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

05 SfP 30F'N I: 57

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PlaintifC
v.
U:-.JIVERSITY OF PHOE:-.IIX, 11\C.,
Defendant.

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CiL,'\_i;iSUOi JESOU[

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)

CIV

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COMPLAINT

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i Wf ) .' JURY TRIAL DEMAND','
ClV - 0 5 - 1 0 4 8 MCA- L

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NATURE OF THE ACTION

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

Rights Act of 1991 to con'eet unlawful employment practices on the bases ofsex and retaliation, and

to provide appropriate reliefto Loretta Grado and Lorena Pinon who were adversely affected by such

practices during their employment with Defendant University of Phoenix, Inc. The Commission

alleges that Loretta Grado and Lorena Pinon were subjecte~ to harassment because of their sex,

including sexually offensive comments and conduct of high-ranking management officials, which

created a hostile work environment for them because of their sex, female. In addition, the

Commission alkges that Defendant failed to promote Ms. Grado in retaliation for her opposition

to perceived unlawful emplo)~nent practices. Finally, the Commission alleges that Ms. Pinon was

subjected to retaliation with respect to her tel111S, conditions and privileges of emplo)~nent because

she opposed perceived unlawful cmplo~nent practice,s.

\

·;'

JURISDICTION AND VENUE

1.

jurisdiction of this Court is invoked pursuant to 28 u.s.c. §s 451,1331, 1337, 1343

and 1345. This action is authorized and instituted pursuuntto Section 706( 1)(1) and (3) ofT.itlc VI.I
of the Civil Rights Act of 1964, as amended 42 U.S.c..§ 2000c-5 (1)(1) and(3) ("Title VII") and
* Scction 102 of the Civil Rights Act of 1991, 42 U.S.C. 1981 a.

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

jurisdiction of the Unitcd States District Court for the District of New Mexico.

PARTms .

3. Plainti ff, the Equal Employmcnt Opportunity Commission (the "Commission"), is

thc agcncy of the United States of America charged with the administration, intcrpretation and

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

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

4. At all relevant times, Defendant University of Phoenix, Inc., (the "Employer") has

continuously been an Arizona corporation doing business in the State ofNcw Mexico and the City

of Santa Teresa, and has continuously had at least 15 employees.

5. At all relevant times, Defendant Employer has continuously been and is now an

employer engaged in an industry affecting commerce within the meaning of Section 70 I(b), (g) and
* (h) ofTitle VII, 42 U.S.C. 2000c-(b), (g) and (h).

STATEMENT OF CLAIMS

6. More than thirty days prior to the institution ofthis lawsuit, Loretta Grado and Lorena

Pinon filed charges with the Commission alleging violations of Title VII by the University of

2

"

Phoenix. All conditions precedent to the institution o(this lawsuit have heen fulfilled.

7. Since at least Octoher 2002, Dcfendant Employer has engaged in unlawful

employment practices at its Santa Teresa. New Mexico Illcility in violation ofSection 703(a) ofTitle

VII, 42 U.S.C. §§ 2000e-2(a) hecause of sex. These practices include the harassment of Lorella

Grado and Lorena Pinon which created a hostile workenvirolllllent because ofthcir sex, female.

S. Since at least October 2003, Roswell Radio has engaged in unlawful retaliatory

employment practices at its Roswcll. 'Jew Mexico facility in violation ofSection 704(a) orTitle VII,

42 U.S.C. §§ 2000e-3(a). These retaliatory practices include:

a) the failure to promote Loretta Grado to a Financiiil Aid Counselor position after

she expresscd opposition to and made complainis about unlawful employment

practices; and

."."

b) the retaliatory terms, conditions and privileges that Lorena Pinon was subjected

to, including but not limited to, negative job evaluation, changes in job duties, .

changes in work space, and denial of training all or which occurred because Ms.

Pinon expressed opposition to and made complaints about unlawful eniployment

practices.

9. The effect of the practices complained of in paragraph 7 above has been to deprive

Loretta Grado and Lorena Pinon of equal employment opportunities and otherwise adversely affect

their status as employees because of their sex, female.

10. The effect of the practices complained of in paragraph 8 above has been to deprive

Loretta Grado and Lorena Pinon of equal employment opportunities and otherwise adversely anect

3

their status as employees because of their opposition to unlawful employment prac.tices. II. The unlawful employment practices complained of in paragraphs 7 and 8 above were
intentional. 12. The unlawful employment practices complained of in paragraphs 7 and 8 above 'I'ere
done with malice and/or with reckless indifference to the federally protected rights of Lorelta Grado and Lorena Pinon.
PRAYEN. FOR RELmF Wherefore; the Commission respectfully requests that this Court:
A. Grant a pcmlanent inj unction enjoining Defendant Employer, its officers, successors,
assigns and all persons in active concert or participation with it, from engaging in harassment of employees because of sex and any other employment practice which discriminates on the basis of sex.
B. Grant a permanent injunction enjoining Defendant Employer, its officers, successors, assigns and all persons in active concert or participation with it, from engaging in any employment practice which discriminates or retaliates against any individual because of the individual's
a opposition to perceived unlawful employmcnt practices aridlorbecause the individual filed charge,
testified, assisted, or participated in an investigation or proceeding under Title VII. C. Order Defendant Employer to institute and carry out policics, practices and programs
which provide equal employment opportunities for women and for those who oppose perceived pnlawful employment practices andlor file charges, testify, assist or participate in an investigatioil or proceeding under Title VII. and which eradicate the effects of its past and present unlawflil

employment practices.

D. Order Defendant Employer to make whole Loretta Grado by providing appropriate

back pay with prejudgmcnt interest associated with lier lost promotion opportunity, in amounts to

be determined at trial. and other affirmative rcliefncccssary tocradicate the effects of its unlawful

employment practices.

E

Order Defendant Employer to make whole Loretta Grado and Lorena Pinon by

providing compensation {or past and futurc pecuniary losscs resulting from the unlawful employment

practices described in paragraphs 7 and 8 above. including. medical expenses, and other pecuniary

losses. in amounts to be detcnllined at trial.

F. Order Defendant Employer to make whole Loretta Grado and Lorena Pinon by

providing compensation for past and future nonpecuniary losses resulting from the unlawful

practices complaincd of in paragraphs 7 and S above, including but not limited to.-emotional pain,

suffering, inconvenience, mcntal anguish, humiliation, loss of enjoymcnt of life, and other

nonpecuniary losses, in amounts to be detenllined at trial.

G. Order Dcfendant Employerto pay Loretta Grado and Lorena Pinon punitive damages

for its malicious and/or reckless conduct described in paragraphs 7 and 8 above, in amounts to be

detenllincd at trial.

H. Grant such further relief as the Court deems necessary and propcr in the public

interest.

I.

Award the Commission its costs in this action.

JURY TRIAL DEMANDED

The Commission requcsts ajury trial on all questions of fact raised by its complaint.

5
. ;

DATED this 30'h day of September 2005.
Respectfully submitted.
JAMES L. LEE . Deputy'Gencral Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel
EQUA1-- EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, NW Wa . gton,D.C. 20507

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MAR'{ JO O'NEILL

Regional Attorney

.

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c. EMANUEL SMITH

Supervisory Trial Attorney

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Phoenix District Ot'lice 3300 North Central Avenue Suite 690

LORETTA \1EDINA Senior Trial Attorney
VERONICA A. MOLINA Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION Albuquerque Area Office 505 Marquette NW. Suite 900 Albuquerque, New Mexico 87 I02 (505) 248-5230
Attorneys for PlaintiFF
6

 
 i-, .... ,.~ IN THE UNITED STATES DISTRICT COURTI!·!ii,:;/:y','1·--;1C;.i.,:-\-~i:·)·S};iii·
FOR TIlE DISTRICT OF NEW MEXICO 05 OCT 12.PH I: II

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plainti!{

)

)

v.

)

)

UNIVERSITY OF PHOENIX, INc..

)

)

Defendant.'

)

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

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CV-05~ I048 .J8/WPL
FIRST AMENDED COMPLAINT JURY TRIAL DEMAND

Comes no\\', Plaintiff, the Equal Employment Opportunity COll1mi~sion ami pursuant to Rule

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

30,2005 to correct errors in Paragraph 8.

NATUR~~ OF THE ACTION

This is an action under Title VII of the Ci\'il Rights Act of I<)64 and Title I of the Civil

Rights Act of 1991 to correct unlawful CmpIO)111cnt practices on the bases of sex and retaliation, and

to provide appropriate reliefto Loretta Grado and Lorena Pinon whowere adversely affected by such

practices during their employment with Dcfcndant Uliiversity of Phoenix, Inc. The Commissioil

alleges that Loretta Grado and Lorena Pinon were slibjected to harassment beeause of their sex,

including sexlIally offensive comments and conduct of high-ranking management officials, \\·hich

created a hostile work environment for them becaLlse of ,their' sex, female. In addition, the

Commission alleges that Defendant failcd to promote Ms. Grado in retaliation for her opposition

to perceived unlawful employment practices. Finally, the Conllllis;ion alleges that Ms. Pinollwas

,.

subjected to retaliation with respect to hertcrms, coilditions and privileges ofemploy111ent because

she opposed perceived unlawful employment practices..

.IURISDICTION ANDVI~NUE

I. .hirisdiction of this Court is invoked pursuant to 28 ().S.c. §§ 451, 1331, 1337. 1343

and 1345. This action is authorized and institutcd pursuant to Section 706(f)( I) and (3) of Title VII
ofthc Civil Rights Act of 1964, as amcnded 42 U.S.c. S 2000c-5 (1)(1) and(3) ("Title VII") and

Section 102 of the Civil Rights Act of1991, 42li.s.C. § 1981a.

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

jurisdiction ofthc United.Statcs District Court for the District of' New Mexico.

I'ARTIli:S

3.

Plaintiff, the Equal Employment Opportunity ~ommission (the "Commission"), is

the agency of the United' States of America charged with tllc administration, interpretation and

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

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

4. At all relevant times, Defendant University of Phoenix, Inc., (the "Employer") has

continuously been an Arizona corporation doing business in the State of New Mexico and the City
of Santa T<!resa, and has continuously had at least i 5 employees..

5. At all relevant times, Defendant Employer has continuously bcen and is now ail

employer engaged in an industry al1"ccting commerce within the meaning ofScction 701(b), (g) and

(h) ofTitlc VII. 42 U.S.c. § 2000c-(b), (g) and (h).

2

,-,
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution 0 fthislawsuit, Loretta Grado and Lorena Pinon liled charges with the Commission alleging violations of Title VII by the University of Phoenix. All conditions precedent to the institution of this lawsuit have heen fulfilled. 7. Since at least October 2002, Defendant Employer has engaged in unlawful employment practices at its Santa Teresa, New Mexico facility in violation ofSection 703(a) ofTitlc VII, 42 U.S.C. §§ 2000e-2(a) because of sex. These practices include the harassment of Loretta Grado and Lorena Pinon which created a hostilc work environment hecause ofthcir sex, female. 8. Since at least October 2003, Defcndant Employer has engaged inunlawfulretaliatory cmpIO)~l1ent practices at its Santa Teresa, New Mexico facility in violation of Section 704(a) ofTitle
** VII, 42 U.S.c. 2000e-3(a). These retaliatory practices include:
a) the failure to promote Loretta Grado to u Fillancial Aid Counselor position alter she expressed opposition to and made complaints about unlawful.cmplo)~l1ent practices; and
'.'
. b) the retaliatory terms, conditions and privilcgcsof employment that Loreliil Pint)!] . .
was subjected to, including but not limited to, negative job evaluation, changes iiI job duties, changes in work space, and denial of training all ofwhicli ocnlrred because Nls. Pinon expressed opposition to and made complaints about unlawful cmpl~)~l1ent . practices. 9. The effect of the practices complained orin paragraph 7 ahove has been io dcprive Loretta Grado and Lorena Pinon of equal employment opportunities and otherwise adversely affect
3

their status as employees hecause of their sex, fcmale. 10. Thc dfect of the practices complained of in paragraph 8 above has heen to deprive
Loretta Grado and Lorena Pinon of cqual employmcrit opportuliities and otherwise adverscIy ~ifrect their status as employees because of their opposition to unlawful employment practices.
II. The unlawful employment practices complainedofin paragraphs 7 and S ahove were intentional.
12. The unlawful employment practices complained'of in paragraphs 7 and 8 ahove were done with malice and/or with reckless indiJTerence tothe federally protected rights of Loretta Grado and Lorena Pinon.
PRA YER FOR RELIEF Wherefore, the Commission rcspectfully reljuests that this Court: A. Grant a pennanent injunction enjoining Defendarit Employer, its officers, successors, assigns and all persons in active concert or participation with it, from engaging in harassment of employees because of scx and any other employment practice which discriminates oil the basis of sex.
B. Grani apennanent injunction cnjoiningDefendant Employer. its officers, successors,
assigns and all persons in active concert or participation with it, lrom cngaging in any employment practice which discriminates or retaliates against any individual hecause of the individual~s opposition to perceivcd unlawful employmcnt practices and/or because the individual filed a charge, testified, assisted, or participated in an invcstigation or proceeding undcr Title VII.
C. Order Defendant Employer to institute and carryout policies, practices and progran)s
4

which

provide

equal

emplo)1nent

opportunities

for

women .

a. n. d

for

those

who

oppose

perceivcd

unlawful emplo)1nent practices and/or file charges, testifY. assist or participate in an investigation

or proceeding under Title VIf. and which eradicate the cffects of its past and present unlawful

cmplo)1nent practic.es.

D. Order Defendant Employer to make whole Loretta Grado by providing appropriatc

back pay with prejudgmcnt intercst associated with her lost promotion opportunity. in amoilllts to

be detellnined at trial, and other affirmative relief necessary to eradicate the .effects of its' unlawful

employmcnt practice.s.

E. Order Defendant Employer to make whole Loretta Grado and Lorena Pinon by

providing c-ompensation for past and future pecuniary losse's res~dting from the unlawful emplo)1ncnt

practices described in paragraphs 7 and 8 above, including, med.ical expenses, and other pecuniary

losses, in amounts to be detennined at trial.

F. Order Defendant Employer to make whole Loretta Grado and Lorena Pinon by.

providing compensation for past and future nonpecuniary losses resulting from thc unlawful

practices complained of in paragraphs 7 and S above, including but not limited to. emotional pain,

suffering. inconvenience, mental anguish, humiliation, loss of cnjo)1nent of life, and other

nonpccuniary losses. in amounts to be determined at trial.

G. Order DeICndant Employerto pay Loretta Grado a'nd Lorena Pinon punitive damages

for its malicious and/or reckless COIiduct deseribcd in paragraphs 7 and 8 above. in amounts to be

determined at trial.

1-1. Grant such further relief as the Court decllls n,ecessary and proper in the public

interest.

5

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VERONICA A. MOI.INA Trial Attorney EQUAL EMPLOYME:--JT OPPORTUNITY
COMMISSION Albuquerque Area Offiee 505 Marquette NW, Suite <)00 " Albuquei-quc, New Mexico 87102 (505) 248~5230 Attorneys for Plaintiff
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 --------

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

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, LORENA PINON,
Applicant in Intervention,
v.
UNIVERSITY OF PHOENIX, INC., Defendant.

CV-05-104B JBIWPL

COMPLAINT FOR DAMAGES FOR SEXUAL HARASSMENT, RETALIATION, CONSTRUCTIVE DISCHARGE, BREACH OF CONTRACT AND NEGLIGENT SUPERVISION AND RETENTION
Plaintiff Lorena Pinon, by and through undersigned counsel, states:
Parties, Jurisdiction and Venue 1. Plaintiff Lorena Pinon (hereafter "Plaintiff' or "Ms. Pinon") is a female
citizen of the United States and a resident of EI Paso, Texas. 2. Defendant University of Phoenix, Inc. (hereafter "Defendant" or "University
of Phoenix") is an Arizona corporation doing business in Dona Ana County, New Mexico. Based on the number of Defendant's employees
and their duration of employment, Defendant is an employer subject to the
statutory requirements of Title VII.

~ .~Clle.,t5\CIVII Rts & Em;::loymenl\P,nOn\PI8ad.nQs\CIJ,~p\aIl1l IV wpd

3. The events giving rise to this complaint occurred at Defendant's place of business in Santa Teresa, Dona Ana County, New Mexico.
4. This Court has jurisdiction over the parties and the subject matter of this action.
5. Venue is proper in this court. 6. Plaintiff has exhausted her administrative remedies as to her claims under
Title VII of the Civil Rights Act of 1991 (hereafter "Title VII"), having timely filed two separate charges with the U.S. Equal Employment Opportunity Commission (hereafter "EEOC") and has satisfied all conditions precedent to filing this lawsuit.
General Allegations Common to All Counts 7. At all material times, Plaintiff was employed by Defendant and worked at
the Defendant's place of operations in Santa Teresa, New Mexico. At all times material hereto, Plaintiff's work performance was satisfactory or better. S. In 2000, Plaintiff began her employment with University of Phoenix as an Academic Counselor. She held that position until mid-2003, when she was promoted to the position of Program Manager. After several months with that title, she was assigned the position of Education Program Director. She was later given the title of Academic Affairs Project Manager and substantially reduced responsibilities. 9. Beginning in 2002, and continuing through 2004, Ms. Pinon also served on the faculty of University of Phoenix and taught classes. This was a
2

separate position for which she received additional or separate pay.

10. During her employment with University of Phoenix, Ms. Pinon was

supervised by a series of persons, to include: Pamela Snow, Director of

Operations; Brian Russo, Academic Affairs Manager; Darren Adamson,

Director of Academic Affairs New Mexico; and Andrew Barber, both in his

capacity as College Campus Chair for the Behavioral Science Department

and as Director of Academic Affairs. At material times, all of these

persons occupied supervisory and managerial positions that were superior

to Plaintiff.

11. While employed by University of Phoenix, Plaintiff was regularly subjected

to comments by Andrew Barber ("Barber") regarding her physical

appearance and body parts, comments of a sexual nature, requests for

dates, sexual overtures and sexual innuendoes.

12. At various times during employment with University of Phoenix, she was

subjected to unwelcome touching by Barber.

13. Throughout the time when she was employed by University of Phoenix,

Plaintiff refused Barber's advances.

14. Despite Plaintiff's efforts to rebuff Barber's advances, his behavior

persisted. In September, 2003, Barber called her at home and left a

message. Plaintiff changed her home telephone number so he could not

call again.

15. In December, 2003, Plaintiff was told that her direct supervisor would be

Barber, because he was serving as the Interim Director of Academic

F iChp..,:siCIVII Ris & EmployrnGnIIPInOn\Pleading5\COmpliMI 1" wpd

3

Affairs. During that same month, Barber asked her if she would go out

with him if he became Director of Academic Affairs. She said no.

16. On December 9, 2004, Manny Ortiz, Campus Director, told her to move

out of her office and told her to move into a cubicle. He also invited her

to share an office with Barber when it became vacant. She told him that

she did not want to share an office with Barber and that she would stay in

a cubicle.

17. Plaintiff received decreased job duties and had fewer opportunities to

progress and attend training programs that would help her to succeed in

her work. Instead, a part-time consultant, Patricia Williams, was sent for

training. Plaintiff complained to Barber and Ortiz, to no avail.

18. Plaintiff's job duties continued to be reduced and her job title became

ambiguous. At one time, she received paperwork indicating that she

would be titled as Credential Analyst. More and more of her prior job

duties were assigned to the part-time consultant, Williams. Plaintiff's

primary duties were reduced to keeping a filing system for student

records.

19. Plaintiff repeatedly sought clarification of her job title and scope of duties

from her superiors and Human Resources staff. She told Human

Resources that she felt that she had been demoted.

20. In late March, 2004, Barber rubbed against Plaintiff as she stood up from

her desk. She confided in a co-worker, who shared that she, too, had felt

uncomfortable with his behavior.

F IChen:s\Clvll Rts.!. EI1'p'oymen\\Plno"'\Ple"dlngl\COmpllllnIIVwpd

4

21. On March 24, 2005, Plaintiff called April Harper of the Human Resources

department and inquired about the procedure for filing a sexual

harassment complaint.

22. The following day, Barber asked Plaintiff for information because he

planned to do her semi-annual performance review. Plaintiff asked April

Harper of Human Resources to sit in on the performance review.

23. On the next day, March 26, 2004, Barber again subjected Plaintiff to

unwanted touching by grabbing and pulling on her long hair.

24. On March 29, 2004, Plaintiff again spoke with April Harper of Human

Resources and further detailed the nature of her complaints. Harper

indicated that her complaint would be investigated and asked her to

provide more details in writing, which Plaintiff did within several days.

25. Barber persisted with his plans to evaluate Plaintiff. Plaintiff told April

Harper and Randy Lichtenfeld, Regional Vice President, that she was

uncomfortable having Barber evaluate her after he had been sexually

harassing her. Both told her that the evaluation would go forward,

although she could have another manager present.

26. The workplace became increasingly uncomfortable to Plaintiff. Her

health began to decline with stress-related ailments.

27. Plaintiff sought medical treatment and was told to stay on leave. A

doctor's note was sent to Human Resources and she was placed on leave

which was identified as have been done pursuant to the Family and

Medical Leave Act (FMLA).

F \Che~t,iC YI! Rts & F,.....p oymentIPlflO:'!\PI.adingIICompll!unt IV.wpd

5

28. On April 12, 2005, April Harper of Human Resources sent a letter indicating that her concerns had been investigated and properly addressed with appropriate action. Plaintiff received the letter on April 19, 2004, and followed up with Harper for more information. Harper would not give her any more information.
29. Barber continued to work in his same position. 30. Plaintiff's treatment provider advised that she could return to work if she
could be moved away from a cubicle in the physical vicinity of Barber and if she was no longer required to work under the direct supervision of Barber. Plaintiff requested those accommodations of her employer and provided notes from her physician and therapist. Her request was denied. 31. Plaintiff's available leave was exhausted and she was denied worker's compensation. She had to choose between quitting her job and returning to work. Out of financial need, she chose to return to work. 32. Plaintiff returned to work in the same cubicle. in the vicinity and under the supervision of Barber. Her anxiety increased and her health suffered. 33. After returning to work, on more than one occasion, Barber again touched Plaintiff and she again told him to stop. 34. The lack of clarity about Plaintiff's position and the filing assignments resumed. A co-worker confided that Barber had stated that he wanted to get rid of Plaintiff.

F iCher.t~\C y" RII & E":"ploY"lenIIPinor>\Plel!ldlngsICompla,nIIV wpd

6

35. In June, 2004, Ms. Pilion filed her first charge of discrimination with the EEOC and alleged that she was discriminated against by University of Phoenix when she was sexually harassed by a supervisor and then retaliated against when she rejected his advances and complained to her employer.
36. Plaintiff was denied the bonus check that other employees had received. The reason given was that she had been on FMLA leave.
37. In July, 2004, Plaintiff received the lowest evaluation she had ever received at the University of Phoenix. She was placed on a performance plan.
38. Plaintiff continued to have other problems with her work. She was accused of mishandling documents.
39. In early August, 2004, the EEOC conducted site interviews as part of its investigation of Plaintiffs charge of discrimination.
40. Plaintiff continued to have ambiguous job duties. However, after the EEOC investigation, her request to be moved to another cubicle was finally granted.
41. On August 9, 2004, Plaintiff learned that Barber had been placed on administrative leave.
42. On August 17, 2004, Plaintiff received a call from Human Resources and was told that Barber was no longer with the University. Plaintiff questioned whether her negative evaluation and performance plan would stay in place and was told it would. 7

43. Plaintiff persisted in trying to assume more job duties and sought to get

back some of the job responsibilities that had been taken away from her.

The management began to ask her to log what she was doing, despite

that she was given little more to do than a file clerk. Her efforts to get her

job back on track were not successful.

44. On or about September 15, 2004, Plaintiff resigned her position as

Academic Affairs Program Manager because she could no longer tolerate

the workplace. She did not resign her teaching position as a faculty

member.

45. On information and belief, University of Phoenix continued to give Barber

teaching assignments.

46. In February, 2005, University of Phoenix discontinued Ms. Pinon's

teaching assignments without cause and without stating a reason.

47. On March 29, 2005, the EEOC issued a probable cause determination

against University of Phoenix, finding that Ms. Pinon and had been

subjected to a sexually hostile work environment and that Ms. Pinon had

been subjected to retaliation.

48. In late March, 2005, Ms. Pii'lon submitted a second charge of

discrimination against University of Phoenix, because she felt that her

teaching assignments had been discontinued in retaliation for her

previous charge of discrimination.

49. In December, 2005, undersigned counsel requested a Notice of Right to

Sue on behalf of Ms. Pinon so that all claims could be brought through

r \CI,o~tS\CI",,1 Rb to Employmen:\p,"Ion\Plead,ng,\Complainlll/wpd

8

intervention in this litigation. The Notice of Right to Sue was issued on December 14, 2005. Count I: Hostile Work Environment Sexual Harassment 50. Plaintiff incorporates the allegations contained in the preceding paragraphs as though fully set out herein. 51. During the course of her employment by Defendant. Plaintiff was subjected to acts of sexual harassment which included but were not limited to severe and pervasive sexual advances and other verbal and physical conduct of a sexual nature, all of which Plaintiff did not welcome. 52. Unwelcome, severe and pervasive sexual behavior toward Plaintiff, and the inadequacy of Defendant's response thereto, had the purpose and effect of unreasonably interfering with Plaintiff's work performance and/or creating an abusive, intimidating, hostile and offensive work environment, which directly affected the terms, conditions and privileges of Plaintiffs employment and violated her statutory rights to be free from discrimination on the basis of gender. 53. Defendant failed to take adequate measures to prevent, investigate, and eradicate sexual harassment in Plaintiff's workplace. 54. Defendant failed to take adequate steps to stop the behavior, and failed to take any measures designed to promptly prevent and remediate acts of sexual harassment, both before and after, and/or as a result of, any of the incidents alleged herein.
9

55. Defendant's failure to prevent, eradicate, and promptly remediate sexual harassment amounted to a condonation and ratification of sexual behavior and Defendant's omissions perpetuated an abusive and hostile work environment.
56. By creating, condoning and perpetuating a sexually hostile work environment, Defendant has intentionally and with reckless indifference violated Plaintiff's rights under Title VII, thereby justifying an award of punitive damages.
57. Defendant's condonation, ratification, tacit approval and perpetuation of sexual behavior has caused Plaintiff to suffer severe humiliation, embarrassment, degradation and emotional and physical distress, as well as economic losses.
58. Plaintiff further alleges that the acts of Defendant, through its employees and agents, singularly or in combination, constitute sexual harassment, discriminatory and disparate treatment of Plaintiff, as consequence of her gender.
59. University of Phoenix employees and agents, including those named herein, acted in a willful, malicious, intentional and unlawful manner, and in reckless disregard of Plaintiff's rights, and Plaintiff demands and is entitled to exemplary or punitive damages in an amount which bears a reasonable relationship to her actual damages.

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10

Count II: Retaliation 60. Plaintiff incorporates the allegations contained in the preceding
paragraphs as though fully set out herein. 61. Plaintiff opposed the sexual harassment by resisting unwelcome sexual
advances and other verbal and physical conduct of a sexual nature, by reporting same to her supervisor and to others in the supervisory chain, and ultimately by filing a charge of discrimination with the EEOC, which opposition and participation is statutorily protected by Title VII. 62. Managerial employees of University of Phoenix, with knowledge and in response to Plaintiffs opposition as described above, subjected Plaintiff to adverse employment action, including reduced title, reduced job duties, denial of a bonus, an unwarranted negative evaluation, and ultimately, forced termination. She also was terminated from her position as a faculty member when she was denied continuing teaching assignments. 63. Defendants based their employment actions on false or pretextual bases. 64. As a direct and proximate result of the actions of University of Phoenix employees and agents, including those named herein, Plaintiff has suffered harm for which she is entitled to compensatory and punitive damages. 65. University of Phoenix employees and agents, including those named herein, acted in a willful, malicious, intentional and unlawful manner, and in reckless disregard of Plaintiffs rights, and Plaintiff demands and is entitled to exemplary or punitive damages in an amount which bears a
11

reasonable relationship to her actual damages. Count III: Constructive Discharge
66. Plaintiff incorporates the allegations contained in the preceding paragraphs as though fully set out herein.
67. University of Phoenix, when informed by Plaintiff that sexual harassment was occurring in the workplace, took little action to remediate the situation and to discipline employees.
68. When Plaintiff complained of retaliation, University of Phoenix similarly failed to appropriately investigate and remediate the situation.
69. University of Phoenix's actions and inactions created working conditions so difficult and intolerable to Plaintiff that a reasonable employee in Plaintiff's position would have no choice but to cease working for University of Phoenix.
70. As a direct result of University of Phoenix's conduct, Plaintiff resigned, and University of Phoenix's conduct constitutes a constructive discharge of Plaintiff.
71. As a direct and proximate result of Defendant's inaction and negligent supervision of its agents and employees, Plaintiff has sustained damages as outlined in paragraph 57, above.
72. Defendant's employees and agents acted in a willful. malicious, intentional and unlawful manner, and in reckless disregard of Plaintiff's rights, and Plaintiff demands and is entitled to punitive damages in an amount which bears a reasonable relationship to her actual damages. 12

Count IV: Breach of Implied Contract of Employment 73. Plaintiff incorporates the allegations contained in the preceding
paragraphs as though fully set out herein. 74. Plaintiff was employed by Defendant under an implied contract of
employment that was established, modified and enforced by certain policies, practices, assurances and other express and implied statements. Those policies banned gender discrimination and harassment and mandated immediate and appropriate investigation of complaints, as well as appropriate discipline. Further, these policies indicated that parties who complained of discrimination and/or harassment would not suffer retaliation for their complaint. 75. At all material times, Plaintiff performed her obligations under her contract with Defendant. 76. Defendant breached the contract by failing to act in accordance with its own policies and procedures as laid out in its personnel policies and ancillary documents. Defendant failed to enforce its prohibitions against sexual harassment, discrimination and retaliation, failed to take prompt adequate and appropriate remedial action, and failed to protect Plaintiff from retaliation. 77. Defendant's breaches have caused Plaintiff to suffer loss of wages and benefits.
13

Count V: Negligent Supervision & Retention 78. Plaintiff incorporates the allegations contained in the preceding
paragraphs as though fully set out herein. 79. Barber was placed in a position of supervisor at the University of
Phoenix's facility in Santa Teresa, New Mexico and supervised a number of its employees, including Plaintiff. 80. The acts of harassment and retaliation perpetrated against Plaintiff by Barber and others while they were employed by University of Phoenix and were in the course and scope of their employment. 81. University of Phoenix knew or reasonably should have known of their employees' conduct with Plaintiff and others, and knew or reasonably should have known that this conduct would harm Plaintiff and others. 82. University of Phoenix owed a duty of care to Plaintiff and other similarly situated female employees to provide a safe work environment, which included the duty to protect them from sexual harassment and other inappropriate behavior perpetrated by University of Phoenix' employees, as well as the duty to enforce its policies designed to protect employees from harassment and retaliation. 83. University of Phoenix failed to effectively monitor Plaintiff's work environment and its employees' conduct, failed to adequately investigate complaints of sexual harassment and retaliation, failed to take effective remedial action, and failed to provide effective training to all employees concerning the prohibition against, the prevention of, and the proper
14

investigation of inappropriate conduct. University of Phoenix thereby failed to eradicate the acts of sexual harassment, retaliation and inappropriate behavior exhibited toward the Plaintiff. 84. University of Phoenix failed to properly supervise Barber, and retained him in his supervisory position despite his conduct, thereby breaching its duty to Plaintiff and others. 85. University of Phoenix knew or should have known that if it did not effectively monitor the work environment and its employees' conduct, that if it did not adequately investigate complaints of sexual harassment and retaliation, that if it did not take effective remedial action, and that if it did not provide effective training to all employees, harm to employees would likely be caused by such acts and omissions. 86. As a direct and proximate result of University of Phoenix's failure to supervise its employees and failure to take adequate measures to prevent, remediate and eradicate sexual harassment and retaliation, Plaintiff has suffered harm. 87. Because the conduct of its employees occurred while acting within the course and scope of their employment and with University of Phoenix's knowledge and implied consent and approval, University of Phoenix is responsible for the injuries to Plaintiff and for damages. 88. As a direct and proximate result of Defendant's inaction and negligent supervision of its agents and employees, Plaintiff has sustained damages as outlined in paragraph 57, above.
15

89. Defendant's employees and agents acted in a willful, malicious, intentional

and unlawful manner, and in reckless disregard of Plaintiff's rights, and

Plaintiff demands and is entitled to punitive damages in an amount which

bears a reasonable relationship to her actual damages.

Prayer for Relief

WHEREFORE, Plaintiff respectfully prays for the following relief:

a. Jury trial on all issues so triable;

b. Compensatory damages in an appropriate amount (as yet undetermined);

c. Actual, incidental and consequential damages on the breach of contract

claim:

d. Punitive damages in an appropriate amount (as yet undetermined):

e. Reasonable attorneys' fees and costs;

f.

Pre- and post-judgment interest as applicable; and

g.

Such other and further relief as the Court deems proper.

Respectfully submitted, ALMANZAR & YOUNGERS, P.A.

Attorney for Lorena Piflon
16

CERTIFICATE OF SERVICE
~Of I hereby certify that a copy of the foregoing was mailed on this
February, 2006 to:
Loretta Medina Veronica A. Molina Equal Employment Opportunity Commission Albuquerque District Office 505 Marquette NW, Suite 900 Albuquerque, NM 87102
Stanley K. Kotovsky, Jr. The Tinnen Law Firm 500 Marquette NW, Suite 1300 Albuquerque, NM 87102
William R. Hayden
James K. Mackie Matthew D. Mitchell Snell & Wilmer, LLP One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2002

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17

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
and
LORENA PIÑON and LORETTA GRADO,
Intervenors,

v.

Civil Action No. 05-cv-1048

UNIVERSITY OF PHOENIX, INC.,

Defendant.

COMPLAINT OF INTERVENOR LORETTA GRADO NATURE OF THE ACTION
1. Intervening Plaintiff Loretta Grado brings this action against her former employer, Defendant University of Phoenix, Inc., for declaratory judgment, permanent injunctive relief, and compensatory and punitive damages for Defendant’s discrimination against her on the basis of sex and its retaliation for her opposition to the discriminatory treatment. This action arises under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by 42 U.S.C. § 1981a (“Title VII”) and New Mexico common law.

2. On July 1, 2003, Ms. Grado began work as a Student Services Coordinator at the University of Phoenix, Santa Teresa Campus. The Campus Director, Manny Ortiz—the highest ranking official on the campus—immediately began an unrelenting campaign of sexual harassment of Ms. Grado. On numerous occasions, Ortiz propositioned Ms. Grado for sex, suggesting that they meet in secluded areas and “party.” Ortiz tried to grope Ms. Grado, regularly ran his hands through her hair, and constantly made lewd sexual comments to her. On one occasion, Ortiz physically pinned Ms. Grado against a wall and forcibly kissed her. Ortiz’s harassment was constant and continued for months.
3. Ortiz’s harassment was accompanied with suggestions that he would ensure that Ms. Grado would get promoted and “move up” in the company if she submitted to his sexual advances. Ms. Grado consistently rejected Ortiz’s unwelcome harassment and regularly made complaints to her supervisor and other University officials. Because Ms. Grado resisted Ortiz’s advances and reported his conduct, he prevented her from being promoted to a Financial Aid Counselor position for which she applied and was qualified. Ortiz instead promoted a less-qualified applicant.
4. When Ms. Grado reported Ortiz’s conduct to her supervisors, they told Ms. Grado not to worry and indicated that they had learned to accept the fact that Ortiz regularly harassed female employees. Despite Ms. Grado’s frequent complaints about Ortiz’s conduct, the University took no actions against him or made any efforts to stop his harassment. Finally, after the University of Phoenix’s human resources department commenced an investigation of various allegations of Ortiz violating University of
2

Phoenix policies, the University of Phoenix terminated Mr. Ortiz—approximately six months after Ms. Grado began reporting his sexual harassment.
5. On March 16, 2003, Ms. Grado filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC). Upon investigating Ms. Grado’s complaint, the EEOC found that Ms. Grado and other female employees “were subjected to unwelcome comments and conduct by management level employees which created a sexually hostile work environment.” EEOC Determination (attached as Exhibit A). The EEOC further determined that “it is more likely than not that Charging Party was not selected for promotion to the Financial Aid Counselor position because of her rejection of the Campus Director’s sexual advances and/or because she otherwise opposed practices made unlawful by Title VII.” Exhibit A.
6. Defendant, by and through its officials and employees, maintained a hostile working environment, took adverse employment actions against Ms. Grado for her refusal to submit to Ortiz’s sexual advances, and retaliated against Ms. Grado for her complaints of discrimination. These actions violate Title VII’s protections against discrimination on the basis of sex and New Mexico common law.
PARTIES 7. Intervening Plaintiff Loretta Grado is a woman. Ms. Grado is a United States citizen and a resident of the State of Texas. From July 2003 to May 2004, Ms. Grado was employed by the University of Phoenix as a Student Services Coordinator at the Santa Teresa Campus located at 1270 Country Club Road, Santa Teresa, New Mexico 88008.
3

8. Defendant University of Phoenix, Inc., an institution of higher education, is incorporated in Arizona and offers education for working adults through the Internet and classes at its 170 campuses, including University of Phoenix-Santa Teresa, New Mexico. At all relevant times, University of Phoenix, Inc. had more than 500 employees.
JURISDICTION AND VENUE 9. Jurisdiction is conferred on this Court by 28 U.S.C. §§ 1331, 1343(a)(3), 1367, and 42 U.S.C. § 2000e-5(f).
10. Venue is proper in this District pursuant to 42 U.S.C. § 2000e(5)(f)(3) and 28 U.S.C. § 1391(b) because the claims arise, and a substantial portion of the relevant events occurred, in this District.
FACTUAL ALLEGATIONS A. Ms. Grado’s Employment at the University of Phoenix
11. Loretta Grado is a twenty-nine year old woman living in El Paso with her two children, a seven-year-old son and a five-year-old daughter. Ms. Grado majored in Business Management at the University of Phoenix and obtained a certification in Human Resources. Ms. Grado is currently employed as a property manager by Investment Builders, Inc. where she manages nine properties, overseeing all aspects of the operation and maintenance of the properties.
12. In July 2003, Ms. Grado was hired as a Student Services Coordinator by the University of Phoenix at its Santa Teresa campus. The University of Phoenix is the largest private university in North America, with over 230,000 students and 17,000
4

faculty and staff members. The University offers higher education for working adults through the Internet and at its numerous campuses throughout the country.
13. As a Student Services Coordinator, Ms. Grado’s duties included conducting new student orientations, administering CLEP tests for students, and creating the student information database. Ms. Grado’s annual salary was approximately $19,000. Ms. Grado was directly supervised by Brian Russo, the Academic Counseling Manager. Manny Ortiz, as the Campus Director, was the highest ranking University employee on the campus and supervised all of the Santa Teresa campus employees, including Ms. Grado and her immediate supervisors. Ortiz was supervised by the University’s Regional Vice President, Randy Lichtenfield.
B. Sexual Harassment Directed At Ms. Grado
14. Manny Ortiz’s harassment of Ms. Grado began immediately after she started work. In the first few months of her employment, Ortiz would, for no workrelated or any other apparent legitimate reason, regularly summon Ms. Grado into his office, call her on the phone up to ten times a day, or visit her cubicle. During these contacts, Ortiz would engage in inappropriate behavior such as showing Ms. Grado his high school yearbook to demonstrate that he was “good looking” and asking her, “don’t you think so?”
15. Approximately three months after Ms. Grado started work, Ortiz’s sexual advances became more overt. Ortiz told Ms. Grado that he heard about her divorce and wondered whether she liked to “party.” Ms. Grado said that she did not understand his
5

question, and Ortiz explained that partying would include “kissing,” “touching,” “making each other feel good,” and “having sex.”
16. Ortiz invited Ms. Grado to “party” with him and then explained that since he was married, he had to “party” during the day. Ms. Grado rejected his proposition, and as she got up to leave, Ortiz said that his door was “always open” if she ever wanted to “party.”
17. Over the next several months, Ortiz frequently would suggest that he and Ms. Grado meet at unoccupied locations so they could have sex. On one occasion, Ortiz offered to pay for a hotel room during a company retreat. Ortiz would regularly try to grope Ms. Grado or run his hands through her hair. Ortiz would constantly make lewd comments about her physical appearance. He would often say that her clothing showed off her “curves” and would often make suggestive noises such as “mm mm mm” and “wow” behind her as she walked. Ortiz asked her whether she “craved” him and whether she was lonely and wanted someone to “hold” and “caress” her.
18. In November 2003, Ortiz called Ms. Grado into his office and asked her whether she was dating. He then asked her, “Why don’t you give me a chance?” She asked him what it would take for him to stop. He said, “Damn it, you will give in. You want to move up, don’t you?” When Ms. Grado rejected his advance, Ortiz cursed at her and threatened her not to “fuck” with him. As Ms. Grado got up to leave, he blocked the door, pinned her against the wall, and forcibly kissed her. Ms. Grado pushed him away and left his office in tears.
6

19. At one point early in her employment, Ms. Grado was told by Russo that she should wear a short skirt in a video that Manny Ortiz was organizing because she had been voted as one of the female employees with the “best legs.” Ortiz organized the video supposedly to boost morale among employees and had himself filmed flirting with Ms. Grado and another female employee. The video, which described Ortiz as the office’s “leader” who “oozes charm,” was later shown to campus employees.
20. Ortiz’s harassment was frequently accompanied with promises that he would give Ms. Grado benefits if she accepted his sexual advances and had a relationship with him. Ortiz repeatedly told Ms. Grado that she was “management material” and that he could help her “go far” in the company.
21. Ortiz told Ms. Grado that he would recommend her for a Financial Aid Counselor position, which would have increased her salary approximately one and a half times. Ortiz stressed that the salary increase would boost her finances as a single mother and said that Ms. Grado would owe him big for the recommendation.
22. Ortiz knew his harassment of Ms. Grado was inappropriate and when he suspected that she was making complaints about his conduct, he asked another employee to review an office surveillance tape for footage that might show his sexual harassment. Ortiz also asked the other employee to report any comments Ms. Grado made about Ortiz. Ortiz told the other employee that if he did not do these tasks for Ortiz, he would be fired.
7

23. Ortiz’s harassment of Ms. Grado was unwelcome and Ms. Grado constantly and consistently rejected his advances. Nonetheless, the harassment continued unabated through the time Ortiz left the campus in February 2004. Even after he left employment with the University of Phoenix, Ortiz would return to the campus, sit in his car outside the office, and watch Ms. Grado leave. Ortiz even followed Ms. Grado on one occasion as she drove to work from home.
24. Ms Grado was not alone in being harassed by Ortiz. Ms Grado was told by another female employee that Ortiz had propositioned her while she was going through her divorce and that he had sexually harassed other female employees.
C. Ms. Grado’s Regular Reports and Complaints Regarding Ortiz’s Harassment 25. Soon after Ortiz began harassing her, Ms. Grado reported his conduct to
her supervisor, Brian Russo. Ms. Grado first informed Russo of Ortiz’s harassment in August 2003. Russo responded that Ortiz was harmless. Ms. Grado continued to regularly complain about Ortiz’s harassment to Russo, but Russo merely told her to ignore Ortiz.
26. When Ms. Grado specifically reported to Russo that Ortiz had asked her to “party,” including asking her to have sex with him, Russo responded, “Welcome to Manny’s world.” Russo told Ms. Grado that she had done nothing wrong and that he would take care of the situation, asking her to go back to work.
8

27. When Ms. Grado reported Ortiz’s conduct to Operations Manager Pamela Snow, who supervised Russo, she acknowledged that Ortiz had “done this for a very long time” but merely told Ms. Grado to keep doing her job and “hope that he gets the picture.” In February 2004, Ms. Grado filed a written complaint with the Human Resources department regarding Ortiz’s harassment. She received no response, and the Human Resources department never investigated her complaint.
28. Defendant took no disciplinary or other action against Ortiz for his harassment of Ms. Grado and other female employees and made no effort to stop his harassment until the University of Phoenix Human Resources department commenced an investigation regarding allegations of Ortiz’s misconduct made by other employees.
D. Ortiz’s Retaliatory Refusal to Allow Ms. Grado to be Promoted
29. Because Ms. Grado rejected Ortiz’s advances and in retaliation for Ms. Grado’s complaints about his sexual harassment, Ortiz prevented her from being promoted. Ms. Grado submitted an application for the position of Financial Aid Counselor to the Finance Manager, Jaime Armendariz. The Financial Aid Counselor position would have paid an annual salary of between $26,000 to $28,000. Financial Aid Counselors were frequently promoted to Academic Counselor positions.
30. Ms. Grado was well-qualified for the Financial Aid Counselor position, having experience in retail and office management, which included managing finances. In addition, despite Ortiz’s harassment, Ms. Grado had performed her duties as a Program Specialist in an exemplary fashion. At the time, Ms. Grado was attending school with a Business Management major. Ms. Grado interviewed for the position and Armendariz
9

told Ms. Grado’s supervisor that she did very well in the interviews and that she would get the Financial Aid Counselor position.
31. Ortiz, however, blocked her promotion and Berlinda Hernandez was hired as Financial Aid Counselor. Upon information and belief, Ms. Hernandez was a lessqualified applicant than Ms. Grado. When Ms. Grado asked Russo why she had not been hired, Russo said, referring to Ortiz, “you know who made the decision.”
E. Ms. Grado’s Commencement of EEOC Proceedings 32. On March 16, 2004, Ms. Grado filed a Charge of Discrimination with the
EEOC, alleging that Defendant discriminated against her, by and through its employees and agents, by engaging in quid pro quo sexual harassment, maintaining a hostile working environment on the basis of sex, and retaliating against her. The EEOC conducted an investigation of Ms. Grado’s allegations and on March 29, 2005 issued a determination in Ms. Grado’s favor. The EEOC concluded, in part:
Evidence obtained during the investigation revealed that the Charging Party and other female employees of Respondent were subjected to unwelcome comments and conduct by management level employees which created a sexually hostile work environment at the Santa Teresa campus. Evidence also reveals Respondent failed to take reasonable steps to prevent and correct the harassment of Charging Party and others. Also, Respondent failed to take prompt and appropriate corrective actions upon receipt of Charging Party’s complaints of harassment. Exhibit A. 33. The EEOC further determined that “it is more likely than not that Charging Party was not selected for promotion to the Financial Aid Counselor position because of her rejection of the Campus Director’s sexual advances and/ or because she otherwise opposed practices made unlawful by Title VII.” Exhibit A.
10

34. After unsuccessful attempts to conciliate the matter, the EEOC filed this action on September 30, 2005.
F. The University of Phoenix’s Responsibility for Ortiz’s Sexual Harassment 35. At all times relevant, Ortiz, Russo, and Snow were acting within the scope
of their employment as employees, agents and/or representatives of the University of Phoenix. The discriminatory actions described above were carried out (a) at the direction of and with the consent, encouragement, knowledge, and ratification of the University of Phoenix; (b) under University of Phoenix’s authority, control, and supervision; and/or (c) within the scope of the employee’s employment.
36. The University of Phoenix knew or reasonably should have known that some harm might be caused by the acts or omissions of Ortiz, who was entrusted with a high-ranking supervisory position.
37. Ortiz’s actions, as set forth above, constitute extreme and outrageous conduct and were willful, wanton and malicious, and were undertaken with reckless disregard for Ms. Grado’s rights. Ortiz was aided in accomplishing the illegal conduct set forth above by the existence of the agency relationship with the University of Phoenix.
38. Defendant’s actions, as described above, were a series of separate but related acts that amounts to a continuing violation of 42 U.S.C. § 2000e et seq. and New Mexico common law.
11

INJURY TO MS. GRADO 39. Ms. Grado’s ability to work was hampered by the constant need to deflect Ortiz’s unwelcome and flagrant sexual advances. Ms. Grado was forced to work in an atmosphere of intimidation and humiliation and feared for her and her children’s safety.
40. As a result of Ortiz’s offensive advances and the hostile work environment, Ms. Grado suffered extreme and severe emotional distress, humiliation, sleeplessness, and constant nightmares. She became increasingly despondent and feared for her safety. Ortiz’s advances toward Ms. Grado had become general knowledge in the office, including with Ortiz’s wife who worked in the same office. As a result, Ms. Grado was subjected to public scrutiny at work and forced to endure disrespectful remarks from coworkers.
41. Due to the constant emotional stress, Ms. Grado took a leave of absence in February 2004. The hostile work environment that Ms. Grado had to endure at the Santa Teresa campus and the other illegal conduct directed at Ms. Grado created difficult and intolerable working conditions that caused her to resign in May 2004. After resigning, Ms. Grado was able to obtain a position with the Border Fair Housing and Economic Justice Center in El Paso, as a Fair Housing Specialist. In November 2005, the Fair Housing Specialist position was eliminated because of funding cuts and Ms. Grado was unemployed until January 30, 2006.
42. As a result of University of Phoenix’s discriminatory conduct, Ms. Grado suffered, and will in the future suffer, irreparable loss and injury including, but not
12

limited to, economic loss, humiliation, embarrassment, emotional distress, and a deprivation of her right to equal employment opportunity.

43. Ms. Grado was disadvantaged in her career because she was not promoted and received a lower salary while at the University of Phoenix and in subsequent positions.

44. reference.

COUNT I Title VII Paragraphs 1 through 43 are realleged and incorporated herein by

45. As described above, Defendant’s actions, including those by and through its employees and agents, subjected Ms. Grado to differential terms and conditions of employment because of her sex through quid pro quo harassment and a hostile working environment, in violation of Ms. Grado’s right to equal opportunity under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq.

46. As described above, Defendant’s actions, including those by and through its employees and agents, were in retaliation for Ms. Grado’s opposition to, and complaints about, discriminatory employment practices, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq.

13

47. reference.

COUNT II Negligent Supervision Paragraphs 1 through 46 are realleged and incorporated herein by

48. As described above, Defendant’s actions, including those by and through its employees and agents, constituted negligent supervision or retention of Ortiz, who was Defendant’s entrusted employee, after it knew or reasonably should have known that some harm might be caused by Ortiz’s acts or omissions and also that Ortiz’s acts or omissions harmed Plaintiff.

49. reference.

COUNT III Intentional Infliction of Emotional Distress Paragraphs 1 through 48 are realleged and incorporated herein by

50. As described above, Defendant’s extreme and outrageous conduct, including conduct by and through its employees and agents, intentionally and/or recklessly caused Plaintiff extreme and severe emotional distress.

51. reference.

COUNT IV Breach of Implied Contract Paragraphs 1 through 50 are realleged and incorporated herein by

14

52. As described above, Defendant’s actions, including those by and through its employees and agents, made working conditions objectively so intolerable for Ms. Grado, that a reasonable person would be compelled to resign. Defendant’s constructive discharge of Ms. Grado breached an implied contract of employment. Defendant, by and through its policies and procedures and by and through statements of its employees and agents, has made direct or indirect references that termination of Ms. Grado would be only for just cause and/or has established procedures for termination with particular procedures.
PRAYER FOR RELIEF Wherefore, Ms. Grado requests that this Court enter judgment in her favor and award her the following relief: (1) Declare that the actions of Defendant described above constituted discrimination on the basis of sex and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. and New Mexico common law; (2) Order injunctive relief requiring Defendant to provide sexual harassment training and a sexual harassment policy to all management and employees; (3) Award Ms. Grado all lost salary, bonuses, commissions, and benefits that she would have received had Defendant not engaged in unlawful discrimination and retaliation, including appropriate back pay and front pay;
15

(4) Award Ms. Grado compensatory damages in an amount to be determined at trial for her loss and injury including, but not limited to, economic loss, humiliation, embarrassment, emotional distress, and deprivation of her right to equal employment opportunity regardless of her sex;

(5) Award Ms. Grado punitive damages in an amount to be determined at trial that would punish Defendant for its willful, wanton, and reckless conduct and that would effectively deter Defendant from engaging in similar conduct in the future;

(6) Award Ms. Grado prejudgment interest;

(7) Award Ms. Grado reasonable attorneys’ fees and costs incurred in this action and the administrative claims that preceded it; and

(8) Award such other relief as the Court deems appropriate and just.

JURY DEMAND Plaintiff requests trial by jury as to all issues in this case.

Dated: May 26, 2006

Respectfully submitted,

___________________________
RELMAN 1225
W (202) (202)

Reed N. Colfax Myrna Perez
& ASSOCIATES, PLLC 19th St., N.W. Suite 600 ashington, D.C. 20036 728-1888 728-0848 (fax)

16

 
 fWLED
UNITED :; rilfES :)IS llilCT COURT
IN THE UNITED STATES DISTRICT COUI~~~[1UCUEI10lIE ~IEW MEXICO FOR TI-IE DISTRICT OF NEW MEXICO
JUL 1 4 2006

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

and

)

)

LORENA PINON

)

Intervener,

)

v_

)

)

UNIVERSITY OF PHOENIX, INC.,

)

)

Defendant,

)

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

MATTHEW J. DYKMAN
CLERK CIV -05-1048 JB/WPL
CONSENT DECREE PERTAINING TO CHARGING PARTY LORENA PINON ONLY

This matter came before the Court upon the agreement orthe United States Equal Employment Opportunity Commission (the Commission or EEOC), Intervencr Lorena Pinon and defcndant to enter into a consent decree for the purpose of resolving the claims of sex discrimination and retaliation brought by the EEOC against defendant on behalf of Charging Party Lorena Pinon. This Dccr..:e is intended to resolve only the claims brought on behalfof Charging Pllrty Lore.na Pinon.
The Commission filed this action against the University of Phoenix, Inc., (hereinafter "UOP") to enforce Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.c. §2000e et gg. ("'Title VII) and the Civil Rights Act of 1991, 42 U.S.C. § 19813. In the Complaint and Amended Complaint, the COJllmission alleged that Charging Party Lorena Pinon was subjected to harassment because of her sex, including sexually offensive comments and conduct of a highranking management official, which created a hostile work environment for her because of her sex, female. In addition, the Commission alleged that Ms. Pinon was subjected to retaliation

1
{pI

with respect to her temls, conditions and privileges of employment because she opposed perceived unlawful employment practic.es.
This decree does not constitute an admission of liability by the defendant, nor an adjudication on the merits of the allegations o[the complaint.
The parties do not object to the jurisdiction of the Court over this action and waive their rights to a hearing and the entry of findings of fact and conclusions of law as to claims made on
bellal r of Lorena Pinon.
It is hereby ORDERED, ADJUDGED AND DECI~EED: I. This Decree resolves all claims of the Commission against DOP on behalf of Lorena Pinon, including claims for back pay, compensatory and punitive damages, interest, injunctive relief, attorney's fees and costs arising out of tile issues relating to Ms. Pinon's claims in this lawsuit. This Decree docs not preclude the Commission from prosecuting its rcmaining sex discrimination and retaliation claims against Defendant relating to Loretta Grado.
IN.JUNCTION 2. DOP, their owners, stockholders, managers, agents, officers, employees, successors and assigns and all persons in active concert or participation with them, are pennanently cnjoined for the duration of the decree from discriminating against any employee because of his or her sex, including subjecting employees or individuals to sexual harassment. This injunction will remain in effect for the duration of the decree at any facility operated by 001' in the state of New IVlcxico. 3. DOP, their owners, stockholders, managers, agents, oflicers, employees, successors and assigns and all persons in active concert or participation with them, are pemlanently enjoined for the duration of the decree [rom retaliating against any employee or individual
2

because the employee or individual has (a) opposed practices madc unlawful by Title VII or a

state equal employment opportunity statute, (b) filed a charge of discrimination, including sexual

harassment, (c) assisted or participated in the filing of a charge of discrimination, including

sexual harassment, (d) assisted or participated in an investigation or proceeding under Title VII

or a state equal employment opportunity statute, or (e) files an internal complaint of

discrimination. This injunction will remain in effect for the duration of the decree at any facility

operated by UOP in the state of New Mexico.

RELIEF TO CHARGING PARTY

4. In accordance with this decrec, UOP shall pay the total amount of$130,000 ("the

settlement amount") to Lorena Pinon and her attorncy. Of the settlement amount, S11,852.00

shall be paid as back pay. Law[ul cmployee payroll deductions for social security and

withholding taxes shall be deducted from thesc amounts. and the deductions shall be itemized.

The employer's share ofpaymcnts for FUTA and FICA sh'all be paid by Defendant ami not

deducted [rom this amount. Orthe settlement amount, $59.637.74 is payable to Lorena Pinon as

compensatory damages. Of the settlement amount, $58,780.26 is payable to Lorena Pinon's

attorney as attorney's [ees, New Mexico gross receipts tax'. and costs.

5.

UOP shall pay the settlement amounts described in paragraph 4 of this decree

within ten (10) business days of entry of this decree via business checks to Ms. Pinon and her

attomey. Within ten (10) business days of issuance o[the checks, UOP shall submit a copy of

the checks and related correspondence to the Regional Attorney, Equal Employment Opportunity

Commission, Albuquerque Area Office, 505 Marquette NW, Suite 900, Albuquerque, New

Mexico 87102-1189.

3

6. In response to any cmployment inquiries or reference checks concerning Lorena Pinon, UOP shall provide only hcr dates of employment. last position held, and job status of rulltime cmployee and faculty member. This provision shall remain in force for so long as Ms. Pinon uses UOP as a reference and is not limited to the three-year duration of this decree.
7. Within live (5) business days of entry of this decree, UOP shall provide Lorena Pinon a letter ofrefercnce in the f0I111 of Exhibit A.
S. UOP shall not take any action against Lorena Pinon, any witncss in this procecding or any other individual in retaliation for liIing a charge of employment discrimination or for participating, assisting or testifying in this action.
9. Within five (5) business days of entry of this decree, UOP shall provide Lorena Pinon with a letter of apology in the foml of Exhibit B.
DEFENDANT'S CORRECTIVE POLICIES AND PRACTICES
1n. UOP shall institute and carry out policies and practices that will provide a work
environment free from sex discrimination and retaliation, including policies, procedures and practices to prevent sexual harassment of their employees and other individuals, and that allow employees and other individuals to raise concerns or complaints about matters made unlawful by Title VII, whether alleged, perecived or actual without retaliation. To assist UOP in its efforts to provide a work environment free of sex discrimination, sexual harassment and retaliation. UOP shall take the actions provided for in Paragraphs II through 13 and 15.
II. Within sixty (60) days orthe cntry of this decree. UOP shall review any existing policies on sex discrimination. including sexual harassmcnt and retaliation. and make any changes necessary so that their policies and procedures comply with Title V[1. UOP shall ensure their written policy includes a statement that employees have the right to complain directly to
4

EEOC or any state equal opportunity agency. UOP shall ensure that its policies and procedures relating to scxual harassment provide for and identify a person on each campus or in cach facility in New Mexico who is a person that will have information about UOI"s complaint process, who may bc designated to receive complaints from their respective campus or facility, and who is
responsible for reporting such complaints in a timely manner to the uor Human Resources
Department. After reviewing and making any necessary revisions to its policies, UOP shall distribute thc revised sexual harassment and non-retaliation policics and complaint proccdures to each of its current full and part-time employees, and to each new employee hired for the duration of this decree in New Mexico. The policy and procedure statements that are provided to UOP employees should be designed to present easily understood, convenient, consistent, confidcntial and reliahle procedures for reporting incidents of sexual harassment and retaliation in UOI' campuses or facilities in New Mexico. These procedures. at a minimum. shall include provisions incorporating the following:
A. Within sixty (60) days of entry of this decree and for the duration of this decree,
uor shall designate at lcast onc cmployee at each facility or campus in New
Mcxico to serve as an HR Liaison for cmployccs having qucstions, concerns or complaints about scxual harassment or retaliation. This IIR Liaison shall be rcsponsible for communicating with employees about UOP's complaint and HR investigation process, answering employee preliminary inquiries, and forwarding complaints to appropriate UOI' HR department officials responsible for investigating complaints of sexual harassment. B. Within sixty (60) days of entry of this decree and for the duration of this decree, the namc(s), responsihilities, work location, and telephone number of the HR
5

Liaison(s) and appropriate HR dcpartment.offieials will routinely and continuously be posted and provided to all employees so that an employee seeking such name can enjoy anonymity and remain inconspicuous to other cmployees. C. For the duration of this decree, complaints of sexual harassmcnt or rctaliation will be accepted in writing, orally, or anonymously and all complaints will be taken seriously and investigated appropriately. D. Only those who have an immediate necd to know, including the HR Liaison, HR investigative officer(s), the alleged target of harassment or retaliation, the allcgcd harasser(s) or rctaliator(s) and any witnesses, may find out the identity of the complainant. E. During an investigation of a sexual harassmcnt complaint of an employce or other individual, HR investigative officers will have the rcsponsibility for expeditiously and appropriately investigating all complaints. F. The HR investigative officers shall endeavor to immediately interview in person all affected individuals and potential witnesscs to the alleged harassment without thc presence of management officials. G: All parties contacted in the course of an investigation will be advised that any rctaliation or reprisal against an individual who is an alleged target ofharassmcnt or retaliation, who has made a complaint, or who has provided evidence in connection with a complaint will not be tolerated and could result in disciplinary action. H. Each HR Liaison and each HR investigative officer will receive thorough and
6

'.
,.

appropriate training about sexual harassment and sexual harassmcnt

investigations. This training shall consist of at least two hours in addition to that

providcd under paragraph 13 of this decree.

I.

The HR investigative officer will recommcnd rcmcdial measures, ifappropriate,

hased upon the results of the investigation. and UOP will promptly consider and

act upon such rccommendation.

J. The HR investigativc officer will maintain a file on the original complaint(s) and

any follow-up investigation.

K. UOP managers. officials. agents or employees who engage in sexual harassment

or retaliation; who fail to cooperate with company-sponsored investigations of

sexual harassment or retaliation; or who refuse to implement remedial measures

will be advised that they may be sanctioned severely by loss of income,

sllspension or dismissal.

12. UO]> shall post within thirty (30) days of the entry of this consent decree, and

continuously for the duration of this decree, in prominent placcs frequcntcd by cmployees of

thcir New Mexico facilities, the Notice attached to this decree as Exhihit C. This Notice shall he

the same type, style and size as in Exhibit C.

13. UOP shall provide training on sex discrimination, sexual harassment. and

retaliation according to the following terms:

A. UOP shall provide at least four training sessions during the tenn of this decree.

All managers, supervisors and employees at facilities owned or operated by UOP

in New Mexico shall attend the training. Duplicative sessions may be held to

accommodate staffing necds. Focus groups or group facilitators may be used to

7

provide training required by this Decree as long as the topics described in Paragraph 13 E are covered in the discussion. UOP shall he responsible for all costs associated with this training. B. During the first year of the decree, the first training shall be conducted within
ninety (90) days of the entry of this decree. In the tirst year of the decree, an
additional training session must be held specilieally at the Santa Teresa Campus within one-hundred-twenty (120) days of the previous training session. Additional training shall be conducted for all other New Mexico facilities subject to this Decree at least once each remaining year of this Decree. C. Defendant shall select a qualified trainer or facilitator and shall submit the trainer's or facilitator's name, reSllme, training agenda and the date(s) of the proposed training to the Regional Attorney of the Albuquerque Area Office of the Equal Employment Opportunity Commission within forty-five (45) days of the entry of this decree. For the second training session in year one and during the second and third years of the decree, the abovc information shall be submitted to the Regional Attorney at least sixty (60) days prior to the seminar-training
,
session. The Commission shall have thirty days from the date of receipt of the infol1nation described above to accept or reject the proposed trainer or facilitator andlor the contents of thc scminar. In the event the Commission does not approve defendant's designated trainer or facilitator, the Commission shall designate the trainer or facilitator at a cost not to exceed $1000.00 per seminar-training session which shall be paid by defendant. D. The training shall include a minimum of three hours of instruction. All
B

personnel, designated in Paragraph A shall both register and attend the training. The registry of attendance shall be retained by defendant at least for the duration of the decree. E. The training. at a minimum shall include the subjects of: what constitutes sex discrimination, including sexual harassment and retaliation; that sex discrimination in the hiring, firing, compensation, assignment or other terms, conditions or privileges .of employment and retaliation violates Title VII; how to prevent sex discrimination and retaliation; how to provide a work environment free from sex discrimination, sexual harassment. and retaliation; and to whom and by what means cmployees may complain if they feel they have been subjected to sex discrimination, scxual harassment or retaliation in the workplace. F. Immediately following the training sessions, UOP's highest ranking managerial official in the campus or facility shall speak to the employees about: (I) potential discipline that can be taken against supervisors, managers and empl()y~es who commit acts of sex discrimination or retaliation or who allow scx discrimination or retaliation to occur in the workplacc: (2) the importance of maintaining an environment free of sex discrimination and retaliation: and (3) the employer's policies regarding sex discrimination, sexual harassment, and retaliation. This timc shall not be counted toward the three-hour minimum training required in paragraph 130. G. For the duration of this decree, at or around the timc of hire, employees hired aftcr the annual training is presented, shall receive electronic messaging with infomlation relatcd to the annual training or view a video IUpe of the training
9

andlor a professional training tape which covers the topics set forth in paragraph 13E and shall be given any wrillen material disseminated at the training. 14. The Commission. at its discretion, may designate COlllmission representatives to allcnd anlI participate in any of the training sessions described above.
REPORTING BY DHEl'iDANT AND ACCESS BY EEOC 15. UOP shall separately report in writing and in affidavit foml to the Regional Attorney of the COlllmission's Albuquerque Area Office at 505 Marquelle NW. Suite 900. Albuquerque. New Mexico 87102-2189, beginning six months from the date of the Entry of this Decree, and thereafter evcry six months for the duration of the decree the following information: A. Any changes, modifications. revocations. or revisions to its policies and
procedures which concern or affect the subject of sex discrimination, scxual harassment and retaliation. B. The name, address, position, and telephone number of any employee who during the six months preceding the report has brought allegations of sex harassment or retaliation arising from activities in UOP's Ncw Mexico campuses or facilities against defendants or its personnel. including but not limited to management officials. vendors. agents. or employees. The nature of the complaint. investigatory efforts made by UOP and the corrective action taken, ifany. shall be specified. C. The registries of persons allending each of the seminar-training sessions required in paragraphs II and 13 of this decree and a list ofcurrcnt employees on the day of the seminar-training session. D. An affidavit by UOP stating: (I) the Notice required in paragraph 12 of this
10

decree was posted and the locations where it was posted, and (2) it has complied with paragraphs II. 13 and 15 of this decree. E. Copies of any video presentations VOP has utilized to comply with the requirements of this decree. IIi. The Commission upon reasonable notice shall have the right to enter and inspect the premises of UOP's campuses or facilities in )lew Mexico to insure compliance with this decree and federal anti-discrimination laws.
COSTS AND DURATION 17. Each party shall bear its costs and attorney's fees incurred as a result of this action on behalf of Lorena Pinon through the entry of this decree. 18. The duration of this decree shall be three (3) years from its entry. This Court shall retain jurisdiction of this action lor the duration of the decree, during which the Commission may petition this Court for compliance with this decree. Should the Court determine that VOP has not complied with this decree. appropriate relief, including extension of this decree for such period as may be necessary to remedy its non-compliance, may be ordered. 19. This decree shall expire by its own terms at the end of three (3) years alier entry, without further action by the parties. 20. The parties agree to entry of this decree subject to final approval by the Court.

~ ENTERED AND ORDERED ili;, J,:l4"

2006.

1.1

APPROVED AND CONSENTED TO:
-c;:-,
SNEQV1LMER. L.L.P.
.lames K. Mackie One South Church Ave. Ste. 1500
:::":~F~I
Matthew D. Mitchell One Arizona Center 400 E. Vall Burcn Phoenix, Arizona 85004-2202 Attorneys for Defendant

James L. Lee Deputy General Counsel
Gwendolyn Young Reams Associate General Counsel
EQGAL EMPLOYMENT OPPORTCNITY COMMISSION 1801 L. Street, N.W. Washington, D.C. 20507
1V\e~~
MARY .10 O'NEiLL Regional Attorney
{~/\o1L~4~tr
SALLY c. SHANLEY
Supervisory Trial Attorney
EQUAL EMPLOYMENT OPPORTGNITY COWvlISSION
3300 N. Central Ave., Suite 690 Phoenix, Arizona 85012
-l£/l~~~ LORETTA MEDINA Senior Trial Attorney
VERONICA MOLINA Trial Attorney
EQUAL EMPLOYMENT OPPORTlJNITY COMMISSION Albuquerque Area Office 505 Marquette NW, Suite 900 Albuquerque, New Mexico 87102-2189
Attorneys for Plaintiff

12

· S,P.A. Las Cruces, New Mexico 88006 (505) 541-8000 Attorney for Lorena Pinon
-..~
13

July ,2006 Dear Employer,
Ms. Lorena Pinon was an employee of the University of Phoenix from February 28, 2000 until September 29, 2004. She last served in the position of Education Program Director and was a full time regular employee.
We regret the loss of Ms. Pinon and are supportive of her efforts to find employment within your organization. The University of Phoenix prides itself on encouraging professional excellence through training and example. and we hope you find this candidate suitahle for your needs. Sincerely, Diane L. Thompson Chief !'!uman Resources Officer
EXHIIIIT A
14

Lorena Pinon 7416 Plaza Redonda El Paso, Texas 79912 Re: University of Phoenix Dear Ms. Pinon:
On behalf of the University of Phoenix and myself personally, 1 wish to express my sincere apology that you found your experience while employed at the University of Phoenix to he objectionable.
Thank you for the contributions you made while employed at the University of Phoenix and we wish you nothing but success in your future endeavors.
Very truly yours.
Diane L. Thompson Chien! uman Resources Officer
EXHIBIT B
15

•

l\OTlO: TO ALL EMPLOYEES OF ljNIVERSITY OF \'I!OEl\\X

This Notice·is posted pursuant to a Consent Decree entered into between the University of Phoenix and the Equal Employment Opportunity Commission (EEOC).

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

The University of Phoenix prohibits all forms of sex discrimination, including sexual harassment. Prohibited sexual harassment includes. but is not limited to, the following conduct:
a. unwelcome touching of a sexual nature: b. unwelcome comments. including comments regarding intimate body pans. or
clothing and discussion of sexual jokes or sexual behaVIOr: c. unwelcome requests for dates, sexual favors and propositions d. unwdcome distribution in the workplace of cartoons. pictures of drawings
of a sexual nature; and e. unwelcome display ofpomographic material in the worl,:place.

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

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

against YOll should report this to the designated HR Liaison at your workplace who may be

contacted at

You may also report sex harassment or retaliation

directly to your supervisor, any other supervisor or manager at your wor'l,lace or to Corporate

Iluman Resources by calling _______

If you believe you have been discriminated against or retaliated against by the University of Phoenix, you always have the right to seek assistance from:

(I) Eqllal Employment Opportunity Commission (EEOC). 505 Marquette NW. Suite 900, Albuquerque, New Mexico 87102, (505) 248-5201. or
(2) The New Mexico Department of Labor, Human Rights Division. 1596 Pacheco St., Suite 103. Santa foe. New Mexico 87505. (505) 827-6H38 or 1(800) 566-9471.

You have the right to file a charge with the EEOC or the Department of Labor if you believe you are being discriminated against or retaliated again~t.

EXHIBIT C
16

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

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, and
LORETTA GRADO,
Intervenor/Third-Party Plaintiff vs.
UNIVERSITY OF PHOENIX, INC.,
Defendant.

CIVIL NO. 05-1048 JB/WPL

MEMORANDUM OPINION AND ORDER DENYING MOTION TO COMPEL
THIS MATTER is before the Court on Plaintiff/Intervenor Loretta Grado's ("Grado") Motion to Compel [Doc. 62]. Plaintiff United States Equal Employment Opportunity Commission (“EEOC”) joins in this motion. [Doc. 62, n. 1]. The Court considered the motion, response and reply and determines oral argument is not necessary. This motion may be resolved based on the parties’ submissions.1
Nature of Motion Grado and EEOC seek to take the out-of-time depositions of Dr. Darren Adamson and Debra Baldwin, two University of Phoenix vice presidents who allegedly have information relevant to the parties’claims and defenses. The additional depositions sought by Grado and EEOC exceed the

1This motion is being handled by the undersigned Chief Magistrate Judge at the specific request of the trial judge, the Honorable James O. Browning. Judge Browning normally handles all discovery disputes in his cases. However, he is presiding over a high-profile criminal case expected to last multiple weeks, and, as a result, requested that the undersigned Chief Magistrate Judge resolve this motion so as to avoid delay.

numeric limitation on depositions imposed by Fed. R. Civ. P. 30(a) as well as the limitations imposed by the Court’s case management plan [Docs. 8 and 10].
Timeliness of Motion Defendant University of Phoenix, Inc. (“University”) argues that the motion to compel is untimely, as it was filed more than twenty days from the date University objected to the proposed depositions and advised that it would not produce the two deponents. Grado and EEOC argue that University’s timeliness contention is a “novel proposition” and is “at odds with normal discovery procedure.” [Doc. 76, Reply, p. 5]. They contend that University’s argument lacks legal support. Id. Grado and EEOC assert that their motion is timely and state, “The Federal Rule of Civil Procedure 37 does not provide a deadline for the filing of a motion to compel. Fed. R. Civ. P. 37. Nor has this district adopted a rule regarding the timing of motions to compel.” Id. Grado and EEOC’s argument is erroneous. This district does indeed have a rule imposing a deadline for filing motions to compel – D.N.M.LR-Civ. 26.6. The district’s local rule provides that a party, when served with objections to particular types of discovery requests, must file a motion to compel within 20 calendar days. Failure to proceed with that time period constitutes acceptance of the objection. Local Rule 26.6 does not specifically include depositions within the specific categories of discovery to which the 20-day rule is applicable. Because of this, the Court does not base its ruling solely on the issue of untimeliness. However, the Court rejects Grado and EEOC’s contentions that University’s position is “novel,”“unsupported by law,”or “at odds with discovery procedures.” The time limitations of D.N.M.LR-Civ. 26.6 will apply fully to any motion to compel with respect to the categories of discovery listed therein.
2

Limitation on Number of Depositions Grado and EEOC seek to take additional depositions in excess of the number authorized by the Federal Rules of Civil Procedure and by the trial judge. They argue that the evidence sought to be obtained is relevant to the claims and defenses; that the ten-deposition limit should be construed as a “per party”as opposed to a “per side”limitation; that the Court imposed the deposition limitation prior to Grado becoming an intervenor, and, therefore, the Provisional Discovery Plan and Court management plan is not applicable to Grado. Grado and EEOC argue that it is improper for University to object based on the tendeposition limit, and, indeed, “Defendant’s re-invocation of the ten-deposition limit is simply an attempt to sandbag Plaintiffs.” [Doc. 76, Reply, p.3]. They state that a ten-deposition limit “interferes with the orderly completion of discovery.” Id. They argue that “Defendant should not be permitted to create its own arbitrary deposition limit . . . .” [Doc. 76, Reply, p. 4]. Finally, they countered that University has not demonstrated that it would be significantly burdened by the depositions. For the reasons hereafter stated, the Court rejects these arguments. In 1990, Congress enacted the Civil Justice Reform Act, 28 U.S.C. § 471 et seq (“CJRA”). This legislation was aimed at curbing the dual problems of expense and delay in federal civil proceedings. On the heels of adoption of the CJRA, the federal procedural rules were significantly modified to dovetail with the goals of the CJRA. Prior to adoption of the CJRA and the subsequent modification of the civil rules, discovery in federal court was exceedingly broad and virtually unlimited. Counsel were free to manage their own cases and discovery. Unfortunately, some litigators learned that discovery could be used as a club to pound an opponent into submission, or to make the cost of defense so expensive by excessive discovery that
3

an opponent would succumb to an early settlement. Discovery was limited only by counsel’s imagination and the size of their client’s pocketbook. The discovery abuses prevalent in the 70s and 80s ultimately resulted in the sweeping changes brought about by the CJRA in 1990.
With the 1993 modifications of the civil rules, the discovery process is highly regulated and supervised by the federal courts. Parties are required to provide basic information automatically under the initial disclosure requirements of Rule 26. Limitations are imposed on the number of depositions that may be taken. Fed. R. Civ. P. 30(a)(2)(A). Limitations are imposed on the length of depositions. Fed. R. Civ. P. 30(d)(2). Parties are limited on the number of interrogatories that may be served. Fed. R. Civ. P. 33(a). Re-depositions may not be taken without leave of court. Fed. R. Civ. P. 30(a)(2)(B).
All of these changes were intended to expedite the ultimate disposition of cases, reduce costs and ensure that discovery was used for a proper purpose. Thus, it is incorrect to argue that a tendeposition limit is arbitrary. To the contrary, the ten-deposition limit is imposed by the federal rules on all civil cases as a presumptive limit. While the Court may increase that limit, it may do so only on a showing of good cause.
In this case, the Court’s Initial Scheduling Order [Doc. 7, p. 1], apprised parties that a provisional discovery plan was necessary, and that once the provisional discovery plan and schedules had been adopted, “good cause must be shown and court approval obtained for any modification of the IPTR’s schedules.”
It is undisputed that EEOC and University submitted a Provisional Discovery Plan which called for ten depositions per side. The trial court adopted this Provisional Discovery Plan, and in doing so, imposed the deposition limit. The Court’s prior order makes clear that the parties could not modify this order on their own, but only for good cause shown and with Court approval.
4

Notwithstanding that explicit directive, Grado and EEOC noticed depositions far in excess of the ten-deposition limit without seeking or obtaining Court approval. It is undisputed that Grado and EEOC have taken seventeen depositions. The trial court did not approve the taking of depositions in excess of the ten permitted. It was improper for Grado and EEOC to request the depositions in excess of the numeric limitation without seeking leave of court. So, too, it was improper for University to agree to those depositions without obtaining Court concurrence. In the future, all counsel are cautioned that the Court’s scheduling order and discovery plan may not be modified by agreement of counsel without Court concurrence.
While the Court does not dispute that the evidence to be elicited in the proposed discovery would be relevant, the parties have not demonstrated why these allegedly important depositions were not taken early on in the course of discovery or within the original ten-deposition limit, or even within the additional seven depositions which the parties agreed to take. Allowing Grado and EEOC to take the additional depositions at this time would simply serve to reward parties who violated the Court’s case management plan, discovery plan and the rules of procedure.
Grado and EEOC argue that the ten-deposition limit is a per party allocation. This is incorrect. Depositions are a “per side” allocation. “The plaintiffs as a group are limited to 10 depositions total, by written and/or oral examination, as are the defendants and third-party defendants.” Steven Baicker-McKee, William M. Janssen & John B. Corr Federal Civil Rules Handbook 2006 657 (2006) (emphasis added). Thus, depositions, unlike interrogatories, are allocated “per side rather than per party.”
It was necessary for Grado and EEOC to share the total number of authorized depositions. Had the parties believed that ten depositions were insufficient, they could have filed a motion to
5

increase the allocation.2 Grado argues that it was not a party when the Court adopted the Provisional Discovery Plan.
However, when an intervenor is authorized to participate in litigation, it accepts the case as it finds it. United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424 (10th Cir. 1990). While the intervenor is free to request modification of schedules and orders, unless the court modifies its orders, the intervenor is bound by the court’s prior rulings. In this case Grado neither sought nor obtained Court permission to modify the scheduling order, to allow additional depositions, or to make any modification in the case management plan. Grado’s argument that she is simply not bound by the scheduling order which preexisted its entry into the case is rejected.
Finally, the Court rejects Grado and EEOC’s argument that University failed to carry its burden in demonstrating why the depositions should not be taken. It is not University’s burden to overcome the deposition limitations contained in the rules or the deposition limitation ordered by the trial judge. Rather, it is Grado and EEOC’s burden if they seek to modify the Court’s rulings. Neither Grado nor EEOC has properly shouldered that burden.
Accordingly, the Court rejects the request to take more than the allocated depositions. Out-of-Time Discovery
The last but related issue concerns the discovery schedule. Discovery in this case closed on June 12, 2006. Prior to the close of discovery, Grado did not seek to modify the Court’s case management plan or to extend discovery. Thus, all discovery is closed. Neither Grado nor EEOC has demonstrated why this discovery could not be completed within the original discovery schedule. If the proposed deponents had relevant information, that fact was known to Grado and EEOC from
2A written request to the trial court to clarify this very issue was submitted, but later withdrawn. 6

the outset. There is simply no reason why their depositions were not or could not have been taken within the original case management plan.
Conclusion The Court determines that the parties have already and improperly exceeded the tendeposition limit imposed by the Court and the rules of procedure, and that further depositions would be improper; that discovery is closed and that Grado and EEOC failed to show good cause why the proposed discovery could not have been taken within the original discovery schedule. IT IS THEREFORE ORDERED that Grado and EEOC’s motion to compel is DENIED.
____________________________________ Lorenzo F. Garcia Chief United States Magistrate Judge
7

 
 UNITED STATES DISTRICT COURT DISTRICT OF NEW MEXICO Clerk's Minutes
Before the Honorable James O. Browning

CASE NO. CIV 05-1048 JB/WPL

DATE: May 10, 2006

TITLE: EEOC v. University of Phoenix

COURTROOM CLERK: K’Aun Sanchez

COURT REPORTER: Danna Schutte Everett

COURT IN SESSION: 2:10 p.m.

COURT IN RECESS: 3:10 p.m.

TYPE OF PROCEEDING: Motion Hearing (see below)

COURT'S RULINGS/DISPOSITION: 1. Plaintiff EEOC’s Motion to Compel [33-1] - GRANTED IN PART AND DENIED IN PART 2. May 5, 2006 Letter from Parties re: Discovery Disputes - GRANTED IN PART AND DENIED IN PART

ORDER CONSISTENT WITH COURT'S RULING TO BE PREPARED BY: Court

ATTORNEYS PRESENT FOR PLAINTIFF(S): Loretta Medina
Jolene Youngers (for Intervenor Pinon) (appearing telephonically) Reed Colfax (for Intervenor Grado)

ATTORNEYS PRESENT FOR DEFENDANT(S):
James Mackie/Matthew D. Mitchell (appearing telephonically)

PROCEEDINGS:
Court in Session: 2:00 p.m.
Court: Calls case. Counsel enter appearances. Court: Is willing to hear argument, but has spent some time on the motion to compel and is inclined to grant the motion to produce the addresses and then if it is discovered that an individual no longer resides at that address then the University must produce that individual’s SSN and DOB, but if the University does not know only need to produce addresses. If EEOC learns that an individual does not reside at address provided by the University, then the University must provide SSN and birth date - if University wants confidentiality order that’s fine. Ms. Medina: Argues in support of motion. Asks Court to reconsider ordering SSN produced - Govt. has limited resources to expend on litigation and things such as private investigators locating folks - explains basis for request for consideration further. Ms. Youngers: No argument, but joins in the motion. Mr. Colfax: No argument, but joins in the motion. Mr. Mackie: Argues in response in opposition to motion. 2:19 p.m. Ms. Medina: Argues in reply in further support of motion.

The Honorable James O. Browning

- Page 1 -

Clerk's Minutes - Civil

2:22 p.m. Mr. Mackie: Argues in response in further opposition to motion. Ms. Medina: Nothing further. Court: Going to grant motion in part. As to over breadth of request, believes EEOC’s limitations on the campus and the time frame takes it out of this category. As far as relevancy, believes tracking down issues gets to the core of discovery. Appears that the allegations are that it was widespread harassment and possible work environment and Court believes it is reasonable that a large number, if not everyone on campus, may have had some knowledge - scope is reasonable and it is relevant. Court has some concerns about type of information being sought - should be produced if it is needed and will require the University to produce a list of addresses for all employees at Santa Theresa campus from 2002-present - if do not have address must provide SSN and DOB - if it EEOC finds that an individual no longer resides at the address provided then the EEOC should write letter to University to so state and University must then produce that individual’s SSN and DOB, but if the University does not know only need to produce addresses. Mr. Mackie: Asks if information will need to be provided to all other parties or only the Govt.? Ms. Youngers: Are jointly prosecuting this matter and does not know why could not all share that information. Mr. Colfax: Agrees. Because jointly prosecuting are sharing resources - suggests all should be provided the information. Court: Confirms will only use for purposes in this case and keep confidential? Mr. Colfax: Yes. Court: Asks if, given representations by opposing counsel, will keep confidential does that satisfy concerns? Mr. Mackie: Yes, but requests that with regard to any information disclosed be designated as attorneys’eyes only and not be forwarded to anyone outside of the attorney’s office, including the parties themselves - wants done in most limited fashion possible. Court: Does not believe addresses should be so designated, asks Plaintiff’s counsel if that designation on SSN and DOB is okay? Ms. Medina: Yes. Confirms assistants and paralegals are included to allow review. Ms. Youngers: Yes. Mr. Colfax: Yes. Court: Will designate SSN’s and DOB’s for attorney’s eyes only to include legal assistants and paralegals - no restriction on addresses. Moves to discuss May 5, 2006 letter submitted by Mr. Colfax with counsel - asks about 30 day extension of discovery (item 1 on letter)? Ms. Youngers: Yes. Ms. Colfax: Yes. Ms. Medina: Yes. Mr. Mackie: Agreed to extension, but was only thinking of with regard to depositions - does not believe should be extended as to written discovery. Mr. Colfax: Responds - likely will learn of additional documents and information during depositions. May need to conduct additional written discovery - does not believe would be voluminous. Mr. Youngers: Joins in Mr. Colfax’s argument.

The Honorable James O. Browning

- Page 2 -

Clerk's Minutes - Civil

Ms. Medina: Joins in Mr. Colfax’s argument - may want to serve additional RFA’s. Mr. Mackie: Reality is that if the discovery deadline is any given day that any written discovery would need to be served 30 days prior to that deadline. Any depositions taken in the last 30 days would have the effect of witnesses identifying documents or something during that last 30 days when cannot take written discovery anyway. As to RFA’s, believes that deadline would be gone if Court declines this request. Court: Does not sound like any party has anything in specific in mind, so will grant 30 day extension of discovery but will limit to depositions and third-party discovery. As to request for clarification and/or modification of length of depositions (item 2 on letter), PDP calls for 7 hour limit and an order was entered adopting PDP - notes that was before there were intervenors. Asks for parties’positions on this. Mr. Colfax: 9 depositions have been taken to date and 4 of those have not been completed in one day. Suggests that first period of deposition conducted by one of the prosecutions counsel be limited to 4 hours and then 2 hours for each other prosecutor. Remaining depositions may be much shorter. Ms. Youngers: The 2 intervenors had 2 different jobs and 2 different harassers - Pinon employed at a much broader time period and so do not need discovery as to some of the witnesses and will need more with others suggests a time limit of 8 hours for Plaintiff and Intervenors for counsel to determine how to split up and a time limit for Defendant - does not want a time limit on Tracy Bonjean. Ms. Medina: Generally agree problem needs to be resolved - agrees with approaches of Youngers and Colfax.. Mr. Mackie: Problem is that if Plaintiff’s take 8 hours to hold a deposition then it is virtually impossible to finish that deposition in one day. Thinks any given witness should be deposed by all parties in one day - all remaining witnesses are secondary witnesses. Youngers and Colfax have said are jointly prosecuting case, so should be able to decide together how to get done in 6 hours. Would like to be reducing presumptive limitation. Mr. Colfax: Believes Defendant’s approach is impractical. Mr. Mackie: Responds. Ms. Youngers: Responds further. Ms. Medina: Responds further - tend to agree w/Ms. Youngers. Court: Will apply 7 hour presumption to just the Plaintiff and the Intervenors - lead attorney will get 4 hours and second chairs will get 1 and ½ hours each. Parties shall provide good faith estimates when go into depositions to determine length- will give Defendant 4 hours - may just have to schedule 2 day depositions. Moves to the issue on the Bonjean deposition (item 3 on letter). Mr. Colfax: Bonjean is the supervising official for the HRD for the entirety of the University - the day before deposition was to begin Mr. Mackie received an e-mail stating that she had an adoption proceeding the following day and would need to cut out of deposition for an hour or two - was started at 9:30 a.m. and then she left for the adoption proceeding for about 1 hour and 45 minutes - she came back and restarted and were under 4 ½ hours when EEOC completed its examination and it was 4:00 p.m. and at that time the Defendant asserted the 7 hour and 1 day limit on the deposition and would not voluntarily produce her again for a second day. Bonjean is a key player in both intervenors allegations - explains how. Will need 2 ½ to 3 hours to get through Bonjean’s deposition as to Grado’s claims. Ms. Youngers: One of the difficulties with Bonjean’s deposition is that each party came with at least 4-6 inch

The Honorable James O. Browning

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Clerk's Minutes - Civil

stack of documents to go through with her - so some of the delay is caused be her needing to review those documents. She made decisions as to investigation. Further, in defense counsel’s backyard so they will not be inconvenienced by travel - need to go to Phoenix for other depositions anyway. Ms. Medina: Tried to be efficient in her questioning - agree she is a critical witness - probably could have gone on for 6-7 hours. Mr. Mitchell: Plaintiff/Intervenors are attempting to overplay Bonjean’s role - she is second-level supervisor for the investigator that conducted investigations - they are trying to piece-meal the deposition and refuse to complete in one day. Think wanted to go and take more depositions and then come back to her - were not prepared to complete it at that time. Told would not hold to 7 hour requirement, but would hold to the 1 day requirement. Mr. Colfax: Was surprised at defense counsel’s reaction to continuing deposition given had happened to 3-4 witnesses prior - this was a critical witness and opportunity where he thought he might be able to limit amount of information that could be obtained from her. Unfair to have expected the lawyers to go into the evening. Ms. Youngers: Did not make decision solely - was made by all counsel together. Court reporter made clear had plans and could not go late, as well as that the longer it went the more breaks she would need. Bonjean did have direct communication with parties and was copied on great deal of e-mail and her fingerprints and name are on documents throughout. Is important witness and request additional time for her deposition. Also, will not be able to adequately respond to Defendant’s dispositive motions if do not have access to the witness. Court: Going to allow some further deposition - but believe 3 hours is adequate to do so. Have another hearing must get to - will have CRD call and came reconvene by phone to finish up - may be next hearing will not take rest of afternoon and can get back together. Court in recess: 3:10 p.m. CRD contacted Mr. Colfax and learned parties did not need anymore time on these issues.

The Honorable James O. Browning

- Page 4 -

Clerk's Minutes - Civil

 
 .'

FILE I)
~ IN~T~H~ E ~ UN~I~ TE~D~S~T~ AT~E~S~D~ IS~ TR~I~ CTLCBOUUQ~U FFEERDQSU TAETE,SNDE ISTWRM ICTE6 1U0R'f

FOR THE DISTRICT OF NEW MEXICO

AUG 20 tOOT

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,

CIV-05-1048 JBIWPL
MATTHEW J. DYKMAN AMENDED CONSENT DE~K

LORENA PINON and LORETTA GRADO,

PERTAINING TO CHARGING PARTY LORENA PINON AND LORETTA GRADO

Plaintiffs in Intervention,

v.
UNIVERSITY OF PHOENIX, INC., Defendant.

This matter came before the Court upon the agreement of the United States Equal Employment Opportunity Commission (the Commission or EEOC), Intervener Lorena Pinon, Intervener Loretta Grado and defendant to enter into an Amended Consent Decree for the purpose of resolving the claims of sex discrimination and retaliation brought by the EEOC against defendant on behalf of Charging Parties Lorena Pinon and Loretta Grado. This Amended Decree is intended to finally resolve all claims brought on behalf of Charging Parties Lorena Pinon and Loretta Grado.
The Commission filed this action against the University of Phoenix, Inc., (hereinafter "UOP") to enforce Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seg. ("Title VII) and the Civil Rights Act of 1991, 42 U.S.C. § 1981a. In the Complaint and Amended Complaint, the Commission alleged that Charging Parties Lorena Pinon and Loretta Grado were subjected to harassment because of their sex, including offensive comments and conduct of a high ranking management official, which created a hostile work environment for them because of their sex, female. In addition, the Commission alleged that Ms, Pinon and Ms. Grado were subjected to retaliation with respect to their terms, conditions and privileges of employment because they opposed perceived unlawful employment practices.
This Amended Decree does not constitute an admission of liability by the defendant, nor adjudication on the merits of the allegations of the complaint.
The parties do not object to the jurisdiction of the Court over this action and waive their rights to a hearing and the entry of findings of fact and conclusions of law as to claims made on behalf of Lorena Pinon and Loretta Grado.
It is hereby ORDERED, ADJUDGED AND DECREED: I, This Amended Decree resolves all claims against UOP on behalf of Lorena Pinon and Loretta Grado, including claims for back pay, compensatory and punitive damages, interest, injunctive relief, attorney's fees and costs arising out of the issues relating to Ms, Pinon's and Ms. Grado's claims in this lawsuit.
21))0987,)

,
•
INJUNCTION 2. UOP, their owners, stockholders, managers, agents, officers, employees, successors and assigns and all persons in active concert or participation with them, are permanently enjoined for the duration ofthe Amended Decree from discriminating against any employee because of his or her sex, including subjecting employees or individuals to sexual harassment. This injunction will remain in effect for the duration of the Amended Decree at any facility operated by UOP in the state of New Mexico. 3. UOP, their owners, stockholders, managers, agents, officers, employees, successors and assigns and all persons in active concert or participation with them, are permanently enjoined for the duration of the Amended Decree from retaliating against any employee or individual because the employee or individual has (a) opposed practices made
vn unlawful by Title or a state equal employment opportunity statute, (b) filed a charge of
discrimination, including sexual harassment, (c) assisted or participated in the filing of a charge of discrimination, including sexual harassment, (d) assisted or participated in an investigation or proceeding under Title VII or a state equal employment opportunity statute, or (e) files an internal complaint of discrimination. This injunction will remain in effect for the duration of the Amended Decree at any facility operated by UOP in the state of New Mexico.
RELIEF TO CHARGING PARTIES 4.A. In accordance with the terms of the original Decree, UOP has paid the total amount of $130,000 ("the settlement amount") to Lorena Pinon and her attorney. Of the settlement amount, $11,852.00 was paid as back pay. Lawful employee payroll deductions for social security and withholding taxes were deducted from these amounts, and the deductions were itemized. The employer's share of payments for FUTA and FICA were paid by Defendant and not deducted from this amount. Of the settlement amount, $59,637.74 was paid to Lorena Pinon as compensatory damages. Of the settlement amount, $58,780.26 was paid to Lorena Pinon's attorney as attorney's fees, New Mexico gross receipts tax, and costs. 4.B. In accordance with this Amended Decree, UOP shall pay the total amount of $225,000 ("the settlement amount") to Loretta Grado and her attorney. Of the settlement amount, $.1 00,000 is payable to Loretta Grado as compensatory damages. As such, this payment will be reported on a Form 1099. Ofthe settlement amount, $125,000 is payable to Loretta Grado's attorney as attorney's fees, New Mexico gross receipts tax, and costs. This payment
A'.A. will also be reported on a Form 1099. UOP paid the settlement amounts described in paragraph 4.A of this Amended Decree within ten (10) business days of entry of the original Decree via business checks to Ms. Pinon and her attorney. Within ten (10) business days of issuance of the checks, UOP submitted a copy of the checks and related correspondence to the Regional Attorney, Equal Employment Opportunity Commission, Albuquerque Area Office, 505 Marquette NW, Suite 900, Albuquerque, New Mexico 87102-2189.
5.B. UOP shall pay the settlement amounts described in paragraph 4.8 of this Amended Decree within ten (10) business days of entry of this Amended Decree via business checks to Ms. Grado and her attorney. Within ten (10) business days of issuance of the checks, UOP shall submit a copy of the checks and related correspondence to the Regional Attorney, Equal Employment Opportunity Commission, Albuquerque Area Office, 505 Marquette NW, Suite 900, Albuquerque, New Mexico 87102-2189.
6.A. In response to any employment inquiries or reference checks concerning Lorena Pinon, UOP shall provide only her dates of employment, last position held, and job status of fulltime employee and faculty member. This provision shall remain in force for so long as Ms.
2030987.3

Pinon uses UOP as a reference and is not limited to the three-year duration of this Amended Decree.
6.B. In response to any employment inquiries or reference checks concerning Loretta Grado, UOP shall provide only her dates of employment, last position held, and job status of full-time employee. This provision shall remain in force for so long as Ms. Grado uses UOP as a reference and is not limited to the three-year duration of this Amended Decree.
7.A. Within five (5) business days of entry of the original Decree, UOP provided Lorena Pinon a letter of reference in the form of Exhibit A.
7.B. Within five (5) business days of entry of this Amended Decree, UOP shall provide Loretta Grado a letter of reference in the form of Exhibit D.
8. UOP shall not take any action against Lorena Pinon, Loretta Grado, or any witness in this proceeding or any other individual in retaliation for filing a charge of employment discrimination or for participating, assisting or testifYing in this action.
9.A. Within five (5) business days of entry of the original Decree, UOP provided Lorena Pinon with a letter of apology in the form of Exhibit B.
9.B. Within five (5) business days of entry of this Amended Decree, UOP shall provide Loretta Grado with a letter of apology in the form of Exhibit E.
DEFENDANT'S CORRECTIVE POLICIES AND PRACTICES
10. UOP shall institute and carry out policies and practices that will provide a work environment free from sex discrimination and retaliation, including policies, procedures and practices to prevent sexual harassment oftheir employees and other individuals, and that allow employees and other individuals to raise concerns or complaints about matters made unlawful by Title VII, whether alleged, perceived or actual without retaliation. To assist UOP in its efforts to provide a work environment free of sex discrimination, sexual harassment and retaliation, UOP shall take the actions provided for in Paragraphs 11 through 13 and 15.
11. Within sixty (60) days of the entry ofthe original Decree, UOP reviewed its existing policies on sex discrimination, including sexual harassment and retaliation, and made changes pursuant to the original Decree. UOP shall ensure their written policy includes a statement that employees have the right to complain directly to EEOC or any state equal opportunity agency. UOP shall ensure that its policies and procedures relating to sexual harassment provide for and identity a person on each campus or in each facility in New Mexico who is a person that will have information about UOP's complaint process, who may be designated to receive complaints from their respective campus or facility, and who is responsible for reporting such complaints in a timely manner to the UOP Human Resources Department. After reviewing and making any necessary revisions to its policies, UOP shall distribute the revised sexual harassment and non-retaliation policies and complaint procedures to each of its current full and part-time employees, and to each new employee hired for the duration of this Amended Decree in New Mexico. The policy and procedure statements that are provided to UOP employees should be designed to present easily understood, convenient, consistent, confidential and reliable procedures for reporting incidents of sexual harassment and retaliation in UOP campuses or facilities in New Mexico. These procedures, at a minimum, shall include provisions incorporating the following:
A. Within sixty (60) days of entry ofthe original Decree and for the duration of this Amended Decree, UOP shall designate at least one employee at each facility or campus in New Mexico to serve as an HR Liaison for employees having questions, concerns or complaints about sexual harassment or retaliation. This HR Liaison shall be responsible for communicating with employees about UOP's
lO30987.3

complaint and HR investigation process, answering employee preliminary

inquiries, and forwarding complaints to appropriate UOP HR department officials

responsible for investigating complaints of sexual harassment. B. Within sixty (60) days of entry of the original Decree and for the duration of this

Amended Decree, the name(s), responsibilities, work location, and telephone

number of the HR Liaison(s) and appropriate HR department officials will

routinely and continuously be posted and provided to all employees so that an

employee seeking such name can enjoy anonymity and remain inconspicuous to

other employees.

C. For the duration of this Amended Decree, complaints of sexual harassment or

retaliation will be accepted in writing, orally, or anonymously and all complaints

will be taken seriously and investigated appropriately.

D. Only those who have an immediate need to know, including the HR Liaison, HR

investigative officer(s), the alleged target of harassment or retaliation, the alleged

harasser(s) or retaliator(s) and any witnesses, may find out the identity of the

complainant.

E. During an investigation of a sexual harassment complaint of an employee or other

individual, HR investigative officers will have the responsibility for expeditiously

and appropriately investigating all complaints.

F. The HR investigative officers shall endeavor to immediately interview in person

all affected individuals and potential witnesses to the alleged harassment without

the presence of management officials.

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

retaliation or reprisal against an individual who is an alleged target of harassment

or retaliation, who has made a complaint, or who has provided evidence in

connection with a complaint will not be tolerated and could result in disciplinary

action.

H. Each HR Liaison and each HR investigative officer will receive thorough and

appropriate training about sexual harassment and sexual harassment

investigations. This training shall consist of at least two hours in addition to that

provided under paragraph 13 of this Amended Decree.

r.

The HR investigative officer will recommend remedial measures, if appropriate,

based upon the results of the investigation, and UOP will promptly consider and

act upon such recommendation.

J. The HR investigative officer will maintain a file on the original complaint(s) and

any follow-up investigation.

K. UOP managers, officials, agents or employees who engage in sexual harassment

or retaliation; who fail to cooperate with company-sponsored investigations of

sexual harassment or retaliation; or who refuse to implement remedial measures

will be advised that they may be sanctioned severely by loss of income,

suspension or dismissal.

L. UOP agrees not to reemploy Manny Ortiz.

12. UOP posted within thirty (30) days of the entry of the original Decree, and will

for the duration of this Amended Decree continue to post, in prominent places frequented by

employees of their New Mexico facilities, the Notice attached to this Amended Decree as

Exhibit C. This Notice shall be the same type, style and size as in Exhibit C.

13. UOP shall provide training on sex discrimination, sexual harassment, and

retaliation according to the following terms: A. UOP shall provide at least four training sessions during the term of this Amended

Decree to be attended by all managers, supervisors and employees at facilities

owned or operated by UOP in New Mexico. Two additional supervisory training

sessions will be conducted pursuant to paragraph B. below. Duplicative sessions

may be held to accommodate staffmg needs. Focus groups or group facilitators

.2000987.3

may be used to provide training required by this Amended Decree as long as the topics described in Paragraph 13E are covered in the discussion. UOP shall be responsible for all costs associated with this training. B. During the fIrst year of the original Decree, the fIrst training was conducted within ninety (90) days of the entry ofthe original Decree. In the fIrst year ofthe original Decree, an additional training session was held specifIcally at the Santa Teresa Campus within one-hundred-twenty (120) days of the previous training session. Additional training shall be conducted for all other New Mexico facilities subject to this Amended Decree at least once each remaining year of this Amended Decree. During these fInal two aunual training sessions, supervisors and managers will be provided separate training from non-supervisory employees that will emphasize their responsibilities on behalf of UOP for complying with all state and federal laws and UOP policies prohibiting sex discrimination, sexual harassment and unlawful retaliation. This separate training session provided to supervisors and managers shall be at least one hour in duration. C. Defendant selected a qualifIed trainer or facilitator and submitted the trainer's or facilitator's name, resume, training agenda and the date(s) of the proposed training to the Regional Attorney of the Albuquerque Area OffIce of the Equal Employment Opportunity Commission within forty-fIve (45) days of the entry of the original Decree. For the second training session in year one and during the second and third years of the Amended Decree, the above information shall be submitted to the Regional Attorney at least sixty (60) days prior to the seminartraining session. The Commission shall have thirty days from the date of receipt of the information described above to accept or reject the proposed trainer or facilitator and/or the contents of the seminar. In the event the Commission does not approve defendant's designated trainer or facilitator, the Commission shall designate the trainer or facilitator at a cost not to exceed $1000.00 per seminartraining session which shall be paid by defendant. D. The training shall include a minimum of three hours of instruction. All personnel, designated in Paragraph A shall both register and attend the training. The registry of attendance shall be retained by defendant at least for the duration of the Amended Decree. E. The training, at a minimum shall include the subjects of: what constitutes sex discrimination, including sexual harassment and retaliation; that sex discrimination in the hiring, fIring, compensation, assignment or other terms, conditions or privileges of employment and retaliation violates Title VII; how to prevent sex discrimination and retaliation; how to provide a work environment free from sex discrimination, sexual harassment, and retaliation; and to whom and by what means employees may complain if they feel they have been subjected to sex discrimination, sexual harassment or retaliation in the workplace. F. Immediately following the training sessions, UOP's highest ranking managerial offIcial in the campus or facility shall speak to the employees about: (1) potential discipline that can be taken against supervisors, managers and employees who commit acts of sex discrimination or retaliation or who allow sex discrimination or retaliation to occur in the workplace; (2) the importance of maintaining an environment free of sex discrimination and retaliation; and (3) the employer's policies regarding sex discrimination, sexual harassment, and retaliation. This time shall not be counted toward the three-hour minimum training required in paragraph 13D. G. For the duration of this Amended Decree, at or around the time of hire, employees hired after the annual training is presented, shall receive electronic messaging with information related to the annual training or view a video tape of the training and/or a professional training tape which covers the topics set forth in paragraph 13E and shall be given any written material disseminated at the training.
2030981.3

14. The Commission, at its discretion, may designate Commission representatives to

attend and participate in any of the training sessions described above. REPORTING BY DEFENDANT AND ACCESS BY EEOC

15. UOP shall separately report in writing and in affidavit form to the Regional

Attorney of the Commission's Albuquerque Area Office at 505 Marquette NW, Suite 900,

Albuquerque, New Mexico 87102-2189, beginning six months from the date of the Entry of the

original Decree, and thereafter every six months for the duration of the Amended Decree the

following information: A. Any changes, modifications, revocations, or revisions to its policies and

procedures which concern or affect the subject of sex discrimination, sexual harassment and retaliation. B. The name, address, position, and telephone number of any employee who during the six months preceding the report has brought allegations of sex harassment or retaliation arising from activities in UOP's New Mexico campuses or facilities against defendants or its personnel, including but not limited to management officials, vendors, agents, or employees. The nature of the complaint, investigatory efforts made by UOP and the corrective action taken, if any, shaH be specified. C. The registries of persons attending each of the seminar-training sessions required in paragraphs II and 13 of this Amended Decree and a list of current employees on the day of the seminar-training session. D. An affidavit by UOP stating: (I) the Notice required in paragraph 12 of this

Amended Decree was posted and the locations where it was posted, and (2) it has complied with paragraphs II, 13 and 15 of this Amended Decree. E. Copies of any video presentations UOP has utilized to comply with the requirements of this Amended Decree.

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

the premises ofUOP's campuses or facilities in New Mexico to insure compliance with this

Amended Decree and federal anti-discrimination laws. COSTS AND DURATION

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

action on behalf of Lorena Pinon and Loretta Grado through the entry of this Amended Decree.

18. The duration of this Amended Decree shall be three (3) years from its original

entry on July 12, 2006. This Court shall retain jurisdiction ofthis action for the duration of the

Amended Decree, during which the Commission may petition this Court for compliance with

this Amended Decree. Should the Court determine that UOP has not complied with this

Amended Decree, appropriate relief, including extension of this Amended Decree for such

period as may be necessary to remedy its non-compliance, may be ordered.

19. This Amended Decree shaH expire by its own terms at the end of three (3) years

after entry of the original Decree on J , 2006, without further action by the parties.

20. The parties agree to e try 0 this Amended Decree subject to final approval by the

Court.

'C'+i.

ENTERED AND ORDE THIS OJ day 0

2007.

APPROVED AND CONSENTED 0:
1030981.3

Ronald Cooper General Counsel James L. Lee Deputy General Counsel Gwendolyn Young Reams Associate General Counsel
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L. Street, N.W. Washington, D.C. 20507
MARY JO O'NEILL
Regional Attorney
SALLY C. SHANLEY Supervisory Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 3300 N. Central Ave., Suite 690 Phoenix, Arizona 85012

SNELL & WILMER, L.L.P. William R. Hayden One Arizona Center 400 E. Van Buren Phoenix, Arizona 85004-2202
Attorneys for Defendant

LORETTA MEDINA Senior Trial Attorney
VERONICA MOLINA Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Albuquerque Area Office 505 Marquette NW, Suite 900 Albuquerque, New Mexico 87102-2189
Attorneys for Plaintiff

2030%1.)

RELMAN & DANE, PLLC Reed Colfax 1225 19th Street, NW, Suite 600 Washington, D.C. 20036 Attorney for Loretta Grado
2030987.3

July , 2006
Dear Employer, Ms. Lorena Pinon was an employee of the University of Phoenix from February 28, 2000
until September 29,2004. She last served in the position of Education Program Director and was a full time regular employee.
We regret the loss of Ms. Pinon and are supportive of her efforts to find employment within your organization. The University of Phoenix prides itself on encouraging professional excellence through training and example, and we hope you find this candidate suitable for your needs.
Sincerely,
Diane L. Thompson Chief Human Resources Officer
Exhibit A

Lorena Pinon 7416 Plaza Redonda EI Paso, Texas 79912
Re: University of Phoenix Dear Ms. Pinon:
On behalf of the University of Phoenix and myself personally, I wish to express my sincere apology that you found your experience while employed at the University of Phoenix to be objectionable.
Thank you for the contributions you made while employed at the University of Phoenix and we wish you nothing but success in your future endeavors.
Very truly yours,
Diane L. Thompson Chief Human Resources Officer
Exhibit B

NOTICE TO ALL EMPLOYEES OF UNIVERSITY OF PHOENIX

This Notice is posted pursuant to a Consent Decree entered into between the University of Phoenix and the Equal Employment Opportunity Commission (EEOC).

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

The University of Phoenix prohibits all forms of sex discrimination, including sexual harassment. Prohibited sexual harassment includes, but is not limited to, the following conduct:
a. unwelcome touching of a sexual nature; b. unwelcome comments, including comments regarding intimate body parts, or
clothing and discussion of sexual jokes or sexual behavior; c. unwelcome requests for dates, sexual favors and propositions d. unwelcome distribution in the workplace of cartoons, pictures of drawings
ofa sexual nature; and e. unwelcome display of pornographic material in the workplace.

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

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

against you should report this to the designated HR Liaison at your workplace who may be

contacted at

. You may also report sex harassment or retaliation

directly to your supervisor, any other supervisor or manager at your workplace or to Corporate

Human Resources by calling _ _ _ _ _ _ _ _ _ _ _~_

If you believe you have been discriminated against or retaliated against by the University of Phoenix, you always have the right to seek assistance from:
(1) Equal Employment Opportunity Commission (EEOC), 505 Marquette NW, Suite 900, Albuquerque, New Mexico 87102, (505) 248-5201. . or
(2) The New Mexico Department of Labor, Human Rights Division, 1596 Pacheco St., Suite 103, Santa Fe, New Mexico 87505, (505) 827-6838 or 1 (800) 566-9471.
You have the right to file a charge with the EEOC or the Department of Labor if you believe you are being discriminated against or retaliated against.

EXIDBITC

,
!
August _ , 2007 Dear Employer:
Ms. Loretta Grado was an employee of the University of Phoenix from [insert date]. She last served in the position of [insert position(s)] and was a full time regular employee.
We regret the loss of Ms. Grado and are supportive of her efforts to find employment within your organization. The University of Phoenix prides itself on encouraging professional excellence through training and example, and we hope you find this candidate suitable for your needs. Sincerely, Diane 1. Thompson Chief Human Resources Officer
EXHIBITD

, .
!
Loretta Grado
[insert address1
Re: University of Phoenix Dear Ms. Grado:
On behalf of the University of Phoenix .and myself personally, I wish to express my sincere apology that you found your experience while employed at the University of Phoenix to be objectionable.
Thank you for the contributions you made while employed at the University of Phoenix and we wish you nothing but success in your future endeavors.
Very truly yours, Diane 1. Thompson Chief Human Resources Officer
EXHffiITE

 
 505 F.Supp.2d 1045 (2007)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, and Lorena Pinon and Loretta Grado, Intervenors, v. UNIVERSITY OF PHOENIX, INC., Defendant.
No. CIV-05-1048 JB/WPL.
United States District Court, D. New Mexico.
April 18, 2007.
104678 *1046 *1047 *1048 C Emanuel Smith, Phoenix, AZ, Gwendolyn Young Reams, James L. Lee, EEOC Legal Counsel Office, Washington, DC, Mary Jo O'Neill, EEOC Phoenix District Office, Phoenix, AZ, Veronica A. Molina, Loretta F. Medina, Equal Employment Opportunity Commission Legal Unit, Albuquerque, NM, for Plaintiff.
James D. Kilroy, Kristen Mix, Snell & Wilmer LLP, Denver, CO, Matthew Drew Mitchell, Matthew Mitchell, PC, Chandler, AZ, Stanley K. Kotovsky, Jr., Tinnin Law Firm, A Professional Corporation, Albuquerque, NM, William R. Hayden, Snell & Wilmer, Phoenix, AZ, for Defendant.
Glenn Schlactus, Myrna Perez, Relman & Associates, PLLC, Washington, DC, Reed Neill Colfax, Santa Fe, NM, for Intervenors.
MEMORANDUM OPINION AND ORDER
JAMES O. BROWNING, District Judge.
THIS MATTER comes before the Court on: (i) the Defendant's Motion for Summary Judgment, filed August 4, 2006 (Doc. 64)("Summary Judgment Motion"); and (ii) Plaintiff Loretta Grado's Motion for Partial Summary Judgment, filed August 4, 2006 (Doc. 66)("Partial Summary Judgment Motion"). The Court held a hearing on the motions on October 31, 2006. The primary issues are: (i) whether Plaintiffs Loretta Grado[1] and the Equal Employment Opportunity Commission ("EEOC") have presented sufficient evidence that there are genuine issues of material fact concerning the constituent elements of their claims against Defendant University of Phoenix, Inc. ("University") for sexual harassment, retaliation, intentional infliction of emotional distress, and negligent supervision; (ii) whether the Plaintiffs can seek punitive damages at trial; and (iii) whether the University or the Plaintiffs are entitled to summary judgment on the Faragher/Ellerth defense. Because the Court finds that disputed issues of material fact preclude the granting of judgment as a matter of law on the claims for sexual 1049 harassment, retaliation, and negligent supervision, *1049 the Court will deny the University's request for summary judgment on those claims. Because the Court, accepting all of the relevant facts in favor of Grado, concludes that Grado cannot prevail on the law on her intentional infliction of emotional distress claim, the Court will grant the University's request for summary judgment on that claim. Because the Court further finds that material factual disputes exist regarding the applicability of punitive damages to this case, the Court will deny the University's request for summary judgment on the issue of punitive damages. Finally, because the Court concludes that material factual disputes prevent the granting of judgment as a matter of law on the issue of the Faragher/Ellerth defense either to the University or the Plaintiffs, the Court will deny both the University's and the Plaintiffs' requests for summary judgment on that issue.
FACTUAL BACKGROUND
The University employed Grado as a Program Specialist at the Santa Teresa Campus from July 1, 2003 through May 28, 2004. See Plaintiff Loretta Grado's Statement of Undisputed Facts at 1, filed August 4, 2006 (Doc. 67) ("Grado's Fact Statement"); id., Exhibit 14, Deposition of Loretta Grado at 20:18-21:2 (taken March 8, 2006)

("Grado Deposition"); Defendant's Response to Plaintiff Loretta Grado's Separate Statement of Facts at 1, filed August 28, 2006 (Doc. 81)("Defendant's Fact Response"). As a Program Specialist, Grado entered new student information into databases, submitted transcripts to other institutions, counseled students regarding transcripts and credits, and administered College Level Examination Program testing. See Grado Deposition at 34:9-25; Defendant's Fact Response at 1. Grado's immediate supervisor at Santa Teresa was Brian Russo; Russo's immediate supervisor was Pamela Snow-Armendariz. See Grade Deposition at 35:5-18; Defendant's Fact Response, Exhibit A, Deposition of Pamela Snow-Armendariz at 69:17-24. (taken April 21, 2006)("SnowArmendariz Deposition"). Grado had occasion to report to both Russo and Snow-Armendariz. See Grado Deposition at 35:5-18. Manuel ("Manny") Ortiz was the Campus Director during Grado's employment at Santa Teresa. See Grado's Fact Statement, Exhibit 16, Deposition of Brian Russo, Vol. I, at 30:22-31:4 (taken March 7, 2006)("Russo Deposition"); Defendant's Fact Response at 2.
Before Grado complained about Ortiz' behavior, at least one other employee had complained to the University about Ortiz' behavior. See Grado's Fact Statement, Exhibit 2, Letter from Angela Rowe Luttrell to Laura Palmer Noone (dated July 28, 2003). Angela Luttrell, a Finance Counselor at the Santa Teresa Campus, wrote a letter to University President Laura Palmer Noone regarding what she perceived as Ortiz' threatening behavior towards women. See id. Luttrell's letter stated:
Mr. Ortiz has a very low opinion of women and treats them as inferiors. He is belligerent, hostile, and aggressive towards them. Not only did Mr. Ortiz threaten me, he slandered me in front of a large group of my peers. . . . I am not the first woman he had treated this way, I am aware of others.
Id. at 2. The University investigated Luttrell's complaint, conducting interviews of Luttrell and other employees. See Defendant's Fact Response, Exhibit C, Deposition of Christine J. Springfield, Vol. II, at 199:2-203:19 (taken July 13, 2006)("Springfield Deposition"). During the investigation, the University received an anonymous e-mail that stated: "When you guys are done covering Manny's ass, maybe you can look into the employees he sexually 1050 harasses and the student he is sleeping *1050 with. . . ." Springfield Deposition, Attachment 50, E-mail from Anonymous to Christine Springfield (dated August 4, 2003). None of the employees interviewed in the course of the investigation reported concerns about Ortiz engaging in inappropriate sexually related behavior. See Springfield Deposition, Vol. II, at 199:2-203:19; id., Attachment 122, Investigation Summary (dated August 8, 2003). The investigation found that some employees believed that Ortiz inappropriately disciplined and evaluated employees. See Springfield Deposition, Vol. II, at 199:2-203:19; id., Attachment 122, Investigation Summary (dated August 8, 2003). Based upon the investigation's findings, the University issued Ortiz a Final Written Warning, requiring Ortiz to act professionally at all times and to conduct discussions concerning employee performance in a confidential manner. See Springfield Deposition, Attachment 139, Final Warning from Randy Lichtenfeld and Debra Baldwin to Manual Ortiz (dated August 20, 2003).
The University has, and at the time of Grado's employment had, a Discrimination and Harassment Policy. See Grado's Fact Statement, Exhibit 5, Discrimination and Harassment Policy; Defendant's Fact Response at 4. The University's Discrimination and Harassment Policy requires employees who believe they are victims of sexual harassment to report the harassment to their supervisors, the Human Resources Department, or the Employee Services Department. See Grado's Fact Statement, Exhibit 5, Discrimination and Harassment Policy; Defendant's Fact Response at 4. The University's Discrimination and Harassment Policy requires supervisors to report incidents of sexual harassment of which they are aware to the Human Resources Department. See Grado's Fact Statement, Exhibit 15, Deposition of April Harper at 32:4-24 (taken April 13, 2006)("Harper Deposition").
Grado reported Ortiz' harassment of her to Russo and Snow-Armendariz,. See Grado Deposition at. 61:1-25; id. at 66:13-68:25; id. at 131:8-23; id. at 186:18-187:25. Grado first informed Russo in July or August 2003 of her concern about the constant attention Ortiz gave her. See id. at 66:13-18. Grado and Chris Camp told Russo about a number of incidents involving Ortiz' inappropriate behavior towards Grado. See id. at 60:1-61:18; id. 67:9-16; id. at 68:11-69:3; id. at 84:14-85:7; Grado's Fact Statement, Exhibit 13, Deposition of Chris Camp, Vol. I, at 232:6-9 ("Camp Deposition").
Russo acknowledged that Grado may have complained to him about Ortiz' conduct as many as twenty times. See Russo Deposition, Vol. II, at 79:23-80:2. Russo and Snow-Armendariz testified that they did not report Ortiz'

alleged harassment of Grado to the Human Resources Department, because they feared retaliation from. Ortiz. See Russo Deposition, Vol. I, at 209:14-24; Snow-Armendariz Deposition at 127:14-22; id. at 171:3-12. Russo also testified, however, that he remembered Grado complaining to him only once about Ortiz' behavior before the University began its investigation of sexual harassment allegations against Ortiz, and that her, concern regarded Ortiz frequently calling her work phone and coming by her cubicle. See Russo Deposition, Vol. II, at 98:18-99:25; id. at 102:3-22. Snow-Armendariz testified that, while Grado informed her that Ortiz made her feel uncomfortable, she was not sure if the conduct Grado described constituted a violation of the University's sexual harassment policy. See Snow-Armendariz Deposition at 127:14-129:6; id. 171:13-25.
On February 10, 2004, the University received an anonymous complaint raising several issues about Ortiz' 1051 management of the Santa Teresa Campus. The complaint *1051 triggered an investigation that ultimately led to
Ortiz' termination. See Grado's Fact Statement, Exhibit 6, Letter from Anonymous to Bob Barker, Randy Lichtenfeld, and Christine Springfield (received February 10, 2004)("February 10, 2004 Letter"); Defendant's Fact Response at 6. The letter stated:
Lately Manny has been behaving very rude and mean to me and the others (but mostly us women) here at work. . . . Some of us have seen him bullying different women in different departments, using sex and the fact that he is stronger than them. We are scared. I know I am not the only one to see this happen.
February 10, 2004 Letter.
The University immediately began an investigation into the anonymous complaint. See Harper Deposition at 83:1-84:9. On February 11, 2004, the University conducted random employee interviews at Santa Teresa. See id. at 117:4-24; Defendant's Separate Statement of Facts in Support of its Motion for Summary Judgment, filed August 4, 2006 (Doc. 65)("Defendant's Fact Statement"), Exhibit B, Attachment 56, Investigation Summary (dated February 18, 2004)("February 18, 2004 Investigation Summary"). Grado was one of thirteen employees the University interviewed that day. See Harper Deposition at 83:1-84:9; February 18, 2004 Investigation Summary.
As a result of those interviews, the University placed Ortiz on administrative leave, pending the final outcome of the investigation. See Defendant's Fact Statement, Exhibit C, Deposition of Tracy Bonjean, Vol. II, 29:4-30:19 (taken July 12, 2006). On February 18, 2004, a University investigator interviewed Ortiz concerning the allegations against him. See February 18, 2004 Investigation Summary. Also on February 18, 2004, the University received an e-mail from Grado, stating that she "was unable to give a detailed report of the incidents" during her February 11, 2004 interview, and including an attachment containing a more detailed description of "the incidents." Defendant's Fact Statement, Exhibit B, Attachment 61, E-mail from Loretta Rodriguez to April Harper (dated February 18, 2004).
In her February 18, 2004 communication to the University, Grado stated that Ortiz called her and came by her cubicle excessively, asked her personal questions, told her that, to him, "partying" meant kissing and having sex, asked her if she liked to party, showed her a yearbook picture of himself and talked about how good he looked in it, offered to pay for a hotel room, and demeaned women continuously. See id. The University asserts that Grado's allegations against Ortiz were included in the investigation that led to his termination. See Harper Deposition at 134:20-135:11. Grado contends, however, that the University never investigated her specific allegations of sexual harassment against Ortiz, or her supervisors' failure to report complaints about Ortiz' behavior up the University's chain of command. See Grado Fact Statement at 2; Grado's Opposition at 12.
At the conclusion of its investigation, and after unsuccessful attempts to reach an amicable separation, the University terminated Ortiz on April 16, 2004. See Defendant's Fact Statement, Exhibit D, Attachment 12, Termination Letter from Tracy Bonjean to Manuel Ortiz (dated April 16, 2004). Ortiz had received, on several occasions, training on the University's sexual harassment policies. See Defendant's Fact Statement, Exhibit D, Deposition of Manuel Ortiz at 93:13-95:17 (taken April 11, 2006)("Ortiz Deposition"); id., Attachment 4. There is 1052 evidence, however, that supervisors and employees at the Santa Teresa campus did not take *1052 sexual harassment training seriously and that it was ineffective. See Grado Deposition at 29:19-30:3; Russo Deposition, Vol. I, at 37:16-38:3; id. at 53:3-12; Russo Deposition, Vol. II, at 26:5-20.

On April 21, 2006, the University received the Charge of Discrimination that Grado had filed with the EEOC on April 15, 2006. See Defendant's Fact Statement, Exhibit E, Notice of Charge of Discrimination (dated April 20, 2006). The Charge of Discrimination includes allegations that Ortiz sexually harassed Grado by asking her sexual questions and calling her work phone and visiting her cubicle excessively, that the Human Resources Department did not properly investigate her complaints about Ortiz, and that she was not chosen for a promotion to a Financial Aid Counselor position in retaliation for refusing Ortiz' advances. See id. Grado continued to work for the University at the Santa Teresa Campus until May 28, 2004, when she resigned to accept employment with another company. See Grado Deposition at 206:1-23; Defendant's Fact Statement, Exhibit A, Attachment 13, Resignation Letter from Loretta Grado to Pam Snow and. Brian Russo.
At her March 8, 2006 deposition, Grado described several examples of Ortiz' behavior towards her, she testified: (i) that Ortiz showed her pictures of his high school yearbook and asked her if she thought he was good looking, see Grado Deposition at 55:13-17; (ii) that Ortiz asked her to leave the building with him because he had something to show her, see id. at 74:11-15; (iii) that Ortiz asked her when she was going to give in, see id. at 86:10-24; (iv) that Ortiz ran his fingers through her hair, see id. at 51:25-52:7; and (v) that Ortiz tried to kiss her, see id. at 89:14-19. Grado also alleged that Ortiz retaliated against her for refusing his advances. She testified that Ortiz told her about an open Financial Aid Counselor position, see id. 78:15-24, that Ortiz encouraged her to apply for the position, see id., that Ortiz said he would waive the University's standard requirement that an employee be in a position for at least six months before moving to another position, see id. at 79:1-3, that Ortiz interviewed her for the position, see id. at 81:19-25, and that, the day before the filling of the position was announced, she refused a request by Ortiz to party, see id. at 196:1-3. Ortiz had the final say in determining who would fill the Financial Aid Counselor position. See Russo Deposition, Vol. I, at 148:15-23; Snow-Armendariz Deposition at 133:18-22. When Grado questioned Ortiz about why she did not receive the position, however, Ortiz told her that it was not his decision. See Grado Deposition at 83:20-23.
Grado first interviewed for the Financial Aid Counselor position with Financial Aid Manager Jimmy Armendariz. See Defendant's Fact Statement, Exhibit G, Deposition of Jaime Armendariz at 84:2-87:19 (taken March 8, 2006) ("Armendariz Deposition"); Grado's Opposition at 14. Grado then interviewed with Accounting Manager Rocio Martinez. See Armendariz Deposition at 84:2-87:19. Martinez selected another candidate over Grado to advance to the final interview stage with Ortiz, because Martinez believed the other candidate had performed better in the interview and had stronger recommendations. See Defendant's Fact Statement, Exhibit H, Deposition of Rocio Martinez at 83:14-84:18. Martinez made her selection on November 17, 2003, without having any conversations with Ortiz about the selection process. See id. at 84:21-85:2.
Additionally, Grado testified that, as a result of Ortiz' conduct, she had between five and ten nightmares, suffered loss of sleep, saw a doctor twice for her emotional distress and sleeping problems, and took some sample 1053 medications that the doctor *1053 gave her. See Grado Deposition at 218:3-221:25. Grado further testified that the emotional distress Ortiz caused her took away her ability to care for her children for one month. See id. at 227:20-228:25. At her deposition, Grado also stated that Ortiz' behavior towards her would make her so upset that she would feel like vomiting. See id. at 60:20-25.
PROCEDURAL BACKGROUND
On September 30, 2005, the EEOC filed its initial Complaint, alleging, pursuant to Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991, that Grado and Lorena Pinon were subjected to sexual harassment, which created a hostile work environment, and retaliation. See Complaint/Jury Trial Demand, filed September 30, 2005 (Doc. 1). The EEOC filed its First Amended Complaint on October 12, 2005, correcting typographical errors contained in paragraph eight of its initial Complaint. See First Amended Complaint/Jury Trial Demand at 1, 3, filed October 12, 2005 (Doc. 3).
On January 31, 2006, Pinon filed her Motion to Intervene. See Motion to Intervene, filed January 31, 2006 (Doc. 14). The Court granted Pinon's motion on February 26, 2006. See Order, filed February 26, 2006 (Doc. 17). Subsequently, on February 13, 2006, Pinon filed a Complaint, which includes federal claims for harassment and retaliation, and state law claims for constructive discharge, breach of contract, and negligent supervision. See

Complaint for Damages for Sexual Harassment, Retaliation, Constructive Discharge, Breach of Contract and Negligent Supervision and Retention, filed February 13, 2006 (Doc. 18).
Similarly, Grado filed a motion to intervene, pursuant to rule 24(a) of the Federal Rules of Civil Procedure and 42 U.S.C. § 2000e-5(f)(1), on February 22, 2006. See Motion to Intervene at 1, filed February 22, 2006 (Doc. 19). On May 10, 2006, the Court granted Grado's motion and her leave to file a complaint. See Memorandum Opinion and Order, filed May 10, 2006 (Doc. 49). Grado's Complaint, which was filed on May 26, 2006, includes federal claims for quid pro quo sexual harassment, hostile working environment, and retaliation, and state law claims for negligent supervision, intentional infliction of emotional distress, and breach of implied contract. See Complaint of Intervenor Loretta Grado at 13-15, filed May 26, 2006 (Doc. 52).
On August 4, 2006, the University filed a summary judgment motion requesting that the Court grant judgment in its favor on all of Grado's claims, the issue of punitive damages, and the Faragher/Ellerth defense. See Summary Judgment Motion at 1, 7-23. The University argues that, even when the facts are viewed in the light most favorable to the Plaintiffs, the Plaintiffs cannot satisfy one or more of the legal elements for each of the claims they bring or for punitive damages to be applicable. See id. Further, the University contends that there is not a genuine issue of material fact concerning whether it can satisfy the elements of the Faragher/Ellerth defense, and that, therefore, it is entitled to summary judgment on the Plaintiffs' sexual harassment claims. See id. at 14-15.
Also on August 4, 2006, Grado filed her partial summary judgment motion. See Partial Summary Judgment Motion at 1. Grado argues that, even when the facts are viewed in the University's favor, it cannot satisfy the legal elements of the Faragher/Ellerth defense it asserts, and that, as such, the Court should enter summary judgment on that issue for the Plaintiffs.
On August 16, 2006, Pinon and the University, pursuant to rule 41(a)(1) of the Federal Rules of Civil Procedure, 1054 stipulated to the dismissal, with prejudice, of all *1054 of Pinon's claims. See Stipulation for Dismissal with
Prejudice of Lorena Pinon, filed August 16, 2006 (Doc. 73).
On August 29, 2006, Grado filed Plaintiff-Intervenor Loretta Grado's Opposition to Defendant's Motion for Summary Judgment. See Plaintiff-Intervenor Loretta Grado's Opposition to Defendant's Motion for Summary Judgment, filed August 29, 2006 (Doc. 82)("Grado's Opposition"). In her Opposition, Grado states that she is no longer pursuing her breach of contract claim. See id. at 39 n. 7.
LAW REGARDING SUMMARY JUDGMENT
Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). See Celotex Corp. v. Catrett; 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The opposing party may not rest upon mere allegations and denials in the pleadings, but must set forth specific facts showing that there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)(citing Fed. R.Civ.P. 56 (e)). An issue of fact is "genuine" if the evidence is significantly probative or more than merely colorable such that a jury could reasonably return a verdict for the non-moving party. Id. at 249-50, 106 S.Ct. 2505 (citations omitted). Mere assertions or, conjecture as to factual disputes are not enough to survive summary judgment. See Branson v. Price River Coal Co., 853 F.2d 768, 771-72 (10th Cir.1988). The court may consider only admissible evidence, when ruling on a motion for summary judgment. See World of Sleep, Inc. v. La-Z-Boy Chair, Co., 756 F.2d 1467, 1474 (10th Cir.1985)(citing Fed. R.Civ.P. 56(e)).
If a defendant seeks summary judgment, it has an "initial burden to show that there is an absence of evidence to support the nonmoving party's case." Munoz v. St. Mary-Corwin Hosp., 221 F.3d 1160, 1164 (10th Cir.2000) (quoting Thomas v. IBM, 48 F.3d 478, 484 (10th Cir.1995))(internal quotations omitted). Upon meeting that burden, the plaintiff must "identify specific facts that show the existence of a genuine issue of material fact." Id. (citations and internal quotations omitted). "The party opposing the motion must present sufficient evidence in specific, factual form for a jury to return a verdict in that party's favor." Id. (citations and internal quotations omitted). The mere existence of a scintilla of evidence in support of the plaintiffs position is not sufficient; there

must be evidence, on which the fact finder could reasonably find for the plaintiff. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505. The non-moving party must "go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548 (internal quotations omitted).
Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.
Id. at 322-23, 106 S.Ct. 2548. "In a response to a motion for summary judgment, a party cannot rest on ignorance of the facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope 1055 that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). The non-moving party *1055 "must do more than simply show that there is some metaphysical doubt as to the material facts." Biester v. Midwest Health Servs., Inc., 77 F.3d 1264, 1266 (10 Cir.1996). A court must look at the record in the light most favorable to the party opposing summary judgment. See Smith v. Denver Pub. Sch. Bd., No. 91-1285, 1994 WL 651978, at *3 (10th Cir. November 18, 1994).
LAW REGARDING SEXUAL HARASSMENT
1. Quid Pro Quo.
Section 703(a) of Title VII forbids an employer "[i] to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1). "When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands, he or she establishes that the employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753-54, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). Tangible employment actions are those employment actions that constitute significant changes in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. See id. at 761, 118 S.Ct. 2257.
"The gravamen of a quid pro quo claim is that a tangible job benefit or privilege is conditioned on an employee's submission to sexual blackmail and that adverse consequences follow from the employee's refusal." Gary v. Long, 59 F.3d 1391, 1395 (D.C.Cir.1995). An express statement from the harasser linking employment benefits to the plaintiffs submission to sexual advances is not required. See Brandau v. State of Kansas, 968 F.Supp. 1416, 1421 (D.Kan.1997). The harasser and the harassed also need not have reached agreement as to the consequences of the employee's refusal to submit to sexual advances. See id. For Title VII purposes, a supervisor's tangible employment action is an act of the employer. Burlington Indus., Inc. V. Ellerth, 524 U.S. at 762, 118 S.Ct. 2257.
2. Hostile Environment.
"Quid pro quo harassment occurs when submission to sexual conduct is made a condition of concrete employment benefits. Alternatively, hostile work environment harassment arises when sexual conduct `has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.'" Hicks v. Gates Rubber Co., 833 F.2d 1406, 1413 (10th Cir.1987) (internal citations omitted) (quoting Meritor Say. Bank v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). For a hostile environment claim to survive a motion for summary judgment, a plaintiff must demonstrate that a rational jury could find that the workplace was permeated with discriminatory intimidation, ridicule, and insult, that "is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Zisumbo v. McCleodUSA Telecomm. Servs., Inc., 154 Fed.Appx. 715, 725-26 (10th Cir.2005)(internal quotations omitted)(quoting MacKenzie v. City & County of Denver, 414 F.3d 1266, 1280 (10th Cir. 2005)). See O'Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1097 (10th Cir.1999)(noting that "the severity and persuasiveness evaluation is particularly unsuited for summary judgment because it is

1056 quintessentially a question of fact"); *1056 Meritor Say. Bank v. Vinson, 477 U.S. at 68, 106 S.Ct. 2399 (noting that the gravamen of any sexual harassment claim is that the alleged sexual advances were unwelcome, and that whether particular conduct was unwelcome presents difficult credibility determinations committed to the trier of fact). "Severity and pervasiveness are evaluated according to the totality of the circumstances, considering such factors as 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." Zisumbo v. McCleodUSA Telecomm. Servs., Inc., 154 Fed. Appx. at 725-26 (internal quotations omitted) (quoting Chavez v. New Mexico, 397 F.3d 826, 832 (10th Cir.2005)). Impact on an employee's psychological well-being is relevant to determining whether the plaintiff actually found an environment hostile. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).

The relevant test is a disjunctive one, requiring that the harassing conduct be sufficiently severe or sufficiently pervasive. See Smith v. Nw. Fin. Acceptance, Inc., 129 F.3d 1408, 1413 (10th Cir.1997). With respect to severity, a plaintiff must first show that he or she believes that the conduct experienced was so severe that it created an abusive or hostile environment. See id. Second, the plaintiff must demonstrate that the harassing conduct was sufficiently severe that a reasonable person would find the work environment abusive or hostile. See id. With regard to pervasiveness, "isolated incidents of harassment, while inappropriate and boorish, do not constitute pervasive conduct." Id. at 1415. In this context, the word "pervasive" is not a counting measure; the number, sequence, and timing of the conduct, and the nuances of an environment that each instance of discriminatory behavior imposes are also important factors. See id. Incidents of harassment directed at employees other than the plaintiff can be used as proof of the plaintiff's hostile work environment claim. See Hicks v. Gates Rubber Co., 833 F.2d at 1415.

An employer is subject to vicarious liability to a victimized employee for a supervisor's creation of an actionable hostile environment, if the supervisor has immediate or successively higher authority over the employee. See Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).

3. Affirmative Defense.

Pursuant to Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, a defending employer may raise an affirmative defense to liability for damages, subject to proof by a preponderance of the evidence. See Faragher v. City of Boca Raton, 524 U.S. at 807, 118 S.Ct. 2275; Burlington Indus., Inc. v. Ellerth, 524 U.S. at 765, 118 S.Ct. 2257. The Faragher /Ellerth defense comprises two necessary elements: (i) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (ii) that the plaintiff employee unreasonably failed to take advantage of any employer provided preventive or corrective opportunities or to avoid harm otherwise. See Faragher v. City of Boca Raton, 524 U.S. at 807, 118 S.Ct. 2275; Burlington Indus., Inc. v. Ellerth 524 U.S. at 765, 118 S.Ct. 2257; Dees v. Johnson Controls World Servs., Inc., 168 F.3d 417, 422 (10th Cir.1999).

1057

While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when *1057 litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense.

Faragher v. City of Boca Raton, 524 U.S. at 807, 118 S.Ct. 2275; Burlington Indus., Inc. v. Ellerth 524 U.S. at 765, 118 S.Ct. 2257. The affirmative defense is not available to an employer that has taken an adverse tangible employment action against the plaintiff-employee. See Faragher v. City of Boca Raton, 524 U.S. at. 807, 118 S.Ct. 2275; Burlington Indus., Inc. v. Ellerth 524 U.S. at 765, 118 S.Ct. 2257.

LAW REGARDING RETALIATION
To establish a case for retaliation, a plaintiff must show: "[i] that he engaged in protected opposition to discrimination[;][ii] that a reasonable employee would have found the challenged action materially adverse[;] and [iii] that a causal connection existed between the protected activity and the materially adverse action." Argo v. Blue Cross & Blue Shield of Kan., 452 F.3d 1193, 1202 (10th Cir.2006). See O'Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1252 (10th Cir.2001). A plaintiff may demonstrate a causal connection with evidence of circumstances that justify an inference of retaliatory motive, such as an adverse action following protected conduct. See O'Neal v. Ferguson Constr. Co., 237 F.3d at 1253 (quoting Burrus v. United Tel. Co. of Kan., 683 F.2d 339, 343 (10th Cir.1982)). "Unless there is very close temporal proximity between the protected activity and the retaliatory conduct, the plaintiff must offer additional evidence to establish causation." O'Neal v. Ferguson Constr. Co., 237 F.3d at 1253 (citing Conner v. Schnuck Mkts., Inc., 121 F.3d 1390, 1395 (10th Cir.1997)). "[A] one and one-half month period between protected activity and adverse action may, by itself, establish causation." O'Neal v. Ferguson Constr. Co., 237 F.3d at 1253 (quoting Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir.1999)).
NEW MEXICO LAW REGARDING INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The following elements must be proven to establish a claim of intentional infliction of emotional distress: "[i] the conduct in question was extreme and outrageous; [ii] the conduct of the defendant was intentional or in reckless disregard of the plaintiff; [iii] the plaintiff's mental distress was extreme and severe; and [iv] there is a causal connection between the defendant's conduct and the claimant's mental distress." Trujillo v. N. Rio Arriba Elec. Coop., Inc., 2002-NMSC-004, at ¶ 25, 131 N.M. 607, 41 P.3d 333. For purposes of the tort of intentional infliction of emotional distress, New Mexico law adopts the Restatement Second of Torts' definition of extreme and outrageous conduct. See id. According to the Restatement, extreme and outrageous conduct is that which is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Restatement Second of Torts § 46 cmt. d. See U.J.I. 13-1628 N.M.R.A.2001 ("Extreme and outrageous conduct is that which goes beyond bounds of common decency and is atrocious and intolerable to the ordinary person."). "Extreme and severe emotional distress means that a reasonable person, normally constituted, would be unable to cope adequately with the 1058 mental distress engendered by the circumstances." Trujillo *1058 v. N. Rio Arriba Elec. Coop., Inc., 2002NMSC-004, at ¶ 28, 131 N.M. 607, 41 P.3d 333. "The law intervenes only where the distress is so severe that no reasonable person could be expected to endure it." Id. (quoting Restatement Second of Torts § 46 cmt. j.). The extreme and severe emotional distress element of intentional infliction of emotional distress was not met, for example, where a plaintiff felt "lousy," was depressed, was prescribed Prozac, slept long hours, and displayed erratic eating habits. Trujillo v. N. Rio Arriba Elec. Coop., Inc., 2002-NMSC-004, at ¶ 28, 131 N.M. 607, 41 P.3d 333.
NEW MEXICO LAW REGARDING NEGLIGENT SUPERVISION
An entity may be held liable in tort for negligent supervision of an employee even though it is not responsible for the wrongful acts of the employee under the doctrine of respondeat superior. See Los Ranchitos v. Tierra Grande, Inc., 116 N.M. 222, 228, 861 P.2d 263, 269 (Ct.App. 1993).
The proper standard for determining whether an employer should be held liable for negligent supervision or retention of an employee does not require proof of actual knowledge of the employee's lack of skills or unfitness to perform such work, but whether the employer knew or reasonably should have known that some harm might be caused by the acts or omissions of the employee who is entrusted with such position.

Id. See Chavez v. Thomas & Betts Corp., 396 F.3d 1088, 1099 (10th Cir.2005)(applying New Mexico law and finding evidence sufficient to support a negligent supervision claim where plaintiff repeatedly complained to management about her supervisor's harassment).
LAW REGARDING PUNITIVE DAMAGES
Under Title VII, punitive damages are available if a plaintiff proves that an employer engaged in intentional discrimination "with malice or with reckless indifference to the federally protected rights of an aggrieved individual." Id. at 1097 (quoting 42 U.S.C. § 1981a(b)(1)). "`Malice' and `reckless indifference' in this context refer not to the egregiousness of the employer's conduct, but rather to the employer's knowledge that it may be acting in violation of federal law." Deters v. Equifax Credit Info. Servs., Inc., 202 F.3d 1262, 1269 (10th Cir.2000)(citing Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999)). Malice and recklessness are to be inferred when a manager responsible for setting or enforcing policy with regard to discrimination does not respond to complaints, despite knowledge of serious harassment. See Deters v. Equifax Credit Info. Servs., Inc., 202 F.3d at 1269.
Employer malice and recklessness in failing to remedy or prevent sexual harassment of which management-level employees knew or should have known is premised on direct liability, not derivative liability. See id. at 1270. The relevant inquiry is whether the employer had actual or constructive knowledge of the harassment, and whether its response was adequate. See id. "When a company specifically designates a particular employee within the company as a final person responsible for enforcing that company's policy against discrimination, then by the company's own designation, information provided to such an employee is knowledge to the company." Id. at 1270-71.
An employer cannot be held vicariously liable for punitive damages for the acts of a managerial employee, 1059 however, if the managerial employee's actions were *1059 contrary to the employer's good-faith efforts to comply
with Title VII. See Cadena v, Pacesetter Corp., 224 F.3d 1203, 1210 (10th Cir.2000). At a minimum, to qualify for the good-faith punitive damages exclusion, an employer must at least adopt antidiscrimination policies, make a good faith effort to educate its employees about those policies and statutory prohibitions, and make good faith efforts to enforce antidiscrimination policies and laws. See id. ("[E]ven if an employer [] adduces evidence showing it maintains [] a strong non-discrimination policy and makes good faith efforts to educate its employees about that policy and Title VII, a plaintiff may still recover punitive damages if she demonstrates the employer failed to adequately address Title VII violations of which it was aware.").
With respect to negligent supervision, an award of punitive damages "is permissible upon a finding that the wrongdoer's conduct was willful, wanton, malicious, reckless, oppressive, grossly negligent, or fraudulent and in bad faith." Chavez v. Thomas & Betts Corp., 396 F.3d at 1100 (quoting Nieto v. Kapoor, 268 F.3d 1208, 1222 (10th Cir.2001)). To demonstrate recklessness, a defendant must have acted intentionally and "with utter indifference to the consequences of its conduct." Chavez v. Thomas & Betts Corp., 396 F.3d at 1100 (quoting Gonzales v. Surgidev Corp. 120 N.M. 133, 145, 899 P.2d 576, 588 (1995))(finding evidence sufficient to show. employer acted recklessly where it was presented that supervisors had been present during some harassing incidents and the plaintiff had complained about harassment to management).
ANALYSIS
Because the Court finds that disputed issues of material fact preclude the granting of summary judgment on Grado's sexual harassment, retaliation, negligent supervision, and punitive damages claims, the Court will deny the University's motion with respect to those claims. The Court also finds that material factual disputes prohibit the granting of summary judgment on both the University's and Grado's summary judgment requests concerning the Faragher/Ellerth defense. Accordingly, the Court will deny the University's and Grado's motions insofar as they relate to that affirmative defense. Finally, the Court concludes that, viewing all of the relevant facts in the light most favorable to Grado, Grado has not established that she can satisfy the legal elements necessary to,

succeed on an intentional infliction of emotional distress claim. The Court will, therefore, grant the University's request for summary judgment on Grado's intentional infliction of emotional distress claim.
A. SEXUAL HARASSMENT
The Court concludes that summary judgment in favor of the University is not warranted on Grado's quid pro quo and hostile environment claims. The Court also concludes that it should not grant summary judgment to either the University or Grado on the Faragher /Ellerth defense.
1. Quid Pro Quo.
The University moves for summary judgment on Grado's quid pro quo sexual harassment claim based upon the assertions that Grado does not have any evidence to support her contention that Ortiz conditioned her receiving the Financial Aid Counselor position on accepting his sexual overtures, and that the undisputed facts demonstrate that Ortiz was not involved with the Financial Aid Counselor hiring decision. See Summary Judgment Motion at 12-13. The Court believes, however, that there are genuine issues of material fact, which 1060 preclude granting the *1060 University summary judgment on this claim.
Grado has presented evidence that Ortiz behaved inappropriately and made repeated sexual advances towards her before, after, and during their discussions about the Financial Aid Counselor position. See Grado Deposition at 51:25-52:7; id. at 55:13-17; id. at 74:11-15; id. at 78:12-24; id. at 79:1-3; id. at 81:19-25; id. at 86:10-24; id. at 89:14-19; id. at 196:1-3. Moreover, despite the University's argument that Armendariz and Martinez, and not Ortiz, made the Financial Aid Counselor hiring decision, Grado has presented evidence that Ortiz had the final say in determining who would fill the position, see Russo Deposition, Vol. I, at 148:15-23, Snow-Armendariz Deposition at 133:18-22, that Ortiz interviewed her for the position, see Grado Deposition at 79:1-3, and that Ortiz asked her if she would like to go party, a request she refused, the day before the filling of the position was announced, see id. at 196:1-3.
Considering the inconsistencies in the record concerning the association between Ortiz' allegedly harassing behavior and his discussion of the Financial Aid Counselor position, the disputed contentions regarding Ortiz' level of involvement with filling the Financial Aid Counselor position, that an express statement from Ortiz linking employment benefits to Grado's submission to his sexual advances is not required, see Brandau v. Kansas, 968 F.Supp. at 1421, and that Ortiz and Grado need not have reached an agreement as to the consequences of her refusal to submit to his sexual advances, see id., the Court concludes that factual disputes precluding the granting of summary judgment exist.
2. Hostile Environment.
The University contends that summary judgment is warranted because Grado's allegations do not meet the legal standard of severity or pervasiveness necessary to make out a hostile environment claim. See Summary Judgment Motion at 8. The Court, however, believes that Grado has presented evidence sufficient to survive a request for summary judgment on this claim. By including within her complaint a claim for hostile environment and presenting evidence that Ortiz' conduct made her uncomfortable, upset, and led her to ask Russo if she should be concerned about sexual harassment, see Grado Deposition at 60:20-25, id. at 68:11-23, Russo Deposition, Vol. I, at 12:20-13:2, Grado established that she believed Ortiz' conduct towards her was severe enough to create a hostile environment, see Smith v. Nw. Fin. Acceptance, Inc., 129 F.3d at 1413 (stating that, to establish severity, a plaintiff first must show that, subjectively, the complained of behavior created a hostile environment). Grado has also produced evidence that could lead a reasonable person to believe that Ortiz created a hostile work environment. See id. (holding that, to establish severity, a plaintiff must, secondarily, demonstrate that the harassing conduct was sufficiently severe to create an objectively hostile environment). Grado presented evidence that Ortiz asked her sexual questions, see E-mail from Loretta Rodriguez to April Harper, constantly called her work phone and visited her cubicle, see id., asked her if she thought he was good looking, see Grado Deposition at 55:13-17, asked her to leave the building with him, see id. at 74:11-15, asked her when she was going to give in, see id. at 86:10-24, asked her to party with him, see E-mail from Loretta Rodriguez to April Harper, ran his fingers through her hair, see Grado Deposition at 51:25-52:7, and tried to kiss her, see id. at 89:14-19. Grado, moreover, has presented evidence that Ortiz' conduct was pervasive; Grado

1061 testified that Ortiz' conduct essentially spanned the duration of her employment *1061 at the Santa Teresa campus. See id. at 66:13-18; id. at 196:1-3. While the University contends that Grado did not notify it of much of this alleged behavior, Grado represents that she notified Russo, and thus effectively the University, of Ortiz' behavior towards her. See at 60:1-61:18; id. at 66:13-69:3; id. at 84:14-85:7. Based on the foregoing, the Court finds that there are relevant issues of material fact regarding whether Ortiz' behavior towards Grado was severe and pervasive, and when and what Grado reported to Russo, that prevent the Court from granting the. University summary judgment on the hostile work environment claim.
3. Affirmative Defense.
Both the University and Grado move for summary judgment on the Faragher/Ellerth defense. That affirmative defense to sexual harassment claims comprises two necessary elements: (i) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (ii) that the plaintiff employee unreasonably failed to take advantage of any employer provided preventive or corrective opportunities or to avoid harm otherwise. See Faragher v. City of Boca Raton, 524 U.S. at 807, 118 S.Ct. 2275; Burlington Indus., Inc. v. Ellerth, 524 U.S. at 765, 118 S.Ct. 2257. With respect to the first element, the University presents evidence that it immediately responded to the February 10, 2004 anonymous complaint raising issues about Ortiz. See Harper Deposition at 83:1-84:9. The University also presents evidence that Grado failed to avail herself of any corrective opportunities 0907 the University maintains that Grado reported Ortiz' conduct only once each to Russo and Snow-Armendariz before the University began its investigation into the February 10, 2004 complaint, and that Grado told Russo and Snow-Armendariz only that Ortiz' called her work phone often, visited her cubicle frequently, and made her feel uncomfortable. See Russo Deposition, Vol. II, at 98:18-99:25; id. at 102:3-22; Snow-Armendariz Deposition at 127:14-129:6; id. at 171:13-25.
Grado, however, presents evidence that Russo was informed numerous times about various incidents involving Ortiz' inappropriate sexually harassing conduct towards her. See Grado Deposition at 60:1-61:18; id. at 66:13-68:25; id. at 84:14-85:7; Camp Deposition, Vol. I, at 232:6-9. Indeed, Russo testified that Grado may have complained to him about Ortiz as many as twenty times. See Russo Deposition, Vol II, at 79:23-80:2. The Court believes that whether the Faragher/Ellerth defense applies depends, in large part, an when and to what extent Grado reported Ortiz' harassing behavior to Russo; the Court believes that facts concerning communications between Grado and Russo about Ortiz may determine whether the two Faragher/Ellerth elements are met in this case.
Further, the Court notes that the Faragher/Ellerth defense is not available where a tangible adverse employment action was taken against the plaintiff-employee. See Faragher v. City of Boca Raton, 524 U.S. at 807, 118 S.Ct. 2275; Burlington Indus., Inc. v. Ellerth, 524 U.S. at 765, 118 S.Ct. 2257. Grado submits that her not being hired for the Financial Aid Counselor position constituted a tangible adverse employment action. See Memorandum in Support of Plaintiff Loretta Grado's Motion for Partial Summary Judgment at 5-6, filed August 8, 2006 (Doc. 67). The University maintains, however, that Ortiz had nothing to do with filling the Financial Aid Counselor position. See Summary Judgment Motion at 14-15. As discussed above, Ortiz' role in the hiring decision for that position in 1062 unclear. Given the material factual disputes *1062 that the parties raise with regard to Grado's reports to Russo and whether Grado's not being elevated to the Financial Aid Counselor position was a tangible adverse employment action, the Court concludes that summary judgment is not warranted on the Faragher/Ellerth issue.
B. RETALIATION
The Court will not grant the University summary judgment on Grado's retaliation claim. The University argues that Armendariz and Martinez, not Ortiz, decided who to hire for the Financial Aid Counselor position. See Summary Judgment Motion at 16. The University also contends that Grado cannot establish a causal link between her complaints and her not receiving the promotion to the Financial Aid Counselor position. See id. Grado raises disputed issues of material fact, however, concerning whether Ortiz had the final say in who would receive the Financial Aid Counselor position, see Russo Deposition, Vol I, at 148:15-23, Snow-Armendariz Deposition at 133:18-22, regarding her engaging in protected conduct 0907 denying an invitation from Ortiz to party 0907 the day before the filling of the position was announced, see Grado Deposition at 196:1-3, and respecting whether Ortiz took the adverse employment action 0907 not promoting Grado to the Financial Aid Counselor position 0907 against her because she refused his invitation and advances, see id. The Court notes that a plaintiff can demonstrate the

requisite causal connection by showing a very close proximity between the protected activity and the retaliatory conduct. See O'Neal v. Ferguson Constr. Co., 237 F.3d at 1253.
Given the disputed facts concerning Ortiz' involvement with filling the Financial Aid Counselor position, and considering Grado's contention that she engaged in protected activity by refusing Ortiz' invitation and that the announcement that someone else would be filling the position came the day after the protected refusal, the Court concludes that judgment as a matter of law is not warranted with respect to Grado's retaliation claim.
C. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The Court will grant the University summary judgment on Grado's intentional infliction of emotional distress claim. To prevail on a claim for intentional infliction of emotional distress, a plaintiff must demonstrate that he or she suffered extreme and severe mental illness. See Trujillo v. N. Rio Arriba Elec. Coop., Inc., 2002-NMSC-004, at ¶ 25, 131 N.M. 607, 41 P.3d 333. "Extreme and severe emotional distress means that a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances." Id. at ¶ 28.
The Court finds that, even taking all of the relevant facts in the light most favorable to Grado, Grado has not presented evidence of extreme and severe emotional distress. The evidence Grado presents with regard to her intentional infliction of emotional distress claim does not create a genuine issue of material fact precluding the granting of judgment as a matter of law. Grado asserts that Ortiz' behavior towards her made her feel like vomiting, caused her to have between five and ten nightmares, caused her to lose sleep, led her to seek medical assistance, led her to take some sample medications her physician provided, and prevented her from caring for her children for a month, because she was too tired and emotionally distracted to do so. See Grado Deposition at 60:20-25; id. at 218:3-221:25; id. at 227:20-228:25.
The Court finds that those facts are insufficient to meet the high standard necessary to establish the extreme and 1063 severe *1063 element under New Mexico law. See Dominguez v. Stone, 97 N.M. 211, 214, 638 P.2d 423, 426
(Ct.App.1981)("Emotional distress . . . includes all highly unpleasant mental reactions, such as . . . horror, . . . humiliation, embarrassment, . . . and nausea. It is only where it is extreme that the liability arises. . . . The law intervenes only where the distress inflicted is so severe that no reasonable person could be expected to endure it.")(quoting Restatement Second of Torts § 46, cmt. j). In Trujillo v. N. Rio Arriba Elec. Coop, Inc., the plaintiff presented evidence that he had suffered distress similar to that of which Grado complains. The plaintiff in Trujillo presented evidence that he felt "lousy," was depressed, was prescribed Prozac, slept long hours, and displayed erratic eating habits. See id., 2002-NMSC-004, at ¶ 28, 131 N.M. 607, 41 P.3d 333. The New Mexico Supreme Court held that such evidence was insufficient to satisfy the extreme and severe emotional distress element of an intentional infliction of emotional distress claim. See id. Applying New Mexico precedent to this case, the Court finds that the evidence of distress Grado presents is similarly insufficient to meet the tort claim's extreme and severe element. As such, the Court concludes that the University is entitled to summary judgment on Grado's intentional infliction of emotional distress claim.
D. NEGLIGENT SUPERVISION
The University contends that it is entitled to summary judgment on Grado's negligent supervision claim, because she cannot show that a genuine issue of material fact exists regarding whether Ortiz engaged in a wrongful act that injured her and because she cannot demonstrate that the University was negligent in supervising Ortiz. The Court disagrees. Grado has presented evidence raising issues of material fact concerning whether Ortiz' conduct was wrongful and injurious.
Grado has presented evidence demonstrating that Ortiz violated her right to be free from discrimination and retaliation. See E-mail from Loretta Rodriguez to April Harper; Grado Deposition at 51:25-52:7; id. at 55:13-17; id. at 74:11-15; id. at 86:10-24; id. at 89:14-19; id. at 196:1-3. Further, Grado presented evidence that she frequently reported the extent of Ortiz' harassing behavior to Russo, see id. at 60:1-61:18; id. at 66:13-69:3; id. at 84:14-85:7, and the Court believes that such evidence raises issues of fact regarding the University's knowledge of Ortiz' unfitness to perform the job of campus administrator. The Court notes that a plaintiff-employee need only prove that the employer-defendant knew or reasonably should have known that an employee might cause some

harm. See Chavez v. Thomas & Betts Corp., 396 F.3d at 1099. Considering the foregoing, the Court concludes that Grado has raised genuine issues of material fact concerning the necessary elements of a negligent supervision claim and that summary judgment in favor of the University on that claim is inappropriate.
E. PUNITIVE DAMAGES
The Court disagrees with the University's contention that it is entitled to summary judgment on the issue of punitive damages. A plaintiff must establish malice or recklessness to recover punitive damages on a Title VII claim. See Chavez v. Thomas & Betts Corp., 396 F.3d at 1097. Malice and recklessness are to be inferred when a manager responsible for enforcing anti-discrimination policy does not respond to complaints, despite knowledge of serious harassment. See Deters v. Equifax Credit Info. Servs., Inc., 202 F.3d at 1269. Moreover, when a company specifically designates a particular employee as a final person responsible for enforcing the 1064 company's anti-discrimination policy, information provided to such an employee constitutes *1064 knowledge to the company. See id. at 1270-71. Further, the good-faith exception to punitive damages is not available if the employer failed to adequately address Title VII violations of which it was aware. See Cadena v. Pacesetter Corp., 224 F.3d at 1210.
Grado has presented evidence that Russo was her direct supervisor, see Grado Deposition at 35:5-18, SnowArmendariz Deposition at 69:17-24, that, by its own designation, the company defined Russo as a final person responsible for enforcing its anti-discrimination policy, see Discrimination and Harassment Policy, and that, on numerous occasions, she and Camp informed Russo about the nature and extent of Ortiz' sexually harassing behavior towards her, see 60:1-61:18; id. at 67:9-16; id. at 68:11-69:3; id. at 84:14-85:7; Camp Deposition, Vol. I, at 232:6-9. The Court believes that, as with several of the claims discussed above, the issue of punitive damages turns on what and when Grado told Russo about Ortiz' behavior. The Court finds that Grado has raised issues of material fact sufficient to survive the University's request for summary judgment on Title VII punitive damages.
The Court reaches the same conclusion with regard to whether the University is entitled to summary judgment concerning punitive damages associated with Grado's negligent supervision claim. Grado may demonstrate that the University acted recklessly to recover punitive damages on her negligent supervision claim. Because, as noted in the preceding paragraph, Grado has presented evidence raising material factual issues concerning the University's knowledge and whether its actions or omissions were reckless in the face of the knowledge it had, see Snow-Armendariz Deposition at 69:17-24, Grado Deposition at 35:5-18, id. at 60:1-61:18; id. at 67:9-16; id. at 68:11-69:3; id. at 84:14-85:7; Camp Deposition, Vol. I, at 232:6-9, Discrimination and Harassment Policy, the Court will deny the University's request for summary judgment on this issue, see Chavez v. Thomas & Betts Corp., 396 F.3d at 1100 (finding evidence sufficient to show employer acted recklessly where it was presented that supervisors had been present during some harassing incidents and the plaintiff had complained about harassment to management).
Because the Court finds that Grado presented evidence that raises genuine issues of material fact with respect to her claims for sexual harassment, retaliation, negligent supervision, and punitive damages, the Court will deny the University's request for summary judgment on those claims. Because the Court further finds that both the University and Grado have submitted evidence demonstrating genuine factual issues with regard to the Faragher/ Ellerth defense, the Court will deny their opposing motions for summary judgment on that affirmative defense issue. Finally, because the Court concludes that, viewing all of the relevant evidence in the light most favorable to Grado, Grado cannot establish the elements necessary to satisfy an intentional infliction of emotional distress claim, the Court will grant summery judgment to the University on that claim.
IT IS ORDERED that the Defendant's Motion for Summary Judgment is granted in part and denied in part. Summary judgment is entered in the University's favor on Grado's intentional infliction of emotional distress claim. All of the other requests for summary judgment contained within the University's summary judgment motion are denied. The Court will also deny Plaintiff Loretta Grado's Motion for Partial Summary Judgment.
[1] Loretta Grado was formerly known as Loretta Rodriguez.

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 E.E.O.C. v. University of Phoenix, Inc., Not Reported in F.Supp.2d (2007)

2007 WL 1302578 Only the Westlaw citation is currently available.
United States District Court, D. New Mexico.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, and
Lorena PINON and Loretta Grado, Intervenors, v.
UNIVERSITY OF PHOENIX, INC., Defendants.
No. CIV-05-1048 JB/WPL. | April 10, 2007.
Attorneys and Law Firms
C. Emanuel Smith, Mary Jo O’Neill, EEOC Phoenix District Office, Phoenix, AZ, Gwendolyn Young Reams, James L. Lee, EEOC Legal Counsel Office, Washington, DC, Loretta F. Medina, Veronica A. Molina, Equal Employment Opportunity Commission, Albuquerque, NM, for Plaintiff.
Glenn Schlactus, Myrna Perez, Relman & Associates, PLLC, Washington, DC, Reed Neill Colfax, Santa Fe, NM, for Intervenors.
James D. Kilroy, Snell & Wilmer LLP, Denver, CO, Matthew Drew Mitchell, Matthew Mitchell, PC, CHANDLER, AZ, Stanley K. Kotovsky, Jr., Tinnin Law Firm, A Professional Corporation, Albuquerque, NM, William R. Hayden, Snell & Wilmer, Phoenix, AZ, for Defendants.
Opinion
MEMORANDUM OPINION AND ORDER
BROWNING, J.
*1 THIS MATTER comes before the Court on Plaintiff EEOC’s Motion to Compel, filed April 3, 2006 (Doc. 33). The Court held a hearing on the motion on May 10, 2006. The primary issue is whether the Court should order the production of social security numbers and addresses of potential witnesses to the alleged sexual harassment, hostile work environment, and retaliation so that Plaintiff Equal Employment Opportunity Commission (“EEOC”) can locate the witnesses. Because the Court concludes that the information sought is relevant, and because the Court believes that any privacy or confidentiality concerns can be addressed with a confidentiality agreement, the Court will grant the EEOC’s motion in

part and deny it in part.
PROCEDURAL BACKGROUND
The EEOC seeks identifying information about employees at the Santa Teresa Campus from January 2002 to the present. These employees are potential witnesses to the alleged disparate treatment or hostility of a former manager of the University of Phoenix, Inc.’s Santa Teresa branch. The EEOC seeks this information to locate these potential witnesses.
1. Complaint. The EEOC brings this action, and seeks relief, on behalf of two allegedly aggrieved individuals, Lorena Pinon and Loretta Grado, former University of Phoenix, Inc. (“University”) employees. See First Amended Complaint at 1 (Doc. 3). Those individuals now bring this action in their own name, too, as they have intervened in the action. See Lorena Pinon’s Complaint for Damages for Sexual Harassment, Retaliation, Constructive Discharge, Breach of Contract and Negligent Supervision and Retention, filed February 13, 2006 (Doc. 18); Proposed Complaint of Intervenor Loretta Grado, filed February 22, 2006 as Exhibit 1 to Motion to Intervene (Doc. 19); Memorandum Opinion and Order, filed May 10, 2006 (Doc. 49)(granting Loretta Grado’s Motion to Intervene and allowing Loretta Grado to file the Complaint attached to her Motion to Intervene). The EEOC brings this action against the University under Title VII of the Civil Rights Act of 1964 and under Title I of the Civil Rights Act of 1991 to correct alleged unlawful employment practices on the basis of sex and retaliation. See First Amended Complaint at 1.
Specifically, the EEOC alleges that Grado and Pinon were subjected to harassment because of their sex, including “sexually offensive comments and conduct of high-ranking management officials, which created a hostile work environment [for the women].” Id. The EEOC also contends that Grado was not promoted in retaliation for her opposition to perceived unlawful employment practices. See id. ¶¶ 7-8, at 3. Finally, the EEOC contends that Pinon was also subjected to retaliation with respect to her terms, conditions, and privileges of employment because she opposed perceived unlawful employment practices. See id.
2. Discovery Dispute and Effort to Confer. Discovery has been underway and the University of
1

E.E.O.C. v. University of Phoenix, Inc., Not Reported in F.Supp.2d (2007)

Phoenix, Inc. represents that several witnesses have been deposed, including Pinon, Grado and the two alleged harassers. See Defendant’s Response to Plaintiff EEOC’s Motion to Compel (“Response”), filed April 20, 2006 (Doc. 43). The EEOC represents that Brian Russo, a former manager at the University, testified at his deposition that there were several former or current employees of the Santa Teresa campus whom Campus Director Manny Oritz may have subjected to disparate treatment or hostility. See Plaintiff EEOC’s Reply in Support of Motion to Compel (“Reply”) at 4; Oral Deposition of Brian Russo (“Russo Depo.”) (taken March 7, 2006). The EEOC represents that the employees that Russo identified will have the specific details of their respective incidents with Ortiz and with the Human Resources department, and of the environment at Santa Teresa. See Reply at 4.
*2 On January 18, 2006, the EEOC provided the University with written discovery requests, including the EEOC’s First Request for Production of Documents to Defendant. See Certificate of Service of Plaintiff EEOC’s First Request for Production of Documents and First Set of Interrogatories to Defendant, filed January 19, 2006 (Doc. 12); Plaintiff EEOC’s First Request for Production of Documents to Defendant (sent January 18, 2006). Among its requests for production, the EEOC sought in Request for Production No. 12 the following information: “Documents or a list that contain the name, social security number, date of birth, address, date of hire, date of termination and job title of each employee employed by you at the Santa Teresa campus from January 2002 to present.” Plaintiff EEOC’s First Request for Production of Documents to Defendant at 8. The EEOC represents that it sought this information to identify and locate potential witnesses. See Memorandum in Support of Plaintiff EEOC’s Motion to Compel (“Memorandum in Support”) at 2, filed April 3, 2006 (Doc. 34).
On February 21, 2006, the University served the EEOC with the Defendant University of Phoenix’s Response to Plaintiff EEOC’s First Request for Production of Documents to Defendant. See Defendant University of Phoenix’s Response to Plaintiff EEOC’s First Request for Production of Documents to Defendant (served February 21, 2006); Certificate of Service of Defendant’s Discovery Responses, filed February 22, 2006 (Doc. 20). In responding to the EEOC’s Request for Production No. 12, the University objected to the request, contending that it was: (i) overly broad; (ii) seeks information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence; and (iii) seeks confidential and private information of non-parties to this litigation. See Defendant University of Phoenix’s Response to Plaintiff EEOC’s First Request for Production of Documents to Defendant at 7. The University represents that it has provided all requested information with the exception of the social security

numbers, dates of birth, and addresses of the employees about whom information is requested. See Response at 2.
The EEOC’s counsel and the University’s counsel have exchanged correspondence and have had telephone discussions in an effort to resolve this discovery dispute. See Memorandum in Support at 3. The EEOC represents that its counsel has in good faith conferred with the University’s counsel regarding the University’s refusal to disclose the requested information; however, the parties could not resolve this discovery dispute. See Plaintiff EEOC’s Motion to Compel ¶ 3, at 2. The EEOC asserts that the University has refused to respond completely to this Request for Production. See Memorandum in Support at 3.
Pursuant to D.N.M.LR-Civ. 7.2, the EEOC’s counsel conferred with the University’s counsel, and the University opposes this motion. See Plaintiff EEOC’s Motion to Compel ¶ 4, at 1. The Court’s involvement is therefore necessary to resolve this discovery dispute regarding the EEOC’s Request for Production No. 12.
*3 The EEOC filed its motion to compel on April 3, 2006. See Doc. 33. The EEOC moves the Court, pursuant to rules 26, 34, and 37 of the Federal Rules of Civil Procedure and D.N.M.LR-Civ. 7, 26.6, and 37, for an order compelling the University to respond fully to the EEOC’s Request for Production No. 12. See id. at 1.
The EEOC represents that, one day after the EEOC filed its motion to compel, the University sent the EEOC supplemental responses to discovery that included an untitled list of employees. See Reply at 2. The EEOC contends that it is not possible to discern if the list includes all Santa Teresa employees from January 2002 to the present, as Request for Production No. 12 requests. See id. at 2. Also, the list produced does not contain social security numbers, dates of birth, or addresses for these employees. See Reply at 2. The EEOC continues to assert that the rules of civil procedure governing discovery do not allow the University to refuse to provide the EEOC with employee addresses, social security numbers, and dates of birth.
LAW REGARDING SCOPE OF DISCOVERY
Rule 26(b)(1) provides that “[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party....” Fed.R.Civ.P. 26(b)(1). Additionally, such relevant information “need not be admissible at the trial” provided it “appears reasonably calculated to lead to the discovery of admissible evidence.” Id. The touchstone of any discovery request therefore is relevancy, and courts have
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determined that the scope of such relevancy is broad. See Burks v. Oklahoma Publ’g Co., 81 F.3d 975, 981 (10th Cir.1996)(“A plaintiff may be allowed ‘extensive’ discovery in order to prove his or her case.”)(quoting Rich v. Martin Marietta Corp., 522 F.2d 333, 343 (10th Cir.1975)). Conclusory statements asserting information is irrelevant are not sufficient. See Teichgraeber Mem’l Union Corp., 932 F.Supp. 1263, 1265-66 (D.Kan.1996)(citing Josephs v. Harris Corp., 677 F.2d 985, 992 (3rd Cir.1982)).
EEOC actions vindicate the public interest in preventing employment discrimination. See Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 326, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980)(“When the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination.”). “It is plain that the scope of discovery through interrogatories and requests for production of documents is limited only by relevance and burdensomeness, and in an EEOC case the discovery scope is extensive.” Rich v. Martin Marietta Corp., 522 F.2d 333, 343 (10th Cir.1975)(stating that the policy of the court has not been to circumscribe discovery narrowly in EEOC cases). See Trevino v. Celanese Corp., 701 F.2d 397, 405-06 (5th Cir.1983)(asserting that the imposition of unnecessary limitations on discovery in Title VII cases is especially frowned upon); Owens v. Sprint/United Mgmt. Co., 221 F.R.D. 649, 652-53 (D.Kan.2004)(noting that the scope of discovery is particularly broad in Title VII cases). The United States Court of Appeals for the Tenth Circuit has addressed the scope of discovery in EEOC cases and found it to be very broad. See Rich v. Martin Marietta Corp., 522 F.2d at 343. In Rich v. Martin Marietta Corp., the Tenth Circuit noted that the purpose of Title VII is the “elimination of employment discrimination” and added that “[i]t cannot be said, therefore that the policy of this court has been to narrowly circumscribe discovery in EEOC cases.” Id. at 343-44 (internal citations omitted). Rather, the Tenth Circuit recognized that the scope of discovery in an EEOC case is extensive. See id.
*4 Evidence relating to an employer’s general employment practices is relevant, see Owens v. Sprint/United Mgmt. Co., 221 F.R.D. at 652-53, and rule 26(b)(1) permits and states that parties may obtain discovery regarding “the identity and location of persons having knowledge of any discoverable matters,” Fed.R.Civ.P. 26(b)(1). The Court will therefore permit the EEOC liberal discovery relating to the identification and location of potential witnesses.
As the Court recently noted, however, while “[t]he legal tenet that relevancy in the discovery context is broader than in the context of admissibility ...,” the concept of relevancy “should not be misapplied so as to allow fishing expeditions in discovery.” Martinez v. Cornell Corrs. of

Tex., 229 F.R.D. 215, 218 (D.N.M.2005)(Browning, J.). A party objecting on the basis of over breadth bears the burden of establishing that the request is overbroad. See Cont’l Ill. Nat’l Bank & Trust Co. of Chi. v. Caton, 136 F.R.D. 682, 684-85 (D.Kan.1991).
Blanket requests for sensitive information are improper. See Gehring v. Case Corp., 43 F.3d 340, 342 (7th Cir.1994)(affirming district court’s denial of request for personnel files because of privacy concerns); Onwuka v. Fed. Express Corp., 178 F.R.D. 508, 517 (D.Minn.1997)(holding that only portions of personnel files that are clearly relevant to the plaintiff’s claims are open to disclosure). Moreover, courts have held that, insofar as discovery requests seek confidential information, privacy concerns are relevant, and the party requesting such information “must show that the value of the information sought would outweigh the privacy interests of the affected individuals.” Case v. Platte County, No. 8:03cv160, 2004 WL 1944777, at *2 (D.Neb. June 11, 2004) (citing Onwuka v. Fed. Express Corp., 178 F.R.D. at 517). See Walters v. Breaux, 200 F.R.D. 271, 274 (W.D.La.2001)(citing cases protecting legitimate privacy concerns with respect to social-security numbers). Even when social-security information is needed to help locate individuals, courts will decline to compel production of social-security numbers when other identifying and locating information is available. See McDougal-Wilson v. Goodyear Tire and Rubber Co., 232 F.R.D. 246, 252 (E.D.N.C.2005); Raddatz v. Standard Register Co., 177 F.R.D. 446, 448 (D.Minn.1997)(stating that court should not order the production of personnel files in their entirety where less intrusive means may be used to obtain the relevant information).
In addition, many courts have found that social-security numbers are confidential and not reasonably calculated to lead to the discovery of confidential information. See Mike v. Dymon, No. 95-2405-EEO, 1996 WL 674007, at *7 (D.Kan. November 14, 1996)(“The court does not find that requests for social security numbers and dates of birth of all individuals who provided information to answer the interrogatories are reasonably calculated to lead to the discovery of admissible evidence.”); Beasley v. First Amer. Real Estate Inf. Serv., Inc., No. 3-04-CV-1059-B, 2005 WL 1017818, at *2 (N.D.Tex. April 27, 2005)(“[T]he social security numbers of employees are confidential and not reasonably calculated to lead to the discovery of admissible evidence.”). On the other hand, assertions of confidentiality alone should not preclude discovery. See Van Deelan v. Shawnee Mission Sch. Dist., No: 03-2018-CM, 2003 U.S. Dist. Lexis 21528, at *8 (asserting that confidentiality is not generally a bar to discovery and typically not a grounds for withholding personnel files). A constitutional right to privacy does not protect information that is neither highly personal nor intimate, and that is readily available to the public. See Nilson v. Layton City, 45 F.3d 369, 372 (10th Cir.1995).
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District courts in this circuit have ruled that alleged private or confidential information must be disclosed in Title VII cases where the information is relevant to the claims bought. See Oglesby v. HyVee, Inc., No. Civ. A. 04-2440-KHV, 2005 WL 857036, at *2 (D.Kan. April 13, 2005)(citing Fox-Martin v. H.J. Heinz Operations, No. 02-4121-JAR, 2003 WL 23139105 (D.Kan. December 19, 2003)(compelling production of personnel files of employees who allegedly participated in or witnessed the hostile work environment and/or retaliation giving rise to the lawsuit); McCoo v. Denny’s Inc., 192 F.R.D. 675, 688 (D.Kan.2000)(holding that the plaintiffs were entitled to discover personnel files of restaurant employees who allegedly were involved in or witnessed any of the claimed discriminatory events).
ANALYSIS
*5 At issue in this motion to compel is the EEOC’s request for documents or a list that would contain identifying information for the University’s employees who worked at the same facility as Grado and Pinon. Although the University initially raised three grounds for objection, including that Request for Production No. 12(i) was overly broad; (ii) seeks information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence; and (iii) seeks confidential and private information of non-parties to this litigation, it appears that the University has abandoned the overly broad objection in its Response. Thus, while the Court will address and overrule the overly broad objection, the Court will focus on objections based on relevance and confidentiality/privacy.
1. The EEOC’s Request for Production No. 12 is not Overly Broad. The University’s objection that Request for Production No. 12 is overly broad lacks a sound basis in the law. The University has not articulated any facts to support its claim of over breadth. Request for Production No. 12 is limited to the University’s Santa Teresa facility, and it is limited to the time of January 2002 to present. These limitations in scope defeat the University’s general objection of over breadth.
2. The EEOC’s Request for Production No. 12 Seeks Relevant Information. As the party opposing discovery, the University bears the burden of proving that the discovery request is not relevant. See Teichgraeber v. Mem’l Union Corp., 932 F.Supp. at 1265-66. The University has not met its burden,

and the Court will resolve any doubt concerning relevance in favor of discovery.
The University argues that, although it recognizes that the rules of discovery permit broad discovery of information likely to lead to admissible evidence, the courts must interpret these rules in a realistic context of relevance. The University contends that the EEOC’s request for personal and highly sensitive employee information is beyond any realistic evaluation of what is relevant to its claims, and that the EEOC has made no attempt to establish the relevance of such information. The University objects to providing the balance of the requested information, because it contends that the EEOC has demonstrated no reason why this personal information is, as the rules of discovery require, relevant to the claims and defenses. See Fed.R.Civ.P. 26(b)(1).
The University’s objection that this request is not relevant and that the EEOC is merely on a fishing expedition is erroneous both factually and legally. The University’s interpretation of the rules of discovery is too narrow, and its reliance on immediate relevance is misplaced. The EEOC should be afforded necessary discovery to identify and locate information for witnesses who may have discoverable information relating to this case.
Relevant to the discovery issue is the EEOC’s allegation that the sexual harassment created a hostile-work environment for Grado and Pinon, and that the University subjected them to retaliation. See First Amended Complaint, ¶¶ 7-8, at 3. The Court should permit the EEOC discovery regarding the University’s employment practices at Santa Teresa from employees other than Grado and Pinon. In addition, discovery of incidents involving other employees are relevant to establishing that a generally hostile-work environment existed at Santa Teresa. See Hicks v. Gates Rubber Co., 833 F.2d 1406, 1416 (10th Cir.1987). Also, incidents involving the harassment of persons other than Grado and Pinon may be considered in determining the pervasiveness or severity of the conduct of the University’s high-ranking officials. See Nieto v. Kapoor, 268 F.3d 1208, 1218-19 (10th Cir.2001). The Court will therefore permit the EEOC liberal discovery relating to the identification and location of potential witnesses who experienced the work environment at Santa Teresa.
*6 The EEOC’s Request for Production No. 12 seeks relevant information. For the EEOC to vindicate the public interest in the prevention of discrimination, and to support its case of discrimination and retaliation on behalf of Grado and Pinon, the EEOC reasonably seeks to identify and locate employees of the University’s Santa Teresa facility who may have discoverable information.
The University’s objection is erroneous factually. The EEOC is not fishing. Rather, the EEOC is pursuing its
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congressional mandate to enforce Title VII through the pursuit of litigation, including, relevant discovery that would support its litigation. Without basic identifying information such as addresses, the EEOC cannot locate potential witnesses whom Russo identified. Further, there may be additional employees, whom Russo does know or has not identified, who either experienced or witnessed harassment, discrimination, or retaliation, and the EEOC is entitled to discovery regarding those individuals. Also, if any of the witnesses have moved since being employed at Santa Teresa, finding them without identifiers such as social security numbers and dates of birth may be significantly more difficult and expensive.
The University’s objection is also legally erroneous. Given the nature of the alleged harassment Grado and Pinon experienced, and the openly hostile environment that Russo described at the University’s Santa Teresa facility, it is reasonable for the University to assume, for discovery purposes, that every employee could have experienced or witnessed relevant incidents. Also, because the EEOC limited Request for Production No. 12 to the one facility at issue and to a relevant time period, the Court does not believe that providing this information to the EEOC would be overly burdensome to the University.
The University’s suggestion that the EEOC need only identify for the University specific employees for which it requests location information is not reasonable for several reasons. First, the EEOC’s request for production is clear and not overly burdensome. The University has not represented that providing the location and identification information for the one facility would somehow be difficult to provide. Second, the University’s suggestion is cumbersome; it would include delays in discovery, and it would permit the University’s counsel to control unnecessarily and unreasonably the EEOC’s contact with potential witnesses. If the Court adopted the University’s suggestion, every mention of an employee name in a deposition, in contacts with the charging parties, or with other witnesses, would force the EEOC to make a separate written request for disclosure of that employee’s location and identifying information. The University would then presumably exercise discretion in responding to each request. Finally, this suggested process will result in the disclosure of the mental processes of the EEOC’s attorneys. The University states that, before disclosure of the employee data to the EEOC, it would need to be convinced that the employees possess information relevant to the EEOC’s claims or to the defenses. Thus, it appears that, under the University’s suggestion, the EEOC would have to prove relevancy by revealing facts, opinions, and theories to the University’s satisfaction each time it wanted to contact a relevant witness. Also, if the EEOC is asking the University’s permission each time it wants to locate a witness, the University may inadvertently receive signals as to what witnesses or

matters the EEOC’s attorneys believe are important.
*7 The Federal Rules of Civil Procedure does not require the plaintiff to shift discretion to the defendant. The Court will not hamstring the EEOC in its efforts to identify and locate witnesses, especially where the EEOC has established that the information sought is limited in scope and is reasonably calculated to lead to relevant evidence.
The Court recognizes that it is doubtful that all of the University’s employees’ social-security numbers, home addresses, and dates of birth are relevant to the EEOC’s claims of unlawful employment practices. The Court also acknowledges that the EEOC’s request and its motion to compel are based on a theoretical possibility that some of the employees may have relevant information. The Court cannot say, however, that the possibility some employees may not have relevant information means the EEOC’s request amounts to a “fishing expedition” of the sort that the Court should not countenance.
The EEOC seeks information that will identify current or former University employees who worked at the same facility that employed Grado and Pinon. These employees may have witnessed the harassment or retaliation alleged, or they may have some information that is reasonably calculated to lead to the discovery of admissible evidence. The EEOC’s request for employee data that would assist it in identifying and locating potential witnesses is a request that seeks relevant information.
The EEOC represents that the University’s refusal to produce relevant information has delayed and interfered with the EEOC’s ability to locate potential witnesses. This delay and interference is improper. The EEOC’s request falls within the definition of relevant matters as described in rule 26. Considering the above, the Court concludes that the University’s objection based on relevance is without a sound basis in law or fact.
3. The University Should Disclose the Information that the EEOC’s Request for Production No. 12 Seeks. The University’s final objection to the EEOC’s Request for Production No. 12 is that the request seeks the private and confidential information of non-parties. The University continues to assert generally that disclosure of identifying information will adversely affect employees’ privacy interests. The University contends that the EEOC’s motion seeks the production of personal and highly sensitive data. The University argues that the EEOC’s request is one for confidential information and is therefore improper.
The University should disclose the information the EEOC seeks in Request for Production No. 12, because such may be necessary to contact potential witnesses. The
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University has failed to establish the existence of any privilege or standing by the University to raise any privilege that would preclude disclosure of the relevant identifying information the EEOC seeks. There is no privacy privilege that applies to Request for Production No. 12.
The University primarily objects to the production of addresses, social-security numbers, and dates of birth for the requested employees. The University’s contentions, however, do not specifically demonstrate how disclosure of this relevant information to the EEOC will adversely affect employees. Under the circumstances of this case, the Court finds that the EEOC’s need for the information sought in Request for Production No. 12 outweighs concerns that disclosure would include information such as social-security numbers and dates of birth for employees of the Santa Teresa facility.
*8 The University argues that the EEOC’s request is premature in light of the University’s willingness to help locate any employees once it is shown that they possess information relevant to the EEOC’s claims or defenses. The University asserts that the EEOC has failed to demonstrate that its yet unproven need to locate individuals, who may or may not have relevant information, outweighs those individuals’ legitimate privacy concerns. The University argues that, under the circumstances of this case, and given the heightened need for protection of social-security information in today’s unfortunate social climate of identity theft, there is no reasonable basis for the Court to compel the blanket production of the University’s employees’ social security numbers. Finally, the University contends that, even if the EEOC were to demonstrate that certain employees have relevant information, there is no need to provide those employees’ social-security numbers absent a direct showing of need for that sensitive information.
The Court sees no need to adopt the cumbersome procedure the University proposes for the EEOC’s discovery. A confidentiality order, routine in many cases, can serve privacy needs just as well, without allowing the University to have a monopoly over witness information. There is a reasonable basis for the Court to compel production of social-security numbers for all of the employees, as the EEOC requests in its Request for

Production No. 12. The information is reasonably likely to lead to the discovery of admissible evidence. The EEOC has made a showing that the evidence cannot be attained through less intrusive means, and the University’s alternative has the potential for numerous disputes that eventually may result in the same information being produced.
Concerns about the confidentiality or privacy interests of the employees to be identified are less compelling than they might otherwise be, because Request for Production No. 12 is not seeking all of the personnel files of these employees. Rather, at this juncture, the EEOC requests only addresses, social-security numbers, and dates of birth so that it may identify and locate potential witnesses to the alleged harassment, discrimination, and retaliation at the Santa Teresa facility. Under these circumstances, the Court will order the University to disclose the requested information to the EEOC in accordance with a two-step process. The Court will order the University to provide the addresses of all the employees who worked at the Santa Teresa facility from 2002 forward. For those employees whose addresses are unavailable, the University must produce their social-security numbers and dates of birth. If the EEOC finds that an employee no longer resides at the address it is given, it should notify the University, at which point the University must provide that employee’s social-security number and birth date.
The Court does not minimize the intrusion that discovery may have on third parties. On the other hand, social-security numbers, birth dates, and addresses are widely available. Some information is available in telephone books in every office; some is available on the Internet. While the Court should be careful that litigants do not go too far in their quest for evidence, this information does not seem so confidential and private that the Court should not, with the possible protection of a confidentiality order, require its production.
*9 IT IS ORDERED that Plaintiff EEOC’s Motion to Compel is granted in part and denied in part. Discovery shall proceed in accordance with the two-step process described herein.
	  

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U.S. District Court District of New Mexico - Version 3.0 (Albuquerque) CIVIL DOCKET FOR CASE #: 1:05-cv-01048-JB-WPL

EEOC v. Univ of Phoenix Assigned to: District Judge James O. Browning Referred to: Magistrate Judge William P Lynch Demand: $0 Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 09/30/2005 Date Terminated: 08/20/2007 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

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

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

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

Loretta F Medina EEOC 505 Marquette, NW #900 Albuquerque, NM 87102

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V. Defendant University of Phoenix, Inc.
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(505) 248-5230 Fax: (505) 248-5217 Email: loretta.medina@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Jo O'Neill EEOC Phoenix District Office 3300 North Central Avenue #690 Phoenix, AZ 85012-2504 (602) 640-5000 Fax: (602) 640-5009 Email: mary.oneill@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Veronica A Molina Equal Employment Opportunity Commission Legal Unit 505 Marquette N.W., Suite 900 Albuquerque, NM 87102 (505) 248-5231 Fax: (505) 248-5217 Email: veronica.molina@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James D. Kilroy Snell & Wilmer LLP 1200 17th St #1900 Denver, CO 80202 303-634-2000 Fax: 303-634-2020 Email: jkilroy@swlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
James K Mackie Email: jim.mackie@odnss.com TERMINATED: 08/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Kristen Mix Snell & Wilmer LLP 1200 17th St #1900 Denver, CO 80202 Email: kmix@swlaw.com TERMINATED: 08/03/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Drew Mitchell Matthew Mitchell, PC 1050 E. Ray Road Suite A5-303 Chandler, AZ 85225 (602) 403-6976 Email: mdm@mattmitchelllaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stanley K. Kotovsky, Jr. Tinnin Law Firm, a professional corporation 500 Marquette N.W. Suite 1300 Albuquerque, NM 87102 (505) 768-1500 Fax: (505) 768-1529 Email: skotovsky@tinninlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
William R Hayden Snell & Wilmer 400 E Van Buren One Arizona Center Phoenix, AZ 85004-0001 (602) 382-6000 Fax: 382-6070 Email: bhayden@swlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christy Joseph 600 Anton Blvd. Suite 1400 Costa Mesa, CA 92626 714-427-7000
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Intervenor Lorena Pinon TERMINATED: 07/14/2006
Intervenor Loretta Grado
ThirdParty Plaintiff Loretta Grado
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Email: cjoseph@swlaw.com ATTORNEY TO BE NOTICED
represented by Joleen K. Youngers PO Box 7256 Las Cruces, NM 88006 505-541-8000 Fax: 505-541-9000 Email: jyoungers@zianet.com TERMINATED: 07/14/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Glenn Schlactus Relman & Associates, PLLC 1225 19th St. NW Ste. 600 Washington, DC 20036 202-728-1888 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Myrna Perez Relman & Associates PLLC 1225 19th Street NW Suite 600 Washington, DC 20036 202-728-1888 Fax: 202-728-0848 TERMINATED: 05/11/2007 LEAD ATTORNEY
Reed Neill Colfax 7 Upper Pond Rd Santa Fe, NM 87505 (505) 983-1601 Email: rcolfax@relmanlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Myrna Perez (See above for address) TERMINATED: 05/11/2007 LEAD ATTORNEY
Reed Neill Colfax
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(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/30/2005
10/05/2005 10/06/2005 10/12/2005 11/16/2005 12/05/2005 12/05/2005 12/20/2005
01/11/2006 01/13/2006
01/13/2006 01/18/2006
01/19/2006 01/26/2006 01/31/2006

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Docket Text

1 COMPLAINT for Discrimination w/jury demand (counsel to submit summons at a later date) (referred to Magistrate Judge William P. Lynch) (nc) (Entered: 09/30/2005)
2 MINUTE ORDER: Case reassigned from District Judge M. Christina Armijo to District Judge James O. Browning (cc: all counsel)* (jm) (Entered: 10/05/2005)
SUMMONS issued as to defendant (bap) (Entered: 10/07/2005)
3 AMENDED COMPLAINT [1-1] by plaintiff; jury demand (jm) (Entered: 10/13/2005)
4 CERTIFICATE of service on summons, complaint and amended complaint by deft to counsel on 11/7/05 (jm) (Entered: 11/18/2005)
5 ANSWER by deft [3-1]* (jm) (Entered: 12/06/2005)
6 NOTICE by deft of corporate disclosure statement (jm) (Entered: 12/06/2005)
7 INITIAL SCHEDULING ORDER by District Judge James O. Browning Rule 16 scheduling conference set for 1/13/06 at 9:45 am; provisional discovery plan & IPTR due 1/11/06 (cc: all counsel) * (vv) (Entered: 12/20/2005)
8 PROVISIONAL DISCOVERY PLAN submitted by parties herein* (jm) (Entered: 01/11/2006)
9 CLERK'S MINUTES: before District Judge James O. Browning Rule 16 scheduling conference held 1/13/06 C/R: Danna Schutte Everett* (jm) (Entered: 01/13/2006)
10 ORDER by District Judge James O. Browning adopting attorneys' provisional discovery plan [8-1] (cc: all counsel)* (jm) (Entered: 01/13/2006)
11 INITIAL PRE-TRIAL REPORT by District Judge James O. Browning; Discovery set for 6/12/06; mtn filing ddl set for 5/12/06; proposed pretrial order due 11/3/06; pretrial conference set for 1:30 pm on 11/6/06; jury trial set for 9:00 am on 11/13/06; Estimated # of Trial Days: 7; (cc: all counsel) (jm) (Entered: 01/18/2006)
12 CERTIFICATE by pltf of Service of 1st request for production of documents & 1st set of interrog(s) to counsel on 01/18/06 (nc) (Entered: 01/19/2006)
13 ORDER setting settlement conference by Magistrate Judge William P. Lynch on 4/26/06 @ 1:30 pm (cc: all counsel)* (jm) (Entered: 01/26/2006)
14 MOTION by intervenor Lorena Pinon to intervene (yc) (Entered: 02/01/2006)

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02/02/2006 02/02/2006 02/06/2006 02/13/2006 02/22/2006 02/22/2006 02/27/2006 03/08/2006 03/13/2006 03/14/2006 03/15/2006 03/15/2006 03/15/2006 03/15/2006 03/16/2006
03/20/2006 03/20/2006
03/21/2006

15 CERTIFICATE of service on Rule 26 Initial disclosures by deft to counsel on 2/2/06* (jm) (Entered: 02/02/2006)
16 CERTIFICATE of Service by plaintiff of initial disclosures, mailed to counsel on 2/2/06 (bap) (Entered: 02/03/2006)
17 ORDER by District Judge James O. Browning granting Pinon's mtn to intervene [14-1] (cc: all counsel) (jm) (Entered: 02/06/2006)
18 INTERVENOR'S COMPLAINT by intervenor Lorena Pinon (yc) (Entered: 02/13/2006)
19 MOTION by Intervenor Loretta Grado to intervene * (jm) Modified on 03/01/2006 (Entered: 02/22/2006)
20 CERTIFICATE of service on discovery responses by deft to counsel on 2/22/06* (jm) (Entered: 02/22/2006)
21 CERTIFICATE by intervenor Lorena Pinon of service of her initial disclosures were hand delivered to opposing counsel on 2/27/06 (yc) (Entered: 02/27/2006)
23 RESPONSE by Loretta Grado to mtn to intervene [19-1]* (jm) Modified on 03/23/2006 (Entered: 03/14/2006)
22 CERTIFICATE of service on 1st supplemental disclosures by Lorena Pinon to counsel on 3/10/06* (jm) (Entered: 03/13/2006)
24 AMENDED CERTIFICATE of service on 1st supplemental Disclosures by Lorena Pinon to counsel on 3/14/06* (jm) (Entered: 03/14/2006)
25 UNOPPOSED MOTION by pltf EEOC for extension of time to serve mtn to compel * (jm) (Entered: 03/15/2006)
26 REPLY in support by Loretta Grado to motion to intervene [19-1]* (jm) (Entered: 03/15/2006)
27 NOTICE of completion of briefing on mtn to intervene [19-1] by Loretta Grado* (jm) (Entered: 03/15/2006)
28 ANSWER by deft to complaint of intervenor Lorena Pinon [18-1]* (jm) (Entered: 03/15/2006)
29 NOTICE of hearing before the Honorable Judge James O. Browning setting motion to intervene [19-1] @ 1:30 pm on 3/24/06 in Albuquerque, NM (cc: all counsel)* (jm) Modified on 03/17/2006 (Entered: 03/16/2006)
30 UNOPPOSED MOTION by intervenor Loretta Grado to continue hearing on motion to intervene [19-1] * (jm) (Entered: 03/20/2006)
31 ORDER by District Judge James O. Browning granting pltf's mtn for extension of time to serve mtn to compel until 4/3/06 [25-1] (cc: all counsel) (jm) (Entered: 03/20/2006)
32 ORDER by District Judge James O. Browning granting intervenor Grado's mtn to continue hearing on mtn to intervene [19-1] [30-1]; mtn hearing set for 3/28/06 @ 2:00 pm (cc: all counsel) (jm) (Entered: 03/21/2006)

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04/11/2006
04/12/2006 04/17/2006 04/18/2006 04/20/2006 04/27/2006 04/28/2006 05/04/2006 05/08/2006 05/09/2006 05/10/2006
05/12/2006
05/17/2006

33 MOTION by pltf to compel (jm) (Entered: 04/04/2006)
34 MEMORANDUM by pltf in support of mtn to compel [33-1] (jm) (Entered: 04/04/2006)
35 ORDER by District Judge James O. Browning extending expert deadlines as further described herein (cc: all counsel) (jm) (Entered: 04/05/2006)
36 UNOPPOSED MOTION by intervenor Loretta Grado for attorney Myrna Perez to appear pro hac vice * (jm) (Entered: 04/05/2006)
37 CERTIFICATE of service on supplemental response to 1st set of interrogs by deft to counsel on 4/5/06* (jm) (Entered: 04/05/2006)
38 CLERK'S MINUTES: held 3/28/06 before District Judge James O. Browning granting mtn to intervene [19-1] C/R: Danna Schutte Everett* (jm) (Entered: 04/07/2006)
39 ORDER by District Judge James O. Browning granting intervenor's mtn for attorney Myrna Perez to appear pro hac vice [36-1] (cc: all counsel)* (jm) (Entered: 04/11/2006)
40 CERTIFICATE of service on 1st supplemental Rule 26 Disclosure Statement by deft to counsel on 4/12/06* (jm) (Entered: 04/12/2006)
41 CERTIFICATE of service of Rule 26 Disclosures by intervenor Loretta Grado to counsel on 4/14/06* (jm) (Entered: 04/17/2006)
42 ANSWER to complaint of intervenor by deft [18-1]* (jm) (Entered: 04/19/2006)
43 RESPONSE by deft to mtn to compel [33-1]* (jm) (Entered: 04/21/2006)
44 CLERK'S MINUTES: settlement conference held 4/26/06 before Magistrate Judge William P. Lynch; case did not settle* (jm) (Entered: 04/28/2006)
45 CERTIFICATE of service on 1st request for production of documents by intervenor Lorena Pinon* (jm) (Entered: 04/28/2006)
46 REPLY by plaintiff to response to motion to compel [33-1] (vv) (Entered: 05/05/2006)
47 NOTICE by plaintiff of completion of briefing of motion to compel [33-1] (sl) (Entered: 05/08/2006)
48 NOTICE by deft of Service of discovery documents, mailed to counsel on 5/9/06 (*) (bap) (Entered: 05/10/2006)
49 MEMORANDUM, OPINION, AND ORDER: by District Judge James O. Browning granting Loretta Grado's motion to intervene [19-1] (cc: all counsel) (sl) (Entered: 05/10/2006)
50 CERTIFICATE by plaintiff of service of first request for admissions & second request for production of documents & interrogatories to counsel on 5/11/06* (dmw) (Entered: 05/12/2006)
51 NOTICE of unavailability by attorney for intervenor Lorena Pinon 6/7/06-6/16/06 and 7/6/06-7/10/06* (jm) (Entered: 05/17/2006)

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07/05/2006 07/10/2006 07/11/2006 07/11/2006 07/14/2006
07/19/2006 08/01/2006
08/04/2006 08/04/2006 08/04/2006 08/04/2006 08/07/2006
08/07/2006

52 THIRD-PARTY COMPLAINT by intervenor Loretta Grado* (jm) (Entered: 05/26/2006)
53 CERTIFICATE of service on 1st supplemental initial disclosures by pltf EEOC to counsel on 5/31/06* (jm) (Entered: 05/31/2006)
54 CERTIFICATE of service on response to intervenor Grado's 1st request for production by deft to counsel on 6/5/06* (jm) (Entered: 06/06/2006)
55 CERTIFICATE of Service by deft on 2nd Supplemental Rule 26 Disclosure Statement to counsel on 6/12/06* (pr) (Entered: 06/13/2006)
56 CERTIFICATE of service on responses to deft's document request and responses to deft's non-uniform interrogs by intervenor Loretta Grado to counsel on 6/14/06* (jm) (Entered: 06/14/2006)
57 ANSWER by defendant [52-1] * (jrm) (Entered: 07/06/2006)
58 NOTICE of continued deposition of Christine Springfield by deft University of Phoenix* (jm) (Entered: 07/11/2006)
59 NOTICE of unavailability by counsel for pltf EEOC 7/24/06-8/4/06* (jm) (Entered: 07/11/2006)
60 CERTIFICATE of service on Discovery Documents by deft University of Phoenix to counsel on 7/11/06* (jm) (Entered: 07/12/2006)
61 CONSENT JUDGMENT by District Judge James O. Browning dismissing party Lorena Pinon as further discribed herein (cc: all counsel) (jm) (Entered: 07/14/2006)
62 MOTION and memorandum by Loretta Grado to compel the depositions of Darren Adamson and Debra Baldwin * (jm) (Entered: 07/19/2006)
63 SUBSTITUTION OF COUNSEL terminating attorney James K Mackie for University of Phoenix and substituting attorney Kristen L Mix* (jm) (Entered: 08/02/2006)
64 MOTION by deft for summary judgment * (jm) (Entered: 08/04/2006)
65 (BRIEF) SEPERATE STATEMENT OF FACTS FILED by deft re: mtn for summary judgment [64-1]* (jm) (Entered: 08/04/2006)
66 MOTION by Loretta Grado for partial summary judgment * (jm) (Entered: 08/04/2006)
67 MEMORANDUM by Loretta Grado in support of mtn for partial summary judgment [66-1]* (jm) (Entered: 08/07/2006)
68 CERTIFICATE of service on motion and memorandum in support for partial sum/jgm and statement of undisputed facts by Loretta Grado to counsel on 8/4/06* (jm) (Entered: 08/07/2006)
69 RESPONSE by University of Phoenix to mtn to compel the depositions of Darren Adamson and Debra Baldwin [62-1]* (jm) (Entered: 08/08/2006)

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08/10/2006 08/11/2006 08/15/2006
08/16/2006 08/16/2006
08/16/2006 08/17/2006 08/22/2006 08/25/2006
08/28/2006
08/28/2006 08/28/2006 08/28/2006 08/28/2006 08/28/2006 08/28/2006 08/28/2006 08/29/2006

70 CONSENT MOTION by Loretta Grado for leave to file corrected exhibits in support of mtn for partial sum/jgm * (jm) (Entered: 08/10/2006)
71 JOINT MOTION to extend time to respond to motions for sum/jgm * (jm) (Entered: 08/11/2006)
72 ORDER by District Judge James O. Browning granting joint mtn to extend time to respond to motions for sum/jgm until 8/28/06 [71-1] (cc: all counsel) (jm) (Entered: 08/15/2006)
73 STIPULATION OF DISMISSAL with prejudice as to party Lorena Pinon* (jm) (Entered: 08/16/2006)
74 ORDER by District Judge James O. Browning granting Loretta Grado's mtn for leave to file corrected exhibits in support of mtn for partial sum/jgm [70-1] (cc: all counsel) (jm) (Entered: 08/16/2006)
75 CERTIFICATE of service on 4th Supplemental Rule 26 Disclosure statement by deft to counsel on 8/16/06* (jm) (Entered: 08/16/2006)
76 REPLY in support by Loretta Grado of mtn to compel the depositions of Darren Adamson and Debra Baldwin [62-1]* (jm) (Entered: 08/18/2006)
77 NOTICE of completion of briefing of motion to compel depositions [62-1] by intervenor Loretta Grado* (dmw) (Entered: 08/22/2006)
78 MOTION by Loretta Grado for leave to exceed page limits for pltfs' memorandum in response to mtn for sum/jgm and supporting exhibits * (jm) (Entered: 08/28/2006)
79 RESPONSE by deft to mtn for leave to exceed page limits for pltfs' memorandum in response to mtn for sum/jgm and supporting exhibits [78-1]* (jm) (Entered: 08/28/2006)
80 RESPONSE in opposition by deft to mtn for partial sum/jgm [66-1]* (jm) (Entered: 08/29/2006)
81 RESPONSE by deft to memorandum in support of mtn for partial sum/jgm [67-1]* (jm) (Entered: 08/29/2006)
84 STATEMENT OF FACTS by pltf EEOC in support of motion response [82-1] (jm) (Entered: 08/29/2006)
85 RESPONSE by pltf to mtn for sum/jgm [64-1] (jm) (Entered: 08/29/2006)
86 (EXHIBITS) 1ST APPENDIX filed by Loretta Grado re declaration [83-1]* (jm) (Entered: 08/29/2006)
87 (EXHIBITS) 2ND APPENDIX filed by Loretta Grado re declaration [83-1]* (jm) (Entered: 08/29/2006)
88 (EXHIBITS) 3RD APPENDIX filed by Loretta Grado re declaration [83-1]* (jm) (Entered: 08/29/2006)
82 RESPONSE by Loretta Grado to mtn for summary judgment [64-1]* (jm) (Entered: 08/29/2006)

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08/29/2006 08/30/2006 08/30/2006 09/06/2006 09/11/2006 09/14/2006 09/14/2006 09/14/2006
09/14/2006 09/14/2006 09/15/2006 09/18/2006 09/23/2006 09/28/2006 09/28/2006 09/28/2006

83 DECLARATION of Myrna Perez in support by Loretta Grado re motion response [82-1]* (jm) (Entered: 08/29/2006)
89 REPLY in support by Loretta Grado to mtn for leave to exceed page limits for pltfs' memorandum in response to mtn for sum/jgm and supporting exhibits [78-1]* (jm) (Entered: 08/30/2006)
90 NOTICE of completion of briefing on mtn for leave to exceed page limits [78-1] by Loretta Grado* (jm) (Entered: 08/30/2006)
91 REPLY by pltf EEOC in support to mtn for leave to exceed page limits for pltfs' memorandum in response to mtn for sum/jgm and supporting exhibits [78-1] (jm) (Entered: 09/07/2006)
92 MOTION by deft University of Phoenix for order allowing the filing of sur-reply and affidavit re mtn to compel depositions of Darren Adamson and Debra Baldwin * (jm) Modified on 12/27/2006 (Entered: 09/11/2006)
93 MEMORANDUM, OPINION, AND ORDER: by Chief Magistrate Lorenzo F. Garcia denying pltf's mtn to compel the depositions of Darren Adamson and Debra Baldwin [62-1] (cc: all counsel)* (jm) (Entered: 09/14/2006)
94 ORDER by Chief Magistrate Lorenzo F. Garcia granting and denying in part pltf's mtn for leave to exceed page limits and striking response and exhibits [78-1] (cc: all counsel)* (jm) (Entered: 09/14/2006)
95 ORDER by Chief Magistrate Lorenzo F. Garcia denying as moot deft's mtn for order allowing the filing of sur-reply and affidavit re mtn to compel depositions of Darren Adamson and Debra Baldwin [92-1] (cc: all counsel)* (jm) (Entered: 09/14/2006)
96 REPLY in support by Loretta Grado to mtn for partial summary judgment [66-1]* (jm) (Entered: 09/15/2006)
97 NOTICE re briefing schedule by deft* (jm) (Entered: 09/15/2006)
98 NOTICE of completion of briefing of mtn for partial sum/jgm [66-1] by Loretta Grado* (jm) Modified on 09/27/2006 (Entered: 09/15/2006)
99 NOTICE of hearing before District Judge Browning on the pending motions [66-1], [64-1] @ 2:00 PM on 10/31/06 in Albuquerque (cc: all counsel*) (jrm) (Entered: 09/19/2006)
100 LETTER from Reed Colfax re briefs to be re-filed or filed (jm) (Entered: 09/26/2006)
101 RESPONSE in opposition by Loretta Grado to mtn for summary judgment [64-1]* (jm) (Entered: 09/28/2006)
102 NOTICE by Loretta Grado of filing of statement of disputed facts in support of pltf grado's opposition to deft's mtn for sum/jgm* (jm) (Entered: 09/28/2006)
103 REVISED RESPONSE by pltf to mtn for summary judgment [64-1]* (jm) (Entered: 09/29/2006)

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10/25/2006 10/26/2006 10/31/2006
11/09/2006
11/09/2006
11/14/2006 12/01/2006 01/18/2007 01/23/2007

104 MOTION by Loretta Grado for order re: objections to Magistrate's order on mtn to compel [93-1] * (jm) (Entered: 10/03/2006)
105 APPENDIX of joint list of exhibits filed by Loretta Grado & EEOC in support of responses to mtn for partial summary judgment [66-1] (jm) (Entered: 10/06/2006)
106 REPLY by deft in support to motion for summary judgment [64-1]* (jm) (Entered: 10/12/2006)
107 NOTICE of completion of briefing on mtn for sum/jgm [64-1] by deft* (jm) (Entered: 10/13/2006)
108 UNOPPOSED MOTION by Loretta Grado for attorney Glen Schlactus to appear pro hac vice * (jm) (Entered: 10/16/2006)
109 JOINT MOTION by Loretta Grado & EEOC for leave to take the deposition of Randy Lichtenfeld * (jm) (Entered: 10/17/2006)
110 MEMORANDUM by Loretta Grado & EEOC in support of mtn for leave to take the deposition of Randy Lichtenfeld [109-1] (jm) (Entered: 10/17/2006)
111 ORDER by District Judge James O. Browning granting Grado's mtn for attorney Glen Schlactus to appear pro hac vice [108-1] (cc: all counsel) (jm) (Entered: 10/20/2006)
112 MOTION by Lorena Pinon, EEOC to continue trial (jm) (Entered: 10/25/2006)
113 RESPONSE by defendant to motion for leave to take the deposition of Randy Lichtenfeld [109-1]* (dmw) (Entered: 10/27/2006)
114 CLERK'S MINUTES before District Judge James O. Browning granting and denying in part pltf's mtn to compel [33-1] 5/5/06 letter from Parties re: Discovery Dispute C/R: Danna Schutte Everett* (jm) (Entered: 11/01/2006)
115 CLERK'S MINUTES before District Judge James O. Browning granting joint mtn for leave to take the deposition of Randy Lichtenfeld [109-1], pltf's mtn for partial sum/jgm is taken under advisement and inclined to grant and deny in part deft's mtn for sum/jgm [64-1] C/R: Danna Everett* (jm) (Entered: 11/09/2006)
116 ORDER by District Judge James O. Browning granting joint mtn to continue trial [112-1] Pretrial conference set for 4/9/07 @ 1:30; Jury trial on 4/23/07 @ 9:00 am (cc: all counsel) (jm) (Entered: 11/09/2006)
117 RESPONSE by deft to mtn for order re: objections to Magistrate's order on mtn to compel [93-1] [104-1]* (jm) (Entered: 11/15/2006)
118 REPLY in support by Loretta Grado re objections to Magistrate's Order on mtn to compel [104-1]* (jm) Modified on 12/07/2006 (Entered: 12/04/2006)
119 MOTION to Substitute Attorney by University of Phoenix, Inc.. (Mix, Kristen) (Entered: 01/18/2007)
120 APPENDIX/SUPPLEMENT re 119 MOTION to Substitute Attorney Exhibits A and B not previously filed by University of Phoenix, Inc.. (Attachments: # 1 Exhibit B)(Mix, Kristen) (Entered: 01/23/2007)

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04/06/2007 04/10/2007 04/10/2007 04/10/2007 04/11/2007
04/18/2007
04/20/2007 04/23/2007
04/23/2007 05/11/2007

121 ORDER by Judge James O. Browning granting 119 Deft's Motion to Substitute Attorney. Added attorneys Kristen Mix and James D. Kilroy for University of Phoenix, Inc.. Attorney Matthew Mitchell terminated (jrm) (Entered: 03/09/2007)
122 Mail Returned as Undeliverable. Mail sent to James D. Kilroy (jm) (Entered: 04/02/2007)
123 NOTICE of Appearance by Matthew Drew Mitchell on behalf of University of Phoenix, Inc. (Mitchell, Matthew) (Entered: 04/04/2007)
124 MINUTE ORDER vacating, pursuant to counsel's agreement, the Pretrial Conference scheduled on 4/9/2007 at 01:30 PM and rescheduling on 4/12/2007 at 03:30 PM in Albuquerque - 460 Vermejo Courtroom before District Judge James O. Browning. THIS IS A TEXT ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (ks) (Entered: 04/06/2007)
125 Proposed Pretrial Order by Equal Employment Opportunity Commission, University of Phoenix, Inc., Loretta Grado. (Mix, Kristen) (Entered: 04/06/2007)
126 Mail Returned as Undeliverable. Mail sent to James D. Kilroy (jm) (Entered: 04/10/2007)
127 MEMORANDUM OPINION AND ORDER granting in part and denying in part Plaintiff EEOC's Motion to Compel 33 by District Judge James O. Browning. (jf) (Entered: 04/10/2007)
128 ORDER granting Plaintiff's Joint Motion for Leave to Take the Deposition of Randy Lichtenfeld 109 by District Judge James O. Browning. (jf) (Entered: 04/10/2007)
129 ORDER denying the request to depose Darren Adamson and Debra Baldwin contained within Plaintiff Grado's Objections to Magistrate's Order on Plaintiff Grado's Motion to Compel 104 by District Judge James O. Browning. (jf) (Entered: 04/11/2007)
130 MEMORANDUM OPINION AND ORDER granting in part and denying in part Defendant's Motion for Summary Judgment 64 and denying Plaintiff Loretta Grado's Motion for Partial Summary Judgment 66 by District Judge James O. Browning. (jf) (Entered: 04/18/2007)
131 NOTICE OF DEFICIENCY to Kristen Mix re 125 Proposed Pretrial Order (dmw) (Entered: 04/20/2007)
132 MINUTE ORDER vacating the Jury Selection/Jury Trial scheduled on 4/23/2007 at 09:00 AM and rescheduling Jury Selection on 8/13/2007 at 09:00 AM and Jury Trial on 8/20/2007 at 09:00 AM in Albuquerque - 460 Vermejo Courtroom before District Judge James O. Browning. THIS IS A TEXT ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (ks) (Entered: 04/23/2007)
133 Clerk's Minutes from Pretrial Conference held 4/12/2007 before District Judge James O. Browning (Court Reporter Danna Everett). (ks) (Entered: 04/23/2007)
134 NOTICE by Loretta Grado of Withdrawal of Counsel Myrna Perez (Colfax, Reed) (Entered: 05/11/2007)

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07/18/2007 07/27/2007 07/27/2007 07/30/2007 07/30/2007 07/30/2007 07/30/2007
07/30/2007 07/30/2007 07/30/2007 08/03/2007 08/03/2007

135 NOTICE by Equal Employment Opportunity Commission Of Unavailability 5/25/2007-6/1/2007 and 7/20/2007-7/31/2007 (Medina, Loretta) Modified re: add dates and dockettext on 5/24/2007 (jm). (Entered: 05/21/2007)
136 ORDER granting some of the requests and denying some of the requests contained within the May 5, 2006 Joint Letter from the Parties regarding discovery disputes by District Judge James O. Browning. (jf) (Entered: 06/12/2007)
137 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission Third Supplemental Initial Disclosures (Medina, Loretta) (Entered: 07/18/2007)
138 Unopposed MOTION to Substitute Attorney by University of Phoenix, Inc.. (Kotovsky, Stanley) (Entered: 07/27/2007)
139 NOTICE of Appearance by Stanley K. Kotovsky, Jr on behalf of University of Phoenix, Inc. (Kotovsky, Stanley) (Entered: 07/27/2007)
140 MOTION in Limine to Exclude Evidence of and Reference to Defendant Net Worth by University of Phoenix, Inc.. (Attachments: # 1 Exhibit Exhibit A)(Joseph, Christy) (Entered: 07/30/2007)
141 MOTION in Limine re Breast Enhancements by Equal Employment Opportunity Commission, Loretta Grado. (Attachments: # 1 Exhibit)(Colfax, Reed) (Entered: 07/30/2007)
142 MOTION in Limine re Alleged Employment as Dancer by Equal Employment Opportunity Commission, Loretta Grado. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Colfax, Reed) (Entered: 07/30/2007)
143 MOTION in Limine to Exclude All Evidence and Reference to Claims Asserted by Former Intervenor Lorena Pinon by University of Phoenix, Inc.. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2)(Joseph, Christy) Modified text on 7/31/2007 (sl). FILED IN ERROR-WRONG EXHIBITS ATTACHED (Entered: 07/30/2007)
144 MOTION in Limine to Exclude All Evidence and Reference to Claims Asserted by Former Intervenor Lorena Pinon by University of Phoenix, Inc.. (Attachments: # 1 Exhibit 1# 2 Exhibit 2)(Joseph, Christy) (Entered: 07/30/2007)
145 MOTION in Limine to Exclude All Evidence and Reference to Internal Complaint Made by Angela Lutrell by University of Phoenix, Inc.. (Joseph, Christy) (Entered: 07/30/2007)
146 MOTION in Limine re Financial Instrument Charges by Equal Employment Opportunity Commission, Loretta Grado. (Attachments: # 1 Exhibit A)(Colfax, Reed) (Entered: 07/30/2007)
148 ORDER by Judge James O. Browning granting 138 Deft's Unopposed Motion to Substitute Attorney. Added attorney Christy Joseph for University of Phoenix, Inc.. Attorney Kristen Mix terminated (jrm) (Entered: 08/03/2007)
149 PRETRIAL ORDER by District Judge James O. Browning. (ks) (Entered: 08/03/2007)

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08/06/2007 08/06/2007 08/06/2007 08/06/2007 08/06/2007 08/09/2007
08/09/2007 08/20/2007

152 Exhibit List (Defendant's List of Trial Exhibits) by University of Phoenix, Inc... (Attachments: # 1 Exhibit A)(Joseph, Christy) (Entered: 08/06/2007)
153 NOTICE of motion hearing scheduled on 8/13/2007 at 01:30 PM in Albuquerque - 460 Vermejo Courtroom before District Judge James O. Browning regarding the following motions: 1. Motion in Limine to Exclude Evidence of and Reference to Defendant's Net Worth 140 & 143; 2. Plaintiffs' Joint Motion in Limine to Exclude Evidence Concerning Breast Enhancement 141; 3. Plaintiffs' Joint Motion in Limine to Exclude All Evidence Concerning the Erroneous Allegation that Ms. Grado Was a Dancer 142; 4. Motion in Limine to Exclude All Evidence and Reference to Claims Asserted by Former Intervenor Lorena Pinon 144; 5. Motion in Limine to Exclude All Evidence and Reference to Internal Complaint Made by Angela Luttrell 145 & [147]; and 6. Plaintiffs' Joint Motion in Limine to Exclude Evidence Related to Irrelevant Criminal Charges That Did Not Result in Convictions 146. THIS IS A TEXT ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (ks) (Entered: 08/06/2007)
154 Proposed Jury Instructions by University of Phoenix, Inc.. (Joseph, Christy) (Entered: 08/06/2007)
155 Witness List by Equal Employment Opportunity Commission, Loretta Grado. (Colfax, Reed) (Entered: 08/06/2007)
156 Proposed Jury Instructions by Equal Employment Opportunity Commission, Loretta Grado. (Colfax, Reed) (Entered: 08/06/2007)
157 Proposed Voir Dire by Equal Employment Opportunity Commission, Loretta Grado. (Colfax, Reed) (Entered: 08/06/2007)
158 NOTICE by Equal Employment Opportunity Commission, University of Phoenix, Inc., Loretta Grado of Filing Joint Statement of the Case (Colfax, Reed) (Entered: 08/06/2007)
159 MINUTE ORDER vacating, pursuant to the notification by the parties that this matter has settled, the Jury Selection scheduled on 8/13/2007 at 09:00 AM and the Jury Trial scheduled to commence on 8/20/2007. THIS IS A TEXT ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (ks) (Entered: 08/09/2007)
160 MINUTE ORDER vacating, pursuant to the notification of the parties that this matter has settled, the motion hearing scheduled on 8/13/2007 at 01:30 PM. THIS IS A TEXT ONLY ENTRY. THERE ARE NO DOCUMENTS ATTACHED. (ks) (Entered: 08/09/2007)
161 AMENDED CONSENT DECREE pertaining to charging party Lorena Pinon & Loretta Grado, as further described herein by Judge James O. Browning (dmw) (Entered: 08/24/2007)

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