the Plaintiff in the sum of $1 0,000.00, inclusive of

costs, attorney's fees, and disbursements accrued to this date. We also offer to enter into a

consent decree in which Defendant agrees to conduct its business consistent with all applicable

federal laws and regulations. This Offer of Judgment is made pursuant to Federal Rule of Civil

Procedure 68, and evidence of this Offer is not admissible in any proceeding. If this Offer is not

accepted in writing within ten (10) days after it is served, it shall be deemed withdrawn.

Dated this

day ofJuly, 1999.

JOHNSON, HEIDEPRIEM, MINER, MARLOn JANKLOW, L.L.P.
BY l uuvJ;.qciC--:
Scott N. Heidepriem 431 North Phillips Avenue, Suite 400 Sioux Falls, SD 57104-5933 (605) 338-4304

Attorneys for G&N Enterprises, Inc.

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the foregoing Offer of

Judgment was served by first class United States mail, postage prepaid, upon thl;: following

individuals:

Mia E. Bitterman, Trial Attorney
Equal Employment Opportunity Commission Denver District Office 303 East 17th Avenue, Suite 510 Denver, CO 80203

Richard Casey Attorney at Law 300 North Dakota Avenue Sioux Falls, SD 57104

Dated this ____ day ofJuly, 1999.

2

 
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U.S. District Court District of South Dakota (Southern Division) CIVIL DOCKET FOR CASE #: 4:98-cv-04195-LLP

CLOSED

EEOC v. G&N Enterprises, Inc Assigned to: U. S. District Judge Lawrence L. Piersol Demand: $0 Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 10/30/1998 Date Terminated: 05/10/2000 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by C. Emanuel Smith Equal Employment Opportunity Commission Denver District Office 303 E. 17th Ave. Suite 510 Denver, CO 80203 (303)866-1378 Fax: 866-1375 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Evangelina Fierro Hernandez Equal Employment Opportunity Commission Denver District Office 303 E. 17th Ave. Suite 510 Denver, CO 80203 (303)866-1378 Fax: 866-1375 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Merrily Archer Equal Employment Opportunity Commission Denver District Office 303 E. 17th Ave. Suite 510 Denver, CO 80203 (303)866-1378 Fax: 866-1375 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Intervenor Plaintiff Elizabeth Fawkes

Mia E. Bitterman Equal Employment Opportunity Commission Denver District Office 303 E. 17th Ave. Suite 510 Denver, CO 80203 (303)866-1378 Fax: 866-1375 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nelson G. Alston Equal Employment Opportunity Commission Denver District Office 303 E. 17th Ave. Suite 510 Denver, CO 80203 (303)866-1378 Fax: 866-1375 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vincent R. White Equal Employment Opportunity Commission Denver District Office 303 E. 17th Ave. Suite 510 Denver, CO 80203 (303)866-1378 Fax: 866-1375 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Richard D. Casey Lynn, Jackson, Shultz & Lebrun, P.C. PO Box 1920 Sioux Falls, SD 57101-3020 332-5999 Fax: 332-4249 Email: rcasey@lynnjackson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant

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G & N Enterprises, Inc. doing business as Western Way Work Warehouse
Interested Party Clerk, USCOA

represented by Matthew T. Tobin Tobin Law Office, P.C. 7521 S. Louise Ave. Sioux Falls, SD 57108 (605) 332-1771 Fax: (605) 332-4040 Email: matt@matthewtobinlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott N. Heidepriem Johnson, Heidepriem, Janklow, Abdallah & Johnson, LLP PO Box 1107 Sioux Falls, SD 57101-1107 338-4304 Fax: 338-4162 Email: scott@jhjaj.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/30/1998 10/30/1998 11/16/1998 12/31/1998 01/04/1999 01/04/1999 01/04/1999 02/17/1999 02/17/1999

#

Docket Text

1 COMPLAINT: no summons issued to plaintiff's counsel; jury demand (FE) (Entered: 10/30/1998)
2 CIVIL COVER SHEET (FE) (Entered: 10/30/1998)
3 WAIVER Of Service by defendant G&N Enterprises, Inc on 11/16/98 (SKM) (Entered: 11/18/1998)
4 ANSWER by defendant G&N Enterprises, Inc to Complaint [1-1] (FE) (Entered: 12/31/1998)
5 ATTORNEY APPEARANCE of Richard Casey for intervenor plaintiff Elizabeth Fawkes; attorney added (SKM) (Entered: 01/06/1999)
6 MOTION for leave to intervene by intervenor plaintiff Elizabeth Fawkes (SKM) (Entered: 01/06/1999)
7 CERTIFICATE OF SERVICE by intervenor plaintiff Elizabeth Fawkes (SKM) (Entered: 01/06/1999)
8 LETTER from defendant G&N Enterprises, Inc advising Court that there is no objection to Motion for leave to intervene (Doc 6) (FE) (Entered: 02/18/1999)
9 ORDER by Lawrence L. Piersol granting motion for leave to intervene [6-1]; Clerk of Court shall file Complaint in Intervention; heading for this case shall be

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02/17/1999 02/18/1999 03/09/1999 03/16/1999 04/12/1999 05/05/1999
07/02/1999 07/02/1999 09/30/1999 01/07/2000 01/07/2000 01/07/2000
01/31/2000 01/31/2000
01/31/2000 02/10/2000
02/17/2000

amended to include Elizabeth Fawkes as Intervening Plaintiff (cc:all counsel) (FE) (Entered: 02/18/1999)
10 INTERVENOR'S COMPLAINT by intervenor plaintiff Elizabeth Fawkes (FE) (Entered: 02/18/1999)
11 ANSWER by defendant G&N Enterprises, Inc to Intervenor's Complaint [10-1] (FE) (Entered: 02/18/1999)
12 ORDER For Form 35 Report and Scheduling Information by Lawrence L. Piersol (cc: all counsel) (SLL) (Entered: 03/09/1999)
13 Form 35 Report Of Parties Planning Meeting re [12-1] (SLL) (Entered: 03/16/1999)
14 CERTIFICATE OF SERVICE by defendant G&N Enterprises, Inc (SLL) (Entered: 04/12/1999)
15 RULE 16 SCHEDULING ORDER Lawrence L. Piersol ; pretrial conference set for 9:00 4/3/00 ; jury trial set for 9:30 5/2/00 ;mtn filing ddl set for 1/7/00 ; Discovery ddl set for 12/17/99 (cc: all counsel) (FE) (Entered: 05/05/1999)
16 Supplemental Initial RULE 26 Disclosures by defendant G&N Enterprises, Inc (SLL) (Entered: 07/02/1999)
17 OFFER OF JUDGMENT by defendant G&N Enterprises, Inc (SLL) (Entered: 07/02/1999)
18 ATTORNEY APPEARANCE of Vincent R. White for plaintiff EEOC ; attorney Vincent R. White added (FE) (Entered: 10/01/1999)
19 MOTION for partial summary judgment by plaintiff EEOC, intervenor plaintiff Elizabeth Fawkes (FE) (Entered: 01/07/2000)
20 STATEMENT OF MATERIAL FACTS by plaintiff EEOC, intervenor plaintiff Elizabeth Fawkes in support of [19-1] (FE) (Entered: 01/07/2000)
21 MEMORANDUM OF LAW by plaintiff EEOC, intervenor plaintiff Elizabeth Fawkes in support of motion for partial summary judgment [19-1] (FE) (Entered: 01/07/2000)
22 MEMORANDUM/Brief by defendant G&N Enterprises, Inc in opposition to motion for partial summary judgment [19-1] (SKM) (Entered: 01/31/2000)
23 STATEMENT of Disputed Facts by defendant G&N Enterprises, Inc in opposition to plaintiff's motion for partial summay judgment (SKM) (Entered: 01/31/2000)
24 AFFIDAVIT of Matthew T. Tobin in opposition to plaintiffs' motion for partial summary judgment (SKM) (Entered: 01/31/2000)
25 REPLY Brief by plaintiff EEOC, intervenor plaintiff Elizabeth Fawkes to brief in opposition to motion for partial summary judgment [22-1] (SKM) (Entered: 02/10/2000)
26 ORDER by Lawrence L. Piersol denying motion for partial summary judgment [19-1] (cc:all counsel) (FE) (Entered: 02/18/2000)

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03/31/2000
04/03/2000 04/06/2000
04/14/2000 04/18/2000
04/21/2000 04/21/2000
04/21/2000
04/21/2000 04/21/2000 04/21/2000 04/21/2000 04/21/2000 04/21/2000 04/24/2000 04/24/2000 04/24/2000 04/24/2000

27 ATTORNEY APPEARANCE of Nelson G. Alston & Avangelina Fierro Hernandez for plaintiff EEOC ; attorney Nelson G. Alston, Evangelina Fierro Hernandez added (JMM) (Entered: 03/31/2000)
28 MINUTES RE: pretrial conference before the Hon. Lawrence L. Piersol, Senior Judge, Sioux Falls, SD (DLS) (Entered: 04/04/2000)
29 NOTICE OF SETTLEMENT CONFERENCE and Settlement Conference Order by Mag Judge Marshall P. Young ; settlement conference set for 9:30 a.m. on 4/19/00 in Sioux Falls (cc:all counsel) (JLH) (Entered: 04/07/2000)
30 MOTION/STIPULATION to amend scheduling order by plaintiff EEOC, defendant G&N Enterprises, Inc (SLL) (Entered: 04/14/2000)
31 ORDER by Lawrence L. Piersol granting in part and denying in part the motion to amend scheduling order [30-1] ; jury trial set for 9:30 5/2/00 (cc:all counsel) (DLS) (Entered: 04/19/2000)
32 PROPOSED JURY INSTRUCTIONS submitted by intervenor plaintiff Elizabeth Fawkes (SLL) (Entered: 04/24/2000)
33 MOTION in limine in re. termination of prior employment at Midland National Life Insurance Company by intervenor plaintiff Elizabeth Fawkes (SLL) (Entered: 04/24/2000)
34 MEMORANDUM/BRIEF by intervenor plaintiff Elizabeth Fawkes in support of motion in limine in re. termination of prior employment at Midland National Life Insurance Company [33-1] (SLL) (Entered: 04/24/2000)
35 WITNESS LIST submitted by intervenor plaintiff Elizabeth Fawkes (SLL) (Entered: 04/24/2000)
36 TRIAL EXHIBIT LIST by intervenor plaintiff Elizabeth Fawkes (SLL) (Entered: 04/24/2000)
37 TRIAL WITNESS LIST submitted by plaintiff EEOC (SLL) (Entered: 04/24/2000)
37 EXHIBIT LIST by plaintiff EEOC (SLL) (Entered: 04/24/2000)
38 PROPOSED JURY INSTRUCTIONS submitted by plaintiff EEOC (SLL) (Entered: 04/24/2000)
See VOLUME 2 (SLL) (Entered: 04/24/2000)
VOLUME 2 (SLL) (Entered: 04/24/2000)
39 PROPOSED PRELIMINARY JURY INSTRUCTIONS submitted by defendant G&N Enterprises, Inc (FE) (Entered: 04/24/2000)
40 PROPOSED PRELIMINARY JURY INSTRUCTIONS (with annotations) submitted by defendant G&N Enterprises, Inc (FE) (Entered: 04/24/2000)
41 Proposed EXHIBIT LIST by defendant G&N Enterprises, Inc (FE) (Entered: 04/24/2000)

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04/24/2000 04/24/2000
04/24/2000
04/24/2000 04/24/2000 04/25/2000 04/26/2000 04/26/2000
04/26/2000 04/26/2000 04/26/2000 04/26/2000 04/26/2000

41 Proposed WITNESS LIST submitted by defendant G&N Enterprises, Inc (FE) (Entered: 04/24/2000)
42 MOTION in limine re: prior felony conviction , in limine re: Mr. Heidepriem's prior representation of Vicki Hanish unrelated to lawsuit , in limine re: Mr. Greenfield patronizing bar offering female exotic dancing , in limine re: health of Ms. Fawke's mother , in limine re: decision of SD Dept of Labor, Unemployment Insurance Appeals re: Ms. Fawke's application for unemployment benefits by defendant G&N Enterprises, Inc (FE) (Entered: 04/24/2000)
43 MEMORANDUM/BRIEF by defendant G&N Enterprises, Inc in support of motion in limine re: prior felony conviction [42-1], of motion in limine re: Mr. Heidepriem's prior representation of Vicki Hanish unrelated to lawsuit [42-2], of motion in limine re: Mr. Greenfield patronizing bar offering female exotic dancing [42-3], of motion in limine re: health of Fawke's mother [42-4], of motion in limine re: decision of SD Dept of Labor, Unemployment Insurance Appeals re: Ms. Fawke's application for unemployment benefits [42-5] (FE) (Entered: 04/24/2000)
44 PROPOSED JURY INSTRUCTIONS submitted by defendant G&N Enterprises, Inc (FE) (Entered: 04/24/2000)
45 Proposed JURY INSTRUCTIONS with annotations submitted by defendant G&N Enterprises, Inc (FE) (Entered: 04/24/2000)
46 SUBPOENA for Victoria Hanisch returned (SLL) (Entered: 04/25/2000)
48 SUBPOENA for Joann Gieseke returned (SKM) (Entered: 04/26/2000)
49 MEMORANDUM by plaintiff EEOC in opposition to motion in limine re: prior felony conviction [42-1], motion in limine re: Mr. Heidepriem's prior representation of Vicki Hanish unrelated to lawsuit [42-2], motion in limine re: Mr. Greenfield patronizing bar offering female exotic dancing [42-3], motion in limine re: health of Ms. Fawke's mother [42-4], motion in limine re: decision of SD Dept of Labor, Unemployment Insurance Appeals re: Ms. Fawke's application for unemployment benefits [42-5], motion in limine in re. termination of prior employment at Midland National Life Insurance Company [33-1] (SKM) (Entered: 04/26/2000)
50 OBJECTIONS by plaintiff EEOC to defendant's exhibits [41-1] (SKM) (Entered: 04/26/2000)
51 OBJECTIONS by intervenor plaintiff Elizabeth Fawkes to proposed jury instructions [44-1] (SLL) (Entered: 04/27/2000)
52 MEMORANDUM by intervenor plaintiff Elizabeth Fawkes in support of objection to proposed instructions [51-1] (SLL) (Entered: 04/27/2000)
53 OBJECTIONS by intervenor plaintiff Elizabeth Fawkes to motion in limine re. Mr. Greenfield patronizing bar offering female exotic dancing [42-3], motion in limine re. health of Ms. Fawke's mother [42-4] (SLL) (Entered: 04/27/2000)
54 MEMORANDUM by intervenor plaintiff Elizabeth Fawkes in support of objections to motions in limine [53-1] (SLL) (Entered: 04/27/2000)

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04/27/2000 04/27/2000 04/27/2000 05/01/2000
05/01/2000 05/02/2000 05/03/2000
05/04/2000 05/04/2000 05/05/2000 05/05/2000 05/05/2000 05/05/2000 05/05/2000 05/05/2000 05/05/2000 05/05/2000
05/05/2000 05/05/2000 05/05/2000 05/10/2000

55 SUBPOENA for Diane Barney returned (SLL) (Entered: 04/27/2000)
56 OBJECTIONS by defendant G&N Enterprises, Inc to plaintiff EEOC's Proposed Exhibits [37-1] (SLL) (Entered: 04/27/2000)
57 OBJECTIONS by defendant G&N Enterprises, Inc to plaintiff EEOC's proposed jury instructions [38-1] (SLL) (Entered: 04/27/2000)
58 SECOND MOTION in limine in re. introducing deposition of Jessica Peters based on hearsay by defendant G&N Enterprises, Inc (SLL) Modified on 05/01/2000 (Entered: 05/01/2000)
59 AFFIDAVIT of Matthew T. Tobin re defendant's second motion in limine in re. deposition of Jessica Peters [58-1] (SLL) (Entered: 05/01/2000)
60 JURY LIST (JMM) (Entered: 05/04/2000)
61 MEMORANDUM by defendant G&N Enterprises, Inc in support of motion in limine in re. introducing deposition of Jessica Peters based on hearsay [58-1] (JMM) (Entered: 05/04/2000)
62 STIPULATION for Dismissal of Counts IV, V, VIII and IX of intervenor's complaint (JMM) (Entered: 05/04/2000)
63 ORDER by Lawrence L. Piersol granting stipulation [62-1] (cc:all counsel) (JMM) (Entered: 05/04/2000)
64 EXHIBIT LIST by plaintiff EEOC (JMM) (Entered: 05/09/2000)
65 EXHIBIT LIST by intervenor plaintiff Elizabeth Fawkes (JMM) (Entered: 05/09/2000)
66 EXHIBIT LIST by defendant G&N Enterprises, Inc (JMM) (Entered: 05/09/2000)
67 Partial TRANSCRIPT of jury trial held on 5/3/00 - testimony of Carol Sparks (in expando) (JMM) (Entered: 05/09/2000)
68 SUBPOENA for Judy Watkins returned (JMM) (Entered: 05/09/2000)
69 SUBPOENA for Lowell Groeneweg returned (JMM) (Entered: 05/09/2000)
70 JURY QUESTION (Verdict note) (JMM) (Entered: 05/09/2000)
71 VERDICT for plaintiff EEOC, defendant G&N Enterprises, Inc against defendant G&N Enterprises, Inc in the amount of $ 5,202 for loss of wages and benefits, $50,000 for general damages, and $150,000 punitive damages (JMM) (Entered: 05/09/2000)
72 JURY INSTRUCTIONS with authorities (JMM) (Entered: 05/09/2000)
73 JURY INSTRUCTIONS submitted to the jury by the Court (JMM) (Entered: 05/09/2000)
74 MINUTES RE: jury trial (JMM) (Entered: 05/09/2000)
75 JUDGMENT in favor of EEOC, Elizabeth Fawkes and against G&N Enterprises, Inc; Elizabeth Fawkes is awared $5,202 in lost wages, $50,000 in actual and

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05/23/2000 05/23/2000 05/23/2000 05/23/2000 05/23/2000 05/23/2000 05/23/2000 05/25/2000 05/25/2000 05/25/2000 05/25/2000 05/25/2000 06/05/2000 06/05/2000 06/05/2000 06/06/2000 06/06/2000 06/07/2000

punitive damages on the sexual harassment and retaliation claims, $25,000 actual damages and $75,000 punitive damages on the intentional inliction of emotional distress and battery claims, $1,309 in prejudgment interest on the lost wages by Lawrence L. Piersol ; terminating case (cc: all counsel) (DLS) (Entered: 05/11/2000)
76 MOTION for front pay by intervenor plaintiff Elizabeth Fawkes (JMM) (Entered: 05/24/2000)
77 Copy of AFFIDAVIT of Elizabeth Fawkes re motion for front pay [76-1] (JMM) (Entered: 05/24/2000)
78 MEMORANDUM by intervenor plaintiff Elizabeth Fawkes in support of motion for front pay [76-1] (JMM) (Entered: 05/24/2000)
79 MOTION for attorney fees by intervenor plaintiff Elizabeth Fawkes (JMM) (Entered: 05/24/2000)
80 MEMORANDUM by intervenor plaintiff Elizabeth Fawkes in support of motion for attorney fees [79-1] (JMM) (Entered: 05/24/2000)
81 CERTIFICATE OF SERVICE by intervenor plaintiff Elizabeth Fawkes (JMM) (Entered: 05/24/2000)
SEE VOLUME 3 (JMM) (Entered: 05/25/2000)
VOLUME 3 (JMM) (Entered: 05/25/2000)
82 MOTION for equitable relief by plaintiff EEOC (JMM) (Entered: 05/25/2000)
83 MEMORANDUM by plaintiff EEOC in support of motion for equitable relief [82-1] (JMM) (Entered: 05/25/2000)
84 AMENDED MOTION for attorney fees , for sales tax , for costs by intervenor plaintiff Elizabeth Fawkes (DLS) (Entered: 05/26/2000)
85 CERTIFICATE OF SERVICE by intervenor plaintiff Elizabeth Fawkes (DLS) (Entered: 05/26/2000)
86 BILL OF COSTS submitted by plaintiff EEOC re judgment [75-2] (SKM) (Entered: 06/05/2000)
87 AFFIDAVIT of Nelson Alston in support of bill of costs [86-1] (SKM) (Entered: 06/05/2000)
88 AFFIDAVIT of Elizabeth Fawkes in support of front pay award (SKM) (Entered: 06/05/2000)
89 MEMORANDUM by defendant G&N Enterprises, Inc in opposition to motion for attorney fees [79-1], motion for front pay [76-1] (DLS) (Entered: 06/06/2000)
90 AFFIDAVIT of Richard O. Gregerson (DLS) (Entered: 06/06/2000)
91 NOTICE OF APPEAL by defendant G&N Enterprises, Inc from judgment [75-2] , Appeal fee paid (cc: all counsel, Court Reporter) (SLL) (Entered: 06/07/2000)

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06/07/2000
06/07/2000 06/08/2000 06/08/2000 06/09/2000 06/09/2000
06/20/2000 06/22/2000 07/18/2000 10/10/2000
10/11/2000 10/11/2000 10/11/2000 10/16/2000 11/09/2000

COURT REPORTER: Carol Johnson, Dakotah Reporting Agency, 300 N. Dakota Ave. Sioux Falls SD 57104 Telephone #: 605-338-8898; Jerry May, May Co., 738 S. First, Sioux Falls SD 57104 Telephone #: 605-336-1052; Renee Kennedy, 29535 469th Ave., Beresford SD 57004 Telephone #: 605-957-4483; Melinda Songstad, 916 S. Grandview Ave., Sioux Falls SD 57103 Telephone #: 605-338-8145 (SLL) (Entered: 06/07/2000)
FILING FEE PAID: on 6/7/00 in the amount of $ 105.00, receipt # 0025080. (SLL) (Entered: 06/07/2000)
TRANSMITTING Notice of Appeal to 8th Circuit COA (SLL) Modified on 06/08/2000 (Entered: 06/07/2000)
92 REQUEST by defendant G&N Enterprises, Inc for transcript (JMM) (Entered: 06/08/2000)
93 Amended REQUEST by defendant G&N Enterprises, Inc for transcript (JMM) (Entered: 06/09/2000)
94 DEPOSITION of Jessica Peters taken on the following date(s): 4/26/00 on behalf of intervenor plaintiff - Read into the record at trial (in expando) (DLS) (Entered: 06/12/2000)
95 AFFIDAVIT of Richard D. Casey (SKM) (Entered: 06/20/2000)
NOTIFICATION by Circuit Court of Appellate Docket Number 00-2530 (DLS) (Entered: 06/22/2000)
96 SATISFACTION OF JUDGMENT re [75-2] rendered against defendant G&N Enterprises, Inc ; (FE) (Entered: 07/18/2000)
97 MOTION to withdraw motion for front pay, motion for award of attorney's fees, sales tax and costs; and amended motion for attorney's fees by intervenor plaintiff Elizabeth Fawkes (SKM) (Entered: 10/11/2000)
98 RECEIPT for plaintiff's exhibits (JMM) (Entered: 10/12/2000)
99 RECEIPT for defendant's exhibits (JMM) (Entered: 10/12/2000)
100 RECEIPT for plaintiff's exhibits (JMM) (Entered: 10/13/2000)
101 MANDATE from 8th Circuit Court of Appeals dismissing the appeal (cc: all counsel) (JMM) (Entered: 10/20/2000)
102 CONSENT Decree by plaintiff EEOC, defendant G&N Enterprises, Inc (SKM) (Entered: 11/13/2000)

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 UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

No. 00-2530SDSF
Equal Employment OppoItunity Commission,
Appellee,
Elizabeth Fawkes,
Appellee,
v.
G & N EnteIprises, Inc., doing business as WesteIn Way WOIk WaIehouse,
Appellant.

OC T 1 I} 2000
-.- ."',. , .
• • • • Appeal fIom the United States
• DistIict COUIt for the
• DistIict of South Dakota
•
•
•
• • • • • •
•

JUDGMENT

The jOint motion fOI dismissal of this.appeal is granted in

accoIdance with the stipulation. The appeal is heIeby dismissed.

The COUIt's mandate shall issue fOIthwith.

( 5359-010199)

OctobeI 13, 2000

<to A trueATTcEoSPT~l\\}\..•jr)\.~

~
'VG

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

I