1 MARY JO O’NEILL AZ BAR #005924

SALLY C. SHANLEY AZ BAR # 012251

2 MICHELLE G. MARSHALL AZ BAR # 017358

EQUAL EMPLOYMENT OPPORTUNITY

3 COMMISSION, Phoenix District Office

3300 North Central Avenue, Suite 690

4 Phoenix, Arizona 85012

Telephone: (602) 640-5020

5 Email: mary.oneill@eeoc.gov

sally.shanley@eeoc.gov

6

michelle.marshall@eeoc.gov

7 Attorneys for Plaintiff

8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE DISTRICT OF ARIZONA
10

11 EQUAL EMPLOYMENT

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OPPORTUNITY COMMISSION,

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12

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Plaintiff,

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vs.

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TEMPLE-INLAND INC., d/b/a INLAND )

15 PAPERBOARD & PACKAGING, a )

Delaware corporation,

)

16

)

Defendant.

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17

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CIV COMPLAINT
(Jury Trial Demanded)

18

19

NATURE OF THE ACTION

20

This is an action under the Age Discrimination in Employment Act to correct

21 unlawful employment practices on the basis of age and to provide appropriate relief to

22 David C. Neal and a class of individuals, age 40 or older, whom Defendant terminated

23 because of their age. The Equal Employment Opportunity Commission (“Plaintiff” or

24 “Commission”) alleges that Defendant, Temple Inland Inc., d/b/a Inland Paperboard &

25 Packaging, (“Defendant”), terminated Mr. Neal, who was then age 56, from his job as

26 Plant Manager because of his age. The Commission also alleges Defendant terminated a

27 class of employees who are at least 40 years of age because of their age.

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1

JURISDICTION AND VENUE

2

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

3 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 7(b) of

4 the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 626(b) (the

5 "ADEA"), which incorporates by reference Section 16(c) and 17 of the Fair Labor

6 Standards Act of 1938 (the "FLSA"), as amended, 29 U.S.C. §§216(c) and 217.

7

2. The employment practices alleged to be unlawful were and are now being

8 committed within the jurisdiction of the United States District Court for the District of

9 Arizona.

10

PARTIES

11

3. Plaintiff, the Equal Employment Opportunity Commission, is the agency of

12 the United States of America charged with the administration, interpretation and

13 enforcement of the ADEA and is expressly authorized to bring this action by Section 7(b)

14 of the ADEA, 29 U.S.C. § 626(b), as amended by Section 2 of Reorganization Plan No. 1

15 of 1978, 92 Stat. 3781, and by Public Law 98-532 (1984), 98 Stat. 2705.

16

4. At all relevant times, Defendant has continuously been a Delaware

17 corporation doing business in the State of Arizona and the City of Glendale, and has

18 continuously had at least 20 employees.

19

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

20 engaged in an industry affecting commerce within the meaning of Sections 11(b), (g) and

21 (h) of the ADEA, 29 U.S.C. §§ 630(b), (g) and (h).

22

CONCILIATION

23

6. Prior to institution of this lawsuit, the Commission's representatives

24 attempted to eliminate the unlawful employment practices alleged below and to effect

25 voluntary compliance with the ADEA through informal methods of conciliation,

26 conference and persuasion within the meaning of Section 7(b) of the ADEA, 29 U.S.C.

27 § 626(b).

28

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1

STATEMENT OF CLAIMS

2

7. Since at least July 30, 2001, Defendant has engaged in unlawful

3 employment practices at its Glendale, Arizona facilities in violation of Section 623(a)(1)

4 of the ADEA, 29 U.S.C. § 623 (a)(1). The unlawful employment practices include:

5

a. Terminating the employment of Mr. Neal, who was born in 1946,

6

because of his age;

7

b. Terminating a class of employees who were age 40 or older;

8

c. During the relevant time, Defendant’s management would make age-

9

biased comments, such as discussing whether certain employees who

10

were over the age of 40 were “retiring on the job;” and

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d. One or more of Defendant’s management officials commented that

12

Defendant’s Arizona employees were “old” and made statements

13

like “this is a young man’s game” and “we need young blood.”

14

8. The effect of the practices complained of in paragraph 7(a)-(d) above has

15 been to deprive Mr. Neal and a class of employees who are 40 years of age or older, of

16 equal employment opportunities and otherwise adversely affect their status as employees

17 because of their age.

18

9. The unlawful employment practices complained of in paragraph 7(a)-(d)

19 above are willful within the meaning of Section 7(b) of the ADEA, 29 U.S.C. § 626(b).

20

PRAYER FOR RELIEF

21

Wherefore, the Commission respectfully requests that this Court:

22

A. Grant a permanent injunction enjoining Defendant, its officers, successors,

23 assigns and all persons in active concert or participation with it, from engaging in the

24 termination of employees who are 40 years old or older because of their age and from any

25 other employment practice which discriminates on the basis of age against individuals 40

26 years of age and older.

27

B. Order Defendant to institute and carry out policies, practices and programs

28 which provide equal employment opportunities for individuals 40 years of age and older,

3

1 and which eradicate the effects of its past and present unlawful employment practices.

2

C. Grant a judgment requiring Defendant to pay appropriate back wages in an

3 amount to be determined at trial, an equal sum as liquidated damages, and prejudgment

4 interest to individuals whose wages are being unlawfully withheld as a result of the acts

5 complained of above, including but not limited to Mr. Neal and a class of individuals who

6 are 40 years old or older who were adversely affected by the unlawful practices described

7 above.

8

D. Order Defendant to make whole all individuals adversely affected by the

9 unlawful practices described above, by providing the affirmative relief necessary to

10 eradicate the effects of its unlawful practices, including but not limited to rightful - place

11 reinstatement of Mr. Neal and a class of protected age group employees or, alternatively,

12 front pay.

13

E. Grant such further relief as the Court deems necessary and proper in the public

14 interest.

15

F. Award the Commission its costs of this action.

16

JURY TRIAL DEMAND

17

The Commission requests a jury trial on all questions of fact raised by its

18 Complaint.

19

DATED this 2nd day of August, 2006.

20

Respectfully submitted,

21

JAMES L. LEE

22

Deputy General Counsel

23

GWENDOLYN YOUNG REAMS

24

Associate General Counsel

25

EQUAL EMPLOYMENT

26

OPPORTUNITY COMMISSION 1801 L Street, N.W.

27

Washington, D.C. 20507

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1

s/Mary Jo O’Neill

MARY JO O’NEILL

2

Regional Attorney

3

s/Sally C. Shanley

SALLY C. SHANLEY

4

Supervisory Trial Attorney

5

s/Michelle G. Marshall

6

MICHELLE G. MARSHALL

Trial Attorney

7

EQUAL EMPLOYMENT

8

OPPORTUNITY COMMISSION

Phoenix District Office

9

3300 N. Central Ave., Suite 690

Phoenix, Arizona 85012

10

(602) 640-5020

Attorneys for Plaintiff

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 Case 2:06-cv-01899-NVW Document 155 Filed 06/11/10 Page 1 of 11

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6
UNITED STATES DISTRICT COURT
7
DISTRICT OF ARIZONA
8

9 Equal Employment Opportunity

)

10 Commission,

)

)

CV06-1899-PHX-NVW

)

11
12
vs.
13

Plaintiff,

)

CONSENT DECREE

)

)

)

)

14

TIN Inc. d/b/a Temple-Inland, a Delaware

) )

corporation,

)

15

Defendant.

)

)

16
The United States Equal Employment Opportunity Commission (the

17
“Commission” or “EEOC”) filed this action against TIN Inc., d/b/a Temple-Inland

18
(“TIN” or “Defendant”) to enforce the Age Discrimination in Employment Act of 1967

19
(“ADEA”) and the Civil Rights Act of 1991, 42 U.S.C. §1981a. In its Complaint, the

20
Commission alleged that TIN terminated employees who are at least 40 years of age and

21
older because of their age, including Charging Party Dave Neal and a class of employees.

22
The parties do not object to the jurisdiction of the Court over this action and waive

23
their rights to a hearing and the entry of findings of fact and conclusions of law.

24
In the interest of resolving this matter, and as a result of having engaged in

25
comprehensive settlement negotiations, the parties have agreed that this action should be

26
resolved finally by entry of this Consent Decree (“Decree”).

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Case 2:06-cv-01899-NVW Document 155 Filed 06/11/10 Page 2 of 11

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It is hereby ORDERED, ADJUDGED AND DECREED:

2

1. This Decree resolves all claims of the Commission and Dave Neal, John

3 Vanecko, and Clifton McGraw (collectively, the “Claimants”) against Defendant,

4 including back pay, front pay, interest, injunctive relief, attorney’s fees and costs arising

5 out of the issues in this lawsuit. Except where specified below, the terms of this Decree

6 apply only to TIN’s operations at its Glendale, Arizona facility.

7

2 Neither this Decree nor any order approving this Decree is or shall be

8 construed as an admission by TIN of the truth of any allegation or the validity of any

9 allegation asserted in this civil action, or of TIN’s liability therefore, nor as a concession

10 or an admission of any fault or omission of any act or failure to act by TIN.

11

12

INJUNCTION

13

3. TIN, and its successors and assigns for the duration of this Decree, are

14 permanently enjoined from engaging in any employment practice which discriminates on

15 the basis of age against individuals 40 years of age and older.

16

4 TIN, and its successors and assigns for the duration of this Decree, are

17 permanently enjoined from retaliating against any employee because he or she: (i)

18 opposes or opposed discriminatory practices made unlawful by the ADEA; (ii) files or

19 filed a charge of discrimination, assists or has assisted, participates or has participated in

20 the filing of a charge of discrimination; or (iii) assists, assisted, participates or

21 participated in an investigation or proceeding brought under the Federal laws prohibiting

22 discrimination or retaliation.

23

5. TIN, and its successors and assigns for the duration of this Decree, shall

24 carry out policies, practices and programs which provide equal employment opportunities

25 for individuals who are 40 years of age and older.

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Case 2:06-cv-01899-NVW Document 155 Filed 06/11/10 Page 3 of 11

1

MONETARY RELIEF

2

6. Within fourteen (14) calendar days of the entry of this Decree, TIN shall

3 make a payment in the total amount of Two Hundred and Fifty Thousand Dollars

4 ($250,000.00) in resolution of all claims asserted in this case. These payments shall be

5 apportioned to the Claimants as follows:

6

David Neal

$ 140,000.00

7

Clifton McGraw $ 60,000.00

8

John Vanecko $ 50,000.00

9

For each payment to the Claimants, 50% will not be apportioned as backpay, for

10 which TIN will issue an IRS Form 1099 to each Claimant, and 50% will be apportioned

11 as back pay, for which TIN will issue an IRS W-2 Form to each Claimant by January 31,

12 2011.

13

7 The amount set forth in Paragraph 6 of this Decree shall be paid by TIN in

14 a check or money order payable to each of the Claimants. Each such check or money

15 order shall be mailed directly by TIN to each of the Claimants, at the addresses to be

16 provided by the Commission within five (5) days of the entry of this Decree. Within

17 three (3) business days of the issuance of the check or money order, TIN shall submit a

18 copy of the check or money order, and related correspondence, to the United States Equal

19 Employment Opportunity Commission, Regional Attorney, 3300 North Central Avenue,

20 Suite 690, Phoenix, Arizona, 85012.

21

8 TIN shall not condition the receipt of this monetary relief on any

22 Claimant’s agreement to (a) waive his statutory right to file a charge with any federal or

23 state anti-discrimination agency; or (b) waive his right to apply for a position with TIN or

24 any other TIN entity; or (c) maintain confidentiality.

25

TRAINING

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9. During the term of this Decree, TIN shall provide annual training regarding

27 the ADEA to all employees in its Glendale, Arizona plant, as well as to Birg Mishurda

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Case 2:06-cv-01899-NVW Document 155 Filed 06/11/10 Page 4 of 11

1 and Juan Ramon Garza if these individuals remain employed by Defendant at the time of

2 the training.

3

10. During the first year, the seminar-training session shall be conducted within

4 four (4) months of the entry of this Decree. During the succeeding years, the training

5 session shall be conducted between ten (10) and thirteen (13) months after the completion

6 of the preceding session.

7

11. The trainer shall be a person(s) acceptable to the Commission. TIN shall

8 submit the name(s), address(es), telephone number(s), and resume(s) of the proposed

9 trainer as well as the date(s) of the proposed training to the EEOC at least thirty (30) days

10 prior to the proposed training. The Commission shall have thirty days from the date of

11 receipt of the information described above to accept or reject the proposed trainer. In the

12 event the Commission does not approve the trainer, it shall provide the specific bases for

13 the rejection in writing.,

14

12. Each of the training sessions shall be no less than ninety (90) minutes. All

15 personnel designated in Paragraph 9 of this Decree shall both register and attend the

16 seminar-training sessions, as required. The registry of attendance shall be retained by

17 TIN for the duration of the Decree.

18

13. The training shall include the subject of what constitutes age

19 discrimination; that age discrimination in the recruitment, hiring, firing, layoff,

20 compensation, assignment or other terms, conditions or privileges of employment

21 violates the ADEA, how to prevent age discrimination; how to provide a work

22 environment free from age discrimination; to whom and by what means employees may

23 complain if they believe they have been subjected to age discrimination in the workplace; 24 TIN’s statutory obligations under the ADEA in general, and in particular its obligation 25 not to discriminate on the basis of age in employment decisions concerning the 26 continuing employment of current employees; and objective, non-discriminatory 27 decision-making and proper procedures for evaluations, reductions in force and layoffs.

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

2 representatives to attend and participate in any of the seminar-training sessions described

3 above, and the representatives shall have the right to attend and fully participate in all the

4 sessions.

5

6

OTHER RELIEF

7

15. TIN shall expunge from any personnel file regarding the Claimants any

8 reference to any charge or complaint of discrimination filed against TIN that formed the

9 basis of this action.

10

16. Within thirty (30) days of the entry of this decree, TIN shall mail to the

11 Claimants a neutral letter of reference listing their dates of employment, position(s) held,

12 and salary. In response to any inquiries from prospective employers regarding any

13 Claimant that is directed to Fritz J. Aldrine, Associate General Counsel, 1300 South

14 MoPac Expressway, Austin, TX 78746-6933, TIN shall provide their dates of

15 employment, position(s) held, and salary,. In response to any inquiries from prospective

16 employers regarding any Claimant that is directed to TIN’s Human Resources, TIN shall

17 provide their dates of employment and last position held, consistent with TIN’s regular

18 policy on employment references.

19

17. Within sixty (60) days of the entry of this Decree, TIN shall review and

20 modify, if necessary, the policies and practices applicable to its Glendale, Arizona

21 operations, if necessary, to help ensure a work environment free from age discrimination

22 for its employees and to allow employees to raise concerns or complaints without

23 retaliation about matters, whether alleged, perceived or actual, made unlawful by the

24 ADEA. This written policy must include, at a minimum:

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A. A commitment to a workplace free of age discrimination and retaliation;

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B. Definitions of age discrimination;

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C. Encouragement of persons who believe they have been discriminated

28 against on the basis of age or retaliated against to come forward;

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D. A description of the consequences, up to and including termination, that

2 will be imposed upon violators of the policy;

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E. A promise of maximum feasible confidentiality for persons who believe

4 that they have experienced age discrimination or retaliation;

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F. An assurance of non-retaliation for witnesses of discrimination and persons

6 who believe they have been discriminated against on the basis of their age and other

7 federally-protected statuses;

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G. A statement that age discrimination by all persons, including management

9 officials, supervisors, is prohibited and will not be tolerated;

10

H. The identification of specific job titles, with their telephone numbers, to

11 whom employees who have experienced age discrimination or retaliation can report the

12 age discrimination or retaliation, including a written statement that the employee may

13 report the discrimination to designated persons outside their chain of management;

14

I. Assurances that Defendant will investigate age discrimination and

15 retaliation allegations promptly, fairly, reasonably, and effectively by appropriate

16 investigators and that appropriate corrective action will be taken by Defendant to prohibit

17 the age discrimination and retaliation.

18

J. These policies shall be distributed to each current employee at TIN’s

19 Glendale, Arizona facility within thirty (30) days of the entry of the Decree. TIN’s

20 prohibited age discrimination and retaliation policies shall be distributed to all new

21 Glendale, Arizona employees when hired.

22

18. TIN shall post for the duration of this Decree, in a prominent place in its

23 Glendale, Arizona facility frequented by its employees, including, both at the time that 24 this Decree becomes effective and for the duration of this Decree, the Notice attached 25 hereto as Attachment A. The Notice shall be the same type, style and size as set forth in 26 Attachment A.

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REPORTING BY DEFENDANT

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19. TIN shall report in writing to the Regional Attorney of the Commission’s

3 Phoenix District Office at 3300 N. Central Ave., Suite 690, Phoenix, Arizona 85012,

4 beginning six (6) months from the date of the entry of this Decree, and thereafter every

5 six (6) months for the duration of the Decree the following information:

6

A. Any changes, modifications, revocations, or revisions to its policies

7 and procedures made pursuant to Paragraph 17 of this Decree.

8

B. The name, job title, social security number, and last known home

9 telephone number and address of any individual employed by TIN at its Glendale,

10 Arizona facility who has complained of termination, denial of hiring or re-hiring

11 opportunities based on age discrimination against any TIN management official, agent or

12 employee, whether the allegations are communicated through formal or informal

13 complaint reporting mechanisms, whether telephonic, recorded, verbal or oral, during the

14 six (6) months preceding the report. The nature of the complaint, investigatory efforts

15 made by TIN and the corrective action taken, if any, shall be specified.

16

C. Confirmation that: (i) the Notice required in Paragraph 18 of this

17 Decree was posted and the locations where it was posted, and (ii) the expungement from

18 personnel files required in Paragraph 15 of this Decree took place, the date of the

19 expungement, and the specific documents expunged, if any.

20

D. Confirmation that TIN’s equal employment opportunity training

21 includes the topics listed in Paragraph 13 of this Decree.

22

E. TIN shall maintain all records concerning its implementation of this

23 Consent Decree during the term of the Decree. TIN shall also maintain, and keep

24 available for inspection and copying by EEOC, all records relating to layoffs, retirements,

25 and terminations of its employees in Glendale, Arizona.

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F. A copy of each letter of reference mailed pursuant to Paragraph 16.

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20. Beginning six months after entry of this Consent Decree and every six

28 months thereafter for the duration of the Decree, TIN shall furnish the EEOC with reports

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Case 2:06-cv-01899-NVW Document 155 Filed 06/11/10 Page 8 of 11

1 reflecting the name, address and telephone number of each employee who was 2 terminated, retired, or hired during the preceding six month period, his/her age, date of 3 birth, date of termination or hire, division, job title at the time of termination or hire, and 4 the name of the decision-maker(s) responsible for the termination or hire. The last report

5 under this paragraph shall be submitted to the EEOC two weeks prior to the date on

6 which the Consent Decree is to expire. The Commission, upon reasonable notice, shall

7 have the right to enter and inspect TIN premises to ensure compliance with this Consent

8 Decree and the ADEA’s prohibition of age discrimination and retaliation

9

COSTS, DURATION AND ENFORCEMENT

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21. The parties shall each bear their own costs, and attorneys’ fees incurred as a

11 result of this action through the filing of this Decree.

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22. The duration of this Decree shall be two (2) years from its entry. This

13 Court shall retain jurisdiction over this action for the duration of the Decree, during

14 which the Commission may petition this Court for compliance with this Decree.

15

23. This Decree shall expire by its own terms at the end of two years (2) from

16 the date of entry, without further action by the Parties.

17

24. If any provision(s) of this Consent Decree are found to be unlawful, only

18 the specific provision(s) in question shall be affected and the other provisions shall

19 remain in full force and effect.

20

25. The parties agree to entry of this Decree, subject to final approval by the

21 Court.

22

PENALTIES FOR NON-COMPLIANCE

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26. This Court shall retain jurisdiction over this action for the duration of the

24 Decree. During this time, the EEOC may petition this Court to order TIN to comply with

25 the Decree. Should the Court determine that Defendant has not complied with this

26 Decree, appropriate relief, including extension of this Decree for such a period as may be

27 necessary to remedy Defendant’s non-compliance, may be ordered.

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27. If TIN fails to comply with the monetary provisions of this Decree, it shall

2 have ten (10) business days to cure its non-compliance. Thereafter, a penalty shall accrue

3 in the amount of $100.00 day per Claimant ($300.00 per day), until TIN is in compliance

4 with the Decree.

5

28. In the event that TIN does not comply with any provision of this Decree,

6 and the Commission petitions the Court to order TIN to comply, TIN shall pay all costs

7 incurred by the Commission to enforce the Decree.

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Dated this 11th day of June, 2010.

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ATTACHMENT A

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Case 2:06-cv-01899-NVW Document 155 Filed 06/11/10 Page 11 of 11

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NOTICE TO ALL EMPLOYEES OF

2

TIN INC.

3 This Notice is posted pursuant to a Consent Decree entered into between TIN 4 Inc. and the Equal Employment Opportunity Commission (EEOC).

5 It is unlawful under federal law, the Age Discrimination in Employment Act (ADEA) and state law to discriminate against an employee on the basis of age. It
6 is also unlawful to retaliate against any person because the person protested 7 discriminatory practices or contacted the EEOC.

8 TIN Inc. will not discriminate against any employee on the basis of age and will
not retaliate against any employee.
9

If you believe you have been discriminated against by TIN Inc. you have the right 10 to seek assistance from:

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(1) EEOC, 3300 North Central Avenue, Suite 690, Phoenix,

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Arizona 85012, (602) 640-5000; or

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(2) Arizona Civil Rights Division (ACRD) of the Attorney General's

14

Office, 1275 W. Washington, Phoenix, Arizona, 85007, (602)

255-5263.

15

You also have the right to file a charge with the EEOC or ACRD if you believe 16 you are being discriminated against.

17 No Retaliation Clause. No action may be taken against you by any supervisory

18 or management official of TIN Inc. for (1) opposing discriminatory practices made

unlawful by federal law, (2) filing a charge or assisting or participating in the filing

19 of a charge of discrimination, or (3) assisting or participating in an investigation or

20

proceeding brought under the ADEA. Should any such retaliatory actions be taken against you, you should immediately contact the EEOC or the ACRD and

21 the address or telephone numbers listed above.

22
THIS NOTICE MUST REMAIN POSTED FOR TWO 23 YEARS.__________________.
24

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Dated:
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 1 WO

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IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Equal Employment Opportunity)

Commission,

)

10

)

Plaintiff,

)

11

)

vs.

)

12

)

)

13 TIN Inc., a Delaware corporation, dba)

Temple-Inland ,

)

14

)

Defendant.

)

15

)

)

16

No. CV-06-1899-PHX-NVW ORDER

17

Pending before the court is Defendant TIN’s Motion for Summary Judgment (doc.

18 #110) and Plaintiff’s Motion to Strike and Motion for Leave to File Surreply (doc. #131).

19 Defendant’s request for oral argument will be denied because the parties have submitted

20 memoranda thoroughly discussing the law and evidence and the court concludes that oral

21 argument will not aid its decisional process. See Mahon v. Credit Bureau of Placer

22 County, Inc., 171 F.3d 1197, 1200 (9th Cir. 1999). The Plaintiff has not requested oral

23 argument.

24 I. Plaintiff’s Motion to Strike

25

LRCiv 56.1(a) requires the moving party to file a separate statement of facts with

26 its summary judgment motion and memorandum of law. LRCiv 56.1(b) requires the

27 nonmoving party to file with its responsive memorandum in opposition a separate

28 statement indicating for each paragraph of the moving party’s statement of facts whether

1 the nonmoving party disputes it and any additional facts that establish a genuine issue of

2 material fact. LRCiv 56.1(d) permits the moving party to file “a reply memorandum.”

3 The rules do not permit the moving party to file a second statement of facts. This is

4 consistent with the moving party’s need to show no genuine issue of material fact exists

5 and that there is no need for a trier of fact to weigh conflicting evidence, assuming the

6 nonmoving party’s evidence is true. The moving party is permitted to object to the

7 admissibility of evidence submitted by the nonmoving party, but must present such

8 objections in its reply memorandum in support of its motion for summary judgment and

9 not in a separate memorandum. LRCiv 7.2(m)(2).

10

Motions to strike are permitted only in limited circumstances, such as where a

11 filing or submission is not permitted or authorized by statute, rule, or court order. See

12 LRCiv 7.2(m)(1). Defendant’s response to Plaintiff’s opposing statement of facts and

13 supplemental appendix, separate from its reply memorandum, are not authorized by the

14 federal and local court rules, and therefore Plaintiff’s motion to strike is proper.

15

The court will grant Plaintiff’s motion to strike Defendant TIN’s Response to

16 Plaintiff EEOC’s Statement of Facts in Opposition to Defendant’s Motion for Summary

17 Judgment (doc. #129) and Defendant TIN’s Supplemental Appendix of Materials in

18 Support of Its Response to Plaintiff EEOC’s Statement of Facts in Opposition to TIN’s

19 Motion for Summary Judgment (doc. #130). The court will not consider any portion of

20 Defendant TIN’s Reply in Support of Its Motion for Summary Judgment (doc. #128) that

21 cites to or relies on the stricken materials.

22 II. Background

23

Plaintiff Equal Employment Opportunity Commission (“EEOC”) filed this action

24 under the Age Discrimination in Employment Act on behalf of a class of five former

25 employees of Defendant TIN, Inc. d/b/a Temple Inland (“TIN”) who worked at TIN’s

26 Phoenix, Arizona, plant and whose terminations EEOC asserts were the result of age

27 discrimination. (Doc. #121, ¶ 1.) The terminations occurred in January 2003, May 2004,

28 January 2005, January 2006, and February 2006.

- 2 -

1

TIN is a manufacturing company that makes containerboard, a type of heavy

2 brown paper, which it converts into a complete line of corrugated packaging and specialty

3 packaging products. (Id. at ¶ 3.) TIN operates corrugated packaging plants and

4 converting plants across the United States and in Mexico. (Id.) TIN acquired the

5 corrugated box plants, including the Phoenix plant, in approximately April 2002. (Id. at

6 ¶ 4.)

7

TIN is organized in regions spanning the United States and parts of Mexico. (Id.

8 at ¶ 7.) When TIN acquired the Phoenix plant, it assigned the plant to TIN’s International

9 Group. (Id. at ¶ 8.) At that time, management of the Phoenix plant reported to Birg

10 Mishurda, Regional Vice President for the International Group. (Id. at ¶ 9.) During the

11 summer of 2002, Mishurda created regions within the International Group and assigned

12 the Phoenix plant to report to Juan Ramon Garza, who began managing the Pacific

13 Frontier Region from Phoenix. (Id. at ¶¶ 11-12.)

14

In January 2006, TIN moved the Phoenix plant from the International Group to the

15 Western Plains District within the Western Region. (Id. at ¶ 15.) At that time, the

16 Phoenix plant reported to Larry Siebert, District Manager for the Western Plains District,

17 who reported to Bruce Grube, Regional Vice President for the Western region. (Id. at

18 ¶¶ 15-16.) After further reorganization in November 2006, the Phoenix plant reported

19 directly to Grube. (Id. at ¶¶ 18–20.)

20

The Phoenix plant was not profitable between 1997 and the time TIN acquired it.

21 (Id. at ¶ 38.) In Mishurda’s initial assessment, he concluded that the plant’s underlying

22 problem was the internal inefficiency of manufacturing, which caused sales to be lower

23 than the plant needed to be profitable. (Id. at ¶ 46.) Mishurda also concluded that the

24 plant had very high costs, very high turnover, and low employee morale. (Id.) TIN’s

25 corporate office controlled several factors that affected financial reports of the Phoenix

26 plant’s profitability, such as depreciation of unused equipment, other fixed costs, and the

27 cost of paper the Phoenix plant obtained from TIN’s paper mills. (Doc. #120, ¶¶ 6-13.)

28

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1

A. David Neal

2

David Neal was born on July 31, 1946. (Doc. #121, ¶ 32.) Neal was the General

3 Manager of the Phoenix plant from June 1997, before TIN’s April 2002 acquisition, until

4 Mishurda (with Garza’s input) terminated Neal’s employment on January 10, 2003. (Id.

5 at ¶¶ 34, 42, 62, 73.)

6

Following Neal’s termination, Garza served as General Manager of the Phoenix

7 plant. (Id. at ¶ 72.) Garza was born on August 19, 1961. (Id. at ¶ 11.) At the time of

8 Neal’s termination, Garza was Neal’s direct supervisor. (Id. at ¶¶ 10-11.) In 2001, Garza

9 was the interim General Manager of a different plant, which was not profitable during

10 Garza’s interim management. (Doc. #120, ¶ 2.)

11

B. Hector Flores

12

Hector Flores was born on November 3, 1956. (Doc. #121, ¶ 32.) In 2003, Flores

13 was terminated from a job with a TIN competitor. (Id. at ¶ 97.) In September or October

14 2003, Mishurda hired Flores as a consultant at the Phoenix plant to help process orders

15 more quickly and to manage plant inventory levels. (Id. at ¶¶ 98, 100.) In April or May

16 2004, Mishurda and Garza moved Flores into the General Manager position. (Id. at

17 ¶ 101.) Shortly after the Phoenix plant began reporting to Siebert and Grube in January

18 2006, Siebert terminated Flores with Grube’s approval on February 22, 2006. (Id. at

19 ¶¶ 113-114.) Neither Mishurda nor Garza was involved in Flores’s termination. (Id. at

20 ¶ 124.)

21

After Flores’s termination, Martin Monkewicz served as interim General Manager

22 from March 2006 until October 2006 and then as General Manager after October 2006.

23 (Id. at ¶¶ 131-132, 136.) Monkewicz was born on September 25, 1964. (Doc. #120-2 at

24 4.) Monkewicz testified that in 2005 Garza said he wanted to groom Monkewicz for a

25 general manager position. (Doc. #120, ¶ 95.)

26

C. Clifton McGraw

27

Clifton McGraw was born on April 23, 1941. (Doc. #121, ¶ 153.) On November

28 4, 2002, McGraw was hired as the Production Manager for the Phoenix plant. (Id. at

- 4 -

1 ¶ 158.) The Production Manager manages most of the hourly employees at the facility,

2 facility maintenance, and product production, including creating the product and ensuring

3 delivery of the product. (Id. at ¶ 23.) Both Neal and Mishurda interviewed McGraw

4 before he was hired, and Mishurda cautioned Neal against hiring McGraw. (Id. at ¶¶ 155-

5 157.) On January 5, 2004, McGraw was transferred to a new Logistics Manager position

6 that Garza created. (Id. at ¶¶ 29, 165.)

7

Garza filled the vacant Production Manager position with Felipe Juarez. (Id. at

8 ¶ 167.) In May 2004, Garza eliminated the Logistics Manager position with Mishurda’s

9 approval. (Id. at ¶¶ 31, 175.) Then Juarez and Monkewicz performed the duties

10 previously assigned to the Logistics Manager. (Id. at ¶ 180.) Subsequently, Mishurda

11 transferred Juarez to a plant in Mexico because he was having a “rough time” as a

12 production manager in Phoenix and was not getting the results Mishurda had hoped for.

13 (Doc. #120, ¶¶ 143-144.) Juarez was born on January 18, 1961. (Id. at ¶ 140.)

14

D. John Vanecko

15

John Vanecko was born on April 24, 1944. (Doc. #121, ¶ 187.) Vanecko began

16 his employment as the Controller for the Phoenix plant before TIN acquired the plant.

17 (Id.) As the Phoenix plant Controller, Vanecko maintained the finances of the facility.

18 (Id. at ¶ 188.) Garza was not aware of any performance problems of Vanecko. (Doc.

19 #120-2 at 44.)

20

In approximately February 2003, Garza decided to promote Denise Cervantes to

21 the position of Regional Controller with an office in Phoenix. (Doc. #121, ¶ 195.) As of

22 January 20, 2005, the Regional Controller and Phoenix Plant Controller positions were

23 replaced with a new consolidated position. (Doc. #120, ¶ 162.) Garza made the decision

24 to hire Cervantes instead of Vanecko for the consolidated Controller position. (Id. at

25 ¶ 167.) He chose Cervantes over Vanecko because he believed Cervantes had knowledge

26 and expertise, e.g., regarding Mexican tax laws and “the Mexican way of doing business,”

27 that he thought were necessary for the regional controller part of the job. (Doc. #120-2 at

28 46.) When Cervantes resigned from the consolidated Controller position near the end of

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1 2005, TIN hired a Plant Controller instead of filling the consolidated Controller position.

2 (Doc. #120, ¶¶ 184-186.) Cervantes was born on June 1, 1968. (Doc. #120, ¶ 160.)

3

E. Paul Ives

4

Paul Ives was born on April 6, 1947. (Id. at ¶ 192.) Ives was hired as

5 Maintenance Supervisor for the Phoenix plant in 1993. (Doc. #121, ¶ 220.) His title

6 later was changed to Maintenance Superintendent although his position and job did not

7 change. (Id. at ¶¶ 221- 222.) On January 10, 2006, Ives was informed his employment

8 would be terminated. (Id. at ¶ 274.) Garza approved Ives’ termination. (Id. at ¶ 270.)

9 Mishurda was not involved in the decision to terminate Ives. (Id. at ¶ 272.)

10

In May 2006, James Hawley was hired as the Maintenance Superintendent for the

11 Phoenix plant. (Id. at ¶ 279.) TIN terminated Hawley for poor performance on January

12 2, 2007. (Id. at ¶ 281.) Hawley was born on August 26, 1974. (Doc. #120, ¶ 241.)

13 III. Analysis

14

A. Legal Standard for Summary Judgment

15

The court should grant summary judgment if the evidence shows there is no

16 genuine issue as to any material fact and the moving party is entitled to judgment as a

17 matter of law. Fed. R. Civ. P. 56(c). The moving party must produce evidence and

18 persuade the court there is no genuine issue of material fact. Nissan Fire & Marine Ins.

19 Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). To defeat a motion for

20 summary judgment, the nonmoving party must show that there are genuine issues of

21 material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A material fact

22 is one that might affect the outcome of the suit under the governing law. Id. at 248. A

23 factual issue is genuine “if the evidence is such that a reasonable jury could return a

24 verdict for the nonmoving party.” Id. When the moving party has carried its burden

25 under rule 56(c), the nonmoving party must produce evidence to support its claim or

26 defense by more than simply showing “there is some metaphysical doubt as to the

27 material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

28

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1 (1986). Where the record, taken as a whole, could not lead a rational trier of fact to find

2 for the nonmoving party, there is no genuine issue of material fact for trial. Id.

3

In this context, the court presumes the nonmoving party’s evidence is true and

4 draws all inferences from the evidence in the light most favorable to the nonmoving party.

5 Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1289 (9th Cir. 1987). If the

6 nonmoving party produces direct evidence of a genuine issue of fact, the court does not

7 weigh such evidence against the moving party’s conflicting evidence, but rather submits

8 the issue to the trier of fact for resolution. Id. “[T]he court should give credence to the

9 evidence favoring the nonmovant as well as that ‘evidence supporting the moving party

10 that is uncontradicted and unimpeached, at least to the extent that that evidence comes

11 from disinterested witnesses.’” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

12 133, 151 (2000).

13

B. Legal Standard for ADEA Claims

14

The Age Discrimination in Employment Act (“ADEA”) makes it unlawful to

15 discharge any individual because of the individual’s age. 29 U.S.C. § 623(a)(1).

16 Liability for disparate treatment based on age depends on whether age “actually

17 motivated” the employer’s decision, that is, “the plaintiff’s age must have actually played

18 a role in the employer’s decision-making process and had a determinative influence on

19 the outcome.” Enlow v. Salem-Keizer Yellow Cab Co., 389 F.3d 802, 811 (9th Cir. 2004)

20 (internal quotations, alterations, and citations omitted).

21

When an employee alleges disparate treatment based on direct evidence in an

22 ADEA claim, the court does not apply the burden-shifting analysis set forth in McDonnell

23 Douglas Corp. v. Green, 411 U.S. 792 (1973), to determine whether the evidence is

24 sufficient to defeat a motion for summary judgment. Enlow, 389 F.3d at 812 (citing

25 Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985)). “Direct evidence, in

26 the context of an ADEA claim, is defined as evidence of conduct or statements by persons

27 involved in the decision-making process that may be viewed as directly reflecting the

28 alleged discriminatory attitude ... sufficient to permit the fact finder to infer that that

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1 attitude was more likely than not a motivating factor in the employer’s decision.” Enlow,

2 389 F.3d at 812 (internal quotations, alterations, and citations omitted).

3

Where an employee must rely on circumstantial evidence, the court evaluates

4 ADEA claims by using the three-stage burden-shifting framework established in

5 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Id.; Diaz v. Eagle Produce

6 Limited Partnership, 521 F.3d 1201, 1207 (9th Cir. April 4, 2008).1 Cf. Schnidrig v.

7 Columbia Machine, Inc., 80 F.3d 1406, 1409 (9th Cir. 1996) (plaintiff must first establish

8 prima facie case of discrimination, which may be based either on direct evidence of

9 discriminatory intent or on a presumption arising from factors such as those set forth in

10 McDonnell Douglas Corp. v. Green).

11

At the first stage, the employee must establish a prima facie case of discrimination.

12 Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000). To establish a prima

13 facie case using circumstantial evidence, an employee must show that he: (1) was a

14 member of the protected class, (2) performed his job satisfactorily, (3) was terminated,

15 and (4) was replaced by substantially younger employees with equal or inferior

16 qualifications or, where his job was eliminated,2 “circumstances giving rise to an

17 inference of age discrimination.” Id. The employee can establish this inference by

18 showing the employer had a continuing need for his skills and services in that his duties

19 still were being performed. Id.

20

If the employee establishes a prima facie case of unlawful age discrimination, the

21 burden shifts at the second stage to the employer to articulate a legitimate

22 nondiscriminatory reason for its employment decision. Id. If the employer satisfies its

23

24

1 Disparate treatment claims under the ADEA are analyzed by the same standard used

to analyze disparate treatment claims under Title VII. Coleman v. Quaker Oats Co., 232

25 F.3d 1271, 1295 (9th Cir. 2000).

26

2 Where the employee is not replaced because the job is eliminated, the situation is

27

analogous to a reduction in force, which allows proof of an inference of age discrimination instead of proof of replacement. Wallis v. J.R. Simplot Co., 26 F.3d 885, 891 (9th Cir. 1994).

28

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1 burden, then at the third stage, the employee must prove that the employer’s alleged

2 reason for the adverse employment decision constitutes mere pretext for another motive

3 that is discriminatory. Id. Despite the burden shifting, the employee always bears the

4 ultimate burden of proving the employer intentionally discriminated because of the

5 employee’s age. Id.

6

At the third stage, the employee must do more to establish pretext than establish a

7 prima facie case and deny the credibility of the employer’s witnesses. Id. at 1282. At

8 this stage, the employee may defeat summary judgment by satisfying the usual standard

9 of proof for summary judgment, i.e., evidence in the record such that a reasonable jury

10 could find by a preponderance of the evidence the employer’s actions were based on the

11 employee’s age. See Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th

12 Cir. 2006).

13

The employee may establish pretext through direct or circumstantial evidence.

14 Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998). The employee can

15 establish pretext (1) directly, by persuading the court a discriminatory reason more likely

16 motivated the employer,3 or (2) indirectly, by showing the employer’s explanation is

17 unworthy of credence because it is internally inconsistent or otherwise not believable.

18 Id.; Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 849 (9th Cir. 2004). In

19 some cases a combination of direct and indirect evidence may serve to establish pretext.

20 Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000).

21

“Direct evidence is evidence which, if believed, proves the fact [of discriminatory

22 animus] without inference or presumption.” Godwin, 150 F.3d at 1221; accord Stegall v.

23 Citadel Broadcasting Co., 350 F.3d 1061, 1066 (9th Cir. 2004). “When the plaintiff offers

24 direct evidence of discriminatory motive, a triable issue as to the actual motivation of the

25

26

3 What is referred to here as “direct” evidence is direct evidence of an employer’s

27 discriminatory intent or bias from which a jury could infer the employer’s justification is pretext. It is not direct evidence that the employer’s explanation is false. Cornwell v. Electra

28 Cent. Credit Union, 439 F.3d 1018, 1029 & n.7 (9th Cir. 2006).

- 9 -

1 employer is created even if the evidence is not substantial.” Id. (both). “The plaintiff is

2 required to produce ‘very little’ direct evidence of the employer’s discriminatory intent to

3 move past summary judgment.” Godwin, 150 F.3d at 1221; Chuang, 225 F.3d at 1128.

4

The Ninth Circuit has stated that when the plaintiff relies on indirect,

5 circumstantial evidence to show that the employer’s motives were different from its stated

6 motives, the evidence must be “specific” and “substantial” evidence of pretext to create a

7 triable issue and survive summary judgment. Godwin, 150 F.3d at 1222; Stegall, 350

8 F.3d at 1066. Subsequently, a Ninth Circuit panel interpreted United States Supreme

9 Court and Ninth Circuit precedent as holding that in the context of summary judgment, a

10 plaintiff relying on circumstantial evidence is not required “to produce more, or better,

11 evidence than a plaintiff who relies on direct evidence.” Cornwell v. Electra Cent. Credit

12 Union, 439 F.3d 1018, 1030 (9th Cir. 2006) (citing Desert Palace, Inc. v. Costa, 539 U.S.

13 90, 100 (2003); McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1124 (9th Cir. 2004)).

14 More recently, a Ninth Circuit panel observed that the Circuit “has not clearly resolved

15 this issue,” citing Cornwell and McGinest as holding circumstantial and direct evidence

16 should be treated alike, and other post-Costa cases, e.g., Dominguez-Curry v. Nevada

17 Transp. Dep’t, 424 F.3d 1027, 1038 (9th Cir. 2005), that have held a plaintiff’s

18 circumstantial evidence of pretext must be “specific” and “substantial.”4

19

Generally, in an employment discrimination action, the employee need produce

20 “very little evidence” to overcome an employer’s motion for summary judgment. Chuang

21 v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1124 (9th Cir. 2000); accord Diaz, 2008

22 521 F.3d at 1207. This is because the resolution of the ultimate question requires “a

23 searching inquiry” that is most appropriately conducted by a fact finder on a full record.

24 Chuang, 225 F.3d at 1124. At trial, the employee must prove both that the employer’s

25 alleged reason for the employment decision was false and that discrimination was the real

26

27

4 Davis did not need to decide the issue because it found the plaintiff had offered

28 specific and substantial evidence. Id. at 1091.

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1 reason, but to survive summary judgment, the employee is not required to provide direct

2 evidence of discriminatory intent as long as a reasonable fact finder could conclude,

3 based on the employee’s prima facie case and the fact finder’s disbelief of the employer’s

4 reasons for the decision, that discrimination was the real reason for the employment

5 decision. Nidds v. Schindler Corp., 113 F.3d 912, 918 n.2 (9th Cir. 1997).

6

C. TIN’s Comments Are Not Direct Evidence of Discriminatory Motive.

7

The EEOC contends numerous statements made by Mishurda and Garza constitute

8 direct evidence of age discrimination. To avoid the three-stage, burden-shifting

9 McDonnell Douglas analysis, the EEOC must produce evidence of conduct or statements

10 by persons involved in TIN’s termination decisions that directly reflect the alleged

11 discriminatory attitude sufficient to permit a jury to infer that that attitude was more likely

12 than not a motivating factor in the employer’s decisions. See Enlow, 389 F.3d at 812.

13 “Direct evidence typically consists of clearly sexist, racist, or similarly discriminatory

14 statements or actions by the employer.” Coghlan v. American Seafoods Co., 413 F.3d

15 1090, 1095 (9th Cir. 2005); accord Dominguez-Curry, 424 F.3d at 1038. When the

16 employer’s statements do not directly concern the plaintiff employee, some inference is

17 necessary to establish discrimination with regard to that plaintiff, but “[w]hen the

18 evidence establishes the employer’s animus toward the class to which the plaintiff

19 belongs, the inference to the fact of discrimination against the plaintiff is sufficiently

20 small that [the court has] treated the evidence as direct.” Coghlan, 413 F.3d at 1095 n.6.

21 But “stray remarks”—isolated discriminatory comments unrelated to the decision-making

22 process—are insufficient to establish discrimination. Merrick v. Farmers Ins. Group, 892

23 F.2d 1434, 1438 (9th Cir. 1990).

24

For example, on three separate occasions telling an employee seeking a promotion

25 that the Board wanted somebody younger for the job was considered direct evidence of

26 discriminatory motive whereas choosing to promote a younger candidate over an older

27 one because he was “a bright, intelligent, knowledgeable young man” was not. Compare

28 Schnidrig, 80 F.3d at 1411 (summary judgment for employer inappropriate), with Merrick

- 11 -

1 v. Farmers Ins. Group, 892 F.2d 1434, 1438-39 (9th Cir. 1990) (summary judgment for

2 employer appropriate). A decisionmaker’s statements, connected to a discharge, that an

3 employee was “old and burnt out,” “too old to change,” “old geezer,” and “old fart,” and

4 the employee “did not fit the [company] mold of a young, aggressive type manager like

5 they had in most other management positions” served as evidence of the fact the

6 employee was discharged because of his age. EEOC v. Pape Lift, Inc., 115 F.3d 676,

7 679, 684 (9th Cir. 1997). A decisionmaker’s statements that the employee “was so old

8 [he] must have come over on the Mayflower” and he “was too damn old to do [his] job,”

9 which were not made in the direct context of the employee’s termination, were considered

10 “additional evidence of age-based animus.” Reeves v. Sanderson Plumbing Prods., Inc.,

11 530 U.S. 133, 151-53 (2000). A supervisor’s statement that “he intended to get rid of all

12 the ‘old timers’ because they would not ‘kiss my ass,’” and a supervisor’s statement that

13 “[w]e don’t necessarily like grey hair,” which were not tied directly to the employment

14 decisions, were held to be “at best weak circumstantial evidence” and “not enough to

15 create an inference of age discrimination.” Nidds v. Schindler Elevator Corp., 113 F.3d

16 912,915, 918-19 (9th Cir. 1997); Nesbit v. Pepsico, 994 F.2d 703, 705 (9th Cir. 1993).

17

Here, the EEOC concedes the comments it alleges to be direct evidence of

18 discriminatory motivation were not directed at any of the class members or related to their

19 terminations. (See doc. ##110 at 13-14, 119 at 6-7.) It further concedes that the

20 comments were made only by Mishurda, who was responsible for terminating Neal, and

21 Garza, who terminated Ives and was responsible for consolidating positions and then

22 eliminating McGraw’s and Vanecko’s positions. (Doc. #119 at 3-6.) None of the

23 allegedly discriminatory remarks were made by Siebert, who terminated Flores, or Grube,

24 who approved Flores’s termination, and the EEOC did not dispute TIN’s statement that

25 neither Mishurda nor Garza was involved in Flores’s termination. (Doc. ##119 at 3-4,

26 121, ¶ 124.)

27

The EEOC summarizes Mishurda’s comments as showing “Mishurda connected

28 age with energy, health, vitality, and creativity.” (Doc. #120, ¶ 15.) Neal testified that

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1 Mishurda was concerned about employees who “retired on the job,” and lacked energy,

2 creativity, and “that young thinking sort of mentality.” (Doc. #120-2 at 238, 242.) Neal

3 described his first meeting with Mishurda in 2002:

4

And in the course of the conversation, as we talked about the profile of my

team and I went through each member of the team and explained their

5

background, their experience, their longevity with the company, pluses and

minuses of their performance, he was very inquisitive about their health, their

6

well being, their age.

Q. He asked their age?

7

A. Yes.

Q. He asked what each of their dates of birth was?

8

A. No.

Q. What did he say exactly?

9

A. “How old are these people?”

Q. Go ahead.

10

A. And so we described and went over the direct reports.

Q. Did you tell him what their ages were?

11

A. I did not know their ages. I just said approximately 50, 60, 40,

whatever they were.

12

And then we went on and we talked about vitality and the new ideas,

and that’s where these, the new blood and the dream team came []. And he

13

told me about his dream team and he told me about examples of the dream

team. An example was ... one of the young guys that turned around a plant in

14

Imperial Valley, and how he had come in and with all this energy and all these

new ideas and turned this plant around in a heartbeat and how proud he was

15

of these young lions and tigers that were out there.

16 (Doc. #112-5 at 26, Neal Tr. 184:8-185:10.)

17

Neal also testified that Mishurda vetoed hiring “an ideal candidate in his 50s” for

18 the Production Manager position because Mishurda was “obsessed with people retiring on

19 the job and age and energy,” but Mishurda did not veto hiring 61-year-old McGraw for

20 that position. (Id. at 29-30, Neal Tr. 217:12-219:19.) Mishurda only cautioned Neal

21 against hiring McGraw, saying, “You seem to have a tendency to hire older people,” and

22 “that it appeared to him that he might have a tendency to retire on the job, that he might

23 have a tendency not to have the energy, as a production manager’s position was a very

24 fast moving, energetic kind of position.” (Id. at 23, Neal Tr. 140:22-141:6.)

25

Alex Salomon, a TIN employee assigned to the Monterey, Mexico facility and

26 later the Imperial Valley, California facility, testified that over the years 1996-2002 he

27 heard Mishurda refer to others as “old,” “old school,” “old fashioned,” “old guard,” and

28 “not energetic,” while referring to Salomon as “energetic” and “youthful.” (Doc. #120,

- 13 -

1 ¶¶ 27-40.) Salomon said Mishurda referred to his “roster of champions” as “young

2 blood” and “young breed” and said the business needed “young,” “fresh,” and “energetic”

3 people and “motivated blood.” (Id.) Mishurda told Salomon “older people should move

4 on and learn new tricks.” (Id. at ¶ 39.) Salomon further testified that during a telephone

5 conversation with Mishurda in June 2002, Mishurda said “we are replacing older

6 employees” “referring to the change of team or the change of personnel at the Imperial

7 Valley level” in the context of referring to “replacing older ways of doing business with

8 his roster of champions,” “young blood,” and “young breed.” (Id. at ¶ 33, doc. #120-2 at

9 321-22, 325-26, Salomon Tr. 197:17-198:25, 202:16-203:1.) Salomon also testified that

10 Mishurda referred to the business as a “young man’s game,” which Salomon interpreted

11 as meaning he would need “[y]outh, energy, new mind, modernism” to do his next

12 assignment properly because the Imperial Valley management group was “old,” an “old

13 way of doing business,” and “was not performing.” (Doc. #120-2 at 342-43, Salomon Tr.

14 236:24-237:21.) Salomon said these comments were “part of the pep talk” to motivate

15 him for his new assignment. (Id.)

16

In June 2002, when Mishurda interviewed a 51-year-old candidate for the Sales

17 Manager position at the Phoenix facility with Garza and Neal, Mishurda openly discussed

18 the “pros and cons” of hiring an “older” sales manager. (Doc. #120, ¶ 41.) Mishurda said

19 something like, “Basically what we need to decide is when we’re looking at someone

20 older like yourself is that you obviously have the experience, but compared to a young

21 guy, would you be willing to go out into that hot Phoenix sun, climb the stairs and make

22 the sales calls with your sales rep? A young guy would be hungry and maybe have more

23 energy.” (Id.) Mishurda asked the candidate, “[I]t’s hot out there, do you really want to

24 go back to pounding the bricks? It’s a young man’s job.” (Id.) Mishurda subsequently

25 told Neal not to hire the candidate because Mishurda “was concerned that he didn’t have

26 the energy, he was concerned that he would retire on the job, he was concerned that he

27 wouldn’t go back and play the young man’s game.” (Id. at ¶ 42.) Mishurda also told

28

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1 Flores he had terminated the general manager of another plant because he had “retired on

2 the job.” (Id. at ¶ 26.)

3

Garza questioned whether a California sales broker in his 70’s had the physical

4 ability to do his job. (Id. at ¶ 43.) Garza and Mishurda talked about a sales manager

5 getting on in age, retiring on the job, lacking energy, being overweight, golfing, and

6 drinking. (Id. at ¶¶ 44-45.) Garza referred to the sales manager as “perro viejo,” meaning

7 “old dog,” and said “an old dog does not learn new tricks.” (Id. at ¶¶ 49-51.) Garza also

8 said the Phoenix plant was “lacking juice,” was being run slowly and inefficiently, and

9 needed “young people with push.” (Id. at ¶¶ 49, 51-52.)

10

When Garza asked Flores if he was sure that he wanted to hire Bill Childress as

11 Production Manager, he mentioned that he had seen Childress falling asleep during

12 meetings, which Flores interpreted as meaning that Childress did not have energy to last

13 all day because he was an older guy. (Id. at ¶ 55; Doc. #120-2 at 277-278, Flores Tr.

14 65:15-66:9.) Nevertheless, Flores hired Childress as production manager, and Garza,

15 who was Flores’s boss at the time, did not prevent the hiring. (Doc. #120-2 at 278, Flores

16 Tr. 66:12-23.)

17

In 2004 or 2005, Daniel Garcia, the Human Resources Manager for the

18 International Division in Mexico, came to the Phoenix plant for about a week, conducted

19 a study, and presented the results of his study to help the Phoenix plant with absenteeism

20 and turnover. (Doc. #120, ¶¶ 57-58.) During his presentation, Garcia suggested that

21 employees in certain age groups have more or less turnover, but neither Flores nor the

22 Human Resources Manager for the Phoenix plant could remember which age group

23 Garcia said had the greatest turnover. (Id. at ¶ 59.)

24

Accepting the EEOC’s evidence as true and drawing all inferences in the EEOC’s

25 favor, Mishurda’s and Garza’s comments do not establish Mishurda or Garza had animus

26 toward people over the age of 40 years old from which it may be inferred that age-based

27 animus was more likely than not a motivating factor in the terminations of Neal, Flores,

28 McGraw, Vanecko, or Ives. The evidence shows that Mishurda, and perhaps also Garza,

- 15 -

1 were concerned that older employees may not perform as well as younger employees in

2 positions requiring physical endurance and energy, may not be willing to adopt new

3 strategies, and may prefer a job that permits them to collect a paycheck without

4 continuing to work as hard as before, i.e., “retire on the job.” But the evidence does not

5 establish that Mishurda or Garza assumed those characteristics applied to all older

6 workers—in fact, their cautiousness did not prevent TIN from hiring 61-year-old

7 McGraw or Childress. Moreover, when Mishurda said “we are replacing older

8 employees,” he was not referring to terminations at the Phoenix plant, but rather to the

9 change of personnel at the Imperial Valley plant, and there is no evidence connecting that

10 comment to the terminations of Neal, Flores, McGraw, Vanecko, or Ives.

11

Therefore, the allegedly discriminatory statements submitted by the EEOC do not

12 constitute direct evidence that TIN had a discriminatory motive in the terminations of

13 Neal, Flores, McGraw, Vanecko, or Ives. They are instead circumstantial evidence the

14 court will consider in determining whether the EEOC has met its burden in proving TIN’s

15 justification for the terminations is pretextual.

16

D. Stage I of McDonnell-Douglas Analysis: The EEOC Has Established a

Prima Facie Case of Discrimination for Four of the Five Former

17

Employees.

18

The requisite degree of proof necessary to establish a prima facie case of

19 discrimination for “claims on summary judgment is minimal and does not even need to

20 rise to the level of a preponderance of the evidence.” Davis v. Team Elec. Co., 520 F.3d

21 1080, 1089 (9th Cir. 2008). Based on the facts described above, most of which are

22 undisputed, the EEOC has clearly shown three of the four elements of a prima facie case

23 for each of the five class members. Each was terminated, at least forty years old at the

24 time of termination, and replaced by a substantially younger employee with equal or

25 inferior qualifications. Where the positions were eliminated, the terminated employee’s

26 duties were assigned to a substantially younger employee with equal or inferior

27 qualifications. The fourth element, whether the class members performed their jobs

28 satisfactorily, requires closer analysis.

- 16 -

1

1. David Neal

2

Mishurda, with Garza’s input, terminated 56-year-old Neal and assigned Neal’s

3 General Manager responsibilities to 41-year-old Garza, who had previously served as

4 interim General Manager of a different plant, which also was not profitable. In Garza’s

5 opinion, Neal “was not going to be a good General Manager for the Phoenix plant given

6 the situation we were in.” (Doc. #121, ¶ 57.) In Mishurda’s opinion, Neal was not

7 capable of improving the performance of the Phoenix plant as quickly as TIN wanted the

8 performance improved. (Id. at ¶ 59.) Mishurda said he also based his decision to

9 terminate Neal on his perception that Neal did not appear to accept Garza as his manager

10 and his belief that Neal was focused more on receiving compensation under a severance

11 agreement than on plant business. (Id. at ¶ 63.)

12

Mirshurda and Garza communicated to Neal their concerns about the Phoenix

13 plant’s profitability and had discussions with Neal regarding a plan to move the plant

14 toward profitability. (Doc. #120-2 at 209-210.) But Neal never had a formal

15 performance review that focused on plant profitability, and Mirshurda and Garza gave

16 him positive feedback regarding the business plan and how he was doing. (Id. at 210-

17 211.) Neal never was informed that his job was in jeopardy because the plant was not

18 profitable enough. (Id. at 258, ¶ 16.) Thus, presuming the EEOC’s evidence to be true

19 and because the requisite degree of proof is minimal, the court concludes the EEOC has

20 established that Neal performed his job satisfactorily.

21

The EEOC, therefore, has established a prima facie case of unlawful age

22 discrimination with respect to Neal.

23

2. Hector Flores

24

After slightly less than two years as General Manager, 49-year-old Flores was

25 terminated and replaced by 41-year-old Monkewicz, who did not have experience as a

26 General Manager. The Phoenix plant moved toward profitability during part of Flores’s

27 management. (Doc. #120, ¶ 87.) In 2005, the Phoenix plant’s profitability regressed, due

28 to multiple factors, including market conditions, corporate decisions regarding paper

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1 pricing, and increases in energy, wax, and labor costs. (Id. at ¶¶ 113-118.) Reduction in

2 productivity caused by decisions made by Mishurda, Garza, and Juarez also adversely

3 affected profitability of the Phoenix plant. (Id. at ¶¶ 119-22.) Flores believes the Phoenix

4 plant’s equipment was in severe disrepair, which resulted in excessive downtime. (Doc.

5 #121, ¶ 111.)

6

Flores never received an annual performance review. (Id. at ¶ 109.) The only

7 performance feedback he received consisted of his merit bonus and his merit increase in

8 pay. (Id.) Based on this feedback, Flores believed TIN was satisfied with his

9 performance as General Manager. (Id. at ¶ 110.) Thus, presuming the EEOC’s evidence

10 to be true and because the requisite degree of proof is minimal, the court concludes the

11 EEOC has established that Flores performed his job satisfactorily.

12

The EEOC, therefore, has established a prima facie case of unlawful age

13 discrimination with respect to Flores.

14

3. Clifton McGraw

15

Although Mishurda cautioned Neal not to hire McGraw as Production Manager,

16 Neal did so when McGraw was 61 years old. Two months later Neal was terminated.

17 Fourteen months after McGraw was hired, Garza transferred 62-year-old McGraw to a

18 newly created Logistics Manager position, which Garza eliminated four months later.

19 Juarez, then 43 years old, and Monkewicz, then 46 years old, shared what had been

20 McGraw’s duties under both positions. Juarez subsequently was transferred to a plant in

21 Mexico because he was not performing successfully at the Phoenix plant.

22

McGraw’s transfer to Logistics Manager was considered a demotion. (Doc. #120,

23 ¶ 139.) However, the EEOC has not alleged that McGraw was wrongfully demoted from

24 the Production Manager position, only that McGraw was wrongfully terminated from the

25 Logistics Manager position. (Doc. ##1, 121, ¶¶ 160-162.) As Logistics Manager,

26 McGraw was held responsible for areas such as customer service returns and allowances

27 and shipping department overtime even though he did not have power to change those

28 areas and did not manage the people who could change those areas. (Doc. #120, ¶ 145.)

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1 McGraw served as Logistics Manager for just over four months. (Id. at ¶ 148.) McGraw

2 never received any negative performance reviews during his employment with TIN.

3 (Doc. #120, ¶ 133.) Thus, presuming the EEOC’s evidence to be true and because the

4 requisite degree of proof is minimal, the court concludes the EEOC has established that

5 McGraw performed his job satisfactorily.

6

The EEOC, therefore, has established a prima facie case of unlawful age

7 discrimination with respect to McGraw.

8

4. John Vanecko

9

Garza promoted Cervantes to the position of Regional Controller and then replaced

10 both the Regional Controller and the Plant Controller positions with a consolidated

11 position. By choosing 36-year-old Cervantes over 60-year-old Vanecko for the

12 consolidated position, Garza terminated Vanecko’s employment. Less than a year later,

13 Cervantes resigned.

14

Although Garza made the decision to terminate Vanecko, Garza testified he had

15 observed Vanecko’s performance as a controller and was not aware that Vanecko had any

16 performance problems. (Doc. #120-2 at 44.) Thus, presuming the EEOC’s evidence to

17 be true and because the requisite degree of proof is minimal, the court concludes the

18 EEOC has established that Vanecko performed his job satisfactorily.

19

The EEOC, therefore, has established a prima facie case of unlawful age

20 discrimination with respect to Vanecko.

21

5. Paul Ives

22

Ives was 58 years old when he was informed his employment as Maintenance

23 Superintendent would be terminated. A few months later, he was replaced by 31-year-old

24 Hawley, who was subsequently terminated for poor performance.

25

Ives was responsible for the maintenance of all the equipment at the Phoenix plant,

26 and the Production Manager shared responsibility for ensuring that preventive

27 maintenance was performed. (Doc. #121, ¶ 224.) Ives was responsible for equipment

28 maintenance at the Phoenix plant from approximately 1993 to January 2006. (Doc. #120,

- 19 -

1 ¶ 193.) Class member McGraw was the Production Manager from November 2002 until

2 January 2004, and McGraw said he did not have any problems with Ives’ performance.

3 (Doc. ##121, ¶¶ 158, 165; 120-2 at 392.) But, according to class member Flores, Ives

4 was “part of many management teams that ran that plant for many years,” and those

5 management teams, including Ives, were responsible for “excessive downtime ... caused

6 by years of undermaintenance of the equipment.” (Doc. #120-2 at 269.)

7

When Juarez was Production Manager, Juarez reported to Flores that Ives needed

8 to improve his performance. (Id. at 292.) Although Juarez wanted to replace Ives, Juarez

9 had not documented that Ives did not have good performance, and Juarez had not

10 prepared a plan to give Ives opportunity to improve his performance. (Id.)

11

Rick Sullivan visited the Phoenix plant in December 2005 for the purpose of

12 analyzing maintenance reliability and efficacy of plants that “could not seem to get their

13 maintenance in order” or had excessive maintenance costs. (Doc. #121, ¶ 261.) Sullivan

14 analyzed the plant from planning to maintenance and reported his recommendations. (Id.

15 at ¶ 262.) Sullivan’s report stated, “The facility is in major disrepair and the Maintenance

16 Department needs some firm and fair leadership in order for the plant to turn around.”

17 (Doc. #112-6 at 23.) The report further stated, “There is obvious years of negligence in

18 this facility that is crippling its ability to compete effectively in the marketplace,” and

19 “My immediate recommendations are to replace the Maintenance Manager,” referring to

20 Ives. (Id.) Flores agreed with those statements and recommendation. (Id.) Flores also

21 said he had “misgivings about Mr. Ives’s ability to help us turn the plant around.” (Id.)

22

There is evidence that equipment downtime affected profitability only if the

23 machine was needed at the time, Ives had to reschedule preventive maintenance on a daily

24 basis to avoid delaying customer orders, the Production Manager shared responsibility

25 with Ives for ensuring preventive maintenance was performed, and when preventive

26 maintenance is not performed as scheduled, it increases the risk of a potential breakdown.

27 But there is no affirmative evidence that Ives performed his job satisfactorily—just that

28

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1 others shared the blame with him for the “major disrepair” of the facility and its

2 equipment.

3

Thus, even presuming the EEOC’s evidence to be true, the court concludes the

4 EEOC has not produced the minimal degree of proof required to establish Ives’

5 satisfactory performance. Because the EEOC has failed to establish a prima facie case of

6 discrimination regarding Ives’ termination, the court does not complete the remainder of

7 the McDonnell Douglas analysis with respect to Ives.

8

D. Stage II of McDonnell-Douglas Analysis: TIN Has Articulated

Legitimate Nondiscriminatory Reasons for Terminating The

9

Employees.

10

TIN has articulated the following reasons for its employment decisions regarding

11 Neal, Flores, McGraw, and Vanecko:

12

1. David Neal

13

TIN asserts it terminated Neal as General Manager because he was responsible for

14 all aspects of the Phoenix plant, the Phoenix plant was not profitable after six years of

15 Neal’s management, and Neal was not meeting TIN’s legitimate expectations. (Doc.

16 #110 at 5-6.) TIN further asserts that Mishurda believed in good faith that Neal (1) could

17 not improve the Phoenix plant’s performance as quickly as TIN wanted it improved, (2)

18 was not focused on the plant’s business, and (3) did not appear to accept Garza as his

19 manager. (Id. at 9.)

20

2. Hector Flores

21

TIN asserts it terminated Flores as General Manager based on Siebert’s assessment

22 of the Phoenix plant’s financial performance under Flores, the plant’s physical condition,

23 Siebert’s opinion that Flores was not effectively leading the plant, and Siebert’s lack of

24 confidence that Flores could work to achieve TIN’s goals for the plant given Flores’s past

25 performance. (Id. at 10.)

26

27

28

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1

3. Clifton McGraw

2

TIN asserts it eliminated the Logistics Manager position, which McGraw held,

3 because Garza believed the position was not adding value and eliminating it would reduce

4 the Phoenix plant’s excessive fixed costs. (Id. at 10-11.)

5

4. John Vanecko

6

TIN asserts Garza consolidated the Plant Controller position held by Vanecko and

7 Regional Controller position held by Cervantes to reduce the Phoenix plant’s fixed costs

8 and that Cervantes was qualified to perform both jobs whereas Vanecko was not.

9

Although the EEOC disputes the methods TIN used to determine that the Phoenix

10 plant was not profitable and what factors contributed to the plant’s profitability, the

11 undisputed evidence shows that TIN management had concerns regarding the Phoenix

12 plant’s profitability and fixed costs. (Doc. #120, ¶¶ 6-12, 77-78, 86-88, 97, 116-120, 206,

13 232-234; doc. #121, ¶¶ 45-46, 55-56, 93, 103-111, 146, 190.) It also is undisputed that

14 TIN acquired the Phoenix plant in April 2002 and changed the Phoenix plant’s position in

15 the corporate structure during the summer of 2002, in January 2006, and in November

16 2006. (Doc. #121, ¶¶ 4, 8, 10-11, 15, 19.) Further, the parties agree that eliminating jobs

17 is one way to reduce costs. (Id. at ¶ 194.) Therefore, TIN has articulated legitimate,

18 nondiscriminatory reasons for its employment decisions regarding Neal, Flores, McGraw,

19 and Vanecko, and the presumption of discrimination created by the prima facie cases

20 disappears. See Wallis v. J.R. Simplot Co., 26 F.3d 885, 889, 892 (9th Cir. 1994).

21

E. Stage III of McDonnell-Douglas Analysis: A Reasonable Jury Could

Not Conclude by a Preponderance of the Evidence that TIN

22

Terminated Neal, Flores, McGraw, and Vanecko Because of Their Age.

23

At the third stage, the EEOC must produce enough evidence that a reasonable jury

24 could conclude by a preponderance of the evidence that TIN terminated the employment

25 of Neal, Flores, McGraw, and Vanecko because of their age. The EEOC has offered (1)

26 purported evidence that TIN’s explanations for the terminations are not credible and (2)

27 evidence of comments it argues demonstrate age-based bias and give rise to an inference

28 TIN had a discriminatory motive when it terminated these employees .

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1

In Pottenger v. Potlatch Corp., 329 F.3d 740 (9th Cir. 2003), the Ninth Circuit held

2 a former employee failed to create a genuine factual issue of pretext and affirmed

3 summary judgment for the employer in circumstances similar to those here. In Pottenger,

4 a former divisional vice president made a prima facie case of age discrimination: he was

5 60 years old, his most recent performance review indicated he was meeting job

6 requirements, he was discharged, and he was replaced by a 43-year-old employee with

7 equal or inferior qualifications. Id. at 745-46. The employer articulated a legitimate,

8 nondiscriminatory reason for terminating the employee: “a lack of confidence that [the

9 vice president] could make the hard decisions necessary to turn around the ailing []

10 Division, which he headed.” Id. at 746. The appellate court explained that at the

11 summary judgment stage, the employee’s burden is “not high” because “[h]e must only

12 show that a rational trier of fact could, on all the evidence, find that [the employer’s]

13 explanation was pretextual and that therefore its action was taken for impermissibly

14 discriminatory reasons.” Id. To show the employer’s explanation was unworthy of

15 credence, the former vice president argued that his performance review included positive

16 comments, the employer’s justifications for his dismissal were shifting, and the company

17 did not follow a formal discharge procedure. Id. The employer’s justification for the

18 termination, however, was not that the former vice president was incompetent or a bad

19 employee, but rather the employer lacked confidence that the vice president could help

20 turn the company around. Id. The justification was consistent with the performance

21 review and had not shifted. Id. Further, there was little evidence the company had an

22 established procedure for discharging high-level employees, and, therefore, failing to

23 follow some unspecified procedure did not cast any doubt on the employer’s justification.

24 Id. at 746-47.

25

The former vice president also attempted to prove discriminatory motive for his

26 termination through evidence that his supervisor, the company president, made comments

27 referring to an “old management team,” an “old business model,” and “deadwood.” Id. at

28 747. The appellate court found these remarks, in the context of that case, did not support

- 23 -

1 an inference of age discrimination and, therefore, did not create a triable issue of material

2 fact that would defeat summary judgment. Id. After considering all of the former vice

3 president’s evidence of pretext, the court concluded that it did not refute the employer’s

4 basic rationale for the termination, i.e., the division was losing money and the company

5 lacked faith that this individual was the one to turn the division around. Id. at 748. The

6 court explained that the company “has leeway to make subjective business decisions,

7 even bad ones,” and although it may have been unfair and perhaps unwise to blame the

8 former vice president for the division’s losses, “it is not surprising that [the company’s]

9 bosses would try to make a change in leadership in a division that was having such

10 consistent trouble.” Id. at 748-49. Thus, even though the employee’s evidentiary burden

11 was “not high,” the appellate court held he had not created a genuine factual issue of

12 pretext and affirmed the summary judgment. Id. at 749.

13

1. The EEOC Has Not Established that TIN’s Justification for Its

Employment Decisions Is Unworthy of Credence.

14

The EEOC argues that TIN’s justifications for the terminations are not credible

15

because shifting and inconsistent reasons suggest the “official reasons” are not the “true

16

reasons” and, thus, are evidence of pretext. (Doc. #119 at 14.) The EEOC contends that

17

TIN now is attempting to justify the terminations as based on the employees’ poor

18

performance, but no evidence was prepared contemporaneously with the terminations to

19

show that the class members were terminated for performance reasons. (Id.) Although

20

the Ninth Circuit has held “fundamentally different qualifications for an employer’s

21

action ... give rise to a genuine issue of fact with respect to pretext,” the EEOC has not

22

identified fundamentally different explanations made by TIN for any of the class

23

members. See Pottenger, 329 F.3d at 746. It is true that TIN argues here that the

24

terminated employees had poor performance, but that is to show the EEOC cannot

25

establish a prima facie case of discrimination in Stage I because it cannot prove each

26

class member performed his job satisfactorily. That does not mean TIN has abandoned its

27

previously articulated explanations for the terminations. The EEOC has not shown that

28

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1 TIN has fundamentally shifted its justifications to the extent the court should infer they

2 are not credible.

3

Moreover, the EEOC has not demonstrated that TIN’s explanations are internally

4 inconsistent or otherwise not believable:

5

Neal and Flores. The EEOC argues that because the Phoenix plant lost money for

6 years before and after TIN acquired it, plant profitability must not have been the real

7 reason for terminating these General Managers. The EEOC also argues that neither

8 General Manager was terminated “for cause,” and that Mishurda and Garza made

9 decisions that affected plant profitability and deprived Flores of the autonomy given to

10 other General Managers. Mishurda and Garza hired Flores and they were not involved in

11 his termination. Further, there is no evidence they influenced Siebert and Grube to

12 terminate Flores shortly after responsibility for the Phoenix plant was reassigned. As in

13 Pottenger, TIN “has leeway to make subjective business decisions, even bad ones,” and it

14 is not surprising that shortly after acquiring the unprofitable Phoenix plant and again

15 shortly after reorganizing supervision over the plant, TIN would change plant

16 management.

17

McGraw. Garza created the Logistics Manager position, which existed at other

18 plants, and four months later eliminated the position at the Phoenix plant. TIN contends

19 it eliminated the position to reduce fixed costs and if Garza had wanted to terminate

20 McGraw because of his age, he could have done so instead of transferring him to the

21 Logistics Manager position. Moreover, when Garza took over Neal’s General Manager

22 job, McGraw was 61 years old and had been Production Manager for less than 90 days.

23 Garza easily could have terminated McGraw at that point if he was motivated by age-

24 based animus. The fact that at one point TIN incorrectly stated McGraw’s reason for

25 leaving was that he had chosen voluntary early retirement is not sufficient to create an

26 inference that cost reduction was not the real reason for eliminating the Logistics

27 Manager position.

28

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1

Vanecko. Because the regional controller’s office was located at the Phoenix

2 facility, TIN consolidated the Regional Controller and Plant Controller positions to

3 reduce the Phoenix plant’s fixed costs. Such consolidation would not have been possible

4 at other plants where a regional controller did not have an office. Garza chose to fill the

5 consolidated position with the person holding the regional position instead of the one

6 holding the plant position because the consolidated position required skills needed for

7 both positions. Garza’s opinion that the person holding the consolidated position should

8 speak Spanish and understand Mexican tax law is not unbelievable where the

9 consolidated position included responsibilities for a plant in Mexico, even if the

10 controllers did not prepare income tax filings.

11

2. The EEOC Has Not Produced Credible Evidence That a

Discriminatory Reason More Likely Motivated TIN to

12

Terminate Neal, Flores, McGraw, and Vanecko.

13

Mishurda’s and Garza’s comments that the EEOC contends show age-based

14 animus are insufficient to conclude that a discriminatory reason more likely motivated

15 TIN to terminate Neal, Flores, McGraw, and Vanecko than did TIN’s explanations for the

16 terminations. Mishurda may have “connected age with energy, health, vitality, and

17 creativity,” and Garza may have been concerned about whether older applicants had the

18 physical ability or endurance to handle certain jobs, but their comments do not suggest

19 that Mishurda and Garza made employment decisions based on stereotypes about age

20 instead of evaluating each applicant’s or employee’s actual abilities. Questioning

21 whether an experienced sales manager is willing and able to climb stairs in the Phoenix

22 summer heat, wondering whether a sales manager in his 70’s is actively pursuing new

23 customers, and expressing concerns about an overweight sales manager spending too

24 much time drinking, golfing, and possibly coasting into retirement while still on the

25 payroll may be legitimate business concerns. Despite their questions and concerns,

26 however, the evidence shows Mishurda and Garza hired older employees, and they

27 replaced Neal, Flores, and McGraw with employees who were more than 40 years old.

28

- 26 -

1

Thus, a company’s preference for “energetic,” “fresh,” and “youthful,” rather than

2 “old school” and “old fashioned,” does not necessarily reflect age-based animus or

3 provide credible evidence that a discriminatory reason motivated TIN to terminate Neal,

4 Flores, McGraw, and Vanecko.

5 IV. Conclusion

6

The EEOC has not provided direct evidence that the terminations of Neal, Flores,

7 McGraw, Vanecko, and Ives were motivated by age-based animus. The EEOC has

8 established a prima facie case of age discrimination for the terminations of Neal, Flores,

9 McGraw, and Vanecko, but not for Ives. TIN has articulated legitimate,

10 nondiscriminatory reasons for the terminations of Neal, Flores, McGraw, and Vanecko.

11 The EEOC has not established that TIN’s articulated reasons are mere pretext. Presuming

12 the EEOC’s evidence to be true and drawing all reasonable inferences from the evidence

13 in the light most favorable to the EEOC, a reasonable factfinder could not conclude that

14 age discrimination was the real reason for the terminations of Neal, Flores, McGraw,

15 Vanecko, and Ives. Therefore, the court will grant TIN’s motion for summary judgment.

16

IT IS THEREFORE ORDERED that Plaintiff’s Motion to Strike and Motion for

17 Leave to File Surreply (doc. #131) is granted, striking Defendant TIN’s Response to

18 Plaintiff EEOC’s Statement of Facts in Opposition to Defendant’s Motion for Summary

19 Judgment (doc. #129) and Defendant TIN’s Supplemental Appendix of Materials in

20 Support of Its Response to Plaintiff EEOC’s Statement of Facts in Opposition to TIN’s

21 Motion for Summary Judgment (doc. #130). The Clerk shall leave the documents imaged

22 in the electronic records of the court.

23

IT IS FURTHER ORDERED that Defendant TIN’s Motion for Summary

24 Judgment (doc. #110) is granted.

25 / / /

26

27

28

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1

IT IS FURTHER ORDERED that the Clerk of the Court enter judgment in favor

2 of Defendant and that Plaintiff take nothing on its complaint. The Clerk shall terminate

3 this action.

4

DATED this 2nd day of June, 2008.

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 Case 2:06-cv-01899-NVW Document 150 Filed 12/16/09 Page 1 of 1
FILED
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DEC 14 2009
MOLLY C. DW YER, CLERK OF COURT U.S. COURT OF APPEALS

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff - Appellant,

No. 08-16749 D.C. No. 2:06-cv-001899-NVW District of Arizona, Phoenix

v.

MANDATE

TIN, INC., a Delaware corporation, DBA Inland Paperboard and Packaging, Inc., DBA Temple-Inland

Defendant - Appellee.

The judgment of this Court, entered 10/20/09, takes effect this date. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. Cost awarded to $595.10.
FOR THE COURT:
Molly C. Dwyer Clerk of Court
/s/ By: Theresa Benitez Deputy Clerk

Case 2:06-cv-01899-NVW Document 150-1 Filed 12/16/09 Page 1 of 5
FILED

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS

OCT 20 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff - Appellant, v.
TIN, INC., a Delaware corporation, DBA Inland Paperboard and Packaging, Inc., DBA Temple-Inland
Defendant - Appellee.

No. 08-16749 D.C. No. 2:06-cv-001899-NVW
MEMORANDUM *

Appeal from the United States District Court for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted October 8, 2009 San Francisco, California
Before: WALLACE, THOMPSON and THOMAS, Circuit Judges.
The Equal Employment Opportunity Commission (EEOC) appeals from the
district court’s summary judgment for employer TIN, Inc. (TIN) on the EEOC’s
Age Discrimination in Employment Act (ADEA) claims arising out of TIN’s
termination of Neal, McGraw and Vanecko. We have jurisdiction pursuant to 28

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Case 2:06-cv-01899-NVW Document 150-1 Filed 12/16/09 Page 2 of 5
U.S.C. § 1291. We review the district court’s summary judgment de novo, Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir. 2004), and we reverse.
The district court properly held that the EEOC established a prima facie case of disparate treatment under the ADEA as to Neal, McGraw and Vanecko. However, TIN argues that the EEOC did not make a showing that Neal was performing his job satisfactorily, as is required at the prima facie stage of an ADEA analysis. “The requisite degree of proof necessary to establish a prima facie case for . . . ADEA claims on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). The EEOC provided evidence that Neal never received a negative performance review or warning that his job was in jeopardy; that his supervisors, Garza and Mishurda, were satisfied with his plans for the plant; and that Garza told Neal he was satisfied with Neal’s performance. This is sufficient to satisfy the minimal burden of a prima facie case.
TIN also argues that, for all three employees, the EEOC failed to establish the last part of its prima facie case: that each was discharged under circumstances giving rise to an inference of age discrimination. This can be satisfied by showing the employee was “replaced by [a] substantially younger employee[] with equal or inferior qualifications;” but, where the employee’s job was eliminated and thus
2

Case 2:06-cv-01899-NVW Document 150-1 Filed 12/16/09 Page 3 of 5
there is no “replacement,” it may also be established by “showing the employer had a continuing need for the employees’ skills and services in that their various duties were still being performed.” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207-08 (9th Cir. 2008) (internal citations omitted).
Here, Neal was replaced by Garza, who was substantially (15 years) younger, but TIN argues that Garza’s qualifications were not equal or inferior to Neal’s; rather, TIN urges that Garza was more qualified than Neal because (1) Garza held a higher-ranked position than Neal, in which he oversaw multiple plants instead of Neal’s one, (2) “Garza had previously been involved in saving two other unprofitable TIN plants,” while Neal had not, and (3) Garza was ultimately able to make the Phoenix plant profitable after Neal failed to do so. While Garza was higher-ranked than Neal and oversaw multiple plants, it does not necessarily follow that Garza was more qualified to run the Phoenix plant, which Neal had done for six years. Garza’s duties as regional director differed from those of a plant manager, and an executive is not necessarily qualified for a job merely because the position reports to him. Likewise, while the Phoenix plant became profitable after Garza took over, the fact that a facility was profitable under one manager and not another does not mean that the two managers’ qualifications differed. Finally, TIN’s assertion that Garza had “been involved in saving” two
3

Case 2:06-cv-01899-NVW Document 150-1 Filed 12/16/09 Page 4 of 5
other unprofitable plants is based on Mishurda’s testimony that Garza had “turned [the Los Mochis] plant around” and “helped turn [the Imperial Valley] plant around,” and on Garza’s own description of how he “turn[ed] . . . around” the Imperial Valley plant. Beyond Mishurda’s conclusory statement, there is little evidence of Garza’s success at the Los Mochis plant; and Garza admitted the Imperial Valley plant was not profitable while he was plant manager and only became profitable more than a year after he left that position. Given these facts, the EEOC raised a disputed material fact for a fact-finder to determine.
Because McGraw’s and Vanecko’s positions were eliminated, the EEOC may establish this requirement of its prima facie case by “showing the employer had a continuing need for [the employee’s] skills and services in that his various duties were still being performed.” See Wallis, 26 F.3d at 891 (internal citations omitted). McGraw’s logistics manager position was eliminated and his duties were redistributed to the production manager and sales manager. The production manager at the time, Felipe Juarez, was almost 20 years younger than McGraw, and the sales manager at the time, Martin Monkewicz, was 23 years younger. It is also undisputed that when TIN eliminated Vanecko’s plant controller position, its functions were consolidated into the regional controller position, which was held
4

Case 2:06-cv-01899-NVW Document 150-1 Filed 12/16/09 Page 5 of 5
by someone 24 years Vanecko’s junior. Thus, the EEOC established the fourth requirement of its prima facie case as to McGraw and Vanecko.
The next question is whether the EEOC presented sufficient evidence that TIN’s articulated reasons for the terminations were pretextual. E.E.O.C. v. Boeing Co., 577 F.3d 1044, 1049 (9th Cir. 2009). The EEOC submitted evidence that Mishurda and Garza, two supervisors with decision-making authority over Neal, McGraw and Vanecko, made comments from which a jury could find that they harbored discriminatory animus toward older workers. Regardless of whether these comments are considered direct evidence or substantial and specific indirect evidence, the EEOC has provided sufficient evidence from which a jury could find, “by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action[s].” See Gross v. FBL Fin. Servs., Inc., --U.S. ---, 129 S. Ct. 2343, 2352 (2009).
Therefore, we reverse the summary judgment and remand the case to the district court for further proceedings consistent with this disposition.
REVERSED AND REMANDED.
5

 
 Case: 2:06-cv-1899 As of: 06/03/2017 09:58 AM MST 1 of 11
U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:06−cv−01899−NVW

CLOSED,STD

Equal Employment Opportunity Commission v. TIN, Inc. Assigned to: Senior Judge Neil V Wake Case in other court: 9th Circuit Court of Appeals, 08−16749 Cause: 29:626 Job Discrimination (Age)
Plaintiff

Date Filed: 08/02/2006 Date Terminated: 06/11/2010 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Equal Employment Opportunity Commission

represented by Mary Joleen O'Neill Equal Employment Opportunity Commission − Phoenix, AZ 3300 N Central Ave., Ste. 690 Phoenix, AZ 85012−1848 602−640−5044 Fax: 602−640−5009 Email: mary.oneill@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle G Marshall EEOC 3300 N Central Ave Ste 690 Phoenix, AZ 85012−1848 602−640−5020 Fax: 602−640−5009 Email: michelle.marshall@eeoc.gov TERMINATED: 01/22/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sally Clifford Shanley Equal Employment Opportunity Commission − Phoenix, AZ 3300 N Central Ave., Ste. 690 Phoenix, AZ 85012−1848 602−640−5007 Fax: 602−640−5009 Email: sally.shanley@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Valerie Leigh Meyer US EEOC 3300 N Central Ave Ste 690 Phoenix, AZ 85012−2504 602−640−4988 Fax: 602−640−5009 Email: valerie.meyer@eeoc.gov ATTORNEY TO BE NOTICED

V.
Defendant
TIN Incorporated a Delaware corporation doing business as

represented by Camille A Olson Seyfarth Shaw LLP 131 S Dearborn St

Case: 2:06-cv-1899 As of: 06/03/2017 09:58 AM MST 2 of 11

Inland Paperboard and Packaging Incorporated TERMINATED: 02/23/2007 doing business as Temple−Inland

Ste 2400 Chicago, IL 60603−5577 312−460−5831 Fax: 312−460−7831 Email: colson@seyfarth.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher J DeGroff , Seyfarth Shaw LLP 131 S Dearborn St Ste 2400 Chicago, IL 60603−5577 312−460−5982 Fax: 312−460−7982 Email: cdegroff@seyfarth.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cintra D Bentley Seyfarth Shaw LLP 131 S Dearborn St Ste 2400 Chicago, IL 60603−5577 312−460−5915 Fax: 312−460−7915 Email: cbentley@seyfarth.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Fritz Joseph Aldrine , II Temple−Inland 1300 S MoPac Expwy Austin, TX 78746 512−434−8004 Fax: 512−434−2559 Email: fritzaldrine@templeinland.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stacy Meryl Gabriel Gabriel & Ashworth PLLC 10105 E Via Linda Ste 103 No 392 Scottsdale, AZ 85258 480−368−2790 Fax: 480−391−6821 Email: stacy@gabrielashworth.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/02/2006 08/02/2006
08/03/2006 11/20/2006

# Docket Text
1 COMPLAINT, filed by Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet)(Marshall, Michelle) (Entered: 08/02/2006)
This case has been assigned to the Honorable Neil V. Wake. All future pleadings or documents should bear the correct case number: CV06−1899−PHX−NVW. (entered by ESH, ) (Entered: 08/03/2006)
2 Summons Issued as to Temple−Inland Inc. (ESH, ) (Entered: 08/03/2006)
3 SUMMONS Returned Executed by Equal Employment Opportunity Commission. Temple−Inland Inc served on 11/8/2006, answer due 11/28/2006. (TLJ) (Entered: 11/21/2006)

Case: 2:06-cv-1899 As of: 06/03/2017 09:58 AM MST 3 of 11

11/20/2006 11/20/2006 11/22/2006 11/22/2006 01/02/2007 01/02/2007 01/03/2007 01/03/2007 01/03/2007
01/03/2007 01/03/2007
01/03/2007 01/03/2007
02/02/2007 02/02/2007 02/09/2007 02/22/2007 02/23/2007 02/23/2007

4 SUMMONS Returned Executed by Equal Employment Opportunity Commission. Sub served receptionist. (TLJ) (Entered: 11/21/2006)
5 SUMMONS Returned Executed by Equal Employment Opportunity Commission. Served personally and sub served receptionist at Temple Inland. (TLJ) (Entered: 11/21/2006)
6 STIPULATION FOR EXTENSION OF TIME TO ANSWER COMPLAINT by Temple−Inland Inc. (Gabriel, Stacy) (Entered: 11/22/2006)
7 ORDER granting 6 STIPULATION FOR EXTENSION OF TIME TO ANSWER COMPLAINT. Defendant Temple−Inland Inc. answer due 1/2/2007. Signed by Judge Neil V. Wake on 11/22/2006. (NVW, ) (Entered: 11/22/2006)
8 ANSWER to Complaint by Temple−Inland Inc.(Gabriel, Stacy) (Entered: 01/02/2007)
9 Corporate Disclosure Statement by Temple−Inland Inc. (Gabriel, Stacy) (Entered: 01/02/2007)
10 ORDER issued: Scheduling Conference set for 2/23/2007 at 09:30 AM before Judge Neil V Wake. Signed by Judge Neil V Wake on 1/3/07. (SJF) (Entered: 01/03/2007)
11 MOTION for Admission Pro Hac Vice as to attorney Camille A Olson on behalf of Temple−Inland Inc. (BAS, ) (Entered: 01/03/2007)
12 ORDER pursuant to General Order 05−25 granting 11 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 01/03/2007)
13 MOTION for Admission Pro Hac Vice as to attorney Christopher J DeGroff on behalf of Temple−Inland Inc. (BAS, ) (Entered: 01/03/2007)
14 ORDER pursuant to General Order 05−25 granting 13 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 01/03/2007)
15 MOTION for Admission Pro Hac Vice as to attorney Cintra DB Geairn on behalf of Temple−Inland Inc. (BAS, ) (Entered: 01/03/2007)
16 ORDER pursuant to General Order 05−25 granting 15 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 01/03/2007)
17 Notice re Service of Rule 26(a) Initial Disclosures by Temple−Inland Inc (Geairn, Cintra) (Entered: 02/02/2007)
18 Notice re Service of Initial Rule 26 (a)(1) Disclosures by Equal Employment Opportunity Commission (Marshall, Michelle) (Entered: 02/02/2007)
19 REPORT re: Rule 26(f) Planning Meeting by Equal Employment Opportunity Commission, Temple−Inland Inc. (Marshall, Michelle) (Entered: 02/09/2007)
20 Notice re of Service of Written Discovery by Temple−Inland Inc (Geairn, Cintra) (Entered: 02/22/2007)
21 SCHEDULING ORDER: Discovery due by 9/7/2007, Dispositive motions due by 10/5/2007, Proposed Pretrial Order due by 10/19/2007. Signed by Judge Neil V Wake on 2/23/07. (SJF) (Entered: 02/23/2007)
22 Notice re Service of First Discovery Requests to Defendant by Equal Employment Opportunity Commission (Marshall, Michelle) (Entered: 02/23/2007)

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02/23/2007
04/10/2007 04/10/2007 04/24/2007 04/26/2007
04/26/2007 05/23/2007 05/23/2007 06/08/2007 06/20/2007 06/28/2007 06/28/2007 06/28/2007
06/28/2007
06/29/2007 06/29/2007 06/29/2007 07/06/2007
07/09/2007 07/09/2007
07/10/2007

23 Minute Entry. Proceedings held before Judge Neil V Wake : Scheduling Conference held on 2/23/2007. Court Ordered the Clerk's Office to amend the docket to correct the caption of the case to reflect the true name of dft as TIN, Inc., a Delaware corporation dba Temple−Inland (Court Reporter Laurie Adams.)(DMT, ) (Entered: 02/26/2007)
24 Notice re Service of Discovery Responses by Equal Employment Opportunity Commission (Marshall, Michelle) (Entered: 04/10/2007)
25 Notice re Service of Responses to Written Discovery and Responses to Requests to Admit by TIN, Inc. (Geairn, Cintra) (Entered: 04/10/2007)
26 Notice re Service of First Supplemental Disclosure by Equal Employment Opportunity Commission (Marshall, Michelle) (Entered: 04/24/2007)
27 STIPULATION to Extend Deadline for Settlement Talks by Equal Employment Opportunity Commission, TIN, Inc.. (Attachments: # 1 Text of Proposed Order)(Marshall, Michelle) (Entered: 04/26/2007)
28 ORDER granting 27 STIPULATION to Extend Deadline for Settlement Talks. Signed by Judge Neil V. Wake on 4/26/2007. (NVW, ) (Entered: 04/26/2007)
29 STIPULATION Regarding Confidentiality of Certain Documents by TIN, Inc.. (Attachments: # 1 Text of Proposed Order)(Geairn, Cintra) (Entered: 05/23/2007)
30 ORDER re 29 STIPULATION Regarding Confidentiality of Certain Documents. Signed by Judge Neil V. Wake on 5/23/2007. (NVW, ) (Entered: 05/23/2007)
31 Notice re of Service of Supplemental Rule 26(a) Disclosures by TIN, Inc. (Geairn, Cintra) (Entered: 06/08/2007)
32 Notice re Service of Rule 26(a)(2) Disclosure by Equal Employment Opportunity Commission (Marshall, Michelle) (Entered: 06/20/2007)
33 NOTICE of Deposition of Birg Mishurda, filed by Equal Employment Opportunity Commission. (Marshall, Michelle) (Entered: 06/28/2007)
34 Notice re Service of Fourth Request for Production of Documents by Equal Employment Opportunity Commission (Marshall, Michelle) (Entered: 06/28/2007)
35 STIPULATION (Second) to Extend Deadline for Engaging in Good Faith Settlement Talks and Filing Joint Report by TIN, Inc.. (Attachments: # 1 Text of Proposed Order Order Extending Deadline for Engaging in Good Faith Settlement Talks and Filing Joint Report)(Geairn, Cintra) (Entered: 06/28/2007)
36 ORDER granting 35 STIPULATION to Extend Deadline for Engaging in Good Faith Settlement Talks and Filing Joint Report. Signed by Judge Neil V. Wake on 6/28/2007. (NVW, ) (Entered: 06/28/2007)
37 Notice re Service of Supplemental Discovery Responses by TIN, Inc. (Geairn, Cintra) (Entered: 06/29/2007)
38 NOTICE of Deposition of of David Neal, filed by TIN, Inc.. (Geairn, Cintra) (Entered: 06/29/2007)
39 NOTICE of Deposition of Hector Flores, filed by TIN, Inc.. (Geairn, Cintra) (Entered: 06/29/2007)
40 Notice re Service of Response and Third Supplemental Disclosure Statement by Equal Employment Opportunity Commission (Second Supplemental Response to Defendant's First Set of Requests for Production) (Marshall, Michelle) (Entered: 07/06/2007)
41 Notice re Service of Defendant's Second Supplemental Rule 26(a) Disclosures by TIN, Inc. (Geairn, Cintra) (Entered: 07/09/2007)
42 Joint MOTION for Extension of Time Discovery Deadlines by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Marshall, Michelle) (Entered: 07/09/2007)
43 ORDER granting 42 Motion for Extension of Time re discovery deadlines: Defendants Expert disclosure is extended from July 13, 2007 to August 3, 2007. Rebuttal Expert

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07/10/2007 07/15/2007 07/20/2007 07/30/2007 07/31/2007 07/31/2007 08/02/2007 08/03/2007
08/03/2007
08/03/2007
08/03/2007
08/06/2007
08/06/2007 08/14/2007 08/15/2007

disclosure is extended from August 3, 2007 to August 24, 2007. Fact Discovery deadline is extended from August 31, 2007 to October 31, 2007. Expert Depositions deadline extended from September 7, 2007 to October 31, 2007. Dispositive Motion deadline extended from October 5, 2007 to December 5, 2007. Responses to Dispositive Motions are to be filed by January 8, 2008 and Replies, if any, by January 29, 2008. Proposed Pretrial Order deadline extended from October 19, 2007 to December 20, 2007. Deadlines set: Discovery due by 10/31/2007, Dispositive motions due by 12/5/2007, Proposed Pretrial Order due by 12/20/2007. Signed by Judge Neil V Wake on 7/10/07.(SJF) (Entered: 07/10/2007)
44 NOTICE of Appearance by Valerie Leigh Meyer on behalf of Equal Employment Opportunity Commission (Meyer, Valerie) (Entered: 07/10/2007)
45 Notice re Service of Second Supplemental Responses to Plaintiff's First Request for Production of Documents by TIN, Inc. (Geairn, Cintra) (Entered: 07/15/2007)
46 Notice re Service of Fourth Supplemental Disclosure Statement by Equal Employment Opportunity Commission (Meyer, Valerie) (Entered: 07/20/2007)
47 Notice re Service of Responses to Second Set of Interrogatories and Second, Third, and Fourth Requests for Production of Documents by TIN, Inc. (Geairn, Cintra) (Entered: 07/30/2007)
48 Joint MOTION for Extension of Time to Extend Expert Disclosure Deadline by Equal Employment Opportunity Commission, TIN, Inc.. (Attachments: # 1 Text of Proposed Order)(Marshall, Michelle) (Entered: 07/31/2007)
49 ORDER granting 48 Joint Motion to Extend Expert Disclosure Deadline. Signed by Judge Neil V. Wake on 7/31/2007.(NVW, ) (Entered: 07/31/2007)
50 Notice re Service of 5th Request for Production of Documents and 3rd Set of Non−Uniform Interrogatories to Defendant by Equal Employment Opportunity Commission (Marshall, Michelle) (Entered: 08/02/2007)
51 First MOTION to Amend/Correct re Answer by TIN, Inc.. (Attachments: # 1 Exhibit A − Proposed Amended Answer# 2 Text of Proposed Order)(Geairn, Cintra) Modified on 8/6/2007 (DMT, ).STRIKE OUT VERSION OF AMENDED PLEADING NOT ATTACHED TO MOTION. ATTORNEY NOTICED. (Entered: 08/03/2007)
52 MEMORANDUM re: of Points and Authorities in Support of Defendant's Motion for Leave to Amend Answer to Complaint re 51 First MOTION to Amend/Correct re Answer by Defendant TIN, Inc.. (Attachments: # 1 Exhibit 1 − Deposition of Hector Flores)(Geairn, Cintra) (Entered: 08/03/2007)
53 LODGED Proposed Amended Answer to Complaint re: 51 First MOTION to Amend/Correct re Answer. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by TIN, Inc.. (Geairn, Cintra) Modified on 8/6/2007 (DMT, ). COVER SHEET MISSING. ATTORNEY NOTICED. (Entered: 08/03/2007)
54 Notice re Service of Third Supplemental Response to Defendant's First Set of Non−Uniform Interrogatories and Third Supplemental Response to Defendant's First Set of Requests for Production by Equal Employment Opportunity Commission (Marshall, Michelle) (Entered: 08/03/2007)
55 NOTICE TO FILER OF DEFICIENCY re 51 First MOTION to Amend/Correct re Answer filed by TIN, Inc.. Description of deficiency: Document not in compliance with LRCiv 15.1 and the policies and procedures manual. (DMT, ) (Entered: 08/06/2007)
56 NOTICE TO FILER OF DEFICIENCY re 53 Lodged Proposed Document filed by TIN, Inc.. Description of deficiency: Cover Sheet is missing. (DMT, ) (Entered: 08/06/2007)
57 Notice re Service of Defendant's Rule 26(a)(2) Disclosure Statement by TIN, Inc. (Geairn, Cintra) (Entered: 08/14/2007)
58 NOTICE of Deposition of Clifton McGraw, filed by TIN, Inc.. (Geairn, Cintra) (Entered: 08/15/2007)

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08/15/2007 08/17/2007 08/20/2007
08/21/2007 08/29/2007
08/29/2007 08/29/2007 08/29/2007 09/06/2007 09/06/2007 09/06/2007 09/06/2007
09/06/2007
09/07/2007
09/10/2007 09/12/2007 09/12/2007
09/13/2007 09/13/2007 09/18/2007 09/18/2007

59 NOTICE of Deposition of John Vanecko, filed by TIN, Inc.. (Geairn, Cintra) (Entered: 08/15/2007)
60 Notice re Service of Plaintiff's Sixth Supplemental Disclosure Statement by Equal Employment Opportunity Commission (Marshall, Michelle) (Entered: 08/17/2007)
61 RESPONSE in Opposition re 51 First MOTION to Amend/Correct re Answer filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit)(Marshall, Michelle) (Entered: 08/20/2007)
62 Notice re Service of Defendant's First Supplemental Rule 26(a)(2) Disclosure Statement by TIN, Inc. (Geairn, Cintra) (Entered: 08/21/2007)
63 REPLY in Support re 51 First MOTION to Amend/Correct re Answer to Complaint filed by TIN, Inc.. (Attachments: # 1 Exhibit 2 − Flores Deposition)(Geairn, Cintra) (Entered: 08/29/2007)
64 Notice re Service of Second Set of Non−Uniform Interrogatories to Plaintiff by TIN, Inc. (Geairn, Cintra) (Entered: 08/29/2007)
65 ORDER granting Defendant's 51 Motion to for Leave to File an Amended Answer to Complaint. Signed by Judge Neil V Wake on 8/29/2007.(CLB) (Entered: 08/29/2007)
66 AMENDED ANSWER to 1 Complaint by TIN, Inc. Jury demand. (DMT, ) (Entered: 08/30/2007)
67 NOTICE of Deposition of Dale Stahl, filed by Equal Employment Opportunity Commission. (Marshall, Michelle) (Entered: 09/06/2007)
68 NOTICE of Deposition of Martin Monkewicz, filed by Equal Employment Opportunity Commission. (Marshall, Michelle) (Entered: 09/06/2007)
69 NOTICE of Deposition of Ron Kelly, filed by Equal Employment Opportunity Commission. (Marshall, Michelle) (Entered: 09/06/2007)
70 Notice re First Amended Notice of Deposition of Birg Mishurda by Equal Employment Opportunity Commission re 33 Notice of Deposition (Marshall, Michelle) (Entered: 09/06/2007)
71 Notice re Service of Responses to Fifth Set of Requests for Production and Answers to Third Set of Non−Uniform Interrogatories by TIN, Inc. (Geairn, Cintra) (Entered: 09/06/2007)
72 REPORT of Good Faith Settlement Talks and Request for Extension of Discovery Deadlines by Plaintiff Equal Employment Opportunity Commission, Defendant TIN, Inc.. (Attachments: # 1 Text of Proposed Order)(Marshall, Michelle) (Entered: 09/07/2007)
73 ORDER denying 72 Request for Extension of Discovery Deadlines. Signed by Judge Neil V. Wake on 9/10/2007. (NVW, ) (Entered: 09/10/2007)
74 NOTICE of Deposition of William Childress, filed by Equal Employment Opportunity Commission. (Marshall, Michelle) (Entered: 09/12/2007)
75 Notice re Service of Supplemental Discovery Responses by Equal Employment Opportunity Commission Fourth Supplemental Response to Defendant's First set of Requests for Production and Fourth Supplemental Response to Defendant's First Set of Non−uniform Interrogatories (Marshall, Michelle) (Entered: 09/12/2007)
76 NOTICE of Deposition of Alex Saloman, filed by TIN, Inc.. (Geairn, Cintra) (Entered: 09/13/2007)
77 NOTICE of Deposition of Paul Ives, filed by TIN, Inc.. (Geairn, Cintra) (Entered: 09/13/2007)
78 NOTICE of Deposition of Clifton McGraw, filed by TIN, Inc.. (Geairn, Cintra) (Entered: 09/18/2007)
79 NOTICE of Deposition of Sheila Crawford, filed by Equal Employment Opportunity Commission. (Marshall, Michelle) (Entered: 09/18/2007)

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09/24/2007 09/25/2007 09/26/2007 09/26/2007 09/26/2007 10/03/2007 10/03/2007 10/03/2007 10/03/2007 10/04/2007 10/04/2007 10/05/2007 10/09/2007 10/09/2007 10/09/2007 10/09/2007 10/09/2007
10/17/2007 10/21/2007

80 Notice re Service of Third Supplemental Response to First Request for Production and First Supplemental Answers to First Set of Non−Uniform Interrogatories by TIN, Inc. (Geairn, Cintra) (Entered: 09/24/2007)
81 NOTICE of Deposition of Larry D. Stokes, Ph.D., filed by TIN, Inc.. (Geairn, Cintra) (Entered: 09/25/2007)
82 NOTICE of Deposition of Larry D. Stokes, PhD, filed by TIN, Inc.. (Geairn, Cintra) (Entered: 09/26/2007)
83 NOTICE of Deposition of Jim Jurski, filed by Equal Employment Opportunity Commission. (Marshall, Michelle) (Entered: 09/26/2007)
84 NOTICE of Deposition of Juan Ramon Garza, filed by Equal Employment Opportunity Commission. (Marshall, Michelle) (Entered: 09/26/2007)
85 AMENDED DOCUMENT by Equal Employment Opportunity Commission. Amendment to 83 Notice of Deposition of Jim Jurski. (Marshall, Michelle) (Entered: 10/03/2007)
86 NOTICE of Deposition of Defendant TIN, Inc. pursuant to Rule 30(b)(6), filed by Equal Employment Opportunity Commission. (Marshall, Michelle) (Entered: 10/03/2007)
87 MOTION for Extension of Time to Take Two Depositions (Unopposed) by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Marshall, Michelle) (Entered: 10/03/2007)
88 ORDER granting 87 Plaintiff's Unopposed Motion for Leave to Take Depositions Beyond the Discovery Deadline. Signed by Judge Neil V. Wake on 10/3/2007.(NVW, ) (Entered: 10/03/2007)
89 AMENDED DOCUMENT by Equal Employment Opportunity Commission. Amendment to 68 Notice of Deposition of Martin Monkewicz. (Marshall, Michelle) (Entered: 10/04/2007)
90 NOTICE of Deposition of Christopher Erath, filed by Equal Employment Opportunity Commission. (Marshall, Michelle) (Entered: 10/04/2007)
94 MOTION for Admission Pro Hac Vice as to attorney Fritz J Aldrine II on behalf of TIN, Inc. (BAS, ) (Entered: 10/09/2007)
91 AMENDED DOCUMENT by Equal Employment Opportunity Commission. Amendment to 86 Notice of Deposition of TIN, Inc.. (Marshall, Michelle) (Entered: 10/09/2007)
92 AMENDED DOCUMENT by Equal Employment Opportunity Commission. Amendment to 79 Notice of Deposition of Sheila Crawford. (Marshall, Michelle) (Entered: 10/09/2007)
93 AMENDED DOCUMENT by Equal Employment Opportunity Commission. Amendment to 84 Notice of Deposition of Juan Ramon Garza. (Marshall, Michelle) (Entered: 10/09/2007)
PRO HAC VICE FEE PAID. $ 100, receipt number PHX063129 as to Fritz J Aldrine, II. (BAS, ) (Entered: 10/09/2007)
95 ORDER pursuant to General Order 05−25 granting 94 Motion for Admission Pro Hac Vice.Per the Court's Administrative Policies and Procedures Manual, applicant has five (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS, )(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 10/09/2007)
96 NOTICE of Deposition of Dale Stahl, filed by Equal Employment Opportunity Commission. (Marshall, Michelle) (Entered: 10/17/2007)
97 Notice re Service of Defendant's Response To Plaintiff EEOCs Second Set Of Requests For Admissions, Response To Plaintiff EEOCs Sixth Request For Production Of Documents, and Answer To Plaintiff EEOCs Fourth Set Of Non−Uniform

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10/29/2007 10/29/2007 10/30/2007
10/30/2007
10/31/2007 10/31/2007
11/02/2007 11/06/2007 11/08/2007
11/19/2007
11/21/2007 12/03/2007 12/17/2007 12/17/2007 12/17/2007

Interrogatories by TIN, Inc. (Geairn, Cintra) (Entered: 10/21/2007)
98 Notice re Notice of Discovery Dispute/Certificate of Counsel by Equal Employment Opportunity Commission, TIN, Inc. (Geairn, Cintra) (Entered: 10/29/2007)
99 ORDER re 98 Notice of Discovery Dispute. Signed by Judge Neil V. Wake on 10/29/2007. (NVW, ) (Entered: 10/29/2007)
100 MOTION to Strike re Changes Made to Deposition Testimony of Class Members David Neal and Hector Flores by TIN, Inc.. (Attachments: # 1 Text of Proposed Order Exhibit 1# 2 Exhibit Notice of Discovery Dispute/Certification of Counsel)(Geairn, Cintra) (Entered: 10/30/2007)
101 MEMORANDUM re: of Points and Authorities in Support of Defendant TIN's Motion to Strike Changes Made to the Deposition Testimony of Class Members David Neal and Hector Flores re 100 MOTION to Strike re Changes Made to Deposition Testimony of Class Members David Neal and Hector Flores by Defendant TIN, Inc.. (Attachments: # 1 Exhibit A − Excerpts from Flores Deposition# 2 Exhibit B − Excerpts from Neal Deposition)(Geairn, Cintra) (Entered: 10/30/2007)
102 Notice re of Service of Seventh Supplemental Disclosure Statement by Equal Employment Opportunity Commission (Meyer, Valerie) (Entered: 10/31/2007)
103 Notice re Service of Defendant's Group Supplemental Responses To Plaintiffs First, Second, Third, Fourth, And Fifth Requests For Production Of Documents; Group Supplemental Answers To Plaintiff EEOCs First, Second, And Fourth Set Of Non−Uniform Interrogatories; Third Supplemental Rule 26(A)(1) Disclosures by TIN, Inc. (Geairn, Cintra) (Entered: 10/31/2007)
104 NOTICE of Deposition of William Childress, filed by Equal Employment Opportunity Commission. (Meyer, Valerie) (Entered: 11/02/2007)
105 Joint MOTION for Extension of Time − Ten (10) Day Extension of Summary Judgment Motion Briefing Schedule by TIN, Inc.. (Attachments: # 1 Text of Proposed Order)(Geairn, Cintra) (Entered: 11/06/2007)
106 ORDER granting 105 Motion for Extension of TimeDispositive motions due by 12/17/2007.,Proposed Pretrial Order due by 12/31/2007. The parties should file their motions for summary judgment whetheror not the Motion to Strike (doc. # 100) has been ruled on.. Signed by Judge Neil V Wake on 11/7/07.(DMT, ) (Entered: 11/08/2007)
107 RESPONSE in Opposition re 100 MOTION to Strike re Changes Made to Deposition Testimony of Class Members David Neal and Hector Flores filed by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A−I)(Marshall, Michelle) (Entered: 11/19/2007)
108 REPLY in Support re 100 MOTION to Strike re Changes Made to Deposition Testimony of Class Members David Neal and Hector Flores filed by TIN, Inc.. (Geairn, Cintra) (Entered: 11/21/2007)
109 ORDER granting 100 Motion to Strike. Signed by Judge Neil V. Wake on 12/3/2007.(NVW, ) (Entered: 12/03/2007)
110 MOTION for Summary Judgment by TIN, Inc.. (DeGroff, Christopher) (Entered: 12/17/2007)
111 STATEMENT of Facts re 110 MOTION for Summary Judgment by Defendant TIN, Inc.. (DeGroff, Christopher) (Entered: 12/17/2007)
112 Exhibit List /Appendix of Materials in Support of Motion for Summary Judgment by TIN, Inc... (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R − Part 1, # 19 Exhibit R − Part 2, # 20 Exhibit S, # 21 Exhibit T, # 22 Exhibit U, # 23 Exhibit V, # 24 Exhibit W, # 25 Exhibit X)(DeGroff, Christopher) (Entered: 12/17/2007)

Case: 2:06-cv-1899 As of: 06/03/2017 09:58 AM MST 9 of 11

12/20/2007 12/21/2007
01/17/2008 01/17/2008 01/22/2008
01/22/2008 02/20/2008 02/20/2008 02/29/2008
02/29/2008 03/03/2008 03/04/2008
03/04/2008
03/04/2008 03/21/2008 03/21/2008

113 MOTION for Extension of Time for Response and Reply to Motion for Summary Judgment by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Meyer, Valerie) (Entered: 12/20/2007)
114 ORDER granting 113 Motion for Extension of Time. Plaintiffs Response to Defendants Motion for Summary Judgment (doc. # 110) is extended to February 1, 2008, and Defendants Reply deadline is extended to March 21, 2008.. Signed by Judge Neil V Wake on 12/21/07.(DMT, ) (Entered: 12/21/2007)
115 MOTION to Withdraw as Attorney by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Marshall, Michelle) (Entered: 01/17/2008)
116 MOTION for Extension of Time Time to Respond to Motion for Summary Judgment (Unopposed) by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Meyer, Valerie) (Entered: 01/17/2008)
117 ORDER granting 115 Motion to Withdraw as Attorney. Attorney Michelle G Marshall is withdrawn and terminated. Mary Jo ONeill, Sally C. Shanley, and Valerie L. Meyer shall remain as counsel for Plaintiff. Signed by Judge Neil V Wake on 1/18/08.(DMT, ) (Entered: 01/22/2008)
118 ORDER granting 116 Motion for Extension of Time. The deadline for Plaintiff to file its response to Defendants Motion for Summary Judgment is extended to February 20,2008.. Signed by Judge Neil V Wake on 1/18/08.(DMT, ) (Entered: 01/22/2008)
119 RESPONSE in Opposition re 110 MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. (Meyer, Valerie) (Entered: 02/20/2008)
121 STATEMENT of of Controverting Facts pursuant to LRCiv 56.1(b)(1) re 111 Statement by Plaintiff Equal Employment Opportunity Commission. (Meyer, Valerie) (Entered: 02/20/2008)
122 Notice re Errata by Equal Employment Opportunity Commission re 120 Statement (Attachments: # 1 Errata Plaintiff's Statement of Facts, # 2 Errata Revised Non−Confidential Exhibits to Plaintif''s Statement of Facts)(Meyer, Valerie) (Entered: 02/29/2008)
123 SEALED MOTION to Seal Document re Doc. 120, Statement of Facts and Exhibits by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Meyer, Valerie) (Entered: 02/29/2008)
124 Notice re Notice of Attorney Name Change by TIN, Inc. (Geairn, Cintra) (Entered: 03/03/2008)
125 ORDER denying 123 Motion to Seal. Plaintiff shall present a substitute document for filing, one of Doc. 120 without the confidential pages, and a separate document with the confidential pages to be filed under seal. Document 120 will be vacated once the replacement documents are filed. Signed by Judge Neil V Wake on 3/3/08.(MAP) ***VACATED PURSUANT TO ORDER #126, FILED ON 3/4/2008 (MAP). (Entered: 03/04/2008)
126 ORDER vacating this Courts Order denying Plaintiffs motion to seal 125 FURTHER ORDERED granting Motion 123 and that the clerk seal Plaintiffs Statement of Facts 120 in itsentirety. Signed by Judge Neil V Wake on 3/4/08. (MAP) (Entered: 03/04/2008)
127 Notice re Filing Exhibit by Equal Employment Opportunity Commission re 122 Other Notice (Attachments: # 1 Exhibit 7 to PSOF (Doc. 122), Signed Vanecko Declaration)(Meyer, Valerie) (Entered: 03/04/2008)
128 REPLY in Support re 110 MOTION for Summary Judgment filed by TIN, Inc.. (DeGroff, Christopher) (Entered: 03/21/2008)
129 DOCUMENT STRICKEN PER ORDER OF 6/2/08 − RESPONSE to Plaintiff EEOC's Statement of Facts in Opposition to TIN's Motion for Summary Judgment by Defendant TIN, Inc.. (DeGroff, Christopher) Modified on 6/2/2008 (DMT, ). (Entered: 03/21/2008)

Case: 2:06-cv-1899 As of: 06/03/2017 09:58 AM MST 10 of 11

03/21/2008
04/03/2008 04/15/2008 04/24/2008 06/02/2008
06/02/2008 06/16/2008 06/16/2008 06/27/2008 06/27/2008 06/30/2008 07/07/2008 07/14/2008 07/31/2008
07/31/2008 08/01/2008 08/01/2008

130 DOCUMENT STRICKEN PER ORDER OF 6/2/08 − Exhibit List /Supplemental Appendix in Support of Its Response to Plaintiff EEOC's Statement of Facts in Opposition to TIN's Motion for Summary Judgment by TIN, Inc... (Attachments: # 1 Exhibit Y, # 2 Exhibit Z, # 3 Exhibit AA, # 4 Exhibit BB, # 5 Exhibit CC, # 6 Exhibit DD, # 7 Exhibit EE, # 8 Exhibit FF, # 9 Exhibit GG, # 10 Exhibit HH, # 11 Exhibit II, # 12 Exhibit JJ, # 13 Exhibit KK)(DeGroff, Christopher) Modified on 6/2/2008 (DMT, ). (Entered: 03/21/2008)
131 MOTION to Strike re Docs. 129 and 130, MOTION for Leave to File Surreply by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Meyer, Valerie) (Entered: 04/03/2008)
132 RESPONSE in Opposition re 131 MOTION to Strike re Docs. 129 and 130 MOTION for Leave to File Surreply filed by TIN, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Bentley, Cintra) (Entered: 04/15/2008)
133 REPLY in Support re 131 MOTION to Strike re Docs. 129 and 130 MOTION for Leave to File Surreply filed by Equal Employment Opportunity Commission. (Meyer, Valerie) (Entered: 04/24/2008)
134 ORDER granting 131 Motion to Strike and Motion for Leave to File surreply. Striking 130 Exhibit List, Supplemental Appendix, 129 Response. Granting 110 Motion for Summary Judgment; that the Clerk of the Court enter judgment in favor of defenant and that plaintiff take nothing on its complaint. Clerk shall terminate this action.. Signed by Judge Neil V Wake on 6/2/08.(DMT, ) (Entered: 06/02/2008)
135 CLERK'S JUDGMENT entered in favor of TIN, Inc. against Equal Employment Opportunity Commission. Plaintiff to take nothing, and complaint and action are dismissed. (DMT, ) (Entered: 06/02/2008)
136 BILL OF COSTS by TIN, Inc.. (Attachments: # 1 Exhibit A−U)(Bentley, Cintra) (Entered: 06/16/2008)
137 APPLICATION/NOTICE of BILL OF COSTS Served on Plaintiff Equal Employment Opportunity Commission by TIN, Inc.. (Bentley, Cintra) (Entered: 06/16/2008)
138 OBJECTION/ANSWER/RESPONSE to BILL OF COSTS by Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A through D)(Meyer, Valerie) (Entered: 06/27/2008)
139 MOTION to Stay re Proceedings on Bill of Costs Pending Appeal by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Meyer, Valerie) (Entered: 06/27/2008)
140 ORDER denying 139 Motion to Stay of Bill of Costs pending appeal.. Signed by Judge Neil V Wake on 6/30/08.(DMT, ) (Entered: 06/30/2008)
141 RESPONSE to OBJECTION to BILL OF COSTS by TIN, Inc.. (Attachments: # 1 Exhibit A)(Bentley, Cintra) (Entered: 07/07/2008)
142 Taxation of Costs in amount of $17,138.52 against Plaintiff. Signed by Chief Deputy Michael O'Brien on 7/14/08. (BAR, ) (Entered: 07/14/2008)
143 NOTICE OF APPEAL to 9th Circuit, by Equal Employment Opportunity Commission as to 134 Order, 135 Judgment (Shanley, Sally) Modified on 8/1/2008 (DMT, ). DOCKET TEXT MODIFIED TO CORRECT DOCUMENT LINKAGE. (Entered: 07/31/2008)
144 Representation Statement by Equal Employment Opportunity Commission re 143 Notice of Appeal (Shanley, Sally) (Entered: 07/31/2008)
CADS Sent re 143 Notice of Appeal : Civil Appeals Docketing Statement sent to 9th Circuit on this date. (DMT, ) (Entered: 08/01/2008)
145 Notice of Appeal Notification Form; Notice of Appeal and copy of docket sheet transmitted to Ninth Circuit and all parties re 143 Notice of Appeal (DMT, ) (Entered: 08/01/2008)

Case: 2:06-cv-1899 As of: 06/03/2017 09:58 AM MST 11 of 11

08/11/2008 08/22/2008 04/15/2009 04/16/2009 12/16/2009 12/17/2009
12/18/2009 12/22/2009
06/10/2010 06/11/2010

146 TRANSCRIPT DESIGNATION AND ORDER FORM by Equal Employment Opportunity Commission for proceedings held on No Transcripts before Judge Neil V. Wake, re 143 Notice of Appeal (Meyer, Valerie) (Entered: 08/11/2008)
147 CERTIFICATE OF RECORD TRANSMITTED TO 9TH CIRCUIT COURT OF APPEALS re 143 Notice of Appeal (KMG, ) (Entered: 08/22/2008)
148 MOTION to Stay re Execution of Costs by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order)(Meyer, Valerie) (Entered: 04/15/2009)
149 ORDER granting Pla's 148 Motion to Stay Execution of Costs. That execution of costs as taxed by the Clerk of the Court (Doc.140) is stayed pending resolution of Pla's appeal of this Court's Order Granting Summary Judgment in favor of Dft. Signed by Judge Neil V Wake on 04/16/09. (ESL) (Entered: 04/16/2009)
150 MANDATE of 9th Circuit reversing the District Court decision and remanding re case number 08−16749, as to 143 Notice of Appeal. (Attachments: #(1) Memorandum, #(2) NDA). (LSP) (Entered: 12/16/2009)
151 ORDER SETTING FINAL PRETRIAL CONFERENCE − Pursuant to Rule 16(d) of the Federal Rules of Civil Procedure, a Final Pretrial Conference shall be held as follows: Final Pretrial Conference set for 2/10/2010 10:00 AM in Courtroom 504, 401 West Washington Street, Phoenix, AZ 85003 before Judge Neil V Wake. The parties jointly shall prepare a Proposed Final Pretrial Order and shall lodge it with the Court no later than 4:00 p.m. on January 19, 2010. Signed by Judge Neil V Wake on 12/16/09. (NOTE: See Order for full details)(KMG, ) (Entered: 12/17/2009)
152 Joint MOTION to Continue Pre−Trial Dates by Equal Employment Opportunity Commission, TIN, Inc.. (Attachments: # 1 Text of Proposed Order)(Meyer, Valerie) (Entered: 12/18/2009)
153 ORDER re Joint 152 Motion to Extend Pretiral deadlines. It is hereby ordered extending the pretrial schedule in this matter as follows: Joint Proposed Pretrial Order due by 6/25/2010. Final Pretrial Conference reset for 7/16/2010 at 01:30 PM in Courtroom 504, 401 West Washington Street, Phoenix, AZ 85003 before Judge Neil V Wake. Signed by Judge Neil V Wake on 12/21/09. (NOTE: see attached pdf for complete details)(ESL, ) (Entered: 12/22/2009)
154 Joint MOTION to Approve Consent Judgment by Equal Employment Opportunity Commission, TIN, Inc.. (Attachments: # 1 Text of Proposed Order Consent Decree)(Meyer, Valerie) (Entered: 06/10/2010)
155 CONSENT DECREE − This Decree resolves all claims of the Commission and Dave Neal, John Vanecko, and Clifton McGraw (collectively, the "Claimants") against Defendant, including back pay, front pay, interest, injunctive relief, attorney's fees and costs arising out of the issues in this lawsuit. Except where specified below, the terms of this Decree apply only to TIN's operations at its Glendale, Arizona facility. TIN, and its successors and assigns for the duration of this Decree, are permanently enjoined from engaging in any employment practice which discriminates on the basis of age against individuals 40 years of age and older. Within fourteen (14) calendar days of the entry of this Decree, TIN shall make a payment in the total amount of Two Hundred and Fifty Thousand Dollars ($250,000.00) in resolution of all claims asserted in this case. These payments shall be apportioned to the Claimants as follows: David Neal $ 140,000.00; Clifton McGraw $ 60,000.00; John Vanecko $ 50,000.00. TIN shall expunge from any personnel file regarding the Claimants any reference to any charge or complaint of discrimination filed against TIN that formed the basis of this action. In the event that TIN does not comply with any provision of this Decree, and the Commission petitions the Court to order TIN to comply, TIN shall pay all costs incurred by the Commission to enforce the Decree. Signed by Judge Neil V Wake on 6/11/10. (NOTE: See Consent Decree for full details)(KMG) (Entered: 06/11/2010)