'---U-.S-.D~IS~TR~IC~T~ CO~V~ RT~--~ - NORTHERNDISTRICT OF TEXAS
FILED

IN THE UNITED STATES DISTRICT OURT FOR THE NORTHERN DISTRICT OF EXAS

SEP I 7 2001

DALLAS DIVISION

CLERK, u.s. DISTRICT COURT B1 ____ _ ~~ _____

EQUAL EMPLOYMENT OPPORTUNITY }

Deputy

COMMISSION,

}

}

CIVIL ACTION NO.

Plaintiff,

}

}

v.

}

}

KASPAR WIRE WORKS Inc. a/k/a KASPAR }

RANCH HAND, Inc.

}

}

Defendant.

}

SOl - C VI 8 ::l R - G
COMPLAINT
(JURY DEMANDED)

--------------------------------}

NATURE OF THE ACTION This is an action under Title VII of the Civil Rights Act of 1964 to correct unlawful employment practices and to make whole Charging Party, Tommy Patino. The Commission alleges that the Defendant, Kaspar Wire Works, Inc.la/k/a/ Kaspar Ranch Hand, Inc. (hereafter "Kaspar"), violated Title VII of the Civil Rights Act of 1964, as amended, by failing to promote Mr. Patino to the position of Assistant Manager because of his national origin (Hispanic).
JURISDICTION AND VENUE 1. Jurisdiction ofthis Court is invoked pursuant to 28 U.S.C. Sections 451, 1331, 1337, 1343, and 1345. This action is authorized and instituted pursuant to Sections 706(f)(1) and(3) of Title VII of the Civil Rights Act of 1964, as amended, ("Title VIlli), 42 U.S.C. Sections 2000e5(f)(1) and (3), and Section 102 of the Civil Rights Act of 1991,42 U.S.C. 1981a. 2. The employment practices alleged to be unlawful were committed within the

COMPLAINT

1

jurisdiction of the United States District Court for the Northern District of Texas.

PARTIES 3. Plaintiff, Equal Employment Opportunity Commission (the "Commission"), is an agency of the United States of America charged with the administration, interpretation and enforcement of Title VII and is expressly authorized to bring this action by Section 706(a) of Title VII, 42 U.S.C. Section 2000e-S(a). 4. At all relevant times, Defendant, Kaspar, has continuously been and is now doing business in the State of Texas, and has continuously had at least fifteen employees. 5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. Sections 2000e-(b), (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution ofthis lawsuit, Mr. Patino filed a charge with the Commission alleging violations of Title VII by the Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. Beginning about August 2000, Defendant discriminated against Mr. Patino III violation of Section 703(a) of Title VII, 42 U.S.C. Section 2000e-2. Specifically, Defendant failed to promote Mr. Patino to Assistant Manager because of his national origin (Hispanic). 8. The effect of the practices complained of above has been to deprive Mr. Patino of equal employment opportunities because of his national origin (Hispanic). 9. The unlawful employment practices complained of in paragraph 7, above, were

COMPLAINT

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intentional. 10. The unlawful employment practices complained ofin paragraph 7, above, were done
with malice or reckless indifference to the federally protected rights ofMr. Patino. PRAYER FOR RELIEF
Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining the Defendant, Kaspar, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in any employment practice which discriminates in violation of Title VII and, specifically, from failing to promote its employees to management positions because oftheir national origin in violation ofTitle VII. B. Order the Defendant to institute and carry out policies, practices, and programs which provide equal employment opportunities for Mr. Patino, and which eradicate the effects of its past and present unlawful employment practices. C. Order the Defendant to make whole Mr. Patino by providing appropriate back pay with prejudgment interest in amounts to be proved at trial, and other affirmative relief necessary to eradicate the effects of unlawful employment practices, including but not limited to promotion of Mr. Patino to Assistant Manager. D. Order the Defendant to make whole Mr. Patino by providing compensation for past and future non-pecuniary losses resulting from the unlawful practices complained of in paragraph 7 above, including but not limited to, pain and suffering, humiliation, embarrassment, emotional distress, anxiety and loss of enjoyment of life, in amounts to be determined at trial. E. Order the Defendant to make whole Mr. Patino, by providing compensation for past

COMPLAINT

3

and future pecuniary losses resulting from the unlawful practices complained of in paragraphs 7 ,
above, in amounts to be determined at trial.
F. Order the Defendant to pay punitive damages for its malicious or reckless conduct
described in paragraph 7, above, in amounts to be determined at trial.
G. Grant such further relief as the Court deems necessary and proper.
H. Award the Commission its costs in this action.
JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by the complaint.
Respectfully submitted,
NICHOLAS M. INZEO Acting Deputy General Counsel
~w.~
TOBY . COSTAS Acting Regional Attorney Texas State Bar No. 04855720

COMPLAINT

SUZANNE M. ANDERSON Supervisory Trial Attorney Texas Bar No. 14009470
~
KERI L. MALLON Trial Attorney Colorado Bar No. 27392
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Dallas District Office 207 South Houston, 3rd Floor Dallas, Texas 75202 (214) 655-3332 (214) 655-3331 (FAX)
4

CERTIFICATE OF SERVICE

I certify that a true copy of the foregoing has been served on all counsel of record for the

f l Stpf- Defendant at the address below via United States first class mail, postage prepaid, on this the

day of

,2001.

Mario A. Barrera BRACEWELL &PATTERSON, L.L.P. 800 One Alamo Center 106 S. St. Mary's Street San Antonio, Texas 78205-3603

Keri L. Mallon

COMPLAINT

5

 
 IN THE UNITED STATES DISTRIC1_~ausa: - " .. -~ ~':-~T~XAS

r"""'- .'''''/ ---, I FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

§

I

MAR-32003

OPPORTUNITY COMMISSION

§

§

Plaintiff,

§

§

I,I c:

:

I~y - - .. : .... ~-.______

I

L..

----. ----------..1I

v.

§

CAUSE NO. 3:01-CV-1838-K

§

KASPAR WIRE WORI(S, INC. a/k/a §

KASPAR RANCH HAND, INC.

§

§

Defendant

§

MEMORANDUM OPINION AND ORDER Before the Court are Defendant Kaspar Wire Works, Inc.'s motion for summary judgment, Plaintiff Equal Employment Opportunity Commission's ("EEOC") motion for partial summary judgment, and the EEOC's unopposed motion to amend its pleadings to add additional parties. For the reasons stated below, the Court GRANTS Kaspar Wire Works, Inc.'s motion for summary judgment and DENIES AS MOOT the EEOC's motion for partial summary judgment and motion for leave to amend to add additional parties.

I. Factual and Procedural History This is an employment discrimination case brought by the EEOC on behalf of
Tommy Patino, alleging national origin discrimination in violation of Title VII of the
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Civil Rights Act of 1964. The EEOC claims that Patino, who was the warehouse manager for Kaspar Ranch Hand, LLP ("Ranch Hand"), was passed over for a promotion to assistant store manager at the Dallas location, and that the position was filled with a Caucasian man named Marc Madison. The EEOC's suit arises from comments allegedly made by Ranch Hand's District Manager, Kevin Miles, who was in charge of hiring the assistant store manager for the Dallas store. Louis Coby, manager of Ranch Hand's Dallas store, testified that Miles said Patino did not get the job because "being Hispanic, his English was not very well, and his people skills is not good." Coby also testified that Miles said Patino would receive a dollar-per-hour raise to "shut him up." Finally, Coby testified that Miles told Patino he did not get the promotion because "he was very important in the back, that we need his position covered as warehouse manager, and he was more valuable in the warehouse manager position." Approximately one year after he was passed over, Patino was given the assistant manager's position, but quit after one month on the job.
For reasons that are not clear from the record, the EEOC did not sue Ranch Hand. Instead, the EEOC sued Kaspar Wire Works, Inc., which is a related but wholly separate entity, alleging that Kaspar Wire Works is also known as Kaspar Ranch Hand, Inc., and that the entities should be treated as one employer for purposes of Title VII. The obvious problem with the EEOC's complaint is that Patino did not work for Kaspar Ranch Hand, Inc., either; he worked for Kaspar Ranch Hand, LLP. Therefore, the EEOC
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moved for leave to add Ranch Hand as a defendant, but contends that Kaspar Wire Works should remain a party. Kaspar Wire Works does not oppose the addition of Ranch Hand, but argues that Kaspar Wire Works and Kaspar Ranch Hand, Inc., should be dismissed.
In its motion for summary judgment, Kaspar Wire Works argues that even if the EEOC sued the right entity, it has failed to produce sufficient evidence to create a legitimate issue on whether Patino was a victim of intentional discrimination. Kaspar Wire Works contends that Miles' alleged statements are not evidence of any discriminatory animus because, at most, they suggest that Miles knew Patino was Hispanic and that Patino lacked the skills necessary for the position. Kaspar Wire Works insists that Patino was not promoted because the assistant manager position was created to improve the Dallas store's performance through the addition of an employee with experience in retail sales, marketing, and customer service, and that Patino's resume does not reflect that he had experience in these areas. Kaspar Wire Works points out that at the time Madison was hired, Patino's primary experience was as a welder and fabricator, and that he had only one year experience managing Ranch Hand's warehouse.
Kaspar Wire Works also asserts that Madison was substantially more qualified at the time for the assistant manager's position than Patino. Madison had more than a decade of management, retail sales, and marketing experience. Moreover, Ranch Hand is in the aftermarket automotive accessories industry, and Madison managed sales and
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marketing for companies in the aftermarket automotive industry for seven years immediately before he applied for the assistant manager's position. Finally, Madison had experience managing his own business.
The EE OC counters that no written job description existed requiring the applicants to have the skills Ranch Hand sought, and that a newspaper advertisement for the position, which also referenced other open positions, only required applicants be "professional and highly motivated." In addition, EEOC argues that Patino was qualified because he performed some of the duties later assigned to the assistant manager's position while managing Ranch Hand's warehouse, and that he helped train Madison. The EEOC asserts that this evidence is not only prima facie evidence of discrimination, but also proves that the justification given for Miles' employment decision is a pretext. As such, the EEOC insists that Kaspar Wire Works' summary judgment must be denied.
II. Standard of Review To survive Kaspar Wire Works' motion for summary judgment, the EEOC must
present sufficient evidence to create a fact issue regarding discrimination, either through direct or circumstantial evidence. "A plaintiff who can offer sufficient direct evidence of intentional discrimination should prevail, just as in any other case where a plaintiff meets his burden." Nichols v. Loral Vought Systems Corp., 81 F.3d 38,40 (yh Cir. 1996)
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(citing Portis v. First Nat'l Bank of New Albany, Miss., 34 F.3d 325, 328 n.6 (yh Cir. 1994) ). Direct evidence of discrimination, however, is rare.
Consequently, the Supreme Court devised an evidentiary procedure in McDonnell Douglas, Corp. v. Green, 411 U.S. 792,93 S. Ct. 1817 (1973), that allows a plaintiff to meet his burden of proof through circumstantial evidence. Under the McDonnell Douglas framework, a plaintiff can establish a prima faCie case of discrimination in a failure to promote case by showing (1) he is a member of a protected class; (2) he sought and was qualified for the position; (3) he was rejected for the position; and (4) the employer continued to seek applicants with the plaintiff's qualifications. Haynes v. Pennzoil Co., 207 F.3d 296, 300 (yh Cir. 2000). Establishing a prima facie case creates an inference of intentional discrimination, and "the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for its actions." ld.
If the defendant articulates a non-discriminatory reason for its employment decision, the plaintiff must then prove that the defendant's proffered explanation is a pretext. ld. Once a case reaches the pretext stage, the inference of discrimination ends, leaving only the ultimate issue of whether there is a conflict in substantial evidence sufficient to create a fact issue regarding discrimination. ld.; Long v. Eastfield College, 88 F.3d 300,308 (yh Cir. 1996) (en banc). Evidence is substantial if it is of such quality and weight that reasonable and fair minded people in the exercise of impartial judgment might reach different conclusions. Long, 88 F.3d at 308.
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III. Analysis
A. Direct Evidence of Discrimination
The first issue in this case is whether the EEOC's evidence is direct or
circumstantial. The EEOC argues that Miles' alleged statements are direct evidence of
intentional discrimination because, taken together, they leave no room for inference or
presumption. Specifically, the EEOC argues:
If Miles was not going to promote Patino truly because he had poor English and poor people skills, why not tell Patino what he was lacking so that he could work to improve in those areas. Miles never told Patino or Coby what Patino needed to do to improve his English skills. He never recommended further education or any kind of training. Further, ifhe was truly not promoted because he lacked the necessary skills, Miles would not have given Patino a dollar raise "to shut him up." In this case there is no justifiable explanation for Miles comments.
EEOC's Response and Brief in Support (sic) of Defendant's Motion for Summary
Judgment, p. 11 (citations to appendix omitted).
The EEOC misunderstands the Fifth Circuit's definition of direct evidence.
Direct evidence is "evidence, which if believed, would prove the existence of a fact (Le.
unlawful discrimination) without any inferences or presumptions." Nichols, 81 F.3d at 40-41 (yh Cir. 1996) (quoting Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 958 (5th Cir.
1993)). Essentially, the EEOC argues that the evidence here is direct, because only one
reasonable inference can be drawn when all of the facts are considered. However,
evidence is circumstantial if any inference is needed to prove the ultimate fact. As the
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excerpt above demonstrates, the conclusion urged by the EEOC requires a fact finder to infer Miles' intent based on his conduct.
Even Miles' statement regarding Patino's language and people skills is circumstantial at best. On its face, it proves only that Patino was passed over because he lacked the necessary skills. To divine any discriminatory animus would require an inference that, because Miles attributed Patino's poor English to his national origin, that Miles intentionally discriminated against Patino. Consequently, the EEOC has not presented direct evidence of discrimination.
B. Prima Facie Evidence of Discrimination Because the EEOC's case is based on circumstantial evidence, the EEOC must rely on the evidentiary procedure adopted in McDonnell Douglas. Clearly, Patino is a member of a protected class, he applied for the assistant manager's position, and was rejected. To establish a prima facie case of discrimination, however, the EEOC must also offer some proof that Patino was qualified for the position and that Ranch Hand considered other applicants with similar qualifications. Haynes, 207 F.3d at 300. The evidence presented by the EEOC on these two points is wholly insufficient. The EEOC argues that Patino was qualified because there were no written job qualifications, only the statement in the advertisement requesting "professional and highly motivated" applicants. The EEOC contends that Patino's resume and his
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performance at Ranch Hand showed that he had both of these qualifications. The EEOC also argues that Patino was informally performing the duties of assistant manager, he was never cited for poor performance, and he trained Madison for the position. Finally, the EEOC argues that Ranch Hand interviewed nine other applicants after Patino was passed over.
None of the EEOC's evidence, however, suggests that Patino had all of the skills required for the position or that Ranch Hand ever considered any other applicants with qualifications similar to Patino's. First, it is unreasonable to infer, as the EEOC suggests, that the job placement advertisement, which applied to several open positions at Ranch Hand, fully described the qualities required for the assistant manager's position. Moreover, that Patino informally performed some of the assistant manager's duties before the position was filled is not evidence that Patino had all of the qualifications Ranch Hand legitimately required. In fact, the evidence shows that Patino was not experienced in marketing, sales, or customer service.
The same is true of evidence that Patino trained Madison in some respects. One would expect a current employee to provide guidance to a new employee on how the company operates, including the operation of the warehouse. There is no evidence offered by the EEOC, however, that Patino trained Madison in the marketing, customer service, and retail sales skills Ranch Hand sought. In fact, the evidence presented establishes that Madison had vastly superior experience in these areas. While Madison
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had more than 10 years of relevant experience, Patino's primary experience was as a fabricator and welder. He had no experience in managing a retail sales establishment. Therefore, there is no support for an inference that, because Patino trained Madison in some areas, Patino had the skills required for the job.
Even more troubling, the EEOC all but ignores the final requirement in McDonnell Douglas that it prove Ranch Hand "continued to seek applicants with the plaintiffs qualifications." Haynes, 207 F.3d at 300. (emphasis added). The EEOC argues that this element is met because Miles interviewed nine applicants for the position, but offers no evidence that any of these other applicants had qualifications similar to Patino's. It is insufficient to present only evidence that an employer considered other applicants after it passed over the complainant. That evidence proves nothing, because virtually every employer that passes over one applicant will consider others. To meet its burden of proof, the EEOC had to show that Patino had qualifications similar to the nine individuals interviewed. However, no such evidence was proffered. The EEOC's failure on this count is fatal to its claims.
c. Pretext and Intentional Discrimination
The final step in the McDonnell Douglas framework requires Kaspar Wire Works to produce some evidence in support of a legitimate non-discriminatory reason for its employment decision. If Kaspar Wire Works meets its burden, the EEOC must then
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produce evidence showing the reason given is a pretext and that discrimination is the real reason for the action taken. Rubenstein v. Administrators of the Tulane Ed. Fund, 218 F.3d 392, 400 (5th Cir. 2000) (holding that the plaintiffs evidence was insufficient to support an inference that the real reason for the employment decision was discrimination). Here, Kaspar Wire Works met its burden of production by presenting evidence that Patino was passed over for the assistant manager's position because he did not have the skills required for the position, and because Madison was more qualified. The only remaining issue, therefore, is whether or not there is any evidence of discrimination. Reeves, 530 U.S. at 142-43, 120 S. Ct. at 2106. Again, the EEOC's evidence does not raise a legitimate fact question on discriminatory intent.
First, the EEOC did not present any evidence to rebut Kapar Wire Works' explanation that Patino was passed over because he was not qualified, and because Madison was more qualified. The EEOC never argues that Patino is equally or more qualified than Madison, and the resumes show that Patino's management experience pales in comparison to Madison's. Moreover, Patino's resume shows that he had very little experience relevant to the position. Patino was a welder who managed a warehouse. He was not an experienced retail manager. Moreover, no other evidence supports the EEOC's argument that Patino's national origin was the reason he was denied the position.
EEOC again relies on Miles' comments to prove that he did not select Patino
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because he is Hispanic. Remarks are sufficient evidence of discrimination if they are made by a person principally responsible for an employment decision and indicate some discriminatory animus. Russell v. McKinnry Hasp. Venture, 235 F.3d 219, 225 (yh Cir. 2000) (citing Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S. Ct. 2097
(2000)); see also Brown v. esc Logic, Inc., 82 F.3d 651 (5th Cir. 1996) (establishing a four-
part test for determining whether a comment in the workplace is sufficient evidence of discrimination) .
Here, Miles' remarks do not rise to the level of evidence of discrimination because nothing in his statements indicates discriminatory animus. To hold otherwise would be tantamount to holding that every mention of national origin sufficiently relates to a protected class to warrant an inference that the comment is evidence of discriminatory intent. This case is a prime example of how mere reference to national origin, without more, is not evidence of discrimination. As discussed above, Miles' statements support the argument that Patino was not offered the position because he lacked the necessary qualifications, in this case people skills and a command of the English language. Clearly, Patino's lack of people skills was a non-discriminatory reason for not giving him the job. It is equally legitimate for Miles to exclude Patino from consideration, if he believed Patino's English skills were insufficient to adequately perform the sales, marketing, and customer service required by the position. No dislike, hatred, or discriminatory intent was evidenced by Miles' attributing Patino's trouble with the English language to his
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predominately Spanish-speaking national origin. There is no evidence that Miles refused to consider any Hispanic person, because he assumed that all Hispanics have trouble with English. Rather, here, a particular Hispanic person, Patino, lacked the language skills necessary to manage a retail sales establishment. Therefore, the only evidence regarding Patino's national origin is innocuous.
Additionally, there is no evidence Miles' attempt to quiet Patino with a dollar-perhour raise was designed to prevent Patino from filing a discrimination claim, as the EEOC suggests. Coby testified that he believed the dollar-per-hour raise was intended to "keep Tommy from asking for the assistant manager's position" and further testified that it was not calculated "to keep his mouth shut about some dark company secret []". The only reasonable inference that can be drawn from this comment, then, is that Miles wanted to soften the blow of his employment decision. This inference is further supported by Coby's testimony that Miles told Patino that the reason he did not get the position was that he was more valuable in the warehouse manager's position, which suggests that Miles wanted to avoid any tension with Patino.
The Fifth Circuit has recently affirmed summary judgment in two similar cases that involved allegedly discriminatory comments, finding in each that the plaintiff failed
to prove discrimination. First, in Rubenstein v. Administrators ofthe Tulane Edu. Fund, 218
F.3d 392 (yh Cir. 2000), a Jewish professor who was denied tenure produced evidence that members of the responsible committee made discriminatory comments, including
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a statement by one member "that if 'the Russian Jew' could obtain tenure, then anyone could." [d. at 400. Tulane asserted that its decision was based on Rubenstein's poor student evaluations and his lack of involvement on departmental committees. The Fifth Circuit affirmed the district court's summary judgment because, although Rubenstein presented some evidence that his lack of involvement on committees was also caused by the allegedly discriminatory actors, he did not refute the evidence that he received poor student evaluations. Therefore, despite the racially-charged comments of the decision makers, the court held that Rubenstein's evidence "[was] not so persuasive so as to support an inference that the real reason was discrimination." [d.
The Fifth Circuit reached a similar conclusion in Auguster v. Vennilion Parish Sch. Bd., 249 F.3d 400 (5th Cir. 2001). There, an African-Arnerican school teacher sued the school district alleging racial discrimination after the district's superintendent refused to renew his contract. The basis of his claim was a comment made by the superintendent shortly after Augusterwas hired that the district had problems with black coaches in the past and "if there was another problem, no matter what it was, that [the superintendent] would do his best to get rid of [Auguster], from day one." [d. 401. The superintendent also told Auguster that he "had bad luck with black men working in Abbeville." [d.
The school board argued that Auguster was terminated because he had improperly used corporal punishment on a student and showed a "R" rated movie to his class.
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Again, despite the disconcerting comments, the court affirmed the district court's summary judgment, holding that Auguster failed to establish that the school board's proffered explanation for its decision was pretext for discrimination in light of the overwhelming evidence that Auguster was unfit as a teacher. Id. at 405. Consequently, the court held that, without more, the superintendent's comments did not support an inference that the real reason for the school board's refusal to renew Auguster's contract was discrimination. Id. at 405-06, 406 n.6.
In this case, the comments at issue are substantially less offensive, and the evidence supporting the defendant's justification is equally strong and unrebutted. Miles' alleged comments, even when viewed in the light most favorable to the EEOC, do not evidence any discriminatory animus at all. Moreover, it is clear that Patino was not qualified for the assistant manager's position, and that Madison was substantially more qualified. Therefore, just as in Rubenstein andAuguster, the EEOC's evidence rebutting Ranch Hand's non-discriminatory justification is not so persuasive that it supports a reasonable inference that the real reason for Miles' decision was discrimination. For these reasons, summary judgment is appropriate.
IV. Conclusion and Order For the reasons stated above, Defendant Kaspar Wire Works' motion for
summary judgment is GRANTED. In addition, the Court DENIES AS MOOT the
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EEOC's motion for partial summary judgment and its motion for leave to amend its pleadings to add additional parties. Judgment will be entered that the EEOC and Patino take nothing.

SO ORDERED.
March ~r,vd2.-003.

~
ED KINKEADE UNITED STATES DISTRICT JUDGE

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ADR, CLOSED, JURY, STICKNEY
U.S. District Court Northern District of Texas (Dallas) CIVIL DOCKET FOR CASE #: 3:01-cv-01838

Equal Employment Opp v. Kasper Wire Works Assigned to: Judge Ed Kinkeade Demand: $0 Cause: 42:2000 Job Discrimination (Race)
Plaintiff Equal Employment Opportunity Commission

Date Filed: 09/17/2001 Date Terminated: 03/05/2003 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff
represented by Toby W Costas Equal Employment Opportunity Commission Dallas District Office 207 S Houston 3rd Floor Dallas, TX 75202 214/253-2760 Fax: 214/253-2749 FAX Email: toby.costas@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Suzanne M Anderson Equal Employment Opportunity Commission Dallas District Office 207 S Houston 3rd Floor Dallas, TX 75202 214/253-2740 Fax: 214/253-2749 FAX Email: suzanne.anderson@eeoc.gov

V.

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Defendant Kaspar Wire Works Inc also known as Kaspar Ranch Hand Inc
Provider Jerome S Levy

represented by Mario A Barrera Bracewell & Giuliani - San Antonio 106 S St Mary's St Suite 800 San Antonio, TX 78205 210/299-3538 Email: mario.barrera@bracewellgiuliani.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Annalyn G Smith Bracewell & Patterson One Alamo Center 106 S St Mary's St Suite 800 San Antonio, TX 78205 210/226-1166 Email: Annalyn.Smith@bracepatt.com
Raquel G Perez Bracewell & Patterson One Alamo Center 106 S St Mary's St Suite 800 San Antonio, TX 78205 210/226-1166 Fax: 210/299-0121 FAX
represented by Jerome S Levy Law Office of Jerome S Levy 100 Crescent Court Suite 700 Dallas, TX 75201 214/459-6440 Fax: 214/459-6441 FAX Email: levymediator@aol.com PRO SE

Date Filed
09/17/2001 09/17/2001

#

Docket Text

1 COMPLAINT filed by EEOC (5) (cxj) (Entered: 09/18/2001)
1 DEMAND for jury trial by plaintiff Equal Employment Opp (cxj) (Entered: 09/18/2001)

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09/17/2001 09/17/2001 09/18/2001 10/02/2001 11/16/2001 11/16/2001 11/19/2001 11/19/2001 12/10/2001 12/12/2001
03/11/2002 03/12/2002 03/12/2002 04/03/2002 04/03/2002 04/03/2002

2 CERTIFICATE OF INTERESTED PERSONS by plaintiff Equal Employment Opp (cxj) (Entered: 09/18/2001)
PRELIMINARY ASSIGNMENT TO Magistrate Judge Paul Stickney (cxj) (Entered: 09/18/2001)
3 SUMMONS(ES) issued for defendant Kaspar Wire Works (Issued-1) (cxj) (Entered: 09/18/2001)
4 WAIVER OF SERVICE Returned Executed as to Kasper Wire Works 9/19/01 Answer due on 11/19/01 for Kasper Wire Works (1) (cxj) (Entered: 10/03/2001)
5 ANSWER to Complaint by defendant Kasper Wire Works (Attorney Mario A Barrera), (5) (cxj) (Entered: 11/19/2001)
6 CERTIFICATE OF INTERESTED PERSONS by defendant Kasper Wire Works (2) (cxj) (Entered: 11/19/2001)
7 APPLICATION AND ORDER for Raquel G Perez to appear pro hac vice ( Signed by Judge A J. Fish ) Copies to counsel: 11/20/01 Page(s) 4 (cxj) (Entered: 11/20/2001)
8 STATUS REPORT ORDER. Joint Status report due on 12/10/01 ( Signed by Judge A J. Fish ) Copies to counsel: 11/20/01 Page(s): 3 (cxj) (Entered: 11/20/2001)
9 JOINT STATUS REPORT by plaintiff Equal Employment Opp, defendant Kasper Wire Works (3) (cxj) (Entered: 12/11/2001)
10 SCHEDULING ORDER setting Docket call set for 2/3/03 ; Joining of Parties on 3/11/02 ; Amending of Pleadings on 3/11/02 ; Deadline for filing of dispositive motions 7/26/02 ; Discovery cutoff 9/30/02 ; Pretrial materials due on 1/24/03 Proposed pretrial order due 1/24/03 ; Pretrial conference for 9:00 1/31/03 ; ( Signed by Judge A J. Fish ) Copies to counsel: 12/13/01 Page(s): 11 (cxj) (Entered: 12/13/2001)
11 UNOPPOSED MOTION by defendant Kasper Wire Works for leave to amend [5-1] answer (9) (cxj) (Entered: 03/12/2002)
12 ORDER granting [11-1] motion for leave to amend [5-1] answer ( Signed by Chief Judge A J. Fish ) Copies to counsel: 03/13/02 Page(s) 1 (cxj) (Entered: 03/13/2002)
13 FIRST AMENDED ANSWER to Complaint by defendant Kasper Wire Works amends [5-1] answer (6) (cxj) (Entered: 03/13/2002)
14 MOTION with memorandum in support by plaintiff Equal Employment Opp to quash and request for expedited review (8) (cxj) (Entered: 04/04/2002)
15 RETURN OF SERVICE executed 3/25/02 by personal service as to Rush Sales Co attn Debbie Paden for subpoena (3) (cxj) (Entered: 04/04/2002)
16 RETURN OF SERVICE executed 3/26/02 by personal service as to Watco Truck Rigging attn David Watkin for subpoena (3) (cxj) (Entered: 04/04/2002)

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04/03/2002 04/05/2002 04/05/2002 04/05/2002 04/08/2002
04/09/2002 04/09/2002 04/18/2002 04/18/2002 04/26/2002 04/29/2002 05/06/2002 05/09/2002 05/20/2002 05/20/2002 05/20/2002

17 RETURN OF SERVICE executed 3/26/02 by personal service as to Standard Structures Inc attn: Cathy Muncrief for subpoena (3) (cxj) (Entered: 04/04/2002)
18 AMENDED MOTION with incorporated brief to quash and review for expedited review by plaintiff Equal Employment Opp referring to [14-1] motion to quash and request for expedited review (14) (cxj) (Entered: 04/08/2002)
19 RESPONSE by defendant Kasper Wire Works to [14-1] motion to quash and request for expedited review (8) (cxj) (Entered: 04/08/2002)
21 ORDER Motion hearing set for 9:00 4/8/02 for [18-1] amended motion to quash and review for expedited review ( Signed by Magistrate Judge Paul D. Stickney ) Copies to counsel: 04/08/02 Page(s) 1 (cxj) (Entered: 04/08/2002)
20 ORDER OF REFERENCE: [18-1] amended motion to quash and review for expedited review referred to Magistrate Judge Paul D. Stickney for a hearing if necessary and for determination ( Signed by Chief Judge A J. Fish ) Copies to counsel: 04/08/02 Page(s): 1 (cxj) (Entered: 04/08/2002)
Motion hearing re: [18-1] amended motion to quash and review for expedited review Motion hearing held, [14-1] motion to quash and request for expedited review at (cxj) (Entered: 04/10/2002)
22 Minute order: Motion hearing Held before Magistrate Judge Paul D. Stickney Court Reporter: Electronic (1) (cxj) (Entered: 04/10/2002)
23 RETURN OF SERVICE executed 4/15/02 as to Maverick Truck Accessories for subpoena (2) (cxj) (Entered: 04/19/2002)
24 NOTICE of subpoenas dueces tecum by defendant Kasper Wire Works (10) (cxj) (Entered: 04/22/2002)
25 MOTION with memorandum in support by plaintiff Equal Employment Opp to quash and request for expedited review (11)(exhibits not imaged) (jrb) (Entered: 04/29/2002)
26 ORDER OF REFERENCE: [25-1] motion to quash and request for expedited review referred to Magistrate Judge Paul D. Stickney ( Signed by Chief Judge A J. Fish ) Copies to counsel: 4/29/02 Page(s): 1 (jyg) (Entered: 04/29/2002)
27 ORDER Motion hearing set for 10:00 5/14/02 for [25-1] motion to quash and request for expedited review ( Signed by Magistrate Judge Paul D. Stickney ) Copies to counsel: 05/07/02 Page(s) 1 (cxj) (Entered: 05/07/2002)
28 RESPONSE by defendant Kasper Wire Works to [25-1] motion to quash and request for expedited review (6) (cxj) (Entered: 05/10/2002)
29 NOTICE of Corrected subpoenas duces tecum by defendant Kasper Wire Works (10) (cxj) (Entered: 05/21/2002)
30 RETURN OF SERVICE executed 5/20/02 as to Axact Technologies Inc for subpoena (3) (cxj) (Entered: 05/21/2002)
31 RETURN OF SERVICE executed 5/20/02 as to Axact Technologies for employee records as to Tommy B Patino for subpoena (3) (cxj) (Entered: 05/21/2002)

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07/10/2002 07/10/2002 07/10/2002 07/11/2002 07/16/2002 08/12/2002
09/06/2002 09/19/2002 09/25/2002

32 ORDER granting [25-1] motion to quash and request for expedited review. ( Signed by Chief Judge A J. Fish ) Copies to counsel: 6/17/02 Page(s) 1 (cxb) (Entered: 06/17/2002)
33 ORDER denying [18-1] amended motion to quash and review for expedited review ( Signed by Magistrate Judge Paul D. Stickney ) Copies to counsel: 06/24/02 Page(s) 2 (cxj) (Entered: 06/24/2002)
34 JOINT MOTION to extend time for certain pretrial deadlines and request for expedited ruling by plaintiff Equal Employment Opp, defendant Kasper Wire Works (6) (aat) (Entered: 07/05/2002)
35 APPENDIX by plaintiff Equal Employment Opp, defendant Kasper Wire Works in support of [34-1] joint motion to extend time for certain pretrial deadlines and request for expedited ruling (15+) (Not imaged) (aat) (Entered: 07/05/2002)
36 AGREED ORDER granting [34-1] joint motion to extend time for certain pretrial deadlines and request for expedited ruling Reset scheduling order deadlines: Deadline for filing of dispositive motions by 10/9/02 ( Signed by Chief Judge A J. Fish ) Copies to counsel: 07/08/02 Page(s) 3 (cxj) (Entered: 07/08/2002)
37 RETURN OF SERVICE executed 7/3/02 as to Rush Sales Company for subpoena (3) (cxj) (Entered: 07/11/2002)
38 RETURN OF SERVICE executed 7/3/02 as to Watco Truck Rigging for subpoena (3) (cxj) (Entered: 07/11/2002)
39 RETURN OF SERVICE executed 7/3/02 as to Standard Structures Inc for subpoena (3) (cxj) (Entered: 07/11/2002)
40 NOTICE of subpoenas duces tecum by defendant Kasper Wire Works (14) (cxj) (Entered: 07/12/2002)
41 ORDER referring case to ADR; Jerome S Levy ADR provider; Type of ADR: Mediation Requested by: Court ( Signed by Chief Judge A J. Fish ) Copies to counsel: 07/16/02 Page(s): 3 (cxj) (Entered: 07/16/2002)
42 ORDER REASSIGNING CASE/SPECIAL ORDER NO. 3-207 Effective 8/12/02, the cases listed on Exhibit A attached to this Order are transferred from the docket of Honorable A. Joe Fish to the docket of Honorable David C. Godbey and shall henceforth carry the suffix letter "N". The clerk of court will notify counsel by providing to each counsel a copy of this Order with attached exhibit. (Pages 2) (Signed by Chief Judge A. Joe Fish) Copies to counsel: 8/14/02 Page(s) 3 (cxb) (Entered: 08/14/2002)
43 ALTERNATIVE DISPUTE RESOLUTION SUMMARY filed by ADR Provider Jerome S Levy. Attorneys in attendance: Suzanne Anderson, Keri Mallon and Ann Smith. Prv Fee: $ 1,400. Disposition: DNS. (1) (aat) (Entered: 09/09/2002)
44 JOINT MOTION to extend the discovery deadline and the dispositive motions deadline by plaintiff Equal Employment Opp, defendant Kasper Wire Works (3) (aat) (Entered: 09/20/2002)
45 ORDER granting [44-1] joint motion to extend the discovery deadline and the dispositive motions deadline. Reset discovery due for 10/8/02. Reset dispositive

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10/21/2002 10/21/2002 10/21/2002 10/21/2002 10/21/2002 10/21/2002 10/21/2002 11/08/2002 11/08/2002 11/12/2002 11/12/2002 11/18/2002 11/19/2002
11/25/2002
11/27/2002

motion filing deadline for 10/21/02. ( Signed by Judge David C. Godbey ) Copies to counsel: 9/25/02 Page(s) 2 (aat) (Entered: 09/25/2002)
46 MOTION by defendant Kasper Wire Works for summary judgment (15) (aat) (Entered: 10/22/2002)
47 MEMORANDUM by defendant Kasper Wire Works in support of [46-1] motion for summary judgment (15+) (aat) (Entered: 10/22/2002)
48 APPENDIX by defendant Kasper Wire Works in support of [47-1] brief in support of defendant's motion for summary judgment (15+) (Not imaged) (USC) (aat) (Entered: 10/22/2002)
49 MOTION by plaintiff Equal Employment Opp for partial summary judgment (3) (aat) (Entered: 10/22/2002)
50 APPENDIX by plaintiff Equal Employment Opp in support of [49-1] motion for partial summary judgment (15+) (Not imaged) (aat) (Entered: 10/22/2002)
51 UNOPPOSED MOTION by plaintiff Equal Employment Opp to amend [1-1] complaint to add defendants (15+) (Attachments not imaged) (aat) (Entered: 10/22/2002)
52 MEMORANDUM by plaintiff Equal Employment Opp in support of [49-1] motion for partial summary judgment (12) (aat) (Entered: 10/23/2002)
53 RESPONSE by defendant Kasper Wire Works to [51-1] motion to amend [1-1] complaint to add defendants (6) (aat) (Entered: 11/12/2002)
54 APPENDIX by defendant Kasper Wire Works in support of [53-1] response to motion to amend complaint to add defendants (15+) (Not imaged) (aat) (Entered: 11/12/2002)
55 RESPONSE and brief by plaintiff Equal Employment Opp to [46-1] motion for summary judgment (15+) (aat) (Entered: 11/13/2002)
56 APPENDIX by plaintiff Equal Employment Opp in support of [55-1] response to motion for summary judgment (15+) (Not imaged) (aat) (Entered: 11/13/2002)
57 UNOPPOSED MOTION by defendant Kasper Wire Works to extend time for response to the motion for partial summary judgment (3) (aat) (Entered: 11/19/2002)
58 ORDER granting [57-1] motion to extend time for response to the motion for partial summary judgment. Defendants' response to motion reset to 12/5/02 for [49-1] motion for partial summary judgment. ( Signed by Judge David C. Godbey ) Copies to counsel: 11/20/02 Page(s) 2 (aat) (Entered: 11/20/2002)
59 SPECIAL ORDER NO. 3-224. Effective 11/25/02, the cases listed on Exhibit A attached to this order are transferred from the docket of Honorable David C. Godbey to the docket of Honorable Ed Kinkeade and shall henceforth carry the suffix letter "K". ( Signed by Chief Judge A. J. Fish ) Copies to counsel: 11/25/02 Page(s): 3 (aat) (Entered: 11/25/2002)
60 REPLY Brief by defendants Kasper Wire Works and Kaspar Ranch Hand Inc to response to [46-1] motion for summary judgment (15+) (jyg) (Entered:

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12/05/2002 12/05/2002
12/06/2002 12/16/2002 01/22/2003
01/27/2003
02/06/2003 02/07/2003 02/24/2003 02/24/2003 02/24/2003 02/24/2003 02/24/2003 02/24/2003 02/24/2003 02/24/2003 02/24/2003

12/02/2002)
61 RESPONSE by defendant Kasper Wire Works in opposition to [49-1] motion for partial summary judgment (15+) (aat) (Entered: 12/06/2002)
62 APPENDIX by defendant Kasper Wire Works in support of [61-1] response in opposition to the EEOC's motion for partial summary judgment and supporting brief (15+) (Not imaged) (aat) (Entered: 12/06/2002)
63 Minute order: Oral argument on bankruptcy appeal held before Judge Ed Kinkeade. Court Reporter: Shawn McRoberts. (aat) (Entered: 12/09/2002)
64 REPLY by plaintiff Equal Employment Opp to response to [49-1] motion for partial summary judgment (12) (aat) (Entered: 12/17/2002)
65 ORDER Reset scheduling order deadlines: Jury trial docket call reset for 3/10/03; Pretrial materials due 2/24/03. The pretrial conference scheduled for 1/31/03 is cancelled. ( Signed by Judge Ed Kinkeade ) Copies to counsel: 1.23.02 Page(s) 1 (mlh) (Entered: 01/23/2003)
66 ORDER REGARDING TRANSITION. All existing scheduling orders, trial settings and referrals to magistrate judges are adopted and remain in full force and effect. Counsel are directed to confer and file a joint status report with the Court no later than 14 days after the date of this order. See order for specifics. ( Signed by Judge Ed Kinkeade) Copies to counsel: 1/28/03 Page(s): 3 (aat) (Entered: 01/28/2003)
67 JOINT REPORT ON SETTLEMENT CONFERENCE by plaintiff Equal Employment Opp, defendant Kasper Wire Works (3) (aat) (Entered: 02/07/2003)
68 JOINT MOTION to continue by plaintiff Equal Employment Opp, defendant Kasper Wire Works (4) (aat) (Entered: 02/10/2003)
69 MOTION in Limine by Kaspar Wire Works Inc (aat, ) (Entered: 02/27/2003)
70 Proposed Voir Dire Examination of the Jury Panel by Kaspar Wire Works Inc. (aat, ) (Entered: 02/27/2003)
71 Exhibit List by Kaspar Wire Works Inc. (aat, ) (Entered: 02/27/2003)
72 Witness List by Kaspar Wire Works Inc. (aat, ) (Entered: 02/27/2003)
73 Proposed Jury Instructions by Kaspar Wire Works Inc. (aat, ) (Entered: 02/27/2003)
74 MOTION in Limine by Equal Employment Opportunity Commission with brief in support. (aat, ) (Entered: 02/27/2003)
75 Proposed Jury Instructions and Interrogatories by Equal Employment Opportunity Commission. (aat, ) (Entered: 02/27/2003)
76 Proposed Jury Voir Dire by Equal Employment Opportunity Commission. (aat, ) (Entered: 02/27/2003)
77 Exhibit List by Equal Employment Opportunity Commission. (aat, ) (Entered: 02/27/2003)

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02/24/2003 02/24/2003 02/28/2003
02/28/2003 02/28/2003 02/28/2003 03/03/2003
03/03/2003 03/05/2003
03/19/2003 03/19/2003 03/19/2003 03/20/2003 03/24/2003 03/27/2003 03/28/2003 04/08/2003

78 Witness List by Equal Employment Opportunity Commission. (aat, ) (Entered: 02/27/2003)
79 Designation of Deposition by Equal Employment Opportunity Commission. (aat, ) (Entered: 02/27/2003)
80 JOINT MOTION to Expedite review of joint motion for continuance by Equal Employment Opportunity Commission, Kaspar Wire Works Inc (aat, ) (Entered: 03/03/2003)
81 First Amended Proposed Jury Instructions, Definitions and Interrogatories by Kaspar Wire Works Inc. (aat, ) (Entered: 03/03/2003)
82 First Amended Exhibit List by Kaspar Wire Works Inc. (aat, ) (Entered: 03/03/2003)
83 MOTION in Limine by Kaspar Wire Works Inc (aat, ) (Entered: 03/03/2003)
84 Memorandum Opinion and Order granting 46 Motion for Summary Judgment filed by Kaspar Wire Works Inc, denying as moot 51 Motion to Amend/Correct filed by Equal Employment Opportunity Commission and denying as moot 49 Motion for Summary Judgment filed by Equal Employment Opportunity Commission. Judgment will be entered that the EEOC and Patino take nothing. (Signed by Judge Ed Kinkeade on 3/3/03) (aat, ) (Entered: 03/04/2003)
85 FIRST AMENDED MOTION in Limine by Kaspar Wire Works Inc (aat, ) (Entered: 03/04/2003)
86 JUDGMENT EEOC and Tommy Patino take nothing in this suit against defendants and all claims are dismissed with prejudice, with all costs taxed against the EEOC. (Signed by Judge Ed Kinkeade on 3/5/03) (aat, ) (Entered: 03/06/2003)
87 MOTION to recover attorneys' fees by Kaspar Wire Works Inc (aat, ) (Entered: 03/20/2003)
88 Memorandum in support re 87 motion to recover attorneys' fees filed by Kaspar Wire Works Inc. (Exhibits not imaged) (USC) (aat, ) (Entered: 03/20/2003)
89 BILL OF COSTS by Kaspar Wire Works Inc. (Exhibits not imaged) (aat, ) (Entered: 03/20/2003)
Costs Taxed in amount of $9,828.78 against EEOC. (aat, ) (Entered: 03/20/2003)
90 OBJECTIONS re 89 Bill of Costs, filed by Equal Employment Opportunity Commission. (aat, ) (Entered: 03/25/2003)
91 ADVISORY TO THE COURT by Kaspar Wire Works Inc (aat, ) (Entered: 03/28/2003)
92 RESPONSE in Opposition re 90 objections to bill of costs, filed by Kaspar Wire Works Inc. (aat, ) (Entered: 03/31/2003)
93 OBJECTION to 87 Defendant's MOTION to Recover Attorney Fees filed by Equal Employment Opportunity Commission. (lmr, ) (Entered: 04/10/2003)

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04/23/2003 06/25/2003 11/10/2003

94 REPLY to response to motion re 87 MOTION for recovery of attorneys fees filed by Kaspar Wire Works Inc. (aat, ) (Entered: 04/24/2003)
95 Supplement by Equal Employment Opportunity Commission as to 93 objection to motion to recover attorneys' fees. (aat, ) (Entered: 06/26/2003)
96 ORDER granting in part and denying in part 87 motion to recover attorneys' fees. Defendant is entitled to recover the costs included in its "Bill of Costs" in the amount of $8,995.38. However, defendant is not entitled to recover its attorneys' fees, as plaintiff's complaint was not frivolous. (Signed by Judge Ed Kinkeade on 11/10/03) (aat, ) (Entered: 11/12/2003)

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