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

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

PVNF, L.L.C., d/b/a Chuck Daggett Motors and )

Big Valley Auto

)

)

)

Defendant.

)

)

CIV
COMPLAINT JURY TRIAL DEMANDED

NATURE OF THE ACTION

This is an action under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy

Discrimination Act of 1978 and Title I of the Civil Rights Act of 1991 to correct unlawful employment

practices on the basis of sex, pregnancyand retaliation, and to provide appropriate relief to Tammy Hulce,

Marla Segovia and a class of female employees, including at least Michelle Reid and Joanne Richmond,

who were adversely affected by such practices during their employment with PVNF, L.L.C., d/b/a Chuck

Daggett Motors, now known as Big Valley Auto (“Defendant Employer”). The Commission alleges that

Tammy Hulce and a class of employees, including at least Michelle Reid, were subjected to pregnancy

harassment, including mocking and taunting remarks disdaining pregnant women and their ability to work,

which created a hostile work environment for them because of their sex, female. As to Ms. Reid, the

Commission alleges that the harassment based on pregnancy forced her to resign her employment with Defendant Employer. The Commission also alleges that Marla Segovia and a class of female employees, including at least Joanne Richmond, were subjected to gender and sex harassment, including sexist, antifemale remarks, which created a hostile work environment for them because of their sex, female. The Commission further alleges that Joanne Richmond and a class of similarly situated women were denied payment of medical insurance premiums because of their sex, female. Finally, the Commission alleges that Marla Segovia was subjected to retaliation for opposing unlawful employment practices and that Ms. Segovia was forced to resign her employment as a result of the Defendant Employer’s sex discrimination and retaliation against her.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. §2000e-5 (f)(1) and(3) ("Title VII") 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 jurisdiction of the United States District Court for the District of New Mexico.
PARTIES 3. Plaintiff, the EqualEmployment OpportunityCommission(the "Commission"),is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Section 706(f)(1) and (3) of Title VII, 42 U.S.C.
2

§2000e-5(f)(1) and (3). 4. Atallrelevant times,Defendant Employer has continuously been doing business inthe State
of New Mexico, including the Cities of Portales and Clovis, 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 701(b), (g) and (h) of Title VII, 42 U.S.C. §2000e-(b), (g) and (h).
6. Upon information and belief, on or about July 2003, Defendant PVNF, L.L.C., placed the Chuck Daggett Motors facilities in Portales and Clovis, New Mexico under the new business name of Big Valley Auto.
STATEMENT OF CLAIMS 7. More than thirty days prior to the institution of this lawsuit, Tammy Hulce and Marla Segovia filed charges with the Commission alleging violations of Title VII by Defendant Employer. All conditions precedent to the institution of this lawsuit have been fulfilled. 8. Since at least July, 2000, Defendant Employer has engaged in unlawful employment practices at its Portales, New Mexico facility in violation of Section 703(a) of Title VII, 42 U.S.C. §§2000e-2(a) because of sex. These practices include:
a) the harassment of Marla Segovia and a class of female employees, including at least Joanne Richmond, which created a hostile work environment because of their gender or sex, female;
3

b) the failure to pay medical insurance premiums for Joanne Richmond and a class of similarly situated women because of their sex, female; and c) the constructive discharge of Marla Segovia as a result of Defendant Employer’s discrimination against her because of her sex, female. 9. Since at least February, 2001, Defendant Employer has engaged in unlawful employment practices at itsPortales, New Mexicofacilityin violationof Section 703(a) of Title VII, 42 U.S.C. §2000e2(a) and Section 701 (k) , 42 U.S.C.§2000e (k) (the Pregnancy Discrimination Act of 1978) because of sex, pregnancy. These practices include: a) the pregnancy harassment of Tammy Hulce, and a class of employees, including at least Michelle Reid which created a hostile work environment for them because of their sex, female; and b) the constructive discharge of Michelle Reid as a result of Defendant Employer’s pregnancy harassment toward her because of her sex, female. 10. Since at least September, 2001, Defendant Employer has engaged in unlawful retaliatory employment practices at its Portales, New Mexico facility in violation of Section 704(a) of Title VII, 42 U.S.C. §§2000e-3(a). These retaliatory practices include: a) subjecting Marla Segovia to disciplinary action and adverse terms, conditions and privileges of employment after she expressed opposition to and made complaints about unlawful employment practices in early September, 2001; and b) the constructive discharge of Marla Segovia as a result of Defendant Employer’s
4

retaliation against her because she opposed unlawful employment practices. 11. The effect of the practices complained of in paragraphs 8 and 9 above has been to deprive Tammy Hulce, Marla Segovia and a class of female employees, including at least Michelle Reid and Joanne Richmond of equal employment opportunities and otherwise adversely affect their status as employees because of their sex, female and/or pregnancy. 12. The effect of the practices complained of in paragraph 10 above has been to deprive Marla Segovia of equal employment opportunities and otherwise adversely affect her status as an employee because of her opposition to unlawful employment practices. 13. The unlawful employment practices complained of in paragraphs 8, 9 and 10 above were intentional. 14. The unlawful employment practices complained of in paragraphs 8, 9 and 10 above were done with malice and/or reckless indifference to the federally protected rights of Tammy Hulce, Marla Segovia and a class of female employees, including at least Michelle Reid and Joanne Richmond.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction 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/or pregnancy 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
5

discriminatesor retaliates against any individualbecause of the individual’s oppositionto perceived unlawful employment practices and/or because the individual filed a charge, testified, assisted, or participated in an investigation or proceeding under Title VII.
C. Order Defendant Employer to institute and carry out policies, practices and programs which provide equal employment opportunities for women, pregnant women and for those who oppose perceived unlawful employment practices and/or file charges, testify, assist or participate in an investigation or proceeding under Title VII, and which eradicate the effects of its past and present unlawful employment practices.
D. Order Defendant Employer to make whole Marla Segovia and a class of female employees, including at least Michelle Reid, by providing appropriate backpay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to reinstatement of Marla Segovia and Michelle Reid or front pay in lieu of reinstatement.
E. Order Defendant Employer to make whole Tammy Hulce, Marla Segovia, and a class of female employees, including at least Michelle Reid and Joanne Richmond, by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraphs 8, 9 and 10 above, in amounts to be determined at trial.
F. Order Defendant Employer to make whole Tammy Hulce, Marla Segovia, and a class of female employees, including at least Michelle Reid and Joanne Richmond, by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in paragraphs 8, 9 and 10 above, including but not limited to, emotional pain, suffering, inconvenience, mental anguish,
6

humiliation, loss of enjoyment of life, and other nonpecuniary losses, in amounts to be determined at trial. G. Order Defendant Employer to pay Tammy Hulce, Marla Segovia, and a class of female
employees, including at least Michelle Reid and Joanne Richmond, punitive damages for its malicious and/or reckless conduct described in paragraphs 8, 9 and 10 above, in amounts to be determined at trial.
H. Grant such further relief as the Court deems necessary and proper in the public interest. I. Award the Commission its costs in this action.
JURY TRIAL DEMANDED The Commission requests a jury trial on all questions of fact raised by its Complaint. DATED this day of August, 2003
Respectfully submitted, ERIC S. DREIBAND General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, NW Washington, D.C. 20507
MARY JO O’NEILL Regional Attorney
C. EMANUEL SMITH Supervisory Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION 7

Phoenix District Office 3300 N. Central Ave. Suite 690 Phoenix, Arizona 85012
LORETTA MEDINA Senior Trial Attorney VERONICA A. MOLINA Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION Albuquerque District Office 505 Marquette NW, Suite 900 Albuquerque, New Mexico 87102 (505) 248-5230 Attorneys for Plaintiff
8

 
 ;

.ilL E IN THE UNITED STATES DISTRICT COU~!i .

FOR THE DISTRICT OF \JEW MEXICcJi'

i}

UNITED STATES DISTRICT COURT

ALBUQUERQUE. NEW MEXICO

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff;

)

)

v.

)

)

)

PVNF, L.L.c., dlb/a Chuck Daggett Motors and )

Big Valley Auto

)

)

Defendant.

)

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

APR 26 2004
CIV-03-991 ./UWDS (ACE)
CO~SE"'l(Q~E . . • . • .
·.'·PERT AININ'C1'tlcHM'G~:ij·tq:::·; PARTY TAMMY IILLt~~, '.' ,,, CLAIMANT MICHELLE REID AND I'REG"'ANCY CLASS ONLY

This matter came belore the Court upon the agrecment orthe parties to enter intp a

consent decree fllr purposes ofscltling the claims of pregnancy discrimination brought by the

Unikd States Equal Employment Opportunity Commission (the "Commission" or "EEOC")

against PVNF, I..L.C.. d/b/a Chuck Daggett Mot<'rs and Big Valley Auto (Defendant) on behalf

of Charging Party Tammy I-Iukc, class member 'vlichellc Reid and any other potential claimants

or class membe.rs. This Decree is intended to only resolve the claims describcd in Paragraph 'i of the Commission's Complaint rclating specifically to 'vls~ Hulce, Ms. Reid and any EEOC claims

of class pregnan.cy discrimination that EEOC could have brought against Defendant as a result of

its invcstigation of Tammy Hulce's chargc.

Thc Commission filed this action against Dcfendant to enforce Title VlI of the Civil

Rights Act of 1964, as amendcd by thc Prcgnancy Discrimination Act of 1978. and Title I of the

Civil Rights Act of 1991. In Paragraph 9 of the Complaint. the Commission alleged that Tammy

Hulce, and a class of employees, including at least Michelle Reid, were subjected to harassment

based on pregnancy that created a hostile work cnvironnient for them because of their sex,

female, The Commission also alleged that Michelle Reid was constructively discharged as a

result of Defendant's alleged prcgnancy harassment toward her because of her sex, female,

The parties to this Consent Decree do not ohject to lbe jurisdiction of the Court over this

action and waive their rights to a hearing and the entry of findings of fllct and conclusions of law

as to claims made in Paragraph 9 of the Commission's Complaint. This decree docs not

constitulC an admission of liability by the Defendant, nor an adjudication on the merits of the

allegations of thc complaint and is inadmissible against Defendant in thc current or any

subsequent proceeding, unless thc proceeding is brought to enforcc the Decree, Defendant

expressly denies liahility and enters into this agreement for-thc puqlose of resolving this litigation

without further expense or delay.

It is bereby ORDERED, ADJUDG~~D AND DECREED:

I.

This decree resolves the claims against Defendant relating specifically to Ms,

Hulce, Ms, Reid and any EEOC claims of class prcgnancydiscrimination that EEOC could have

brought against Defendant as a result of its investigation ofTanuny Hulce's charge, or Michelle

Reid's claims. includil.lg claims fiJI" back pay. compensator); and punitive dmnages. interest.
:',.
injunctive relief, attorney's fees and costs arising out of solely the allcgations described in

Paragraph 9 of the Commission's Complaint. This Decrec docs not preclude the Commission

from prosecuting its remaining sex discrimination claims against Defendant relating to Marla

Segovia and a class ofwomcn, including at least Joannc Richmond or Defendant from asscrting

any defenses c1aimcd in connection with those allcgations.

2

IN.JUNCTION ~ For the duration oi"this Consent Decrec. Dci'cndant. its managers. agents. ofJicers.

cmployces. succcssors and assigns and all persons in active concert or participation with them.

shall not discriminate against any employee because ofpregnallcy. This injunction will remain in

effect for the duration of this Consent Dccrce at any facility operated by Defcndant in the State of

New iv1cx in>.

RELIEF TO CHARGI~G PARTY ANI) CI.ASS

3.

Within seven days orthe en!Iy of the Cons:cnt Decree. Defcndant shall pay the

amount of $6.500.00 in compensatory damages to Michellc Reid. This payment wi II be made by

a check made payable to Michelle Reid and will bc mailed directly via cl,rtilicd mail to Ms. Reid

at the address provided by the EEOC to Defcndant.

4.

Within five days of issuance orthe check described in Paragraph 3, above.

Defcndant shall submit a copy of the check and related c'orrespondence to the Regional Attomcy,

Equal Employment Opportunity Commission. Albuquerque. District OfJicc. 505 Marquette I\:"W.

Suitc 900. Albuquerque. Ncw Mexico 87102-2189.

5.

Within five days of his attendance of the training scssion(s) regarding pregnancy

discrimination described in Paragraph 13 of this Decree, AIva Carter will send Tammy Hulce a

letter describing the training he attcnded and dates oi" attcndancc. A copy of Mr. Carter's lettcr

shall also bc' simullaneously providcd to the Regional Attorncy, [ljllal Employmcnt Opportunity

Commission, Albuquerque District Office, 505 Marquettc NW. Suite 900 Albuquerque, Ncw

Mexico 87102-2189.

6.

In responsc to any employmcnt inquirics or rcfercnce checks concerning Tammy

3

Hulce or Michelle Reid. Defendant shall providc only their dates ofcmploymcnt, each position held. and job duties. This provision shall remain in force illr so long as either Ms. Hulce or Ms. Reid uscs Dcfcndant as a reference and is not limited to the three-ycar duration of this decree.
7. Defendant will expunge from the persol1licltiks of Tammy Hulce and Michelle
Reid all references to. Ms. l'lulee's charge of discrimination made against [)eti:ndant.
8. Defcndant shall not takc any action to discriminate against or retaliate against Tammy Hulce or Michdle Reid because they opposed aniimlctice made an unlawful emploYl1lent practic.:: by Title VII. or because they made a charge, testiticd. assisted or patticipatcd in any manner in 3n investigation, procecding or hearing under Title VII.
9. Defendant shall not take any action to discriminate against or retaliate against any witness who testilicd. assisted, or participated in any manner in this case.
I)EFENI>ANTS POLICIES AND PRACTICES 10. Defendant shall institute and carry out polices and practices that foster work cnvironmcnts free from pregnancy discrimination, including policies and practiccs to prevent prcgnancy discrimination in the hiring of employces the tiring of employces and all other tcnns, conditions and privileges ofcmpI0)1ncnt. To assist Defendant in ifcfiort to il)stcr a work environment free ofpregnancy discrimination, the Defendant shall take the actions provided for in Paragraphs II through 13. I I. The Defendant shall rcvicw any existing policies on pregnancy discrimination and make any changes necessary so that its polices comply with Title VII and the Pregnancy Discrimination Act. Defendant shall ensure its written policies include a statement that employees have a right to complain directly to thc U.S. Equal Employmcnt Opportunity
4

Commission or any state equal opportunity agency about pregnancy discrimination. Aller reviewing and making any necessary revisions io its policies. Defc.ndant shall distribute the revised pregnancy discrimination policies to each of its current full and part-time employees in new Mexico. and to.each new employee hired.for the duration of this decree.
12. Defendant shall post within thirty (30) days of the entry of this Consent Decree. for a period of thirty-six (36) months in a prominent place frequented by its employees in New Mexico, thc Notice attached to this Decree as Exhibit A. This Notice shall he the sam\! type. style and si7.e as i"n Exhibit A.
13. Defendants shall providc training on pregnancy discrimination according to the following terms:
A. Defendants shall provide ast 1c.ast two training sessions during the term of this Consc'nt Decree. All employees. including managers and supervisors. at all New Mexico facilities owned. operated or managed by defendant. shall attend the training. In addition, as long as Alva Carter retains an ownership interest in Defendant company. he shall be required to attend the training sessions required by this Decree. Duplicative sessions. may be held to accommodate staffing needs. Doi'fendant shall be responsiblc for all costs' associated with this training.
B. During the first year of the Consent Decn:c, the training shall be conducted within fOLlr months of the entry of this decree. Additional training shall be conducted once at least onc-hundrcd-eighty (180) days before the expiration of this Decree.
C. Defendant shall select a qualilied trainer .Ind shall submit the trainer's naine, resume. 'training agcnda and the date(s) orthe proposed training to the Regional
5

Attol1ley of the Albuquerque office of the Equal Employment Opportunity Commission with sixty ((iO) days of the cntryofthis Consent Decree. The Commission shall have thirty (30) days from the date of the receipt of the infom,.nion descrihed above to accept or reject the proposed consultant/iccturer andlor the COl1lcnts orthe scminar. In the cVl!nt·ihe Commission docs not approve of the designated consultant/lecturer proposed by Defendant the Commission shall designated the consultant/lecturer at a cost not to exceed $500.00 per seminartraining session. which shall bc paid hy Defcndaill. During the remaining term of the. Consl!nt Dceree. the ahove infonnation concerning the proposed training session shall be submilled to the Regional Atlomey at least ninety (90) days prior to the lIate orthe proposcd scminar-training session. D. The training shall include a minimum of two hours of instruction. All personnel. designated in Paragraph A shall both rcgistcr and attcnd the training. The registry of attendance shall bc retaincd by Dcfendant at least for thc duration orthe Conscnt Decree. E. The training. at a minium shall include the subjects of what constitutes pregnancy discrimination. that pregnancy discrimination in the hiring, firing, compensation. assignment or other terms. conditions or privileges of employment violates Title VII; that harassmcnt based on pregnancy violates title VII; how to prcvent pregnancy discrimination; how to provide a work environment free from pregnancy discrimination, and to whom and by what means employecs may complain if they fec1they havc becn subjected to pregnancy discrimination.
6

F.

Immediately following the training sessions, Dcfendant's highest ranking

managerial official(s) in New Mexico shall speak to the employees about; ( I )

Potential discipline that can he taken against supcrvisors, managcrs and

employees who commit acts of pregnancy discrimination or who allow pregnancy

discrimination to occur in thc workplace; (2) the importance of maintaining an

environment free of pregnancy discrimination and (3) the employer's policies

regarding pregnancy discrimination. This timcshall not he counl<:d toward the

two-hour minimum training required in Paragraph 13D. In the event of the need

for duplicative or make up training sessions. the Defendant may present the

managerial official's remarks by video presentation. All such video presentations

shall be copied and supplied to the Commissions in accord with Paragraph 15 of

this Consent Decrcc.

G. For the duration of this decree. at or around the time of hire, employees hired ancr

the annual training is prescnted shall view a video tape of the training and/or a

profcssional training tape which covcrs the topics set forth in Paragraph 13F. And

shall he given any written material discriminakd at'the training.

14. In accordance with this Consent Dccrec, the Commission, at its discretion, may

designate Commission representatives to attend and participate in thc training sessions described

above.

R~:PORTI"'G OF COMPLIANCE AND ACCESS BY EEOC

15. Defcndants shall report in writing and in affidavit li'om c/o the Regional Attomey

ofthc Equal Employment Opportunity Commission's Albuquerquc District Office at 505

7

Marquette NW, Suitc '.l()O, AIbuqucrquc, New Mexico 871 02-2189, b~ginning six months from the uate of the Entry of this Consent Decree. and thereafkr e\'ery six months for the duration or the Consent Decree the following information:
A. Any substantive changes modifications. revocations. or revisions to its prcgnancy discrimination policies and procedures.
B. The registries of persons attending each of the seminar-training sessions requircJ in Paragraph 13 and a list OfCllITCnt cmployecs for all New Mexico facilities on the day oflhe seminar-training session(s).
C. An affidavit from De"rendants' highest ranking oflicial(s) in New Mexi('o Slating: (I) the Noticc required in Paragraph 12 was posted and the locations where it was posteJ anJ (2) it has complied with Paragraphs2-13 of this Consent Decree.
16. The Commission shall have the right to enter and inspcctthe [,l('ilitics of Delendant in Ncw Mexico to ensure compliance with this decree and federal anti-disnimination laws.
COSTS AND DURATION 17. Each party shall bear its own costs and attorneys' fees incu'Ted as a result of this action through the entry of this Consent Decree.
he 18. The duration of this Consent Decree shall three (3) years lI'omthc date of its
entry. This Court shall retain jurisdiction of this action for the duration of the Consent Decree, during which the COlllmission may petition this Court for compliance with this Conscnt Decrec. Should the Court determine that Defendant has not complied with this Conscnt Decree, appropriate relief. including extension of this Consent Decrec for such period as may he
8

necessary to remedy its non-compliance, may be ordered: 19. Without further action hy the partics, this Consent Decree shall expire hy its own
terms at the end of three (3) years ailer the date of enlly.... 20. Upon cntry of this Consent Dcerce, this casc, as it relates solely to Ms. Hulcc's.
rv1s. Rcid's and the EEOC's chiss pregnancy claims is dismissed with prejudice. 21. The parties agree to entry of this Consent Decree subject to final approval by the
Court.

.}2- 1/ . . -

ENTERED A:--JD ORDERED this j--- day of

2004.

.~ . / 2 .

. ~

EbWADs : HO:--JORA-SLE:,OIIN

CO\iW A,;

TED STATES DISTRICT JUDGE

APPROVED AND CONSENTED TO:

Eric S. Dreiband General COllnsd
Jamcs L. Lee
Deputy Gcneral Counsel
Gwendolyll Young Reams Associate General COUllSel
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ISOl I. Sired, N.W. Washington, D.C. 20507

9

~~~/I--A

MAR'," .10 0'1\1011.1.

~ l

Regional Attorney

Supervisory Trial Attorney

EQUAL EMPLOYMEI\T OPPORTUNITY

COMMISSION

•

3300 n. Central Ave., Suite 690

Phoenix, Arizona 85012

----7" _
e-----. '

'L/7.

--?'>~~
L-(

LINDA G. HEMPHILL. P.c.

Linda G. Hemphill, Esq.

Stephanie Fuchs. Esq.

834 Dunlap Strcet(505) 986-8515

Santa Fl:, f\cw t-.1cxico 87501

(505) 986-8515

~Q~VYV~
LORETTA MEDINA Senior Trial. Attorney
VERONICA MOLINA Trial Attorney

Attol11eys for Defcndant

EQUAL E:vIPLO'r':Y1E:--JT OPPORTLNITY COM:YIISSION
Albuquerque. District Office 505 Marquette NW, Suite 900 Albuquerque, New Mexico 87102-2189 Telephone: (505) 248-2530

Attorneys for Plainti ff

10

]l;OTICE TO ALL EMPLOYEES I'V:\,F, L.L.c. d/b/a Big Valley
This Notice is posted pursuant to an agrecmcnt between PVNF, L.L.c. db/a Big Valley Auto and the Equal Emplo}111cnt Opportunity Commission (EEOC).
It is unlawfulunderthe fcderallaw (Title VII of the Civil Rights Act of1964) and statc law to discriminate against an emplo)'ce on the basis of pregnancy in, firing. hiring. or other. terms. and conditions or privi I~ges of employment.
PVNF. L.L.c. d/b/a Big Valley Auto C'Employer") prohibits all forms of pregnancy discrimination. including harassment based on pregnancy and the discharge of cmployees due to pregnancy. The Employcr does not discriminatc on the basis of prcgnancy. The Employer does not retaliate against any cmployee who opposes s practice made unlawful under federal law. liles. assists or participatcs in the lilling of a charge of discrimination in any imcstigation under Title VII. or who liles a grievance alleging discrimination.
. If you bellcve you arc being discriminated against or rctaliated against you should rcport this to the designated investigative officer at your workplace who may be contactcd at_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
If you believe you have bcen discriminated against by your Employcr you have the right to seek assistance from:
(I) Equal Employment Opportunity Commission (EEOq,505 Marquette. Suite 900. Albuqucrque. Ncw Mexico 87 I02. telephone 1-800-669-4000.
or
(2) The New Mexico Department of Labor. Human Rights Division, 1596 Pacheco St.. Suite 103, Santa Fe, New Mexico 87505, 5(5) 827-6838.
'You have the right to lile a chargc with the EEOC or thc New Mexico Department of Labor, I'!uman Rights Division if you believe you arc being discriminated against.
EXHIBIT A
11

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

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff(s),
vs.

CIVIL NO.03-991 JC/WDS

PVNF LLC, Defendant(s). ORDER
This matter comes before the Court on an oral Motion to Compel made and argued before the Court at a telephonic hearing held on 21 April 2004. In their motion the Defendant requested medical records from certain Plaintiffs who were alleging “garden variety” emotional distress damage claims. Plaintiff argued that because the claimed damages were “garden variety” that they should not be required to produce medical releases. The Court being fully informed agrees with the Defendants that, while IMEs are not appropriate in circumstances such as these, medical discovery is appropriate.
IT IS THEREFORE ORDERED that Plaintiffs shall produce requested medical records and execute any requested medical releases to allow Defendant appropriate discovery on this issue. The parties shall meet and confer on an appropriate confidentiality agreement to protect any medical information received.

W. DANIEL SCHNEIDER United States Magistrate Judge

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

EQUAL EMPLOYMENT OPPORTUNITY COMMISISON,
Plaintiff,
vs.
PVNF, L.L.C., d/b/a Chuck Daggett Motors and Big Valley Auto,
Defendant.

CIV-03-991 JC/WDS

MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on Plaintiff EEOC’s Motion for Partial Summary Judgment as to Any Defense Based Upon Conciliation, filed October 15, 2004 (Doc. 46). The Court, having considered the Motions, the parties’ submissions, the relevant authority, and being otherwise fully advised, finds the Motion well-taken and it is, therefore, GRANTED. I. Background This action arises from charges of gender discrimination filed with the EEOC by two of Defendant’s former female employees. Prior to commencing suit, the EEOC investigated the allegations of discrimination. After conducting its investigation, the EEOC concluded that there was reasonable cause to believe Defendant violated Title VII of the Civil Rights Act of 1964 by subjecting Ms. Segovia and a class of female employees to severe and pervasive harassment resulting in a hostile work environment and disparate treatment in the compensation, terms, and privileges of the women’s employment based on their female gender. The EEOC further found reasonable cause to believe that

Ms. Segovia was retaliated against by Defendant for engaging in opposition to employment practices made unlawful by Title VII. Finally, the EEOC’s investigation yielded reasonable cause to believe that Ms. Segovia was constructively discharged by PVNF’s discriminatory and retaliatory treatment of her.
Following its investigation, on February 5, 2003, the EEOC’s Enforcement Manager sent Defendant a Letter of Determination which included a brief discussion of the allegations and an invitation to Defendant to engage in a collective effort toward resolution of the charges. Medina Aff., Ex. B. Specifically, the letter states in pertinent part, “[h]aving determined that there is reason to believe that a violation has occurred, the Commission now invites the parties to join with it in a collective effort toward a just resolution of this matter.” Id. On February 12, 2003, Defendant responded to the EEOC in writing, stating that it was “ready to participate in meaningful conciliation efforts”but that Defendant had no information supporting the EEOC’s finding of disparate treatment of Ms. Segovia. Def’s Mot. Dis., Ex. 6. On February 26, 2003, the EEOC again communicated in writing with Defendant, which communication outlined the EEOC’s initial conciliation proposal seeking, inter alia, backpay and compensatory damages for Ms. Segovia in the total amount of $150,000, reflecting $100,000 in back pay and $50,000 in compensatory damages. Medina Aff., Ex. F. That letter also states, “[p]lease respond to this proposed conciliation offer, make a counter offer or advise me of Respondent’s position on conciliation on or before March 7, 2003.” Id. Defendant made no offer in conciliation. Further, Defendant, through its counsel, expressed an understanding that if Defendant made no offer by March 27, 2003, the EEOC would refer the case to its legal department and conciliation would be considered formally failed. Medina Aff., Ex. 1. On April 2, 2003, the EEOC again provided written communication to Defendant, through Defendant’s counsel,
2

indicating that the EEOC considered conciliation attempts to have failed and that EEOC would not make any further attempts at conciliation but would instead forward the case to its legal department. Medina Aff., Ex. C. Defendant did not contact EEOC from April 2, 2003 through August 25, 2003 to request resumption of conciliation efforts.
Plaintiff EEOC presently moves the Court for summary judgment disposition in its favor on any defense relying upon the EEOC’s alleged failure to satisfy the requirements of conciliation efforts as prerequisite to filing suit1. II. Legal Standard
A party is entitled to summary judgment on all or any part of a claim as to which there is no genuine issue of material fact and as to which the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). For purposes of a summary judgment motion, the evidence is viewed in the light most favorable to the non-moving party. Id. The moving party has the initial burden of showing that there is no genuine issue of material fact. Id. at 256. The movant may discharge this burden by pointing out the absence of evidence to support one or more essential elements of the non-moving party's claim, as "a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986).
The party opposing the motion may not rest on mere allegations or denials of pleading, but must set forth specific facts showing a genuine issue for trial. Anderson, 477 U.S. at 248, 256. To meet this burden, the non-movant must specify evidence in the record and demonstrate the precise
1In fact, on the same undisputed facts, Defendant also asserts entitlement to judgment as a matter of law regarding the EEOC’s statutory requirement to attempt conciliation in good faith. See Defendant’s Motion for Summary Judgment, filed October 18. 2004 (Doc. 50), ¶ 10.
3

manner in which that evidence supports its claims. Gross v. Burggraf, 53 F.3d 1531, 1546 (10th Cir. 1995). If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. Matsushita, 475 U.S. at 597. III. Discussion
The sole issue before the Court is the sufficiency of the conciliation attempts made by the EEOC prior to filing this lawsuit. Section 706(b) of Title VII states that:
if the Commission determines . . . that there is reasonable cause to believe that [a] charge [of unlawful employment practice] is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. 42 U.S.C. § 2000e-5(b). Accordingly, the EEOC is required to make a sincere and reasonable effort at pre-litigation conciliation by providing the employer with an opportunity to respond to the allegations and negotiate a possible settlement in resolution thereof. EEOC v. Prudential Fed. Sav. and Loan Assoc., 763 F.2d 1166 (10th Cir. 1985). The EEOC contends that it complied with the statutory pre-litigation conciliation requirements as a matter of law. Defendant argues that the EEOC fell short of its obligation by failing to provide “sufficient details of its investigation to allow it to respond or evaluate EEOC’s offer to settle the sex discrimination ‘class’for $200,000, an amount so sufficiently in excess of what Plaintiff could recover on behalf of the two women who comprise the class...as to evidence bad faith.” Resp. at 1, 2. Regarding Defendant’s contention that the information provided to it was insufficient in detail, the Court first notes that Defendant supports such assertion by incorporating its Motion for Summary Judgment and Memorandum in Support, filed October 18, 2004 (Docs. 50 and 51) by reference. The Court declines, however, to sift through those voluminous filings, which comprise in excess of forty-
4

eight pages of text with hundreds of pages of exhibits attached thereto, in an attempt to glean what particular proposition contained therein might be interpreted to support the assertion made here. The only other legal argument Defendant offers in support of its contention that the EEOC provided insufficient details is a vague reference to EEOC v. Prudential Fed. Sav. and Loan Assoc., 763 F.2d 1166, the same case relied upon by the EEOC in support of the sufficiency of the information provided to Defendant at the conciliation phase. Upon reviewing that case, the Court finds that the Tenth Circuit indeed made clear that the EEOC need not “prove discrimination to the employer’s satisfaction” before filing suit. Id. at 1169. Instead, the EEOC is required to provide the employer an opportunity to respond to all charges and negotiate possible settlements. Id. At this juncture, the Court also notes Defendant’s admission that its own agent, pre-litigation, determined the claims here to be “frivolous” and decidedly would not engage in negotiations with the EEOC. Daggett Depo. at 224-225:25, 1-9; Resp. at 3, ¶ 8. This fact begs an obvious question. Upon what ground did Defendant determine the allegations were “frivolous” if it so lacked information on the validity of the claims as to render it incapable of evaluating them for pre-litigation conciliation? On the record before it, the Court finds that the information provided by the EEOC was sufficient in detail.
In support of its excessive recovery/bad faith argument, Defendant cites to 42 U.S.C. § 1981 a(3)(A), asserting that the maximum amount of compensatory and punitive damages that can be obtained against an employer such as Defendant who has more than 14 but fewer than 101 employees is $50,000 per employee, while the EEOC “demanded” $150,000 on behalf of Ms. Segovia. Resp. at 2, 3. First, the Court notes that no such “demand” was made by the EEOC. Rather, the EEOC’s letter of February 26, 2003 lists the $150,000 dollar amount for Ms. Segovia among its “proposed terms of conciliation.” Medina Aff., Ex. F. The Court finds such “proposed terms of conciliation”
5

reflect an invitation to negotiate an informal resolution and nothing more. Moreover, insofar as Defendant’s bad faith argument is based upon the dollar amount of
damages proposed for Ms Segovia must also fail, for Plaintiff correctly asserts that the Civil Rights Act of 1991 exempts Title VII back pay, interest thereon, and any other type of relief available under Title VII from the compensatory and punitive damage limitations of the Act. 42 U.S.C. § 1981 A(b)(2). Thus, the dollar amount articulated in the EEOC’s initial proposal of February 26, 2003 did not exceed the statutory maximum recovery and cannot form the basis for bad faith negotiations on the part of the EEOC.
Finally, Defendant argues that the proposed terms of the EEOC’s February 26th proposal letter were non-negotiable by virtue of the letter articulating a March 7th deadline for response thereto. Resp. at 3. The Court finds this argument wholly unavailing, for the deadline was reasonable under the circumstances and the terms were, again, expressly referred to by the EEOC as “proposed terms,” indicating that they were, in fact, negotiable. Defendant chose not to engage in pre-litigation negotiations with the EEOC. IV. Conclusion
In summary, the Court finds no genuine issue of material fact in need of resolution on the issue of the sufficiency of the pre-litigation conciliation efforts on the part of the EEOC in this matter. The Court hereby determines that the EEOC satisfied its statutory obligation to engage in informal conciliation as a matter of law. Accordingly, Defendant may not rely on insufficiency of conciliation efforts in its defense of this litigation.
WHEREFORE, IT IS ORDERED that Plaintiff EEOC’s Motion for Partial Summary Judgment as to Any
6

Defense Based Upon Conciliation, filed October 15, 2004 (Doc. 46) is GRANTED. Dated March 9, 2005.

Counsel for Plaintiff:

________________________________________ SENIOR UNITED STATES DISTRICT JUDGE

Loretta Medina, Esq. Veronica A. Molina, Esq. Equal Employment Opportunity Commission Albuquerque, New Mexico

Mary Jo O’Neill, Esq. C. Emanuel Smith, Esq. Equal Employment Opportunity Commission Phoenix, Arizona

Counsel for Defendant:

Linda G. Hemphill, Esq. Stephanie Fuchs, Esq. Linda G. Hemphill, P.C. Santa Fe, New Mexico

7

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

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
vs.
PVNF, L.L.C., d/b/a Chuck Daggett Motors and Big Valley Auto,
Defendant.

CIV-03-991 JC/WDS

MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on Defendant’s Motion for Summary Judgment, filed October 18, 2004 (Doc. 50). Having reviewed the Motion, the parties’submissions, and the relevant authority, the Court finds the Motion well-taken in part and it is, therefore, granted in part. I. Background The following facts are either undisputed or viewed in a light most favorable to the EEOC as non-moving party. This action arises from charges of gender discrimination filed with the EEOC by several of Defendant’s former female employees. At this juncture, Marla Segovia and Joanne Richmond alone comprise the entire class of claimants. Prior to filing suit, the EEOC conducted an investigation of the allegations and concluded that there was reasonable cause to believe Defendant violated Title VII of the Civil Rights Act of 1964 by subjecting Ms. Segovia and a class of female employees to severe and pervasive harassment resulting in a hostile work environment and disparate treatment in the compensation, terms, and

privileges of the women’s employment based on their female gender. The EEOC further found reasonable cause to believe that Ms. Segovia was retaliated against by Defendant for engaging in opposition to employment practices made unlawful by Title VII. Finally, the EEOC’s investigation yielded reasonable cause to believe that, while Segovia’s employment ended by her resignation, she was, in fact, constructively discharged as a result of engaging in opposition to pervasive discrimination based on her gender.
The claim on behalf of Ms. Richmond is limited to disparate treatment in eligibility for employee health insurance benefits based on her female gender. Additionally, the EEOC seeks to recover punitive damages on behalf of both claimants. The EEOC satisfied its statutory requirement to engage in conciliation efforts as prerequisite to filing this suit.1 Defendant presently moves the Court for summary judgment disposition in its favor on all claims. II. Legal Standard
A party is entitled to summary judgment on all or any part of a claim as to which there is no genuine issue of material fact and as to which the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). For purposes of a summary judgment motion, the evidence is viewed in the light most favorable to the non-moving party. Id. The moving party has the initial burden of showing that there is no genuine issue of material fact. Id. at 256. The movant may discharge this burden by pointing out the absence of evidence to support one or more essential elements of the non-moving party's claim, as "a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986).
1See Memorandum Opinion and Order, filed March 9, 2005 (Doc. 93). 2

Once the moving party has carried its burden under Rule 56(c), the non-moving party must do more than merely show that there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party opposing the motion may not rest on mere allegations or denials of pleading, but must set forth specific facts showing a genuine issue for trial. Anderson, 477 U.S. at 248, 256. To meet this burden, the nonmovant must specify evidence in the record and demonstrate the precise manner in which that evidence supports its claims. Gross v. Burggraf, 53 F.3d 1531, 1546 (10th Cir. 1995). Unsupported allegations, conclusory in nature, are insufficient to defeat a proper motion for summary judgment. Id. If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. Matsushita, 475 U.S. at 597. III. Discussion
As a preliminary matter, the Court finds the briefing and exhibits pertaining to this Motion excessive in the extreme. Notwithstanding some four-hundred pages filed by the parties, neither the material facts nor the attendant legal issues are markedly complex. The interests of efficiency and economy would have been better served by adherence to the page limits established by the Local Rules, for the Court had significant difficulty locating the information necessary to make its determinations. A. Ms. Segovia
a. Gender Hostile Work Environment Title VII forbids actions taken on the basis of sex that discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment. Faragher v. Boca Raton, 524 U. S. 775, 786 (1998) (citing 42 U. S. C. § 2000e-2( a)( 1)). Hostile work environment
3

harassment occurs when unwelcome sexual conduct “unreasonably interfer[es] with an individual’s work performance or creat[es] an intimidating, hostile, or offensive working environment.” Smith v. Norwest Financial Acceptance, Inc.,129 F. 3d 1408, 1412 (10th Cir.1997) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U. S. 57, 65 (1986)); 29 C. F. R. S 1604.11(a)( 3). Meritor states that “for sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of [the claimant’s] employment and create an abusive working environment. 477 U. S. at 67. There is no “mathematically precise test” for determining whether conduct is sufficiently severe or pervasive.” Harris v. Forklift Sys., Inc., 510 U. S. 17, 22 (1993). Some factors to be weighed include “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.” Id. at 23. Moreover, the severity and pervasiveness evaluation is particularly unsuited for summary judgment because it is quintessentially a question of fact. McCowan v. All Star Maintenance, Inc., 273 F. 3d 917, 923 (10th Cir. 2001). In Meritor, the Supreme Court also stated that the existence of sexual harassment must be determined in light of the record as a whole, and the trier of fact must examine the totality of the circumstances, including the context in which the alleged incidents occurred. 477 U. S. at 69 (quoting 29 C. F. R. S 1604. 11( b) (1985)) (internal quotation marks omitted). Thus, the Court must examine the totality of the circumstances in reviewing the summary judgment motion with regard to EEOC’s hostile environment claims on behalf of Segovia. Davis v. U.S. Postal Svc., 142 F.3d 1334, 1341 (10th Cir. 1998); Smith, 129 F.3d at 1413.
Defendant contends that Segovia’s hostile work environment claim must fail for (1) lack of sufficient evidence to establish the necessary severity and pervasiveness, and (2) Defendant can
4

successfully assert the Faragher-Ellerth defense because it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and Segovia failed to utilize an anti-harassment policy Defendant had in place. Faragher v. City of Baca Raton, 524 U.S. 775 91998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).
The EEOC responds that viewing the evidence and totality of the circumstances most favorably to Segovia reveals a genuine issue of material fact as to the existence of a hostile work environment. In that vein, the EEOC asserts that the conduct and comments of Defendant’s majority owner, Alva Carter, and used car sales manager, Rodney Ennis, suffice. Specifically, the EEOC alleges that Segovia was often referred to as a “bitch,” was publicly “flipped off” by Ennis while simultaneously being told, “fuck you, bitch,” was frequently exposed to Carter’s sexist views of women as subordinate to men, and was regularly on the receiving end of sexually inappropriate comments to or about Segovia herself and women in general. Segovia’s sex life was also discussed publicly when it was suggested that Segovia’s husband would get a good deal on the purchase of a new vehicle because he was sleeping with the manager, Segovia. Further, the EEOC contends that Segovia received written disciplinary warnings for the same behavior exhibited by her male coworkers, who were not reprimanded. Finally, the EEOC contends that a new pay structure was implemented in order to target Segovia for a pay reduction as a female sales manager while increasing the compensation of her male counterpart in used car sales. In this way, the EEOC contends that the New Pay Plan had a discriminatory purpose and effect.
Defendant argues that the instances cited by the EEOC do not rise to the level of pervasiveness necessary to constitute actionable discrimination based on a hostile work environment. Defendant further contends that the legitimate purpose of the new pay structure was its attempt to
5

resolve the long-standing, heated conflict between Segovia as new car sales manager and Ennis as used car sales manager. Segovia and Ennis undisputedly had frequent, heated disagreements about values assigned to trade-in vehicles. In particular, a high trade-in value helped Segovia sell a new vehicle and make a profit; conversely, the higher the trade-in value Segovia assigned a given vehicle, the more difficult for Ennis to sell that pre-owned vehicle at a desirable profit.
Though the root of the car value conflicts between Ennis and Segovia are inherently of a business nature, likely to arise between coworkers regardless of gender, that fact is not dispositive. The question is whether Ennis’venting his aggression about the trade-in value conflict by publicly attacking Segovia and repeatedly calling her a “bitch” and saying “fuck you” contributed to a hostile work environment, and a reasonable jury could find that it did. After the confrontation in which Ennis said “fuck you, bitch,” Segovia was crying and unable to return to work. Additionally, the existence of the e-mail created by Ennis and sent to one of Segovia’s subordinates referring to Segovia’s “nasty crotch,” while not intended to be read by Segovia, could support an inference that hostility toward females was pervasive in the workplace insofar as it tends to indicate a general attitude, at least on the part of Ennis, that commenting on women’s genitals was appropriate or at least acceptable, which it is not.
In sum, the Court finds that the totality of the circumstances here implicates questions of material fact squarely within the province of the jury as to whether the work environment was objectively and subjectively hostile. The Court further finds that a reasonable jury could conclude, given the totality of the circumstances, that Segovia was subjected to a hostile work environment. Thus, summary judgment disposition is inappropriate on this claim.
b. Gender Disparate Treatment
6

Ms. Segovia The familiar three-stage McDonnell Douglas burden-shifting analysis applies to claims of discrimination where, as here, no direct evidence of discrimination exists. Bullington v. United Air Lines, Inc., 186 F.3d 1201, 1315-16 (10th Cir. 1999). First, a plaintiff must prove a prima facie case of discrimination. The first two elements of Segovia’s prima facie case are met, for (1) she is undisputedly in a protected class as a woman; and (2) she was undisputedly qualified for the position she held. The third element is disputed, that being whether Segovia suffered adverse employment action, particularly in light of the fact that she resigned her employment. Defendant contends that Segovia’s disparate treatment claim should fail for insufficient evidence to form a prima facie case of discrimination and, even if Segovia has marshaled such evidence, Defendant has offered non-discriminatory reasons for the employment actions taken, namely resolution of the ongoing trade-in value conflict, and the EEOC cannot establish that such reasons are mere pretext for intentional discrimination. In support of its position, Defendant points out that the New Pay Plan applied equally to Segovia, a female, as to Ennis, a male. Further, the pay structure continued to apply after Segovia left the dealership, and her replacement was a male to whom the pay structure also applied, at least for some time. Defendant also contends that the written warnings came as a result of numerous complaints that Segovia was either unavailable or talking on the phone instead of doing her job. The EEOC contends that the proffered reason for the New Pay Plan is mere pretext for intentional discrimination against her as a female insofar as the New Pay Plan would result in a reduction in Segovia’s compensation for the same amount of work she had been doing in the past. Conversely, argues the EEOC, Ennis stood to receive increased compensation for the same work he
7

had been performing as a result of the New Pay Plan. The EEOC also notes that the New Pay Plan came directly on the heels of Segovia’s argument with Ennis during which Ennis said, “fuck you, bitch.”
The Court finds that the EEOC has sufficient evidence to make a prima facie case under the MacDonnell Douglas analysis and that sufficient evidence exists from which a reasonable jury could find Defendant’s justification pretextual. Thus, summary judgment disposition is not proper on this claim.
Ms. Richmond The sole claim on behalf of Ms. Richmond is that she was not offered health insurance benefits as were some male coworkers in comparable positions to the one Richmond held. With regard to Title VII equal pay claims, a plaintiff makes a prima facie case of discrimination by showing that she occupies a job similar to that of higher paid males. Sprague v. Thorn Americans, Inc., 129 F.3d 1355, 1363 (10th Cir. 1997). If the Plaintiff satisfies her burden and makes a prima facie showing, the burden shifts to the defendant to produce a facially legitimate, nondiscriminatory reason for its actions. Id. If the defendant does so, the burden shifts back to the plaintiff to show that the defendant’s proffered reason for the action is mere pretext for intentional discrimination. Id.
It is clear that being given less generous benefits than male employees in similar positions is adverse employment action. Sprague v. Thorn Americans, Inc., 129 F.3d 1355, 1363 (10th Cir. 199). The EEOC alleges on behalf of Ms. Richmond that a prima facie case is established in that (1) Richmond is female; (2) while in Defendant’s employ, Richmond received different and less fringe benefits than similarly situated males insofar as she was not offered health insurance benefits; and (3)
8

the similarly situated males were treated differently in that they were offered health insurance benefits. Defendant contends that employee health insurance benefits for its managers were negotiated
on an individual basis, without regard to gender, and that Richmond did not request any health insurance or call any perceived discrepancy to the attention of Ms. Franson. Additionally, Defendant contends that Richmond did not file a charge of discrimination with the EEOC and Richmond’s claim falls outside the scope of the charges filed by Segovia and is not properly before the Court.
The Court finds no evidence that Defendant’s proffered justification for the discrepancy in insurance premium payments is mere pretext for intentional discrimination. Thus, there is no genuine issue of material fact in need of resolution on Richmond’s claim, which is dismissed as a matter of law.
c. Gender Retaliation Defendant seeks summary judgment on Segovia’s retaliation claim, arguing that the EEOC cannot show protected activity, adverse action, or causal connection. On three separate occasions Segovia complained to Chuck Daggett about (1) the derogatory e-mail referring to Segovia’s genitalia as her “nasty crotch,” sent from Ennis to salesman Smith and discovered by Segovia only when Segovia clandestinely logged onto a computer and entered a password not assigned to her; (2) statements Carter had made about not wanting Segovia to hire female sales persons; and (3) Segovia’s receiving a disciplinary write-up for being unavailable and late to work. Segovia also complained to Carter about the aforementioned e-mail. Resp. at 20.2 The EEOC contends that in
2The Court determines that Carter, as majority owner of the company, was a proper person with whom to lodge her complaints. Carter is also alleged to have been a primary contributor to the hostile environment. Taking these two facts together, Carter may be considered alter-ego and availability of the Faragher defense asserted by Defendants is placed in question. Summary judgment, thus, is not appropriate at this juncture. Reluctantly, the Court
9

retaliation for these complaints, Segovia suffered adverse employment action in the form of the written disciplinary Employee Warning Notice and the New Pay Plan. Resp. at 21. Further, it appears to be the EEOC’s position that despite Segovia resigning from her employment at the dealership, the circumstances of her employment and discrimination in the workplace indicate that such resignation was, in fact, a constructive discharge.
Defendant asserts that Segovia’s claim for retaliation should fail as matter of law for lack of evidence that Segovia engaged in any protected conduct, and even if she did, there exists no causal link between the adverse employment action and the protected activity.
The Tenth Circuit liberally defines “adverse employment action.” Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532 (10th Cir. 1998). Ultimately, action is “adverse employment action” if it constitutes a significant change in the employment status such as, but not limited to, hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Id. (emphasis added). The guiding principal in the Court’s case-bycase analysis is that an adverse employment action is one that alters the employee’s compensation, terms, conditions, or privileges of employment, or adversely affects her status as en employee. Heno v. Spring/United Mgmt., 208 F.3d 847, 857 910th Cir. 2000). The Court finds on the facts of this case, a reasonable jury could find that Segovia was retaliated against because of her opposition to workplace discrimination. Thus, summary judgment is not proper on this claim. IV. Conclusion WHEREFORE,
will entertain additional briefing on the issue. Such briefing will be succinct and in conformance with all Local Rules.
10

IT IS ORDERED that Defendant’s Motion for Summary Judgment, filed October 18, 2004 (Doc. 50) is GRANTED on the sole claim brought on behalf of Ms. Richmond and DENIED as to all claims brought on behalf of Ms. Segovia.
Dated this 17th day of March, 2003.
________________________________________ SENIOR UNITED STATES DISTRICT JUDGE
Counsel for Plaintiff: Loretta Medina, Esq. Veronica A. Molina, Esq. Equal Employment Opportunity Commission Albuquerque, New Mexico Mary Jo O’Neill, Esq. C. Emanuel Smith, Esq. Equal Employment Opportunity Commission Phoenix, Arizona
Counsel for Defendant: Linda G. Hemphill, Esq. Stephanie Fuchs, Esq. Linda G. Hemphill, P.C. Santa Fe, New Mexico
11

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

EQUAL EMPLOYMENT OPPORTUNITY COMMISISON,
Plaintiff,
vs.
PVNF, L.L.C., d/b/a Chuck Daggett Motors and Big Valley Auto,
Defendant.

CIV-03-991 JC/WDS

FINDINGS OF FACT AND CONCLUSIONS OF LAW
THIS MATTER came on for trial May 5, 2005 through May 9, 2005 before a jury and the
Honorable John Edwards Conway, Senior United States District Judge. On May 9, 2005, at the
close of Plaintiff’s case-in-chief, Defendant moved the Court for renewed Judgment as a Matter of
Law on all Plaintiff’s claims pursuant to Rule 50 of the Federal Rules of Civil Procedure. I granted
Defendant’s motion. In accordance with my oral ruling on the record at trial, I now enter the
following Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
1. Ms. Segovia was hired by Teague-Strebeck Motors, PVNF’s predecessor corporation, as a car salesperson in November of 1996. Ms. Segovia continued to be employed at the dealership, through a change in ownership, until October 2001.
2. At the time she was hired, Ms. Segovia read, signed and understood a “No Harassment Policy/Procedure” pursuant to which employees were required to make their complaints of harassment known to their supervisor and beyond, if necessary.
3. In January 1997, Ms. Segovia received an “Employee Warning Notice,” which placed her

on probation.
4. In or around January of 2000, Ms. Segovia was promoted to the position of Finance Manager.
5. Sometime between January 2000 and July 2000, Ms. Segovia was promoted to the position of Finance Manager by Chuck Daggett, the General Manager of Teague-Strebeck Motors.
6. A Finance Manager is a member of management who participates in management meetings.
7. While serving as Finance Manager, Ms. Segovia had a disagreement with another employee, Brad Daggett, and walked out on the job. Ms. Segovia returned to work after she was asked to come back.
8. In June 2001 Ms. Segovia was again promoted by Chuck Daggett and became New Car Manager.
9. While serving as New Car Manager, Ms. Segovia enjoyed greater compensation than any other member of management except Chuck Daggett.
10. During the time that Ms. Segovia was New Car Manager, Rodney Ennis served as Used Car Manager.
11. Ms. Segovia and Mr. Ennis had an ongoing conflict arising from the nature of their respective compensation arrangements; Ms. Segovia had incentive to place high values on trade-in vehicles to facilitate sales of new vehicles, while Mr. Ennis stood to benefit from lower trade-in values which would facilitate sales of the used vehicles from his lot.
12. The aforementioned conflict erupted in early September 2001, when Ms. Segovia and Mr. Ennis had a confrontation over a trade-in value. During that heated conversation, Mr. Ennis, in response to what he perceived as a snide remark from Ms. Segovia, said “fuck you, bitch” to Ms. Segovia, simultaneously raising his middle finger to her.
13. In response to Mr. Ennis’inappropriate remark and gesture, Ms. Segovia walked away.
14. While Ms. Segovia was walking away, Alva Carter called after her that she should stay in the conversation if she wanted to keep her job.
15. Ignoring Mr. Carter, Ms. Segovia continued to walk away. Mr. Carter then approached Ms. Segovia and asked her to get back to work. Ms. Segovia did not lose her job as a result of walking away from the conversation in which Mr. Ennis cursed at her in front of
2

Alva Carter, nor was Ennis formally reprimanded for cursing at Segovia in front of Mr. Carter.
16. Alva Carter regularly threatened both male and female employees with replacement by farm hands.
17. At one point during her employment, Ms. Segovia discussed with Chuck Daggett a comment made by Alva Carter in which Mr. Carter expressed a belief that male customers prefer to deal with male salespersons. Mr. Daggett advised Ms. Segovia that perhaps she should go to the EEOC, as she had considered doing. Ms. Segovia did not discuss Mr. Carter’s behavior with any person from the EEOC until after she resigned her employment.
18. On one occasion when Ms. Segovia’s husband was present in the dealership, Mr. Carter made a remark to the effect that Segovia’s husband would get a good deal on a new vehicle by virtue of being intimate with the manager, his wife.
19. On or about September 5, 2001, Ms. Segovia accessed the password-protected personal email account of Chuck Daggett in order to erase an email she regretted sending to him. While Ms. Segovia was accessing Mr. Daggett’s personal email without his permission, she saw and read an email exchange between a salesman in new cars named Smith and Mr. Ennis. Ms. Segovia was the subject of the email, which discussed Segovia’s “nasty crotch” being exposed to customers because her skirt was short and referred to her as a”bitch.”
20. The derogatory email had been forwarded to Chuck Daggett but Daggett had not seen it.
21. On the day the aforementioned email was written, a problem between Smith and Segovia had arisen; Segovia had embarrassed Smith by sliding magazines under the bathroom door while Smith occupied the bathroom and customers were waiting to see a salesperson.
22. As a manager, Ms. Segovia enjoyed the discretion to “write-up” an employee whose conduct was improper.
23. As part of an overall salary reduction effort, and in order to equalize the pay between the New and Used Car Manager, Ms. Segovia and Mr. Ennis received a new pay plan on October 3, 2001.
24. Ms. Segovia received her copy of the New Pay Plan in an envelope, which envelope also contained a written Warning Notice pertaining to her chronic lateness and complaints from salespeople of her general lack of availability to them. The Notice requested that Ms. Segovia correct the behavior.
3

25. Ms. Segovia presumed that the new pay plan would affect her adversely, though she did not review the plan thoroughly before reaching her conclusion.
26. Upon receipt of the documents, Ms. Segovia threw the Warning Notice on Chuck Daggett’s desk and told him it was unacceptable. After talking with a friend of hers at the dealership, Ms. Segovia returned to Mr. Daggett’s office and resigned from her job.
27. The person who occupied Ms. Segovia’s New Car Manager position after she left was a male and he was subject to the new pay plan. The plan remained in force until after Mr. Ennis left the dealership.
28. Shortly after resigning, Ms. Segovia expressed a desire to return to Defendant dealership in a capacity other than New Car Manager.
29. After Ms. Segovia left Defendant dealership, she was offered a Finance Manager position with another dealership and declined the position.
30. Ms. Segovia testified at trial that she left her employment with Defendant because she realized her children were her first priority and that her job “wasn’t worth it” anymore.
CONCLUSIONS OF LAW
1. Ms. Segovia failed to establish that she was the object of harassment because of her gender.
2. Taking any comments made by Mr. Carter in the context of Ms. Segovia having been consistently promoted, ultimately to the second highest compensated manager at the dealership, it cannot be inferred that any of the comments Segovia attributes to Alva Carter interfered with her work performance.
3. Mr. Carter’s comments pertaining to replacing his workers with farmhands were not gender-based.
4. The fact that Mr. Ennis was not formally reprimanded for calling Segovia a “bitch” is insufficient to establish gender bias.
5. The derogatory email about Ms. Segovia that makes reference to Segovia’s “nasty crotch,” though appalling in its vulgarity and understandably disturbing for Segovia to read, is insufficient to establish the requisite severity and pervasiveness sufficient to support a hostile work environment claim.
6. Ms. Segovia voluntarily left her employment with Defendant and insufficient evidence was presented to support Segovia’s claims under theories of constructive discharge or
4

retaliation. Ms. Segovia did not establish that any reasonable person in Segovia’s position would have felt compelled to resign and her subjective views are irrelevant to the objective inquiry. Segovia’s own statement that she quit her job because it wasn’t worth it anymore and her children came first further undermines any contention that she was constructively discharged.
7. Neither the New Pay Plan nor the Warning Notice was shown to have a discriminatory purpose or effect, nor did the evidence presented pertaining to either document support a retaliation claim. Moreover, Ms. Segovia did not attempt to take any steps short of resignation to resolve her issues with the New Pay Plan or Warning Notice.
8. Ms. Segovia’s admitted desire to return to work for Defendant eviscerates her contention that the workplace was intolerable.
9. There is no legally sufficient basis for a reasonable jury to find for Plaintiff on any claim presented; thus, Judgment as a matter of law is granted in favor of Defendant and against Plaintiff on all claims pursuant to Rule 50 of the Federal Rules of Civil Procedure.
Dated June 29, 2005.
________________________________________ SENIOR UNITED STATES DISTRICT JUDGE
Counsel for Plaintiff:
Loretta Medina, Esq. Veronica A. Molina, Esq. Equal Employment Opportunity Commission Albuquerque, New Mexico
Mary Jo O’Neill, Esq. C. Emanuel Smith, Esq. Equal Employment Opportunity Commission Phoenix, Arizona
Counsel for Defendant:
Linda G. Hemphill, Esq. Stephanie Fuchs, Esq. Linda G. Hemphill, P.C. Santa Fe, New Mexico
5

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

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
vs.
PVNF, L.L.C., d/b/a Chuck Daggett Motors and Big Valley Auto,
Defendant.

CIV-03-991 JC/WDS

MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Plaintiff’s Motion to Amend the Court’s Findings of Fact and Conclusions of Law and Final Judgment and Motion for a New Trial, filed July 14, 2005 (Doc. 137). The Court, having reviewed the Motion, the parties’submissions, the relevant authority, and the record, finds the Motion not well-taken and it is, therefore, DENIED. I. Background
This matter came on for jury trial May 5, 2005 through May 9, 2005. On May 9, at the close of Plaintiff’s case-in-chief, Defendant moved the Court for judgment as a matter of law on all claims asserted by Plaintiff pursuant to FED.R.CIV.P 50. Following oral argument, the Court granted Defendant’s motion. On June 30, 2005, the Court entered (1) Findings of Fact and Conclusions of Law (Doc. 135) (“Findings and Conclusions”) in support of its May 9, 2005 oral ruling; and (2) Final Judgment (Doc. 136) (“Judgment”) in favor of Defendant and against Plaintiff on all claims with

prejudice. On July 14, 2005, Plaintiff filed the present Motion seeking amendment to the Court’s Findings and Conclusions pursuant to FED.R.CIV.P. 52(b) or, in the alternative, requesting a new trial pursuant to FED.R.CIV.P. 59(a). II. Legal Standard
Proper grounds for a Rule 52(b) motion to amend include newly discovered evidence, a change in the law, or a manifest error of fact or law. See, e.g., Foutenot v. Mesa Petroleum Co., 791 F.2d 1207 (5th Cir. 1986). Rule 59(a) states in pertinent part: “[a] new trial may be granted . . . in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law . . . .” FED. R. CIV. P. 59(a). The Tenth Circuit has stated that a motion for a new trial is not regarded with favor and should only be granted with great caution. United States v. Kelly, 929 F. 2d 582, 586 (10th Cir. 1991). The decision to grant a motion for a new trial is committed to the trial court’s sound discretion. McDonough Power Equip., Inc. v. Greenwood, 464 U. S. 548, 556 (1984). In reviewing a motion for a new trial, the Court must view the evidence in the light most favorable to the non-moving party. See Griffin v. Strong, 983 F. 2d 1544, 1546 (10th Cir. 1993). III. Discussion
A. Timing of Motion As a preliminary matter, Defendant contends that the Court lacks jurisdiction to entertain Plaintiff’s Motion because it was untimely filed. Proper application of FED.R.CIV.P. 6, however, confirms Plaintiff filed within the ten-day period following entry of the Findings and Conclusions and Final Judgment. Thus, Plaintiff’s Motion is timely. B. Objections
2

Rule 50(a)(1) permits a district court to grant a motion for judgment as a matter of law "if during a trial by jury a party has been fully heard with respect to an issue and there is no legally sufficient evidentiary basis for a reasonable jury to have found for that party with respect to that issue. . . ." FDIC v. Palermo, 815 F.2d 1329, 1335 (10th Cir. 1987); see also Bangert Bros. Constr. Co. v. Kiewit Western Co., 310 F.3d 1278, 1286 (10th Cir. 2002).
1. Findings None of Plaintiff’s objections to the Court’s Findings and Conclusions is persuasive. As discussed below, the objections are either unsupported by law, challenge the Court’s word choice in what can only be described as a frivolous manner, impermissibly seek to relitigate old issues, or are otherwise unavailing. First, Plaintiff challenges Findings Nos. 2 and 3 as irrelevant under FED.R.EVID. 401, in effect seeking to relitigate its prior motion requesting exclusion of evidence. The Court, upon review, declines to disturb its prior evidentiary rulings. Regarding Plaintiff’s more particular objection to Finding No. 2, which finding notes that Segovia signed and understood a “No Harassment Policy/Procedure”pursuant to which Teague-Strebeck employees were instructed to make complaints of harassment known to their supervisor and beyond, the Court has reviewed Segovia’s testimony. At trial, Segovia testified to her belief that, absent any indication otherwise, all business continued as it had under Teague-Strebeck Motors. Segovia Dep. at 87:25-29; Tr. at p. 400 ll. 9-17. But see Tr. p. 399, ll. 9-15. Thus, even viewed in the light most favorable to Plaintiff, the facts establish Segovia’s own belief that the policy remained in effect through the succession. Yet Plaintiff did not properly avail herself of those procedures as she understood them to be. Plaintiff next argues that Finding of Fact No. 3 erroneously “suggests that Ms. Segovia was
3

on probation since receipt of a January 1997 ‘Employee Warning Notice.’” Pl’s Mem. at 2. The

Court did not intend to make such a suggestion, but instead aimed only to note that Segovia had, on

at least one occasion, been issued a warning by Defendant’s predecessor, Teague-Strebeck Motors.

Such evidence is relevant because Plaintiff placed her own employment record in issue by challenging

the disciplinary action taken against her as compared to action taken--or not taken--against her male

coworkers and by introducing evidence regarding her overall employment history.

Plaintiff’s

next challenge involves Findings Nos. 11-15. Plaintiff challenges Finding No. 13 on the ground that

it erroneously concludes Segovia walked away from the referenced conversation “in response to

Ennis’inappropriate, offensive remark and gesture” when instead, Plaintiff asserts, Segovia “started

to cry and started to turn and walk off” but actually walked off shortly thereafter. Pl’s Mem. at 4.

The distinction is noted, but of little significance. It is undisputed that Plaintiff relies heavily on

having walked away from that heated conversation as evidence that she complained about sexual

harassment and discrimination. See, e.g., Mot. at 4,18. In that vein, Segovia testified as follows:

“I felt like me walking away from a heated conversation was a complaint to Mr. Carter that I didn’t

want--I didn’t want to be treated like that. I felt like that was a complaint.” Tr. at p. 319 ll. 25-28;

p. 320. The problems with Plaintiff’s theory are two-fold. First, Carter cannot be required to

understand or act upon something Segovia felt but never expressed with words. Second, even if

Carter understood that by walking away she was asserting that she “didn’t want to be treated like

that,”there is no evidence in that scenario that Ennis’treatment of Segovia was based on her gender.

Presumably, Plaintiff relies on the word “bitch” in Ennis’comment to establish a gender link. Yet,

by Plaintiff’s own argument, significant time elapsed and much discussion took place between the

word “bitch” being uttered by Ennis and Segovia walking away. How then is Carter to infer that

4

Segovia was complaining to him about gender harassment? Moreover, it is undisputed that Segovia never complained to Daggett about Ennis’remark and gesture. In light of all evidence, the Court determines that the distinction Plaintiff makes in its objection to Finding No. 13, though perhaps technically accurate, is without consequence. Timing and semantics aside, Segovia’s actions do not constitute an informal opposition to gender-based harassment to assist Plaintiff in meeting its burden of proof at trial and Plaintiff provides no authority establishing otherwise.
Plaintiff also accuses the Court of mischaracterizing Segovia’s comment to Ennis that he “go home and go to bed,” as “snide” when in fact Ennis described it as “sarcastic.” Mot. at 4. Here, the Court will note only that, given the attendant circumstances, Segovia’s comment would universally be perceived as offensive. The evidence at trial unequivocally established that Mr. Ennis made his inappropriate comment and gesture in response to Segovia’s sarcastic remark to him. This remains true whether Segovia’s comment is referred to as “sarcastic” or “snide.” In sum, the Court finds Plaintiff’s objections to Finding No. 13 unavailing at best.
Regarding Finding No. 14, Plaintiff asserts that it is “erroneous as it concludes that Alva Carter told Ms. Segovia she ‘should’stay in the conversation. Actually Alva Carter ordered Ms. Segovia to stay.” Mot. at 4 (citing Tr., pp. 150-151 and 318) (emphasis added). Perhaps this is Plaintiff’s attempt at a play on words. In its pursuit of accuracy, the Court has reviewed the transcript only to find no witness ever used the word “ordered” in describing Carter’s direction to Segovia. Instead, Mr. Ennis stated “Alva told her to come back.” Tr. p. 150:22-23. There is nothing erroneous about the Court’s use of the word “should” in this context. Plaintiff merely makes a frivolous challenge.
Similarly frivolous and unavailing are Plaintiff’s objections to Findings of Fact Nos. 11-15.
5

Here, Plaintiff denies that the evidence established an inherent conflict between Ennis and Segovia based on the nature of their respective compensation arrangements. This argument gives the Court great pause and concern, for it is beyond all reasonable contention that a conflict of that exact nature existed. Notwithstanding unrebutted testimony establishing the nature of the conflict, Plaintiff postulates that the admitted conflict between Ennis and Segovia could instead be attributed to Ennis “not liking that a woman had the potential to make and did make more money than him.” Pl’s Mem. at 3. Yet no sufficient factual basis exists to support Plaintiff’s hypothesis. All evidence introduced at trial leads to the same conclusion--Segovia and Ennis were in direct competition with one another by virtue of the jobs they held and the associated pay plans which pitted the new car and used car sales managers against one another. (“Chuck liked to have steak and beans contests, used cars against new cars...I think [Chuck] thought if he put us in a competitive type of thing, it would generate this competitiveness and sales would flourish and boom.” Tr. at p. 155 ll 15-19); (“[w]e were paid off the profit margin. It’s called gross. If I say ‘gross,’that means profit in cars. And I got paid off the used cars and Marla got paid off new cars.” Tr. p. 153 ll 19-22.) Specifically, as New Car Manager, Segovia benefitted financially from high trade-in values assigned to pre-owned vehicles which facilitated a new car sale from which Segovia was compensated. As Used Car Manager, Ennis, on the other hand, stood to reap higher compensation from lower trade-in values assigned to pre-owned vehicles because lower values enabled him to sell vehicles on his used lot more readily and for a higher profit. It was this inherent conflict, and the need for resolution thereof, that Segovia herself readily identified when she commented that the competition was down the street, not across the street. There was virtually no evidence at trial establishing that the conflict arose because Ennis believed a woman should not make more money than him. To the contrary, Ennis stated, “I
6

didn’t complain that Marla [Segovia] made more money than me to Chuck; I just complained about the pay plan.” Tr. at p. 156 ll. 17-19. This statement was unrefuted. When objecting to Finding No. 17 as against the weight of the evidence, Plaintiff states that such finding “can only have been made if the Court made a credibility determination that should have been left to the jury.” Mot. at 5. The testimony at trial established, however, that the discussion took place and its content is accurately represented in Finding No. 17. This objection can only be described as frivolous.
Finally, the Court addresses Plaintiff’s disturbing mischaracterization of the evidence when stating that Ms. Segovia “received” a derogatory e-mail. Reply at 6 (stating that Segovia took the day off “after receipt of the derogatory e-mail....”). That mail was, in fact, sent from Smith to Ennis, forwarded by Ennis to Daggett, and intercepted by Segovia. Because Plaintiff has chosen to take issue with word choice at every opportunity, the Court is compelled to address this issue in detail. The undisputed evidence established that Segovia entered the password-protected electronic mail account belonging to her boss, without his knowledge or permission, and read his mail. Segovia’s response to reading the e-mail was to take a day off and author her own distasteful e-mail to Daggett, explaining that she would be absent from work because she was shopping for clothing to cover her “so-called balls.” Apparently, EEOC considers this to be a complaint for purposes of Title VII litigation.
Moreover, the means by which Segovia discovered the e-mail did not render it inadmissible, though the fact that it was not intended to be seen by Segovia limits its evidentiary value vis-a-vis most of Segovia’s claims. Plaintiff apparently recognizes this weakness, finding it necessary to mischaracterize the e-mail as having been “received”by Segovia. Reply at 6. Given the way Segovia discovered the private mail, the only claim its contents might support is hostile work environment,
7

insofar as the email could be indicative of a prevailing climate at the dealership.1 Its author, Smith, was in no position to take retaliatory action or discriminate against Segovia, nor was the intended recipient, Ennis. Further, no evidence of discrimination or harassment of Segovia can be inferred from mail between she was never intended to see. Moreover, no meaning can be attributed to Daggett’s purported inaction on the e-mail initially, for it was intercepted by Plaintiff before he even read it. Finally, the testimony at trial established that when Daggett became aware of the e-mail, he verbally reprimanded both Ennis and Smith and directed both men to apologize to Plaintiff. Plaintiff was not reprimanded for the distasteful e-mail she sent her boss in response.
2. Conclusions Plaintiff challenges Conclusions of Law Nos. 1, 2, 3, 4, 5, 6, 7, 8, and 9--every Conclusion the Court reached. The Court will expound only upon Plaintiff’s objection to Conclusion No. 8, as it bears on the Court’s analysis elsewhere. The Court articulated in No. 8 that Plaintiff’s admitted desire to return to work at Defendant dealership, an employer that was allegedly discriminatory, harassed her, retaliated against her, and provided a hostile work environment for her, negates her contention that the workplace was intolerable. The Court stands by that Conclusion, notwithstanding Plaintiff’s contention that it “is a conclusion of fact not supported by the evidence and is not a correct conclusion of law.” Mot. at 19. Plaintiff apparently believes that by characterizing her claims as arising only during the time she served as New Car Manager, she can establish that it was
1Incidentally, if the Court were to improperly assess witness credibility as accused, which it has not, it might, for instance, find the characterization of Segovia’s skirt in the private e-mail as being short more credible than her testimony that it was not. It is unlikely that Smith would mischaracterize the length of Segovia’s skirt when both men were present at the dealership, as was Segovia, and the length of the skirt was verifiable. This is not to suggest, however, that commenting on skirt length is proper or the e-mail not vulgar.
8

“reasonable” to seek re-employment at the dealership in some other capacity following her resignation. Id. Yet by posturing the allegedly intolerable conditions as associated solely with being a woman in the New Car Manager position, the testimony of Segovia’s former coworkers is then of little or no assistance to Plaintiff on her claims, for none of them occupied the New Car Manager position or one equivalent thereto. Moreover, though not included in its Findings and Conclusions, the Court takes the opportunity to note for the record that Segovia admittedly told her coworker, Chris Wood, that she quit her job because of “PMS.”2 IV. Conclusion
In summary, after careful review, it is without reservation that the Court reiterates its conclusion that Plaintiff failed to meet its burden of proof at trial on its claims alleging discrimination, harassment, retaliation, or hostile work environment. Plaintiff’s sweeping objections amount to much sound and fury signifying little. Finding insufficient grounds to alter its Findings of Fact and Conclusions of Law or to grant a new trial in this matter, the Court denies Plaintiff’s Motion.
Wherefore, IT IS ORDERED that Plaintiff’s Motion to Amend the Court’s Findings of Fact and Conclusions of Law and Final Judgment and Motion for a New Trial, filed July 14, 2005 (Doc. 137) is DENIED. Dated November 2, 2005.
_________________________________________ SENIOR UNITED STATES DISTRICT JUDGE
2There was testimony that Segovia actually said “fucking PMS” caused her to quit her job, while Segovia testified that she did not say “fucking” but said only that she was “suffering from PMS” on the day she resigned. Semantics.
9

Counsel for Plaintiff: Loretta Medina, Esq. Veronica A. Molina, Esq. Equal Employment Opportunity Commission Albuquerque, New Mexico Mary Jo O’Neill, Esq. C. Emanuel Smith, Esq. Equal Employment Opportunity Commission Phoenix, Arizona
Counsel for Defendant: Linda G. Hemphill, Esq. Stephanie Fuchs, Esq. Linda G. Hemphill, P.C. Santa Fe, New Mexico
10

 
 Case 1:03-cv-00991-JEC-WDS Document 180-1 Filed 10/11/07 Page 1 of 4

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

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

PVNF, L.L.C., d/b/a Chuck Daggett Motors and )

Big Valley Auto,

)

)

Defendant.

)

CIV-03-991 JC/WDS (ACE)

SETTLEMENT AGREEMENT

This agreement is entered into by the Plaintiff United States Equal Employment

Opportunity Commission, (“EEOC”), and Defendant PVNF, L.L.C., d/b/a Big Valley Auto,

formerly doing business as Chuck Daggett Motors (“PVNF”).

The EEOC filed this action against Defendant under Title VII of the Civil Rights Act of

1964 and Title I of the Civil Rights Act of 1991 in October, 2003 on behalf of a “pregnancy

discrimination class” and a “sex discrimination class.” In order to settle the claim of the one

individual remaining in the “pregnancy discrimination class,” Michelle Reid, the parties entered

into a Consent Decree in April, 2004 and the Consent Decree expired on April 26, 2007, with

compliance reported by PVNF. Thereafter, EEOC dismissed the hostile work environment claim

of one of the two “sex discrimination class” claimants, Joanne Richmond (“Richmond”), and her

remaining claim of disparate treatment was dismissed on summary judgment. Subsequently, the

Exhibit A

Case 1:03-cv-00991-JEC-WDS Document 180-1 Filed 10/11/07 Page 2 of 4
parties tried the claims of the only remaining individual in the “sex discrimination class,” Marla Segovia (“Segovia”) before the U.S. District Court for the District of New Mexico in May, 2005. At the close of EEOC’s case in chief at trial, the Court granted PVNF’s Motion for Judgment as a matter of law pursuant to Fed.R.Civ.P. 50, and later concluded that certain claims brought by EEOC were “frivolous, unreasonable or without foundation,” entitling PVNF to recover its attorney’s fees in connection with that portion of Richmond’s claim related to disparate treatment and all of Segovia claims. Subsequently, the EEOC appealed the Court’s rulings to the Tenth Circuit Court of Appeals, which reversed the District Court’s grant of judgment as a matter of law and remanded the case to the District Court for a trial on the merits on Segovia’s claim of hostile work environment. The Tenth Circuit Court of Appeals also determined that the case was not “meritless, groundless or without foundation,” and reversed the District Court’s decision to award PVNF attorney’s fees in connection with Segovia’s claims. EEOC did not challenge that portion of the District Court’s ruling related to EEOC’s obligation to pay attorney’s fees related to Richmond’s disparate treatment claim.
Rather than relitigate Segovia’s hostile work environment claim or the issue of how much in attorney’s fees PVNF is entitled to receive as a result of EEOC’s pursuit of the Richmond disparate treatment claim, the parties and Segovia now wish to settle and compromise their respective claims according to the following terms.
1. Within 30 (thirty) days of the entry of the Court’s Order of Dismissal or sooner if practicable, the EEOC shall pay PVNF the sum of $2,500.00 in full and complete satisfaction of any claims by PVNF for attorney’s fees, costs or expenses relating to the Richmond disparate treatment claim. The parties agree that this sum represents a
2

Case 1:03-cv-00991-JEC-WDS Document 180-1 Filed 10/11/07 Page 3 of 4
complete settlement of any claims for attorney’s fees, costs or expenses that PVNF could claim or has claimed. 2. Within 10 (ten) business days of PVNF’s receipt of a check from the EEOC pursuant to Paragraph 1 above, PVNF shall pay Marla Segovia the sum of $2,500.00. PVNF shall pay this settlement amount to Marla Segovia via wire transmission or a check from the Trust Account of Linda G. Hemphill, P.C. that shall be mailed to Marla Segovia at the address to be provided to PVNF’s counsel by the EEOC. PVNF shall also issue Marla Segovia an IRS form 1099 in January, 2008, to report this payment. Within 10 (ten) business days of issuance of the check to Marla Segovia, Defendant shall submit a copy of the check and any related correspondence to the Regional Attorney, Equal Employment Opportunity Commission, Legal Unit, Albuquerque Area Office, 505 Marquette, NW, Suite 900, Albuquerque, New Mexico, 87102. 3. The parties have agreed to fully and finally resolve this litigation through entry of this Agreement. 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 Facts and Conclusions of Law. This agreement does not constitute an admission of liability by PVNF and PVNF expressly denies liability to EEOC or Segovia. Nor does this agreement constitute any admission by EEOC as to the propriety or amount of PVNF’s claims for fees, costs or expenses relating to the Richmond claim.
Respectfully submitted, Mary Jo O’Neill Regional Attorney
3

Case 1:03-cv-00991-JEC-WDS Document 180-1 Filed 10/11/07 Page 4 of 4
Sally C. Shanley Supervisory Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Phoenix District Office 3300 N. Central Avenue, Suite 690 Phoenix, Arizona 85012
/s/ Loretta Medina Loretta Medina Senior Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION Albuquerque Area Office 505 Marquette NW, Suite 900 Albuquerque, New Mexico 87102 (505) 248-5230 Attorneys for Plaintiff
LINDA G. HEMPHILL, P.C.
_Approved via email, 10-4-07_____ Linda G. Hemphill, Esq. Christa M. Okon, Esq.
834 Dunlap Street Santa Fe, New Mexico 87501 (505) 986-8515 Attorneys for Defendant
4

 
 Case: 1:03-cv-991 As of: 06/02/2017 09:23 AM MDT 1 of 11
CLOSED,REFER,REOPEN,TERMED
U.S. District Court District of New Mexico − Version 6.1 (Albuquerque) CIVIL DOCKET FOR CASE #: 1:03−cv−00991−JEC−WDS

EEOC v. PVNF LLC Assigned to: District Judge John E. Conway Referred to: Magistrate Judge W. Daniel Schneider Demand: $0 Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 08/25/2003 Date Terminated: 10/11/2007 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government 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

Eric S Dreiband 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 (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

Case: 1:03-cv-991 As of: 06/02/2017 09:23 AM MDT 2 of 11
Email: veronica.molina@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
PVNF LLC doing business as Chuck Daggett Motors doing business as Big Valley Auto

represented by Linda G Hemphill The Hemphill Firm, P.C. PO Box 33136 Santa Fe, NM 87594 505−986−8515 Fax: 505−986−1132 Email: linda@hemphillfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christa M Okon El Patio Building, Suite A 117 N. Guadalupe Street Santa Fe, NM 87501 505−989−4500 Fax: 505−989−4501 Email: cmokonlaw@aol.com ATTORNEY TO BE NOTICED
Stephanie A Fuchs Law Access New Mexico 7200 Montgomery Blvd. NE #196 Albuquerque, NM 87109 (505) 944−7170 Fax: 986−1132 Email: stephanie@lawaccess.org ATTORNEY TO BE NOTICED

Date Filed 08/25/2003 08/27/2003 10/07/2003 10/09/2003 11/17/2003 12/10/2003
12/23/2003 01/13/2004 01/20/2004 01/23/2004

# Docket Text
1 COMPLAINT for employment discrimination w/jury demand (0 Summons(es) issued) (referred to Magistrate Judge W. D. Schneider) (ed) (Entered: 08/26/2003)
SUMMONS issued as to defendant (emr) (Entered: 08/27/2003)
2 ENTRY OF APPEARANCE for deft by Linda G. Hemphill (mjr) (Entered: 10/07/2003)
3 ANSWER by defendant [1−1] (mjr) (Entered: 10/09/2003)
4 NOTICE of non−availability by Linda G. Hemphil, attorney for PVNF LLC from 11/19/03 though 12/4/03 (former employee) (Entered: 11/17/2003)
5 INITIAL SCHEDULING ORDER by Magistrate Judge W. D. Schneider Rule 16 scheduling conference set for 1/20/04 at 9:20 am; provisional discovery plan & IPTR due 1/13/04 (cc: all counsel*) (vv) (Entered: 12/10/2003)
6 PROVISIONAL DISCOVERY PLAN by parties * (vv) (Entered: 12/23/2003)
7 CERTIFICATE of service by plaintiff of initial disclosures to counsel on 1/13/04 * (vv) (Entered: 01/13/2004)
9 CLERK'S MINUTES: before Magistrate Judge W. D. Schneider Rule 16 scheduling conference held (vv) (Entered: 01/26/2004)
8 ORDER by Magistrate Judge W. D. Schneider setting settlement conference for 6/29/04 at 9:00 am (cc: all counsel*) (vv) (Entered: 01/23/2004)

Case: 1:03-cv-991 As of: 06/02/2017 09:23 AM MDT 3 of 11

01/30/2004 02/02/2004
03/02/2004 03/02/2004 04/05/2004 04/05/2004 04/21/2004 04/26/2004 04/28/2004 05/12/2004 05/13/2004 05/18/2004 05/18/2004 05/27/2004 06/01/2004 06/15/2004
06/15/2004 06/15/2004 07/15/2004 07/28/2004

10 CERTIFICATE of service by deft of initial disclosures to counsel on 1/12/04 (mjr) (Entered: 01/30/2004)
11 INITIAL PRE−TRIAL REPORT by Senior Judge John E. Conway and Magistrate Judge W. D. Schneider; Discovery set for 6/18/04 mtn filing ddl set for 8/5/04; proposed pretrial order due 10/21/04; pretrial conference set for 11:00 am on 11/23/04 jury trial set for 8:30 am on 12/14/04; Estimated # of Trial Days: 7−10; Chances of Settlement: cannot be evaluated until discovery (cc: all counsel) (vv) (Entered: 02/02/2004)
12 CERTIFICATE of service by plaintiff of 1st request for admissions, request for interrogatories, request for production to counsel on 3/2/04 * (vv) (Entered: 03/02/2004)
13 CERTIFICATE of service by plaintiff of 1st supplemental initial disclosures to counsel on 3/2/04 * (vv) (Entered: 03/02/2004)
14 CERTIFICATE of service by deft of first requests for production to counsel on 4/1/04 (mjr) (Entered: 04/05/2004)
15 CERTIFICATE of service by deft of first set of interrogs to counsel on 4/1/04 (mjr) (Entered: 04/05/2004)
16 CERTIFICATE of service by deft PVNF LLC of answers & objections to 1st set of interrogs, 1st request for production and 1st request for admissions to counsel on 4/21/04 (td) (Entered: 04/21/2004)
17 CONSENT JUDGMENT [DECREE] by Senior Judge John E. Conway pertaining to charging party Tammy Hulce, claimant Michelle Reid & Pregnancy Class only (cc: all counsel) (vv) (Entered: 04/26/2004)
18 ORDER by Magistrate Judge W. D. Schneider re oral mtn to compel as described herein (cc: all counsel*) (vv) (Entered: 04/28/2004)
19 CERTIFICATE of service by plaintiff of 2nd supplemental initial disclosures to counsel on 5/11/04 * (vv) (Entered: 05/12/2004)
20 UNOPPOSED MOTION by plaintiff to extend time to serve mtn to compel * (vv) (Entered: 05/13/2004)
21 CERTIFICATE of service by plaintiff of answers & objections to 1st set of interrogatories to counsel on 5/18/04 * (vv) (Entered: 05/18/2004)
22 CERTIFICATE of service by plaintiff of answers & objections to 1st request for production of documents to counsel on 5/18/04 * (vv) (Entered: 05/18/2004)
23 JOINT MOTION to extend the discovery deadline and deadline for filing mtns and to vacate the settlement conference (mjr) (Entered: 05/27/2004)
24 CERTIFICATE of service by plaintiff of 3rd supplemental initial disclosures to counsel on 6/1/04 * (vv) (Entered: 06/01/2004)
25 ORDER by Magistrate Judge W. D. Schneider granting joint motion to extend the discovery deadline and deadline for filing mtns [23−1] & to vacate the settlement conference [23−2] Discovery cutoff reset for 8/30/04; Motion Filing cutoff reset for 10/18/04 & settlement conference reset for 9/16/04 (cc: all counsel) (vv) (Entered: 06/15/2004)
26 ORDER by Magistrate Judge W. D. Schneider resetting settlement conference for 9/16/04 at 9:00 am (cc: all counsel*) (vv) (Entered: 06/15/2004)
27 MINUTE ORDER: by direction of Senior Judge Conway Pretrial conference reset for 1/26/05 at 11:00 am ; Jury trial reset for 3/8/05 at 8:30 am (cc: all counsel) (vv) (Entered: 06/15/2004)
28 CERTIFICATE of service by deft of first supplemental disclosure to counsel on 7/15/04 (mjr) (Entered: 07/15/2004)
29 CERTIFICATE of Service by pltf of 2nd request for admissions, interrog(s) & for production to counsel on 7/27/04* (pr) (Entered: 07/28/2004)

Case: 1:03-cv-991 As of: 06/02/2017 09:23 AM MDT 4 of 11

08/26/2004 08/30/2004 09/09/2004 09/13/2004 09/17/2004 10/13/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004 10/15/2004

30 CERTIFICATE of service by deft of second supplemental disclosure to counsel on 8/26/04 (mjr) (Entered: 08/26/2004)
31 CERTIFICATE of service by deft of answers & objections to 2nd request for admissions, 2nd request for production & 2nd set of interrogatories to counsel on 8/30/04 (td) (Entered: 08/30/2004)
32 ORDER vacating & resetting settlement conference for 9/17/04 at 1:30 pm by Magistrate Judge W. D. Schneider (cc: all counsel*) (vv) (Entered: 09/09/2004)
33 CERTIFICATE of service by deft of first supplemental answer to first set of interrogs to counsel on 9/13/04 (mjr) (Entered: 09/13/2004)
34 SETTLEMENT CONFERENCE held before Magistrate Judge Schneider; case did not settle (vv) (Entered: 09/20/2004)
35 UNOPPOSED MOTION by defendant to exceed page limitation for pleadings related to mtn for sum/jgm & deadlines for response & reply to mtn * (vv) (Entered: 10/13/2004)
36 ORDER by Magistrate Judge W. D. Schneider granting deft's motion to exceed page limitation for pleadings related to mtn for sum/jgm & deadlines for response & reply to mtn [35−1] (cc: all counsel) (vv) (Entered: 10/15/2004)
37 MOTION by plaintiff in limine to exclude certain cell phone bills for failure to comply with disclosure requirements (vv) (Entered: 10/15/2004)
38 MEMORANDUM by plaintiff in support of motion in limine to exclude certain cell phone bills for failure to comply with disclosure requirements [37−1] (vv) (Entered: 10/15/2004)
39 AFFIDAVIT of Loretta Medina regarding motion in limine to exclude certain cell phone bills for failure to comply with disclosure requirements [37−1] (vv) (Entered: 10/15/2004)
40 MOTION by plaintiff in limine to exclude all evidence concerning claimant's personal relationship with a non−harasser (vv) (Entered: 10/15/2004)
41 MEMORANDUM by plaintiff in support of motion in limine to exclude all evidence concerning claimant's personal relationship with a non−harasser [40−1] (vv) (Entered: 10/15/2004)
42 AFFIDAVIT of Loretta Medina regarding motion in limine to exclude all evidence concerning claimant's personal relationship with a non−harasser [40−1] (vv) (Entered: 10/15/2004)
43 MOTION by plaintiff in limine to exclude evidence concerning profanity, dress, conduct toward non−harassers and performance by claimants (vv) (Entered: 10/15/2004)
44 MEMORANDUM by plaintiff in support of motion in limine to exclude evidence concerning profanity, dress, conduct toward non−harassers and performance by claimants [43−1] (vv) (Entered: 10/15/2004)
45 AFFIDAVIT of Loretta Medina regarding motion in limine to exclude evidence concerning profanity, dress, conduct toward non−harassers and performance by claimants [43−1] (vv) (Entered: 10/15/2004)
46 MOTION by plaintiff for partial summary judgment as to any defense based upon conciliation (vv) (Entered: 10/15/2004)
47 MEMORANDUM by plaintiff in support of motion for partial summary judgment as to any defense based upon conciliation [46−1] (vv) (Entered: 10/15/2004)
48 AFFIDAVIT of Loretta Medina regarding motion for partial summary judgment as to any defense based upon conciliation [46−1] (vv) (Entered: 10/15/2004)
49 NOTICE by plaintiff of withdrawal of harassment claim as to Joanne Richmond (vv) (Entered: 10/15/2004)

Case: 1:03-cv-991 As of: 06/02/2017 09:23 AM MDT 5 of 11

10/18/2004 10/18/2004 10/19/2004
11/05/2004 11/05/2004
11/05/2004 11/05/2004
11/05/2004 11/05/2004 11/08/2004
11/08/2004 11/16/2004 11/18/2004 11/24/2004 11/24/2004
11/24/2004 11/24/2004
12/01/2004 12/02/2004 12/06/2004
12/07/2004 12/07/2004 12/07/2004

50 MOTION by deft for sum/jgm (td) (Entered: 10/18/2004)
51 MEMORANDUM by deft in support of mtn for sum/jgm [50−1] (td) (Entered: 10/18/2004)
52 STIPULATED ORDER by Magistrate Judge W. D. Schneider granting request to extend number of exhibits to 151 pages in connection to sum/jgm mtn (cc: all counsel) (vv) (Entered: 10/19/2004)
53 RESPONSE by deft to mtn in limine to exclude certain cell phone bills for failure to comply with disclosure requirements [37−1] (td) (Entered: 11/05/2004)
54 MEMORANDUM by deft in support of response re mtn to exclude certain cell phone bills for failure to comply with disclosure requirements [53−1] (td) (Entered: 11/05/2004)
55 RESPONSE by deft to mtn in limine to exclude all evidence concerning claimant's personal relationship with a non−harasser [40−1] (td) (Entered: 11/05/2004)
56 MEMORANDUM by deft in support of response re mtn in limine to exclude all evidence concerning claimant's personal relationship with a non−harasser [55−1] (td) (Entered: 11/05/2004)
57 RESPONSE by deft to mtn for partial sum/jgm as to any defense based upon conciliation [46−1] (td) (Entered: 11/05/2004)
58 MEMORANDUM by deft in support of response to mtn for partial sum/jgm [57−1] (td) (Entered: 11/05/2004)
59 RESPONSE by deft to motion in limine to exclude evidence concerning profanity, dress, conduct toward non−harassers and performance by claimants [43−1] (mjr) (Entered: 11/08/2004)
60 MEMORANDUM by deft in support of response [59−1] (mjr) (Entered: 11/08/2004)
61 RESPONSE by plaintiff to motion for sum/jgm [50−1] * (vv) (Entered: 11/17/2004)
62 APPENDIX filed by plaintiff re response to motion for sum/jgm [50−1] [61−1] (vv) (Entered: 11/19/2004)
63 REPLY by pltf to response to motion in limine to exclude certain cell phone bills for failure to comply with disclosure requirements [37−1] (seal) (Entered: 11/29/2004)
64 REPLY by pltf to response to motion in limine to exclude all evidence concerning claimant's personal relationship with a non−harasser [40−1] (seal) (Entered: 11/29/2004)
65 REPLY by pltf to response to motion for partial summary judgment as to any defense based upon conciliation [46−1] (seal) (Entered: 11/29/2004)
66 REPLY by pltf to response to motion in limine to exclude evidence concerning profanity, dress, conduct non−harassers and performance by claimants [43−1] (seal) (Entered: 11/29/2004)
67 NOTICE by plaintiff of completion of briefing on motion for partial summary judgment [46−1] (sl) (Entered: 12/02/2004)
68 JOINT MOTION by parties herein to extend deadline for submission of Pretrial Order re 45 days after Court's decision on mtns for sum/jgm * (pr) (Entered: 12/02/2004)
69 ORDER by Magistrate Judge W. D. Schneider granting deft's request to extend number of pages to 40 pages in connection with its reply to motion for summary judgment (cc: all counsel) (sl) (Entered: 12/06/2004)
70 NOTICE by counsel for deft of non−availability from 12/9/04 thru 12/22/04 and 12/29/04 thru 12/31/04* (pr) (Entered: 12/07/2004)
71 MOTION by deft to strike 3/10/03 letter (td) (Entered: 12/08/2004)
72 MOTION by deft to strike portions of Affidavit of Michelle Lynn Reid (td) (Entered: 12/08/2004)

Case: 1:03-cv-991 As of: 06/02/2017 09:23 AM MDT 6 of 11

12/07/2004 12/07/2004 12/08/2004
12/09/2004 12/21/2004 12/21/2004 12/21/2004 12/23/2004 01/06/2005 01/06/2005 01/07/2005 01/07/2005 01/07/2005 01/07/2005 01/13/2005 01/14/2005 01/25/2005
02/17/2005 03/07/2005
03/08/2005
03/09/2005
03/17/2005

73 MOTION by deft to strike portions of affidavit of Loretta Medina Esq (td) (Entered: 12/08/2004)
74 REPLY by deft to mtn for sum/jgm [50−1] (td) (Entered: 12/08/2004)
75 STIPULATED ORDER by Magistrate Judge W. D. Schneider granting the stipulated motion to extend deadline for submission of Pretrial Order re 45 days after Court's decision on mtns for sum/jgm [68−1] Pretrial order ddl 2/11/05 ; Pretrial conference reset for 3/9/05 @ 11:00 am ; Jury trial reset for 4/12/05 @ 8:30 am (cc: all counsel) (jrm) (Entered: 12/08/2004)
76 NOTICE of completion of briefing on mtn for sum/jgm by deft (mjr) (Entered: 12/09/2004)
77 RESPONSE by plaintiff to motion to strike 3/10/03 letter [71−1] * (vv) (Entered: 12/21/2004)
78 RESPONSE by plaintiff to motion to strike portions of Affidavit of Michelle Lynn Reid [72−1] * (vv) (Entered: 12/21/2004)
79 RESPONSE by plaintiff to motion to strike portions of affidavit of Loretta Medina Esq [73−1] * (vv) (Entered: 12/21/2004)
80 APPENDIX filed by plaintiff re motion response [77−1] (vv) (Entered: 12/23/2004)
81 REPLY by deft to mtn to strike portions of Affidavit of Michelle Lynn Reid [72−1] (td) (Entered: 01/06/2005)
82 REPLY by deft to mtn to strike portions of affidavit of Loretta Medina Esq [73−1] (td) (Entered: 01/06/2005)
83 NOTICE by deft of completion of briefing re mtn to strike [72−1] (td) (Entered: 01/10/2005)
84 REPLY by deft to mtn to strike 3/10/03 letter [71−1] (td) (Entered: 01/10/2005)
85 NOTICE by deft of completion of briefing re mtn to strike [71−1] (td) (Entered: 01/10/2005)
86 NOTICE by deft of completion of briefing re mtn to strike [72−1] (td) (Entered: 01/10/2005)
87 NOTICE by pltf of withdrawal of their motion for extension of time to serve mtn to compel [20−1]* (pr) (Entered: 01/13/2005)
88 ORDER by Magistrate Judge W. D. Schneider denying motion to strike 3/10/03 letter [71−1] by PVNF LLC (cc: all counsel*) (vv) (Entered: 01/14/2005)
89 ORDER by Magistrate Judge W. D. Schneider denying motion to strike portions of Affidavit of Michelle Lynn Reid [72−1] by PVNF LLC (cc: all counsel*) (vv) (Entered: 01/25/2005)
90 PRE−TRIAL ORDER by Senior Judge John E. Conway : (cc: all counsel) (vv) (Entered: 02/17/2005)
91 MEMORANDUM, OPINION, AND ORDER: by Senior Judge John E. Conway granting in part pltf's motion in limine to exclude all evidence concerning claimant's personal relationship with a non−harasser [40−1] (cc: all counsel*) (vv) (Entered: 03/07/2005)
92 ORDER by Magistrate Judge W. D. Schneider denying motion in limine to exclude certain cell phone bills for failure to comply with disclosure requirements [37−1] by EEOC (cc: all counsel*) (vv) (Entered: 03/08/2005)
93 MEMORANDUM, OPINION, AND ORDER: by Senior Judge John E. Conway granting pltf's motion for partial summary judgment as to any defense based upon conciliation [46−1] (cc: all counsel*) (bap) (Entered: 03/09/2005)
94 MEMORANDUM, OPINION, AND ORDER: by Senior Judge John E. Conway granting deft's motion for sum/jgm [50−1] on sole claim on behalf of Ms. Richmond & denied as to all claims on behalf of Ms.Segovia (cc: all counsel*) (vv) (Entered:

Case: 1:03-cv-991 As of: 06/02/2017 09:23 AM MDT 7 of 11

03/23/2005 03/23/2005 04/01/2005
04/05/2005 04/05/2005 04/05/2005
04/05/2005
04/05/2005
04/05/2005
04/05/2005 04/07/2005 04/07/2005 04/07/2005 04/07/2005 04/07/2005 04/08/2005 04/12/2005
04/19/2005
04/19/2005
04/19/2005 04/21/2005

03/17/2005)
95 WITNESS list submitted by defendant * (vv) (Entered: 03/23/2005)
96 WITNESS list submitted by plaintiff (vv) (Entered: 03/24/2005)
97 CERTIFICATE of service by deft of supplemental responses to 1st request for production of documents to counsel on 4/1/05(td) Modified on 04/08/2005 (Entered: 04/01/2005)
98 MOTION by plaintiff in limine to exclude evidence or argument relating to a Faragher/Ellerth defense * (vv) (Entered: 04/06/2005)
99 MEMORANDUM by plaintiff in support of motion in limine to exclude evidence or argument relating to a Faragher/Ellerth defense [98−1] * (vv) (Entered: 04/06/2005)
100 MOTION by plaintiff in limine to exclude evidence or argument relating to whether claimant is in compliance with federal or state laws re filing of tax returns * (vv) (Entered: 04/06/2005)
101 MEMORANDUM by plaintiff in support of motion in limine to exclude evidence or argument relating to whether claimant is in compliance with federal or state laws re filing of tax returns [100−1] * (vv) (Entered: 04/06/2005)
102 MOTION by plaintiff in limine to exclude evidence or argument relating to policies or procedures of a corporate entity which is not involved in this litigation * (vv) (Entered: 04/06/2005)
103 MEMORANDUM by plaintiff in support of motion in limine to exclude evidence or argument relating to policies or procedures of a corporate entity which is not involved in this litigation [102−1] (vv) (Entered: 04/06/2005)
104 MOTION by deft in limine to prohibit introduction of deft's net worth until ruling on mtn for directed verdict on punitive damages (pz) (Entered: 04/06/2005)
105 APPENDIX [EXHIBITS] filed by plaintiff re memorandum in support of mtn in limine [103−1] (vv) (Entered: 04/07/2005)
106 APPENDIX [EXHIBITS] filed by plaintiff re memorandum in support of mtn in limine [101−1] (vv) (Entered: 04/07/2005)
107 NOTICE by plaintiff of joint statement of case for jury selection * (vv) (Entered: 04/08/2005)
108 VOIR DIRE submitted by plaintiff * (vv) (Entered: 04/08/2005)
109 PROPOSED VOIR DIRE submitted by deft (pz) (Entered: 04/08/2005)
110 CERTIFICATE of service by plaintiff of 4th supplemental initial disclosures to counsel on 4/8/05 * (vv) (Entered: 04/08/2005)
134 CLERK'S MINUTES: before Senior Judge John E. Conway Jury selection held on 4/12/05; jury trial began 5/4/05 and ended 5/9/05; Directed Verdict granted in favor of deft & against pltf on all of pltf's claims; court will issue written findings in a few weeks C/R: J Sanchez (vv) Modified on 06/28/2005 (Entered: 05/10/2005)
111 RESPONSE by deft to mtn in limine to exclude evidence or argument relating to policies or procedures of corporate entity which is not involved in this litigation [102−1] (pz) (Entered: 04/20/2005)
112 RESPONSE by deft to mtn in limine to exclude evidence or argument relating to whether claimant is in compliance with federal or state laws re filing of tax returns [100−1] (pz) (Entered: 04/20/2005)
113 RESPONSE by deft to mtn in limine to exclude evidence or argument relating to a Faragher/Ellerth defense [98−1] (pz) (Entered: 04/20/2005)
114 RESPONSE by plaintiff to motion in limine to prohibit introduction of deft's net worth until ruling on mtn for directed verdict on punitive damages [104−1] * (vv) (Entered: 04/21/2005)

Case: 1:03-cv-991 As of: 06/02/2017 09:23 AM MDT 8 of 11

04/25/2005 04/26/2005
04/26/2005
04/27/2005 04/27/2005 04/28/2005 04/28/2005 04/28/2005 04/28/2005 04/28/2005 04/28/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005
04/29/2005
05/02/2005 05/02/2005 05/02/2005 06/24/2005 06/24/2005 06/29/2005 06/30/2005

115 MOTION by defendant in limine re testimony of pltf's witness Michelle Reid * (vv) (Entered: 04/26/2005)
118 REPLY by deft to response to motion in limine to prohibit introduction of deft's net worth until ruling on mtn for directed verdict on punitive damages [104−1] (pz) (Entered: 04/27/2005)
119 NOTICE by deft of completion of briefing of mtn in limine to prohibit introduction of deft's net worth until ruling on mtn for directed verdict on punitive damages [104−1] (pz) (Entered: 04/27/2005)
116 ORDER by Senior Judge John E. Conway approving parties' stipulations re evidentiary & other matters (cc: all counsel) (vv) (Entered: 04/27/2005)
117 CERTIFICATE of service by plaintiff of 5th supplemental initial disclosures to counsel on 4/26/05 (vv) (Entered: 04/27/2005)
120 PROPOSED JURY INSTRUCTIONS submitted by defendant * (vv) (Entered: 04/28/2005)
121 JOINT PROPOSED JURY INSTRUCTIONS submitted by parties * (vv) (Entered: 04/28/2005)
122 EXHIBIT list by defendant contested by pltf * (vv) (Entered: 04/28/2005)
123 PARTIES' JOINT STIPULATED EXHIBIT list (vv) (Entered: 04/28/2005)
124 EXHIBIT list by plaintiff contested by deft (vv) (Entered: 04/28/2005)
125 PROPOSED JURY INSTRUCTIONS & Praecipe submitted by plaintiff (vv) (Entered: 04/28/2005)
126 NOTICE of joint supplemental stipulation on stock instructions * (vv) (Entered: 04/29/2005)
127 RESPONSE by plaintiff to motion in limine re testimony of pltf's witness Michelle Reid [115−1] (vv) (Entered: 04/29/2005)
128 REPLY by plaintiff to response to motion in limine to exclude evidence or argument relating to a Faragher/Ellerth defense [98−1] (vv) (Entered: 04/29/2005)
129 REPLY by plaintiff to response to motion in limine to exclude evidence or argument relating to policies or procedures of a corporate entity which is not involved in this litigation [102−1] (vv) (Entered: 04/29/2005)
130 REPLY by plaintiff to response to motion in limine to exclude evidence or argument relating to whether claimant is in compliance with federal or state laws re filing of tax returns [100−1] (vv) (Entered: 04/29/2005)
131 REPLY by defendant to response to motion in limine re testimony of pltf's witness Michelle Reid [115−1] * (vv) (Entered: 05/02/2005)
132 NOTICE by deft of completion of briefing of mtn in limine re: testimony of pltf's witness, Michelle Reid [115−1] (pz) (Entered: 05/03/2005)
133 NOTICE by plaintiff of completion of briefing of mtn in limine to exclude evidence [100−1] (vv) (Entered: 05/03/2005)
TRANSCRIPT OF PROCEEDINGS of jury trial before Senior Judge John E. Conway held on 5/5/05; lodged in separate file folder (pg) (Entered: 06/24/2005)
TRANSCRIPT OF PROCEEDINGS of jury trial before Senior Judge John E. Conway held on 5/6/05; lodged in separate file folder (pg) (Entered: 06/24/2005)
135 FINDINGS of fact and conclusions of law by Senior Judge John E. Conway as described herein (cc: all counsel) * (vv) (Entered: 06/29/2005)
136 FINAL JUDGMENT: by Senior Judge John E. Conway dismissing case (cc: all counsel) * (vv) (Entered: 06/30/2005)

Case: 1:03-cv-991 As of: 06/02/2017 09:23 AM MDT 9 of 11

07/08/2005
07/14/2005 07/19/2005 07/22/2005 07/28/2005 07/29/2005 07/29/2005
07/29/2005 07/29/2005 08/10/2005
08/15/2005 08/15/2005 08/16/2005 08/17/2005
08/18/2005 08/23/2005
08/24/2005 08/24/2005 08/24/2005 08/25/2005 09/07/2005
09/07/2005

TRANSCRIPT OF PROCEEDINGS of Jury Trial III before Senior Judge John E. Conway held on 05/09/05; (re [134−2] ) lodged in separate file folder (pg) (Entered: 07/08/2005)
137 MOTION by plaintiff to amend Court's Findings of fact & Conclusions of law and for new trial * (vv) (Entered: 07/14/2005)
138 UNOPPOSED MOTION by defendant to extend time to file application for atty's fees * (vv) (Entered: 07/19/2005)
139 ORDER by Magistrate Judge W. D. Schneider granting deft's motion to extend time to file application for atty's fees [138−1] (cc: all counsel) (vv) (Entered: 07/22/2005)
140 RESPONSE by defendant to motion to amend Court's Findings of fact & Conclusions of law [137−1] & for new trial [137−2] * (vv) (Entered: 07/28/2005)
141 MOTION by deft for order determining that claims brought by EEOC were frivolous, unreasonable or w/o foundation (td) (Entered: 08/01/2005)
142 MEMORANDUM by deft in support of motion for order determining that claims brought by EEOC were frivolous, unreasonable or w/o foundation [141−1] (td) (Entered: 08/01/2005)
143 MOTION by deft for costs in the amount of $8,259.13 (td) (Entered: 08/01/2005)
144 MOTION by deft for order awarding expenses in the amount of $6550.97 (td) (Entered: 08/01/2005)
TRANSCRIPT OF PROCEEDINGS of Jury Trial before Senior Judge John E. Conway held on 05/09/05; (re [134−2] ) lodged in separate file folder (pg) (Entered: 08/10/2005)
145 UNOPPOSED MOTION by plaintiff to extend time to file responses to fees, costs & expense mtns * (vv) (Entered: 08/15/2005)
146 REPLY by plaintiff to response to motion to amend Court's Findings of fact & Conclusions of law [137−1] & for new trial [137−2] * (vv) (Entered: 08/16/2005)
147 NOTICE by plaintiff's counsel of unavailability from 8/26−9/9/05 * (vv) (Entered: 08/16/2005)
148 ORDER by Senior Judge John E. Conway granting pltf's motion to extend time to file responses to fees, costs & expense mtns [145−1] (cc: all counsel) (vv) (Entered: 08/17/2005)
149 SECOND UNOPPOSED MOTION by plaintiff to extend time to file responses to fees, costs and expense mtns * (vv) (Entered: 08/18/2005)
150 ORDER by Senior Judge John E. Conway granting pltf's motion to extend time to file responses to fees, costs and expense mtns [149−1] (cc: all counsel) (vv) (Entered: 08/23/2005)
151 NOTICE by plaintiff of completion of briefing of mtn to amend [137−1] * (vv) (Entered: 08/24/2005)
152 RESPONSE by plaintiff to motion for order awarding expenses in the amount of $6550.97 [144−1] * (vv) (Entered: 08/25/2005)
153 RESPONSE by plaintiff to motion for costs in the amount of $8,259.13 [143−1] * (vv) (Entered: 08/25/2005)
154 RESPONSE by plaintiff to motion for order determining that claims brought by EEOC were frivolous, unreasonable or w/o foundation [141−1] * (vv) (Entered: 08/25/2005)
155 REPLY by deft to response to motion for order determining that claims brought by EEOC were frivolous, unreasonable or w/o foundation [141−1] (pz) (Entered: 09/08/2005)
157 REPLY by deft to response to motion for costs in the amount of $8,259.13 [143−1] (pz) (Entered: 09/08/2005)

Case: 1:03-cv-991 As of: 06/02/2017 09:23 AM MDT 10 of 11

09/07/2005 09/08/2005
09/08/2005 09/08/2005 10/05/2005 11/02/2005
11/02/2005
11/16/2005 11/17/2005 11/17/2005
12/05/2005
12/22/2005 12/22/2005 12/30/2005 01/06/2006 01/17/2006 02/14/2006
02/14/2006
02/14/2006 07/11/2007

159 REPLY by deft to response to motion for order awarding expenses in the amount of $6550.97 [144−1] (pz) (Entered: 09/08/2005)
156 NOTICE by deft of briefing complete re: motion to determine that claims brought or maintained by EEOC were frivolous, unreasonable or without foundation [141−1] (pz) Modified on 09/14/2005 (Entered: 09/08/2005)
158 NOTICE by deft of briefing complete re: mtn to tax costs [143−1] (pz) Modified on 09/14/2005 (Entered: 09/08/2005)
160 NOTICE by deft of briefing complete re: mtn to tax expenses [144−1] (pz) (Entered: 09/08/2005)
161 NOTICE by defendant's counsel of non−avaialbility from 10/20−11/4/05 * (vv) (Entered: 10/05/2005)
162 MEMORANDUM, OPINION, AND ORDER: by Senior Judge John E. Conway denying motion to amend Court's Findings of fact & Conclusions of law [137−1] & for new trial [137−2] by EEOC (cc: all counsel) * (vv) (Entered: 11/02/2005)
163 MEMORANDUM, OPINION, AND ORDER: by Senior Judge John E. Conway granting deft's motion for order determining that claims brought by EEOC were frivolous, unreasonable or w/o foundation [141−1] (cc: all counsel) * (vv) (Entered: 11/02/2005)
164 CLERK'S ORDER settling costs; granting deft's motion for costs in the amount of $6,968.24 [143−1] (cc: all counsel) * (vv) (Entered: 11/17/2005)
165 MOTION by deft for attorney fees in the amount of $183,497.86 & expenses in the amount of $1,331.79 (pz) (Entered: 11/17/2005)
166 MEMORANDUM by deft in support of motion for attorney fees in the amount of $183,497.86 & expenses in the amount of $1,331.79 [165−1] (pz) (Entered: 11/17/2005)
167 RESPONSE & Objection by plaintiff to motion for attorney fees in the amount of $183,497.86 & expenses in the amount of $1,331.79 [165−1] (vv) (Entered: 12/06/2005)
168 REPLY by deft to mtn for atty fees in the amount of $183,497.86 & expenses in the amount of $1,331.79 [165−1] (td) (Entered: 12/22/2005)
169 NOTICE by deft of completion of briefing re mtn for atty fees & expenses [165−1] (td) (Entered: 12/22/2005)
170 NOTICE OF APPEAL by plaintiff from Dist. Court decision [163−1], [162−1] ; Fees not paid − Distribution as required. (cc: all counsel) (dmw) (Entered: 12/30/2005)
171 TRANSCRIPT Order Form (TOF) from Appellant. Transcript Dates: 05/05/05 re [170−1] (pg) (Entered: 01/11/2006)
ACKNOWLEDGEMENT of receipt of preliminary record by USCA on 01/13/06 − USCA Number: 06−2011 (pg) (Entered: 01/17/2006)
PARTIAL TRANSCRIPT of Proceedings before Senior Judge John E. Conway of motions hearing held on 05/05/05; (re [134−2] lodged in separate file folder (pg) (Entered: 02/14/2006)
PARTIAL TRANSCRIPT OF PROCEEDINGS of opening statements before Senior Judge John E. Conway held on 05/05/05; (re [134−2] ) lodged in separate file folder (pg) (Entered: 02/14/2006)
LETTER sent to USCA record complete transcript of proceedings on file [170−1] (pg) (Entered: 02/14/2006)
174 USCA JUDGMENT; the Judgment of the US District court is affirmed in part and reversed in part; case remanded to the US District for a new trial (case re−opened 07/11/2007) cc:LJ (pg) (Entered: 07/16/2007)

Case: 1:03-cv-991 As of: 06/02/2017 09:23 AM MDT 11 of 11

07/12/2007
07/13/2007 07/17/2007
07/18/2007 08/07/2007 08/29/2007 08/29/2007 10/11/2007 10/11/2007

172 NOTICE of Settings: Pretrial Conference set on 8/29/2007 at 11:00 AM in Albuquerque − Chambers #740 before District Judge John E. Conway. Jury Selection/Trial set on 9/18/2007 at 08:30 AM in Albuquerque − 560 Cimarron Courtroom − before District Judge John E. Conway. (lj) (Entered: 07/12/2007)
173 NOTICE of Appearance by Stephanie A Fuchs on behalf of PVNF LLC (Fuchs, Stephanie) (Entered: 07/13/2007)
176 AMENDED NOTICE scheduling Jury Selection/Trial on 10/16/2007 at 08:30 AM in Albuquerque − 560 Cimarron Courtroom − before District Judge John E. Conway. Jury selection/trial set on September 18, 2007 at 8:30 a.m. vacated.(lj) (Entered: 07/17/2007)
Set/Reset Hearings: Jury Trial reset for 10/16/2007 at 08:30 AM in Albuquerque − 560 Cimarron Courtroom − before District Judge John E. Conway. (lj) (Entered: 07/18/2007)
177 NOTICE by PVNF LLC of Non−Availabilityfrom 11/1−11/23/07 (Hemphill, Linda) Modified on 8/8/2007 to add text [vv] (Entered: 08/07/2007)
178 NOTICE of Appearance by Christa M Okon on behalf of PVNF LLC (Okon, Christa) (Entered: 08/29/2007)
179 Clerk's Minutes for pretrial conference held on 8/29/07 before Judge John Edwards Conway. (Court Reporter Julie Sanchez.) (lj) (Entered: 08/29/2007)
180 STIPULATION of Dismissal by Equal Employment Opportunity Commission (Attachments: # 1)(Medina, Loretta) (Entered: 10/11/2007)
181 ORDER of dismissal with prejudice by Judge John E. Conway (vv) (Entered: 10/11/2007)

 
 Docket Sheet for 06-2011

http://pacer.ca10.uscourts.gov/cgi-bin/dktrpt.pl?CASENUM=06-2011&...

General Docket
United States Court of Appeals for the 10th Circuit
Lower court information:
District: 1084-1 : CIV-03-991 JC WDS Ordering Judge: John E. Conway, Sr. District Judge Court Reporter: Julie Goehl Court Reporter: Thomas Garrett Date Filed: 8/25/03 Date order/judgment: 6/30/05 Date NOA filed: 12/30/05 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Fee status: U.S. appellant
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Prior cases: None Current cases: None

Docket as of May 14, 2007 8:03 pm

Page 1

Proceedings include all events. 06-2011 Equal Employment v. PVNF LLC

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Plaintiff - Appellant

Mary Jo O'Neill [COR NTC ret] C Emanuel Smith [COR NTC ret] EEOC Phoenix District Office 3300 N. Central Avenue #690 Norwest Tower Phoenix, AZ 85012-1848 602/640-5000

James L. Lee [COR NTC gvt] 1801 L Street, N.W Suite 7020 Washington, DC 20507

Lorraine C. Davis [COR NTC gvt] 1801 L Street, NW Washington, DC 20507 202/663-4733

Loretta F. Medina [COR NTC ret] EEOC 505 Marquette, NW #900 Albuquerque, NM 87102 505/248-5231

Daniel Travis Vail [COR NTC gvt]

1 of 4

6/14/2007 12:17 PM

Docket Sheet for 06-2011
v. PVNF LLC DBA BIG VALLEY AUTO DBA CHUCK DAGGETT MOTORS
Defendant - Appellee

http://pacer.ca10.uscourts.gov/cgi-bin/dktrpt.pl?CASENUM=06-2011&...
U.S. EEOC Office of General Counsel 1801 L Street, N.W., 7th Floor Washington, DC 20507 202-663-4571
Stephanie A. Fuchs [COR NTC ret] Linda G. Hemphill [NTC ret] 834 Dunlap St. Santa Fe, NM 87501 505/986-8515

Docket as of May 14, 2007 8:03 pm

Page 2

Proceedings include all events. 06-2011 Equal Employment v. PVNF LLC EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Plaintiff - Appellant
v. PVNF LLC DBA BIG VALLEY AUTO DBA CHUCK DAGGETT MOTORS
Defendant - Appellee

Docket as of May 14, 2007 8:03 pm

Page 3

Proceedings include all events. 06-2011 Equal Employment v. PVNF LLC

1/13/06

[1878806] Civil case docketed. Preliminary record filed. DATE RECEIVED: 1/10/06. Transcript order form due 1/30/06 for Julie Goehl pursuant to R.42.1. Docketing statement due 1/30/06 for Equal Employment. Entry of appearance due 1/30/06 for PVNF LLC, for Equal (jmm)

1/17/06

[1879217] Notice of appearance filed by Daniel Travis Vail as attorney for Equal Employment. CERT. OF INTERESTED PARTIES (y/n): y. (pdw)

1/17/06

[1879218] Notice filed that the transcript is already on filed in the district court. Notice due that record is complete 1/23/06 for Matthew J. Dykman. (pdw)

1/17/06

[1879233] Docketing statement filed by Equal Employment Opportunity Commission. Original and 4 copies. c/s: y. (pdw)

1/18/06

[1880140] Case referred for mediation conferencing. (klp)

1/20/06

[1881759] Filed notice record is complete 1/11/06. Appellant's brief & appendix due 2/21/06 for EEOC. (sts)

1/23/06

[1882290] Letter from d.c. indicating record is not

2 of 4

6/14/2007 12:17 PM

Docket Sheet for 06-2011 1/25/06 1/27/06 2/23/06 2/27/06 5/4/06
5/22/06

http://pacer.ca10.uscourts.gov/cgi-bin/dktrpt.pl?CASENUM=06-2011&...
complete. Original. c/s: y. (klp)
[1882299] Order filed by Clerk directing that transcript be filed by 2/24/06 for Julie Goehl. (Order entered for scheduling purposes.) (klp)
[1883362] Notice of appearance filed by Stephanie A. Fuchs, Linda G. Hemphill as attorney for PVNF LLC. CERT. OF INTERESTED PARTIES (y/n): y. (pdw)
[1891632] Filed notice record is complete 2/14/06. Appellant's brief and appendix due 3/27/06 for Equal Employment. (pdw)
[1893549] On the court's own motion and pursuant to 10th Cir. R. 33.1. order filed by Clerk to extend time to file appellant's brief until 5/11/06. [06-2011] Appellant's brief and appendix due 5/11/06 for Equal Employment. Parties served by mail. (afw)
[1915739] On the court's own motion and pursuant to 10th Cir. R. 33.1. order filed by Clerk to extend time to file appellant's brief until 5/22/06. [06-2011] Appellant's brief and appendix due 5/22/06 for Equal Employment. Parties served by mail. (afw)
[1920078] E-Opening Brief received from Appellant Equal Employment. Submission Type: Email. (klp)

Docket as of May 14, 2007 8:03 pm

Page 4

Proceedings include all events. 06-2011 Equal Employment v. PVNF LLC

5/25/06

[1921875] Appellant's brief filed by Equal Employment. Original and 7 copies. c/s: y. Served on 5/22/06. Oral argument? y. Appendix filed. Original and 1 appendix copy. Appendix Pages: 987. Volumes I, II, III and IV. Appellee's brief due 6/26/06 for PVNF LLC. (afw)

5/30/06

[1922398] Oversized record stored. Record can be located at Section: W Shelf: 2 (sa)

6/8/06

[1926759] On the court's own motion and pursuant to 10th Cir. R. 33.1. order filed by Clerk to extend time to file appellee's brief until 8/4/06. Appellees' brief due 8/4/06 for PVNF LLC. Parties served by mail. (afw)

8/1/06 8/2/06
8/7/06

[1942208] E-Answer Brief received from Appellee PVNF LLC. Submission Type: Email. (klp)
[1942817] Appellee's answer brief filed by PVNF LLC. Original and 7 copies. c/s: y. Served on 8/1/06. Oral Argument? y. Supplemental Appendix filed: 1 Volume. Original and 7 appendix copies. Supp. Appendix Pages: 163. Appellant's optional reply brief due 8/18/06 for Equal Employment. (sts)
[1944509] On the court's own motion and pursuant to 10th Cir. R. 33.1. order filed by Clerk to extend time to file a reply brief until 8/25/06. Apet reply brief due 8/25/06 for Equal Employment. Parties served by mail. (kjs)

3 of 4

6/14/2007 12:17 PM

Docket Sheet for 06-2011

http://pacer.ca10.uscourts.gov/cgi-bin/dktrpt.pl?CASENUM=06-2011&...

8/21/06

[1948276] On the court's own motion and pursuant to 10th Cir. R. 33.1. order filed by Clerk to extend time to file apet reply brief until 9/5/06. [06-2011] (jc)

9/5/06 9/8/06 9/12/06 10/19/06 1/17/07
5/14/07

[1952285] E-Reply Brief received from Appellant Equal Employment. Submission Type: Email. (klp)
[1953684] Appellant's reply brief filed by Equal Employment. Original and 7 copies. c/s: y. (klp)
[1954953] Case mediation conferencing terminated. (klp)
[1966624] Hearing set for January, 2007 Session, at Denver, CO. (ss)
[1992829] Case argued by Daniel Travis Vail for appellant and by Linda G. Hemphill, for appellee; Submitted to Judges Tacha, McWilliams, Lucero. (ss)
[2029227] Terminated on the Merits after Oral Hearing; Affirmed in part, Reversed in part and Remanded for new trial; Written, Signed, Published. Tacha, authoring judge; McWilliams; Lucero. [06-2011] Parties served by mail on 5/14/07. (sts)

Docket as of May 14, 2007 8:03 pm

Page 5

PACER Service Center

Transaction Receipt

06/14/2007 11:19:23

PACER Login: hs0328

Client Code:

Description:

dkt report

Billable Pages: 5

Case Number:
Cost:

eeoc 06-2011 0.40

4 of 4

6/14/2007 12:17 PM

 
 PUBLISH

FILED
United States Court of Appeals Tenth Circuit
May 14, 2007

UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker Clerk of Court
TENTH CIRCUIT

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff - Appellant,
v.
PVNF, L.L.C., d/b/a Big Valley Auto and Chuck Daggett Motors,
Defendant - Appellee.

No. 06-2011

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D. Ct. No. CIV-03-991 JC/WDS)
Daniel Travis Vail, Attorney (Ronald S. Cooper, General Counsel, James L. Lee, Deputy General Counsel, Lorraine C. Davis, Assistant General Counsel, and Carolyn L. Wheeler, Acting Associate General Counsel, with him on the briefs), United States Equal Employment Opportunity Commission, Washington, DC, appearing for Plaintiff-Appellant.
Linda G. Hemphill, Attorney (Stephanie A. Fuchs, Attorney, with her on the brief), Linda G. Hemphill, P.C., Santa Fe, New Mexico, appearing for DefendantAppellee.
Before TACHA, Chief Circuit Judge, McWILLIAMS, and LUCERO, Circuit Judges.
TACHA, Chief Circuit Judge.

The Equal Employment Opportunity Commission (“EEOC”) seeks reversal of the District Court’s entry of judgment as a matter of law in favor of DefendantAppellee PVNF, LLC d/b/a “Chuck Daggett Motors” (“CDM”) on its claims of sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as well as the District Court’s award of attorney’s fees to CDM. We take jurisdiction under 28 U.S.C. § 1291 and AFFIRM in part, REVERSE in part, and REMAND for a new trial.
I. BACKGROUND Marla Segovia was hired in 1996 as a salesperson at Teague-Strebeck Motors, a car dealership. When she was hired, she received a form entitled “No Harassment Policy/Procedure” indicating that Teague-Strebeck Motors prohibited “slurs, jokes and other verbal, graphic, or physical conduct relating to an individual’s . . . sex” and instructed those who felt they were being harassed to “make your feelings known to your supervisor immediately.” The policy provided that any matter brought to the attention of a supervisor would be “thoroughly investigated, and where appropriate, disciplinary action [would] be taken.” Teague-Strebeck Motors sold the dealership in 2000 to Alva Carter and Chuck Daggett. Mr. Carter owned fifty-one percent of the company; Mr. Daggett owned the remaining forty-nine percent. They operated the dealership under the name Chuck Daggett Motors (“CDM”) and Mr. Daggett served as the general
-2-

manager. The “no harassment” policy continued in full force and effect after the change in ownership.
In January 2000, Mr. Daggett promoted Ms. Segovia from salesperson to Finance Manager. The following year, in June 2001, he promoted her to New Car Sales Manager, a position she held until she resigned in October of that year. At that time, Roger Ennis was the Used Car Sales Manager. Each sales manager had supervisory authority over employees in their respective departments. Ms. Segovia could hire and fire new car salespeople and Mr. Ennis could hire and fire used car salespeople. Each manager could also issue disciplinary notices to any subordinate employee, regardless of which department that employee worked in.
Both managers’ pay was commission-based—Ms. Segovia earned commission based on the sale of new cars; Mr. Ennis earned commission based on the sale of used cars. When a prospective customer had a trade-in, the managers had conflicting incentives in assessing the value of the trade-in: Ms. Segovia had an incentive to value the trade-in at a high price to entice the customer to buy a new car, and Mr. Ennis had an incentive to value the trade-in at a low price because he could then sell the trade-in at a greater profit. This dichotomy created tension between Ms. Segovia and Mr. Ennis. Ms. Segovia routinely made more money in commissions than Mr. Ennis. Indeed, in her role as New Car Sales Manager, she was the highest paid employee at Chuck Daggett Motors, aside from Mr. Daggett himself.
-3-

Evidence at trial established that Mr. Carter made numerous gender-based remarks to Ms. Segovia and to other female employees.1 For example, Mandi Wood, who worked for CDM as a cashier, testified that when she sought a promotion from Mr. Carter he responded that “as . . . a woman . . . [she] should sit behind the computer and that would be more fitting for [her]; and that “as a woman, [she] should sit and count money.” Another employee, Michelle Reid, testified that Mr. Carter commented that he could pay farmhands to work in the office for less than he paid the women. And Mr. Carter told Ms. Reid, who was pregnant at the time, that “[w]omen take too much time off of work for medical reasons. They belong at home barefoot and pregnant.” Another time, after Ms. Reid rubbed her belly, Mr. Carter said, “What are our customers going to think with you standing there rubbing your belly?” Ms. Reid complained about the latter comment to Joanne Richmond, the office manager and systems administrator at CDM, but nothing was done because “people fear[ed] for their job[s].” Ms. Richmond testified that she heard Mr. Carter mention that women did not belong in the workplace because of their childcare issues; she also testified that Mr. Carter told her he wanted to know when female applicants had children “because of the child care issues.”
1Because this is an appeal from the entry of judgment as a matter of law, we recite and consider the facts in the light most favorable to the nonmoving party—in this case, the EEOC. See Riske v. King Soopers, 366 F.3d 1085, 1087 (10th Cir. 2004).
-4-

From June to September 2001, Mr. Carter subjected Ms. Segovia to similar sex-based remarks. Soon after she was promoted to New Car Sales Manager, she hired a woman salesperson for the department. Mr. Carter reprimanded her, saying, “I don’t want a whole bunch of damn women working here. Men don’t like to work with women. Men like to dicker with men.” And, “women [bring] their emotional baggage and problems to the dealership.” She complained to Mr. Daggett about Mr. Carter’s comments and told him that she was thinking of reporting his behavior to the EEOC. Mr. Daggett advised her to “start documenting things” but then said, “[w]e never had this conversation,” which Ms. Segovia understood to mean that Mr. Daggett would not support her in reporting Mr. Carter. Following this conversation, Ms. Segovia continued to be subjected to sex-based remarks by Mr. Carter.
During a sales managers’ meeting, where Ms. Segovia was the only woman, Mr. Carter told her that he was going to buy her a book on “women in management” and later explained to her that “[t]he difference between men and women is that the women have to take more of a bitch approach.” Another time Mr. Carter commented to Ms. Segovia and two other women that “Mexican women’s nipples turn black-brown after they had babies,” which Ms. Segovia found offensive because her daughter is half-Spanish. Finally, when Ms. Segovia’s husband came into the dealership to buy a car, Mr. Carter told him that he “was getting a good deal . . . because he was sleeping with [Ms. Segovia].”
-5-

Ms. Segovia was also subjected to arguably sex-based remarks by other CDM employees. In April 2001, during an argument with a male salesperson, he reacted “wildly,” stood up and “cleared his desk [of papers] and . . . called [her] a bitch.” He threw a plate against the wall, and then left the dealership, quitting. Ms. Segovia felt threatened and scared; she complained about the episode to Mr. Ennis (the salesperson’s supervisor) and to Mr. Daggett. Rather than discipline the salesperson, Mr. Ennis went to see him at the request of Mr. Daggett in an effort to get him to return to the dealership because “[he] sold a lot of cars.” The salesperson returned to work the following day. He was not disciplined.
On another occasion, Ms. Segovia required a used car salesperson to split the commission on a loan with a new car salesperson because both salespeople played roles in brokering the deal. When the used car salesperson learned of the split commission, he came into Ms. Segovia’s office and “violently called [her] a bitch.” In response, Ms. Segovia exercised her managerial authority and explained that because of his behavior he would not be receiving any of the commission. Mr. Daggett or Mr. Ennis (it is unclear who) overrode Ms. Segovia’s decision, however, and awarded the entire commission to the used car salesperson. Ms. Segovia testified that she was unaware of any time a male manager’s decision was overridden by another manager.
In September 2001, Mr. Carter summoned Ms. Segovia into a conversation he was having with Mr. Ennis about the wholesaling of a particular trade-in.
-6-

During the conversation, Mr. Ennis commented that he was tired. Ms. Segovia
sarcastically suggested that he go take a nap. In response, Mr. Ennis “flipped
[her] off” and said “fuck you, bitch.” Ms. Segovia responded by saying “I’m
done with [this] conversation,” and tried to walk away, but Mr. Carter stopped her
and said, “[i]f you want to keep your job, you will get your butt back here and
finish this conversation.” She briefly returned, but then left again. She did not
lose her job.
Later that day Ms. Segovia accessed Mr. Daggett’s work e-mail account without his permission.2 While doing so, she noticed that Mr. Ennis had
forwarded an e-mail conversation to Mr. Daggett that included a discussion
between Mr. Ennis and Jim Smith, one of Ms. Segovia’s subordinates in the new-
car sales group. In the e-mail exchange Mr. Ennis had asked Mr. Smith why he
could not leave work to go buy beer. Mr. Ennis’s e-mail questioned Mr. Smith,
“Marla [Segovia] got you by the balls?” Mr. Smith responded:
I wouldn’t let that bitch hold my balls if she was the last known woman on earth. If she had balls they would be hanging lower that [sic] that nasty fucking skirt she is wearing. At least she wore panties today. And I know that for a fact and I wasn’t looking just walking in the front door . . . I got to thinking about that today, every costomer [sic] that walked in this place today saw her nasty crotch. Gotta go fucking throw-up now.
2After the exchange with Mr. Ennis, Ms. Segovia composed and sent an email to Mr. Daggett expressing frustration about the tension between her and Mr. Ennis. She later thought better of it and accessed Mr. Daggett’s e-mail account in order to erase the message she had already sent.
-7-

(ellipsis in original). Ms. Segovia then composed an e-mail to Mr. Daggett acknowledging that she saw the e-mail from Mr. Ennis and indicated she was offended by the exchange. Ms. Segovia did not go to work the next day. When she next spoke with Mr. Daggett, he said that he verbally reprimanded both Mr. Ennis and Mr. Smith. Mr. Smith wrote Ms. Segovia an e-mail stating that he was told that he had to apologize to her but that he did not understand why she “can’t take a joke.” Several days later Ms. Segovia tried to complain to Mr. Carter about the e-mail. He indicated that he already knew about it and that she should not let it interfere with her work: “You need to go—just go back to work. That can’t stop production.”
Approximately one month later, on October 4, 2001, Mr. Daggett delivered to Ms. Segovia an envelope containing an “Employee Warning Notice” and a “New Pay Plan.” The warning advised her that she had been late to work too often. It also reported that the salespeople under her supervision had registered complaints about her unavailability, even when she was at the dealership, because she was often out of her office or conducting personal matters. No other sales managers had ever been written-up for tardiness despite evidence that other managers were often late to work. Furthermore, in the three years prior to Ms. Segovia’s warning, no other sales managers had been written-up for conducting
-8-

personal business at work despite evidence that many of them did.3 The warning also indicated her work was “unsatisfactory,” although Mr. Daggett testified that “when she was there, she did fine” as the New Car Sales Manager.
The new pay plan required Ms. Segovia and Mr. Ennis to start sharing sixty percent of their combined commissions. More specifically, sixty percent of the gross obtained from new-car sales would be committed to a pool of funds; similarly, sixty percent of the gross obtained from used-car sales would be committed to the pool. Mr. Ennis and Ms. Segovia would each receive four percent of the pool, as well as four percent of the remaining forty percent of sales’ gross not committed to the pool. Prior to the new plan, Ms. Segovia and Mr. Ennis did not share commissions on the combined sales of new and used cars. Ms. Segovia understood the new arrangement to be a pay cut for her and a pay raise for Mr. Ennis because she routinely made more money than Mr. Ennis and she would now be sharing her commissions with him. Mr. Daggett testified that the new pay plan was put into effect because (1) CDM learned that it was paying its salespeople fifteen to twenty percent over the market rate and the pay plan was an effort to reduce the managers’ salaries, and (2) the pooling of funds was intended to eliminate the conflict between Ms. Segovia and Mr. Ennis over trade-
3There was evidence that one male manager left the premises everyday to pick his children up from school and take them to daycare. Other male managers would leave work to attend sporting events, and some employees, including Mr. Ennis and Mr. Daggett, would sometimes drink beer behind the dealership during business hours.
-9-

in values. The New Car Sales Manager who ultimately replaced Ms. Segovia was subject to the new pay plan.
Finding the warning and the new pay plan unacceptable, Ms. Segovia threw the documents on Mr. Daggett’s desk and told him that she felt they were trying to drive her out of the dealership. She resigned as New Car Sales Manager that day because she felt she could not “be in [that] target position anymore.” Out of concern for her family’s financial stability, however, she later inquired as to whether there was another position she could take at the dealership. The dealership did not offer her an alternative position.
Ms. Segovia filed a charge of discrimination with the EEOC on May 30, 2002. The EEOC filed suit against CDM on her behalf, see 42 U.S.C. § 2000e5(f)(1), alleging retaliation and discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The EEOC also filed suit on behalf of Ms. Richmond, alleging similar claims. Following discovery, the EEOC voluntarily dismissed the sexual harassment claims respecting Ms. Richmond. CDM then moved for summary judgment on the EEOC’s remaining claims. The District Court granted the motion with respect to the remaining claims brought on behalf of Ms. Richmond,4 but denied the motion with respect to the claims brought on behalf of Ms. Segovia.
The EEOC proceeded to trial on allegations that Ms. Segovia was subject to
4The EEOC does not appeal this ruling. -10-

a hostile work environment on the basis of sex, that she was subjected to other adverse employment actions on the basis of sex, and that she was constructively discharged and retaliated against for engaging in protected activity. Following the EEOC’s presentation of evidence, the District Court entered judgment as a matter of law in favor of CDM on all claims. It then awarded CDM attorney’s fees, concluding that the EEOC’s case was frivolous. This appeal followed.
II. DISCUSSION A. Title VII
We review de novo a district court’s grant of judgment as a matter of law, applying the same standards as the district court. EEOC. v. Heartway Corp., 466 F.3d 1156, 1160 (10th Cir. 2006). In reviewing the record, we draw all reasonable inferences in favor of the nonmoving party without making credibility determinations or weighing the evidence. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” (quotation omitted)). That is, we disregard all evidence favorable to the moving party that the jury is not required to believe. Id. at 151. A party is entitled to judgment as a matter of law “only if the evidence points but one way and is susceptible to no reasonable inferences which may support the opposing party’s position.” Tyler v. RE/MAX Mountain States, Inc., 232 F.3d 808, 812 (10th Cir. 2000) (quotation omitted); Fed. R. Civ. P. 50(a) (a
-11-

court may enter judgment as a matter of law when “a party has been fully heard on an issue” and there is no “legally sufficient evidentiary basis to find for the party on that issue”).
1. Discrimination on the basis of sex The EEOC appeals from the District Court’s entry of judgment as a matter of law for CDM on three theories of disparate treatment under Title VII: (1) Ms. Segovia was subjected to a hostile work environment on the basis of sex; (2) CDM issued the employee warning notice and implemented the new pay plan as a result of discrimination on the basis of sex; and (3) CDM’s discriminatory conduct toward Ms. Segovia amounted to constructive discharge. We conclude that the EEOC has presented a jury question with respect to whether Ms. Segovia was subjected to a sexually hostile work environment. We also conclude that based on the EEOC’s evidence at trial, no reasonable jury could conclude that Ms. Segovia was reprimanded, placed on a new pay plan, or constructively discharged on the basis of her sex.
a. Hostile work environment Pursuant to Title VII of the Civil Rights Act of 1964, it is “an unlawful employment practice for an employer . . . to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). If a plaintiff proves that “discrimination based on sex has created a hostile or
-12-

abusive work environment,” she has established a violation of Title VII. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986). To constitute actionable sexual harassment, a plaintiff must show that “the workplace is 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,” Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 680 (10th Cir. 2007) (quotation omitted), and that the victim was targeted “because of her gender,” Chavez v. New Mexico, 397 F.3d 826, 833 (10th Cir. 2005) (emphasis removed). Although a few isolated incidents of gender animus does not establish a pervasively hostile work environment, see Herrera, 474 F.3d at 680, the pervasiveness of the hostility “is quintessentially a question of fact” and thus particularly unsuited for resolution on a motion for judgment as a matter of law, see O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1098 (10th Cir. 1999) (quotation omitted) (noting that summary judgment should seldom be used in employment discrimination cases).
We conclude that, based on the conduct described above, a reasonable jury could find that Ms. Segovia was subjected to a severe or pervasively hostile work environment because of her sex. CDM characterizes many of the sex-based epithets as either “stray remarks” or “innocuous” such that no reasonable jury could conclude they created a hostile work environment. For example, it suggests that while Mr. Carter’s comment about a woman’s nipples is “odd,” it is not
-13-

“severe or humiliating.” It also maintains that a reasonable person would not find Mr. Carter’s comments about women in management and his comment about Ms. Segovia’s intimate relationship with her husband “humiliating.”
In addition, although CDM admits that the e-mail concerning Ms. Segovia was “vulgar and offensive,” it reasons that “it is far from clear” that the comments resulted from gender bias and accuses the EEOC of “sensational[izing]” it. CDM also contends that the e-mail, even assuming it is gender-based, is not evidence of discrimination or harassment because Ms. Segovia was never intended to see it. With this last proposition, we heartily disagree. Such a statement is akin to asserting that a person who overhears her coworkers using sexually derogatory terms to describe her cannot be subjected to a hostile work environment merely because the coworkers did not intend her to hear them. This is not the law of this Circuit. We have never held, nor would we, that to be subjected to a hostile work environment the discriminatory conduct must be both directed at the victim and intended to be received by the victim. Cf. Harsco Corp. v. Renner, 475 F.3d 1179, 1183, 1186–87 (10th Cir. 2007) (including as part of the totality of the circumstances in a hostile work environment claim the fact that the plaintiff overheard co-workers making sexually derogatory remarks about her); Herrera, 474 F.3d at 681 (including employer’s reference to victim as “fucking Mexican” outside victim’s presence, but relayed to him by a third party, as part of the hostile work environment
-14-

calculus). Thus, the fact that Ms. Segovia was not the intended recipient of the email is of no consequence in our review of the totality of the circumstances.
CDM also maintains with respect to the repeated use of the word “bitch”to describe Ms. Segovia that it was “used to vilify overbearing and seemingly unfair behavior by Segovia and was not intended in a sexual context.” It also notes that even Ms. Segovia admitted to using the word on occasion in a non-sexual context. But we have characterized the word as a “sexual epithet[]” that courts have described as “intensely degrading,” Windsor v. Hinckley Dodge, Inc., 79 F.3d 996, 1000 (10th Cir. 1996) (quotation omitted), and “if it reasonably could be inferred that [seemingly gender-neutral conduct] was [actually] related to gender or arose out of a context in which admittedly sex and gender-related conduct occurred, then it is for the fact finder to decide whether such an inference should be drawn.” O’Shea, 185 F.3d at 1097; see also Windsor, 79 F.3d at 1000 (“It is beyond dispute that evidence that a woman was subjected to a steady stream of vulgar and offensive epithets because of her gender would be sufficient to establish a claim under Title VII . . . .” (quotation omitted)). Here, Mr. Carter frequently made indisputably gender-related remarks, and tolerated the use of the word “bitch” to describe Ms. Segovia. Under these circumstances, we think a jury should decide whether these comments were made because of gender animus.
With respect to the pervasiveness of the conduct, the bulk of it occurred during a relatively short period of time—the four month period beginning with
-15-

Ms. Segovia’s promotion to New Car Sales Manager. The majority owner of the dealership repeatedly subjected her (and others) to comments about a woman’s “appropriate” role in the workplace; her co-workers used sexual epithets to describe her (on one such occasion she felt physically threatened when a coworker threw a plate against a wall); and she intercepted a vulgar e-mail describing her genitalia that was written by one of her subordinates, addressed to another manager, and forwarded on to her supervisor. Moreover, her supervisor knew about all this conduct and either chose to ignore it altogether or respond in only the most minimal of ways (e.g., forcing a half-hearted apology). See Harsco Corp., 475 F.3d at 1188 (“An employer will not be liable under Title VII if the employer was not on actual or constructive notice of the alleged harassment. Actual knowledge is usually demonstrable where the plaintiff has reported harassment to management-level employees.” (internal citation omitted)).
By parsing out the various instances of harassment and characterizing them as gender-neutral, or not pervasive, CDM seeks to eschew the proper “totality of the circumstances” test, which is the “touchstone” of our analysis of hostile work environment claims. See Harsco Corp., 475 F.3d at 1186–87; Penry v. Fed. Home Loan Bank of Topeka, 155 F.3d 1257, 1262 (10th Cir. 1998) (observing that “the very term ‘environment’ indicates that allegedly discriminatory incidents should not be examined in isolation” and the fact-finder in a sexual harassment case should not “examine each alleged incident of harassment in a vacuum[ ]
-16-

[because w]hat may appear to be a legitimate justification for a single incident of alleged harassment may look pretextual when viewed in the context of several other related incidents.” (quotation omitted)). The facts, when taken together and in the light most favorable to the EEOC, could reasonably support a finding that the work environment was charged with gender-bias and sexual animus. See Harsco Corp., 475 F.3d at 1187 (factors to consider in evaluating whether the environment is hostile or abusive include: “the frequency of the 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.”). It may be that a jury would agree with CDM that Ms. Segovia was not subjected to a severe or pervasively hostile environment based on her sex, but that is not for this Court to decide.
b. Disparate treatment Under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973), the plaintiff bears the initial burden to establish a prima facie case of sex discrimination, which varies depending on the type of adverse action the employee alleges was discriminatory. See Plotke v. White, 405 F.3d 1092, 1099 (10th Cir. 2005) (“[T]he articulation of a plaintiff’s prima facie case may well vary, depending on the context of the claim and the nature of the adverse employment action alleged.”) In this context, a prima facie case of discrimination must consist of evidence that (1) the victim belongs to a
-17-

protected class; (2) the victim suffered an adverse employment action; and (3) the
challenged action took place under circumstances giving rise to an inference of
discrimination. Sorbo v. United Parcel Serv., 432 F.3d 1169, 1173 (10th Cir.
2005). Once the plaintiff establishes a prima facie case of discrimination, the
burden shifts to the employer to articulate a legitimate, nondiscriminatory reason
for the adverse action. Mickelson v. New York Life Ins. Co., 460 F.3d 1304, 1311
(10th Cir. 2006). If the employer does so, the burden shifts back to the plaintiff
to show that there is a genuine issue of material fact as to whether the employer’s proffered reasons are pretextual. Id.5
The Employee Warning Notice
The EEOC contends that Ms. Segovia was disciplined more harshly than
others because of her sex. Notably, CDM concedes that the warning notice it
issued to Ms. Segovia was an adverse employment action despite this Circuit’s
rule that a written warning is an adverse employment action “only if it effects a
significant change in the plaintiff’s employment status,” Haynes v. Level 3
5There exists some tension in our case law regarding what a plaintiff must establish as part of his or her prima facie case of discrimination. Some cases treat circumstances suggestive of discrimination as an element of a prima facie case; other cases treat the surrounding circumstances as part of the analytically subsequent inquiry into the employer’s stated reason for the challenged action and the plaintiff’s opposing demonstration of pretext. Sorbo, 432 F.3d at 1173 & n.5 (listing cases). Regardless of whether we analyze the plaintiff’s evidence “in reference to the prima facie case or the business justification versus pretext inquiry, . . . if the court correctly concludes that the evidence of discrimination/pretext fails as a matter of law, summary judgment for the defendant is the proper result.” Id. at 1173.
-18-

Commc’ns., LLC, 456 F.3d 1215, 1224 (10th Cir. 2006) (emphasis added), by, for example, “affect[ing] the likelihood that the plaintiff will be terminated, undermin[ing] the plaintiff’s current position, or affect[ing] the plaintiff’s future employment opportunities,” Medina v. Income Support Div., 413 F.3d 1131, 1137 (10th Cir. 2005). Although none of these factors appear to be present here, because CDM concedes this issue, we will not address it.
The EEOC has established a prima facie case, then, if it can show that CDM issued Ms. Segovia a warning notice under circumstances that give rise to an inference of discrimination.6 One method by which a plaintiff can meet this burden, and the method by which the EEOC proceeds, is to show that the employer treated similarly situated employees more favorably. Sorbo, 432 F.3d at 1173.
Individuals are considered “similarly-situated” when they deal with the same supervisor, are subjected to the same standards governing performance evaluation and discipline, and have engaged in conduct of “comparable seriousness.” McGowan v. City of Eufala, 472 F.3d 736, 745 (10th Cir. 2006). The EEOC contends that Mr. Ennis is similarly situated and that he was never written up for any of his workplace infractions, including frequent tardiness, calling Ms. Segovia a “bitch,” and drinking beer behind the dealership with other
6Ms. Segovia is a member of a protected class because she is a woman. 42 U.S.C. § 2000e-2(a)(1) (prohibiting discrimination against any individual with respect to sex).
-19-

employees during business hours. But the EEOC has failed to establish that Ms. Segovia and Mr. Ennis engaged in conduct of comparable seriousness and were disciplined in a way that gives rise to an inference of discrimination. The tenor of the warning notice Ms. Segovia received was that her conduct rendered her unavailable to help her sales personnel complete deals. In other words, Ms. Segovia was disciplined for productivity-related concerns. She was chronically late to work; she often made personal calls on her company-issued cell phone during work hours; and she often could not be found in her office when her staff needed her. As a result, another employee was required to fill-in for her, causing that employee to fall behind in his own work.
The conduct for which Ms. Segovia argues Mr. Ennis should have been punished, with the exception of his tardiness, is not productivity-related. Although there was evidence that Mr. Ennis was often late to work, there is no evidence that his tardiness prevented him or others from completing their duties. Furthermore, with respect to evidence that Mr. Ennis drank beer behind the dealership during business hours, the uncontradicted testimony was that it was an occasional event that only took place late in the evening, right before closing. Again, there is nothing to suggest that such conduct interfered with his or other employees’ duties. Mr. Ennis’s conduct was not sufficiently similar to Ms. Segovia’s to permit an inference of discrimination on the basis of their disparate treatment. See McGowan, 472 F.3d at 745 (“[E]ven employees who are similarly
-20-

situated must have been disciplined for conduct of ‘comparable seriousness’ in order for their disparate treatment to be relevant.” (quoting Kendrick v. Penske Transp. Servs., 220 F.3d 1220, 1230 (10th Cir. 2000)).
Even if we were to conclude, however, that the EEOC met its burden to establish a prima facie case of discrimination, it has failed to introduce evidence that demonstrates CDM’s proferred reason for issuing the written warning—Ms. Segovia’s unavailability in the workplace, which was causing problems for her subordinates—was pretextual. The EEOC has not provided evidence of “such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions” in CDM’s proffered reason “that a reasonable factfinder could rationally find [it] unworthy of credence. Green v. New Mexico, 420 F.3d 1189, 1196 (10th Cir. 2005) (quotation omitted) (upholding summary judgment on Title VII claim where plaintiff failed to provide evidence supporting claims of pretext).
The EEOC suggests that evidence that Mr. Ennis and other employees were not written up for conduct such as using the word “bitch,” sending derogatory emails, leaving work to take children from school to daycare, etcetera, rebuts any legitimate, non-discriminatory business reason CDM may proffer for the difference in treatment. First, as noted above, Mr. Ennis is not similarly situated to Ms. Segovia under this Circuit’s precedent. See Sorbo, 432 F.3d at 1173–74 (noting that evidence that a similarly situated employee was treated differently may aid the plaintiff in satisfying its burden to establish a prima facie case of
-21-

discrimination, or, in other circumstances, may raise an inference of pretext in the third stage of the McDonnell Douglas burden-shifting method of proof). Furthermore, there is substantial evidence in the record that Ms. Segovia also engaged in the same type of non-productivity-related misconduct and was not written-up. For example, she was not disciplined for using profanity in the workplace although she sometimes did so. She was not disciplined for logging onto Mr. Daggett’s password-protected computer and using his e-mail without his permission. Nor was she disciplined when she slid magazines to a salesperson under the bathroom door, in front of customers, telling him to “[h]urry up.”
Finally, despite Ms. Segovia’s testimony that she felt the warning was “unfair” and that the basis for the warning was not “accurate,” she does not deny the particulars of the allegations contained in the employee warning notice. She admitted that she was often late to work. She admitted that she made personal calls during work hours but insisted that they were not excessive. This testimony was rebutted by her cell phone records, however, which revealed that she logged nearly 1500 minutes of talk time during the relevant period. She also admitted that she “wasn’t glued to [her] chair in [her] office” but testified that she was not unavailable—she was just elsewhere at the dealership, checking on inventory, for example. She was unable to dispute that her staff frequently complained to Mr. Daggett about her conduct, although she testified that only one of them ever complained to her about it.
-22-

Again, although there was evidence that other employees were sometimes late to work, there is no evidence that their conduct prevented them or others from completing their duties. Similarly, though Ms. Segovia testified that one manager left the dealership almost everyday to take his children from school to daycare, he was only gone from approximately 3:00 to 3:30 p.m., and nothing suggests that he was needed by his coworkers during that period or that his coworkers did not know how to locate him. Finally, with respect to evidence that various employees drank beer behind the dealership during business hours, the uncontradicted testimony was that it was an occasional event that only took place late in the evening, right before closing. Again, there is nothing to suggest that such conduct interfered with the employees’ duties. As such, the EEOC fails to establish a genuine issue of fact as to pretext on this basis.
The New Pay Plan The EEOC next contends that the new pay plan was an adverse employment action that CDM implemented because of Ms. Segovia’s sex. Again, CDM concedes that Ms. Segovia suffered an adverse employment action in that her salary was reduced. It contends, however, that the EEOC failed to establish that a similarly situated male did not also have his salary reduced. It maintains that Mr. Ennis was treated exactly the same as Ms. Segovia—that is, he was also placed on the new pay plan. The EEOC presented no evidence as to the actual effect the new pay plan
-23-

would have on Mr. Ennis’s and Ms. Segovia’s salaries. Because Ms. Segovia routinely made more than Mr. Ennis before the pooling of commissions, it would appear that after implementation of the plan’s pooling arrangement Ms. Segovia would earn less than before, while Mr. Ennis would have a corresponding increase in salary. If this were the case we would likely conclude that the EEOC satisfied the third prong of the prima facie case. But the new pay plan also contains a bonus structure under which each manager is rewarded based on the absolute number of cars each sells. In this regard, Ms. Segovia’s compensation is more favorable than Mr. Ennis’s—she would receive bonuses after the sale of 55, 60, and 70 new cars while Mr. Ennis’s bonuses would not kick in until after the sale of 60, 65, and 75 used cars. The EEOC points to no evidence related to this bonus structure, including whether it differed from the prior pay plan. In other words, there is no evidence that Mr. Ennis would be making more money than he did before (or that his salary was reduced by less than Ms. Segovia’s) other than pure conjecture.7 And while the EEOC is entitled to all reasonable inferences in its favor, these inferences “must be more than speculation and conjecture.” Sunward Corp. v. Dun & Bradstreet, Inc., 811 F.2d 511, 521 (10th Cir. 1987).
Furthermore, the uncontradicted evidence revealed that CDM was a company in financial trouble and the new pay plan was an effort to reduce the
7In fact, Mr. Ennis (the only person who testified on this point) said that after implementation of the new pay plan, he made less money, which is one reason he quit CDM to take a job elsewhere.
-24-

managers’ salaries to correspond to the market rate. Finally, a male replaced Ms. Segovia as the New Car Sales Manager when she resigned and he was subject to the new pay plan, which further undermines the EEOC’s contention that the pay plan was intentionally sexually discriminatory.
2. Retaliation Title VII makes it unlawful to retaliate against an employee for opposing practices made unlawful by the statute. 42 U.S.C. § 2000e-3(a). A prima facie case of retaliation requires a plaintiff to show (1) that she engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse—that is, that the action might “dissuade[] a reasonable worker from making or supporting a charge of discrimination,” Burlington N. & Santa Fe Ry. Co. v. White, — U.S. — , 126 S.Ct. 2405, 2414–15 (2006) (quotation omitted); and (3) that a causal connection exists between the protected activity and the materially adverse action. See Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1202 (10th Cir. 2006). As noted, CDM concedes that the disciplinary notice and the new pay plan were both materially adverse employment actions.8 It maintains, however, that Ms. Segovia never
8We note that it is not clear that the warning notice is a materially adverse action in the context of a retaliation claim. Although we recently held that “[a] written warning may be an adverse employment action only if it effects a significant change in the plaintiff’s employment status,” Haynes, 456 F.3d at 1224 (emphasis omitted), we have not had occasion to revisit this holding in light of the Supreme Court’s decision in White. There, the Court clarified that the
(continued...) -25-

engaged in any protected conduct nor is there a causal link between any such conduct and the challenged actions. We disagree.
First, Ms. Segovia unquestionably engaged in protected activity when she complained to Mr. Daggett about Mr. Carter’s comment that he did not want her to hire women salespeople. She told Mr. Daggett she was thinking of reporting Mr. Carter’s behavior to the EEOC. CDM makes much of the fact that although she threatened to do so, Ms. Segovia did not actually file a formal charge of discrimination with the EEOC until after she resigned. But the prohibition against retaliation protects conduct short of filing a formal charge—it prohibits discrimination against an individual simply for “oppos[ing] any practice made an unlawful employment practice” by Title VII. See 42 U.S.C. § 2000e-3(a). We have noted that “[p]rotected opposition can range from filing formal charges to voicing informal complaints to superiors.” See Hertz v. Luzenac America, Inc., 370 F.3d 1014, 1015 (10th Cir. 2004). Ms. Segovia’s complaint falls comfortably within this standard.
Ms. Segovia also complained to Mr. Daggett about the vulgar e-mail he received from Mr. Ennis, which also amounts to protected activity. Although
8(...continued) challenged action in a retaliation claim need not necessarily result in an adverse effect on the terms or conditions of employment, so long as it would dissuade a reasonable employee from engaging in protected activity. White, 126 S. Ct. at 2410–15. But because CDM concedes the warning notice here was materially adverse, we need not decide the issue.
-26-

CDM contends that Mr. Daggett “never understood that Segovia was complaining about discrimination in the workplace”—presumably because she did not explicitly invoke her rights under by Title VII—the record reveals the opposite. Mr. Daggett testified that he knew the e-mail contained “offensive sexual language,” “was not appropriate for the workplace,” that it was a violation of CDM’s “no harassment policy,” and that Ms. Segovia was upset by it.9
Second, the EEOC has presented sufficient evidence of a causal connection between Ms. Segovia’s protected activity and her receipt of a warning notice and the implementation of the new pay plan. A causal connection can be inferred from the fact that the challenged action closely follows the employee’s protected activity. See Argo, 452 F.3d at 1202. Here, the challenged actions were within a month of Ms. Segovia’s last instance of protected activity. We have previously held that such temporal proximity, alone, is sufficient to allow an inference of the existence of a causal connection between the two events. See id. (indicating twenty-four days between protected activity and adverse action gives rise to a rebuttable inference of a causal connection); Anderson v. Coors Brewing Co., 181
9The EEOC also suggests that Ms. Segovia engaged in protected activity when she walked away from the conversation that Mr. Carter had summoned her into with Mr. Ennis: “I felt like me walking away from that was a complaint to Mr. Carter that I didn’t want . . . to be talked to like that, and I didn’t want to be treated like that.” AA 538. Although we have serious reservations that Ms. Segovia’s conduct in walking away could be construed as protected activity, we need not decide that issue here since we conclude that she engaged in other activity protected by the Act.
-27-

F.3d 1171, 1179 (10th Cir. 1999) (indicating that six weeks between protected activity and adverse action gives rise to an inference of causation).
Having satisfied its burden to establish a prima facie case of retaliation, it was incumbent upon CDM to proffer a legitimate, nondiscriminatory reason for the adverse action. See Argo, 452 F.3d at 1202; Cortez v. Wal-Mart Stores, Inc., 460 F.3d 1268, 1273–74 (10th Cir. 2005) (applying the McDonnell Douglas burden-shifting analysis in an age discrimination case to review the district court’s denial of judgment as a matter of law at the close of the trial). As before, CDM contends that Ms. Segovia’s unavailability warranted the warning notice and that CDM’s effort to reduce salaries and to ease the tension between Ms. Segovia and Mr. Ennis over the value of trade-ins warranted the implementation of the new pay plan. Both of these are legitimate, nondiscriminatory reasons for the challenged actions, and the burden therefore shifts back to the EEOC to demonstrate that the proffered reasons for the actions are pretextual. See Argo, 452 F.3d at 1203.
To show pretext, the EEOC must produce evidence of “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.” Id. (quotation omitted). As with its discrimination claim, the EEOC’s evidence of pretext
-28-

related to the warning notice primarily relies on its contention that similarly situated individuals who did not engage in protected activity were treated differently. See Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1175 (10th Cir. 2006) (“[A] plaintiff may show pretext by providing evidence that he was treated differently from other similarly-situated employees who violated work rules of comparable seriousness.” (quotation omitted)). As the discussion above demonstrates, however, it did not establish that a similarly situated individual was treated differently.
With respect to the new pay plan, the EEOC contends that the pooling arrangement could not have its desired effect of reducing the tension between Ms. Segovia and Mr. Ennis over the pricing of trade-ins because the conflict would have persisted with respect to the forty percent of the gross sales not committed to the pool. The fact that other ways to reduce the conflict may have existed or that the conflict was not totally eliminated by the new pay structure, however, does not indicate that the plan was a “subterfuge for discrimination,” see Young v. Dillon Cos., Inc., 468 F.3d 1243, 1250 (10th Cir. 2006), and we must bear in mind that neither this Court, nor a jury, may act as a “super personnel department, second guessing employers’ honestly held (even if erroneous) business judgments,” id. (quotation omitted); see also Argo, 452 F.3d at 1203. There is no doubt that the pooling arrangement would reduce the pricing tension, at least with respect to sixty percent of sales, and thus the EEOC has failed to show this
-29-

proffered reason is pretextual. 3. Constructive Discharge “Constructive discharge occurs when the employer by its illegal
discriminatory acts has made working conditions so difficult that a reasonable person in the employee’s position would feel compelled to resign.” Sandoval v. City of Boulder, 388 F.3d 1312, 1325 (10th Cir. 2004) (quotation omitted). In evaluating whether the employee’s working conditions would cause such a feeling in a reasonable person, “we apply an objective test under which neither the employee’s subjective views of the situation, nor her employer’s subjective intent . . . are relevant.” Tran v. Trs. of State Colls. in Colo., 355 F.3d 1263, 1270 (10th Cir. 2004). The plaintiff’s burden in a constructive discharge case is substantial and showing that the employer’s conduct meets the definition of “tangible employment action” or “adverse employment action” is “not necessarily sufficient to establish a constructive discharge because a constructive discharge requires a showing that the working conditions imposed by the employer are not only tangible or adverse, but intolerable.” Id. at 1270–71; see also Penn. State Police v. Suders, 542 U.S. 129, 147 (2004) (“A hostile-environment constructive discharge claim entails something more [than conduct that amounts to actionable harassment]: A plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign.”); Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1221
-30-

(10th Cir. 2002) (stating that “[t]he bar is quite high in such cases”). Importantly,
in constructive discharge cases “[t]he question is not whether the employee’s
resignation resulted from the employer’s actions, but whether the employee had
any other reasonable choice but to resign in light of those actions.” Tran, 355
F.3d at 1270.
In support of its constructive discharge claim, the EEOC refers back to the
aforementioned evidence of discriminatory harassment. It adds to the calculus
Mr. Daggett’s delivery to Ms. Segovia of the warning notice and new pay plan.
After reviewing the record in light of the standard for constructive discharge
claims discussed above, we conclude that the EEOC has failed to present
sufficient evidence that a reasonable person in Ms. Segovia’s position would have felt compelled to resign.10 Adding the implementation of the new pay plan to the
equation does not change this result. A constructive discharge requires a showing
that the employer’s actions are not merely adverse, but intolerable, see id. at
10We note that the District Court entered judgment as a matter of law in favor of CDM on the EEOC’s constructive discharge claim, reasoning that “Ms. Segovia’s admitted desire to return to work for [CDM] eviscerates her contention that the workplace was intolerable.” In this Circuit, however, the test for constructive discharge is an objective one. This standard cuts both ways—just as an employee’s subjective feelings that her working conditions were intolerable is not controlling in the constructive discharge analysis, neither is an employee’s desire to continue working despite conditions so intolerable any reasonable employee would have long since quit. See Baca v. Sklar, 398 F.3d 1210, 1216 (10th Cir. 2005) (“When examining a constructive discharge claim, we disregard both the employee’s subjective view of the workplace environment and the employer’s subjective intentions regarding the employee.”).
-31-

1271, and Ms. Segovia quit before she knew precisely the effect the new pay plan would have on her salary, see Garrett, 305 F.3d at 1222 (the plaintiff failed to establish constructive discharge in part because the plaintiff resigned before he had complete details as to the position into which the employer was in the process of transferring him). Furthermore, the EEOC produced no evidence at trial indicating the precise effect the new pay plan would have on the managers’ salaries. As such, the EEOC has failed to show that Ms. Segovia’s working conditions were intolerable and that she “had no other choice but to quit,” see id. at 1221. We therefore affirm the District Court’s entry of judgment as a matter of law on this issue. B. Attorney’s Fees
After entering judgment in favor of CDM, CDM moved for attorney’s fees pursuant to 42 U.S.C. § 2000e-5(k), contending that the EEOC’s claims were frivolous, unreasonable, or without foundation. The District Court concluded that it was appropriate to grant certain fees to CDM. With respect to the EEOC’s claims brought on behalf of Ms. Segovia, the District Court reasoned that the “EEOC is charged with evaluating claims prior to filing suit and throughout the litigation process and the evidence marshaled in this case does not support the claims asserted.” Thus, although the court denied CDM’s motion for summary judgment, finding genuine issues of fact for trial, it nevertheless found an award of attorney’s fees appropriate. It also awarded CDM attorney’s fees related to
-32-

claims brought on behalf of Ms. Richmond. Though it denied those fees associated with the hostile work environment claim the EEOC voluntarily dismissed at the close of discovery, it granted CDM’s request for fees associated with those claims that the EEOC unsuccessfully defended in summary judgment proceedings.
The relevant statute provides, in pertinent part: In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee (including expert fees) as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person. 42 U.S.C. § 2000e-5(k). We review the district court’s award of attorney’s fees under this statute for an abuse of discretion. Carter v. Sedgwick County, 929 F.2d 1501, 1056 (10th Cir. 1991). “A Title VII defendant is not entitled to an award of fees unless the court finds that the plaintiff’s ‘claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.’” Simons v. Sw. Petro-Chem, Inc., 28 F.3d 1029, 1033 (10th Cir. 1994) (quoting Christianburg Garment Co. v. EEOC., 434 U.S. 412, 422 (1978)). 1. Ms. Segovia’s claims Because of our disposition of this case on the merits of Ms. Segovia’s sexual harassment claim, we conclude that the District Court abused its discretion in awarding CDM attorney’s fees. See EEOC v. St. Louis-San Francisco Ry. Co.,
-33-

743 F.2d 739, 744 (10th Cir. 1984) (reversing judgment in favor of the defendant and, in light of that disposition, concluding the district court abused its discretion in awarding attorney’s fees to the defendant); see also Sullivan v. Sch. Bd. of Pinellas County, 773 F.2d 1182, 1189 (11th Cir. 1985) (“In cases where the plaintiffs introduced evidence sufficient to support their claims, findings of frivolity typically do not stand.”). Furthermore, although we conclude that the District Court appropriately entered judgment in favor of CDM on the remaining claims related to Ms. Segovia, the facts as presented do not warrant a determination that the case was meritless, which is “to be understood as meaning groundless or without foundation.” Christianburg Garment Co., 434 U.S. at 421. As the Supreme Court has warned, the “district court [must] resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.” Id. at 421–22.
2. Ms. Richmond’s claims The EEOC also appeals the award of attorney’s fees related to Ms. Richmond’s disparate treatment claim. Aside from restating the relevant legal standard, the EEOC’s brief on appeal does not provide this Court a basis on which to conclude that the District Court abused its discretion in awarding CDM these fees. The only part of the record addressing Ms. Richmond’s disparate treatment claim is the EEOC’s response to CDM’s motion for summary judgment, which
-34-

does not include relevant material from which this Court may adequately review the District Court’s decision—e.g., supporting affidavits, interrogatories, or depositions. In other words, the EEOC did not produce a record that would permit this Court to conclude that its claim was not frivolous. Accordingly, we affirm the District Court’s award of attorney’s fees on this issue.
III. CONCLUSION Because a reasonable jury could find that Ms. Segovia was subjected to a hostile work environment on the basis of sex, we reverse the District Court’s entry of judgment as a matter of law on that issue. Because the EEOC failed to present sufficient evidence from which a reasonable jury could conclude that CDM constructively discharged Ms. Segovia, issued her an employee warning notice, or placed her on a new pay plan because of her sex or because she engaged in activity protected by Title VII, we affirm the District Court’s entry of judgment as a matter of law on those issues. Finally, because the EEOC’s claims related to Ms. Segovia are clearly not frivolous, the District Court abused its discretion in awarding CDM attorney’s fees. We reverse and remand for a new trial.
-35-